G.R. No.

L-19650

September 29, 1966

CALTEX (PHILIPPINES), INC., petitioner-appellee,

vs.
ENRICO PALOMAR, in his capacity as THE POSTMASTER GENERAL, respondent-appellant.
Office of the Solicitor General for respondent and appellant.
Ross, Selph and Carrascoso for petitioner and appellee.

CASTRO, J.:
In the year 1960 the Caltex (Philippines) Inc. (hereinafter referred to as Caltex) conceived
and laid the groundwork for a promotional scheme calculated to drum up patronage for
its oil products. Denominated "Caltex Hooded Pump Contest", it calls for participants
therein to estimate the actual number of liters a hooded gas pump at each Caltex station
will dispense during a specified period. Employees of the Caltex (Philippines) Inc., its
dealers and its advertising agency, and their immediate families excepted, participation
is to be open indiscriminately to all "motor vehicle owners and/or licensed drivers". For
the privilege to participate, no fee or consideration is required to be paid, no purchase of
Caltex products required to be made. Entry forms are to be made available upon request
at each Caltex station where a sealed can will be provided for the deposit of
accomplished entry stubs.
A three-staged winner selection system is envisioned. At the station level, called "Dealer
Contest", the contestant whose estimate is closest to the actual number of liters
dispensed by the hooded pump thereat is to be awarded the first prize; the next closest,
the second; and the next, the third. Prizes at this level consist of a 3-burner kerosene
stove for first; a thermos bottle and a Ray-O-Vac hunter lantern for second; and an
Everready Magnet-lite flashlight with batteries and a screwdriver set for third. The firstprize winner in each station will then be qualified to join in the "Regional Contest" in
seven different regions. The winning stubs of the qualified contestants in each region will
be deposited in a sealed can from which the first-prize, second-prize and third-prize
winners of that region will be drawn. The regional first-prize winners will be entitled to
make a three-day all-expenses-paid round trip to Manila, accompanied by their respective
Caltex dealers, in order to take part in the "National Contest". The regional second-prize
and third-prize winners will receive cash prizes of P500 and P300, respectively. At the
national level, the stubs of the seven regional first-prize winners will be placed inside a
sealed can from which the drawing for the final first-prize, second-prize and third-prize
winners will be made. Cash prizes in store for winners at this final stage are: P3,000 for
first; P2,000 for second; Pl,500 for third; and P650 as consolation prize for each of the
remaining four participants.
Foreseeing the extensive use of the mails not only as amongst the media for publicizing
the contest but also for the transmission of communications relative thereto,
representations were made by Caltex with the postal authorities for the contest to be

cleared in advance for mailing, having in view sections 1954(a), 1982 and 1983 of the
Revised Administrative Code, the pertinent provisions of which read as follows:
SECTION 1954. Absolutely non-mailable matter. No matter belonging to any of the
following classes, whether sealed as first-class matter or not, shall be imported into the
Philippines through the mails, or to be deposited in or carried by the mails of the
Philippines, or be delivered to its addressee by any officer or employee of the Bureau of
Posts:
Written or printed matter in any form advertising, describing, or in any manner pertaining
to, or conveying or purporting to convey any information concerning any lottery, gift
enterprise, or similar scheme depending in whole or in part upon lot or chance, or any
scheme, device, or enterprise for obtaining any money or property of any kind by means
of false or fraudulent pretenses, representations, or promises.
"SECTION 1982. Fraud orders.Upon satisfactory evidence that any person or company
is engaged in conducting any lottery, gift enterprise, or scheme for the distribution of
money, or of any real or personal property by lot, chance, or drawing of any kind, or that
any person or company is conducting any scheme, device, or enterprise for obtaining
money or property of any kind through the mails by means of false or fraudulent
pretenses, representations, or promises, the Director of Posts may instruct any
postmaster or other officer or employee of the Bureau to return to the person, depositing
the same in the mails, with the word "fraudulent" plainly written or stamped upon the
outside cover thereof, any mail matter of whatever class mailed by or addressed to such
person or company or the representative or agent of such person or company.
SECTION 1983. Deprivation of use of money order system and telegraphic transfer
service.The Director of Posts may, upon evidence satisfactory to him that any person or
company is engaged in conducting any lottery, gift enterprise or scheme for the
distribution of money, or of any real or personal property by lot, chance, or drawing of
any kind, or that any person or company is conducting any scheme, device, or enterprise
for obtaining money or property of any kind through the mails by means of false or
fraudulent pretenses, representations, or promise, forbid the issue or payment by any
postmaster of any postal money order or telegraphic transfer to said person or company
or to the agent of any such person or company, whether such agent is acting as an
individual or as a firm, bank, corporation, or association of any kind, and may provide by
regulation for the return to the remitters of the sums named in money orders or
telegraphic transfers drawn in favor of such person or company or its agent.
The overtures were later formalized in a letter to the Postmaster General, dated October
31, 1960, in which the Caltex, thru counsel, enclosed a copy of the contest rules and
endeavored to justify its position that the contest does not violate the anti-lottery
provisions of the Postal Law. Unimpressed, the then Acting Postmaster General opined
that the scheme falls within the purview of the provisions aforesaid and declined to grant
the requested clearance. In its counsel's letter of December 7, 1960, Caltex sought a
reconsideration of the foregoing stand, stressing that there being involved no
consideration in the part of any contestant, the contest was not, under controlling
authorities, condemnable as a lottery. Relying, however, on an opinion rendered by the

Secretary of Justice on an unrelated case seven years before (Opinion 217, Series of
1953), the Postmaster General maintained his view that the contest involves
consideration, or that, if it does not, it is nevertheless a "gift enterprise" which is equally
banned by the Postal Law, and in his letter of December 10, 1960 not only denied the use
of the mails for purposes of the proposed contest but as well threatened that if the
contest was conducted, "a fraud order will have to be issued against it (Caltex) and all its
representatives".
Caltex thereupon invoked judicial intervention by filing the present petition for
declaratory relief against Postmaster General Enrico Palomar, praying "that judgment be
rendered declaring its 'Caltex Hooded Pump Contest' not to be violative of the Postal Law,
and ordering respondent to allow petitioner the use of the mails to bring the contest to
the attention of the public". After issues were joined and upon the respective memoranda
of the parties, the trial court rendered judgment as follows:
In view of the foregoing considerations, the Court holds that the proposed 'Caltex Hooded
Pump Contest' announced to be conducted by the petitioner under the rules marked as
Annex B of the petitioner does not violate the Postal Law and the respondent has no right
to bar the public distribution of said rules by the mails.
The respondent appealed.
The parties are now before us, arrayed against each other upon two basic issues: first,
whether the petition states a sufficient cause of action for declaratory relief; and second,
whether the proposed "Caltex Hooded Pump Contest" violates the Postal Law. We shall
take these up in seriatim.
1. By express mandate of section 1 of Rule 66 of the old Rules of Court, which was the
applicable legal basis for the remedy at the time it was invoked, declaratory relief is
available to any person "whose rights are affected by a statute . . . to determine any
question of construction or validity arising under the . . . statute and for a declaration of
his rights thereunder" (now section 1, Rule 64, Revised Rules of Court). In amplification,
this Court, conformably to established jurisprudence on the matter, laid down certain
conditions sine qua non therefor, to wit: (1) there must be a justiciable controversy; (2)
the controversy must be between persons whose interests are adverse; (3) the party
seeking declaratory relief must have a legal interest in the controversy; and (4) the issue
involved must be ripe for judicial determination (Tolentino vs. The Board of Accountancy,
et al., G.R. No. L-3062, September 28, 1951; Delumen, et al. vs. Republic of the
Philippines, 50 O.G., No. 2, pp. 576, 578-579; Edades vs. Edades, et al., G.R. No. L-8964,
July 31, 1956). The gravamen of the appellant's stand being that the petition herein
states no sufficient cause of action for declaratory relief, our duty is to assay the factual
bases thereof upon the foregoing crucible.
As we look in retrospect at the incidents that generated the present controversy, a
number of significant points stand out in bold relief. The appellee (Caltex), as a business
enterprise of some consequence, concededly has the unquestioned right to exploit every
legitimate means, and to avail of all appropriate media to advertise and stimulate
increased patronage for its products. In contrast, the appellant, as the authority charged

with the enforcement of the Postal Law, admittedly has the power and the duty to
suppress transgressions thereof particularly thru the issuance of fraud orders, under
Sections 1982 and 1983 of the Revised Administrative Code, against legally non-mailable
schemes. Obviously pursuing its right aforesaid, the appellee laid out plans for the sales
promotion scheme hereinbefore detailed. To forestall possible difficulties in the
dissemination of information thereon thru the mails, amongst other media, it was found
expedient to request the appellant for an advance clearance therefor. However, likewise
by virtue of his jurisdiction in the premises and construing the pertinent provisions of the
Postal Law, the appellant saw a violation thereof in the proposed scheme and accordingly
declined the request. A point of difference as to the correct construction to be given to
the applicable statute was thus reached. Communications in which the parties
expounded on their respective theories were exchanged. The confidence with which the
appellee insisted upon its position was matched only by the obstinacy with which the
appellant stood his ground. And this impasse was climaxed by the appellant's open
warning to the appellee that if the proposed contest was "conducted, a fraud order will
have to be issued against it and all its representatives."
Against this backdrop, the stage was indeed set for the remedy prayed for. The appellee's
insistent assertion of its claim to the use of the mails for its proposed contest, and the
challenge thereto and consequent denial by the appellant of the privilege demanded,
undoubtedly spawned a live controversy. The justiciability of the dispute cannot be
gainsaid. There is an active antagonistic assertion of a legal right on one side and a
denial thereof on the other, concerning a real not a mere theoretical question or
issue. The contenders are as real as their interests are substantial. To the appellee, the
uncertainty occasioned by the divergence of views on the issue of construction hampers
or disturbs its freedom to enhance its business. To the appellant, the suppression of the
appellee's proposed contest believed to transgress a law he has sworn to uphold and
enforce is an unavoidable duty. With the appellee's bent to hold the contest and the
appellant's threat to issue a fraud order therefor if carried out, the contenders are
confronted by the ominous shadow of an imminent and inevitable litigation unless their
differences are settled and stabilized by a tranquilizing declaration (Pablo y Sen, et al. vs.
Republic of the Philippines, G.R. No. L-6868, April 30, 1955). And, contrary to the
insinuation of the appellant, the time is long past when it can rightly be said that merely
the appellee's "desires are thwarted by its own doubts, or by the fears of others" which
admittedly does not confer a cause of action. Doubt, if any there was, has ripened into a
justiciable controversy when, as in the case at bar, it was translated into a positive claim
of right which is actually contested (III Moran, Comments on the Rules of Court, 1963 ed.,
pp. 132-133, citing: Woodward vs. Fox West Coast Theaters, 36 Ariz., 251, 284 Pac. 350).
We cannot hospitably entertain the appellant's pretense that there is here no question of
construction because the said appellant "simply applied the clear provisions of the law to
a given set of facts as embodied in the rules of the contest", hence, there is no room for
declaratory relief. The infirmity of this pose lies in the fact that it proceeds from the
assumption that, if the circumstances here presented, the construction of the legal
provisions can be divorced from the matter of their application to the appellee's contest.
This is not feasible. Construction, verily, is the art or process of discovering and
expounding the meaning and intention of the authors of the law with respect to its
application to a given case, where that intention is rendered doubtful, amongst others, by

reason of the fact that the given case is not explicitly provided for in the law (Black,
Interpretation of Laws, p. 1). This is precisely the case here. Whether or not the scheme
proposed by the appellee is within the coverage of the prohibitive provisions of the Postal
Law inescapably requires an inquiry into the intended meaning of the words used therein.
To our mind, this is as much a question of construction or interpretation as any other.
Nor is it accurate to say, as the appellant intimates, that a pronouncement on the matter
at hand can amount to nothing more than an advisory opinion the handing down of which
is anathema to a declaratory relief action. Of course, no breach of the Postal Law has as
yet been committed. Yet, the disagreement over the construction thereof is no longer
nebulous or contingent. It has taken a fixed and final shape, presenting clearly defined
legal issues susceptible of immediate resolution. With the battle lines drawn, in a manner
of speaking, the propriety nay, the necessity of setting the dispute at rest before it
accumulates the asperity distemper, animosity, passion and violence of a full-blown
battle which looms ahead (III Moran, Comments on the Rules of Court, 1963 ed., p. 132
and cases cited), cannot but be conceded. Paraphrasing the language in Zeitlin vs.
Arnebergh 59 Cal., 2d., 901, 31 Cal. Rptr., 800, 383 P. 2d., 152, cited in 22 Am. Jur., 2d., p.
869, to deny declaratory relief to the appellee in the situation into which it has been cast,
would be to force it to choose between undesirable alternatives. If it cannot obtain a final
and definitive pronouncement as to whether the anti-lottery provisions of the Postal Law
apply to its proposed contest, it would be faced with these choices: If it launches the
contest and uses the mails for purposes thereof, it not only incurs the risk, but is also
actually threatened with the certain imposition, of a fraud order with its concomitant
stigma which may attach even if the appellee will eventually be vindicated; if it abandons
the contest, it becomes a self-appointed censor, or permits the appellant to put into
effect a virtual fiat of previous censorship which is constitutionally unwarranted. As we
weigh these considerations in one equation and in the spirit of liberality with which the
Rules of Court are to be interpreted in order to promote their object (section 1, Rule 1,
Revised Rules of Court) which, in the instant case, is to settle, and afford relief from
uncertainty and insecurity with respect to, rights and duties under a law we can see in
the present case any imposition upon our jurisdiction or any futility or prematurity in our
intervention.
The appellant, we apprehend, underrates the force and binding effect of the ruling we
hand down in this case if he believes that it will not have the final and pacifying function
that a declaratory judgment is calculated to subserve. At the very least, the appellant will
be bound. But more than this, he obviously overlooks that in this jurisdiction, "Judicial
decisions applying or interpreting the law shall form a part of the legal system" (Article 8,
Civil Code of the Philippines). In effect, judicial decisions assume the same authority as
the statute itself and, until authoritatively abandoned, necessarily become, to the extent
that they are applicable, the criteria which must control the actuations not only of those
called upon to abide thereby but also of those in duty bound to enforce obedience
thereto. Accordingly, we entertain no misgivings that our resolution of this case will
terminate the controversy at hand.
It is not amiss to point out at this juncture that the conclusion we have herein just
reached is not without precedent. In Liberty Calendar Co. vs. Cohen, 19 N.J., 399, 117 A.
2d., 487, where a corporation engaged in promotional advertising was advised by the

county prosecutor that its proposed sales promotion plan had the characteristics of a
lottery, and that if such sales promotion were conducted, the corporation would be
subject to criminal prosecution, it was held that the corporation was entitled to maintain
a declaratory relief action against the county prosecutor to determine the legality of its
sales promotion plan. In pari materia, see also: Bunis vs. Conway, 17 App. Div. 2d., 207,
234 N.Y.S. 2d., 435; Zeitlin vs. Arnebergh, supra; Thrillo, Inc. vs. Scott, 15 N.J. Super. 124,
82 A. 2d., 903.
In fine, we hold that the appellee has made out a case for declaratory relief.
2. The Postal Law, chapter 52 of the Revised Administrative Code, using almost identical
terminology in sections 1954(a), 1982 and 1983 thereof, supra, condemns as absolutely
non-mailable, and empowers the Postmaster General to issue fraud orders against, or
otherwise deny the use of the facilities of the postal service to, any information
concerning "any lottery, gift enterprise, or scheme for the distribution of money, or of any
real or personal property by lot, chance, or drawing of any kind". Upon these words
hinges the resolution of the second issue posed in this appeal.
Happily, this is not an altogether untrodden judicial path. As early as in 1922, in "El
Debate", Inc. vs. Topacio, 44 Phil., 278, 283-284, which significantly dwelt on the power
of the postal authorities under the abovementioned provisions of the Postal Law, this
Court declared that
While countless definitions of lottery have been attempted, the authoritative one for this
jurisdiction is that of the United States Supreme Court, in analogous cases having to do
with the power of the United States Postmaster General, viz.: The term "lottery" extends
to all schemes for the distribution of prizes by chance, such as policy playing, gift
exhibitions, prize concerts, raffles at fairs, etc., and various forms of gambling. The three
essential elements of a lottery are: First, consideration; second, prize; and third, chance.
(Horner vs. States [1892], 147 U.S. 449; Public Clearing House vs. Coyne [1903], 194
U.S., 497; U.S. vs. Filart and Singson [1915], 30 Phil., 80; U.S. vs. Olsen and Marker
[1917], 36 Phil., 395; U.S. vs. Baguio [1919], 39 Phil., 962; Valhalla Hotel Construction
Company vs. Carmona, p. 233, ante.)
Unanimity there is in all quarters, and we agree, that the elements of prize and chance
are too obvious in the disputed scheme to be the subject of contention. Consequently as
the appellant himself concedes, the field of inquiry is narrowed down to the existence of
the element of consideration therein. Respecting this matter, our task is considerably
lightened inasmuch as in the same case just cited, this Court has laid down a definitive
yard-stick in the following terms
In respect to the last element of consideration, the law does not condemn the gratuitous
distribution of property by chance, if no consideration is derived directly or indirectly from
the party receiving the chance, but does condemn as criminal schemes in which a
valuable consideration of some kind is paid directly or indirectly for the chance to draw a
prize.

Reverting to the rules of the proposed contest, we are struck by the clarity of the
language in which the invitation to participate therein is couched. Thus
No puzzles, no rhymes? You don't need wrappers, labels or boxtops? You don't have to
buy anything? Simply estimate the actual number of liter the Caltex gas pump with the
hood at your favorite Caltex dealer will dispense from to , and win valuable
prizes . . . ." .
Nowhere in the said rules is any requirement that any fee be paid, any merchandise be
bought, any service be rendered, or any value whatsoever be given for the privilege to
participate. A prospective contestant has but to go to a Caltex station, request for the
entry form which is available on demand, and accomplish and submit the same for the
drawing of the winner. Viewed from all angles or turned inside out, the contest fails to
exhibit any discernible consideration which would brand it as a lottery. Indeed, even as
we head the stern injunction, "look beyond the fair exterior, to the substance, in order to
unmask the real element and pernicious tendencies which the law is seeking to prevent"
("El Debate", Inc. vs. Topacio, supra, p. 291), we find none. In our appraisal, the scheme
does not only appear to be, but actually is, a gratuitous distribution of property by
chance.
There is no point to the appellant's insistence that non-Caltex customers who may buy
Caltex products simply to win a prize would actually be indirectly paying a consideration
for the privilege to join the contest. Perhaps this would be tenable if the purchase of any
Caltex product or the use of any Caltex service were a pre-requisite to participation. But
it is not. A contestant, it hardly needs reiterating, does not have to buy anything or to
give anything of value.1awphl.nt
Off-tangent, too, is the suggestion that the scheme, being admittedly for sales
promotion, would naturally benefit the sponsor in the way of increased patronage by
those who will be encouraged to prefer Caltex products "if only to get the chance to draw
a prize by securing entry blanks". The required element of consideration does not consist
of the benefit derived by the proponent of the contest. The true test, as laid down in
People vs. Cardas, 28 P. 2d., 99, 137 Cal. App. (Supp.) 788, is whether the participant
pays a valuable consideration for the chance, and not whether those conducting the
enterprise receive something of value in return for the distribution of the prize.
Perspective properly oriented, the standpoint of the contestant is all that matters, not
that of the sponsor. The following, culled from Corpus Juris Secundum, should set the
matter at rest:
The fact that the holder of the drawing expects thereby to receive, or in fact does
receive, some benefit in the way of patronage or otherwise, as a result of the drawing;
does not supply the element of consideration. Griffith Amusement Co. vs. Morgan, Tex.
Civ. App., 98 S.W., 2d., 844" (54 C.J.S., p. 849).
Thus enlightened, we join the trial court in declaring that the "Caltex Hooded Pump
Contest" proposed by the appellee is not a lottery that may be administratively and
adversely dealt with under the Postal Law.

But it may be asked: Is it not at least a "gift enterprise, or scheme for the distribution of
money, or of any real or personal property by lot, chance, or drawing of any kind", which
is equally prescribed? Incidentally, while the appellant's brief appears to have
concentrated on the issue of consideration, this aspect of the case cannot be avoided if
the remedy here invoked is to achieve its tranquilizing effect as an instrument of both
curative and preventive justice. Recalling that the appellant's action was predicated,
amongst other bases, upon Opinion 217, Series 1953, of the Secretary of Justice, which
opined in effect that a scheme, though not a lottery for want of consideration, may
nevertheless be a gift enterprise in which that element is not essential, the determination
of whether or not the proposed contest wanting in consideration as we have found it to
be is a prohibited gift enterprise, cannot be passed over sub silencio.
While an all-embracing concept of the term "gift enterprise" is yet to be spelled out in
explicit words, there appears to be a consensus among lexicographers and standard
authorities that the term is commonly applied to a sporting artifice of under which goods
are sold for their market value but by way of inducement each purchaser is given a
chance to win a prize (54 C.J.S., 850; 34 Am. Jur., 654; Black, Law Dictionary, 4th ed., p.
817; Ballantine, Law Dictionary with Pronunciations, 2nd ed., p. 55; Retail Section of
Chamber of Commerce of Plattsmouth vs. Kieck, 257 N.W., 493, 128 Neb. 13; Barker vs.
State, 193 S.E., 605, 56 Ga. App., 705; Bell vs. State, 37 Tenn. 507, 509, 5 Sneed, 507,
509). As thus conceived, the term clearly cannot embrace the scheme at bar. As already
noted, there is no sale of anything to which the chance offered is attached as an
inducement to the purchaser. The contest is open to all qualified contestants irrespective
of whether or not they buy the appellee's products.
Going a step farther, however, and assuming that the appellee's contest can be
encompassed within the broadest sweep that the term "gift enterprise" is capable of
being extended, we think that the appellant's pose will gain no added comfort. As stated
in the opinion relied upon, rulings there are indeed holding that a gift enterprise involving
an award by chance, even in default of the element of consideration necessary to
constitute a lottery, is prohibited (E.g.: Crimes vs. States, 235 Ala 192, 178 So. 73;
Russell vs. Equitable Loan & Sec. Co., 129 Ga. 154, 58 S.E., 88; State ex rel. Stafford vs.
Fox-Great Falls Theater Corporation, 132 P. 2d., 689, 694, 698, 114 Mont. 52). But this is
only one side of the coin. Equally impressive authorities declare that, like a lottery, a gift
enterprise comes within the prohibitive statutes only if it exhibits the tripartite elements
of prize, chance and consideration (E.g.: Bills vs. People, 157 P. 2d., 139, 142, 113 Colo.,
326; D'Orio vs. Jacobs, 275 P. 563, 565, 151 Wash., 297; People vs. Psallis, 12 N.Y.S., 2d.,
796; City and County of Denver vs. Frueauff, 88 P., 389, 394, 39 Colo., 20, 7 L.R.A., N.S.,
1131, 12 Ann. Cas., 521; 54 C.J.S., 851, citing: Barker vs. State, 193 S.E., 605, 607, 56
Ga. App., 705; 18 Words and Phrases, perm. ed., pp. 590-594). The apparent conflict of
opinions is explained by the fact that the specific statutory provisions relied upon are not
identical. In some cases, as pointed out in 54 C.J.S., 851, the terms "lottery" and "gift
enterprise" are used interchangeably (Bills vs. People, supra); in others, the necessity for
the element of consideration or chance has been specifically eliminated by statute. (54
C.J.S., 351-352, citing Barker vs. State, supra; State ex rel. Stafford vs. Fox-Great Falls
Theater Corporation, supra). The lesson that we derive from this state of the pertinent
jurisprudence is, therefore, that every case must be resolved upon the particular
phraseology of the applicable statutory provision.

Taking this cue, we note that in the Postal Law, the term in question is used in association
with the word "lottery". With the meaning of lottery settled, and consonant to the wellknown principle of legal hermeneutics noscitur a sociis which Opinion 217 aforesaid
also relied upon although only insofar as the element of chance is concerned it is only
logical that the term under a construction should be accorded no other meaning than
that which is consistent with the nature of the word associated therewith. Hence, if
lottery is prohibited only if it involves a consideration, so also must the term "gift
enterprise" be so construed. Significantly, there is not in the law the slightest indicium of
any intent to eliminate that element of consideration from the "gift enterprise" therein
included.
This conclusion firms up in the light of the mischief sought to be remedied by the law,
resort to the determination thereof being an accepted extrinsic aid in statutory
construction. Mail fraud orders, it is axiomatic, are designed to prevent the use of the
mails as a medium for disseminating printed matters which on grounds of public policy
are declared non-mailable. As applied to lotteries, gift enterprises and similar schemes,
justification lies in the recognized necessity to suppress their tendency to inflame the
gambling spirit and to corrupt public morals (Com. vs. Lund, 15 A. 2d., 839, 143 Pa.
Super. 208). Since in gambling it is inherent that something of value be hazarded for a
chance to gain a larger amount, it follows ineluctably that where no consideration is paid
by the contestant to participate, the reason behind the law can hardly be said to obtain.
If, as it has been held
Gratuitous distribution of property by lot or chance does not constitute "lottery", if it is
not resorted to as a device to evade the law and no consideration is derived, directly or
indirectly, from the party receiving the chance, gambling spirit not being cultivated or
stimulated thereby. City of Roswell vs. Jones, 67 P. 2d., 286, 41 N.M., 258." (25 Words and
Phrases, perm. ed., p. 695, emphasis supplied).
we find no obstacle in saying the same respecting a gift enterprise. In the end, we are
persuaded to hold that, under the prohibitive provisions of the Postal Law which we have
heretofore examined, gift enterprises and similar schemes therein contemplated are
condemnable only if, like lotteries, they involve the element of consideration. Finding
none in the contest here in question, we rule that the appellee may not be denied the use
of the mails for purposes thereof.
Recapitulating, we hold that the petition herein states a sufficient cause of action for
declaratory relief, and that the "Caltex Hooded Pump Contest" as described in the rules
submitted by the appellee does not transgress the provisions of the Postal Law.
ACCORDINGLY, the judgment appealed from is affirmed. No costs.

G.R. No. L-42050-66

November 20, 1978

THE PEOPLE OF THE PHILIPPINES, petitioner,

vs.
HONORABLE JUDGE AMANTE P. PURISIMA, COURT OF FIRST INSTANCE OF MANILA,
BRANCH VII, and PORFIRIO CANDELOSAS, NESTOR BAES, ELIAS L. GARCIA, SIMEON
BUNDALIAN, JR., JOSEPH C. MAISO, EDUARDO A. LIBORDO, ROMEO L. SUGAY, FEDERICO T.
DIZON, GEORGE M. ALBINO, MARIANO COTIA, JR., ARMANDO L. DIZON, ROGELIO B.
PARENO, RODRIGO V. ESTRADA, ALFREDO A. REYES, JOSE A. BACARRA, REYNALDO
BOGTONG, and EDGARDO M. MENDOZA, respondents.
G.R. No. L-46229-32 November 20, 1978
THE PEOPLE OF THE PHILIPPINES, petitioner,
vs.
JUDGE MAXIMO A. MACEREN, COURT OF FIRST INSTANCE OF MANILA, BRANCH XVIII, and
REYNALDO LAQUI Y AQUINO, ELPIDIO ARPON, VICTOR EUGENIO Y ROQUE and ALFREDO
VERSOZA, respondents.
G.R. No. L-46313-16 November 20, 1978
THE PEOPLE OF THE PHILIPPINES, petitioner,
vs.
JUDGE MAXIMO A. MACEREN, COURT OF FIRST INSTANCE OF MANILA, BRANCH XVIII, and
JUANITO DE LA CRUZ Y NUNEZ, SABINO BUENO Y CACAL, TIRSO ISAGAN Y FRANCISCO
and BEN CASTILLO Y UBALDO, respondents.
G.R. No. L-46997 November 20, 1978
THE PEOPLE OF THE PHILIPPINES, petitioner,
vs.
THE HONORABLE WENCESLAO M. POLO, Judge of the Court of First Instance of Samar, and
PANCHITO REFUNCION, respondents.
Jose L. Gamboa, Fermin Martin, Jr. & Jose D. Cajucom, Office of the City of Fiscal of Manila
and the Office of Provincial Fiscal of Samar for petitioners.
Norberto Parto for respondents Candelosas, Baes and Garcia.
Amado C. de la Marced for respondents Simeon Bundalian Jr., et al.
Manuel F. de Jesus for all the respondents in L-46229-32 and L-46313-16.
Norberto L. Apostol for respondent Panchito Refuncion.
Hon. Amante P. Purisima for and in his own behalf.

