THIRD DIVISION

 

ANITA REYES–MESUGAS,           G.R. No.174835          

Petitioner,                                    

                   -  v e r s u s  -                         

ALEJANDRO AQUINO REYES,

   Respondent.                 

Promulgated: March 22, 2010

 

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D E C I S I O N

CORONA, J.:

This is a petition for review on certio-rari[1] seeking to reverse the June 23, 2006 and September 21, 2006 orders[2] of the Regional Trial Court of Makati (RTC), Branch 62 denying the petitioner’s motion to cancel a notice of lis pendens.

          Petitioner Anita Reyes-Mesugas and re-spondent Alejandro A. Reyes are the children of Lourdes Aquino Reyes and Pedro N. Reyes. Lour-des died intestate, leaving to her heirs, among others, three parcels of land, including a lot cov-ered by Transfer Certificate of Title (TCT) No. 24475.

On February 3, 2000, respondent filed a petition for settlement of the estate of Lourdes,[3] praying for his appointment as administrator due to alleged irregularities and fraudulent trans-actions by the other heirs. Petitioner, her father Pedro and Arturo, a sibling of the petitioner, op-posed the petition. 

          On August 30, 2000, a compromise agree-ment[4] was entered into by the parties whereby the estate of Lourdes was partitioned. A deci-sion[5] dated September 13, 2000 was rendered by the RTC pursuant to the said compromise agreement. The compromise agreement with re-spect to TCT No. 24475 is reproduced below:

5. That the parties hereto hereby agree to rec-ognize, acknowledge and respect:

5.1.      the improvements found on the parcel of land covered under TCT No. 24475 of the Registry of Deeds of Rizal consisting of two lots namely Lot 4-A and Lot 4-B of the new

survey with two (2) residential houses presently occupied and possessed as owners thereof by Antonio Reyes and Anita Reyes-Mesugas to constitute part of their shares in the estate of Lourdes Aquino Reyes;

5.2       further, the improvement consisting of a bakery-store under lease to a third party. The proceeds thereof shall be shared by Anto-nio Reyes and Pedro N. Reyes;

5.3       that the expenses for the partition and titling of the property between Antonio Reyes and Anita Reyes-Mesugas shall be equally shared by them.

 

          On December 7, 2004, petitioner filed a motion to cancel lis pendens annotation for TCT No. 24475[6] in the RTC in view of the finality of judgment in the settlement of the estate. Peti-tioner argued that the settlement of the estate proceeding had terminated; hence, the annota-tion of lis pendens could already be cancelled since it had served its purpose.

Respondent opposed the motion and claimed that the parties, in addition to the com-promise agreement, executed “side agreements” which had yet to be fulfilled. One such agree-ment was executed between petitioner[7] and respondent granting respondent a one-meter right of way on the lot covered by TCT No. 24475. However, petitioner refused to give the right of way and threatened to build a concrete structure to prevent access. He argued that, un-less petitioner permitted the inscription of the right of way on the certificate of title pursuant to their agreement, the notice of lis pendens in TCT No. 24475 must remain.

          In its order[8] dated January 26, 2006, the RTC denied the motion to cancel the notice of lis pendens annotation for lack of sufficient merit. It found that the cancellation of the notice of lis pendens was unnecessary as there were reasons for maintaining it in view of petitioner's non-com-pliance with the alleged right of way agreement between the parties. It stated that:

             A careful perusal of the compromise agreement dated September 13, 2000 revealed that one of the properties mentioned is a parcel of land with improvements consisting [of] two hundred nine (209) square meters situated in Makati covered under TCT No. 24475 of the  Reg-istry of Deeds [of] Rizal  in the name of Pedro N. Reyes married to Lourdes Aquino Reyes and form[s] part of the notarized right of way agree-ment on TCT No. 24475, considering that the

movant Anita Reyes is still bound by the right of way agreement, the same should be complied with before the cancellation of the subject anno-tation.[9] (Citations omitted)

            Petitioner filed a notice of appeal.[10] Be-cause the denial of a motion to cancel the notice of lis pendens annotation was an interlocutory order, the RTC denied the notice of appeal as it could not be appealed until the judgment on the main case was rendered.[11] A motion for recon-sideration was filed by petitioner but the same was also denied.[12]

          Hence, this petition.

          We find for petitioner.

          A compromise is a contract whereby the parties, by making reciprocal concessions, avoid litigation or put an end to one already com-menced.[13] Once submitted to the court and stamped with judicial approval, it becomes more than a mere private contract binding upon the parties; having the sanction of the court and en-tered as its determination of the controversy, it has the force and effect of any judgment.[14]

 

          Consequently, a judgment rendered in ac-cordance with a compromise agreement is im-mediately executory as there is no appeal from such judgment.[15]When both parties enter into an agreement to end a pending litigation and re-quest that a decision be rendered approving said agreement, such action constitutes an implied waiver of the right to appeal against the said de-cision.[16]

In this instance, the case filed with the RTC was a special proceeding for the settlement of the estate of Lourdes. The RTC therefore took cognizance of the case as a probate court.

Settled is the rule that a probate court is a tribunal of limited jurisdiction. It acts on mat-ters pertaining to the estate but never on the rights to property arising from the contract.[17] It approves contracts entered into for and on be-half of the estate or the heirs to it but this is by fiat of the Rules of Court.[18] It is apparent therefore that when the RTC approved the com-promise agreement on September 13, 2000, the settlement of the estate proceeding came to an end.

Moreover, a notice of lis pendens may be cancelled when the annotation is not neces-sary to protect the title of the party who caused it to be recorded.[19] The compromise agree-ment did not mention the grant of a right of way

to respondent. Any agreement other than the ju-dicially approved compromise agreement be-tween the parties was outside the limited juris-diction of the probate court. Thus, any other agreement entered into by the petitioner and re-spondent with regard to a grant of a right of way was not within the jurisdiction of the RTC acting as a probate court. Therefore, there was no rea-son for the RTC not to cancel the notice of lis pendenson TCT No. 24475 as respondent had no right which needed to be protected. Any alleged right arising from the “side agreement” on the right of way can be fully protected by filing an or-dinary action for specific performance in a court of general jurisdiction. 

More importantly, the order of the pro-bate court approving the compromise had the effect of directing the delivery of the residue of the estate of Lourdes to the persons entitled thereto under the compromise agreement. As such, it brought to a close the intestate proceed-ings[20] and the probate court lost jurisdiction over the case, except only as regards to the compliance and the fulfillment by the parties of their respective obligations under the compro-mise agreement. 

Having established that the proceed-ings for the settlement of the estate of Lourdes came to an end upon the RTC’s promulgation of a decision based on the compromise agreement, Section 4, Rule 90 of the Rules of Court provides:

 Sec. 4. Recording the order of partition of estate. - Certified copies of final orders and judgments of the court relating to the real estate or the partition thereof shall be recorded in the registry of deeds of the province where the property is situ-ated.

In line with the recording of the order for the partition of the estate, paragraph 2, Sec-tion 77 of Presidential Decree (PD) No. 1529[21] provides:

Section 77. Cancellation of Lis Pendens – xxx                       xxx      xxx

At any time after final judgment in favor of the defendant, or other disposition of the action such as to terminate finally all rights of the plaintiff in and to the land and/or buildings involved, in any case in which a memorandum or notice of lis pen-dens has been registered as provided in the preceding section, the notice of lis pendens shall be deemed cancelled upon the registration of a certificate of the clerk of court in which the action or pro-

ceeding was pending stating the manner of disposal thereof. (emphasis supplied)

Thus, when the September 13, 2000 decision was recorded in the Registry of Deeds of Rizal pursuant to Section 4, Rule 90 of the Rules of Court, the notice of lis pendens inscribed on TCT No. 24475 was deemed cancelled by virtue of Section 77 of PD No. 1529.

WHEREFORE, the petition is hereby GRANTED. The Orders of the Regional Trial Court of Makati, Branch 62 dated June 23, 2006 and September 21, 2006 are SET ASIDE. The notice of lis pendens annotated on TCT No. 24475 is hereby declared CANCELLED pursuant to Section 77 of the PD No. 1529 in relation to Section 4, Rule 90 of the Rules of Court.

SO ORDERED.

RENATO C. CORONA

Associate Justice

Chairperson

THIRD DIVISION

ALAN JOSEPH A. SHEKER, G.R. No. 157912

                  Petitioner,

                  - versus -

ESTATE OF ALICE O. SHEKER, VICTORIA S. MED-INA- Administratrix, Respondent.

 Promulgated:  December 13, 2007

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D E C I S I O N 

 AUSTRIA-MARTINEZ, J.:

         This resolves the Petition for Review on Certiorari seeking the reversal of the Order[1] of the Regional Trial Court of Iligan City, Branch 6 (RTC) datedJanuary 15, 2003 and its Omnibus Or-der dated April 9, 2003.

         The undisputed facts are as follows.

         The RTC admitted to probate the holo-graphic will of Alice O. Sheker and thereafter is-sued an order for all the creditors to file their re-spective claims against the estate.  In compli-ance therewith, petitioner filed on October 7, 2002 a contingent claim for agent's commission due him amounting to approximately P206,250.00 in the event of the sale of certain parcels of land belonging to the estate, and the amount of P275,000.00, as reimbursement for expenses incurred and/or to be incurred by peti-tioner in the course of negotiating the sale of said realties.  

         The executrix of the Estate of Alice O. Sheker (respondent) moved for the dismissal of said money claim against the estate on the grounds that (1) the requisite docket fee, as pre-scribed in Section 7(a), Rule 141 of the Rules of Court, had not been paid; (2) petitioner failed to attach a certification against non-forum shop-ping; and (3) petitioner failed to attach a written explanation why the money claim was not filed and served personally.

         On January 15, 2003, the RTC issued the assailed Order dismissing without prejudice the money claim based on the grounds advanced by respondent. Petitioner's motion for reconsidera-

tion was denied per Omnibus Order dated April 9, 2003.

         Petitioner then filed the present petition for review on certiorari, raising the following ques-tions:

(a)   must a contingent claim filed in the probate proceeding contain a certi-fication against non-forum shopping, failing which such claim should be dis-missed?

(b)   must a contingent claim filed against an estate in a probate pro-ceeding be dismissed for failing to pay the docket fees at the time of its filing thereat?

(c)   must a contingent claim filed in a probate proceeding be dismissed be-cause of its failure to contain a written explanation on the service and filing by registered mail?[2]

 

Petitioner maintains that the RTC erred in strictly applying to a probate proceeding the rules requiring a certification of non-forum shop-ping, a written explanation for non-personal fil-ing, and the payment of docket fees upon filing of the claim.  He insists that Section 2, Rule 72 of the Rules of Court provides that rules in ordinary actions are applicable to special proceedings only in a suppletory manner. 

The Court gave due course to the peti-tion for review on certiorari although directly filed with this Court, pursuant to Section 2(c), Rule 41 of the Rules of Court.[3]

         The petition is imbued with merit.

         However, it must be emphasized that peti-tioner's contention that rules in ordinary actions are only supplementary to rules in special pro-ceedings is not entirely correct. 

Section 2, Rule 72, Part II of the same Rules of Court provides:

Sec. 2.  Applicability of rules of Civil Actions. - In the absence of special provisions, the rules provided for in ordi-nary actions shall be, as far as practica-ble, applicable in special proceedings.

Stated differently, special provisions under Part II of the Rules of Court govern special proceedings; but in the absence of special provi-sions, the rules provided for in Part I of the Rules governing ordinary civil actions shall be applica-ble to special proceedings, as far as practicable. 

The word “practicable” is defined as: possible to practice or perform; capable of being put into practice, done or accomplished.[4]  This means that in the absence of special provisions, rules in ordinary actions may be applied in spe-cial proceedings as much as possible and where doing so would not pose an obstacle to said pro-ceedings.  Nowhere in the Rules of Court does it categorically say that rules in ordinary actions are inapplicable or merely suppletory to special proceedings. Provisions of the Rules of Court re-quiring a certification of non-forum shopping for complaints and initiatory pleadings, a written ex-planation for non-personal service and filing, and the payment of filing fees for money claims against an estate would not in any way obstruct probate proceedings, thus, they are applicable to special proceedings such as the settlement of the estate of a deceased person as in the present case.

Thus, the principal question in the present case is: did the RTC err in dismissing pe-titioner's contingent money claim against re-spondent estate for failure of petitioner to attach to his motion a certification against non-forum shopping? 

The Court rules in the affirmative.

The certification of non-forum shopping is required only for complaints and other initia-tory pleadings.  The RTC erred in ruling that a contingent money claim against the estate of a decedent is an initiatory pleading.  In the present case, the whole probate proceeding was initiated upon the filing of the petition for allowance of the decedent's will.  Under Sections 1 and 5, Rule 86 of the Rules of Court, after granting letters of testamentary or of administration, all persons having money claims against the decedent are mandated to file or notify the court and the es-tate administrator of their respective money claims; otherwise, they would be barred, subject to certain exceptions.[5] 

         Such being the case, a money claim against an estate is more akin to a motion for creditors' claims to be recognized and taken into consideration in the proper disposition of the properties of the estate.  In Arquiza v. Court of Appeals,[6] the Court explained thus:

         x x x The office of a motion is not to initiate new litigation, but to bring a material but inci-dental matter arising in the progress of the case in which the motion is filed. A motion is not an in-dependent right or remedy, but is confined to in-cidental matters in the progress of a cause. It re-lates to some question that is collateral to the

main object of the action and is connected with and dependent upon the principal remedy.[7] (Emphasis supplied)

A money claim is only an incidental matter in the main action for the settlement of the decedent's estate; more so if the claim is contingent since the claimant cannot even institute a separate ac-tion for a mere contingent claim.  Hence, herein petitioner's contingent money claim, not being an initiatory pleading, does not require a certifi-cation against non-forum shopping.

         On the issue of filing fees, the Court ruled in Pascual v. Court of Appeals,[8] that the trial court has jurisdiction to act on a money claim (attorney's fees) against an estate for services rendered by a lawyer to the administratrix to as-sist her in fulfilling her duties to the estate even without payment of separate docket fees be-cause the filing fees shall constitute a lien on the judgment pursuant to Section 2, Rule 141 of the Rules of Court, or the trial court may order the payment of such filing fees within a reasonable time.[9]  After all, the trial court had already as-sumed jurisdiction over the action for settlement of the estate.  Clearly, therefore, non-payment of filing fees for a money claim against the estate is not one of the grounds for dismissing a money claim against the estate.