MUOZ PALMA, J.:

These twenty-six (26) Petitions for Review filed by the People of the Philippines
represented, respectively, by the Office of the City Fiscal of Manila, the Office of the
Provincial Fiscal of Samar, and joined by the Solicitor General, are consolidated in this
one Decision as they involve one basic question of law.
These Petitions or appeals involve three Courts of First Instance, namely: the Court of
First Instance of Manila, Branch VII, presided by Hon. Amante P. Purisima (17 Petitions),
the Court of First Instance of Manila, Branch XVIII, presided by Hon. Maximo A. Maceren
(8 Petitions) and, the Court of First Instance of Samar, with Hon. Wenceslao M. Polo,
presiding, (1 Petition).
Before those courts, Informations were filed charging the respective accused with "illegal
possession of deadly weapon" in violation of Presidential Decree No. 9. On a motion to
quash filed by the accused, the three Judges mentioned above issued in the respective
cases filed before them the details of which will be recounted below an Order
quashing or dismissing the Informations, on a common ground, viz, that the Information
did not allege facts which constitute the offense penalized by Presidential Decree No. 9
because it failed to state one essential element of the crime.
Thus, are the Informations filed by the People sufficient in form and substance to
constitute the offense of "illegal possession of deadly weapon" penalized under
Presidential Decree (PD for short) No. 9? This is the central issue which we shall resolve
and dispose of, all other corollary matters not being indispensable for the moment.
A

The Information filed by the People

1.
In L-42050-66, one typical Information filed with the Court presided by Judge
Purisima follows:
THE PEOPLE OF THE PHILIPPINES, plaintiff, versus PORFIRIO CANDELOSAS Y DURAN,
accused.
Crim. Case No. 19639
VIOLATION OF PAR. 3, PRES. DECREE No. 9 OF PROCLAMATION 1081
INFORMATION
The undersigned accuses PORFIRIO CANDELOSAS Y DURAN of a violation of paragraph 3,
Presidential Decree No. 9 of Proclamation 1081, committed as follows:
That on or about the 14 th day of December, 1974, in the City of Manila, Philippines, the
said accused did then and there wilfully, unlawfully, feloniously and knowingly have in his

possession and under his custody and control one (1) carving knife with a blade of 6-
inches and a wooden handle of 5-1/4 inches, or an overall length of 11- inches, which
the said accused carried outside of his residence, the said weapon not being used as a
tool or implement necessary to earn his livelihood nor being used in connection
therewith.

CRIM. CASE NO. 933

Contrary to law. (p. 32, rollo of L-42050-66)

DEADLY WEAPON

The other Informations are similarly worded except for the name of the accused, the date
and place of the commission of the crime, and the kind of weapon involved.

(VIOLATION OF PD NO. 9)

2.
In L-46229-32 and L-46313-16, the Information filed with the Court presided by
Judge Maceren follows:
THE PEOPLE OF THE PHILIPPINES, plaintiff, versus REYNALDO LAQUI Y AQUINO, accused.
CRIM. CASE NO. 29677
VIOL. OF PAR. 3,
PD 9 IN REL. TO LOI
No. 266 of the Chief
Executive dated April 1, 1975
INFORMATION
The undersigned accuses REYNALDO LAQUI Y AQUINO of a VIOLATION OF PARAGRAPH 3,
PRESIDENTIAL DECREE NO. 9 in relation to Letter of Instruction No. 266 of the Chief
Executive dated April 1, 1975, committed as follows:
That on or about the 28 th day of January, 1977, in the City of Manila, Philippines, the
said accused did then and there wilfully, unlawfully and knowingly carry outside of his
residence a bladed and pointed weapon, to wit: an ice pick with an overall length of
about 8 inches, the same not being used as a necessary tool or implement to earn his
livelihood nor being used in connection therewith.
Contrary to law. (p. 14, rollo of L-46229-32)
The other Informations are likewise similarly worded except for the name of the accused,
the date and place of the commission of the crime, and the kind of weapon involved.
3.
In L-46997, the Information before the Court of First Instance of Samar is quoted
hereunder:
PEOPLE OF THE PHILIPPINES, complainant, versus PANCHITO REFUNCION, accused.

For:
ILLEGAL POSSESSION OF

INFORMATION
The undersigned First Assistant Provincial Fiscal of Samar, accuses PANCHITO REFUNCION
of the crime of ILLEGAL POSSESSION OF DEADLY WEAPON or VIOLATION OF PD NO. 9
issued by the President of the Philippines on Oct. 2, 1972, pursuant to Proclamation No.
1081 dated Sept. 21 and 23, 1972, committed as follows:
That on or about the 6th day of October, 1976, in the evening at Barangay Barruz,
Municipality of Matuginao, Province of Samar Philippines, and within the jurisdiction of
this Honorabe Court, the abovenamed accused, knowingly, wilfully, unlawfully and
feloniously carried with him outside of his residence a deadly weapon called socyatan, an
instrument which from its very nature is no such as could be used as a necessary tool or
instrument to earn a livelihood, which act committed by the accused is a Violation of
Presidential Decree No. 9.
CONTRARY TO LAW. (p. 8, rollo of L-46997)
B.

The Orders of dismissal

In dismissing or quashing the Informations the trial courts concurred with the submittal of
the defense that one essential element of the offense charged is missing from the
Information, viz: that the carrying outside of the accused's residence of a bladed, pointed
or blunt weapon is in furtherance or on the occasion of, connected with or related to
subversion, insurrection, or rebellion, organized lawlessness or public disorder.
1.

Judge Purisima reasoned out, inter alia, in this manner:

... the Court is of the opinion that in order that possession of bladed weapon or the like
outside residence may be prosecuted and tried under P.D. No. 9, the information must
specifically allege that the possession of bladed weapon charged was for the purpose of
abetting, or in furtherance of the conditions of rampant criminality, organized
lawlessness, public disorder, etc. as are contemplated and recited in Proclamation No.
1081, as justification therefor. Devoid of this specific allegation, not necessarily in the
same words, the information is not complete, as it does not allege sufficient facts to
constitute the offense contemplated in P.D. No. 9. The information in these cases under
consideration suffer from this defect.
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And while there is no proof of it before the Court, it is not difficult to believe the
murmurings of detained persons brought to Court upon a charge of possession of bladed
weapons under P.D. No. 9, that more than ever before, policemen - of course not all can
be so heartless now have in their hands P.D. No. 9 as a most convenient tool for
extortion, what with the terrifying risk of being sentenced to imprisonment of five to ten
years for a rusted kitchen knife or a pair of scissors, which only God knows where it came
from. Whereas before martial law an extortion-minded peace officer had to have a stock
of the cheapest paltik, and even that could only convey the coercive message of one
year in jail, now anything that has the semblance of a sharp edge or pointed object,
available even in trash cans, may already serve the same purpose, and yet five to ten
times more incriminating than the infamous paltik.
For sure, P.D. No. 9 was conceived with the best of intentions and wisely applied, its
necessity can never be assailed. But it seems it is back-firing, because it is too hot in the
hands of policemen who are inclined to backsliding.
The checkvalves against abuse of P.D. No. 9 are to be found in the heart of the Fiscal and
the conscience of the Court, and hence this resolution, let alone technical legal basis, is
prompted by the desire of this Court to apply said checkvalves. (pp. 55-57, rollo of L42050-66)
2.

Judge Maceren in turn gave his grounds for dismissing the charges as follows:

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"mala prohibita". If the contention of the prosecution is correct, then if a person happens
to be caught while on his way home by law enforcement officers carrying a kitchen knife
that said person had just bought from a store in order that the same may be used by
one's cook for preparing the meals in one's home, such person will be liable for
punishment with such a severe penalty as imprisonment from five to ten years under the
decree. Such person cannot claim that said knife is going to be used by him to earn a
livelihood because he intended it merely for use by his cook in preparing his meals.
This possibility cannot be discounted if Presidential Decree No. 9 were to be interpreted
and applied in the manner that that the prosecution wants it to be done. The good
intentions of the President in promulgating this decree may thus be perverted by some
unscrupulous law enforcement officers. It may be used as a tool of oppression and
tyranny or of extortion.
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It is therefore the considered and humble view of this Court that the act which the
President intended to make unlawful and punishable by Presidential Decree No. 9,
particularly by paragraph 3 thereof, is one that abets or is intended to abet subversion,
rebellion, insurrection, lawless violence, criminality, chaos and public disorder. (pp. 28-30,
rollo of L-46229-32)
3.
Judge Polo of the Court of First Instance of Samar expounded his order
dismissing the Information filed before him, thus:

As earlier noted the "desired result" sought to be attained by Proclamation No. 1081 is
the maintenance of law and order throughout the Philippines and the prevention and
suppression of all forms of lawless violence as well as any act of insurrection or rebellion.
It is therefore reasonable to conclude from the foregoing premises that the carrying of
bladed, pointed or blunt weapons outside of one's residence which is made unlawful and
punishable by said par. 3 of P.D. No. 9 is one that abets subversion, insurrection or
rebellion, lawless violence, criminality, chaos and public disorder or is intended to bring
about these conditions. This conclusion is further strengthened by the fact that all
previously existing laws that also made the carrying of similar weapons punishable have
not been repealed, whether expressly or impliedly. It is noteworthy that Presidential
Decree No. 9 does not contain any repealing clause or provisions.

... We believe that to constitute an offense under the aforcited Presidential decree, the
same should be or there should be an allegation that a felony was committed in
connection or in furtherance of subversion, rebellion, insurrection, lawless violence and
public disorder. Precisely Proclamation No. 1081 declaring a state of martial law
throughout the country was issued because of wanton destruction to lives and properties
widespread lawlessness and anarchy. And in order to restore the tranquility and stability
of the country and to secure the people from violence anti loss of lives in the quickest
possible manner and time, carrying firearms, explosives and deadly weapons without a
permit unless the same would fall under the exception is prohibited. This conclusion
becomes more compelling when we consider the penalty imposable, which is from five
years to ten years. A strict enforcement of the provision of the said law would mean the
imposition of the Draconian penalty upon the accused.

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xxx

The mere carrying outside of one's residence of these deadly weapons if not concealed in
one's person and if not carried in any of the aforesaid specified places, would appear to
be not unlawful and punishable by law.
With the promulgation of Presidential Decree No. 9, however, the prosecution, through
Assistant Fiscal Hilario H. Laqui, contends in his opposition to the motion to quash, that
this act is now made unlawful and punishable, particularly by paragraph 3 thereof,
regardless of the intention of the person carrying such weapon because the law makes it

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It is public knowledge that in rural areas, even before and during martial law, as a matter
of status symbol, carrying deadly weapons is very common, not necessarily for
committing a crime nor as their farm implement but for self-preservation or self-defense
if necessity would arise specially in going to and from their farm. (pp. 18-19, rollo of L46997)
In most if not all of the cases, the orders of dismissal were given before arraignment of
the accused. In the criminal case before the Court of (First Instance of Samar the accused

was arraigned but at the same time moved to quash the Information. In all the cases
where the accused were under arrest, the three Judges ordered their immediate release
unless held on other charges.
C. The law under which the Informations in question were filed by the People.
As seen from the Informations quoted above, the accused are charged with illegal
possession of deadly weapon in violation of Presidential Decree No. 9, Paragraph 3.
We quote in full Presidential Decree No. 9, to wit:
PRESIDENTIAL DECREE NO. 9
DECLARING VIOLATIONS OF GENERAL ORDERS NO. 6 and NO. 7 DATED SEPTEMBER 22,
1972, AND SEPTEMBER 23, 1972, RESPECTIVELY, TO BE UNLAWFUL AND PROVIDING
PENALTIES THEREFORE.
WHEREAS, pursuant to Proclamation No. 1081 dated September 21, 1972, the Philippines
has been placed under a state of martial law;
WHEREAS, by virtue of said Proclamation No. 1081, General Order No. 6 dated September
22, 1972 and General Order No. 7 dated September 23, 1972, have been promulgated by
me;
WHEREAS, subversion, rebellion, insurrection, lawless violence, criminality, chaos and
public disorder mentioned in the aforesaid Proclamation No. 1081 are committed and
abetted by the use of firearms, explosives and other deadly weapons;
NOW, THEREFORE, I, FERDINAND E. MARCOS, Commander-in-Chief of all the Armed
Forces of the Philippines, in older to attain the desired result of the aforesaid
Proclamation No. 1081 and General Orders Nos. 6 and 7, do hereby order and decree
that:
1.
Any violation of the aforesaid General Orders Nos. 6 and 7 is unlawful and the
violator shall, upon conviction suffer:
(a)
The mandatory penalty of death by a firing squad or electrocution as a Military,
Court/Tribunal/Commission may direct, it the firearm involved in the violation is
unlicensed and is attended by assault upon, or resistance to persons in authority or their
agents in the performance of their official functions resulting in death to said persons in
authority or their agent; or if such unlicensed firearm is used in the commission of crimes
against persons, property or chastity causing the death of the victim used in violation of
any other General Orders and/or Letters of Instructions promulgated under said
Proclamation No. 1081:
(b)
The penalty of imprisonment ranging from twenty years to life imprisonment as
a Military Court/Tribunal/commission may direct, when the violation is not attended by
any of the circumstances enumerated under the preceding paragraph;

(c)
The penalty provided for in the preceding paragraphs shall be imposed upon the
owner, president, manager, members of the board of directors or other responsible
officers of any public or private firms, companies, corporations or entities who shall
willfully or knowingly allow any of the firearms owned by such firm, company, corporation
or entity concerned to be used in violation of said General Orders Nos. 6 and 7.
2.
It is unlawful to posses deadly weapons, including hand grenades, rifle grenades
and other explosives, including, but not limited to, "pill box bombs," "molotov cocktail
bombs," "fire bombs," or other incendiary device consisting of any chemical, chemical
compound, or detonating agents containing combustible units or other ingredients in
such proportion, quantity, packing, or bottling that ignites by fire, by friction, by
concussion, by percussion, or by detonation of all or part of the compound or mixture
which may cause such a sudden generation of highly heated gases that the resultant
gaseous pressures are capable of producing destructive effects on continguous objects or
of causing injury or death of a person; and any person convicted thereof shall be
punished by imprisonment ranging from ten to fifteen years as a Military
Court/Tribunal/Commission may direct.
3.
It is unlawful to carry outside of residence any bladed, pointed or blunt weapon
such as "fan knife," "spear," "dagger," "bolo," "balisong," "barong," "kris," or club, except
where such articles are being used as necessary tools or implements to earn a livelihood
and while being used in connection therewith; and any person found guilty thereof shall
suffer the penalty of imprisonment ranging from five to ten years as a Military
Court/Tribunal/Commission may direct.
4.
When the violation penalized in the preceding paragraphs 2 and 3 is committed
during the commission of or for the purpose of committing, any other crime, the penalty
shall be imposed upon the offender in its maximum extent, in addition to the penalty
provided for the particular offenses committed or intended to be committed.
Done in the City of Manila, this 2nd day of October in the year of Our Lord, nineteen
hundred and seventy-two.
(SGD) FERDINAND E. MARCOS
President
Republic of the Philippines
D.

The arguments of the People

In the Comment filed in these cases by the Solicitor General who as stated earlier joins
the City Fiscal of Manila and the Provincial Fiscal of Samar in seeking the setting aside of
the questioned orders of dismissal, the main argument advanced on the issue now under
consideration is that a perusal of paragraph 3 of P.D. 9 'shows that the prohibited acts
need not be related to subversive activities; that the act proscribed is essentially a
malum prohibitum penalized for reasons of public policy. 1

The City Fiscal of Manila in his brief adds further that in statutory offenses the intention of
the accused who commits the act is immaterial; that it is enough if the prohibited act is
voluntarily perpetuated; that P.D. 9 provides and condemns not only the carrying of said
weapon in connection with the commission of the crime of subversion or the like, but also
that of criminality in general, that is, to eradicate lawless violence which characterized
pre-martial law days. It is also argued that the real nature of the criminal charge is
determined not from the caption or preamble of the information nor from the
specification of the provision of law alleged to have been violated but by the actual
recital of facts in the complaint or information. 2
E.

Our Ruling on the matter

1.
It is a constitutional right of any person who stands charged in a criminal
prosecution to be informed of the nature and cause of the accusation against him. 3
Pursuant to the above, Section 5, Rule 110 of the Rules of Court, expressly requires that
for a complaint or information to be sufficient it must, inter alia state the designation of
the offense by the statute, and the acts or omissions complained of as constituting the
offense. This is essential to avoid surprise on the accused and to afford him the
opportunity to prepare his defense accordingly. 4
To comply with these fundamental requirements of the Constitution and the Rules on
Criminal Procedure, it is imperative for the specific statute violated to be designated or
mentioned 4 in the charge. In fact, another compelling reason exists why a specification
of the statute violated is essential in these cases. As stated in the order of respondent
Judge Maceren the carrying of so-called "deadly weapons" is the subject of another penal
statute and a Manila city ordinance. Thus, Section 26 of Act No. 1780 provides:
Section 26. It should be unlawful for any person to carry concealed about his person any
bowie knife, dirk dagger, kris, or other deadly weapon: ... Any person violating the
provisions of this section shall, upon conviction in a court of competent jurisdiction, be
punished by a fine not exceeding five hundred pesos, or by imprisonment for a period not
exceeding six months, or both such fine and imprisonment, in the discretion of the court.
Ordinance No. 3820 of the City of Manila as amended by Ordinance No. 3928 which took
effect on December 4, 1957, in turn penalizes with a fine of not more than P200.00 or
imprisonment for not more than one months, or both, at the discretion of the court,
anyone who shall carry concealed in his person in any manner that would disguise its
deadly character any kind of firearm, bowie knife, or other deadly weapon ... in any
public place. Consequently, it is necessary that the particular law violated be specified as
there exists a substantial difference between the statute and city ordinance on the one
hand and P.D. 9 (3) on the other regarding the circumstances of the commission of the
crime and the penalty imposed for the offense.
We do not agree with petitioner that the above-mentioned statute and the city ordinance
are deemed repealed by P.D. 9 (3). 5 P. D. 9(3) does not contain any repealing clause or
provision, and repeal by implication is not favored. 6 This principle holds true with greater

force with regards to penal statutes which as a rule are to be construed strictly against
the state and liberally in favor of the accused. 7 In fact, Article 7 of the New Civil Code
provides that laws are repealed only by subsequent ones and their violation or nonobservance shall not be excused by disuse, or custom or practice to the contrary.
Thus we are faced with the situation where a particular act may be made to fall, at the
discretion of a police officer or a prosecuting fiscal, under the statute, or the city
ordinance, or the presidential decree. That being the case, the right becomes more
compelling for an accused to be confronted with the facts constituting the essential
elements of the offense charged against him, if he is not to become an easy pawn of
oppression and harassment, or of negligent or misguided official action a fear
understandably shared by respondent Judges who by the nature of their judicial functions
are daily exposed to such dangers.
2.
In all the Informations filed by petitioner the accused are charged in the caption
as well as in the body of the Information with a violation of paragraph 3, P.D. 9. What
then are the elements of the offense treated in the presidential decree in question?
We hold that the offense carries two elements: first, the carrying outside one's residence
of any bladed, blunt, or pointed weapon, etc. not used as a necessary tool or implement
for a livelihood; and second, that the act of carrying the weapon was either in
furtherance of, or to abet, or in connection with subversion, rebellion, insurrection,
lawless violence, criminality, chaos, or public disorder.
It is the second element which removes the act of carrying a deadly weapon, if
concealed, outside of the scope of the statute or the city ordinance mentioned above. In
other words, a simple act of carrying any of the weapons described in the presidential
decree is not a criminal offense in itself. What makes the act criminal or punishable under
the decree is the motivation behind it. Without that motivation, the act falls within the
purview of the city ordinance or some statute when the circumstances so warrant.
Respondent Judges correctly ruled that this can be the only reasonably, logical, and valid
construction given to P.D. 9(3).
3.
The position taken by petitioner that P.D. 9(3) covers one and all situations
where a person carries outside his residence any of the weapons mentioned or described
in the decree irrespective of motivation, intent, or purpose, converts these cases into one
of "statutory construction." That there is ambiguity in the presidential decree is manifest
from the conflicting views which arise from its implementation. When ambiguity exists, it
becomes a judicial task to construe and interpret the true meaning and scope of the
measure, guided by the basic principle that penal statutes are to be construed and
applied liberally in favor of the accused and strictly against the state.
4.
In the construction or interpretation of a legislative measure a presidential
decree in these cases the primary rule is to search for and determine the intent and
spirit of the law. Legislative intent is the controlling factor, for in the words of this Court in
Hidalgo v. Hidalgo, per Mr. Justice Claudio Teehankee, whatever is within the spirit of a

statute is within the statute, and this has to be so if strict adherence to the letter would
result in absurdity, injustice and contradictions. 8
There are certain aids available to Us to ascertain the intent or reason for P.D. 9(3).
First, the presence of events which led to or precipitated the enactment of P.D. 9. These
events are clearly spelled out in the "Whereas" clauses of the presidential decree, thus:
(1) the state of martial law in the country pursuant to Proclamation 1081 dated
September 21, 1972; (2) the desired result of Proclamation 1081 as well as General
Orders Nos. 6 and 7 which are particularly mentioned in P.D. 9; and (3) the alleged fact
that subversion, rebellion, insurrection, lawless violence, criminality, chaos, aid public
disorder mentioned in Proclamation 1081 are committed and abetted by the use of
firearms and explosives and other deadly weapons.
The Solicitor General however contends that a preamble of a statute usually introduced
by the word "whereas", is not an essential part of an act and cannot enlarge or confer
powers, or cure inherent defects in the statute (p. 120, rollo of L-42050-66); that the
explanatory note or enacting clause of the decree, if it indeed limits the violation of the
decree, cannot prevail over the text itself inasmuch as such explanatory note merely
states or explains the reason which prompted the issuance of the decree. (pp. 114-115,
rollo of 46997)
We disagree with these contentions. Because of the problem of determining what acts fall
within the purview of P.D. 9, it becomes necessary to inquire into the intent and spirit of
the decree and this can be found among others in the preamble or, whereas" clauses
which enumerate the facts or events which justify the promulgation of the decree and the
stiff sanctions stated therein.
A "preamble" is the key of the statute, to open the minds of the makers as to the
mischiefs which are to be remedied, and objects which are to be accomplished, by the
provisions of the statute." (West Norman Timber v. State, 224 P. 2d 635, 639, cited in
Words and Phrases, "Preamble"; emphasis supplied)
While the preamble of a statute is not strictly a part thereof, it may, when the statute is
in itself ambiguous and difficult of interpretation, be resorted to, but not to create a doubt
or uncertainty which otherwise does not exist." (James v. Du Bois, 16 N.J.L. (1 Har.) 285,
294, cited in Words and Phrases, "Preamble")
In Aboitiz Shipping Corporation, et al. v. The City of Cebu, et al. this Court had occasion to
state that '(L)egislative intent must be ascertained from a consideration of the statute as
a whole, and not of an isolated part or a particular provision alone. This is a cardinal rule
of statutory construction. For taken in the abstract, a word or phrase might easily convey
a meaning quite different from the one actually intended and evident when the word or
phrase is considered with those with which it is associated. Thus, an apparently general
provision may have a limited application if read together with other provisions. 9
Second, the result or effects of the presidential decree must be within its reason or
intent.

In the paragraph immediately following the last "Whereas" clause, the presidential
decree states:
NOW, THEREFORE, I , FERDINAND E. MARCOS, Commander-in-Chief of an the Armed
Forces of the Philippines, in order to attain the desired result of the aforesaid
Proclamation No. 1081 and General Orders Nos. 6 and 7, do hereby order and decree
that:
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From the above it is clear that the acts penalized in P.D. 9 are those related to the desired
result of Proclamation 1081 and General Orders Nos. 6 and 7. General Orders Nos. 6 and
7 refer to firearms and therefore have no relevance to P.D. 9(3) which refers to blunt or
bladed weapons. With respect to Proclamation 1081 some of the underlying reasons for
its issuance are quoted hereunder:
WHEREAS, these lawless elements having taken up arms against our duly constituted
government and against our people, and having committed and are still committing acts
of armed insurrection and rebellion consisting of armed raids, forays, sorties, ambushes,
wanton acts of murders, spoilage, plunder, looting, arsons, destruction of public and
private buildings, and attacks against innocent and defenseless civilian lives and
property, all of which activities have seriously endangered and continue to endanger
public order and safety and the security of the nation, ...
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WHEREAS, it is evident that there is throughout the land a state of anarchy and
lawlessness, chaos and disorder, turmoil and destruction of a magnitude equivalent to an
actual war between the forces of our duly constituted government and the New People's
Army and their satellite organizations because of the unmitigated forays, raids,
ambuscades, assaults, violence, murders, assassinations, acts of terror, deceits,
coercions, threats, intimidations, treachery, machinations, arsons, plunders and
depredations committed and being committed by the aforesaid lawless elements who
have pledged to the whole nation that they will not stop their dastardly effort and
scheme until and unless they have fully attained their primary and ultimate purpose of
forcibly seizing political and state power in this country by overthrowing our present duly
constituted government, ... (See Book I, Vital Documents on the Declaration of Martial
Law in the Philippines by the Supreme Court of the Philippines, pp. 13-39)
It follows that it is only that act of carrying a blunt or bladed weapon with a motivation
connected with or related to the afore-quoted desired result of Proclamation 1081 that is
within the intent of P.D. 9(3), and nothing else.
Statutes are to be construed in the light of purposes to be achieved and the evils sought
to be remedied. (U.S. v. American Tracking Association, 310 U.S. 534, cited in LVN
Pictures v. Philippine Musicians Guild, 110 Phil. 725, 731; emphasis supplied)

When construing a statute, the reason for its enactment should be kept in mind, and the
statute should be construed with reference to its intended scope and purpose. (Statutory
Construction by E.T. Crawford, pp. 604-605, cited in Commissioner of Internal Revenue v.
Filipinas Compania de Seguros, 107 Phil. 1055, 1060; emphasis supplied)

not to enable a guilty person to escape punishment through a technicality but to provide
a precise definition of forbidden acts. 12

5.
In the construction of P.D. 9(3) it becomes relevant to inquire into the
consequences of the measure if a strict adherence to the letter of the paragraph is
followed.

Criminal statutes are to be construed strictly. No person should be brought within their
terms who is not clearly within them, nor should any act be pronounced criminal which is
not made clearly so by the statute. (U.S. v. Abad Santos, 36 Phil. 243, 246)

It is a salutary principle in statutory construction that there exists a valid presumption

that undesirable consequences were never intended by a legislative measure, and that a
construction of which the statute is fairly susceptible is favored, which will avoid all
objectionable, mischievous, indefensible, wrongful, evil, and injurious consequences. 9-a

The rule that penal statutes are given a strict construction is not the only factor
controlling the interpretation of such laws, instead, the rule merely serves as an
additional, single factor to be considered as an aid in determining the meaning of penal
laws. (People v. Manantan, 5 SCRA 684, 692)

It is to be presumed that when P.D. 9 was promulgated by the President of the Republic
there was no intent to work a hardship or an oppressive result, a possible abuse of
authority or act of oppression, arming one person with a weapon to impose hardship on
another, and so on. 10

F.

At this instance We quote from the order of Judge Purisima the following:
And while there is no proof of it before the Court, it is not difficult to believe the
murmurings of detained persons brought to Court upon a charge of possession of bladed
weapons under P.D. No. 9, that more than ever before, policemen - of course not all can
be so heartless now have in their hands P.D. No. 9 as a most convenient tool for
extortion, what with the terrifying risk of being sentenced to imprisonment of five to ten
years for a rusted kitchen knife or a pair of scissors, which only God knows where it came
from. Whereas before martial law an extortion-minded peace officer had to have a stock
of the cheapest paltik, and even that could only convey the coercive message of one
year in jail, now anything that has the semblance of a sharp edge or pointed object,
available even in trash cans, may already serve the same purpose, and yet five to ten
times more incriminating than the infamous paltik. (pp. 72-73, rollo L-42050-66)
And as respondent Judge Maceren points out, the people's interpretation of P.D. 9(3)
results in absurdity at times. To his example We may add a situation where a law-abiding
citizen, a lawyer by profession, after gardening in his house remembers to return the bolo
used by him to his neighbor who lives about 30 meters or so away and while crossing the
street meets a policeman. The latter upon seeing the bolo being carried by that citizen
places him under arrest and books him for a violation of P.D. 9(3). Could the presidential
decree have been conceived to produce such absurd, unreasonable, and insensible
results?
6.
Penal statutes are to be construed strictly against the state and liberally in favor
of an accused.
American jurisprudence sets down the reason for this rule to be "the tenderness of the
law of the rights of individuals; the object is to establish a certain rule by conformity to
which mankind would be safe, and the discretion of the court limited." 11 The purpose is

Our own decisions have set down the same guidelines in this manner, viz:

The Informations filed by petitioner are fatally defective.

The two elements of the offense covered by P.D. 9(3) must be alleged in the Information
in order that the latter may constitute a sufficiently valid charged. The sufficiency of an
Information is determined solely by the facts alleged therein. 13 Where the facts are
incomplete and do not convey the elements of the crime, the quashing of the accusation
is in order.
Section 2(a), Rule 117 of the Rules of Court provides that the defendant may move to
quash the complaint or information when the facts charged do not constitute an offense.
In U.S.U. Gacutan, 1914, it was held that where an accused is charged with knowingly
rendering an unjust judgment under Article 204 of the Revised Penal Code, failure to
allege in the Information that the judgment was rendered knowing it to be unjust, is fatal.
14
In People v. Yadao, 1954, this Court through then Justice Cesar Bengzon who later
became Chief Justice of the Court affirmed an order of the trial court which quashed an
Information wherein the facts recited did not constitute a public offense as defined in
Section 1, Republic Act 145. 15
G.
The filing of these Petitions was unnecessary because the People could have
availed itself of other available remedies below.
Pertinent provisions of the Rules of Court follow:
Rule 117, Section 7. Effect of sustaining the motion to quash. If the motion to quash is
sustained the court may order that another information be filed. If such order is made the
defendant, if in custody, shall remain so unless he shall be admitted to bail. If such order
is not made or if having been made another information is not filed withuntime to be
specified in the order, or within such further time as the court may allow for good cause
shown, the defendant, if in custody, shall be discharged therefrom, unless he is in
custody on some other charge.

Rule 110, Section 13. Amendment. The information or complaint may be amended, in
substance or form, without leave of court, at any time before the defendant pleads; and
thereafter and during the trial as to all matters of form, by leave and at the discretion of
the court, when the same can be done without prejudice to the rights of the defendant.
xxx

xxx

xxx

Two courses of action were open to Petitioner upon the quashing of the Informations in
these cases, viz:
First, if the evidence on hand so warranted, the People could have filed an amended
Information to include the second element of the offense as defined in the disputed
orders of respondent Judges. We have ruled that if the facts alleged in the Information do
not constitute a punishable offense, the case should not be dismissed but the prosecution
should be given an opportunity to amend the Information. 16
Second, if the facts so justified, the People could have filed a complaint either under
Section 26 of Act No. 1780, quoted earlier, or Manila City Ordinance No. 3820, as
amended by Ordinance No. 3928, especially since in most if not all of the cases, the
dismissal was made prior to arraignment of the accused and on a motion to quash.
Section 8. Rule 117 states that:
An order sustaining the motion to quash is not a bar to another prosecution for the same
offense unless the motion was based on the grounds specified in section 2, subsections
(f) and (h) of this rule.
Under the foregoing, the filing of another complaint or Information is barred only when
the criminal action or liability had been extinguished (Section 2[f]) or when the motion to
quash was granted for reasons of double jeopardy. (ibid., [h])
As to whether or not a plea of double jeopardy may be successfully invoked by the
accused in all these cases should new complaints be filed against them, is a matter We
need not resolve for the present.
H.
We conclude with high expectations that police authorities and the
prosecuting arm of the government true to the oath of office they have taken will
exercise utmost circumspection and good faith in evaluating the particular circumstances
of a case so as to reach a fair and just conclusion if a situation falls within the purview of
P.D. 9(3) and the prosecution under said decree is warranted and justified. This obligation
becomes a sacred duty in the face of the severe penalty imposed for the offense.
On this point, We commend the Chief State Prosecutor Rodolfo A. Nocon on his letter to
the City Fiscal of Manila on October 15, 1975, written for the Secretary, now Minister of
Justice, where he stated the following:
In any case, please study well each and every case of this nature so that persons
accused of carrying bladed weapons, specially those whose purpose is not to subvert the

duly constituted authorities, may not be unduly indicted for the serious offenses falling
under P.D. No. 9. 17
Yes, while it is not within the power of courts of justice to inquire into the wisdom of a
law, it is however a judicial task and prerogative to determine if official action is within
the spirit and letter of the law and if basic fundamental rights of an individual guaranteed
by the Constitution are not violated in the process of its implementation. We have to face
the fact that it is an unwise and unjust application of a law, necessary and justified under
prevailing circumstances, which renders the measure an instrument of oppression and
evil and leads the citizenry to lose their faith in their government.
WHEREFORE, We DENY these 26 Petitions for Review and We AFFIRM the Orders of
respondent Judges dismissing or quashing the Information concerned, subject however to
Our observations made in the preceding pages 23 to 25 of this Decision regarding the
right of the State or Petitioner herein to file either an amended Information under
Presidential Decree No. 9, paragraph 3, or a new one under other existing statute or city
ordinance as the facts may warrant.
Without costs.
SO ORDERED.

October 4, 1943
G.R. No. 48137
In re testate estate of NARCISO A. PADILLA.
CONCEPCION PATERNO VDA. DE PADILLA, widow-appellee,
vs.
ISABEL BIBBY VDA. DE PADILLA, executrix-appellant.
BOCOBO, J.:
This case is an incident of the settlement of the testate estate of the late Narciso A.
Padilla. In order that his property may be divided according to his last will and testament,
it is necessary first to liquidate the conjugal partnership. It was in connection with such
liquidation that the widow, Concepcion Paterno Vda. de Padilla, commenced the instant
proceedings by filing a petition wherein she prayed, inter alia, that her paraphernal
property be segregated from the inventoried estate and delivered to her together with
the corresponding reimbursements and indemnities; that she be given one-half of the
conjugal partnership property; and that her usufructuary right over one-half of the
portion pertaining to the heir instituted in the will be recognized. The Court of First
Instance of Manila rendered judgment declaring certain pieces of real estate and jewelry
as well as certain sums of money to be paraphernal, and ordering the same to be
delivered to the widow (appellee herein). The trial court's judgment, as amended, reads:
En vista de los hechos y consideraciones que preceden, el Juzgado dicta sentencia y
declara:
(a) Que todos los bienes que constan en el inventario, y sobre los cuales no se ha
suscitado controversia por las partes, son bienes gananciales;
(b) Que se nombran tres (3) Comisionados, uno a recomendacion de la heredera
instituida en el testamento, otro a recomendacion de Da. Concepcion Paterno Vda. de
Padilla, y el tercero por el Juzgado, para que se hagan cargo de avaluar las fincas o
partes de fincas que se deben justipreciar de conformidad con las conclusiones sentadas
en esta decision hagan las computaciones correspondientes a fin de determinar el
remanente liquido de la sociedad de gananciales, tomando por base los precios
calculados y avaluados sobre dichos bienes, y dividan por mitad el remanente liquido
entre Da. Concepcion Paterno Vda. de Padilla, y la heredera testamentaria Da. Isabel
Bibby Vda. de Padilla, especificando los bienes que a cada una debe corresponder;
(c) Que pagadas todas las deudas de la sociedad de gananciales, dichos comisionados
procederan a dividir en tres partes los bienes que deben corresponder al difunto, a fin de
que las dos terceras partes sean adjudicadas a la heredera testamentaria en pleno
dominio, y la otra tercera parte en nuda propiedad a la misma heredera testamentaria y
en usufructo a la viuda Concepcion Paterno mientras ella viva.
(d) Que los gastos en que incurra esta Testamentaria por los servicios de los
Comisionados se paguen por ambas partes, por mitad.

From the foregoing judgment the testator's mother and instituted heir, Isabel Bibby Vda.
de Padilla, appeals.
I
The value in controversy being over P50,000, we have reviewed the evidence. After a
careful examination of the oral and documentary proof, we find no error in the findings of
fact made by the trial court. From the evidence it appears that Narciso A. Padilla and
Concepcion Paterno were married on December 12, 1912. The husband, who was a
medical student, contributed a small capital to the conjugal partnership at the time of the
marriage. The wife, on the other hand, brought to the marriage considerable property in
real estate, jewelry and cash. Practically all of the conjugal partnership property came
from the fruits of the paraphernal property. The conjugal partnership lasted twenty-one
years, the husband having died on February 12, 1934. (The wife also died recently,
during the pendency of this appeal, but in this decision she is referred to as if still living.)
The common fortune, consisting of real and personal property, is fairly large. The
husband, who left no children, executed a will giving his whole estate to his mother,
Isabel Bibby Vda. de Padilla, appellant herein. The property included in the inventory is
appraised at P261,000. Seven pieces of real estate are in controversy in this case. The
remaining ten real properties left by the deceased husband admittedly pertain to the
conjugal partnership.
A thorough study of the evidence convinces us that the trial court was right in finding
that the following properties in Manila are paraphernal: (1) the lot at 305 Arquiza Street
and the demolished improvements; (2) the lot at 1393-1409 Juan Luna Street and the
improvements that had been torn down; (3) the lot and improvements (except the
building constructed during the marriage for P4,000) at 401-407 Camba Street; (4) the lot
at 613-631 and 634-636 Martin Ocampo Street, with the original "accesorias" and a
camarin which was destroyed in order that new "accesorias" might be constructed, these
new "accesorias" being of the conjugal partnership; (5) the property at 620-A-H Callejon
De la Fe; (6) one-half of the property at 631 Regidor Street; and (7) nine twenty-ninths
(9/29) of the property at 302-306 R. Hidalgo Street.
We also agree with the finding of the lower court that certain jewels, namely: two pairs of
ear-rings, a bracelet, and a gold watch, belong to the widow.
In like manner, we see no error in the following findings of the trial court: (1) that the
husband borrowed P7,000 from the wife to meet his personal obligations; and (2) that the
amount of P21,046.52 (the remainder of P66,046.52) received by the wife during the
marriage was commingled with the conjugal partnership funds.
II
Several questions of law are raised in the present appeal. We shall discuss them one by
one.
1. The first legal controversy is on a sort of no-man's land where many a legal battle has
been fought. The issue is, How far is a Torrens title conclusive and incontestable? Various

manifestations of this legal question have been decided by the courts, and while certain
of its aspects may still be doubtful, we are persuaded, however, that there can be no
doubt, as will presently be shown, that what appears in the Torrens certificate in this case
is neither final nor incontrovertible.
Appellant contends that because certain of these real estates (on Camba, Martin Ocampo
and Regidor Streets) have been registered in the names of both spouses, Narciso Padilla
and Concepcion Paterno de Padilla, and considering the presumption in Art. 1407 of the
Civil Code, these properties must be held to be of the conjugal partnership. The trial
court, however, found that the whole purchase price of the Camba and Martin Ocampo
properties, and one-half of the purchase price of the Regidor property, were from the
wife's exclusive funds, and therefore the whole of the original Camba and Ocampo
estates and one-half of the Regidor realty must be adjudged paraphernal, in spite of the
fact that the certificates of title are in the names of both spouses.
There is nothing sacrosanct and definitive in the certificate of title when the conjugal
partnership is liquidated. The true and real owner may be shown whether it be the
husband, or the wife, or both. Thus, in Flores vs. Flores, 48 Phil. 288, this Court held that
property acquired during the marriage but registered in the husband's name still
belonged to the conjugal partnership. A similar ruling was announced when the real
estate was registered in the wife's name. Romero vs. Sheriff, 53 Phil., 51. But the
appellant maintains that the converse is not true; and that even if evidence is admissible
to alter the conjugal character of the property, such evidence must be clear, strong and
convincing (citing Art 1407, Civil Code, and Ahern vs. Julian, 39 Phil., 607).
We are of the opinion that an exception should in no wise be made when the property is
registered in the names of both spouses. In such instances, the property may be shown
to be really of either spouse, though recorded in the names of both. The underlying
reason is the same in all cases, which is the confidential relation between husband and
wife. Because of the feelings of trust existing between the spouses, certificates of title
are often secured in the name of both, or of either, regardless of the true ownership of
the property, and regardless of the source of the purchase money. It is thus but fair that
on liquidation of the partnership, the trust should be recognized and enforced, so that the
real ownership of the property may be established. The principle that a trustee who takes
a Torrens title in his name cannot repudiate the trust by relying on the registration, is one
of the well-known limitations upon the finality of a decree of title. (See Severino vs.
Severino, 44 Phil., 343). It is because a certificate of title under the Torrens system should
not be turned into an instrument for deprivation of ownership. The Torrens plan, created
to protect dominion, is not a Frankenstein that destroys this very dominion. A trust,
deriving its strength from confidence, which runs though with the woof and warp of the
social fabric, does not lose that character on the plea that a Torrens certificate of title is
conclusive. It is meet and seemly that this should be so, for any rule that permits the
violation of a fiduciary duty would be a reproach to any legal system. These observations
apply with peculiar force to the relations between husband and wife. In a normal
marriage, the spouses trust each other so implicitly that they attach little or no
importance to what appears in legal documents, fully and unreservedly believing that no
technicality would be availed of to claim what in very truth pertains to one or the other.
Things would indeed come to a sorry pass if the jurisprudence of this country should

harbor any theory which would impair this intimate reliance, this unquestioning loyalty,
this befitting faith between husband and wife.
There is another reason why evidence of the nature of any property as paraphernal
should be allowed, despite the Torrens certificate. It is this: the manager of the conjugal
partnership is the husband. He may, without let or hindrance, deal with and dispose of
any property appearing in the names of both spouses, even if the property should really
be paraphernal. In the course of years, any such property may have been sold,
transformed or substituted. Upon liquidation of the conjugal partnership, to forbid an
investigation of the true source of the purchase price of the original property, after many
years of marriage, would make liquidation a mockery, for it would be well nigh impossible
to trace and identity the paraphernal property. The law positively ordains that the wife's
property (dowry and paraphernal) should be returned, even before the payment of the
debts of the conjugal partnership (Art. 1421 and 1422, Civil Code). But how can this
mandate of the law be complied with when the means to that end are withheld and
forbidden?
As for the appellants proposition that the evidence to rebut the Torrens certificates and
the legal presumption in favor of the conjugal partnership (Art. 1407) should be clear,
strong and convincing, we find that the proof, both oral and documentary, in the record is
more than sufficient to offset and counteract the certificates of title and the presumption
of law.
2. The second legal inquiry is the interpretation of Article 1404, par. 2, Civil Code:
whether the value of the paraphernal land to be reimbursed to the wife is that obtaining
at the time of the liquidation of the conjugal partnership. With conjugal funds the
husband constructed buildings on the wife's lots on Arquiza, Juan Luna, Camba and
Martin Ocampo streets. The court a quo ordered that the value of the lots occupied by
these constructions, to be paid to the widow, should be that prevailing at the time of the
liquidation of the conjugal partnership.
Appellant claims such pronouncement of the trial court to be erroneous because from the
time of the construction of the buildings, the conjugal partnership became the owner of
the whole property (lot and building) in each instance, and therefore the subsequent
increase in value should accrue to the conjugal partnership, and any depreciation should
be suffered by the partnership.
Article 1404, Civil Code, provides:
Las expensas utiles hechas en los beines peculiares de cualquiera de los conyuges
mediante anticipaciones de la sociedad o por la industria del marido o de la mujer, son
ganaciales.
Los seran tambien los edificios construidos durante el matrimonio en suelo propio de uno
de los conyuges abonandose el valor del suelo al conyuge a quien pertenezca.
Appellant's theory is untenable. The ownership of the land is retained by the wife until
she is paid the value of the lot, as a result of the liquidation of the conjugal partnership.

The mere construction of a building from common funds does not automatically convey
the ownership of the wife's land to the conjugal partnership. Such a mode of using the
land, namely, by erecting a building thereon, is simply an exercise of the right of usufruct
pertaining to the conjugal partnership over the wife's land. As Manresa says, "la sociedad
de gananciales es realmente la usufructuaria de los bienes privativos de cada conyuge."
(Comment on Art. 1408.) In consequence of this usufructuary right, the conjugal
partnership is not bound to pay any rent during the occupation of the wife's land because
if the lot were leased to a third person, instead of being occupied by the new construction
from partnership funds, the rent from the third person would belong to the conjugal
partnership. Therefore, before payment of the value of the land is made from the
common funds, inasmuch as the owner of the land is the wife, all the increase or
decrease in its value must be for her benefit or loss. And when may she demand
payment? Not until the liquidation of the conjugal partnership because up to that time, it
is neither necessary nor appropriate to transfer to the partnership the dominion over the
land, which is lawfully held in usufruct by the conjugal partnership during the marriage.
The foregoing finds support, by analogy, in Article 361, Civil Code, which reads:
Art. 361. El dueo del terreno en que se edificare, sembrare o plantare de buena fe,
tendra derecho a hacer suya la obra, siembra o plantacion, previa la indemnizacion
establecida en los arts. 453 y 454, o a obligar al que fabrico o planto a pagarle el precio
del terreno, y al que sembro, la renta correspondiente. (Emphasis supplied.)
In the instant case, no reimbursement for the value of the lots was made from the
common funds during the marriage.
Moreover, Sanchez Roman declares:
Los derechos de la muyer en la sociedad legal de gananciales se remiten todos a la
epoca de su disolucion y liquidacion, cuando se trata de la existencia normal de la
sociedad legal de gananciales. (Emphasis supplied.)
And Manresa states:
El valor fijado a los bienes debe ser el que realmente tengan el dia de la disolucion de la
sociedad, con las necesarias aclaraciones, para conocer lo que pueda tener caracter
propio o ganancial. (Emphasis supplied).
Furthermore, the wife should not be allowed to demand payment of the lot during the
marriage and before liquidation because this would unduly disturb the husband's
management of the conjugal partnership. The scheme of the Civil Code is that in the
interest of successful administration of the common property, the wife should not
interfere with the husband's way of directing the affairs of the partnership. Besides, such
premature requirement of the value making improvements, whereas article 1404, par. 2,
has for its purpose the encouragement of construction by the husband. (Manresa's
comment on Art. 1404.) On the other hand, if the payment for the lot is deferred till the
liquidation of the conjugal partnership, the initial outlay for the erection of the building
would be less, and consequently the construction would be facilitated.

3. The next question of law is whether the value of the paraphernal buildings which were
demolished to make possible the construction of new ones, at the expense of the
conjugal partnership, should be reimbursed to the wife. Such tearing down of buildings
was done with regard to the Arquiza, Juan Luna and Martin Ocampo properties. Appellant
maintains that it is doubtful if these buildings had any value at the time they were
destroyed, and that there is no evidence that the conjugal partnership realized any
benefit therefrom. However, we are certain these old buildings had some value, though
small, and it will be the duty of the commissioners mentioned in the judgment appealed
from, to assess that value. We entertain no manner of doubt that the conjugal
partnership derived a positive advantage from the demolition, which made it possible to
erect new constructions for the partnership. It is but just, therefore, that the value of the
old buildings at the time they were torn down should be paid to the wife. We dismiss, as
without any merit whatever, the appellant's contention that because article 1404, par. 2,
of the Civil Code does not provide for the reimbursement of the value of demolished
improvements, the wife should not be indemnified. Suffice it to mention the ancient
maxim of the Roman law, "Jure nature aequum est, meminem cum alterius detrimento et
injuria fieri locupletiorem" which was restated by the Partidas in these terms: "Ninguno
non deue enriquecerse tortizeramente con dano de otro." When the statutes are silent or
ambiguous, this is one of those fundamental principles which the courts invoke in order
to arrive at a solution that would respond to the vehement urge of conscience.
4. Then, there is the total amount of P7,000 borrowed by the husband from the wife, thus
itemized: (1) P3,000 lost in horse-races and in poker; (2) P3,000 spent for pastime
("diversion"); and (3) P1,000 to pay a personal debt of the husband. The trial court
applied article 1386 of the Civil Code, and ordered that said amount of P7,000 be
deducted from the husband's share. But appellant's theory is that articles 1408 (par. 1)
and 441 should govern, so that the amount is chargeable against the conjugal
partnership. These provisions read thus:
Art. 1408. Seran de cargo de la sociedad de gananciales:
1.o. Todas las deudas y obligaciones contraidas durantes el matrimonio por el marido, y
tabien las que contrajere la mujer en los casos en que pueda legalmente obligar a la
sociedad. . . .
Art. 1411. Lo perdido y pagado durante el matrimonio por alguno de los conyuges en
cualquier clase de juego, no disminuira su parte respectiva de los ganaciales. . . .
It is true that article 1385 ordains that the fruits of the paraphernal property form part of
the conjugal partnership and are subject to the payment of the charges against the
marriage. But as Manresa says, article 1386 contains a limitation on the first part (just
cited) of article 1385.
It is likewise true that under article 1408, par. 1, all debts and obligations contracted by
the husband during the marriage are chargeable against the conjugal partnership, but
article 1386 is an exception to the rule, and exempts the fruits of the paraphernal
property from the payment of the personal obligations of the husband, unless there is

proof that they redounded to the benefit of the family. It is self-evident that the amounts
in question did not benefit the family. Hence, they cannot be charged against the fruits of
the paraphernal property. They should be paid from the husband's funds. We quote from
Manresa's comment on article 1386:
No hay, desde luego, contradiccion entre los preceptos de los articulos 1408 y 1386; hay
solo una regla general contenida en aquel, y una excepcion contenida en este. El articulo
1386, como especial, modifica la regla, y ha de aplicarse siempre que las obligaciones
personales contraidas por el marido quieren hacerse efectivas en frutos o rentas de los
bienes parafernales de la mujer.
La frase 'obligaciones personales', se reduce a deudas u obligaciones contraidas
privativamente por el marido, deudas y obligaciones que son desde luego propiamente
personales o no reales, pues si se reclamase contra bienes o derecho especial y
legalmente efectos al cumplimiento de la obligacion, no podria haber inconveniente para
que esta se hiciese efectiva. Por lo demas, el espiritu del precepto es que el marido no
puede aprovecharse en interes proprio o para atenciones privativas o personales suyas,
de los frutos de los bienes parafernales; que estos se destinen a las verdaderas
necesidades y cargas de la sociedad conyugal, y, por tanto, se emplean, como deben, en
beneficio de la familia.
Valverde in his "Tratado de Derecho Civil Espaol," Vol. 4, pp. 347-348, says:
Consecuencia natural de esta especie de separacion de responsabilidades y de
patrimonios, es que el Codigo ordene que 'las obligaciones personales del marido no
podran hacerse efectivas sobre los frutos de los bienes parafernales, a menos que se
pruebe que redundaron en provecho de la familia'. En efecto, el marido, como
administrador de la sociedad legal, obliga a esta con sus actos, y por eso los gananciales
responden de las deudad y obligaciones contraidas por el marido durante el matrimonio,
presumiendose hechos en interes de la sociedad, a no ser que se pruebe lo contrario,
pero como caso de excepcion, si los gananciales son frutos de bienes parafernales,
entonces, para que respondan tales frutos de las obligaciones del marido, es preciso que
prueba este que las dichas obligaciones redundaron en provecho de la familia, pues por
el precepto del codigo, si los frutos de los parafernales son gananciales, cuando de las
deudad del marido se trata, solo son responsables esos frutos en el caso que se
demuestre que redundaron en provecho de aquella. (Emphasis supplied.)
Oyuelos, in his work, "Digesto: Principios, Doctrina y Jurisprudencia Referentes al Codigo
Civil Espaol" (Vol. 6, pp. 79-80), has this to say:
(c) Fundamento de la exencion de los frutos. El articulo 1386 es un complemento de
los articulos 1385, 1408, 1413, 1417, 1433 y 1434, y se inspira en los mismos principios
economicos de la familia, porque si los frutos de los parafernales forman parte de la
sociedad conyugal, que subsiste mientras no se disuelva el matrimonio o se decrete la
separacion de bienes, y si a cargo de la misma corre el sostenimiento de la familia, la
educacion de los hijos y las deudas que el marido contraiga como jefe de ella, es logico
concluir, sobre todo teniendo presente el articulo 1385, que aun prescindiendo del texto
claro y terminante del articulo 1386, las responsabilidades del marido en tanto puedan

hacerse efectivas con los productos de dichos bienes en cuanto se hubiesen contraido en
provecho de la familia; no existiendo contradiccion entre los articulos 1386 y 1408,
numero 1.0 (alegada en el concepto de que el articulo 1386 no puede aplicarse al caso
de subsistencia del matrimonio), por cuanto la esfera de actuacion del 1386 no se
contrae al estado de derecho consiguiente a la separacion de bienes de los respectivos
esposos.
Is the amount under consideration, P7,000, being enforced against the fruits of the
paraphernal property? Yes, because practically all of the conjugal partnership assets have
been derived from the fruits of the wife's exclusive property.
In the case of Fidelity and Surety Co. vs. Ansaldo, 37 Off. Gaz., 1164, (promulgated
November 26, 1938), this Court held:
Article 1386 of the Civil Code provides that the personal obligations of the husband may
not be paid out of the fruits of the paraphernal property, unless it be proved that such
obligations redounded to the benefit of the family. It, as contended by the appellant, the
properties levied upon in Civil Case No. 33923 of the Court of First Instance of Manila,
entitled "Fidelity & Surety Company of the Philippines Islands vs. Romarico Agcaoili and
Angel A. Ansaldo" were acquired with the fruits of the paraphernal properties belonging
to Margarita Quintos, said properties, although conjugal (art. 1385, par. 1 and art. 1408,
Civil Code; Mirasol vs. Lim, 59 Phil., 701, 709) are not liable for the personal obligations
of the husband, unless said obligations redounded to the benefit of the family. Paragraph
1 of article 1408 of the Civil Code makes all debts and obligations contracted during the
marriage by the husband chargeable against the conjugal partnership, as a general rule,
that is to say, although the fruits of the paraphernal property of the wife are conjugal,
they do not respond for the personal obligations of the latter unless said obligations have
redounded to the benefit of the family."
In the sentence of January 15, 1917, of the Supreme Tribunal of Spain, the following
doctrine is enunciated:
Considerando a mayor abundamiento que si bien en orden al regimen familiar y
conforme a la doctina legal establecida por el Tribunal Supremo, interpretando el art.
1385 del expresado Codigo, al marido incumbe exclusivamente la administracion de los
frutos de los bienes parafernales como parte del haber de la sociedad conyugal, esta
potsted esta condicionada y regulada por el 1386, al prohibir al esposo el
aprovechamiento de tales rendimientos en benficio propio o sea de sus obligaciones
personales, imponiendole por modo expreso, el deber de aplicarlos al levantamiento de
las cargas matrimoniales, pues de otra forma se desnaturalizaria la reserva y privilegio
que constituye el concepto del patrimonia parafernal, con riesgo de infringir la
disposicion legal que precede invocada. (Emphasis supplied.)
In the instant case, it is quite plain that if the amount of P7,000.00 under review should
be charged against the conjugal partnership property which came almost exclusively
from the fruits of the paraphernal property, the reservation and privilege established by
law on behalf of the paraphernal patrimony would be encroached upon and tempered
with.