         With regard to the requirement of a written explanation, Maceda v. De Guzman Vda. de Macatangay[10] is squarely in point.  Therein, the Court held thus:

          In Solar Team Entertainment, Inc. v. Ri-cafort, this Court, passing upon Section 11 of Rule 13 of the Rules of Court, held that a court has the discretion to consider a pleading or pa-per as not filed if said rule is not complied with: 

         Personal service and filing are pre-ferred for obvious reasons.  Plainly, such should expedite action or resolution on a pleading, motion or other paper; and con-versely, minimize, if not eliminate, delays likely to be incurred if service or filing is done by mail, considering the inefficiency of the postal service.  Likewise, personal service will do away with the practice of some lawyers who, wanting to appear clever, resort to the following less than eth-ical practices: (1) serving or filing pleadings by mail to catch opposing counsel off-guard, thus leaving the latter with little or no time to prepare, for instance, responsive pleadings or an opposition; or (2) upon re-ceiving notice from the post office that the registered mail containing the pleading of

or other paper from the adverse party may be claimed, unduly procrastinating before claiming the parcel, or, worse, not claiming it at all, thereby causing undue delay in the disposition of such pleading or other pa-pers.

            If only to underscore the mandatory nature of this innovation to our set of ad-jective rules requiring personal service whenever practicable, Section 11 of Rule 13 then gives the court the discretion to consider a pleading or paper as not filed if the other modes of service or filing were not resorted to and no written explanation was made as to why personal service was not done in the first place.  The exercise of discretion must, necessarily consider the practicability of personal service, for Sec-tion 11 itself begins with the clause “when-ever practicable”.

            We thus take this opportunity to clarify that under Section 11, Rule 13 of the 1997 Rules of Civil Procedure, personal ser-vice and filing is the general rule, and re-sort to other modes of service and filing, the exception.  Henceforth, whenever per-sonal service or filing is practicable, in the light of the circumstances of time, place and person, personal service or filing is mandatory.   Only when personal service or filing is not practicable may resort to other modes be had, which must then be accom-panied by a written explanation as to why personal service or filing was not practica-ble to begin with.  In adjudging the plausi-bility of an explanation, a court shall like-wise consider the importance of the subject matter of the case or the issues involved therein, and the prima facie merit of the pleading sought to be expunged for viola-tion of Section 11.  (Emphasis and italics supplied)

            In Musa v. Amor, this Court, on not-ing the impracticality of personal service, exercised its discretion and liberally applied Section 11 of Rule 13:

“As [Section 11, Rule 13 of the Rules of Court] requires, service and filing of plead-ings must be done personally whenever practicable.  The court notes that in the present case, personal service would not be practicable.  Considering the distance between the Court of Appeals and Donsol, Sorsogon where the petition was posted, clearly, service by registered mail [sic] would have entailed considerable time, ef-

fort and expense.  A written explanation why service was not done personally might have been superfluous.  In any case, as the rule is so worded with the use of “may”, signifying permissiveness, a violation thereof gives the court discretion whether or not to consider the paper as not filed.  While it is true that procedural rules are necessary to secure an orderly and speedy administration of justice, rigid application of Section 11, Rule 13 may be relaxed in this case in the interest of substantial jus-tice. (Emphasis and italics supplied)

            In the case at bar, the address of respondent’s counsel is Lopez, Quezon, while petitioner Sonia’s counsel’s is Lucena City.  Lopez, Quezon is 83 kilometers away from LucenaCity.  Such distance makes personal service impracticable.  As in Musa v. Amor, a written explanation why service was not done personally “might have been superfluous.”

            As this Court held in Tan v. Court of Appeals, liberal construction of a rule of procedure has been allowed where, among other cases, “the injustice to the adverse party is not commensurate with the degree of his thoughtlessness in not complying with the procedure prescribed.”[11]  (Em-phasis supplied)

 

         In the present case, petitioner holds office in Salcedo Village, Makati City, while counsel for respondent and the RTC which rendered the as-sailed orders are both in Iligan City.  The lower court should have taken judicial notice of the great distance between said cities and realized that it is indeed not practicable to serve and file the money claim personally.  Thus, following Medina v. Court of Appeals,[12] the failure of pe-titioner to submit a written explanation why ser-vice has not been done personally, may be con-sidered as superfluous and the RTC should have exercised its discretion under Section 11, Rule 13, not to dismiss the money claim of petitioner, in the interest of substantial justice.

The ruling spirit of the probate law is the speedy settlement of estates of deceased persons for the benefit of creditors and those en-titled to residue by way of inheritance or legacy after the debts and expenses of administration have been paid.[13]  The ultimate purpose for the rule on money claims was further explained inUnion Bank of the Phil. v. Santibañez,[14] thus:

         The filing of a money claim against the decedent’s estate in the probate court is mandatory.  As we held in the vintage case of Py Eng Chong v. Herrera:

            x x x This requirement is for the pur-pose of protecting the estate of the de-ceased by informing the executor or admin-istrator of the claims against it, thus en-abling him to examine each claim and to de-termine whether it is a proper one which should be allowed. The plain and obvious de-sign of the rule is the speedy settlement of the affairs of the deceased and the early de-livery of the property to the distributees, legatees, or heirs. The law strictly requires the prompt presentation and disposition of the claims against the decedent's estate in order to settle the affairs of the estate as soon as possible, pay off its debts and dis-tribute the residue.[15] (Emphasis supplied)

The RTC should have relaxed and liberally con-strued the procedural rule on the requirement of a written explanation for non-personal service, again in the interest of substantial justice.

         WHEREFORE, the petition is GRANTED.  The Orders of the Regional Trial Court of Iligan City, Branch 6 dated January 15, 2003 and April 9, 2003, respectively, are REVERSED and SET ASIDE.  The Regional Trial Court of Iligan City, Branch 6, is hereby DIRECTED to give due course and take appropriate action on petitioner's money claim in accordance with Rule 82 of the Rules of Court.

No pronouncement as to costs.

 

         SO ORDERED.

MA. ALICIA AUSTRIA-MARTINEZ

Associate Justice

SECOND DIVISION

IN RE: IN THE MATTER OF THE        G.R. No. 169144

PETITION TO APPROVE THE WILL

OF RUPERTA PALAGANAS WITH

PRAYER FOR THE APPOINTMENT

OF SPECIAL ADMINISTRATOR,

MANUEL MIGUEL PALAGANAS and

BENJAMIN GREGORIO PALAGANAS,

                             Petitioners,                   

- versus -                                            

- ERNESTO PALAGANAS,

                    Respondent.                          

 Promulgated:                                         January 26, 2011

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DECISION

ABAD, J.:

          This case is about the probate before Philippine court of a will executed abroad by a foreigner although it has not been probated in its place of execution.

 

The Facts and the Case

          On November 8, 2001 Ruperta C. Pala-ganas (Ruperta), a Filipino who became a natu-ralized United States (U.S.) citizen, died single and childless.  In the last will and testament she executed in California, she designated her brother, Sergio C. Palaganas (Sergio), as the ex-ecutor of her will for she had left properties in thePhilippines and in the U.S. 

          On May 19, 2003 respondent Ernesto C. Palaganas (Ernesto), another  brother of Ruperta, filed with the Regional Trial Court (RTC) of Malo-los, Bulacan, a petition for the probate of Ru-perta’s will and for his appointment as special administrator of her estate.[1]  On October 15, 2003, however, petitioners Manuel Miguel Pala-ganas (Manuel) and Benjamin Gregorio Pala-ganas (Benjamin), nephews of Ruperta, opposed the petition on the ground that Ruperta’s will should not be probated in the Philippines but in the U.S. where she executed it.  Manuel and Ben-jamin added that, assuming Ruperta’s will could be probated in the Philippines, it is invalid none-theless for having been executed under duress and without the testator’s full understanding of the consequences of such act.  Ernesto, they

claimed, is also not qualified to act as adminis-trator of the estate.

          Meantime, since Ruperta’s foreign-based siblings, Gloria Villaluz and Sergio, were on sepa-rate occasions in the Philippines for a short visit, respondent Ernesto filed a motion with the RTC for leave to take their deposition, which it granted.  On April, 13, 2004 the RTC directed the parties to submit their memorandum on the is-sue of whether or not Ruperta’s U.S. will may be probated in and allowed by a court in the Philip-pines.

 

          On June 17, 2004 the RTC issued an order:[2] (a) admitting to probate Ruperta’s last will; (b) appointing respondent Ernesto as special ad-ministrator at the request of Sergio, the U.S.-based executor designated in the will; and (c) is-suing the Letters of Special Administration to Ernesto. 

          Aggrieved by the RTC’s order, petitioner nephews Manuel and Benjamin appealed to the Court of Appeals (CA),[3] arguing that an unpro-bated will executed by an American citizen in the U.S. cannot be probated for the first time in the Philippines. 

          On July 29, 2005 the CA rendered a deci-sion,[4] affirming the assailed order of the RTC,[5] holding that the RTC properly allowed the probate of the will, subject to respondent Ernesto’s submission of the authenticated copies of the documents specified in the order and his posting of required bond.  The CA pointed out that Section 2, Rule 76 of the Rules of Court does not require prior probate and allowance of the will in the country of its execution, before it can be probated in thePhilippines.  The present case, said the CA, is different from reprobate, which refers to a will already probated and allowed abroad.  Reprobate is governed by different rules or procedures.  Unsatisfied with the decision, Manuel and Benjamin came to this Court.

The Issue Presented

          The key issue presented in this case is whether or not a will executed by a foreigner abroad may be probated in the Philippines al-though it has not been previously probated and allowed in the country where it was executed.

The Court’s Ruling

          Petitioners Manuel and Benjamin maintain that wills executed by foreigners abroad must first be probated and allowed in the country of its execution before it can be probated here.  This,

they claim, ensures prior compliance with the le-gal formalities of the country of its execution.  They insist that local courts can only allow pro-bate of such wills if the proponent proves that: (a) the testator has been admitted for probate in such foreign country, (b) the will has been admit-ted to probate there under its laws, (c) the pro-bate court has jurisdiction over the proceedings, (d) the law on probate procedure in that foreign country and proof of compliance with the same, and (e) the legal requirements for the valid exe-cution of a will.  

          But our laws do not prohibit the probate of wills executed by foreigners abroad although the same have not as yet been probated and allowed in the countries of their execution.  A foreign will can be given legal effects in our jurisdiction.  Ar-ticle 816 of the Civil Code states that the will of an alien who is abroad produces effect in the Philippines if made in accordance with the for-malities prescribed by the law of the place where he resides, or according to the formalities ob-served in his country.[6]  

          In this connection, Section 1, Rule 73 of the 1997 Rules of Civil Procedure provides that if the decedent is an inhabitant of a foreign coun-try, the RTC of the province where he has an es-tate may take cognizance of the settlement of such estate.  Sections 1 and 2 of Rule 76 further state that the executor, devisee, or legatee named in the will, or any other person interested in the estate, may, at any time after the death of the testator, petition the court having jurisdiction to have the will allowed, whether the same be in his possession or not, or is lost or destroyed. 

 

          Our rules require merely that the petition for the allowance of a will must show, so far as known to the petitioner: (a) the jurisdictional facts; (b) the names, ages, and residences of the heirs, legatees, and devisees of the testator or decedent; (c) the probable value and character of the property of the estate; (d) the name of the person for whom letters are prayed; and (e)  if the will has not been delivered to the court, the name of the person having custody of it.  Juris-dictional facts refer to the fact of death of the decedent, his residence at the time of his death in the province where the probate court is sitting, or if he is an inhabitant of a foreign country, the estate he left in such province.[7]  The rules do not require proof that the foreign will has already been allowed and probated in the country of its execution.

          In insisting that Ruperta’s will should have been first probated and allowed by the court of California, petitioners Manuel and Benjamin obvi-ously have in mind the procedure for the repro-bate of will before admitting it here.  But, repro-bate or re-authentication of a will already pro-bated and allowed in a foreign country is differ-ent from that probate where the will is presented for the first time before a competent court.  Reprobate is specifically governed by Rule 77 of the Rules of Court.  Contrary to petitioners’ stance, since this latter rule applies only to reprobate of a will, it cannot be made to apply to the present case.  In reprobate, the local court acknowledges as binding the findings of the for-eign probate court provided its jurisdiction over the matter can be established. 

          Besides, petitioners’ stand is fraught with impractically.  If the instituted heirs do not have the means to go abroad for the probate of the will, it is as good as depriving them outright of their inheritance, since our law requires that no will shall pass either real or personal property unless the will has been proved and allowed by the proper court.[8]

          Notably, the assailed RTC order of June 17, 2004 is nothing more than an initial ruling that the court can take cognizance of the petition for probate of Ruperta’s will and that, in the mean-time, it was designating Ernesto as special ad-ministrator of the estate.  The parties have yet to present evidence of the due execution of the will, i.e. the testator’s state of mind at the time of the execution and compliance with the formalities required of wills by the laws of California.  This explains the trial court’s directive for Ernesto to submit the duly authenticated copy of Ruperta’s will and the certified copies of the Laws of Suc-cession and Probate of Will of California. 

          WHEREFORE, the Court DENIES the peti-tion and AFFIRMS the Court of Appeals decision in CA-G.R. CV 83564 dated July 29, 2005.

 

          SO ORDERED.

ROBERTO A. ABAD

                                                       Associate Jus-tice

[G.R. No. 117417. September 21, 2000]

MILAGROS A. CORTES, petitioner, vs. COURT OF APPEALS and MENANDRO A. RESELVA, respondents.