There are just and sound reasons for article 1386. The wife contributes the fruits,
interests, and rents of her paraphernal property to help bear the expenses of the family.
When the husband contracts any debt in his own name, it is chargeable against the
conjugal partnership as a general rule (article 1408, par. 1) because it is presumed that
the debt is beneficial to the family. But when such a debt is enforced against the fruits of
the paraphernal property, such a presumption no longer applies, considering article
1386. On the contrary, it must be proved that the purpose for which the wife contributes
the fruits of her paraphernal property has been accomplished through such personal debt
of the husband.
Appellant relies on article 1411 which reads:
Lo perdido y pagado por alguno de los conyuges en juego licito, sera a cargo de la
sociedad de gananciales.
Lo perdido y no pagado por alguno de los conyuges en juego licito, sera a cargo de la
sociedad de ganaciales.
But this provision should be applied only when the debt is not being charged against the
fruits of the paraphernal property. If the conjugal partnership assets are derived almost
entirely, if not entirely, from the fruits of the paraphernal property, as in this case, it is
neither lawful nor equitable to apply article 1411 because by so doing, the fruits of the
paraphernal property would in reality be the only kind of property to bear the husband's
gambling losses. In other words, what the husband loses in gambling should be
shouldered by him and not by the conjugal partnership if the latter's assets come solely
from the fruits of the paraphernal property. This is but just, because gambling losses of
the husband cannot by any process of reasoning be considered beneficial to the family.
By the same token, to charge the gambling losses against the conjugal partnership in
such a situation would fly in the case of the stern prohibition of article 1386, which
protects the fruits of the paraphernal property precisely against expenses of the husband
that are of no help to the family.
We are satisfied that the foregoing is by and large a fair and rational interpretation of
articles 1408 and 1411, which must be read in the light of article 1386. If such a
qualification of articles 1408 and 1411 is not made, article 1386 becomes nugatory.
5. The next question is whether interest should be paid by the widow on the amount of
P9,229.48 withdrawn by her from the Monte de Piedad savings account No. 3317 of the
conjugal partnership. There is no question that the principal should be credited to the
partnership as the appellee's counsel does not dispute this point. The withdrawal of said
amount was made on April 7, 1934, about two months after the husband's death, and
while the widow was a special administratrix. There being no evidence in the record as to
the purpose for which this amount was used, although counsel for appellee suggests the
possibility that the same might have been disbursed for funeral and similar expenses, we
believe she should pay such interest, if any, as the Monte de Piedad would have paid on
the amount aforesaid, had not the same been withdrawn by the widow.

Wherefore, with the modification that the appellee shall pay such interest, if any, on
P9,229.48 as the Monte de Piedad would have paid if the amount had not been
withdrawn, the judgment appealed from should be and is hereby affirmed, with costs
against the appellant. So ordered.

G.R. No. L-5691

December 27, 1910

S. D. MARTINEZ and his wife, CARMEN ONG DE MARTINEZ, plaintiffs-appellees,

vs.
WILLIAM VAN BUSKIRK, defendant-appellant.
Lionel D. Hargis for appellant.
Sanz and Oppisso for appellee.

Upon these facts the court below found the defendant guilty of negligence and gave
judgment against him for P442.50, with interest thereon at the rate of 6 per cent per
annum from the 17th day of October, 1908, and for the costs of the action. The case is
before us on an appeal from that judgment.
There is no general law of negligence in the Philippine Islands except that embodied in
the Civil Code. The provisions of that code pertinent to this case are
Art. 1902.
A person who by an act or omission causes damage to another when
there is fault or negligence shall be obliged to repair the damage so done.

MORELAND, J.:
The facts found by the trial court are undisputed by either party in this case. They are

Art. 1903.
The obligation imposed by preceding article is demandable, not only for
personal acts and omissions, but also for those of the persons for whom they should be
responsible.

That on the 11th day of September, 1908, the plaintiff, Carmen Ong de Martinez, was
riding in a carromata on Calle Real, district of Ermita, city of Manila, P.I., along the lefthand side of the street as she was going, when a delivery wagon belonging to the
defendant used for the purpose of transportation of fodder by the defendant, and to
which was attached a pair of horses, came along the street in the opposite direction to
that the in which said plaintiff was proceeding, and that thereupon the driver of the said
plaintiff's carromata, observing that the delivery wagon of the defendant was coming at
great speed, crowded close to the sidewalk on the left-hand side of the street and
stopped, in order to give defendant's delivery wagon an opportunity to pass by, but that
instead of passing by the defendant's wagon and horses ran into the carromata occupied
by said plaintiff with her child and overturned it, severely wounding said plaintiff by
making a serious cut upon her head, and also injuring the carromata itself and the
harness upon the horse which was drawing it.

The father, and on his death or incapacity the mother, is liable for the damages caused
by the minors who live with them.

xxx

Finally, masters or directors of arts and trades are liable for the damages caused by their
pupils or apprentices while they are under their custody.

xxx

xxx

These facts are not dispute, but the defendant presented evidence to the effect that the
cochero, who was driving his delivery wagon at the time the accident occurred, was a
good servant and was considered a safe and reliable cochero; that the delivery wagon
had sent to deliver some forage at Paco Livery Stable on Calle Herran, and that for the
purpose of delivery thereof the cochero driving the team as defendant's employee tied
the driving lines of the horses to the front end of the delivery wagon and then went back
inside of the wagon for the purpose of unloading the forage to be delivered; that while
unloading the forage and in the act of carrying some of it out, another vehicle drove by,
the driver of which cracked a whip and made some other noises, which frightened the
horses attached to the delivery wagon and they ran away, and the driver was thrown
from the inside of the wagon out through the rear upon the ground and was unable to
stop the horses; that the horses then ran up and on which street they came into collision
with the carromata in which the plaintiff, Carmen Ong de Martinez, was riding.
The defendant himself was not with the vehicle on the day in question.

Guardians are liable for the damages caused by minors or incapacitated persons who are
under their authority and live with them.
Owners of directors of an establishment or enterprise are equally liable for the damages
caused by the employees in the service of the branches in which the latter may be
employed or on account of their duties.
The State is liable in this sense when it acts through a special agent, but not when the
damages should have been caused by the official to whom properly it pertained to do the
act performed, in which case the provisions of the preceding article shall be applicable.

The liability referred to in this article shall cease when the persons mentioned therein
prove that they employed all the diligence of a good father of a family to avoid the
damage.
Passing the question whether or not an employer who has furnished a gentle and
tractable team and a trusty and capable driver is, under the last paragraph of the above
provisions, liable for the negligence of such driver in handling the team, we are of the
opinion that the judgment must be reversed upon the ground that the evidence does not
disclose that the cochero was negligent.
While the law relating to negligence in this jurisdiction may possibly be some what
different from that in Anglo-Saxon countries, a question we do not now discuss, the rules
under which the fact of negligence is determined are, nevertheless, generally the same.
That is to say, while the law designating the person responsible for a negligent act may
not be the same here as in many jurisdictions, the law determining what is a negligent
act is the same here, generally speaking, as elsewhere. (Supreme court of Spain, 4

December, 1903; 16 May, 1893; 27 June, 1894; 9 April, 1896; 14 March, 1901; 2 March,
1904; 7 February, 1905; 16 June, 1905; 23 June, 1905; 13 April, 1903; 7 March, 1902; 12
June, 1900; 2 March, 1907; 18 March, 1898; 3 June, 1901.)
It appears from the undisputed evidence that the horses which caused the damage were
gentle and tractable; that the cochero was experienced and capable; that he had driven
one of the horses several years and the other five or six months; that he had been in the
habit, during all that time, of leaving them in the condition in which they were left on the
day of the accident; that they had never run away up to that time and there had been,
therefore, no accident due to such practice; that to leave the horses and assist in
unloading the merchandise in the manner described on the day of the accident was the
custom of all cochero who delivered merchandise of the character of that which was
being delivered by the cochero of the defendant on the day in question, which custom
was sanctioned by their employers.
In our judgment, the cochero of the defendant was not negligent in leaving the horses in
the manner described by the evidence in this case, either under Spanish or American
jurisprudence. (Lynch vs. Nurdin, 1 Q. B., 422; Rumsey vs. Nelson, 58 Vt., 590; Drake vs.
Mount, 33 N. J. L., 442; Hoboken Land and Improvement Co. vs. Lally, 48 N. J. L., 604;
Wasmer vs. D. L. & W. R. R. Co., 80 N. Y., 212.) lawphi1.net
In the case of Hayman vs. Hewitt (Peake N. P. Cas., pt. 2, p. 170), Lord Kenyon said:
He was performing his duty while removing the goods into the house, and, if every
person who suffered a cart to remain in the street while he took goods out of it was
obliged to employ another to look after the horses, it would be impossible for the
business of the metropolis to go on.
In the case of Griggs vs. Fleckenstein (14 Minn., 81), the court said:
The degree of care required of the plaintiff, or those in charged of his horse, at the time
of the injury, is that which would be exercised by a person of ordinary care and prudence
under like circumstances. It can not be said that the fact of leaving the horse unhitched is
in itself negligence. Whether it is negligence to leave a horse unhitched must be depend
upon the disposition of the horse; whether he was under the observation and control of
some person all the time, and many other circumstances; and is a question to be
determined by the jury from the facts of each case.
In the case of Belles vs. Kellner (67 N. J. L., 255), it was held that it was error on the part
of the trial court to refuse to charge that "it is not negligence for the driver of a quite,
gentle horse to leave him unhitched and otherwise unattended on the side of a public
highways while the driver is upon the sidewalk loading goods on the wagon." The said
court closed its opinion with these words:
There was evidence which could have fully justified the jury in finding that the horse was
quite and gentle, and that the driver was upon the sidewalk loading goods on the wagon,
at time of the alleged injury, and that the horse had been used for years in that way
without accident. The refusal of the trial court to charge as requested left the jury free to

find was verdict against the defendant, although the jury was convinced that these facts
were proven.lawphil.net
In the case of Southworth vs. Ry. Co. (105 Mass., 342), it was held:
That evidence that a servant, whom traders employed to deliver goods, upon stopping
with his horse and wagon to deliver a parcel at a house from fifty to a hundred rods from
a railroad crossing, left the horse unfastened for four or five minutes while he was in the
house, knowing that it was not afraid of cars, and having used it for three or four months
without ever hitching it or knowing it to start, is not conclusive, as a matter of law, of a
want of due care on his part.
The duty, a violation of which is claimed to be negligence in the respect in question, is to
exercise reasonable care and prudence. Where reasonable care is employed in doing an
act not itself illegal or inherently likely to produce damage to others, there will be no
liability, although damage in fact ensues. (Milwaukee Ry. Co. vs. Arms, 91 U. S., 489;
Parrott vs. Wells, 15 Wall., 524; Brown vs. Kendall, 6 Cushing, 292; Jackson Architectural
Iron Works vs. Hurlbut, 158 N. Y., 34 Westerfield vs. Levis, 43 La. An., 63; Niosi vs. Empire
Steam Laundry, 117 Cal., 257.)
The act of defendant's driver in leaving the horses in the manner proved was not
unreasonable or imprudent. Acts the performance of which has not proved destructive or
injurious and which have, therefore, been acquiesced in by society for so long a time that
they have ripened into custom, can not be held to be themselves unreasonable or
imprudent. Indeed the very reason why they have been permitted by society is that they
beneficial rather than prejudicial.itc-alf Accidents sometimes happen and injuries result
from the most ordinary acts of life. But such are not their natural or customary results. To
hold that, because such an act once resulted in accident or injury, the actor is necessarily
negligent, is to go far. The fact that the doctrine of res ipsa loquitur is sometimes
successfully invoked in such a case, does not in any sense militate against the reasoning
presented. That maxim at most only creates a prima facie case, and that only in the
absence of proof of the circumstances under which the act complained of was performed.
It is something invoked in favor of the plaintiff before defendant's case showing the
conditions and circumstances under which the injury occurred, the creative reason for the
doctrine of res ipsa loquitur disappears. This is demonstrated by the case of Inland and
Seaboard Costing Co. vs. Tolson (139 U.S., 551), where the court said (p. 554):
. . . The whole effect of the instruction in question, as applied to the case before the jury,
was that if the steamboat, on a calm day and in smooth water, was thrown with such
force against a wharf properly built, as to tear up some of the planks of the flooring, this
would be prima facie evidence of negligence on the part of the defendant's agent in
making the landing, unless upon the whole evidence in the case this prima facie
evidence was rebutted. As such damage to a wharf is not ordinarily done by a steamboat
under control of her officers and carefully managed by them, evidence that such damage
was done in this case was prima facie, and, if unexplained, sufficient evidence of
negligence on their part, and the jury might properly be so instructed.

There was presented in this case, and by the plaintiffs themselves, not only the fact of
the runway and the accident resulting therefrom, but also the conditions under which the
runaway occurred. Those conditions showing of themselves that the defendant's cochero
was not negligent in the management of the horse, the prima facie case in plaintiffs'
favor, if any, was destroyed as soon as made.
It is a matter of common knowledge as well as proof that it is the universal practice of
merchants to deliver merchandise of the kind of that being delivered at the time of the
injury, in the manner in which that was then being delivered; and that it is the universal
practice to leave the horses in the manner in which they were left at the time of the
accident. This is the custom in all cities. It has not been productive of accidents or
injuries. The public, finding itself unprejudiced by such practice, has acquiesced for years
without objection. Ought the public now, through the courts, without prior objection or
notice, to be permitted to reverse the practice of decades and thereby make culpable
and guilty one who had every reason and assurance to believe that he was acting under
the sanction of the strongest of all civil forces, the custom of a people? We think not.
The judgement is reversed, without special finding as to costs. So ordered.

G.R. No. L-55960 November 24, 1988

YAO KEE, SZE SOOK WAH, SZE LAI CHO, and SY CHUN YEN, petitioners,
vs.
AIDA SY-GONZALES, MANUEL SY, TERESITA SY-BERNABE, RODOLFO SY, and HONORABLE
COURT OF APPEALS, respondents.
Montesa, Albon, & Associates for petitioners.
De Lapa, Salonga, Fulgencio & De Lunas for respondents.

CORTES, J.:
Sy Kiat, a Chinese national. died on January 17, 1977 in Caloocan City where he was then
residing, leaving behind real and personal properties here in the Philippines worth
P300,000.00 more or less.
Thereafter, Aida Sy-Gonzales, Manuel Sy, Teresita Sy-Bernabe and Rodolfo Sy filed a
petition for the grant of letters of administration docketed as Special Proceedings Case
No. C-699 of the then Court of First Instance of Rizal Branch XXXIII, Caloocan City. In said
petition they alleged among others that (a) they are the children of the deceased with
Asuncion Gillego; (b) to their knowledge Sy Mat died intestate; (c) they do not recognize
Sy Kiat's marriage to Yao Kee nor the filiation of her children to him; and, (d) they
nominate Aida Sy-Gonzales for appointment as administratrix of the intestate estate of
the deceased [Record on Appeal, pp. 4-9; Rollo, p. 107.]
The petition was opposed by Yao Kee, Sze Sook Wah, Sze Lai Cho and Sy Yun Chen who
alleged that: (a) Yao Kee is the lawful wife of Sy Kiat whom he married on January 19,
1931 in China; (b) the other oppositors are the legitimate children of the deceased with
Yao Kee; and, (c) Sze Sook Wah is the eldest among them and is competent, willing and
desirous to become the administratrix of the estate of Sy Kiat [Record on Appeal, pp. 1213; Rollo, p. 107.] After hearing, the probate court, finding among others that:
(1)

Sy Kiat was legally married to Yao Kee [CFI decision, pp. 12-27; Rollo, pp. 49-64;]

(2)
Sze Sook Wah, Sze Lai Cho and Sze Chun Yen are the legitimate children of Yao
Kee with Sy Mat [CFI decision, pp. 28-31; Rollo. pp. 65-68;] and,
(3)
Aida Sy-Gonzales, Manuel Sy, Teresita Sy-Bernabe and Rodolfo Sy are the
acknowledged illegitimate offsprings of Sy Kiat with Asuncion Gillego [CFI decision, pp.
27-28; Rollo, pp. 64- 65.]
held if favor of the oppositors (petitioners herein) and appointed Sze Sook Wah as the
administratrix of the intestate estate of the deceased [CFI decision, pp. 68-69; Rollo, pp.
105-106.]

On appeal the Court of Appeals rendered a decision modifying that of the probate court,
the dispositive portion of which reads:
IN VIEW OF THE FOREGOING, the decision of the lower Court is hereby MODIFIED and SET
ASIDE and a new judgment rendered as follows:
(1)
Declaring petitioners Aida Sy-Gonzales, Manuel Sy, Teresita Sy- Bernabe and
Rodolfo Sy acknowledged natural children of the deceased Sy Kiat with Asuncion Gillego,
an unmarried woman with whom he lived as husband and wife without benefit of
marriage for many years:
(2)
Declaring oppositors Sze Sook Wah, Sze Lai Chu and Sze Chun Yen, the
acknowledged natural children of the deceased Sy Kiat with his Chinese wife Yao Kee,
also known as Yui Yip, since the legality of the alleged marriage of Sy Mat to Yao Kee in
China had not been proven to be valid to the laws of the Chinese People's Republic of
China (sic);
(3)
Declaring the deed of sale executed by Sy Kiat on December 7, 1976 in favor of
Tomas Sy (Exhibit "G-1", English translation of Exhibit "G") of the Avenue Tractor and
Diesel Parts Supply to be valid and accordingly, said property should be excluded from
the estate of the deceased Sy Kiat; and
(4)
Affirming the appointment by the lower court of Sze Sook Wah as judicial
administratrix of the estate of the deceased. [CA decision, pp. 11-12; Rollo, pp. 36- 37.]
From said decision both parties moved for partial reconsideration, which was however
denied by respondent court. They thus interposed their respective appeals to this Court.
Private respondents filed a petition with this Court docketed as G.R. No. 56045 entitled
"Aida Sy-Gonzales, Manuel Sy, Teresita Sy-Bernabe and Rodolfo Sy v. Court of Appeals,
Yao Kee, Sze Sook Wah, Sze Lai Cho and Sy Chun Yen" questioning paragraphs (3) and (4)
of the dispositive portion of the Court of Appeals' decision. The Supreme Court however
resolved to deny the petition and the motion for reconsideration. Thus on March 8, 1982
entry of judgment was made in G.R. No. 56045. **
The instant petition, on the other hand, questions paragraphs (1) and (2) of the
dispositive portion of the decision of the Court of Appeals. This petition was initially
denied by the Supreme Court on June 22, 1981. Upon motion of the petitioners the Court
in a resolution dated September 16, 1981 reconsidered the denial and decided to give
due course to this petition. Herein petitioners assign the following as errors:
I.
RESPONDENT COURT OF APPEALS SERIOUSLY ERRED IN DECLARING THE
MARRIAGE OF SY KIAT TO YAO YEE AS NOT HAVE (sic) BEEN PROVEN VALID IN
ACCORDANCE WITH LAWS OF THE PEOPLE'S REPUBLIC OF CHINA.

II.
RESPONDENT COURT OF APPEALS GRAVELY ERRED IN DECLARING AIDA SYGONZALES, MANUEL SY, TERESITA SY-BERNABE AND RODOLFO SY AS NATURAL CHILDREN
OF SY KIAT WITH ASUNCION GILLEGO. [Petition, p. 2; Rollo, p. 6.]
I.
Petitioners argue that the marriage of Sy Kiat to Yao Kee in accordance with
Chinese law and custom was conclusively proven. To buttress this argument they rely on
the following testimonial and documentary evidence.
First, the testimony of Yao Kee summarized by the trial court as follows:
Yao Kee testified that she was married to Sy Kiat on January 19, 1931 in Fookien, China;
that she does not have a marriage certificate because the practice during that time was
for elders to agree upon the betrothal of their children, and in her case, her elder brother
was the one who contracted or entered into [an] agreement with the parents of her
husband; that the agreement was that she and Sy Mat would be married, the wedding
date was set, and invitations were sent out; that the said agreement was complied with;
that she has five children with Sy Kiat, but two of them died; that those who are alive are
Sze Sook Wah, Sze Lai Cho, and Sze Chun Yen, the eldest being Sze Sook Wah who is
already 38 years old; that Sze Sook Wah was born on November 7, 1939; that she and
her husband, Sy Mat, have been living in FooKien, China before he went to the Philippines
on several occasions; that the practice during the time of her marriage was a written
document [is exchanged] just between the parents of the bride and the parents of the
groom, or any elder for that matter; that in China, the custom is that there is a gobetween, a sort of marriage broker who is known to both parties who would talk to the
parents of the bride-to-be; that if the parents of the bride-to-be agree to have the groomto-be their son in-law, then they agree on a date as an engagement day; that on
engagement day, the parents of the groom would bring some pieces of jewelry to the
parents of the bride-to-be, and then one month after that, a date would be set for the
wedding, which in her case, the wedding date to Sy Kiat was set on January 19, 1931;
that during the wedding the bridegroom brings with him a couch (sic) where the bride
would ride and on that same day, the parents of the bride would give the dowry for her
daughter and then the document would be signed by the parties but there is no
solemnizing officer as is known in the Philippines; that during the wedding day, the
document is signed only by the parents of the bridegroom as well as by the parents of
the bride; that the parties themselves do not sign the document; that the bride would
then be placed in a carriage where she would be brought to the town of the bridegroom
and before departure the bride would be covered with a sort of a veil; that upon reaching
the town of the bridegroom, the bridegroom takes away the veil; that during her wedding
to Sy Kiat (according to said Chinese custom), there were many persons present; that
after Sy Kiat opened the door of the carriage, two old ladies helped her go down the
carriage and brought her inside the house of Sy Mat; that during her wedding, Sy Chick,
the eldest brother of Sy Kiat, signed the document with her mother; that as to the
whereabouts of that document, she and Sy Mat were married for 46 years already and
the document was left in China and she doubt if that document can still be found now;
that it was left in the possession of Sy Kiat's family; that right now, she does not know the
whereabouts of that document because of the lapse of many years and because they left
it in a certain place and it was already eaten by the termites; that after her wedding with
Sy Kiat, they lived immediately together as husband and wife, and from then on, they

lived together; that Sy Kiat went to the Philippines sometime in March or April in the
same year they were married; that she went to the Philippines in 1970, and then came
back to China; that again she went back to the Philippines and lived with Sy Mat as
husband and wife; that she begot her children with Sy Kiat during the several trips by Sy
Kiat made back to China. [CFI decision, pp. 13-15; Rollo, pp. 50-52.]
Second, the testimony of Gan Ching, a younger brother of Yao Kee who stated that he
was among the many people who attended the wedding of his sister with Sy Kiat and that
no marriage certificate is issued by the Chinese government, a document signed by the
parents or elders of the parties being sufficient [CFI decision, pp. 15-16; Rollo, pp.
52-53.]
Third, the statements made by Asuncion Gillego when she testified before the trial court
to the effect that (a) Sy Mat was married to Yao Kee according to Chinese custom; and,
(b) Sy Kiat's admission to her that he has a Chinese wife whom he married according to
Chinese custom [CFI decision, p. 17; Rollo, p. 54.]
Fourth, Sy Kiat's Master Card of Registered Alien issued in Caloocan City on October 3,
1972 where the following entries are found: "Marital statusMarried"; "If married give
name of spousesYao Kee"; "Address-China; "Date of marriage1931"; and "Place of
marriageChina" [Exhibit "SS-1".]
Fifth, Sy Kiat's Alien Certificate of Registration issued in Manila on January 12, 1968 where
the following entries are likewise found: "Civil statusMarried"; and, 'If married, state
name and address of spouseYao Kee Chingkang, China" [Exhibit "4".]
And lastly, the certification issued in Manila on October 28, 1977 by the Embassy of the
People's Republic of China to the effect that "according to the information available at the
Embassy Mr. Sy Kiat a Chinese national and Mrs. Yao Kee alias Yui Yip also Chinese were
married on January 19, 1931 in Fukien, the People's Republic of China" [Exhibit "5".]
These evidence may very well prove the fact of marriage between Yao Kee and Sy Kiat.
However, the same do not suffice to establish the validity of said marriage in accordance
with Chinese law or custom.
Custom is defined as "a rule of conduct formed by repetition of acts, uniformly observed
(practiced) as a social rule, legally binding and obligatory" [In the Matter of the Petition
for Authority to Continue Use of the Firm Name "Ozaeta, Romulo, de Leon, Mabanta and
Reyes", July 30, 1979, SCRA 3, 12 citing JBL Reyes & RC Puno, Outline of Phil. Civil Law,
Fourth Ed., Vol. 1, p. 7.] The law requires that "a custom must be proved as a fact,
according to the rules of evidence" [Article 12, Civil Code.] On this score the Court had
occasion to state that "a local custom as a source of right can not be considered by a
court of justice unless such custom is properly established by competent evidence like
any other fact" [Patriarca v. Orate, 7 Phil. 390, 395 (1907).] The same evidence, if not
one of a higher degree, should be required of a foreign custom.
The law on foreign marriages is provided by Article 71 of the Civil Code which states that:

Art. 71. All marriages performed outside the Philippines in accordance with the laws in
force in the country where they were performed and valid there as such, shall also be
valid in this country, except bigamous, Polygamous, or incestuous marriages, as
determined by Philippine law. (Emphasis supplied.) ***

This contention is erroneous. Well-established in this jurisdiction is the principle that

Philippine courts cannot take judicial notice of foreign laws. They must be alleged and
proved as any other fact [Yam Ka Lim v. Collector of Customs, 30 Phil. 46, 48 (1915);
Fluemer v. Hix, 54 Phil. 610 (1930).]

Construing this provision of law the Court has held that to establish a valid foreign
marriage two things must be proven, namely: (1) the existence of the foreign law as a
question of fact; and (2) the alleged foreign marriage by convincing evidence [Adong v.
Cheong Seng Gee, 43 Phil. 43, 49 (1922).]

Moreover a reading of said case would show that the party alleging the foreign marriage
presented a witness, one Li Ung Bieng, to prove that matrimonial letters mutually
exchanged by the contracting parties constitute the essential requisite for a marriage to
be considered duly solemnized in China. Based on his testimony, which as found by the
Court is uniformly corroborated by authors on the subject of Chinese marriage, what was
left to be decided was the issue of whether or not the fact of marriage in accordance with
Chinese law was duly proven [Sy Joc Lieng v. Sy Quia, supra., at p. 160.]

In proving a foreign law the procedure is provided in the Rules of Court. With respect to
an unwritten foreign law, Rule 130 section 45 states that:
SEC. 45. Unwritten law.The oral testimony of witnesses, skilled therein, is admissible as
evidence of the unwritten law of a foreign country, as are also printed and published
books of reports of decisions of the courts of the foreign country, if proved to be
commonly admitted in such courts.
Proof of a written foreign law, on the other hand, is provided for under Rule 132 section
25, thus:
SEC. 25. Proof of public or official record.An official record or an entry therein, when
admissible for any purpose, may be evidenced by an official publication thereof or by a
copy attested by the officer having the legal custody of the record, or by his deputy, and
accompanied, if the record is not kept in the Philippines, with a certificate that such
officer has the custody. If the office in which the record is kept is in a foreign country, the
certificate may be made by a secretary of embassy or legation, consul general, consul,
vice consul, or consular agent or by any officer in the foreign service of the Philippines
stationed in the foreign country in which the record is kept and authenticated by the seal
of his office.
The Court has interpreted section 25 to include competent evidence like the testimony of
a witness to prove the existence of a written foreign law [Collector of Internal Revenue v.
Fisher 110 Phil. 686, 700-701 (1961) citing Willamette Iron and Steel Works v. Muzzal, 61
Phil. 471 (1935).]
In the case at bar petitioners did not present any competent evidence relative to the law
and custom of China on marriage. The testimonies of Yao and Gan Ching cannot be
considered as proof of China's law or custom on marriage not only because they are
self-serving evidence, but more importantly, there is no showing that they are competent
to testify on the subject matter. For failure to prove the foreign law or custom, and
consequently, the validity of the marriage in accordance with said law or custom, the
marriage between Yao Kee and Sy Kiat cannot be recognized in this jurisdiction.
Petitioners contend that contrary to the Court of Appeals' ruling they are not duty bound
to prove the Chinese law on marriage as judicial notice thereof had been taken by this
Court in the case of Sy Joc Lieng v. Sy Quia [16 Phil. 137 (1910).]

Further, even assuming for the sake of argument that the Court has indeed taken judicial
notice of the law of China on marriage in the aforecited case, petitioners however have
not shown any proof that the Chinese law or custom obtaining at the time the Sy Joc
Lieng marriage was celebrated in 1847 was still the law when the alleged marriage of Sy
Kiat to Yao Kee took place in 1931 or eighty-four (84) years later.
Petitioners moreover cite the case of U.S. v. Memoracion [34 Phil. 633 (1916)] as being
applicable to the instant case. They aver that the judicial pronouncement in the
Memoracion case, that the testimony of one of the contracting parties is competent
evidence to show the fact of marriage, holds true in this case.
The Memoracion case however is not applicable to the case at bar as said case did not
concern a foreign marriage and the issue posed was whether or not the oral testimony of
a spouse is competent evidence to prove the fact of marriage in a complaint for adultery.
Accordingly, in the absence of proof of the Chinese law on marriage, it should be
presumed that it is the same as ours *** [Wong Woo Yiu v. Vivo, G.R. No. L-21076, March
31, 1965, 13 SCRA 552, 555.] Since Yao Kee admitted in her testimony that there was no
solemnizing officer as is known here in the Philippines [See Article 56, Civil Code] when
her alleged marriage to Sy Mat was celebrated [CFI decision, p. 14; Rollo, p. 51], it
therefore follows that her marriage to Sy Kiat, even if true, cannot be recognized in this
jurisdiction [Wong Woo Yiu v. Vivo, supra., pp. 555-556.]
II.
The second issue raised by petitioners concerns the status of private
respondents.
Respondent court found the following evidence of petitioners' filiation:
(1)
Sy Kiat's Master Card of Registered Alien where the following are entered:
"Children if any: give number of childrenFour"; and, "NameAll living in China" [Exhibit
"SS-1";]
(2)
the testimony of their mother Yao Kee who stated that she had five children with
Sy Kiat, only three of whom are alive namely, Sze Sook Wah, Sze Lai Chu and Sze Chin
Yan [TSN, December 12, 1977, pp. 9-11;] and,

(3)
an affidavit executed on March 22,1961 by Sy Kiat for presentation to the Local
Civil Registrar of Manila to support Sze Sook Wah's application for a marriage license,
wherein Sy Kiat expressly stated that she is his daughter [Exhibit "3".]
Likewise on the record is the testimony of Asuncion Gillego that Sy Kiat told her he has
three daughters with his Chinese wife, two of whomSook Wah and Sze Kai Choshe
knows, and one adopted son [TSN, December 6,1977, pp. 87-88.]

(5)
With respect to the acquisition, during the existence of the
common-law husband-and-wife relationship between the parties, of the real estates and
properties registered and/or appearing in the name of Asuncion Gillego ... , the parties
mutually agree and covenant that the said real estates and properties shall be
transferred in equal shares to their children, namely, Aida Sy, Manuel Sy, Teresita Sy, and
Rodolfo Sy, but to be administered by Asuncion Gillego during her lifetime ... [Exhibit
"D".] (Emphasis supplied.)

However, as petitioners failed to establish the marriage of Yao Kee with Sy Mat according
to the laws of China, they cannot be accorded the status of legitimate children but only
that of acknowledged natural children. Petitioners are natural children, it appearing that
at the time of their conception Yao Kee and Sy Kiat were not disqualified by any
impediment to marry one another [See Art. 269, Civil Code.] And they are acknowledged
children of the deceased because of Sy Kiat's recognition of Sze Sook Wah [Exhibit "3"]
and its extension to Sze Lai Cho and Sy Chun Yen who are her sisters of the full blood
[See Art. 271, Civil Code.]

xxx

Private respondents on the other hand are also the deceased's acknowledged natural
children with Asuncion Gillego, a Filipina with whom he lived for twenty-five (25) years
without the benefit of marriage. They have in their favor their father's acknowledgment,
evidenced by a compromise agreement entered into by and between their parents and
approved by the Court of First Instance on February 12, 1974 wherein Sy Kiat not only
acknowleged them as his children by Asuncion Gillego but likewise made provisions for
their support and future inheritance, thus:

Specifically, petitioners rely on the following provision of Republic Act No. 5502, entitled
"An Act Revising Rep. Act No. 3278, otherwise known as the Charter of the City of
Caloocan', with regard to the Juvenile and Domestic Relations Court:

xxx

The provisions of the Judiciary Act to the contrary notwithstanding, the court shall have
exclusive original jurisdiction to hear and decide the following cases:

xxx

xxx

2.
The parties also acknowledge that they are common-law husband and wife and
that out of such relationship, which they have likewise decided to definitely and finally
terminate effective immediately, they begot five children, namely: Aida Sy, born on May
30, 1950; Manuel Sy, born on July 1, 1953; Teresita Sy, born on January 28, 1955; Ricardo
Sy now deceased, born on December 14, 1956; and Rodolfo Sy, born on May 7, 1958.

xxx

xxx

This compromise agreement constitutes a statement before a court of record by which a

child may be voluntarily acknowledged [See Art. 278, Civil Code.]
Petitioners further argue that the questions on the validity of Sy Mat's marriage to Yao
Kee and the paternity and filiation of the parties should have been ventilated in the
Juvenile and Domestic Relations Court.

SEC. 91-A.

Creation and Jurisdiction of the Court.

xxx

xxx

xxx

xxx

xxx

xxx

(2)
Cases involving custody, guardianship, adoption, revocation of adoption,
paternity and acknowledgment;

3.
With respect to the AVENUE TRACTOR AND DIESEL PARTS SUPPLY ... , the parties
mutually agree and covenant that

(3)
Annulment of marriages, relief from marital obligations, legal separation of
spouses, and actions for support;

(a)
The stocks and merchandize and the furniture and equipments ..., shall be
divided into two equal shares between, and distributed to, Sy Kiat who shall own
one-half of the total and the other half to Asuncion Gillego who shall transfer the same to
their children, namely, Aida Sy, Manuel Sy, Teresita Sy, and Rodolfo Sy.

(4)
Proceedings brought under the provisions of title six and title seven, chapters
one to three of the civil code;

(b)
the business name and premises ... shall be retained by Sy Kiat. However, it
shall be his obligation to give to the aforenamed children an amount of One Thousand
Pesos ( Pl,000.00 ) monthly out of the rental of the two doors of the same building now
occupied by Everett Construction.

and the ruling in the case of Bartolome v. Bartolome [G.R. No. L-23661, 21 SCRA 1324]
reiterated in Divinagracia v. Rovira [G.R. No. L-42615, 72 SCRA 307.]

xxx

xxx

xxx

xxx

xxx

xxx

With the enactment of Batas Pambansa Blg. 129, otherwise known as the Judiciary
Reorganization Act of 1980, the Juvenile and Domestic Relations Courts were abolished.
Their functions and jurisdiction are now vested with the Regional Trial Courts [See Section

19 (7), B.P. Blg. 129 and Divinagracia v. Belosillo, G.R. No. L-47407, August 12, 1986, 143
SCRA 356, 360] hence it is no longer necessary to pass upon the issue of jurisdiction
raised by petitioners.
Moreover, even without the exactment of Batas Pambansa Blg. 129 we find in Rep. Act
No. 5502 sec. 91-A last paragraph that:
xxx

xxx

xxx

If any question involving any of the above matters should arise as an incident in any case
pending in the ordinary court, said incident shall be determined in the main case.
xxx

xxx

xxx

As held in the case of Divinagracia v. Rovira [G.R. No. L42615. August 10, 1976, 72 SCRA
307]:
xxx

xxx

xxx

It is true that under the aforequoted section 1 of Republic Act No. 4834 **** a case
involving paternity and acknowledgment may be ventilated as an incident in the
intestate or testate proceeding (See Baluyot vs. Ines Luciano, L-42215, July 13, 1976).
But that legal provision presupposes that such an administration proceeding is pending
or existing and has not been terminated. [at pp. 313-314.] (Emphasis supplied.)
xxx

xxx

xxx

The reason for ths rule is not only "to obviate the rendition of conflicting rulings on the
same issue by the Court of First Instance and the Juvenile and Domestic Relations Court"
[Vda. de Baluyut v. Luciano, G.R. No. L-42215, July 13, 1976, 72 SCRA 52, 63] but more
importantly to prevent multiplicity of suits. Accordingly, this Court finds no reversible
error committed by respondent court.
WHEREFORE, the decision of the Court of Appeals is hereby AFFIRMED.
SO ORDERED.

uly 30, 1979

PETITION FOR AUTHORITY TO CONTINUE USE OF THE FIRM NAME "SYCIP, SALAZAR,
FELICIANO, HERNANDEZ & CASTILLO." LUCIANO E. SALAZAR, FLORENTINO P. FELICIANO,
BENILDO G. HERNANDEZ. GREGORIO R. CASTILLO. ALBERTO P. SAN JUAN, JUAN C. REYES.
JR., ANDRES G. GATMAITAN, JUSTINO H. CACANINDIN, NOEL A. LAMAN, ETHELWOLDO E.
FERNANDEZ, ANGELITO C. IMPERIO, EDUARDO R. CENIZA, TRISTAN A. CATINDIG,
ANCHETA K. TAN, and ALICE V. PESIGAN, petitioners.
IN THE MATTER OF THE PETITION FOR AUTHORITY TO CONTINUE USE OF THE FIRM NAME
"OZAETA, ROMULO, DE LEON, MABANTA & REYES." RICARDO J. ROMULO, BENJAMIN M. DE
LEON, ROMAN MABANTA, JR., JOSE MA, REYES, JESUS S. J. SAYOC, EDUARDO DE LOS
ANGELES, and JOSE F. BUENAVENTURA, petitioners.
RESOLUTION
MELENCIO-HERRERA, J.:+.wph!1
Two separate Petitions were filed before this Court 1) by the surviving partners of Atty.
Alexander Sycip, who died on May 5, 1975, and 2) by the surviving partners of Atty.
Herminio Ozaeta, who died on February 14, 1976, praying that they be allowed to
continue using, in the names of their firms, the names of partners who had passed away.
In the Court's Resolution of September 2, 1976, both Petitions were ordered consolidated.
Petitioners base their petitions on the following arguments:
1.
Under the law, a partnership is not prohibited from continuing its business under
a firm name which includes the name of a deceased partner; in fact, Article 1840 of the
Civil Code explicitly sanctions the practice when it provides in the last paragraph that:
t.hqw
The use by the person or partnership continuing the business of the partnership name, or
the name of a deceased partner as part thereof, shall not of itself make the individual
property of the deceased partner liable for any debts contracted by such person or
partnership. 1
2.
In regulating other professions, such as accountancy and engineering, the
legislature has authorized the adoption of firm names without any restriction as to the
use, in such firm name, of the name of a deceased partner; 2 the legislative authorization
given to those engaged in the practice of accountancy a profession requiring the same
degree of trust and confidence in respect of clients as that implicit in the relationship of
attorney and client to acquire and use a trade name, strongly indicates that there is no
fundamental policy that is offended by the continued use by a firm of professionals of a
firm name which includes the name of a deceased partner, at least where such firm
name has acquired the characteristics of a "trade name." 3
3.
The Canons of Professional Ethics are not transgressed by the continued use of
the name of a deceased partner in the firm name of a law partnership because Canon 33

of the Canons of Professional Ethics adopted by the American Bar Association declares
that: t.hqw
... The continued use of the name of a deceased or former partner when permissible by
local custom, is not unethical but care should be taken that no imposition or deception is
practiced through this use. ... 4
4.
There is no possibility of imposition or deception because the deaths of their
respective deceased partners were well-publicized in all newspapers of general
circulation for several days; the stationeries now being used by them carry new
letterheads indicating the years when their respective deceased partners were connected
with the firm; petitioners will notify all leading national and international law directories
of the fact of their respective deceased partners' deaths. 5
5.
No local custom prohibits the continued use of a deceased partner's name in a
professional firm's name; 6 there is no custom or usage in the Philippines, or at least in
the Greater Manila Area, which recognizes that the name of a law firm necessarily
Identifies the individual members of the firm. 7
6.
The continued use of a deceased partner's name in the firm name of law
partnerships has been consistently allowed by U.S. Courts and is an accepted practice in
the legal profession of most countries in the world. 8
The question involved in these Petitions first came under consideration by this Court in
1953 when a law firm in Cebu (the Deen case) continued its practice of including in its
firm name that of a deceased partner, C.D. Johnston. The matter was resolved with this
Court advising the firm to desist from including in their firm designation the name of C. D.
Johnston, who has long been dead."
The same issue was raised before this Court in 1958 as an incident in G. R. No. L-11964,
entitled Register of Deeds of Manila vs. China Banking Corporation. The law firm of
Perkins & Ponce Enrile moved to intervene as amicus curiae. Before acting thereon, the
Court, in a Resolution of April 15, 1957, stated that it "would like to be informed why the
name of Perkins is still being used although Atty. E. A. Perkins is already dead." In a
Manifestation dated May 21, 1957, the law firm of Perkins and Ponce Enrile, raising
substantially the same arguments as those now being raised by petitioners, prayed that
the continued use of the firm name "Perkins & Ponce Enrile" be held proper.
On June 16, 1958, this Court resolved: t.hqw
After carefully considering the reasons given by Attorneys Alfonso Ponce Enrile and
Associates for their continued use of the name of the deceased E. G. Perkins, the Court
found no reason to depart from the policy it adopted in June 1953 when it required
Attorneys Alfred P. Deen and Eddy A. Deen of Cebu City to desist from including in their
firm designation, the name of C. D. Johnston, deceased. The Court believes that, in view
of the personal and confidential nature of the relations between attorney and client, and
the high standards demanded in the canons of professional ethics, no practice should be

allowed which even in a remote degree could give rise to the possibility of deception.
Said attorneys are accordingly advised to drop the name "PERKINS" from their firm name.
Petitioners herein now seek a re-examination of the policy thus far enunciated by the
Court.
The Court finds no sufficient reason to depart from the rulings thus laid down.
A.
Inasmuch as "Sycip, Salazar, Feliciano, Hernandez and Castillo" and "Ozaeta,
Romulo, De Leon, Mabanta and Reyes" are partnerships, the use in their partnership
names of the names of deceased partners will run counter to Article 1815 of the Civil
Code which provides: t.hqw
Art. 1815.
Every partnership shall operate under a firm name, which may or may
not include the name of one or more of the partners.
Those who, not being members of the partnership, include their names in the firm name,
shall be subject to the liability, of a partner.
It is clearly tacit in the above provision that names in a firm name of a partnership must
either be those of living partners and. in the case of non-partners, should be living
persons who can be subjected to liability. In fact, Article 1825 of the Civil Code prohibits a
third person from including his name in the firm name under pain of assuming the liability
of a partner. The heirs of a deceased partner in a law firm cannot be held liable as the old
members to the creditors of a firm particularly where they are non-lawyers. Thus, Canon
34 of the Canons of Professional Ethics "prohibits an agreement for the payment to the
widow and heirs of a deceased lawyer of a percentage, either gross or net, of the fees
received from the future business of the deceased lawyer's clients, both because the
recipients of such division are not lawyers and because such payments will not represent
service or responsibility on the part of the recipient. " Accordingly, neither the widow nor
the heirs can be held liable for transactions entered into after the death of their lawyerpredecessor. There being no benefits accruing, there ran be no corresponding liability.
Prescinding the law, there could be practical objections to allowing the use by law firms
of the names of deceased partners. The public relations value of the use of an old firm
name can tend to create undue advantages and disadvantages in the practice of the
profession. An able lawyer without connections will have to make a name for himself
starting from scratch. Another able lawyer, who can join an old firm, can initially ride on
that old firm's reputation established by deceased partners.
B.
In regards to the last paragraph of Article 1840 of the Civil Code cited by
petitioners, supra, the first factor to consider is that it is within Chapter 3 of Title IX of the
Code entitled "Dissolution and Winding Up." The Article primarily deals with the
exemption from liability in cases of a dissolved partnership, of the individual property of
the deceased partner for debts contracted by the person or partnership which continues
the business using the partnership name or the name of the deceased partner as part
thereof. What the law contemplates therein is a hold-over situation preparatory to formal
reorganization.

Secondly, Article 1840 treats more of a commercial partnership with a good will to
protect rather than of a professional partnership, with no saleable good will but whose
reputation depends on the personal qualifications of its individual members. Thus, it has
been held that a saleable goodwill can exist only in a commercial partnership and cannot
arise in a professional partnership consisting of lawyers. 9t.hqw
As a general rule, upon the dissolution of a commercial partnership the succeeding
partners or parties have the right to carry on the business under the old name, in the
absence of a stipulation forbidding it, (s)ince the name of a commercial partnership is a
partnership asset inseparable from the good will of the firm. ... (60 Am Jur 2d, s 204, p.
115) (Emphasis supplied)
On the other hand, t.hqw
... a professional partnership the reputation of which depends or; the individual skill of
the members, such as partnerships of attorneys or physicians, has no good win to be
distributed as a firm asset on its dissolution, however intrinsically valuable such skill and
reputation may be, especially where there is no provision in the partnership agreement
relating to good will as an asset. ... (ibid, s 203, p. 115) (Emphasis supplied)
C.
A partnership for the practice of law cannot be likened to partnerships formed
by other professionals or for business. For one thing, the law on accountancy specifically
allows the use of a trade name in connection with the practice of accountancy. 10 t.
hqw
A partnership for the practice of law is not a legal entity. It is a mere relationship or
association for a particular purpose. ... It is not a partnership formed for the purpose of
carrying on trade or business or of holding property." 11 Thus, it has been stated that
"the use of a nom de plume, assumed or trade name in law practice is improper. 12
The usual reason given for different standards of conduct being applicable to the practice
of law from those pertaining to business is that the law is a profession.
Dean Pound, in his recently published contribution to the Survey of the Legal Profession,
(The Lawyer from Antiquity to Modern Times, p. 5) defines a profession as "a group of
men pursuing a learned art as a common calling in the spirit of public service, no less
a public service because it may incidentally be a means of livelihood."
xxx

xxx

xxx

Primary characteristics which distinguish the legal profession from business are:
1.
A duty of public service, of which the emolument is a byproduct, and in which
one may attain the highest eminence without making much money.
2.
A relation as an "officer of court" to the administration of justice involving
thorough sincerity, integrity, and reliability.

3.

A relation to clients in the highest degree fiduciary.

4.
A relation to colleagues at the bar characterized by candor, fairness, and
unwillingness to resort to current business methods of advertising and encroachment on
their practice, or dealing directly with their clients. 13
"The right to practice law is not a natural or constitutional right but is in the nature of a
privilege or franchise. 14 It is limited to persons of good moral character with special
qualifications duly ascertained and certified. 15 The right does not only presuppose in its
possessor integrity, legal standing and attainment, but also the exercise of a special
privilege, highly personal and partaking of the nature of a public trust." 16
D.
Petitioners cited Canon 33 of the Canons of Professional Ethics of the American
Bar Association" in support of their petitions.
It is true that Canon 33 does not consider as unethical the continued use of the name of a
deceased or former partner in the firm name of a law partnership when such a practice is
permissible by local custom but the Canon warns that care should be taken that no
imposition or deception is practiced through this use.
It must be conceded that in the Philippines, no local custom permits or allows the
continued use of a deceased or former partner's name in the firm names of law
partnerships. Firm names, under our custom, Identify the more active and/or more senior
members or partners of the law firm. A glimpse at the history of the firms of petitioners
and of other law firms in this country would show how their firm names have evolved and
changed from time to time as the composition of the partnership changed. t.hqw
The continued use of a firm name after the death of one or more of the partners
designated by it is proper only where sustained by local custom and not where by custom
this purports to Identify the active members. ...
There would seem to be a question, under the working of the Canon, as to the propriety
of adding the name of a new partner and at the same time retaining that of a deceased
partner who was never a partner with the new one. (H.S. Drinker, op. cit., supra, at pp.
207208) (Emphasis supplied).
The possibility of deception upon the public, real or consequential, where the name of a
deceased partner continues to be used cannot be ruled out. A person in search of legal
counsel might be guided by the familiar ring of a distinguished name appearing in a firm
title.
E.
Petitioners argue that U.S. Courts have consistently allowed the continued use of
a deceased partner's name in the firm name of law partnerships. But that is so because it
is sanctioned by custom.

In the case of Mendelsohn v. Equitable Life Assurance Society (33 N.Y.S. 2d 733) which
petitioners Salazar, et al. quoted in their memorandum, the New York Supreme Court
sustained the use of the firm name Alexander & Green even if none of the present ten
partners of the firm bears either name because the practice was sanctioned by custom
and did not offend any statutory provision or legislative policy and was adopted by
agreement of the parties. The Court stated therein: t.hqw
The practice sought to be proscribed has the sanction of custom and offends no statutory
provision or legislative policy. Canon 33 of the Canons of Professional Ethics of both the
American Bar Association and the New York State Bar Association provides in part as
follows: "The continued use of the name of a deceased or former partner, when
permissible by local custom is not unethical, but care should be taken that no imposition
or deception is practiced through this use." There is no question as to local custom. Many
firms in the city use the names of deceased members with the approval of other
attorneys, bar associations and the courts. The Appellate Division of the First Department
has considered the matter and reached The conclusion that such practice should not be
prohibited. (Emphasis supplied)
xxx

xxx

xxx

Neither the Partnership Law nor the Penal Law prohibits the practice in question. The use
of the firm name herein is also sustainable by reason of agreement between the partners.
18
Not so in this jurisdiction where there is no local custom that sanctions the practice.
Custom has been defined as a rule of conduct formed by repetition of acts, uniformly
observed (practiced) as a social rule, legally binding and obligatory. 19 Courts take no
judicial notice of custom. A custom must be proved as a fact, according to the rules of
evidence. 20 A local custom as a source of right cannot be considered by a court of
justice unless such custom is properly established by competent evidence like any other
fact. 21 We find such proof of the existence of a local custom, and of the elements
requisite to constitute the same, wanting herein. Merely because something is done as a
matter of practice does not mean that Courts can rely on the same for purposes of
adjudication as a juridical custom. Juridical custom must be differentiated from social
custom. The former can supplement statutory law or be applied in the absence of such
statute. Not so with the latter.
Moreover, judicial decisions applying or interpreting the laws form part of the legal
system. 22 When the Supreme Court in the Deen and Perkins cases issued its Resolutions
directing lawyers to desist from including the names of deceased partners in their firm
designation, it laid down a legal rule against which no custom or practice to the contrary,
even if proven, can prevail. This is not to speak of our civil law which clearly ordains that
a partnership is dissolved by the death of any partner. 23 Custom which are contrary to
law, public order or public policy shall not be countenanced. 24
The practice of law is intimately and peculiarly related to the administration of justice and
should not be considered like an ordinary "money-making trade." t.hqw

... It is of the essence of a profession that it is practiced in a spirit of public service. A

trade ... aims primarily at personal gain; a profession at the exercise of powers beneficial
to mankind. If, as in the era of wide free opportunity, we think of free competitive self
assertion as the highest good, lawyer and grocer and farmer may seem to be freely
competing with their fellows in their calling in order each to acquire as much of the
world's good as he may within the allowed him by law. But the member of a profession
does not regard himself as in competition with his professional brethren. He is not
bartering his services as is the artisan nor exchanging the products of his skill and
learning as the farmer sells wheat or corn. There should be no such thing as a lawyers' or
physicians' strike. The best service of the professional man is often rendered for no
equivalent or for a trifling equivalent and it is his pride to do what he does in a way
worthy of his profession even if done with no expectation of reward, This spirit of public
service in which the profession of law is and ought to be exercised is a prerequisite of
sound administration of justice according to law. The other two elements of a profession,
namely, organization and pursuit of a learned art have their justification in that they
secure and maintain that spirit. 25
In fine, petitioners' desire to preserve the Identity of their firms in the eyes of the public
must bow to legal and ethical impediment.
ACCORDINGLY, the petitions filed herein are denied and petitioners advised to drop the
names "SYCIP" and "OZAETA" from their respective firm names. Those names may,
however, be included in the listing of individuals who have been partners in their firms
indicating the years during which they served as such.
SO ORDERED.
Separate Opinions

FERNANDO, C.J., concurring:

The petitions are denied, as there are only four votes for granting them, seven of the
Justices being of the contrary view, as explained in the plurality opinion of Justice
Ameurfina Melencio-Herrera. It is out of delicadeza that the undersigned did not
participate in the disposition of these petitions, as the law office of Sycip, Salazar,
Feliciano, Hernandez and Castillo started with the partnership of Quisumbing, Sycip, and
Quisumbing, the senior partner, the late Ramon Quisumbing, being the father-in-law of
the undersigned, and the most junior partner then, Norberto J. Quisumbing, being his
brother- in-law. For the record, the undersigned wishes to invite the attention of all
concerned, and not only of petitioners, to the last sentence of the opinion of Justice
Ameurfina Melencio-Herrera: 'Those names [Sycip and Ozaeta] may, however, be
included in the listing of individuals wtes
AQUINO, J., dissenting:

I dissent. The fourteen members of the law firm, Sycip, Salazar, Feliciano, Hernandez &
Castillo, in their petition of June 10, 1975, prayed for authority to continue the use of that
firm name, notwithstanding the death of Attorney Alexander Sycip on May 5, 1975 (May
he rest in peace). He was the founder of the firm which was originally known as the Sycip
Law Office.
On the other hand, the seven surviving partners of the law firm, Ozaeta, Romulo, De
Leon, Mabanta & Reyes, in their petition of August 13, 1976, prayed that they be allowed
to continue using the said firm name notwithstanding the death of two partners, former
Justice Roman Ozaeta and his son, Herminio, on May 1, 1972 and February 14, 1976,
respectively.
They alleged that the said law firm was a continuation of the Ozaeta Law Office which
was established in 1957 by Justice Ozaeta and his son and that, as to the said law firm,
the name Ozaeta has acquired an institutional and secondary connotation.
Article 1840 of the Civil Code, which speaks of the use by the partnership of the name of
a deceased partner as part of the partnership name, is cited to justify the petitions. Also
invoked is the canon that the continued use by a law firm of the name of a deceased
partner, "when permissible by local custom, is not unethical" as long as "no imposition or
deception is practised through this use" (Canon 33 of the Canons of Legal Ethics).
I am of the opinion that the petition may be granted with the condition that it be
indicated in the letterheads of the two firms (as the case may be) that Alexander Sycip,
former Justice Ozaeta and Herminio Ozaeta are dead or the period when they served as
partners should be stated therein.
Obviously, the purpose of the two firms in continuing the use of the names of their
deceased founders is to retain the clients who had customarily sought the legal services
of Attorneys Sycip and Ozaeta and to benefit from the goodwill attached to the names of
those respected and esteemed law practitioners. That is a legitimate motivation.
The retention of their names is not illegal per se. That practice was followed before the
war by the law firm of James Ross. Notwithstanding the death of Judge Ross the founder
of the law firm of Ross, Lawrence, Selph and Carrascoso, his name was retained in the
firm name with an indication of the year when he died. No one complained that the
retention of the name of Judge Ross in the firm name was illegal or unethical.