D E C I S I O N

BUENA, J.:

This is a petition for review on certiorari seeking a reversal of the decision dated Septem-ber 9, 1994 of the Court of Appeals[1] in C.A.-G.R. SP. No. 33826;

"IN VIEW OF THE FOREGOING, the petition is GIVEN DUE COURSE and the assailed order of October 18, 1993, issued by the respondent court in Special Proceeding No. 90-54955 is hereby SET ASIDE and declared NULL and VOID. With costs against the private respondent."[2]

and the reinstatement of the order of the pro-bate court, thus:

"WHEREFORE, Menandro Reselva and all those acting for or through him, is/are ordered to va-cate forthwith the house and lot of the estate sit-uated in 173 Ilaw St., Balut, Tondo, Manila, and to deliver to the executrix Milagros R. Cortes the possession thereof as well as the owner's dupli-cate certificate of the title thereof."[3]

The following facts, as found by the Court of Appeals, are undisputed:

"Herein petitioner Menandro A. Reselva, private respondent (petitioner in this petition) Milagros R. Cortes, and Florante Reselva are brothers and sister and children - heirs of the late spouses Teodoro T. Reselva and Lucrecia Aguirre Reselva, who died on April 11, 1989 and May 13, 1987, re-spectively. During their lifetime, they acquired a property particularly a house and lot consisting of 100 square meters, more or less, with address at 173 Ilaw St., Balut, Tondo, Manila. As can be gleaned from the records, Lucrecia Aguirre Re-selva died ahead of Teodoro T. Reselva. The lat-ter executed a holographic will which was pro-bated in this case on July 31, 1991, with Milagros R. Cortes, as the appointed Executrix. After hav-ing been appointed and qualified as Executrix, she filed a motion before respondent probate court praying that Menandro A. Reselva, the oc-cupant of the property, be ordered to vacate the property at No. 173 Ilaw St., Balut, Tondo, Manila and turn over to said Executrix the possession thereof (Annex 'D'). This is the motion which the

respondent court granted in the assailed order of October 18, 1993."[4]

In the Appellate Court, the Regional Trial Court's order was set aside for having been is-sued beyond the latter's limited jurisdiction as a probate court.[5]

The long standing rule is that probate courts, or those in charge of proceedings whether testate or intestate, cannot adjudicate or determine title to properties claimed to be part of the estate and which are claimed to be-long to outside parties.[6] Stated otherwise, "claims for title to, or right of possession of, per-sonal or real property, made by the heirs them-selves, by title adverse to that of the deceased, or made by third persons, cannot be entertained by the (probate) court."[7]

In the present case, however, private re-spondent Menandro A. Reselva, who refused to vacate the house and lot being eyed as part of the estate of the late Teodoro T. Reselva, cannot be considered an "outside party" for he is one of the three compulsory heirs of the former. As such, he is very much involved in the settlement of Teodoro's estate.[8] By way of exception to the above-mentioned rule, "when the parties are all heirs of the decedent, it is optional upon them to submit to the probate court the question of ti-tle to property."[9] Here, the probate court is competent to decide the question of ownership. More so, when the opposing parties belong to the poor stratum of society and a separate action would be most expensive and inexpedient.[10]

In addition, Menandro's claim is not at all adverse to, or in conflict with that of, the dece-dent since the former's theory merely advances co-ownership with the latter.[11] In the same way, when the controversy is whether the prop-erty in issue belongs to the conjugal partnership or exclusively to the decedent, the same is prop-erly within the jurisdiction of the probate court, which necessarily has to liquidate the conjugal partnership in order to determine the estate of the decedent which is to be distributed among the heirs.[12]

More importantly, the case at bar falls squarely under Rule 73, Section 2 of the Revised Rules of Court, thus:

"RULE 73

"SEC. 2. Where estate upon dissolution of mar-riage. - When the marriage is dissolved by the death of the husband or wife, the community property shall be inventoried, administered, and liquidated, and the debts thereof paid, in the tes-

tate or intestate proceedings of the deceased spouse. If both spouses have died, the conjugal partnership shall be liquidated in the testate or intestate proceedings of either."

Hence, in the 1991 case of Vita vs. Mon-tanano we ruled:

"(I)t is not necessary to file a separate proceed-ing in court for the proper disposition of the es-tate of Isidra Montanano. Under Rule 73, Section 2 of the Rules of Court, if both spouses have died, the conjugal partnership shall be liquidated in the testate or intestate proceedings of either. In the present case, therefore, the conjugal part-nership of Isidra Montanano and Edilberto Vita should be liquidated in the testate proceedings of the latter."[13]

Consequently, this case before us should be returned to the probate court for the liquida-tion of the conjugal partnership of Teodoro and Lucrecia Reselva prior to the settlement of the estate of Teodoro.

WHEREFORE, without reinstating the as-sailed order of the trial court, the questioned de-cision of the Court of Appeals dated September 9, 1994 in CA-G.R. SP No. 33826 is hereby SET ASIDE and the case REMANDED to the court of origin for further proceedings. No pronounce-ment as to costs.

SO ORDERED.

Bellosillo, (Chairman), Mendoza, Quisumb-ing, and De Leon, Jr., JJ., concur.

FIRST DIVISION 

ANTONIO B. BALTAZAR, G.R. No. 174489

SEBASTIAN M. BALTAZAR,

ANTONIO L. MANGALINDAN,

ROSIE M. MATEO,

NENITA A. PACHECO,

VIRGILIO REGALA, JR., and RAFAEL TITCO,

                    Petitioners,

- versus -

LORENZO LAXA,

Promulgated: Respondent.

April 11, 2012

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

 

D E C I S I O N 

DEL CASTILLO, J.:

 

            It is incumbent upon those who oppose the probate of a will to clearly establish that the dece-dent was not of sound and disposing mind at the time of the execution of said will. Otherwise, the state is duty-bound to give full effect to the wishes of the testator to distribute his estate in the manner provided in his will so long as it is legally tenable.[1]

Before us is a Petition for Review on Cer-tiorari[2] of the June 15, 2006 Decision[3] of the Court of Appeals (CA) in CA-G.R. CV No. 80979 which reversed the September 30, 2003 Decision[4] of the Regional Trial Court (RTC), Branch 52, Guagua, Pampanga in Special Proceedings No. G-1186.  The assailed CA Decision granted the peti-tion for probate of the notarial will of Paciencia Re-gala (Paciencia), to wit:

WHEREFORE, premises consid-ered, finding the appeal to be impressed with merit, the decision in SP. PROC. NO. G-1186 dated 30 September 2003, is hereby SET ASIDE and a new one entered GRANT-ING the petition for the probate of the will of PACIENCIA REGALA.

SO ORDERED.[5]

Also assailed herein is the August 31, 2006 CA Resolution[6]  which denied the Motion for Reconsideration thereto.

Petitioners call us to reverse the CA’s as-sailed Decision and instead affirm the Decision of the RTC which disallowed the notarial will of Pacien-cia.

Factual Antecedents

            Paciencia was a 78 year old spinster when she made her last will and testament entitled “Tauli Nang Bilin o Testamento Miss Paciencia Regala”[7] (Will) in the Pampango dialect on September 13, 1981.  The Will, executed in the house of retired Judge Ernestino G. Limpin (Judge Limpin), was read to Paciencia twice. After which, Paciencia expressed in the presence of the instrumental witnesses that the document is her last will and testament.  She

thereafter affixed her signature at the end of the said document on page 3[8] and then on the left margin of pages 1, 2 and 4 thereof.[9]

The witnesses to the Will were Dra. Maria Lioba A. Limpin (Dra. Limpin), Francisco Garcia (Francisco) and Faustino R. Mercado (Faustino).  The three attested to the Will’s due execution by affixing their signatures below its attestation clause[10] and on the left margin of pages 1, 2 and 4 thereof,[11] in the presence of Paciencia and of one another and of Judge Limpin who acted as no-tary public.

            Childless and without any brothers or sis-ters, Paciencia bequeathed all her properties to re-spondent Lorenzo R. Laxa (Lorenzo) and his wife Corazon F. Laxa and their children Luna Lorella Laxa and Katherine Ross Laxa, thus:

x x x x

Fourth - In consideration of their valuable services to me since then up to the present by the spouses LORENZO LAXA and CORAZON F. LAXA, I hereby BEQUEATH, CONVEY and GIVE all my properties enumer-ated in parcels 1 to 5 unto the spouses LORENZO R. LAXA and CORAZON F. LAXA  and their children, LUNA LORELLA LAXA and KATHERINE LAXA, and the spouses Lorenzo R. Laxa and Corazon F. Laxa both of legal age, Filipinos, presently residing at Barrio Sta. Monica, [Sasmuan], Pampanga and their children, LUNA LORELLA and KATHERINE ROSS LAXA, who are still not of legal age and living with their parents who would decide to bequeath since they are the children of the spouses;

x x x x

[Sixth] - Should other properties of mine may be discovered aside from the properties mentioned in this last will and tes-tament, I am also bequeathing and giving the same to the spouses Lorenzo R. Laxa and Corazon F. Laxa and their two children and I also command them to offer masses yearly for the repose of my soul and that of D[ñ]a Nicomeda Regala, Epifania Regala and their spouses and with respect to the fish-pond situated at San Antonio, I likewise com-mand to fulfill the wishes of D[ñ]a Nicomeda Regala in accordance with her testament as stated in my testament. x x x[12]  

The filial relationship of Lorenzo with Pa-ciencia remains undisputed.  Lorenzo is Paciencia’s nephew whom she treated as her own son. Con-versely, Lorenzo came to know and treated Pacien-

cia as his own mother.[13]  Paciencia lived with Lorenzo’s family in Sasmuan, Pampanga and it was she who raised and cared for Lorenzo since his birth.  Six days after the execution of the Will or on September 19, 1981, Paciencia left for the United States of America (USA).  There, she resided with Lorenzo and his family until her death on January 4, 1996.  

In the interim, the Will remained in the custody of Judge Limpin.

More than four years after the death of Paciencia or on April 27, 2000, Lorenzo filed a peti-tion[14] with the RTC of Guagua, Pampanga for the probate of the Will of Paciencia and for the issuance of Letters of Administration in his favor, docketed as Special Proceedings No. G-1186.

There being no opposition to the petition after its due publication, the RTC issued an Order on June 13, 2000[15] allowing Lorenzo to present evi-dence on June 22, 2000.  On said date, Dra. Limpin testified that she was one of the instrumental wit-nesses in the execution of the last will and testa-ment of Paciencia on September 13, 1981.[16]  The Will was executed in her father’s (Judge Limpin) home office, in her presence and of two other wit-nesses, Francisco and Faustino.[17] Dra. Limpin positively identified the Will and her signatures on all its four pages.[18] She likewise positively identi-fied the signature of her father appearing thereon.[19]  Questioned by the prosecutor regarding Judge Limpin’s present mental fitness, Dra. Limpin testi-fied that her father had a stroke in 1991 and had to undergo brain surgery.[20]  The judge can walk but can no longer talk and remember her name.  Be-cause of this, Dra. Limpin stated that her father can no longer testify in court.[21]

The following day or on June 23, 2000, pe-titioner Antonio Baltazar (Antonio) filed an opposi-tion[22] to Lorenzo’s petition.  Antonio averred that the properties subject of Paciencia’s Will belong to Nicomeda Regala Mangalindan, his predecessor-in-interest; hence, Paciencia had no right to bequeath them to Lorenzo.[23]

Barely a month after or on July 20, 2000, Antonio, now joined by petitioners Sebastian M. Bal-tazar, Virgilio Regala, Jr., Nenita A. Pacheco, Felix B. Flores, Rafael Titco, Rosie M. Mateo (Rosie) and An-tonio L. Mangalindan filed a Supplemental Opposi-tion[24] contending that Paciencia’s Will was null and void because ownership of the properties had not been transferred and/or titled to Paciencia be-fore her death pursuant to Article 1049, paragraph 3 of the Civil Code.[25] Petitioners also opposed the issuance of Letters of Administration in Lorenzo’s fa-vor arguing that Lorenzo was disqualified to be ap-

pointed as such, he being a citizen and resident of the USA.[26]  Petitioners prayed that Letters of Ad-ministration be instead issued in favor of Antonio.[27]

Later still on September 26, 2000, peti-tioners filed an Amended Opposition[28] asking the RTC to deny the probate of Paciencia’s Will on the following grounds: the Will was not executed and at-tested to in accordance with the requirements of the law; that Paciencia was mentally incapable to make a Will at the time of its execution; that she was forced to execute the Will under duress or influ-ence of fear or threats; that the execution of the Will had been procured by undue and improper pressure and influence by Lorenzo or by some other persons for his benefit; that the signature of Paciencia on the Will was forged; that assuming the signature to be genuine, it was obtained through fraud or trickery; and, that Paciencia did not intend the document to be her Will.  Simultaneously, petitioners filed an Op-position and Recommendation[29] reiterating their opposition to the appointment of Lorenzo as admin-istrator of the properties and requesting for the ap-pointment of Antonio in his stead.

On January 29, 2001, the RTC issued an Order[30] denying the requests of both Lorenzo and Antonio to be appointed administrator since the for-mer is a citizen and resident of the USA while the latter’s claim as a co-owner of the properties subject of the Will has not yet been established.

Meanwhile, proceedings on the petition for the probate of the Will continued.  Dra. Limpin was recalled for cross-examination by the petition-ers.  She testified as to the age of her father at the time the latter notarized the Will of Paciencia; the living arrangements of Paciencia at the time of the execution of the Will; and the lack of photographs when the event took place. [31]

Aside from Dra. Limpin, Lorenzo and Monico Mercado (Monico)  also took the witness stand.  Monico, son of Faustino, testified on his fa-ther’s condition. According to him his father can no longer talk and express himself due to brain dam-age.  A medical certificate was presented to the court to support this allegation.[32]  

For his part, Lorenzo testified that: from 1944 until his departure for the USA in April 1980, he lived in Sasmuan, Pampanga with his family and his aunt, Paciencia; in 1981 Paciencia went to the USA and lived with him and his family until her death in January 1996; the relationship between him and Paciencia was like that of a mother and child since Paciencia took care of him since birth and took him in as an adopted son; Paciencia was a spinster without children, and without brothers and

sisters; at the time of Paciencia’s death, she did not suffer from any mental disorder and was of sound mind, was not blind, deaf or mute; the Will was in the custody of Judge Limpin and was only given to him after Paciencia’s death through Faustino; and he was already residing in the USA when the Will was executed.[33]  Lorenzo positively identified the signature of Paciencia in three different documents and in the Will itself and stated that he was familiar with Paciencia’s signature because he accompanied her in her transactions.[34]  Further, Lorenzo belied and denied having used force, intimidation, vio-lence, coercion or trickery upon Paciencia to exe-cute the Will as he was not in the Philippines when the same was executed.[35] On cross-examination, Lorenzo clarified that Paciencia informed him about the Will shortly after her arrival in the USA but that he saw a copy of the Will only after her death.[36]

As to Francisco, he could no longer be presented in court as he already died on May 21, 2000.