# Separate Opinions
FERNANDO, C.J., concurring:
The petitions are denied, as there are only four votes for granting them, seven of the
Justices being of the contrary view, as explained in the plurality opinion of Justice
Ameurfina Melencio-Herrera. It is out of delicadeza that the undersigned did not

participate in the disposition of these petitions, as the law office of Sycip, Salazar,
Feliciano, Hernandez and Castillo started with the partnership of Quisumbing, Sycip, and
Quisumbing, the senior partner, the late Ramon Quisumbing, being the father-in-law of
the undersigned, and the most junior partner then, Norberto J. Quisumbing, being his
brother- in-law. For the record, the undersigned wishes to invite the attention of all
concerned, and not only of petitioners, to the last sentence of the opinion of Justice
Ameurfina Melencio-Herrera: 'Those names [Sycip and Ozaeta] may, however, be
included in the listing of individuals wtes
AQUINO, J., dissenting:
I dissent. The fourteen members of the law firm, Sycip, Salazar, Feliciano, Hernandez &
Castillo, in their petition of June 10, 1975, prayed for authority to continue the use of that
firm name, notwithstanding the death of Attorney Alexander Sycip on May 5, 1975 (May
he rest in peace). He was the founder of the firm which was originally known as the Sycip
Law Office.
On the other hand, the seven surviving partners of the law firm, Ozaeta, Romulo, De
Leon, Mabanta & Reyes, in their petition of August 13, 1976, prayed that they be allowed
to continue using the said firm name notwithstanding the death of two partners, former
Justice Roman Ozaeta and his son, Herminio, on May 1, 1972 and February 14, 1976,
respectively.
They alleged that the said law firm was a continuation of the Ozaeta Law Office which
was established in 1957 by Justice Ozaeta and his son and that, as to the said law firm,
the name Ozaeta has acquired an institutional and secondary connotation.
Article 1840 of the Civil Code, which speaks of the use by the partnership of the name of
a deceased partner as part of the partnership name, is cited to justify the petitions. Also
invoked is the canon that the continued use by a law firm of the name of a deceased
partner, "when permissible by local custom, is not unethical" as long as "no imposition or
deception is practised through this use" (Canon 33 of the Canons of Legal Ethics).
I am of the opinion that the petition may be granted with the condition that it be
indicated in the letterheads of the two firms (as the case may be) that Alexander Sycip,
former Justice Ozaeta and Herminio Ozaeta are dead or the period when they served as
partners should be stated therein.
Obviously, the purpose of the two firms in continuing the use of the names of their
deceased founders is to retain the clients who had customarily sought the legal services
of Attorneys Sycip and Ozaeta and to benefit from the goodwill attached to the names of
those respected and esteemed law practitioners. That is a legitimate motivation.
The retention of their names is not illegal per se. That practice was followed before the
war by the law firm of James Ross. Notwithstanding the death of Judge Ross the founder
of the law firm of Ross, Lawrence, Selph and Carrascoso, his name was retained in the
firm name with an indication of the year when he died. No one complained that the
retention of the name of Judge Ross in the firm name was illegal or unethical.

G.R. No. 162155

August 28, 2007

COMMISSIONER OF INTERNAL REVENUE and ARTURO V. PARCERO in his official capacity

as Revenue District Officer of Revenue District No. 049 (Makati), Petitioners,
vs.
PRIMETOWN PROPERTY GROUP, INC., Respondent.
DECISION
CORONA, J.:
This petition for review on certiorari1 seeks to set aside the August 1, 2003 decision2 of
the Court of Appeals (CA) in CA-G.R. SP No. 64782 and its February 9, 2004 resolution
denying reconsideration.3
On March 11, 1999, Gilbert Yap, vice chair of respondent Primetown Property Group, Inc.,
applied for the refund or credit of income tax respondent paid in 1997. In Yap's letter to
petitioner revenue district officer Arturo V. Parcero of Revenue District No. 049 (Makati) of
the Bureau of Internal Revenue (BIR),4 he explained that the increase in the cost of labor
and materials and difficulty in obtaining financing for projects and collecting receivables
caused the real estate industry to slowdown.5 As a consequence, while business was
good during the first quarter of 1997, respondent suffered losses amounting to
P71,879,228 that year.6
According to Yap, because respondent suffered losses, it was not liable for income taxes.7
Nevertheless, respondent paid its quarterly corporate income tax and remitted creditable
withholding tax from real estate sales to the BIR in the total amount of P26,318,398.32.8
Therefore, respondent was entitled to tax refund or tax credit.9
On May 13, 1999, revenue officer Elizabeth Y. Santos required respondent to submit
additional documents to support its claim.10 Respondent complied but its claim was not
acted upon. Thus, on April 14, 2000, it filed a petition for review11 in the Court of Tax
Appeals (CTA).
On December 15, 2000, the CTA dismissed the petition as it was filed beyond the twoyear prescriptive period for filing a judicial claim for tax refund or tax credit.12 It invoked
Section 229 of the National Internal Revenue Code (NIRC):
Sec. 229. Recovery of Taxes Erroneously or Illegally Collected. -- No suit or proceeding
shall be maintained in any court for the recovery of any national internal revenue tax
hereafter alleged to have been erroneously or illegally assessed or collected, or of any
penalty claimed to have been collected without authority, or of any sum alleged to have
been excessively or in any manner wrongfully collected, until a claim for refund or credit
has been duly filed with the Commissioner; but such suit or proceeding may be
maintained, whether or not such tax, penalty, or sum has been paid under protest or
duress.

In any case, no such suit or proceeding shall be filed after the expiration of two (2) years
from the date of payment of the tax or penalty regardless of any supervening cause that
may arise after payment: Provided, however, That the Commissioner may, even without
a claim therefor, refund or credit any tax, where on the face of the return upon which
payment was made, such payment appears clearly to have been erroneously paid.
(emphasis supplied)
The CTA found that respondent filed its final adjusted return on April 14, 1998. Thus, its
right to claim a refund or credit commenced on that date.13
The tax court applied Article 13 of the Civil Code which states:
Art. 13. When the law speaks of years, months, days or nights, it shall be understood that
years are of three hundred sixty-five days each; months, of thirty days; days, of twentyfour hours, and nights from sunset to sunrise.
If the months are designated by their name, they shall be computed by the number of
days which they respectively have.
In computing a period, the first day shall be excluded, and the last included. (emphasis
supplied)
Thus, according to the CTA, the two-year prescriptive period under Section 229 of the
NIRC for the filing of judicial claims was equivalent to 730 days. Because the year 2000
was a leap year, respondent's petition, which was filed 731 days14 after respondent filed
its final adjusted return, was filed beyond the reglementary period.15
Respondent moved for reconsideration but it was denied.16 Hence, it filed an appeal in
the CA.17
On August 1, 2003, the CA reversed and set aside the decision of the CTA.18 It ruled that
Article 13 of the Civil Code did not distinguish between a regular year and a leap year.
According to the CA:
The rule that a year has 365 days applies, notwithstanding the fact that a particular year
is a leap year.19
In other words, even if the year 2000 was a leap year, the periods covered by April 15,
1998 to April 14, 1999 and April 15, 1999 to April 14, 2000 should still be counted as 365
days each or a total of 730 days. A statute which is clear and explicit shall be neither
interpreted nor construed.20
Petitioners moved for reconsideration but it was denied.21 Thus, this appeal.
Petitioners contend that tax refunds, being in the nature of an exemption, should be
strictly construed against claimants.22 Section 229 of the NIRC should be strictly applied
against respondent inasmuch as it has been consistently held that the prescriptive period
(for the filing of tax refunds and tax credits) begins to run on the day claimants file their

final adjusted returns.23 Hence, the claim should have been filed on or before April 13,
2000 or within 730 days, reckoned from the time respondent filed its final adjusted
return.
The conclusion of the CA that respondent filed its petition for review in the CTA within the
two-year prescriptive period provided in Section 229 of the NIRC is correct. Its basis,
however, is not.
The rule is that the two-year prescriptive period is reckoned from the filing of the final
adjusted return.24 But how should the two-year prescriptive period be computed?
As already quoted, Article 13 of the Civil Code provides that when the law speaks of a
year, it is understood to be equivalent to 365 days. In National Marketing Corporation v.
Tecson,25 we ruled that a year is equivalent to 365 days regardless of whether it is a
regular year or a leap year.26
However, in 1987, EO27 292 or the Administrative Code of 1987 was enacted. Section
31, Chapter VIII, Book I thereof provides:
Sec. 31. Legal Periods. "Year" shall be understood to be twelve calendar months;
"month" of thirty days, unless it refers to a specific calendar month in which case it shall
be computed according to the number of days the specific month contains; "day", to a
day of twenty-four hours and; "night" from sunrise to sunset. (emphasis supplied)
A calendar month is "a month designated in the calendar without regard to the number of
days it may contain."28 It is the "period of time running from the beginning of a certain
numbered day up to, but not including, the corresponding numbered day of the next
month, and if there is not a sufficient number of days in the next month, then up to and
including the last day of that month."29 To illustrate, one calendar month from December
31, 2007 will be from January 1, 2008 to January 31, 2008; one calendar month from
January 31, 2008 will be from February 1, 2008 until February 29, 2008.30
A law may be repealed expressly (by a categorical declaration that the law is revoked and
abrogated by another) or impliedly (when the provisions of a more recent law cannot be
reasonably reconciled with the previous one).31 Section 27, Book VII (Final Provisions) of
the Administrative Code of 1987 states:
Sec. 27. Repealing clause. All laws, decrees, orders, rules and regulation, or portions
thereof, inconsistent with this Code are hereby repealed or modified accordingly.
A repealing clause like Sec. 27 above is not an express repealing clause because it fails
to identify or designate the laws to be abolished.32 Thus, the provision above only
impliedly repealed all laws inconsistent with the Administrative Code of 1987.1avvphi1
Implied repeals, however, are not favored. An implied repeal must have been clearly and
unmistakably intended by the legislature. The test is whether the subsequent law
encompasses entirely the subject matter of the former law and they cannot be logically
or reasonably reconciled.33

Both Article 13 of the Civil Code and Section 31, Chapter VIII, Book I of the Administrative
Code of 1987 deal with the same subject matter the computation of legal periods.
Under the Civil Code, a year is equivalent to 365 days whether it be a regular year or a
leap year. Under the Administrative Code of 1987, however, a year is composed of 12
calendar months. Needless to state, under the Administrative Code of 1987, the number
of days is irrelevant.
There obviously exists a manifest incompatibility in the manner of computing legal
periods under the Civil Code and the Administrative Code of 1987. For this reason, we
hold that Section 31, Chapter VIII, Book I of the Administrative Code of 1987, being the
more recent law, governs the computation of legal periods. Lex posteriori derogat priori.
Applying Section 31, Chapter VIII, Book I of the Administrative Code of 1987 to this case,
the two-year prescriptive period (reckoned from the time respondent filed its final
adjusted return34 on April 14, 1998) consisted of 24 calendar months, computed as
follows:
Year 1
1st
calendar month
April 15, 1998

to

May 14, 1998

to

June 14, 1998

to

July 14, 1998

to

August 14, 1998

2nd
calendar month
May 15, 1998
3rd
calendar month
June 15, 1998
4th
calendar month
July 15, 1998
5th

calendar month

Year 2
13th

August 15, 1998 to

September 14, 1998

6th

calendar month
April 15, 1999

to

May 14, 1999

to

June 14, 1999

to

July 14, 1999

to

August 14, 1999

calendar month
September 15, 1998

to

October 14, 1998

14th
calendar month

7th

May 15, 1999

calendar month

15th

October 15, 1998 to

November 14, 1998

8th

calendar month
June 15, 1999

calendar month
November 15, 1998

to

December 14, 1998

16th
calendar month

9th

July 15, 1999

calendar month

17th

December 15, 1998

to

January 14, 1999

10th

calendar month
August 15, 1999 to

September 14, 1999

calendar month
January 15, 1999 to

February 14, 1999

18th
calendar month

11th

September 15, 1999

calendar month

October 14, 1999

19th

February 15, 1999

to

March 14, 1999

12th

calendar month
October 15, 1999 to

calendar month
March 15, 1999

to

to

April 14, 1999

20th

November 14, 1999

calendar month
November 15, 1999

to

December 14, 1999

to

January 14, 2000

21st
calendar month
December 15, 1999
22nd
calendar month
January 15, 2000 to

February 14, 2000

23rd
calendar month
February 15, 2000

to

March 14, 2000

24th
calendar month
March 15, 2000 to
April 14, 2000
We therefore hold that respondent's petition (filed on April 14, 2000) was filed on the last
day of the 24th calendar month from the day respondent filed its final adjusted return.
Hence, it was filed within the reglementary period.
Accordingly, the petition is hereby DENIED. The case is REMANDED to the Court of Tax
Appeals which is ordered to expeditiously proceed to hear C.T.A. Case No. 6113 entitled
Primetown Property Group, Inc. v. Commissioner of Internal Revenue and Arturo V.
Parcero.
No costs.
SO ORDERED.

G.R. No. L-22595

November 1, 1927

Testate Estate of Joseph G. Brimo, JUAN MICIANO, administrator, petitioner-appellee,

vs.
ANDRE BRIMO, opponent-appellant.
Ross, Lawrence and Selph for appellant.
Camus and Delgado for appellee.

ROMUALDEZ, J.:
The partition of the estate left by the deceased Joseph G. Brimo is in question in this
case.
The judicial administrator of this estate filed a scheme of partition. Andre Brimo, one of
the brothers of the deceased, opposed it. The court, however, approved it.
The errors which the oppositor-appellant assigns are:
(1) The approval of said scheme of partition; (2) denial of his participation in the
inheritance; (3) the denial of the motion for reconsideration of the order approving the
partition; (4) the approval of the purchase made by the Pietro Lana of the deceased's
business and the deed of transfer of said business; and (5) the declaration that the
Turkish laws are impertinent to this cause, and the failure not to postpone the approval of
the scheme of partition and the delivery of the deceased's business to Pietro Lanza until
the receipt of the depositions requested in reference to the Turkish laws.
The appellant's opposition is based on the fact that the partition in question puts into
effect the provisions of Joseph G. Brimo's will which are not in accordance with the laws
of his Turkish nationality, for which reason they are void as being in violation or article 10
of the Civil Code which, among other things, provides the following:
Nevertheless, legal and testamentary successions, in respect to the order of succession
as well as to the amount of the successional rights and the intrinsic validity of their
provisions, shall be regulated by the national law of the person whose succession is in
question, whatever may be the nature of the property or the country in which it may be
situated.
But the fact is that the oppositor did not prove that said testimentary dispositions are not
in accordance with the Turkish laws, inasmuch as he did not present any evidence
showing what the Turkish laws are on the matter, and in the absence of evidence on such
laws, they are presumed to be the same as those of the Philippines. (Lim and Lim vs.
Collector of Customs, 36 Phil., 472.)

It has not been proved in these proceedings what the Turkish laws are. He, himself,
acknowledges it when he desires to be given an opportunity to present evidence on this
point; so much so that he assigns as an error of the court in not having deferred the
approval of the scheme of partition until the receipt of certain testimony requested
regarding the Turkish laws on the matter.
The refusal to give the oppositor another opportunity to prove such laws does not
constitute an error. It is discretionary with the trial court, and, taking into consideration
that the oppositor was granted ample opportunity to introduce competent evidence, we
find no abuse of discretion on the part of the court in this particular. There is, therefore,
no evidence in the record that the national law of the testator Joseph G. Brimo was
violated in the testamentary dispositions in question which, not being contrary to our
laws in force, must be complied with and executed. lawphil.net
Therefore, the approval of the scheme of partition in this respect was not erroneous.
In regard to the first assignment of error which deals with the exclusion of the herein
appellant as a legatee, inasmuch as he is one of the persons designated as such in will, it
must be taken into consideration that such exclusion is based on the last part of the
second clause of the will, which says:
Second. I like desire to state that although by law, I am a Turkish citizen, this citizenship
having been conferred upon me by conquest and not by free choice, nor by nationality
and, on the other hand, having resided for a considerable length of time in the Philippine
Islands where I succeeded in acquiring all of the property that I now possess, it is my
wish that the distribution of my property and everything in connection with this, my will,
be made and disposed of in accordance with the laws in force in the Philippine islands,
requesting all of my relatives to respect this wish, otherwise, I annul and cancel
beforehand whatever disposition found in this will favorable to the person or persons who
fail to comply with this request.
The institution of legatees in this will is conditional, and the condition is that the
instituted legatees must respect the testator's will to distribute his property, not in
accordance with the laws of his nationality, but in accordance with the laws of the
Philippines.
If this condition as it is expressed were legal and valid, any legatee who fails to comply
with it, as the herein oppositor who, by his attitude in these proceedings has not
respected the will of the testator, as expressed, is prevented from receiving his legacy.
The fact is, however, that the said condition is void, being contrary to law, for article 792
of the civil Code provides the following:
Impossible conditions and those contrary to law or good morals shall be considered as
not imposed and shall not prejudice the heir or legatee in any manner whatsoever, even
should the testator otherwise provide.

And said condition is contrary to law because it expressly ignores the testator's national
law when, according to article 10 of the civil Code above quoted, such national law of the
testator is the one to govern his testamentary dispositions.
Said condition then, in the light of the legal provisions above cited, is considered
unwritten, and the institution of legatees in said will is unconditional and consequently
valid and effective even as to the herein oppositor.
It results from all this that the second clause of the will regarding the law which shall
govern it, and to the condition imposed upon the legatees, is null and void, being
contrary to law.
All of the remaining clauses of said will with all their dispositions and requests are
perfectly valid and effective it not appearing that said clauses are contrary to the
testator's national law.
Therefore, the orders appealed from are modified and it is directed that the distribution of
this estate be made in such a manner as to include the herein appellant Andre Brimo as
one of the legatees, and the scheme of partition submitted by the judicial administrator
is approved in all other respects, without any pronouncement as to costs.
So ordered.

G.R. No. L-68470 October 8, 1985

ALICE REYES VAN DORN, petitioner,
vs.
HON. MANUEL V. ROMILLO, JR., as Presiding Judge of Branch CX, Regional Trial Court of
the National Capital Region Pasay City and RICHARD UPTON respondents.

MELENCIO-HERRERA, J.:\
In this Petition for certiorari and Prohibition, petitioner Alice Reyes Van Dorn seeks to set
aside the Orders, dated September 15, 1983 and August 3, 1984, in Civil Case No. 1075P, issued by respondent Judge, which denied her Motion to Dismiss said case, and her
Motion for Reconsideration of the Dismissal Order, respectively.
The basic background facts are that petitioner is a citizen of the Philippines while private
respondent is a citizen of the United States; that they were married in Hongkong in 1972;
that, after the marriage, they established their residence in the Philippines; that they
begot two children born on April 4, 1973 and December 18, 1975, respectively; that the
parties were divorced in Nevada, United States, in 1982; and that petitioner has remarried also in Nevada, this time to Theodore Van Dorn.
Dated June 8, 1983, private respondent filed suit against petitioner in Civil Case No.
1075-P of the Regional Trial Court, Branch CXV, in Pasay City, stating that petitioner's
business in Ermita, Manila, (the Galleon Shop, for short), is conjugal property of the
parties, and asking that petitioner be ordered to render an accounting of that business,
and that private respondent be declared with right to manage the conjugal property.
Petitioner moved to dismiss the case on the ground that the cause of action is barred by
previous judgment in the divorce proceedings before the Nevada Court wherein
respondent had acknowledged that he and petitioner had "no community property" as of
June 11, 1982. The Court below denied the Motion to Dismiss in the mentioned case on
the ground that the property involved is located in the Philippines so that the Divorce
Decree has no bearing in the case. The denial is now the subject of this certiorari
proceeding.
Generally, the denial of a Motion to Dismiss in a civil case is interlocutory and is not
subject to appeal. certiorari and Prohibition are neither the remedies to question the
propriety of an interlocutory order of the trial Court. However, when a grave abuse of
discretion was patently committed, or the lower Court acted capriciously and whimsically,
then it devolves upon this Court in a certiorari proceeding to exercise its supervisory
authority and to correct the error committed which, in such a case, is equivalent to lack
of jurisdiction. 1 Prohibition would then lie since it would be useless and a waste of time
to go ahead with the proceedings. 2 Weconsider the petition filed in this case within the
exception, and we have given it due course.

For resolution is the effect of the foreign divorce on the parties and their alleged conjugal
property in the Philippines.
Petitioner contends that respondent is estopped from laying claim on the alleged
conjugal property because of the representation he made in the divorce proceedings
before the American Court that they had no community of property; that the Galleon
Shop was not established through conjugal funds, and that respondent's claim is barred
by prior judgment.
For his part, respondent avers that the Divorce Decree issued by the Nevada Court
cannot prevail over the prohibitive laws of the Philippines and its declared national policy;
that the acts and declaration of a foreign Court cannot, especially if the same is contrary
to public policy, divest Philippine Courts of jurisdiction to entertain matters within its
jurisdiction.
For the resolution of this case, it is not necessary to determine whether the property
relations between petitioner and private respondent, after their marriage, were upon
absolute or relative community property, upon complete separation of property, or upon
any other regime. The pivotal fact in this case is the Nevada divorce of the parties.
The Nevada District Court, which decreed the divorce, had obtained jurisdiction over
petitioner who appeared in person before the Court during the trial of the case. It also
obtained jurisdiction over private respondent who, giving his address as No. 381 Bush
Street, San Francisco, California, authorized his attorneys in the divorce case, Karp &
Gradt Ltd., to agree to the divorce on the ground of incompatibility in the understanding
that there were neither community property nor community obligations. 3 As explicitly
stated in the Power of Attorney he executed in favor of the law firm of KARP & GRAD LTD.,
336 W. Liberty, Reno, Nevada, to represent him in the divorce proceedings:
xxx

xxx

xxx

You are hereby authorized to accept service of Summons, to file an Answer, appear on
my behalf and do an things necessary and proper to represent me, without further
contesting, subject to the following:
1.

That my spouse seeks a divorce on the ground of incompatibility.

2.

That there is no community of property to be adjudicated by the Court.

3.

'I'hat there are no community obligations to be adjudicated by the court.

xxx

xxx

xxx 4

There can be no question as to the validity of that Nevada divorce in any of the States of
the United States. The decree is binding on private respondent as an American citizen.
For instance, private respondent cannot sue petitioner, as her husband, in any State of
the Union. What he is contending in this case is that the divorce is not valid and binding
in this jurisdiction, the same being contrary to local law and public policy.

It is true that owing to the nationality principle embodied in Article 15 of the Civil Code, 5
only Philippine nationals are covered by the policy against absolute divorces the same
being considered contrary to our concept of public police and morality. However, aliens
may obtain divorces abroad, which may be recognized in the Philippines, provided they
are valid according to their national law. 6 In this case, the divorce in Nevada released
private respondent from the marriage from the standards of American law, under which
divorce dissolves the marriage. As stated by the Federal Supreme Court of the United
States in Atherton vs. Atherton, 45 L. Ed. 794, 799:
The purpose and effect of a decree of divorce from the bond of matrimony by a court of
competent jurisdiction are to change the existing status or domestic relation of husband
and wife, and to free them both from the bond. The marriage tie when thus severed as to
one party, ceases to bind either. A husband without a wife, or a wife without a husband,
is unknown to the law. When the law provides, in the nature of a penalty. that the guilty
party shall not marry again, that party, as well as the other, is still absolutely freed from
the bond of the former marriage.
Thus, pursuant to his national law, private respondent is no longer the husband of
petitioner. He would have no standing to sue in the case below as petitioner's husband
entitled to exercise control over conjugal assets. As he is bound by the Decision of his
own country's Court, which validly exercised jurisdiction over him, and whose decision he
does not repudiate, he is estopped by his own representation before said Court from
asserting his right over the alleged conjugal property.
To maintain, as private respondent does, that, under our laws, petitioner has to be
considered still married to private respondent and still subject to a wife's obligations
under Article 109, et. seq. of the Civil Code cannot be just. Petitioner should not be
obliged to live together with, observe respect and fidelity, and render support to private
respondent. The latter should not continue to be one of her heirs with possible rights to
conjugal property. She should not be discriminated against in her own country if the ends
of justice are to be served.
WHEREFORE, the Petition is granted, and respondent Judge is hereby ordered to dismiss
the Complaint filed in Civil Case No. 1075-P of his Court.
Without costs.
SO ORDERED.

G.R. No. 80116

June 30, 1989

IMELDA MANALAYSAY PILAPIL, petitioner,

vs.
HON. CORONA IBAY-SOMERA, in her capacity as Presiding Judge of the Regional Trial Court
of Manila, Branch XXVI; HON. LUIS C. VICTOR, in his capacity as the City Fiscal of Manila;
and ERICH EKKEHARD GEILING, respondents.

REGALADO, J.:
An ill-starred marriage of a Filipina and a foreigner which ended in a foreign absolute
divorce, only to be followed by a criminal infidelity suit of the latter against the former,
provides Us the opportunity to lay down a decisional rule on what hitherto appears to be
an unresolved jurisdictional question.
On September 7, 1979, petitioner Imelda Manalaysay Pilapil, a Filipino citizen, and private
respondent Erich Ekkehard Geiling, a German national, were married before the Registrar
of Births, Marriages and Deaths at Friedensweiler in the Federal Republic of Germany. The
marriage started auspiciously enough, and the couple lived together for some time in
Malate, Manila where their only child, Isabella Pilapil Geiling, was born on April 20, 1980.
1
Thereafter, marital discord set in, with mutual recriminations between the spouses,
followed by a separation de facto between them.
After about three and a half years of marriage, such connubial disharmony eventuated in
private respondent initiating a divorce proceeding against petitioner in Germany before
the Schoneberg Local Court in January, 1983. He claimed that there was failure of their
marriage and that they had been living apart since April, 1982. 2
Petitioner, on the other hand, filed an action for legal separation, support and separation
of property before the Regional Trial Court of Manila, Branch XXXII, on January 23, 1983
where the same is still pending as Civil Case No. 83-15866. 3
On January 15, 1986, Division 20 of the Schoneberg Local Court, Federal Republic of
Germany, promulgated a decree of divorce on the ground of failure of marriage of the
spouses. The custody of the child was granted to petitioner. The records show that under
German law said court was locally and internationally competent for the divorce
proceeding and that the dissolution of said marriage was legally founded on and
authorized by the applicable law of that foreign jurisdiction. 4
On June 27, 1986, or more than five months after the issuance of the divorce decree,
private respondent filed two complaints for adultery before the City Fiscal of Manila
alleging that, while still married to said respondent, petitioner "had an affair with a
certain William Chia as early as 1982 and with yet another man named Jesus Chua

sometime in 1983". Assistant Fiscal Jacinto A. de los Reyes, Jr., after the corresponding
investigation, recommended the dismissal of the cases on the ground of insufficiency of
evidence. 5 However, upon review, the respondent city fiscal approved a resolution,
dated January 8, 1986, directing the filing of two complaints for adultery against the
petitioner. 6 The complaints were accordingly filed and were eventually raffled to two
branches of the Regional Trial Court of Manila. The case entitled "People of the Philippines
vs. Imelda Pilapil and William Chia", docketed as Criminal Case No. 87-52435, was
assigned to Branch XXVI presided by the respondent judge; while the other case, "People
of the Philippines vs. Imelda Pilapil and James Chua", docketed as Criminal Case No. 8752434 went to the sala of Judge Leonardo Cruz, Branch XXV, of the same court. 7
On March 14, 1987, petitioner filed a petition with the Secretary of Justice asking that the
aforesaid resolution of respondent fiscal be set aside and the cases against her be
dismissed. 8 A similar petition was filed by James Chua, her co-accused in Criminal Case
No. 87-52434. The Secretary of Justice, through the Chief State Prosecutor, gave due
course to both petitions and directed the respondent city fiscal to inform the Department
of Justice "if the accused have already been arraigned and if not yet arraigned, to move
to defer further proceedings" and to elevate the entire records of both cases to his office
for review. 9
Petitioner thereafter filed a motion in both criminal cases to defer her arraignment and to
suspend further proceedings thereon. 10 As a consequence, Judge Leonardo Cruz
suspended proceedings in Criminal Case No. 87-52434. On the other hand, respondent
judge merely reset the date of the arraignment in Criminal Case No. 87-52435 to April 6,
1987. Before such scheduled date, petitioner moved for the cancellation of the
arraignment and for the suspension of proceedings in said Criminal Case No. 87-52435
until after the resolution of the petition for review then pending before the Secretary of
Justice. 11 A motion to quash was also filed in the same case on the ground of lack of
jurisdiction, 12 which motion was denied by the respondent judge in an order dated
September 8, 1987. The same order also directed the arraignment of both accused
therein, that is, petitioner and William Chia. The latter entered a plea of not guilty while
the petitioner refused to be arraigned. Such refusal of the petitioner being considered by
respondent judge as direct contempt, she and her counsel were fined and the former was
ordered detained until she submitted herself for arraignment. 13 Later, private
respondent entered a plea of not guilty. 14
On October 27, 1987, petitioner filed this special civil action for certiorari and prohibition,
with a prayer for a temporary restraining order, seeking the annulment of the order of
the lower court denying her motion to quash. The petition is anchored on the main
ground that the court is without jurisdiction "to try and decide the charge of adultery,
which is a private offense that cannot be prosecuted de officio (sic), since the purported
complainant, a foreigner, does not qualify as an offended spouse having obtained a final
divorce decree under his national law prior to his filing the criminal complaint." 15
On October 21, 1987, this Court issued a temporary restraining order enjoining the
respondents from implementing the aforesaid order of September 8, 1987 and from
further proceeding with Criminal Case No. 87-52435. Subsequently, on March 23, 1988
Secretary of Justice Sedfrey A. Ordoez acted on the aforesaid petitions for review and,

upholding petitioner's ratiocinations, issued a resolution directing the respondent city

fiscal to move for the dismissal of the complaints against the petitioner. 16
We find this petition meritorious. The writs prayed for shall accordingly issue.
Under Article 344 of the Revised Penal Code, 17 the crime of adultery, as well as four
other crimes against chastity, cannot be prosecuted except upon a sworn written
complaint filed by the offended spouse. It has long since been established, with
unwavering consistency, that compliance with this rule is a jurisdictional, and not merely
a formal, requirement. 18 While in point of strict law the jurisdiction of the court over the
offense is vested in it by the Judiciary Law, the requirement for a sworn written complaint
is just as jurisdictional a mandate since it is that complaint which starts the prosecutory
proceeding 19 and without which the court cannot exercise its jurisdiction to try the case.
Now, the law specifically provides that in prosecutions for adultery and concubinage the
person who can legally file the complaint should be the offended spouse, and nobody
else. Unlike the offenses of seduction, abduction, rape and acts of lasciviousness, no
provision is made for the prosecution of the crimes of adultery and concubinage by the
parents, grandparents or guardian of the offended party. The so-called exclusive and
successive rule in the prosecution of the first four offenses above mentioned do not apply
to adultery and concubinage. It is significant that while the State, as parens patriae, was
added and vested by the 1985 Rules of Criminal Procedure with the power to initiate the
criminal action for a deceased or incapacitated victim in the aforesaid offenses of
seduction, abduction, rape and acts of lasciviousness, in default of her parents,
grandparents or guardian, such amendment did not include the crimes of adultery and
concubinage. In other words, only the offended spouse, and no other, is authorized by
law to initiate the action therefor.
Corollary to such exclusive grant of power to the offended spouse to institute the action,
it necessarily follows that such initiator must have the status, capacity or legal
representation to do so at the time of the filing of the criminal action. This is a familiar
and express rule in civil actions; in fact, lack of legal capacity to sue, as a ground for a
motion to dismiss in civil cases, is determined as of the filing of the complaint or petition.
The absence of an equivalent explicit rule in the prosecution of criminal cases does not
mean that the same requirement and rationale would not apply. Understandably, it may
not have been found necessary since criminal actions are generally and fundamentally
commenced by the State, through the People of the Philippines, the offended party being
merely the complaining witness therein. However, in the so-called "private crimes" or
those which cannot be prosecuted de oficio, and the present prosecution for adultery is of
such genre, the offended spouse assumes a more predominant role since the right to
commence the action, or to refrain therefrom, is a matter exclusively within his power
and option.
This policy was adopted out of consideration for the aggrieved party who might prefer to
suffer the outrage in silence rather than go through the scandal of a public trial. 20
Hence, as cogently argued by petitioner, Article 344 of the Revised Penal Code thus
presupposes that the marital relationship is still subsisting at the time of the institution of

the criminal action for, adultery. This is a logical consequence since the raison d'etre of
said provision of law would be absent where the supposed offended party had ceased to
be the spouse of the alleged offender at the time of the filing of the criminal case. 21
In these cases, therefore, it is indispensable that the status and capacity of the
complainant to commence the action be definitely established and, as already
demonstrated, such status or capacity must indubitably exist as of the time he initiates
the action. It would be absurd if his capacity to bring the action would be determined by
his status before or subsequent to the commencement thereof, where such capacity or
status existed prior to but ceased before, or was acquired subsequent to but did not exist
at the time of, the institution of the case. We would thereby have the anomalous
spectacle of a party bringing suit at the very time when he is without the legal capacity
to do so.
To repeat, there does not appear to be any local precedential jurisprudence on the
specific issue as to when precisely the status of a complainant as an offended spouse
must exist where a criminal prosecution can be commenced only by one who in law can
be categorized as possessed of such status. Stated differently and with reference to the
present case, the inquiry ;would be whether it is necessary in the commencement of a
criminal action for adultery that the marital bonds between the complainant and the
accused be unsevered and existing at the time of the institution of the action by the
former against the latter.
American jurisprudence, on cases involving statutes in that jurisdiction which are in pari
materia with ours, yields the rule that after a divorce has been decreed, the innocent
spouse no longer has the right to institute proceedings against the offenders where the
statute provides that the innocent spouse shall have the exclusive right to institute a
prosecution for adultery. Where, however, proceedings have been properly commenced,
a divorce subsequently granted can have no legal effect on the prosecution of the
criminal proceedings to a conclusion. 22
In the cited Loftus case, the Supreme Court of Iowa held that
'No prosecution for adultery can be commenced except on the complaint of the husband
or wife.' Section 4932, Code. Though Loftus was husband of defendant when the offense
is said to have been committed, he had ceased to be such when the prosecution was
begun; and appellant insists that his status was not such as to entitle him to make the
complaint. We have repeatedly said that the offense is against the unoffending spouse,
as well as the state, in explaining the reason for this provision in the statute; and we are
of the opinion that the unoffending spouse must be such when the prosecution is
commenced. (Emphasis supplied.)
We see no reason why the same doctrinal rule should not apply in this case and in our
jurisdiction, considering our statutory law and jural policy on the matter. We are
convinced that in cases of such nature, the status of the complainant vis-a-vis the
accused must be determined as of the time the complaint was filed. Thus, the person
who initiates the adultery case must be an offended spouse, and by this is meant that he
is still married to the accused spouse, at the time of the filing of the complaint.

In the present case, the fact that private respondent obtained a valid divorce in his
country, the Federal Republic of Germany, is admitted. Said divorce and its legal effects
may be recognized in the Philippines insofar as private respondent is concerned 23 in
view of the nationality principle in our civil law on the matter of status of persons.
Thus, in the recent case of Van Dorn vs. Romillo, Jr., et al., 24 after a divorce was granted
by a United States court between Alice Van Dornja Filipina, and her American husband,
the latter filed a civil case in a trial court here alleging that her business concern was
conjugal property and praying that she be ordered to render an accounting and that the
plaintiff be granted the right to manage the business. Rejecting his pretensions, this
Court perspicuously demonstrated the error of such stance, thus:
There can be no question as to the validity of that Nevada divorce in any of the States of
the United States. The decree is binding on private respondent as an American citizen.
For instance, private respondent cannot sue petitioner, as her husband, in any State of
the Union. ...
It is true that owing to the nationality principle embodied in Article 15 of the Civil Code,
only Philippine nationals are covered by the policy against absolute divorces the same
being considered contrary to our concept of public policy and morality. However, aliens
may obtain divorces abroad, which may be recognized in the Philippines, provided they
are valid according to their national law. ...
Thus, pursuant to his national law, private respondent is no longer the husband of
petitioner. He would have no standing to sue in the case below as petitioner's husband
entitled to exercise control over conjugal assets. ... 25
Under the same considerations and rationale, private respondent, being no longer the
husband of petitioner, had no legal standing to commence the adultery case under the
imposture that he was the offended spouse at the time he filed suit.
The allegation of private respondent that he could not have brought this case before the
decree of divorce for lack of knowledge, even if true, is of no legal significance or
consequence in this case. When said respondent initiated the divorce proceeding, he
obviously knew that there would no longer be a family nor marriage vows to protect once
a dissolution of the marriage is decreed. Neither would there be a danger of introducing
spurious heirs into the family, which is said to be one of the reasons for the particular
formulation of our law on adultery, 26 since there would thenceforth be no spousal
relationship to speak of. The severance of the marital bond had the effect of dissociating
the former spouses from each other, hence the actuations of one would not affect or cast
obloquy on the other.
The aforecited case of United States vs. Mata cannot be successfully relied upon by
private respondent. In applying Article 433 of the old Penal Code, substantially the same
as Article 333 of the Revised Penal Code, which punished adultery "although the
marriage be afterwards declared void", the Court merely stated that "the lawmakers
intended to declare adulterous the infidelity of a married woman to her marital vows,

even though it should be made to appear that she is entitled to have her marriage
contract declared null and void, until and unless she actually secures a formal judicial
declaration to that effect". Definitely, it cannot be logically inferred therefrom that the
complaint can still be filed after the declaration of nullity because such declaration that
the marriage is void ab initio is equivalent to stating that it never existed. There being no
marriage from the beginning, any complaint for adultery filed after said declaration of
nullity would no longer have a leg to stand on. Moreover, what was consequently
contemplated and within the purview of the decision in said case is the situation where
the criminal action for adultery was filed before the termination of the marriage by a
judicial declaration of its nullity ab initio. The same rule and requisite would necessarily
apply where the termination of the marriage was effected, as in this case, by a valid
foreign divorce.
Private respondent's invocation of Donio-Teves, et al. vs. Vamenta, hereinbefore cited, 27
must suffer the same fate of inapplicability. A cursory reading of said case reveals that
the offended spouse therein had duly and seasonably filed a complaint for adultery,
although an issue was raised as to its sufficiency but which was resolved in favor of the
complainant. Said case did not involve a factual situation akin to the one at bar or any
issue determinative of the controversy herein.
WHEREFORE, the questioned order denying petitioner's motion to quash is SET ASIDE and
another one entered DISMISSING the complaint in Criminal Case No. 87-52435 for lack of
jurisdiction. The temporary restraining order issued in this case on October 21, 1987 is
hereby made permanent.
SO ORDERED.

PhilippineLaw.info Jurisprudence 1933 March

PhilippineLaw.info Jurisprudence Phil. Rep. Vol. 58
G.R. No. 37048, Gonzalez v. Gonzalez, 58 Phil. 67
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
March 7, 1933
G.R. No. 37048
MANUELA BARRETTO GONZALEZ, plaintiff-appellee,
vs.
AUGUSTO C. GONZALEZ, defendant-appellant.
AUGUSTO C. GONZALEZ, Jr., ET AL., intervenors-appellees.
Quintin Paredes and Barrera and Reyes for appellant.
DeWitt, Perkins and Brady for plaintiff-appellee.
Camus and Delgado for intervenors-appellees.
HULL, J.:
Plaintiff and defendant are citizens of the Philippine Islands and at present residents of
the City of Manila. They were married in the City of Manila on January 19, 1919, and lived
together as man and wife in the Philippine Islands until the spring of 1926. They
voluntarily separated and since that time have not lived together as man and wife. Of
this union four children were born who are now 11, 10, 8 and 6 years of age. Negotiations
between the parties, both being represented by attorneys, continued for several months,
whereupon it was mutually agreed to allow the plaintiff for her support and that of her
children, five hundred pesos (P500) monthly; this amount to be increased in case of
illness or necessity, and the title of certain properties to be put in her name. Shortly after
this agreement the husband left the Islands, betook himself to Reno, Nevada, and
secured in that jurisdiction an absolute divorce on the ground of desertion, which decree
was dated November 28, 1927. Shortly thereafter the defendant moved to California and
returned to these Islands in August 1928, where he has since remained. On the same
date that he secured a divorce in Nevada he went through the forms of marriage with
another citizen of these Islands and now has three children as a result of that marriage.
Defendant, after his departure from these Islands, reduced the amount he had agreed to
pay monthly for the support of his wife and four minor children and has not made the
payments fixed in the Reno divorce as alimony.
Shortly after his return his wife brought action in the Court of First Instance of Manila
requesting that the courts of the Philippine Islands confirm and ratify the decree of
divorce issued by the courts of the State of Nevada; that section 9 of Act No. 2710, which
reads as follows:

The decree of divorce shall dissolve the community of property as soon as such decree
becomes final, but shall not dissolve the bonds of matrimony until one year thereafter.
The bonds of matrimony shall not be considered as dissolved with regard to the spouse
who, having legitimate children, has not delivered to each of them or to the guardian
appointed by the court, within said period of one year, the equivalent of what would have
been due to them as their legal portion if said spouse had died intestate immediately
after the dissolution of the community of property.
be enforced, and that she and the defendant deliver to the guardian ad litem the
equivalent of what would have been due to their children as their legal portion from the
respective estates had their parents did intestate on November 28, 1927. It is also
prayed that the community existing between plaintiff and defendant be declared
dissolved and the defendant be ordered to render an accounting and to deliver to the
plaintiff her share of the community property, that the defendant be ordered to pay the
plaintiff alimony at the rate of five hundred pesos (P500) per month, that the defendant
be ordered to pay the plaintiff, as counsel fees, the sum of five thousand pesos (P5000),
and that the defendant be ordered to pay plaintiff the expenses incurred in educating the
three minor sons.
A guardian ad litem was appointed for the minor children, and they appear as intervenors
and join their mother in these proceedings. The Court of First Instance, after hearing,
found against the defendant and granted judgment as prayed for by the plaintiff and
intervenors, with the exception of reducing attorneys fees to three thousand, and also
granted costs of the action against the defendant. From this judgment defendant appeals
and makes the following assignment of errors:
I. The lower court erred in not declaring that paragraph 2 of section 9 of the Philippine
Divorce Law, is unconstitutional, null and void.
II. The lower court erred in holding that section 9 of Act No. 2710 (Divorce Law) applies to
the Nevada decree of divorce issued in favor of appellant Augusto C. Gonzalez, said
decree being entitled to confirmation and recognition.
III. The lower court erred in not dismissing the complaint in intervention for lack of cause
of action against appellant and appellee.
IV. The lower court erred in not declaring the notice of lis pendens filed by intervenors to
be null and void.
V. The lower court erred in ordering the appellant to pay the sum of P500 per month for
the support not only of his children but also of his ex-wife, appellee herein, Manuela
Barretto.
VI. The lower court erred in not holding that plaintiff- appellee, Manuela Barretto, is not
entitled to support from her ex-husband, herein appellant, over and beyond the alimony
fixed by the divorce decree in Exhibit A.

VII. The lower court erred in condemning defendant appellant to pay to plaintiff-appellee
P3,000 attorney's fees.
VIII. The lower court erred in denying appellant's motion for new trial.
While the parties in this action are in dispute over financial matters they are in unity in
trying to secure the courts of this jurisdiction to recognize and approve of the Reno
divorce. On the record here presented this can not be done. The public policy in this
jurisdiction on the question of divorce is clearly set forth in Act No. 2710, and the
decisions of this court: Goitia vs. Campos Rueda (35 Phil., 252); Garcia Valdez vs.
Soteraa Tuason (40 Phil., 943-952); Ramirez vs. Gmur (42 Phil., 855); Chereau vs.
Fuentebella (43 Phil., 216); Fernandez vs. De Castro (48 Phil., 123); Gorayeb vs. Hashim
(50 Phil., 22); Francisco vs. Tayao (50 Phil., 42); Alkuino Lim Pang vs. Uy Pian Ng Shun and
Lim Tingco (52 Phil., 571); and the late case of Cousins Hix vs. Fluemer, decided March
21, 1931, and reported in 55 Phil., 851.
The entire conduct of the parties from the time of their separation until the case was
submitted to this court, in which they all prayed that the Reno divorce be ratified and
confirmed, clearly indicates a purpose to circumvent the laws of the Philippine Islands
regarding divorce and to secure for themselves a change of status for reasons and under
conditions not authorized by our law. At all times the matrimonial domicile of this couple
has been within the Philippine Islands and the residence acquired in the State of Nevada
by the husband of the purpose of securing a divorce was not a bona fide residence and
did not confer jurisdiction upon the Court of that State to dissolve the bonds if matrimony
in which he had entered in 1919. While the decisions of this court heretofore in refusing
to recognize the validity of foreign divorce has usually been expressed in the negative
and have been based upon lack of matrimonial domicile or fraud or collusion, we have
not overlooked the provisions of the Civil Code now in force in these Islands. Article 9
thereof reads as follows:
The laws relating to family rights and duties, or to the status, condition and legal capacity
or persons, are binding upon Spaniards even though they reside in a foreign country.
And article 11, the last part of which reads:
. . . the prohibitive laws concerning persons, their acts and their property, and those
intended to promote public order and good morals, shall nor be rendered without effect
by any foreign laws or judgments or by anything done or any agreements entered into a
foreign country.
It is therefore a serious question whether any foreign divorce relating to citizens of the
Philippine Islands, will be recognized in this jurisdiction, except it be for a cause, and
under conditions for which the courts of Philippine Islands would grant a divorce. The
lower court in granting relief as prayed for frankly stated that the securing of the divorce,
the contracting of another marriage and the bringing into the world of innocent children
brings about such a condition that the court must grant relief. The hardships of the
existing divorce laws of the Philippine Islands are well known to the members of the
Legislature. It is of no moment in this litigation what he personal views of the writer on

the subject of divorce may be. It is the duty of the courts to enforce the laws of divorce as
written by the Legislature if they are constitutional. Courts have no right to say that such
laws are too strict or too liberal.
Litigants by mutual agreement can not compel the courts to approve of their own actions
or permit the personal relations of the citizens of these Islands to be affected by decrees
of foreign courts in a manner which our Government believes is contrary to public order
and good morals. Holding the above views it becomes unnecessary to discuss the serious
constitutional question presented by appellant in his first assignment of error.
The judgment of the Court of First Instance of the City of Manila must therefore be
reversed and defendant absolved from the demands made against him in this action.
This, however, without prejudice to any right of maintenance that plaintiff and the
intervenors may have against defendant. No special pronouncement as to costs. So
ordered.

G.R. No. L-2935

March 23, 1909

THE GOVERNMENT OF THE PHILIPPINE ISLANDS, plaintiff-appellee,

vs.
GEORGE I. FRANK, defendant-appellant.
Bishop and O'Brien for appellant.
Attorney-General Wilfley for appellee.
JOHNSON, J.:
Judgment was rendered in the lower court on the 5th day of September, 1905. The
defendant appealed. On the 12th day of October, 1905, the appellant filed his printed bill
of exceptions with the clerk of the Supreme Court. On the 5th day of December, 1905,
the appellant filed his brief with the clerk of the Supreme Court. On the 19th day of
January, 1906, the Attorney-General filed his brief in said cause. Nothing further was
done in said cause until on or about the 30th day of January, 1909, when the respective
parties were requested by this court to prosecute the appeal under the penalty of having
the same dismissed for failure so to do; whereupon the appellant, by petition, had the
caused placed upon the calendar and the same was heard on the 2d day of February,
1909.

incurred in traveling from Chicago to Manila, and as half salary for the period consumed
in travel.
Sixth. It was expressly agreed between the parties to said contract that Laws No. 80 and
No. 224 should constitute a part of said contract.
To the complaint of the plaintiff the defendant filed a general denial and a special
defense, alleging in his special defense that the Government of the Philippine Islands had
amended Laws No. 80 and No. 224 and had thereby materially altered the said contract,
and also that he was a minor at the time the contract was entered into and was therefore
not responsible under the law.
To the special defense of the defendant the plaintiff filed a demurrer, which demurrer the
court sustained.
Upon the issue thus presented, and after hearing the evidence adduced during the trial of
the cause, the lower court rendered a judgment against the defendant and in favor of the
plaintiff for the sum of 265.90 dollars. The lower court found that at the time the
defendant quit the service of the plaintiff there was due him from the said plaintiff the
sum of 3.33 dollars, leaving a balance due the plaintiff in the sum of 265.90 dollars. From
this judgment the defendant appealed and made the following assignments of error:

The facts from the record appear to be as follows:

1. The court erred in sustaining plaintiff's demurrer to defendant's special defenses.

First. That on or about the 17th day of April, 1903, in the city of Chicago, in the state of
Illinois, in the United States, the defendant, through a respective of the Insular
Government of the Philippine Islands, entered into a contract for a period of two years
with the plaintiff, by which the defendant was to receive a salary of 1,200 dollars per year
as a stenographer in the service of the said plaintiff, and in addition thereto was to be
paid in advance the expenses incurred in traveling from the said city of Chicago to
Manila, and one-half salary during said period of travel.

2. The court erred in rendering judgment against the defendant on the facts.

Second. Said contract contained a provision that in case of a violation of its terms on the
part of the defendant, he should become liable to the plaintiff for the amount expended
by the Government by way of expenses incurred in traveling from Chicago to Manila and
one-half salary paid during such period.
Third. The defendant entered upon the performance of his contract upon the 30th day of
April, 1903, and was paid half-salary from that date until June 4, 1903, the date of his
arrival in the Philippine Islands.
Fourth. That on the 11th day of February, 1904, the defendant left the service of the
plaintiff and refused to make further compliance with the terms of the contract.
Fifth. On the 3d day of December, 1904, the plaintiff commenced an action in the Court
of First Instance of the city of Manila to recover from the defendant the sum of 269.23
dollars, which amount the plaintiff claimed had been paid to the defendant as expenses

With reference to the above assignments of error, it may be said that the mere fact that
the legislative department of the Government of the Philippine Islands had amended said
Acts No. 80 and No. 224 by the Acts No. 643 and No. 1040 did not have the effect of
changing the terms of the contract made between the plaintiff and the defendant. The
legislative department of the Government is expressly prohibited by section 5 of the Act
of Congress of 1902 from altering or changing the terms of the contract. The right which
the defendant had acquired by virtue of Acts No. 80 and No. 224 had not been changed
in any respect by the fact that said laws had been amended. These acts, constituting the
terms of the contract, still constituted a part of said contract and were enforceable in
favor of the defendant.
The defendant alleged in his special defense that he was a minor and therefore the
contract could not be enforced against him. The record discloses that, at the time the
contract was entered into in the State of Illinois, he was an adult under the laws of that
State and had full authority to contract. The plaintiff [the defendant] claims that, by
reason of the fact that, under the laws of the Philippine Islands at the time the contract
was made, male persons in said Islands did not reach their majority until they had
attained the age of 23 years, he was not liable under said contract, contending that the
laws of the Philippine Islands governed. It is not disputed upon the contrary the fact is
admitted that at the time and place of the making of the contract in question the
defendant had full capacity to make the same. No rule is better settled in law than that
matters bearing upon the execution, interpretation and validity of a contract are

determined by the law of the place where the contract is made. (Scudder vs. Union
National Bank, 91 U. S., 406.) Matters connected with its performance are regulated by
the law prevailing at the place of performance. Matters respecting a remedy, such as the
bringing of suit, admissibility of evidence, and statutes of limitations, depend upon the
law of the place where the suit is brought. (Idem.)
The defendant's claim that he was an adult when he left Chicago but was a minor when
he arrived at Manila; that he was an adult at the time he made the contract but was a
minor at the time the plaintiff attempted to enforce the contract, more than a year later,
is not tenable.
Our conclusions with reference to the first above assignment of error are, therefore:
First. That the amendments to Acts No. 80 and No. 224 in no way affected the terms of
the contract in question; and
Second. The plaintiff [defendant] being fully qualified to enter into the contract at the
place and time the contract was made, he can not plead infancy as a defense at the
place where the contract is being enforced.
We believe that the above conclusions also dispose of the second assignment of error.
For the reasons above stated, the judgment of the lower court is affirmed, with costs.