For petitioners, Rosie testified that her mother and Paciencia were first cousins.[37]  She claimed to have helped in the household chores in the house of Paciencia thereby allowing her to stay therein from morning until evening and that during the period of her service in the said household, Lorenzo’s wife and his children were staying in the same house.[38]  She served in the said household from 1980 until Paciencia’s departure for the USA on September 19, 1981.[39]

On September 13, 1981, Rosie claimed that she saw Faustino bring “something” for Pacien-cia to sign at the latter’s house.[40]  Rosie admit-ted, though, that she did not see what that “some-thing” was as same was placed inside an envelope.[41]  However, she remembered Paciencia instruct-ing Faustino to first look for money before she signs them.[42]  A few days after or on September 16, 1981, Paciencia went to the house of Antonio’s mother and brought with her the said envelope.[43] Upon going home, however, the envelope was no longer with Paciencia.[44]  Rosie further testified that Paciencia was referred to as “magulyan” or “forgetful” because she would sometimes leave her wallet in the kitchen then start looking for it mo-ments later.[45]  On cross examination, it was es-tablished that Rosie was neither a doctor nor a psy-chiatrist, that her conclusion that Paciencia was “magulyan” was based on her personal assess-ment,[46] and that it was Antonio who requested her to testify in court.[47] 

In his direct examination, Antonio stated that Paciencia was his aunt.[48]  He identified the Will and testified that he had seen the said docu-ment before because Paciencia brought the same to

his mother’s house and showed it to him along with another document on September 16, 1981.[49]  An-tonio alleged that when the documents were shown to him, the same were still unsigned.[50]  According to him, Paciencia thought that the documents per-tained to a lease of one of her rice lands,[51] and it was he who explained that the documents were ac-tually a special power of attorney to lease and sell her fishpond and other properties upon her depar-ture for the USA, and a Will which would transfer her properties to Lorenzo and his family upon her death.[52]  Upon hearing this, Paciencia allegedly uttered the following words: “Why will I never [return], why will I sell all my properties?”  Who is Lorenzo?  Is he the only [son] of God?  I have other relatives [who should] benefit from my properties.  Why should I die already?”[53]  Thereafter, Antonio advised Pa-ciencia not to sign the documents if she does not want to, to which the latter purportedly replied, “I know nothing about those, throw them away or it is up to you. The more I will not sign them.”[54]  After which, Paciencia left the documents with Antonio. Antonio kept the unsigned documents

and eventually turned them over to Faustino on September 18, 1981.[55]

Ruling of the Regional Trial Court

On September 30, 2003, the RTC ren-dered its Decision[56] denying the petition thus:

WHEREFORE, this court hereby (a) denies the petition dated April 24, 2000; and (b) disallows the notarized will dated September 13, 1981 of Paciencia Regala.

SO ORDERED.[57] 

The trial court gave considerable weight to the testimony of Rosie and concluded that at the time Paciencia signed the Will, she was no longer possessed of sufficient reason or strength of mind to have testamentary capacity.[58]

 

Ruling of the Court of Appeals

On appeal, the CA reversed the RTC Deci-sion and granted the probate of the Will of Pacien-cia.  The appellate court did not agree with the RTC’s conclusion that Paciencia was of unsound mind when she executed the Will.  It ratiocinated that “the state of being ‘magulyan’ does not make a person mentally unsound so [as] to render [Pacien-cia] unfit for executing a Will.”[59]  Moreover, the oppositors in the probate proceedings were not able to overcome the presumption that every person is of sound mind.  Further, no concrete circumstances or events were given to prove the allegation that

Paciencia was tricked or forced into signing the Will.[60]

Petitioners moved for reconsideration[61] but the motion was denied by the CA in its Resolu-tion[62] dated August 31, 2006.

Hence, this petition.

Issues

Petitioners come before this Court by way of Petition for Review on Certiorari ascribing upon the CA the following errors:

I.

THE HONORABLE COURT OF APPEALS SERI-OUSLY ERRED WHEN IT ALLOWED THE PRO-BATE OF PACIENCIA’S WILL DESPITE RE-SPONDENT’S UTTER FAILURE TO COMPLY WITH SECTION 11, RULE 76 OF THE RULES OF COURT;

II.

THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN MAKING CONCLUSIONS NOT IN ACCORDANCE WITH THE EVIDENCE ON RECORD;

III.

THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN RULING THAT PETITION-ERS FAILED TO PROVE THAT PACIENCIA WAS NOT OF SOUND MIND AT THE TIME THE WILL WAS ALLEGEDLY EXECUTED[63] 

            The pivotal issue is whether the authenticity and due execution of the notarial Will was suffi-ciently established to warrant its allowance for pro-bate.

Our Ruling 

We deny the petition. 

Faithful compliance with the formalities laid down by law is apparent from the face of the Will.

Courts are tasked to determine nothing more than the extrinsic validity of a

Will in probate proceedings.[64]  This is expressly provided for in Rule 75, Section 1 of the Rules of Court, which states:

Rule 75

PRODUCTION OF WILL. ALLOWANCE OF WILL NECESSARY. 

Section 1. Allowance necessary. Conclusive as to execution. – No will shall pass either real or personal estate unless it is proved

and allowed in the proper court. Subject to the right of appeal, such allowance of the will shall be conclusive as to its due execution.

Due execution of the will or its extrinsic validity pertains to whether the testator, being of sound mind, freely executed the will in accordance with the formalities prescribed by law.[65]  These formalities are enshrined in Articles 805 and 806 of the New Civil Code, to wit:

Art. 805. Every will, other than a holographic will, must be subscribed at the end thereof by the testator himself or by the testator's name written by some other per-son in his presence, and by his express di-rection, and attested and subscribed by three or more credible witnesses in the pres-ence of the testator and of one another.

The testator or the person re-quested by him to write his name and the in-strumental witnesses of the will, shall also sign, as aforesaid, each and every page thereof, except the last, on the left margin, and all the pages shall be numbered correla-tively in letters placed on the upper part of each page.

The attestation shall state the number of pages used upon which the will is written, and the fact that the testator signed the will and every page thereof, or caused some other person to write his name, under his express direction, in the presence of the instrumental witnesses, and that the latter witnessed and signed the will and all the pages thereof in the presence of the testator and of one another.

If the attestation clause is in a lan-guage not known to the witnesses, it shall be interpreted to them.

Art. 806. Every will must be ac-knowledged before a notary public by the testator and the witnesses. The notary public shall not be required to retain a copy of the will, or file another with the Office of the Clerk of Court.

Here, a careful examination of the face of the Will shows faithful compliance with the formali-ties laid down by law.  The signatures of the testa-trix, Paciencia, her instrumental witnesses and the notary public, are all present and evident on the Will.  Further, the attestation clause explicitly states the critical requirement that the testatrix and her in-strumental witnesses signed the Will in the pres-ence of one another and that the witnesses attested and subscribed to the Will in the presence of the

testator and of one another.  In fact, even the peti-tioners acceded that the signature of Paciencia in the Will may be authentic although they question her state of mind when she signed the same as well as the voluntary nature of said act.

The burden to prove that Paciencia was of un-sound mind at the time of the execution of the will lies on the shoulders of the petitioners.

Petitioners, through their witness Rosie, claim that Paciencia was “magulyan” or forgetful so much so that it effectively stripped her of testamen-tary capacity. They likewise claimed in their Motion for Reconsideration[66] filed with the CA that Pa-ciencia was not only “magulyan” but was actually suffering from paranoia.[67] 

We are not convinced.  

We agree with the position of the CA that the state of being forgetful does not necessarily make a person mentally unsound so as to render him unfit to execute a Will.[68]  Forgetfulness is not equivalent to being of unsound mind.  Besides, Arti-cle 799 of the New Civil Code states: 

Art.  799.    To be of sound mind, it is not necessary that the testator be in full possession of all his reasoning faculties, or that his mind be wholly unbroken, unimpaired, or unshattered by disease, injury or other cause. 

It shall be sufficient if the testator was able at the time of making the will to know the nature of the estate to be disposed of, the proper objects of his bounty, and the character of the testamentary act. 

In this case, apart from the testimony of Rosie pertaining to Paciencia’s forgetfulness, there is no substantial evidence, medical or otherwise, that would show that Paciencia was of unsound mind at the time of the execution of the Will.  On the other hand, we find more worthy of credence Dra. Limpin’s testimony as to the soundness of mind of Paciencia when the latter went to Judge Limpin’s house and voluntarily executed the Will. “The testimony of subscribing witnesses to a Will concerning the testator’s mental condition is enti-tled to great weight where they are truthful and in-telligent.”[69]  More importantly, a testator is pre-sumed to be of sound mind at the time of the exe-cution of the Will and the burden to prove otherwise lies on the oppositor.  Article 800 of the New Civil Code states:

Art. 800. The law presumes that every person is of sound mind, in the absence of proof to the contrary.

The burden of proof that the testator was not of sound mind at the time of making his dispositions is on the person who opposes the probate of the will; but if the testator, one month, or less, before making his will was publicly known to be insane, the person who maintains the valid-ity of the will must prove that the testator made it during a lucid interval.

Here, there was no showing that Pacien-cia was publicly known to be insane one month or less before the making of the Will.  Clearly, thus, the burden to prove that Paciencia was of unsound mind lies upon the shoulders of petitioners.  How-ever and as earlier mentioned, no substantial evi-dence was presented by them to prove the same, thereby warranting the CA’s finding that petitioners failed to discharge such burden.

            Furthermore, we are convinced that Pacien-cia was aware of the nature of her estate to be dis-posed of, the proper objects of her bounty and the character of the testamentary act.  As aptly pointed out by the CA:

A scrutiny of the Will discloses that [Pa-ciencia] was aware of the nature of the document she executed.  She specially requested that the customs of her faith be observed upon her death. She was well aware of how she acquired the prop-erties from her parents and the properties she is bequeathing to LORENZO, to his wife CORAZON and to his two (2) children. A third child was born after the execution of the will and was not included therein as devisee.[70]

Bare allegations of duress or influence of fear or threats, undue and improper influence and pressure, fraud and trickery cannot be used as basis to deny the probate of a will.

An essential element of the validity of the Will is the willingness of the testator or testatrix to execute the document that will distribute his/her earthly possessions upon his/her death.  Petitioners claim that Paciencia was forced to execute the Will under duress or influence of fear or threats; that the execution of the Will had been procured by undue and improper pressure and influence by Lorenzo or by some other persons for his benefit; and that as-suming Paciencia’s signature to be genuine, it was obtained through fraud or trickery.  These are grounded on the alleged conversation between Pa-ciencia and Antonio on September 16, 1981 wherein the former purportedly repudiated the Will and left it unsigned.

We are not persuaded.  

We take into consideration the unrebut-ted fact that Paciencia loved and treated Lorenzo as

her own son and that love even extended to Lorenzo’s wife and children.  This kind of relation-ship is not unusual.  It is in fact not unheard of in our culture for old maids or spinsters to care for and raise their nephews and nieces and treat them as their own children.  Such is a prevalent and ac-cepted cultural practice that has resulted in many family discords between those favored by the testa-mentary disposition of a testator and those who stand to benefit in case of intestacy. 

In this case, evidence shows the acknowl-edged fact that Paciencia’s relationship with Lorenzo and his family is different from her relation-ship with petitioners. The very fact that she cared for and raised Lorenzo and lived with him both here and abroad, even if the latter was already married and already has children, highlights the special bond between them. This unquestioned relationship between Paciencia and the devisees tends to sup-port the authenticity of the said document as against petitioners’ allegations of duress, influence of fear or threats, undue and improper influence, pressure, fraud, and trickery which, aside from be-ing factual in nature, are not supported by concrete, substantial and credible evidence on record.  It is worth stressing that bare arguments, no matter how forceful, if not based on concrete and substantial evidence cannot suffice to move the Court to up-hold said allegations.[71]  Furthermore, “a pur-ported will is not [to be] denied legalization on dubi-ous grounds.  Otherwise, the very institution of tes-tamentary succession will be shaken to its founda-tion, for even if a will has been duly executed in fact, whether x x x it will be probated would have to depend largely on the attitude of those interested in [the estate of the deceased].”[72] 

Court should be convinced by the evidence pre-sented before it that the Will was duly executed.

Petitioners dispute the authenticity of Paciencia’s Will on the ground that Section 11 of Rule 76 of the Rules of Court was not complied with.  It provides:

 

RULE 76

ALLOWANCE OR DISALLOWANCE OF WILL

Section 11. Subscribing witnesses pro-duced or accounted for where will contested. – If the will is contested, all the subscribing witnesses, and the notary in the case of wills executed under the Civil Code of the Philippines, if present in the Philippines and not insane, must be produced and examined, and the death, absence, or insanity of any of them must be satisfactorily shown to the court. If all or some of such witnesses are present in the Philippines but outside the province where

the will has been filed, their deposition must be taken. If any or all of them testify against the due execution of the will, or do not remember having attested to it, or are otherwise of doubtful credi-bility, the will may nevertheless, be allowed if the court is satisfied from the testimony of other wit-nesses and from all the evidence presented that the will was executed and attested in the manner required by law.

If a holographic will is contested, the same shall be allowed if at least three (3) wit-nesses who know the handwriting of the testator explicitly declare that the will and the signature are in the handwriting of the testator; in the ab-sence of any competent witnesses, and if the court deem it necessary, expert testimony may be resorted to. (Emphasis supplied.)

They insist that all subscribing witnesses and the notary public should have been presented in court since all but one witness, Francisco, are still living.

We cannot agree with petitioners. 

We note that the inability of Faustino and Judge Limpin to appear and testify before the court was satisfactorily explained  during the probate pro-ceedings. As testified to by his son, Faustino had a heart attack, was already bedridden and could no longer talk and express himself due to brain dam-age.  To prove this, said witness presented the cor-responding medical certificate.  For her part, Dra. Limpin testified that her father, Judge Limpin, suf-fered a stroke in 1991 and had to undergo brain surgery.  At that time, Judge Limpin could no longer talk and could not even remember his daughter’s name so that Dra. Limpin stated that given such condition, her father could no longer testify.  It is well to note that at that point, despite ample oppor-tunity, petitioners neither interposed any objections to the testimonies of said witnesses nor challenged the same on cross examination.  We thus hold that for all intents and purposes, Lorenzo was able to satisfactorily account for the incapacity and failure of the said subscribing witness and of the notary public to testify in court.  Because of this the pro-bate of Paciencia’s Will may be allowed on the basis of Dra. Limpin’s testimony proving her sanity and the due execution of the Will, as well as on the proof of her handwriting.  It is an established rule that “[a] testament may not be disallowed just because the attesting witnesses declare against its due execu-tion; neither does it have to be necessarily allowed just because all the attesting witnesses declare in favor of its legalization; what is decisive is that the court is convinced by evidence before it, not neces-sarily from the attesting witnesses, although they

must testify, that the will was or was not duly exe-cuted in the manner required by law.”[73]

Moreover, it bears stressing that “[i]rre-spective x x x of the posture of any of the parties as regards the authenticity and due execution of the will x x x in question, it is the mandate of the law that it is the evidence before the court and/or [evi-dence that] ought to be before it that is control-ling.”[74]  “The very existence of [the Will] is in it-self prima facie proof that the supposed [testatrix] has willed that [her] estate be distributed in the manner therein provided, and it is incumbent upon the state that, if legally tenable, such desire be given full effect independent of the attitude of the parties affected thereby.”[75] This, coupled with Lorenzo’s established relationship with Paciencia, the evidence and the testimonies of disinterested witnesses, as opposed to the total lack of evidence presented by petitioners apart from their self-serv-ing testimonies, constrain us to tilt the balance in fa-vor of the authenticity of the Will and its allowance for probate.  

WHEREFORE, the petition is DENIED.  The Decision dated June 15, 2006 and the Resolution dated August 31, 2006 of the Court of Appeals in CA-G.R. CV No. 80979 are AFFIRMED.

SO ORDERED.

MARIANO C. DEL CASTILLO

Associate Justice

SECOND DIVISION

HEIRS OF BELINDA DAHLIA               G.R. No. 162934

A. CASTILLO, namely, BENA

JEAN, DANIEL, MELCHOR, MICHAEL and DANIBEL, all

surnamed CASTILLO,                                       Petitioners,                           

- versus -                                                                                          

                                                                     DO-LORES LACUATA-GABRIEL,                                                    

                        

Respondent.                         

 Promulgated:   November 11, 2005

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

                                                DECISION

CALLEJO, SR., J.:

 

This is a petition for review on certiorari of the Decision[1] of the Court of   Appeals  (CA)   in   CA-G.R.   SP  No.  70645, as well as its Reso-lution[2]denying the motion for reconsideration thereof.  

On January 25, 1989, Crisanta Yanga-Gabriel, wife of Lorenzo B. Almoradie, died in Malabon City, Metro Manila, leaving behind a siz-able inheritance consisting mostly of real estate and shares of stock.[3]

A little over a month after Crisanta’s death, her mother, Crisanta Santiago Vda. de Yanga, commenced an intestate proceeding be-fore the Regional Trial Court (RTC) of Malabon City, Branch 72, docketed as Spec. Proc. No. 192-MN.  She alleged, among others, that to her knowledge, her daughter died intestate leaving an estate with an estimated net value of P1,500,000.00 and that such estate was being managed by her wastrel and incompetent son-in-law, Lorenzo, and by two other equally incompe-tent persons.  She prayed that letters of adminis-tration be issued to her son, Mariano Yanga, Jr., also the brother of the deceased, and that she be awarded her share of the estate of her daughter after due hearing.[4]  However, the RTC ap-pointed Lorenzo as administrator. 

Meantime, the marriage between Crisanta Yanga-Gabriel and Lorenzo Almoradie was declared void for being bigamous. The RTC then removed Lorenzo as administrator and ap-pointed Mariano, Jr. in his stead.[5]

On October 16, 1989, one Belinda Dahlia Y. Almoradie Castillo, claiming to be the only legitimate child of Lorenzo and Crisanta, filed a motion for intervention.[6]   Resolution on this motion was, however, held in abeyance pending some incidents in the CA.

On November 3, 1989, Roberto Y. Gabriel, the legally adopted son of Crisanta Y. Gabriel, filed before the RTC of Malabon City a petition for probate of an alleged will and for the issuance of letters testamentary in his favor. The petition was docketed as Spec. Proc. No. 211-MN. [7] He alleged that he discovered his mother’s will on October 25, 1989 in which he was insti-tuted as the sole heir of the testatrix, and desig-nated as alternate executor for the named ex-ecutor therein, Francisco S. Yanga, a brother of Crisanta, who had predeceased the latter some-time in 1985 or 1986. 

On June 2, 1990, Belinda Castillo died.

The two (2) special proceedings were consolidated. On May 15, 1991, the RTC issued an Order dismissing the intestate proceedings, Spec. Proc. No. 192-MN.[8]  Mariano  Yanga, Jr.  questioned  the  dismissal  of  the intestate pro-ceedings before the appellate court via a petition for certiorari (CA-G.R. SP No. 25897).

On July 8, 1991, the probate court ap-pointed Roberto Y. Gabriel as special administra-tor of his mother’s estate.[9]

On May 23, 2001, the heirs of Belinda, namely, Bena Jean, Daniel, Melchor,  Michael, 

and  Danibel,  all  surnamed Castillo, filed a Mo-tion[10] praying that they be substituted as party-litigants in lieu of their late mother Belinda, who died in 1990.

On April 16, 2001, Roberto Gabriel died.  His widow, Dolores L. Gabriel, filed a “Man-ifestation and Motion”[11] where she informed the probate court of her husband’s death and prayed that she be admitted as substitute in place of her late husband, and be appointed as administratrix of the estate of Crisanta Gabriel as well.  She alleged that she had a bachelor’s de-gree in law and had worked for several years in a law office.[12] 

 On August 14, 2001, the heirs of Be-linda opposed Dolores’ manifestation and mo-tion. They averred that Dolores was not Crisanta Gabriel’s next of kin, let alone the lawful wife of the late Roberto.[13] This elicited a Reply[14] from Dolores where she refuted these allega-tions.

On August 24, 2001, Bena Jean filed a “Motion for Appointment as Administrator of the Estate of Crisanta Y. Gabriel”[15] praying that she be appointed administratrix of the estate of her grandmother Crisanta.

On October 11, 2001, Dolores opposed the motion of Bena Jean, claiming that the latter has neither proven her kinship with Crisanta Gabriel nor shown any particular qualification to act as administratrix of the estate.[16]                                         

On November 28, 1991, the CA dis-missed the petition for certiorari of Mariano Yanga, Jr. in CA-G.R. SP No. 25897.

In a Resolution[17] dated December 5, 2001, the lower court appointed Dolores as spe-cial administratrix upon a bond of P200,000.00.  The probate court merely noted the motion for substitution filed by the heirs of Belinda,

stating that they were “mere strangers to the case” and that their cause could better be ventilated in a separate proceeding.  According to the trial court –

Contrary to the assertions of Oppositors Heirs of Belinda A. Castillo, movant Dolores L. Gabriel has amply proven her kinship with peti-tioner Roberto Y. Gabriel, and therefore her kin-ship, by operation of law, with decedent Crisanta Y. Gabriel.  In the probate proceed-ings, this Court has the power to determine questions as to who are the heirs of the dece-dent …, the recognition of a natural child …, the validity of disinheritance effected by the

testator … and the status of a woman who claims to be the lawful wife of the decedent. ...

 

            Guided by the foregoing precepts, this Court is of the opinion, and so holds, that movant Dolores L. Gabriel has estab-lished her claim that she is the lawfully wed-ded wife of petitioner Roberto Y. Gabriel and that the previous marriage between peti-tioner and one Lucita V. Cruz was already long dissolved prior to the celebration of marriage between petitioner and movant Dolores L. Gabriel’s marriage in July 4, 1997.

            And even assuming that movant Dolores L. Gabriel’s lawful relationship with petitioner, and corollarily with the decedent, was not proven, the stringent rules regard-ing the order of preference in the appoint-ment of an Administrator does not find appli-cation in the instant case … for what is at stake here is the appointment of a Special Administrator as such position was vacated by the death of the previously appointed Special Administrator in the person of peti-tioner herein. The reason for the relaxation of the rules regarding the appointment of a Special Administrator is the nature of its po-sition, being merely temporary and will sub-sist only until a regular administrator or ex-ecutor is appointed. 

…

In view thereof, movant Dolores L. Gabriel is hereby appointed as Special Administrator of the estate of decedent Crisanta Y. Gabriel, and upon posting of a bond in the amount of P200,000.00 pursuant to the mandate of Section 4, Rule 81 of the Rules of Court, may assume the functions and duties of such Special Administrator.

SO ORDERED.[18]

                The heirs of Belinda moved to recon-sider.[19] In the meantime, Dolores took her oath of office on January 11, 2002.[20]

          The probate court denied the motion for reconsideration filed by Belinda’s heirs in its Or-der[21] dated March 19, 2002.  The said heirs then filed with the CA a petition for certiorari with prayer for a temporary restraining order or/and preliminary injunction against Dolores and the probate court.  The case was docketed as CA-G.R. SP No. 70645.  They prayed, among oth-ers, that Bena Jean be appointed as the regular administratrix of Crisanta Gabriel’s estate, thus  –

WHEREFORE, premises considered, petitioners most respectfully pray that:

1. Upon filing of this petition and in order not to prejudice the rights of petitioners, a temporary restraining order and/or writ of preliminary injunction be issued against re-spondent Dolores L. Gabriel enjoining her to cease and desist from acting as special ad-ministratrix of the estate of Crisanta Y. Gabriel;

2. After hearing and consideration, a writ of preliminary injunction be issued against respondent Dolores L. Gabriel to cease and desist from acting as special ad-ministratrix of Crisanta Y. Gabriel until further order from this Honorable Court; 

3. An Order be issued nullifying and setting aside the assailed Orders dated De-cember 5, 2001 and March 19, 2002 both is-sued by the respondent Judge for having been rendered with grave abuse of discretion amounting to lack of jurisdiction and for this Honorable Court to issue a new one by ap-pointing petitioner Bena Jean A. Castillo as regular administratrix of the estate of Crisanta Y. Gabriel 

Petitioner likewise prays for such other just, fair and equitable relief under the premises.[22]

On October 30, 2003, the appellate court dismissed the petition in CA-G.R. SP No. 70645.  It ruled that the probate court did not commit grave abuse of discretion in appointing Dolores as special administratrix.[23]

The heirs of Belinda Dahlia Castillo, now the petitioners, filed the instant petition for review on certiorari against Dolores Lacuata-Gabriel, assigning the following errors –

A

WITH DUE RESPECT, THE DECISION DATED OCTOBER 30, 2003 RENDERED BY THE HONORABLE COURT OF APPEALS IS BASED ON A MISAPPREHENSION OF FACTS.

B

WITH DUE RESPECT, THE HONORABLE COURT OF APPEALS ERRED IN RULING THAT PRI-VATE RESPONDENT DOLORES LACUATA-GABRIEL IS ENTITLED TO THE ADMINISTRATION OF THE ESTATE OF  CRISANTA Y. GABRIEL, SHE BEING THE HEIR OF HER DECEASED HUSBAND WHOSE ESTATE IS THE FORMER ESTATE OF HIS ADOPT-ING MOTHER CRISANTA AS THE SAME IS CON-TRARY TO THE LAW ON SUCCESSION.

C

THE APPOINTMENT OF PRIVATE RE-SPONDENT DOLORES LACUATA-GABRIEL IS CON-TRARY TO THE RULING LAID DOWN BY THIS HON-ORABLE COURT IN THE CASE OF GONZALEZ VS. GUIDO, 190 SCRA 112.

D 

THE HONORABLE COURT OF APPEALS ERRED IN RULING THAT IT IS SECTION 1, RULE 80 AND NOT SECTION 6, RULE 78 OF THE RULES OF COURT WHICH IS APPLICABLE IN THIS CASE.[24] 

The assigned errors in this case boil down to the propriety of the appointment of re-spondent as special administratrix of the estate left by Crisanta Yanga-Gabriel.

                The petitioners argue that since the re-spondent does not have any right to inherit from their grandmother, either by her own right or by the right of representation, she is not qualified to be appointed as administratrix of the estate; in contrast, they are Crisanta Gabriel’s only com-pulsory heirs.  They insist that the respondent’s late husband, Roberto, was just a nephew of the decedent and not a legally adopted son as he claimed to be.   Even assuming this claim was true, the fact that the respondent is not naturally related to the decedent by blood in the direct de-scending line makes it unfair to appoint her as the special administratrix.  Citing jurisprudence, the petitioners explain that the principal consid-eration in the appointment of administrator of a deceased person’s estate is the applicant’s inter-est therein. This is the same consideration which Section 6,[25] Rule 78 of the Rules of Court takes into account in establishing the order of prefer-ence in the appointment of such administrators. The underlying assumption behind this rule, the petitioners insist, is that those who will reap the benefit of a wise, speedy, economical administra-tion of the estate, or suffer the consequences of waste, improvidence or mismanagement, have the highest interest and most influential motive to administer the estate correctly.  Lastly, the petitioners posit that since CA-G.R. SP No. 25897 had long been dismissed by the CA, a regular ad-ministrator of the said estate should now be ap-pointed.

The petition is without merit.

In ruling against the petitioners and dis-missing their petition, the CA ratiocinated as fol-lows:

The appointment of a special adminis-trator lies entirely in the discretion of the court. The order of preference in the appointment of a

regular administrator under Section 6, Rule 78 of the Rules of Court does not apply to the se-lection of a special administrator.  In the is-suance of such appointment, which is but tem-porary and subsists only until a regular admin-istrator is appointed, the court determines who is entitled to the administration of the estate of the decedent.  On this point, We hold that the preference of private respondent Dolores Gabriel is with sufficient reason.

            The facts of this case show that Roberto Gabriel – the legally adopted son of Crisanta Yanga-Gabriel – survived Crisanta’s death.  When Crisanta died on January 25, 1989, her estate passed on to her surviving adopted son Roberto.  When Roberto himself later died on April 16, 2001, pursuant to the law on succession, his own estate which he in-herited from Crisanta passed on to his surviv-ing widow, private respondent.

While it is true, as petitioners submit, that private respondent is neither a compulsory nor a legal heir of Crisanta Yanga-Gabriel and is considered a third person to the estate of Crisanta, nonetheless, private respondent is undeniably entitled to the administration of the said estate because she is an heir of her hus-band Roberto, whose estate is the former es-tate of his adopting mother Crisanta.[26]

The ruling of the CA is correct.  The Court has repeatedly held that the appointment of a special administrator lies in the sound dis-cretion of the probate court.[27] A special admin-istrator is a representative of a decedent ap-pointed by the probate court to care for and pre-serve his estate until an executor or general ad-ministrator is appointed.[28] When appointed, a special administrator is regarded not as a repre-sentative of the agent of the parties suggesting the appointment, but as the administrator in charge of the estate, and, in fact, as an officer of the court.[29]  As such officer, he is subject to the supervision and control of the probate court and is expected to work for the best interests of the entire estate, especially its smooth adminis-tration and earliest settlement.[30] The principal object of appointment of temporary administra-tor is to preserve the estate until it can pass into hands of person fully authorized to administer it for the benefit of creditors and heirs.[31]  In many instances, the appointment of administra-tors for the estates of decedents frequently be-come involved in protracted litigations, thereby exposing such estates to great waste and losses unless an authorized agent to collect the debts and preserve the assets in the interim is ap-

pointed. The occasion for such an appointment, likewise, arises where, for some cause, such as a pendency of a suit concerning the proof of the will, regular administration is delayed.[32]

Section 1, Rule 80 of the Revised Rules of Court provides:

 

Section 1.  Appointment of Special Administrator. – When there is delay in granting letters testamentary or of administration by any cause including an appeal from the al-lowance or disallowance of a will, the court may appoint a special administrator to take posses-sion and charge of the estate of the deceased until the questions causing the delay are de-cided and executors or administrators ap-pointed. 