G.R. No. L-7487

December 29, 1913

CONSTANZA YAEZ DE BARNUEVO, plaintiff and appellant,

vs.
GABRIEL FUSTER, defendant and appellant.
JOHNSON, J.:
On the 7th of February, 1875, Gabriel Fuster and Constanza Yaez were joined in a
Catholic or canonical marriage in the city of Malaga, Spain. In February of 1892, Gabriel
Fuster came to the Philippine Islands, settled, and acquired real and personal property.
Toward the middle of 1896, Constanza Yaez came to Manila, where her husband was
residing, and here lived with him in conjugal relations until the month of April, 1899. On
the 4th day of that month and year they made an agreement, in a public document, by
which they "resolved to separate and live apart, both consenting to such separation, and
by virtue thereof the husband authorized the wife to move to Spain, there to reside in
such place as the said lady pleases." (B. of E., p. 13.) In the same document, the husband
undertook to send his wife the sum of 300 pesetas monthly for her support, payable in
Madrid, Spain, from the month of June of the said year 1899. The husband complied with
this obligation until August, 1899, after which time he ceased to make further payments.
In the beginning of March, 1909, the wife returned to the Philippines, but the husband
had absented himself therefrom in the early days of February of the same year. On the
11th of March, 1909, the wife commenced divorce proceedings against her husband,
alleging as cause of action the adultery committed by him in or about the year 1899 with
a certain woman that she named in the complaint and with whom he had lived and
cohabited and by whom he had had two children. She prayed that she be granted a
decree of divorce; that the court order the separation of the properties of the plaintiff and
the defendant, to date from the date of the said decree; that the conjugal society be
therefore liquidated, and after the amount of the conjugal property had been determined,
that one-half thereof be adjudicated to her; furthermore, as to the amount of pension
owing for her support but not paid to her, that the defendant be ordered to pay her the
sum of 36,000 Spanish pesetas, that is, 7,220 Spanish dollars, which, reduced to
Philippine currency at the rate of exchange on the date of the complaint, amounted to
P12,959.90.
The defendant denied that either he or his wife was a resident of the city of Manila, as
they had their domicile in Barcelona, Spain, and he alleged that both of them were
natives and subjects of Spain. He admitted that he was married to Constanza Yaez; he
also admitted having executed the document of the 4th of April, 1899, in which he had
undertaken to make an allowance for the support of his wife in Madrid, but he denied the
other paragraphs of the complaint. As a special defense with regard to the allowance, he
alleged: "That in or about the month of May, 1900, he wrote to his wife, the plaintiff,
instructing her to return to Manila, with a view of joining her husband and being
maintained by him in his own house; that the communication was ignored by the plaintiff,
who against the will of the defendant, continued to live separately from him that from the
year 1901, the defendant did not know her address; that since 1900, the plaintiff has
lived in comfort and has known where her husband resided; that the plaintiff, during all of

the time referred to, in addition to dispossing of valuable property belonging to her
husband, possessed and still possesses property of her own, acquired by her, in greater
amount than that owned by her husband; and that in any case the action has prescribed
by operation of law."(B. of E., pp. 7 and 8.) As to the divorce, he admits that he had by
the plaintiff two children that have died. He expressly denied the contents of paragraph 5
of the complaint, relating to the charge of adultery and also those of paragraphs 6, 7, and
8, concerning the possession of real and personal property of the conjugal partnership,
the statement of their amount, and their qualification as being all conjugal property. As a
special defense, he alleged that prior to the year 1899 he conferred powers of attorney
upon the plaintiff to administer and collect property and credits pertaining to him to the
value of about 200,000 pesos; that the plaintiff accepted and exercised the said power of
attorney, attached the property and collected the credits without ever having rendered
any account of them. As a special preferred defense, he alleged that neither the trial
court nor any other court in the Philippine Islands has jurisdiction over the subject matter
of the complaint, because, as to the allowance for support, since neither the plaintiff nor
the defendant are residents of Manila, or of any other place in the Philippine Islands, the
agreement upon the subject was neither celebrated, nor was it to be fulfilled, in the
Philippine Islands; and as to the divorce, because the action therefore ought to be tried
by the ecclesiastical courts. In conclusion, he prayed that the court find: That the court
was without jurisdiction over the two causes of action; that even if it had jurisdiction, it
could not order the payment of the sum claimed as arrears of alimony; that, after all, the
action with regard to this cause of action has prescribed; and as to the prayer for a
decree of divorce, the defendant should be acquitted, while on the other hand the
plaintiff should be required to render to the defendant an accounting, supported by
proofs, of her operations as his attorney and administratrix of his property in Spain.
In deciding the case, the Court of First Instance of the city of Manila held itself to have
jurisdiction, decreed the suspension of life in common between the plaintiff and
defendant, ordered the latter to pay the former P5,010.17, directed that the communal
property be divided between the parties, with costs against the defendant, and in event
that the parties could not agree to the division, it was to be effected by commissioners
according to law.
Both parties appealed from this judgment, but notwithstanding the appeal, the partition
of the property, by means of commissioners, was proceeded with. These latter, after
various vicissitudes, rendered their report and account of the partition to the court, who
then rendered final judgment, from which, also, both parties appealed.
I.

DEFENDANT'S APPEAL.

The first error assigned is the utter lack of jurisdiction of the trial court and of all other
courts of the Islands to try the case, either with regard to the fulfillment of the contract to
furnish alimony, or to decree a divorce or suspension of life in common between the
spouses: lack of jurisdiction over the persons and over the subject matter of the
litigation; and over the persons of the contending parties, because neither of the spouses
was a resident of the Philippines on the date of the complaint.

The lower court did not commit this error attributed to him. The defendant had not
proved that he had elsewhere a legal domicile other than that which he manifestly had in
the Philippines during the seventeen years preceding the date of the complaint. On the
contrary, it plainly appears, without proof to the contrary, that during this not
inconsiderable period, extending from the year 1892 until a month prior to the arrival of
his wife in the Philippines in March, 1909, he had constantly resided in the said Islands,
had kept open house, and had acquired in the city of Manila quite a little real property
which is now the object of the division of the conjugal society. It is also plainly shown,
without proof to the contrary, that his wife resided in this city of Manila from the middle
of 1896 until April, 1899, at which time she was permitted by him to change her
residence. It is affirmed by the defendant in point five of his answer to the complaint, that
in May, 1900, he sent a letter instructing the plaintiff to return to Manila to live with her
husband and to be supported by him in his house, but that the plaintiff, against the will of
the defendant, continued to live part from him. (B. of E., p. 7.) It is also affirmed in the
said answer, that during all of the time referred to in the complaint, and especially since
1900, the plaintiff knew where her husband resided. (B. of E., p. 7.) It is also very evident
that the contract, by virtue of which he authorized his wife to move to Spain and reside
there in such place as was agreeable to her, was executed in these Islands, "in the city of
Manila on the 4th of April, 1889," as is to be seen in the heading of the document. (B. of
E., p. 12.) Finally, at page 11 of his brief, he says that the record shows him to be a
Spanish subject, inscribed in the consulate of his nation, and cities article 26 of the Civil
Code, the Treaty of Paris and the Philippine Bill.
Granting these facts, there can be no doubt that the defendant, although a Spanish
subject, was a resident of these Islands. Article 26 of the Civil Code that he cites itself
provides that "Spaniards who change their domicile to a foreign country, where they may
be considered as natives without other conditions than that of residents therein, shall be
required, in order to preserve the Spanish nationality, to state that such is their wish
before the Spanish diplomatic or consular agent, who must record them in the registry of
Spanish residents, as well as their spouses, should they be married, and any children
they may have." From this provision, which is the exclusive and irrefutable law governing
the defendant, we are to conclude that the domicile of the defendant and the plaintiff is
fully proven, irrespective of the Treaty of Paris. Without this supposition of having
acquired his domicile and residence in these Islands, he could not have required his wife
to return to live with him therein because this requirement could only be based on
articles 58 of the Civil Code of Spain, according to which the wife is obliged to follow her
husband wherever he wishes to establish his residence, or on article 48 of chapter 5 of
the Marriage Law in force in the Philippines, which imposes upon the wife the duty of
obeying her husband, living in his company, or of following him to wherever he transfers
his domicile or residence. And just because he was absent for a month before his wife
returned to the Philippines, he cannot be understood to have surrendered his habitual
domicile of more than seventeen years, without having established any other afterwards,
and without making any declaration in legal form, before he absented himself, of it being
his intention to change his domicile, while at the same time he retains here his house,
real property and all manner of means of subsistence. Section 377 of the Code of Civil
Procedure leaves to the election of the plaintiff the bringing of a personal action like the
one at bar either in the place where the defendant may reside or be found, or in that
where the plaintiff resides.

The litigating spouses have gained not only domicile (domicilio) but also residence
(vecindad) in Manila. In this litigation the defendant claims that, born as he says in
Mallorca, in the Balearic Islands, he is not subject, in his marriage, to the rules governing
conjugal property, that are in force in the territories of Spain that are governed by the
common law of Castillo (as the Philippines in their day), because they are opposed to the
Foral Law in force in the said Islands and which is respected by the Civil Code. Even if this
defense could be sustained herein, paragraph 2 of article 15 of the said Civil Code would
be applicable. It provides: "For the purposes of this article, residence (vecindad) will be
acquired: By residence of ten years in common law provinces or territories, unless before
the termination of that time he manifests his will to the contrary; or by a residence of two
years, if the interested person declares this to be his will . . . In any case, the wife will
follow the condition of her husband. . . ." On no occasion had the defendant manifested
his will to the contrary, not even as he was leaving, after a residence of seventeen years,
a month before the return of his wife to these Islands. On the contrary, when he inscribed
himself in the Spanish consulate, he declared his intention of continuing to reside in the
Islands as a Spaniard and not as a Mallorquin, subject as such to the common law of
Spain.
In an endeavor to demonstrate the lack of jurisdiction of the courts of these Islands over
the subject matter of the complaint that is to try an action for divorce between two
Catholic Spaniards, he alleges in his appeal: That both litigants are Spanish subjects and
that they contracted a Catholic marriage; that in accordance with article 9 of the Civil
Code of Spain (the same as that of these Islands) the laws relating to family rights and
duties, or to the status, condition and legal capacity of persons, govern Spaniards
although they reside in a foreign country; that, in consequence, "all questions of a civil
nature, such as those dealing with the validity or nullity of the matrimonial bond, the
domicile of the husband and wife, their support, as between them, the separation of their
properties, the rules governing property, marital authority, division of conjugal property,
the classification of their property, legal causes for divorce, the extent of the latter, the
AUTHORITY to decree it, and, in general, the civil effects of marriage and divorce upon
the person and properties of the spouses, are questions that are governed exclusively by
the national law of the husband and wife, and, in our case, by the Spanish law by virtue
of article 9 as above set out." (Brief, p. 12.) The appellant and defendant continues his
argument, saying: That by the express provision of article 80 of the Civil Code of Spain,
"jurisdiction in actions for divorce and nullification of canonical marriages lies with
ecclesiastical courts," while that of civil tribunals is limited to civil marriages; that this
being so, the action for divorce brought by the plaintiff in the cause does not fall within
the jurisdiction of the civil courts, according to his own law of persons, because these
courts ought to apply the Spanish law in accordance with the said article 9 of the Civil
Cod of Spain, and this Spanish law grants the jurisdiction over the present cause to the
ecclesiastical courts, in the place of which no tribunal of these Islands con subrogate
itself. Says this appellant: "If a law of a foreign country were of rigorous application in a
given case, a North American tribunal would have no jurisdiction upon an ecclesiastical
court and therefore the North American tribunal in applying it would have to exercise a
faculty which that law reserved to the ecclesiastical court." (Brief, pp. 13, 14, and 15.)

Unless we take the question itself for granted, the foregoing reasoning cannot be upheld.
The question is precisely whether the courts of the Philippines are competent or have
jurisdiction to decree the divorce now on appeal, and it is taken for granted that the
power to decree it is one of the rights included in the personal statute, but appellant does
not prove by any law or legal doctrine whatever that the personal statute of a foreigner
carries with it, to whether he transfers his domicile, the authority established by the law
of his nation to decree his divorce, which was what he had to demonstrate.
The authority of jurisdictional power of courts to decree a divorce is not comprised within
the personal status of the husband and wife, simply because the whole theory of the
statutes and of the rights which belong to everyone does not go beyond the sphere of
private law, and the authority and jurisdiction of the courts are not a matter of the
private law of persons, but of the public or political law of the nation. "The jurisdiction of
courts and other questions relating to procedure are considered to be of a public nature
and consequently are generally submitted to the territorial principle. . . . All persons that
have to demand justice in a case in which foreigners intervene, since they can gain
nothing by a simple declaration, should endeavor to apply to the tribunales of the state
which have coercive means (property situated in the territory) to enforce any decision
they may render. Otherwise, one would expose himself in the suit to making useless
expenditures which, although he won his case, would not contribute to secure his rights
because of the court's lack of means to enforce them." (Torres Campos, "Elementos de
Derecho International Privado," p. 108.) "Justice," says the same professor, "is a principle
superior to that of nations, and it should therefore be administered without taking into
any account whatsoever the state to which the litigants belong. . . . In order to foster
their relations and develop their commerce, all civilized nations are interested in doing
justice, not alone to their own people, but to those foreigners who contract within the
country or outside of it juridical ties which in some manner effect their sovereignty. (Ibid,
p. 107.) Might its courts, in some cases, in suits between foreigners residing in its
territory, apply the personal law of the parties, but abdicate their jurisdiction, refrain from
administering justice because the personal law of the foreigner gave the jurisdiction of
the given case to some court that is not the territorial one of the nation? This has never
yet been claimed in any of the theories regarding the conflict of laws arising out of
questions of nationality and domicile; it would be equivalent to recognizing
extraterritorial law in favor of private persons. The provisions of article 80 of the Civil Law
of Spain is only binding within the dominions of Spain. It does not accompany the persons
of the Spanish subject wherever he may go. He could not successfully invoke it if he
resided in Japan, in China, in Hongkong or in any other territory not subject to the
dominion of Spain. Foreign Catholics domiciled in Spain, subject to the ecclesiastical
courts in actions for divorce according to the said article 80 of the Civil Code, could not
allege lack of jurisdiction by invoking, as the law of their personal statute, a law of their
nation which gives jurisdiction in such a case to territorial courts, or to a certain court
within or without the territory of their nation.1awphi1.net
It is a question that has already been settled in two decisions of the Supreme Court
(Benedicto vs. De la Rama, 3 Phil. Rep., 34, and Ibaez vs. Ortiz, 5 Phil. Rep., 325).
In the present action for divorce the Court of First Instance of the city of Manila did not
lack jurisdiction over the persons of the litigants, for, although Spanish Catholic subjects,
they were residents of this city and had their domicile herein.

The Courts of First Instance of the Philippine Islands have the power and jurisdiction to try
actions for divorce. That of the city of Manila did not lack jurisdiction by reason of the
subject matter of the litigation.
The second assignment of error is directed against the finding of the court that the
defendant had committed adultery with a certain woman in this city from the year 1899
until 1909; the third was against the finding that the adultery was accompanied by public
scandal and injured the dignity of his wife; and the fourth for having decreed the divorce,
suspension of the married life, and the separation of the properties of the parties.
The evidence relating to the foregoing not being sent up on appeal, we are unable to
review it, so we accept the findings of the trial court.
There is a point of law regarding the claim that the adultery, even though it were proven
would not be a cause for divorce, because no public scandal resulted therefrom nor was
there contempt displayed for the wife. (Appellant's brief, p. 26.) The facts must be
accepted by this tribunal as they were found by the trial court, since the evidence cannot
be reviewed; moreover, the appellee affirms the contrary and maintains that it is a
proven fact, public and notorious, an assertion that the trial court must have found to be
proven. (Appellee's brief, p. 5.) In law, it is not necessary that adultery, to be a cause for
divorce, should be accompanied by public scandal and contempt for the wife. There is no
law that requires this. Law 2, title 9, of the Fourth Partida does not require it.
The fifth and sixth assignments of error are directed against the finding of the trial court
that there exists conjugal property, a finding that the appellant maintains is without
foundation, and that which holds that the property in the hands of the receiver (that
sought to be divided) is conjugal property, a conclusion which the appellant claims to be
contrary to the law which should be applied to the case and according to which, as
alleged in the tenth assignment of error, the whole of the property should be adjudicated
to the defendant as being exclusively his.
Facts: The appellant affirms that he is a native of Mallorca in the Balearic Islands and that
is also the condition of his wife, the plaintiff. Law: That although the rule of the Civil Code
is that which legally governs conjugal property, yet at the same time it admits, as an
exception, the laws, usages, and customs of the Foral Law, according to which, as applied
in the Balearic Islands, the law of the family is that of the division of property and that of
conjugal property is not known; so that the property pertains exclusively to the spouse
who, by whatever title, has acquired it. In support of the facts, appellant cites pages 27
to 37 and 39 to 41 in the bill of exceptions; and of the law, the doctrinal authority of
Manresa, Gutierrez, and Alcubilla.
The citation from pages 39 to 41 of the bill of exceptions, the only pertinent one, is but
an affidavit filed by the defendant in which, under oath, he himself testifies as to the
Foral Law in the Balearic Islands. The adverse party says with regard to this: "This
affidavit was never presented in proof, was never received by the trial judge, and cannot
seriously be considered as an effort to establish the law of a foreign jurisdiction. Sections
300, 301 and 302 of the Code of Civil Procedure, now in force in these islands, indicate

the method by which the law of a foreign country may

affidavit of a person not versed in the law, which was
received by the trial court, and which has never
examination, is not a means of proving a foreign law
(Brief, pp. 6 and 7.)

be proved. We maintain that the

never submitted as proof, never
been subjected to any crosson which the defendant relies."

Furthermore, on the supposition that the defendant could invoke the Foral Law as the law
of his personal status in the matter of the regimen of his marriage, and that to allege this
he be considered as authorized by article 15 of the Civil Code, we have said before, in
dealing with his law of domicile, that paragraph 2 of this article 15 of the Civil Code would
be entirely adverse to his claim, and if it be advanced that there is a similar Foral Law in
the Philippines by virtue of paragraph 1 of the said article 15, it might be said, though
there is not at present any need to say it, that it is not in force. The two findings attacked
are in perfect accord with the law. All the property of the marriage, says article 1407 of
the Civil Code, shall be considered as conjugal property until it is proven that it belongs
exclusively to the husband or to the wife. No proof has been submitted to this effect.
As seventh assignment of error it is alleged that the court below erred in holding in the
judgment that the plaintiff had brought to the marriage a dowry of 30,000 Spanish
dollars. But the defendant himself adds that the court made no order or decree regarding
the alleged dowry. On the other hand, the plaintiff, in her fourth assignment of errors,
claimed that the court erred in not confirming the report of the commissioners which
gave to the said plaintiff the sum of 30,000 Spanish dollars. It is unnecessary to say
anything further.
The eighth error consists in that the court below ordered the defendant to pay to the
plaintiff P56,010.17 Philippine currency, whereas the plaintiff had made no demand in her
complaint with respect to this sum; that no arrears of payment are owing for alimony,
even though payments had been stipulated in the contract, unless they are claimed by
the person who had furnished the actual support, and that alimony is due only when it is
necessary; so that, as the plaintiff has had no need of it for ten years, nor has she stated
who has furnished it, there is no reason for awaring her the amount of the arrears for all
that time; that as she has allowed ten years to elapse before claiming it, her action
prescribed in 1904, that is to say, after five years.
The plaintiff acknowledges that there is no petition or prayer in her complaint as to this
cause of action, but she considers that in equity such an omission can be supplied.
Paragraph 3 of section 89 (90) of the Code of Civil Procedure determines one of the
requisites of the complaint: "A demand for the relief which the plaintiff claims." The
section goes on to say: "If the recovery of money or damages is demanded, the amount
demanded must be stated. If special relief, such as an order for the special restitution of
property, etc., the ground of demanding such relief must be stated and the special relief
prayed for. But there may be added to the statement of the specific relief demanded a
general prayer for such further or other relief as shall be deemed equitable."
In the complaint of the case at bar the provisions of paragraph 2 of the said section 89
[90] are complied with by setting forth in its paragraphs 4 and 5 the relation of the cause

of action, that is, the contract of the 4th of April, 1899, by which the defendant obligated
himself to send to the plaintiff in Spain a certain amount of money monthly, for her
support, and the failure to comply with this obligation after the month of August, 1899.
Paragraph 6, as a consequence of the promise established in 4 and 5, says as follows:
"That the defendant Gabriel Fuster y Fuster actually owes the plaintiff the sum of 36,100
Spanish pesetas, that is, 7,220 dollars, which, reduced at the present rate of exchange,
amounts to the sum of P12,959.90, Philippine currency." (B. of E., p. 2.) In the case of
default on the part of the defendant "the court shall proceed to hear the plaintiff and his
witnesses and assess the damages or determine the other relief to which the plaintiff
may be entitled, including the costs of the action, and render final judgment for the
plaintiff to recover such sum or to receive such other relief as the pleadings and the facts
warrant." The pleadings, not the prayer of the complaint.
This court has recently decided that the pleadings, not the prayer, exactly, are the
essential part of a complaint.
It is not a question of alimony for the present, nor for the future, which constitutes the
first cause of action, but of certain sums stipulated in a contract. This contract is a law for
the contracting parties, a law which rises superior to those general laws which regulate
the nature of the subject matter of the contract (in the present case an entirely voluntary
one) and which govern judicial action.
An action arising out of a contract of this nature does not prescribe like all personal ones,
but, by the provisions of article 1964 of the Civil Code, after fifteen years. But even
though the provisions of article 1966 were applicable, by which an action to compel the
fulfillment of an agreement to pay alimony prescribes in five years, yet by section 50 of
the Code of Civil Procedure, "when payment has been made upon any demand founded
upon contract . . . an action may be brought . . . after such payment. . . ." And the parties
admit that on the 18th of August, 1908, the plaintiff secured the payment of 6,365.68
pesetas by virtue of the contract of April 4, 1899. So that from August, 1908, until March,
1909, the date of the complaint, the said period of five years had not elapsed.
The ninth assignment of error consists in that the court below erred in empowering the
receiver to proceed to the separation of the property and in appointing commissioners to
make the partition and distribution between the spouses, since the principal question in
this action hinges upon the classification of the property; that it was erroneously
classified as conjugal property, whereas all of it pertained to the husband alone and
should be adjudicated to him for the reason that, as it reiterated in the tenth assignment
of error, the conjugal partnership was not subject to the provisions of the law governing
conjugal property, because such provision are totally foreign to the Foral Law of the
Balearic Islands.
The action of the trial court, by the terms of section 184 of the Code of Civil Procedure,
was in accordance with law. The only question before this court is the partition of real
property. All that referred to in the second decision appealed from, dated September 9,
1911, is urban real estate. Its classification as conjugal property is in accordance with
law, as is shown in the foregoing reasoning, and that no consideration of the Foral Law
enters into the question has also been demonstrated.

II.

PLAINTIFF'S APPEAL.

As the trial court rendered judgment ordering the defendant to pay to the plaintiff only
P5,010.17, the petitioner here prays that the judgment be reversed and that in its place
this court order the defendant to pay to the plaintiff her claim of P12,959.90, plus the
additional sum which the alimony amounts to at the rate of P107.70 per month, dating
from the 1st of August, 1909, until the date of payment, with legal interest upon the said
P12,959.90 from the date of the filing of the complaint until the date of payment, and,
furthermore, legal interest upon each of the monthly payments due after the filing of the
complaint, and which will continue to become due until the close of this litigation.
The trial court made the following findings: First, that the total amount of the alimony
owing to the plaintiff amounted to 34,200 pesetas; second, that of this sum the plaintiff
had collected in Madrid 6,365.68; third, that the remainder, that is, 27,834.32, was
equivalent to $5,566.86 Mexican currency; fourth, that the Mexican peso was worth 90
centavos Philippine currency; fifth, that therefore the sum of $5,566.86 Mexican currency
was equivalent to P5,010 Philippine currency; and finally, as there was no evidence as to
the kind of pesetas agreed upon, it was to be presumed that it was that current at the
time and place where the agreement was made, which was Mexican pesetas.
In her appeal, the plaintiff contends that these findings are erroneous in that, firstly, the
parties had admitted that the pesetas referred to in the contract of the 4th of April, 1899,
were Spanish, and in view of this admission the court was not empowered to define them
as being different from the kind admitted by the parties; secondly, if he were so
empowered, his interpretation should be governed by the terms of the law.
With regard to the first error, the plaintiff says that the statement is made in her
complaint that the defendant had obligated himself to pay her a "monthly pension for her
support of 300 Spanish pesetas, that is, 60 Spanish dollars, which, reduced to Philippine
currency, amounts to P107.70;" that the defendant had admitted this in hi answer to the
complaint, and that by his finding in a sense other than that accepted and not refuted in
the answer of the defendant, the court violated the provisions of section 94 of the Code
of Civil Procedure.
The court has not incurred this error, because it does not appear that the defendant in his
answer accepted the fact in the manner alleged in the complaint. The defendant said
that he admitted having made the agreement referred to in paragraph 4 of the
complaint, and that he stood upon its contents. The contents of the document to which
he refers is of the following tenor: "Mr. Fuster binds and obligates himself to pay to his
said wife the sum of 300
pesetas, monthly, payable de su cuenta in the city and capital of Madrid, for her
support. . . ." He did not therefore admit the matter of the Spanish pesetas; that does not
appear in the contents of the document the only thing he admitted in his answer.

As to the second error, the court did not commit it in applying the rule contained in
article 1287 of the Civil Code. "The usages or customs of the country shall be taken into
consideration in interpreting ambiguity in contracts. . . ." If in the contract the word "
pesetas," not being specific, was ambiguous, then it was in harmony with this precept to
interpret it as being the peseta then in use or current when and where the agreement
was made, Mexican being then the usual and current money in the Philippines.
Furthermore, the phrase de su cuenta clearly means that it was not "Spanish pesetas"
that the contracting parties had in mind, because if the agreement had been a specific
one to pay 300 Spanish pesetas in Madrid, everyone would of course understand that the
expense of following the fluctuations of change and of the differences in value between
the money current in the country, and the Spanish pesetas, would have to be defrayed
by the obligated party; whereas, if nothing more than pesetas was mentioned, it was
necessary to decide which party should pay for the difference in value so that the 300
pesetas stipulated here should be 300 Spanish pesetas paid in Madrid. Against the
reasons of the court below for his decision this court can offer no legal grounds. The rule
of interpretation cited is the one applicable and it supports the reasoning of the decision
appealed from.
The appellant also alleges as error that the court did not adjudicate to her the 30,000
Spanish dollars which the commissioners proposed in their report. First she characterizes
this sum of 30,000 dollars as the dowry of the wife delivered to the husband, then, later,
as paraphernal property brought to the marriage.
According to the last instructions of the court to the commissioners, this amount of
30,000 dollars could not enter into the partition, and with reason. If, as was claimed, it
was inherited by the plaintiff from her uncle, it really constitutes paraphernal property
under article 1381. "Paraphernal property is that which the wife brings to the marriage
without being included in the dowry and that she may acquire after the creation of the
same without being added thereto." But it is a provision of article 1384 that "The wife
shall have the management of the paraphernal property unless she has delivered the
same to her husband, before a notary, in order that he may administer said property. In
such case the husband is obliged to create a mortgage for the value of the personal
property he may receive, or to secure said property, in the manner established for the
dowry property." Not even was there offered in evidence the public deed of delivery, nor
the equally public mortgage deed that is required by law. So that, therefore, the
necessary proof of the obligation to return paraphernal property as here demanded does
not exist.lawphil.net
The partition of property decreed in the judgment appealed from of the 9th of
September, 1911, should be and is hereby confirmed.
The two judgments appealed from are hereby affirmed, without special pronouncement
of costs in this instance.