The new Rules have broadened the basis for the appointment of an administrator, and such ap-pointment is allowed when there is delay in granting letters testamentary or administration by any cause, e.g., parties cannot agree among themselves.  Nevertheless, the discretion to ap-point a special administrator or not lies in the probate court.[33] In De Guzman v. Guadiz, Jr.,[34] the Court further elucidated – 

Under the above rule, the probate court may appoint a special administrator  should there be a delay in granting letters tes-tamentary or of administration occasioned by any cause including an appeal from the al-lowance or disallowance of a will. Subject to this qualification, the appointment of a special administrator lies in the discretion of the Court. This discretion, however, must be sound, that is, not whimsical, or contrary to reason, justice, equity or legal principle. 

The basis for appointing a special ad-ministrator under the Rules is broad enough to include any cause or reason for the delay in granting letters testamentary or of administra-tion as where a contest as to the will is being carried on in the same or in another court, or where there is an appeal pending as to the pro-ceeding on the removal of an executor or ad-ministrator, or in cases where the parties can-not agree among themselves.  Likewise, when from any cause general administration cannot be immediately granted, a special administra-tor may be appointed to collect and preserve the property of the deceased. 

It is obvious that the phrase “by any cause” includes those incidents which tran-spired in the instant case clearly showing that

there is a delay in the probate of the will and that the granting of letters testamentary will consequently be prolonged necessitating the immediate appointment of a special adminis-trator.[35]

                As enunciated above, the probate court has ample jurisdiction to appoint respon-dent as special administratrix. The deceased Crisanta Yanga-Gabriel left a document purport-ing to be her will where her adopted son, Roberto, was named as the sole heir of all her properties. However, pending probate of the will, Roberto died leaving his widow, the respondent herein, as his sole heir.  Thus, the respondent has much stake in Crisanta’s estate in case the latter’s will is allowed probate. It needs to be em-phasized that in the appointment of a special ad-ministrator (which is but temporary and subsists only until a regular administrator is appointed), the probate court does not determine the shares in the decedent’s estate, but merely appoints who is entitled to administer the estate. The is-sue of heirship is one to be determined in the de-cree of distribution, and the findings of the court on the relationship of the parties in the adminis-tration as to be the basis of distribution.[36] Thus, the preference of respondent is sound, that is, not whimsical, or contrary to reason, justice, equity or legal principle.

                The petitioners’ strenuous invocation of Section 6, Rule 78 of the Rules of Court is mis-placed.  The rule refers to the appointment of regular administrators of estates; Section 1, Rule 80, on the other hand, applies to the appoint-ment of a special administrator.   It has long been settled that the appointment of special ad-ministrators is not governed by the rules regard-ing the appointment of regular administrators.[37] Thus, in Roxas v. Pecson,[38] this Court ruled:

It is well settled that the statutory pro-visions as to the prior or preferred right of cer-tain persons to the appointment of administrator under Section 1, Rule 81, as well as the statutory provisions as to causes for removal of an execu-tor or administrator under section 653 of Act No. 190, now Section 2, Rule 83, do not apply to the selection or removal of special administrator. ... As the law does not say who shall be appointed as special administrator and the qualifications the appointee must have, the judge or court has discretion in the selection of the person to be ap-pointed, discretion which must be sound, that is, not whimsical or contrary to reason, justice or equity.

On the plea of the petitioners for this Court to appoint their co-petitioner, Bena Jean Castillo, as the regular administratrix of the es-tate of Crisanta Yanga-Gabriel, the matter should be addressed to the probate court for its consid-eration.  It is not for this Court to preempt the discretion of the probate court and appoint a reg-ular administrator in the present action.

                WHEREFORE, the petition is hereby DENIED. The Decision of  the Court of Appeals in CA-G.R. SP No. 70645, dated October 30, 2003, and its Resolution of March 26, 2004 are AF-FIRMED. Costs against the petitioners.

SO ORDERED.

 

 

                                                                                                ROMEO J. CALLEJO, SR.         

                                                                                Associate Justice

THIRD DIVISION

 

 

ELEUTERIO RIVERA,                            G.R. No. 189697

as Administrator of the Intestate

Estate of Rosita L. Rivera-Ramirez,

                             Petitioner,         

                     

- versus -                                          

ROBERT RAMIREZ and

RAYMOND RAMIREZ,     Respondents.

                                            Promulgated: June 27, 2012

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

 

DECISION

ABAD, J.:

This case is about a court’s adjudica-tion of non-issues and the authority of the ad-ministrator to examine and secure evidence from persons having knowledge of properties al-legedly belonging to the decedent’s estate.

 

The Facts and the Case

          The spouses Adolfo Ramirez (Adolfo) and Rosita Rivera (Rosita) were married in 1942.  Their only child died in infancy.  They acquired during their lifetime the Sta. Teresita General Hospital and other properties.  Rosita died in September 1990, followed by her husband Adolfo in December 1993.

          On February 7, 1995 petitioner Eleuterio P. Rivera (Eleuterio) filed a petition for issuance of letters of administration with the Regional Trial Court (RTC) of Quezon City covering the estate of Rosita, who allegedly died without a will and with no direct ascendants or descendants.[1]  Eleu-terio claimed[2] that he was Rosita’s nephew, being the son of her brother Federico.  Eleuterio submitted to the intestate court a list of the names of the decedent’s other nephews and nieces all of whom expressed conformity to Eleu-terio’s appointment as administrator of her es-tate. 

          On March 28, 1995 the RTC issued letters of administration appointing Eleuterio as Rosita’s estate administrator.[3]  On September 6, 1995 Eleuterio submitted an initial inventory of her properties.  On April 18, 1996 he filed in his ca-pacity as administrator a motion with the court to compel the examination and production of

documents relating to properties believed to be a part of her estate, foremost of which was the Sta. Teresita General Hospital that respondent Robert Ramirez (Robert) had been managing.[4]  Robert claims, together with Raymond Ramirez (Raymond) and Lydia Ramirez (Lydia), that they were children of Adolfo by another woman.  Robert opposed the issuance of the subpoena.

On joint motion of the parties, however, the RTC issued an order on March 26, 1998, sus-pending the proceedings in the case pending the resolution of a separate case involving the prop-erties of the estate.[5]  Four years later or on May 16, 2002 Eleuterio, as administrator of Rosita’s estate, moved for the revival of the pro-ceedings and requested anew the production and examination of documents in Robert’s pos-session relating to Rosita’s estate.  The RTC ap-parently never got to act on the motion.

          Meantime, on March 25, 2005 administra-tor Eleuterio moved for the joint settlement in the same case of the estates of Rosita and her husband, Adolfo[6]considering that the spouses’ properties were conjugal.  Eleuterio expressed willingness to co-administer the late spouses’ es-tate with Adolfo’s heirs, namely, Raymond, Robert, and Lydia Ramirez.  Robert agreed to the joint settlement of the estate of the deceased spouses but insisted that the court also probate the deceased Adolfo’s will of October 10, 1990 which Robert presented.

          As a side issue, Robert initially retained the services of Atty. Antonio Pacheo to represent him in the estate case.  The lawyer had previ-ously counseled for the late Adolfo and the hos-pital.  But Robert and Atty. Pacheo soon had a parting of ways, resulting in the dismissal of the lawyer.  Raymond, who did not see eye to eye with his brother Robert, subsequently retained the services of Atty. Pacheo to represent him in the case.  This created an issue because Robert wanted the lawyer inhibited from the case con-sidering that the latter would be working against the interest of a former client.

On July 17, 2006 Eleuterio, as adminis-trator of Rosita’s estate, reiterated his motion to compel examination and production of the hospi-tal’s documents in Robert’s possession.  On Feb-ruary 12, 2007 the RTC granted the administra-tor’s motion and ordered Robert to bring to court the books of account, financial statements, and other documents relating to the  operations of the Sta. Teresita General Hospital.  The RTC also declined to inhibit Atty. Pacheo as Raymond’s counsel.  Robert moved to quash the subpoena on the grounds that the documents belonged to

the hospital, which had a distinct personality; that the hospital did not form part of Rosita’s es-tate; and that Eleuterio, as administrator only of Rosita’s estate, had no right to inspect and have access to Adolfo’s estate.  But the RTC denied Robert’s motion on June 19, 2007.  

Robert filed a special civil action of cer-tiorari before the Court of Appeals (CA),[7] im-puting grave abuse of discretion by the RTC for allowing the production and examination of the subject documents and for not inhibiting Atty. Pacheo from the case.  On February 17, 2009 the CA rendered judgment,[8]annulling the RTC’s or-ders insofar as they granted the production and examination of the hospital’s documents.  Essen-tially, the CA ruled that Eleuterio and Rosita’s other collateral relatives were not her heirs since she had an adopted child in Raymond and that, consequently, Eleuterio, et al. had no standing to request production of the hospital’s documents or to institute the petition for the settlement of her estate.  The CA affirmed, however, the non-inhibition of Atty. Pacheo from the case. Eleu-terio’s motion for reconsideration having been denied, he filed the present petition for review.

 

Issues Presented

The case presents two issues:

1.       Whether or not the CA erred in ruling that Eleuterio and his relatives were not Rosita’s heirs and, therefore, had no right to in-stitute the petition for the settlement of her es-tate or to seek the production and examination of the hospital’s documents; and

2.       Whether or not the CA erred in ruling that Eleuterio, et al. had no standing to subpoena the specified documents in Robert’s possession.   

 

Ruling of the Court

One.  The CA held that based on the ar-ticle Women Physicians of the World[9] found in the record of the case before it, the late Rosita, a physician, had adopted Raymond as her child.  An adopted child, said the CA, is deemed a legiti-mate child of the adopter.  This being the case, Raymond’s presence barred Eleuterio and Rosita’s other collateral relatives from inheriting intestate from her.[10]  A further consequence is that they also did not have the right to seek the production and examination of the documents al-legedly in Robert’s possession. 

But, whether or not the late Rosita had judicially adopted Raymond as her child is a question of fact that had neither been considered nor passed upon by the RTC in a direct challenge to the claim of Eleuterio and Rosita’s other collat-eral relatives that they have the right to inherit from her.  The relevant issue before the RTC was only whether or not the duly appointed adminis-trator of Rosita’s estate had the right to the pro-duction and examination of the documents be-lieved to be in Robert’s possession.  Indeed, one of the reasons Robert brought the special civil action of certiorari before the CA is that Eleuterio had no right to inspect the requested documents and have access to Adolfo’s estate when Eleu-terio’s authority as administrator extended only to Rosita’s estate.  

The Court understands the CA’s com-mendable desire to minimize multiple appeals.  But the issues regarding the late Rosita’s sup-posed judicial adoption of Raymond as her child and the consequent absence of right on the part of Eleuterio, et al. to file a petition for the settle-ment of Rosita’s estate were never raised and properly tried before the RTC.  Consequently, the CA gravely abused its discretion in adjudicating such issues and denying Eleuterio and his rela-tives their right to be heard on them.

Two.  As for the right of the administra-tor of Rosita’s estate to the production and ex-amination of the specified documents believed to be in Robert’s possession, Section 6, Rule 87 of the Rules of Court provides that these can be al-lowed based on the administrator’s belief that the person named in the request for subpoena has documents in his possession that tend to show the decedent’s right to real or personal property.  Thus:

Section 6.  Proceedings when property concealed, embezzled, or fraudulently conveyed. – If an executor or administrator, heir, legatee, creditor, or other individual interested in the es-tate of the deceased, complains to the court hav-ing jurisdiction of the estate that a person is sus-pected of having concealed, embezzled, or con-veyed away any of the money, goods or chattels of the deceased, or that such person has in his possession or has knowledge of any deed, con-veyance, bond, contract or other writing which contains evidence of or tends to disclose the right, title, interest, or claim of the deceased to real or personal estate, or the last will and testa-ment of the deceased, the Court may cite such suspected person to appear before it and may examine him on oath on the matter of such com-plaint; and if the person so cited refuses to ap-

pear, or to answer on such examination or such interrogatories as are put to him, the court may punish him for contempt, and may commit him to prison until he submits to the order of the court.  The interrogatories put to any such per-son, and his answers thereto, shall be in writing and shall be filed in the clerk’s office. (Emphasis supplied) 

The production and examination is nothing to be afraid of since the intestate court has no authority to decide who the decedent’s heirs are in connection with such incident which is confined to the examination of documents which may aid the administrator in determining properties believed to belong to the decedent’s estate.  What is more, that court has no authority to decide the question of whether certain proper-ties belong to the estate or to the person sought to be examined.[11]    

In fact, if after the examination the court has good reason to believe that the person examined is in possession of properties that be-long to the deceased, the administrator cannot detain the property.  He has to file an ordinary action for recovery of the properties.[12]  The purpose of the production and examination of documents is to elicit information or secure evi-dence from persons suspected of having posses-sion of, or knowledge of properties suspected of belonging to the estate of the deceased.  The procedure is inquisitorial in nature, designed as an economical and efficient mode of discovering properties of the estate.[13] 

WHEREFORE, the Court GRANTS the pe-tition, REVERSES the decision of the Court of Ap-peals in CA-G.R. SP 100203 dated February 17, 2009, andREINSTATES the February 12, 2007 or-der of the Regional Trial Court of Quezon City in Special Proceedings Q-95-22919 granting peti-tioner Eleuterio P. Rivera’s motion to compel ex-amination and production of document dated July 17, 2006.

          SO ORDERED.

 ROBERTO A. ABAD

                 Associate Justice

G.R. No. 174689             October 22, 2007

ROMMEL JACINTO DANTES SILVERIO, petitioner,

vs.

REPUBLIC OF THE PHILIPPINES, respondent.

D E C I S I O N

CORONA, J.:

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

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

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

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

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

He further alleged that he is a male transsexual, that is, "anatomically male but feels, thinks and

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

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

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

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

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

On June 4, 2003, the trial court rendered a deci-sion4 in favor of petitioner. Its relevant portions read:

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

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

The [c]ourt rules in the affirmative.

Firstly, the [c]ourt is of the opinion that granting the petition would be more in consonance with the principles of justice and equity. With his sex-ual [re-assignment], petitioner, who has always felt, thought and acted like a woman, now pos-sesses the physique of a female. Petitioner’s mis-fortune to be trapped in a man’s body is not his own doing and should not be in any way taken against him.

Likewise, the [c]ourt believes that no harm, in-jury [or] prejudice will be caused to anybody or

the community in granting the petition. On the contrary, granting the petition would bring the much-awaited happiness on the part of the peti-tioner and her [fiancé] and the realization of their dreams.

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

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

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

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

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

The petition lacks merit.

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

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

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

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

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

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

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

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

RA 9048 now governs the change of first name.14

It vests the power and authority to entertain peti-tions for change of first name to the city or mu-nicipal civil registrar or consul general con-cerned. Under the law, therefore, jurisdiction over applications for change of first name is now primarily lodged with the aforementioned admin-istrative officers. The intent and effect of the law is to exclude the change of first name from the coverage of Rules 103 (Change of Name) and 108 (Cancellation or Correction of Entries in the Civil Registry) of the Rules of Court, until and un-less an administrative petition for change of name is first filed and subsequently denied.15 It likewise lays down the corresponding venue,16

form17 and procedure. In sum, the remedy and the proceedings regulating change of first name are primarily administrative in nature, not judi-cial.

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

SECTION 4. Grounds for Change of First Name or Nickname. – The petition for change of first name or nickname may be allowed in any of the follow-ing cases:

(1) The petitioner finds the first name or nick-name to be ridiculous, tainted with dishonor or extremely difficult to write or pronounce;

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

(3) The change will avoid confusion.

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

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

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

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

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

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

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

Rule 108 now applies only to substantial changes and corrections in entries in the civil register.23

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

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

xxx       xxx       xxx

(3) "Clerical or typographical error" refers to a mistake committed in the performance of clerical work in writing, copying, transcribing or typing an entry in the civil register that is harmless and innocuous, such as misspelled name or mis-spelled place of birth or the like, which is visible to the eyes or obvious to the understanding, and can be corrected or changed only by reference to other existing record or records: Provided, how-ever, That nocorrection must involve the change of nationality, age, status or sex of the peti-tioner. (emphasis supplied)

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

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

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

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

(1) Births; (2) marriages; (3) deaths; (4) legal separations; (5) annulments of marriage; (6) judgments declaring marriages void from the be-ginning; (7) legitimations; (8) adoptions; (9) ac-knowledgments of natural children; (10) natural-ization; (11) loss, or (12) recovery of citizenship; (13) civil interdiction; (14) judicial determination of filiation; (15) voluntary emancipation of a mi-nor; and (16) changes of name.

The acts, events or factual errors contemplated under Article 407 of the Civil Code include even those that occur after birth.25 However, no rea-sonable interpretation of the provision can justify the conclusion that it covers the correction on the ground of sex reassignment.

To correct simply means "to make or set aright; to remove the faults or error from" while to change means "to replace something with some-thing else of the same kind or with something

that serves as a substitute."26 The birth certifi-cate of petitioner contained no error. All entries therein, including those corresponding to his first name and sex, were all correct. No correction is necessary.

Article 407 of the Civil Code authorizes the entry in the civil registry of certain acts(such as legiti-mations, acknowledgments of illegitimate chil-dren and naturalization),events (such as births, marriages, naturalization and deaths) and judi-cial decrees(such as legal separations, annul-ments of marriage, declarations of nullity of mar-riages, adoptions, naturalization, loss or recovery of citizenship, civil interdiction, judicial determi-nation of filiation and changes of name). These acts, events and judicial decrees produce legal consequences that touch upon the legal capac-ity, status and nationality of a person. Their ef-fects are expressly sanctioned by the laws. In contrast, sex reassignment is not among those acts or events mentioned in Article 407. Neither is it recognized nor even mentioned by any law, expressly or impliedly.

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

The status of a person in law includes all his per-sonal qualities and relations,more or less perma-nent in nature, not ordinarily terminable at his own will, such as his being legitimate or illegiti-mate, or his being married or not. The compre-hensive term status… include such matters as the beginning and end of legal personality, ca-pacity to have rights in general, family relations, and its various aspects, such as birth, legitima-tion, adoption, emancipation, marriage, divorce, and sometimes even succession.28 (emphasis supplied)

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

ART. 413. All other matters pertaining to the reg-istration of civil status shall be governed by spe-cial laws.

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

Moreover, Section 5 of Act 3753 (the Civil Regis-ter Law) provides:

SEC. 5. Registration and certification of births. – The declaration of the physician or midwife in at-tendance at the birth or, in default thereof, the

declaration of either parent of the newborn child, shall be sufficient for the registration of a birth in the civil register. Such declaration shall be ex-empt from documentary stamp tax and shall be sent to the local civil registrar not later than thirty days after the birth, by the physician or midwife in attendance at the birth or by either parent of the newborn child.

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

xxx       xxx       xxx (emphasis supplied)

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

is immutable.31

When words are not defined in a statute they are to be given their common and ordinary meaning in the absence of a contrary legislative intent. The words "sex," "male" and "female" as used in the Civil Register Law and laws concerning the civil registry (and even all other laws) should therefore be understood in their common and or-dinary usage, there being no legislative intent to the contrary. In this connection, sex is defined as "the sum of peculiarities of structure and func-tion that distinguish a male from a female"32 or "the distinction between male and female."33 Fe-male is "the sex that produces ova or bears young"34 and male is "the sex that has organs to produce spermatozoa for fertilizing ova."35 Thus, the words "male" and "female" in everyday un-derstanding do not include persons who have un-dergone sex reassignment. Furthermore, "words that are employed in a statute which had at the time a well-known meaning are presumed to have been used in that sense unless the context compels to the contrary."36 Since the statutory language of the Civil Register Law was enacted in the early 1900s and remains unchanged, it cannot be argued that the term "sex" as used then is something alterable through surgery or something that allows a post-operative male-to-female transsexual to be included in the cate-gory "female."

For these reasons, while petitioner may have succeeded in altering his body and appearance through the intervention of modern surgery, no law authorizes the change of entry as to sex in the civil registry for that reason. Thus, there is no legal basis for his petition for the correction or change of the entries in his birth certificate.

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

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

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

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

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

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

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

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

WHEREFORE, the petition is hereby DENIED.

Costs against petitioner.

SO ORDERED.

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

SECOND DIVISION

  G.R. No. 166676 

REPUBLIC OF THEPHILIPPINES,

                             Petitioner,

- versus -

JENNIFER B. CAGANDAHAN,

                             Respondent.

  Promulgated:

  September 12, 2008

 

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

DECISION

QUISUMBING, J.:

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

The facts are as follows.

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

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

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

To prove her claim, respondent testi-fied and presented the testimony of Dr. Michael Sionzon of the Department of Psychiatry, Univer-sity of thePhilippines-Philippine General Hospi-

tal.  Dr. Sionzon issued a medical certificate stat-ing that respondent’s condition is known as CAH.  He explained that genetically respondent is female but because her body secretes male hormones, her female organs did not develop normally and she has two sex organs – female and male.  He testified that this condition is very rare, that respondent’s uterus is not fully devel-oped because of lack of female hormones, and that she has no monthly period.  He further testi-fied that respondent’s condition is permanent and recommended the change of gender be-cause respondent has made up her mind, ad-justed to her chosen role as male, and the gen-der change would be advantageous to her.

The RTC granted respondent’s petition in a Decision dated January 12, 2005 which reads:

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

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

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

b)                  By changing the gender from female to MALE.

It is likewise ordered that petitioner’s school records, voter’s registry, baptismal certifi-cate, and other pertinent records are hereby amended to conform with the foregoing cor-rected data.

SO ORDERED.[3]

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

The issues raised by petitioner are:

THE TRIAL COURT ERRED IN GRANTING THE PETI-TION CONSIDERING THAT:

                                                            I.

THE REQUIREMENTS OF RULES 103 AND 108 OF THE RULES OF COURT HAVE NOT BEEN COM-PLIED WITH; AND,

                                                            II.

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

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

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

On the other hand, respondent coun-ters that although the Local Civil Registrar of Pakil, Laguna was not formally named a party in the Petition for Correction of Birth Certificate, nonetheless the Local Civil Registrar was fur-nished a copy of the Petition, the Order to pub-lish on December 16, 2003 and all pleadings, or-ders or processes in the course of the proceed-ings,[8]  respondent is actually a male person and hence his birth certificate has to be cor-rected to reflect his true sex/gender,[9]  change of sex or gender is allowed under Rule 108,[10] and respondent substantially complied with the requirements of Rules 103 and 108 of the Rules of Court.[11]

Rules 103 and 108 of the Rules of Court provide: 

Rule 103

CHANGE OF NAME

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

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

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

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

(c)        The name asked for.

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

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

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

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

Rule 108

CANCELLATION OR CORRECTION OF ENTRIES

IN THE CIVIL REGISTRY

            SECTION 1. Who may file petition. – Any person interested in any act, event, order or decree concerning the civil status of persons which has been recorded in the civil register, may file a verified petition for the cancellation or correction of any entry relating thereto, with the Regional Trial Court of the province where the corresponding civil registry is located.

            SEC. 2. Entries subject to cancellation or correction. – Upon  good and valid grounds, the following entries in the civil register may be cancelled or corrected: (a) births; (b) mar-riages; (c) deaths; (d) legal separations; (e) judgments of annulments of marriage; (f) judg-ments declaring marriages void from the begin-ning; (g) legitimations; (h) adoptions; (i) ac-knowledgments of natural children; (j) natural-ization; (k) election, loss or recovery of citizen-ship; (l) civil interdiction; (m) judicial determi-nation of filiation; (n) voluntary emancipation of a minor; and (o) changes of name.

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

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

            SEC. 5. Opposition. – The civil registrar and any person having or claiming any interest under the entry whose cancellation or correc-tion is sought may, within fifteen (15) days from notice of the petition, or from the last date of publication of such notice, file his oppo-sition thereto.

            SEC. 6. Expediting proceedings. – The court in which the proceedings is brought may make orders expediting the proceedings, and may also grant preliminary injunction for the preservation of the rights of the parties pend-ing such proceedings.

            SEC. 7. Order. – After hearing, the court may either dismiss the petition or issue an or-der granting the cancellation or correction prayed for. In either case, a certified copy of

the judgment shall be served upon the civil reg-istrar concerned who shall annotate the same in his record.

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

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

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

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

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

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

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

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

(1) Births; (2) marriages; (3) deaths; (4) legal separations; (5) annulments of marriage; (6) judgments declaring marriages void from the be-ginning; (7) legitimations; (8) adoptions; (9) ac-knowledgments of natural children; (10) natural-ization; (11) loss, or (12) recovery of citizenship; (13) civil interdiction; (14) judicial determination of filiation; (15) voluntary emancipation of a mi-nor; and  (16) changes of name.

The acts, events or factual errors con-templated under Article 407 of the Civil Code in-clude even those that occur after birth.[20]

Respondent undisputedly has CAH. This condition causes the early or “inappropriate” ap-pearance of male characteristics. A person, like respondent, with this condition produces too much androgen, a male hormone. A newborn who has XX chromosomes coupled with CAH usu-ally has a (1) swollen clitoris with the urethral opening at the base, an ambiguous genitalia of-ten appearing more male than female; (2) nor-mal internal structures of the female reproduc-tive tract such as the ovaries, uterus and fallop-ian tubes; as the child grows older, some fea-tures start to appear male, such as deepening of the voice, facial hair, and failure to menstruate at puberty.  About 1 in 10,000 to 18,000 children are born with CAH.  

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

Intersex individuals are treated in dif-ferent ways by different cultures.  In most soci-eties, intersex individuals have been expected to conform to either a male or female gender role.

[23]  Since the rise of modern medical science in Western societies, some intersex people with ambiguous external genitalia have had their gen-italia surgically modified to resemble either male or female genitals.[24]  More commonly, an in-tersex individual is considered as suffering from a “disorder” which is almost always recom-mended to be treated, whether by surgery and/or by taking lifetime medication in order to mold the individual as neatly as possible into the cate-gory of either male or female.

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

In the instant case, if we determine re-spondent to be a female, then there is no basis for a change in the birth certificate entry for gen-der.  But if we determine, based on medical testi-mony and scientific development showing  the  respondent  to  be  other  than  female,  then  a  change  in   the subject’s birth certificate entry is in order.

Biologically, nature endowed respon-dent with a mixed (neither consistently and cate-gorically female nor consistently and categori-cally male) composition. Respondent has female (XX) chromosomes.  However, respondent’s body system naturally produces high levels of male hormones (androgen).  As a result, respondent has ambiguous genitalia and the phenotypic fea-tures of a male.   

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

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

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

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

As for respondent’s change of name under Rule 103, this Court has held that a change of name is not a matter of right but of ju-dicial discretion, to be exercised in the light of the reasons adduced and the consequences that will follow.[28]  The trial court’s grant of respon-dent’s change of name from Jennifer to Jeff im-

plies a change of a feminine name to a mascu-line name. Considering the consequence that re-spondent’s change of name merely recognizes his preferred gender, we find merit in respon-dent’s change of name.  Such a change will con-form with the change of the entry in his birth cer-tificate from female to male.

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

SO ORDERED.

 

 

 

LEONARDO A. QUISUMBING

Associate JusticeSECOND DIVISION

MARIA VIRGINIA V. REMO,               G.R. No. 169202

                            Peti-tioner,                                                                                -versus-.

THE HONORABLE SECRETARY

OF FOREIGN AFFAIRS,                      Promulgated:

                            Respondent.        March 5, 2010

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

 

D E C I S I O N

 

CARPIO, J.:

 

The Case 

         Before the Court is a petition for review[1] of the 27 May 2005 Decision[2] and 2 August 2005 Resolution[3] of the Court of Appeals in CA-G.R. SP No. 87710.  The Court of Appeals af-firmed the decision of the Office of the President, which in turn affirmed the decision of the Secre-tary of Foreign Affairs denying petitioner’s re-quest to revert to the use of her maiden name in her replacement passport.

The Facts 

         Petitioner Maria Virginia V. Remo is a mar-ried Filipino citizen whose Philippine passport was then expiring on 27 October 2000.  Peti-tioner being married to Francisco R. Rallonza, the following entries appear in her passport: “Ral-lonza” as her surname, “Maria Virginia” as her given name, and “Remo” as her middle name. Prior to the expiry of the validity of her passport, petitioner, whose marriage still subsists, applied for the renewal of her passport with the Depart-ment of Foreign Affairs (DFA) office in Chicago, Illinois, U.S.A., with a request to revert to  her maiden name and surname in the replacement passport. 

         Petitioner’s request having been denied, Atty. Manuel Joseph R. Bretana III, representing petitioner, wrote then Secretary of Foreign Af-fairs Domingo Siason expressing a similar re-quest.

         On 28 August 2000, the DFA, through As-sistant Secretary Belen F. Anota, denied the re-quest, stating thus:

         This has reference to your letter dated 17 August 2000 regarding one Ms. Maria Virginia V. Remo who is applying for renewal of her pass-port using her maiden name.

            This Office is cognizant of the provision in the law that it is not obligatory for a married woman to use her husband’s name.  Use of maiden name is allowed in passport application only if the married name has not been used in previous application.  The Implementing Rules and Regulations for Philippine Passport Act of 1996 clearly defines the conditions when a woman applicant may revert to her maiden name, that is, only in cases of annulment of mar-riage, divorce and death of the husband.  Ms. Remo’s case does not meet any of these condi-tions.[4]  (Emphasis supplied)

         Petitioner’s motion for reconsideration of the above-letter resolution was denied in a letter dated 13 October 2000.[5]

         On 15 November 2000, petitioner filed an appeal with the Office of the President.

         On 27 July 2004, the Office of the President dismissed the appeal[6] and ruled that Section 5(d) of Republic Act No. 8239 (RA 8239) or the Philippine Passport Act of 1996 “offers no leeway for any other interpretation than that only in case of divorce, annulment, or declaration [of nullity] of marriage may a married woman revert to her maiden name for passport purposes.”  The Office of the President further held that in case of conflict between a general and special law, the

latter will control the former regardless of the re-spective dates of passage. Since the Civil Code is a general law, it should yield to RA 8239. 

         On 28 October 2004, the Office of the Pres-ident denied the motion for reconsideration.[7]

         Petitioner filed with the Court of Appeals a petition for review under Rule 43 of the Rules of Civil Procedure.

         In its Decision of 27 May 2005, the Court of Appeals denied the petition and affirmed the rul-ing of the Office of the President.  The dispositive portion of the Court of Appeals’ decision reads:

      WHEREFORE, premises considered, the peti-tion is DENIED, and the resolution dated July 27, 2004, and the order dated October 28, 2004 of the Office of the President in O.P. Case No. 001-A-9344 are hereby AFFIRMED.

            SO ORDERED.[8]

         Petitioner moved for reconsideration which the Court of Appeals denied in its Resolution dated 2 August 2005.

         Hence, this petition. 

The Court of Appeals’ Ruling 

         The Court of Appeals found no conflict be-tween Article 370 of the Civil Code[9] and Sec-tion 5(d) of RA 8239.[10] The Court of Appeals held that for passport application and issuance purposes, RA 8239 limits the instances when a married woman applicant may exercise the op-tion to revert to the use of her maiden name such as in a case of a divorce decree, annulment or declaration of nullity of marriage. Since there was no showing that petitioner's marriage to Francisco Rallonza has been annulled, declared void or a divorce decree has been granted to them, petitioner cannot simply revert to her maiden name in the replacement passport after she had adopted her husband’s surname in her old passport.  Hence, according to the Court of Appeals, respondent was justified in refusing the request of petitioner to revert to her maiden name in the replacement passport.

The Issue

         The sole issue in this case is whether peti-tioner, who originally used her husband’s sur-name in her expired passport, can revert to the use of her maiden name in the replacement passport, despite the subsistence of her mar-riage. 

The Ruling of the Court

         The petition lacks merit.

 

         Title XIII of the Civil Code governs the use of surnames.  In the case of a married woman, Article 370 of the Civil Code provides:

ART. 370. A married woman may use:

(1)       HER MAIDEN FIRST NAME AND SURNAME AND ADD HER HUSBAND’S SURNAME, OR

(2)       HER MAIDEN FIRST NAME AND HER HUS-BAND'S SURNAME, OR

(3)   HER HUSBAND’S FULL NAME, BUT PREFIX-ING A WORD INDICATING THAT SHE IS HIS WIFE, SUCH AS “MRS.” 

         We agree with petitioner that the use of the word “may” in the above provision indicates that the use of the husband’s surname by the wife is permissive rather than obligatory. This has been settled in the case of  Yasin v. Honor-able Judge Shari’a District Court.[11]

         In Yasin,[12] petitioner therein filed with the Shari’a District Court  a “Petition to resume the use of maiden name” in view of the dissolu-tion of her marriage by divorce under the Code of Muslim Personal Laws of the Philippines, and after marriage of her former husband to another woman.  In ruling in favor of petitioner therein, the Court explained that:

           When a woman marries a man, she need not apply and/or seek judicial authority to use her husband’s  name by prefixing the word “Mrs.” before her husband’s full name or by adding her husband’s surname to her maiden first name. The law grants her such right (Art. 370, Civil Code). Similarly, when the marriage ties or vinculum no longer exists as in the case of death of the husband or divorce as authorized by the Muslim Code, the widow or divorcee need not seek judicial confirmation of the change in her civil status in order to revert to her maiden name as use of her former husband’s is optional and not obligatory for her (Tolentino, Civil Code, p. 725, 1983 ed.; Art. 373, Civil Code). When peti-tioner married her husband, she did not change her but only her civil status. Neither was she re-quired to secure judicial authority to use the sur-name of her husband after the marriage as no law requires it. (Emphasis supplied)

         Clearly, a married woman has an option, but not a duty, to use the surname of the hus-band in any of the ways provided by Article 370 of the Civil Code.[13] She is therefore allowed to use not only any of the three names provided in Article 370, but also her maiden name upon mar-riage.  She is not prohibited from continuously

using her maiden name once she is married be-cause when a woman marries, she does not change her name but only her civil status.  Fur-ther, this interpretation is in consonance with the principle that surnames indicate descent.[14] 

         In the present case, petitioner, whose mar-riage is still subsisting and who opted to use her husband’s surname in her old passport, re-quested to resume her maiden name in the re-placement passport arguing that no law prohibits her from using her maiden name. Petitioner cites Yasin as the applicable precedent.  However,Yasin is not squarely in point with this case.  Unlike in Yasin, which involved a Muslim divorcee whose former husband is already mar-ried  to another woman, petitioner’s marriage re-mains subsisting. Another point, Yasin did not in-volve a request to resume one’s maiden name in a replacement passport, but a petition to resume one’s maiden name in view of the dissolution of one’s marriage.

 

         The law governing  passport issuance is RA 8239 and the applicable provision in this case is Section 5(d), which  states: 

           Sec. 5. Requirements for the Issuance of Passport. — No passport shall be issued to an ap-plicant unless the Secretary or his duly autho-rized representative is satisfied that the appli-cant is a Filipino citizen who has complied with the following requirements: x x x

(D)  IN CASE OF A WOMAN WHO IS MARRIED, SEPARATED, DIVORCED OR WIDOWED OR WHOSE MARRIAGE HAS BEEN ANNULLED OR DE-CLARED BY COURT AS VOID, A COPY OF THE CERTIFICATE OF MARRIAGE, COURT DECREE OF SEPARATION, DIVORCE OR ANNULMENT OR CER-TIFICATE OF DEATH OF THE DECEASED SPOUSE DULY ISSUED AND AUTHENTICATED BY THE OF-FICE OF THE CIVIL REGISTRAR GENERAL: PRO-VIDED, THAT IN CASE OF A DIVORCE DECREE, ANNULMENT OR DECLARATION OF MARRIAGE AS VOID, THE WOMAN APPLICANT MAY REVERT TO THE USE OF HER MAIDEN NAME: PROVIDED, FUR-THER, THAT SUCH DIVORCE IS RECOGNIZED UN-DER EXISTING LAWS OF THE PHILIPPINES; X X X (EMPHASIS SUPPLIED) 

         The Office of the Solicitor General (OSG), on behalf of the Secretary of Foreign Affairs, ar-gues that the highlighted proviso in Section 5(d) of RA 8239 “limits the instances when a married woman may be allowed to revert to the use of her maiden name in her passport.”  These in-stances are death of husband, divorce decree, annulment or nullity of marriage. Significantly, 

Section 1, Article 12 of the Implementing Rules and Regulations of RA 8239 provides:

The passport can be amended only in the fol-lowing cases:

A)  AMENDMENT OF WOMAN’S NAME DUE TO MARRIAGE;

B) AMENDMENT OF WOMAN’S NAME DUE TO DEATH OF SPOUSE, ANNULMENT OF MARRIAGE OR DIVORCE INITIATED BY A FOREIGN SPOUSE; OR

C) CHANGE OF SURNAME OF A CHILD WHO IS LEGITIMATED BY VIRTUE OF A SUBSE-QUENT MARRIAGE OF HIS PARENTS.

         Since petitioner’s marriage to her husband subsists, placing her case outside of the  purview of Section 5(d) of RA 8239 (as to the instances when a married woman may revert to the use of her maiden name), she may not resume her maiden name in the replacement passport.[15]  This prohibition, according to petitioner, conflicts with and, thus, operates as an implied repeal of Article 370 of the Civil Code.

         PETITIONER IS MISTAKEN.  THE CONFLICT BETWEEN ARTICLE 370 OF THE CIVIL CODE AND SECTION 5(D) OF RA 8239 IS MORE IMAGINED THAN REAL.  RA 8239, INCLUDING ITS IMPLE-MENTING RULES AND REGULATIONS, DOES NOT PROHIBIT A MARRIED WOMAN FROM USING HER MAIDEN NAME IN HER PASSPORT. IN FACT, IN RECOGNITION OF THIS RIGHT, THE DFA ALLOWS A MARRIED WOMAN WHO APPLIES FOR A PASS-PORT FOR THE FIRST TIME TO USE HER MAIDEN NAME. SUCH AN APPLICANT IS NOT REQUIRED TO ADOPT HER HUSBAND'S SURNAME.[16]  

         In the case of renewal of passport, a mar-ried woman may either adopt her husband’s sur-name or continuously use her maiden name.  If she chooses to adopt her husband’s surname in her new passport, the DFA additionally requires the submission of an authenticated copy of the marriage certificate. Otherwise, if  she prefers to continue using her maiden name, she may still do so.  The DFA will not prohibit her from contin-uously using her maiden name.[17]

         HOWEVER, ONCE A MARRIED WOMAN OPTED TO ADOPT HER HUSBAND’S SURNAME IN HER PASSPORT, SHE MAY NOT REVERT TO THE USE OF HER MAIDEN NAME, EXCEPT IN THE CASES ENUMERATED IN SECTION 5(D) OF RA 8239. THESE INSTANCES ARE: (1) DEATH OF HUSBAND, (2) DIVORCE, (3) ANNULMENT, OR (4) NULLITY OF MARRIAGE. SINCE PETITIONER’S MARRIAGE TO HER HUSBAND SUBSISTS, SHE MAY NOT RESUME HER MAIDEN NAME IN THE RE-

PLACEMENT PASSPORT. OTHERWISE STATED, A MARRIED WOMAN'S REVERSION TO THE USE OF HER MAIDEN NAME MUST BE BASED ONLY ON THE SEVERANCE OF THE MARRIAGE.

         EVEN ASSUMING RA 8239 CONFLICTS WITH THE CIVIL CODE, THE PROVISIONS OF RA 8239 WHICH IS A SPECIAL LAW SPECIFICALLY DEALING WITH PASSPORT ISSUANCE  MUST PREVAIL OVER THE PROVISIONS OF TITLE XIII OF THE CIVIL CODE WHICH IS THE GENERAL LAW ON THE USE OF SURNAMES.  A BASIC TENET IN STATUTORY CONSTRUCTION IS THAT A SPECIAL LAW PRE-VAILS OVER A GENERAL LAW,[18] THUS:

 [I]t is a familiar rule of statutory construction that to the extent of any  necessary repugnancy between a general and a special law or provision, the latter will control the former without regard to the respective dates of passage.[19] 

         Moreover, petitioner’s theory of implied re-peal must fail.  Well-entrenched is the rule that an implied repeal is disfavored. T he apparently conflicting provisions of a law or two laws should be harmonized as much as possible, so that each shall be effective.[20] For a law to operate to re-peal another law, the two laws must actually be inconsistent. The former must be so repugnant as to be irreconcilable with the latter act.[21] This petitioner failed to establish.

         The Court notes that petitioner would not have encountered any problems in the replace-ment passport had she opted to continuously and consistently use her maiden name from the moment she was married and from the time she first applied for a Philippine passport. However, petitioner consciously chose to use her hus-band’s surname before, in her previous passport application, and now desires to resume her maiden name.  If we allow petitioner’s present request, definitely nothing prevents her in the fu-ture from requesting to revert to the use of her husband’s surname.   Such unjustified changes in one's name and  identity in a passport, which is considered superior to all other official docu-ments,[22] cannot be countenanced.  Otherwise, undue confusion and inconsistency in the records of passport holders will arise. Thus, for passport issuance purposes, a married woman, such as petitioner, whose marriage subsists, may not change her family name at will.

          THE ACQUISITION OF A PHILIPPINE PASS-PORT IS A PRIVILEGE. THE LAW RECOGNIZES THE PASSPORT APPLICANT’S CONSTITUTIONAL RIGHT TO TRAVEL. HOWEVER, THE STATE IS ALSO MAN-DATED TO PROTECT AND MAINTAIN THE IN-TEGRITY AND CREDIBILITY OF THE PASSPORT

AND TRAVEL DOCUMENTS PROCEEDING FROM IT[23] AS A  PHILIPPINE PASSPORT REMAINS AT ALL TIMES THE PROPERTY OF THE GOVERN-MENT.  THE HOLDER IS MERELY A POSSESSOR OF THE PASSPORT AS LONG AS IT IS VALID AND THE SAME MAY NOT BE SURRENDERED TO ANY PERSON OR ENTITY OTHER THAN THE GOVERN-MENT OR ITS REPRESENTATIVE.[24]

         As the OSG correctly pointed out:

 [T]he issuance of passports is impressed with public interest.  A passport is an official docu-ment of identity and nationality issued to a per-son intending to travel or sojourn in foreign coun-tries.  It is issued by the Philippine government to its citizens requesting other governments to allow its holder  to pass safely and freely, and in case of need, to give him/her aid and protection.  x x x 

            Viewed in the light of the foregoing, it is within respondent’s competence to regulate any amendments intended to be made therein, in-cluding the denial of unreasonable and whimsical requests for amendments such as in the instant case.[25]

         WHEREFORE, we DENY the petition.  We AFFIRM the 27 May 2005 Decision and 2 August 2005 Resolution of the Court of Appeals in CA-G.R. SP No. 87710.

 

         SO ORDERED.

                            ANTONIO T. CAR-PIO                                           Associate Justice