REPUBLIC v.
BAUTISTA certificate of his first child, Launny Mangabat Sorensen, his nationality as
October 26, 1987| Fernan, J. |Cancellation/Correction of entries
Digester: Agustin, Chrissete
SUMMARY: Imelda sought to correct and change the word “American” into “Danish”
in the birth certificate of her minor son, Raymund, to reflect the true nationality of her
husband and the father of the child. Upon compliance with the jurisdictional
requirements (petition, notice, hearing, appearance of Local Civil Registrar/SolGen), the
CFI granted the petition. Republic opposed arguing that the correction sought by
Imelda are not mere clerical errors/alterations but substantial since it involves
citizenship/nationality. The Court upheld the CFI order of correction.
DOCTRINE: Proceedings under Article 412 of the Civil Code and Rule 108 of the
Rules of Court may either be summary or adversary in nature. If the correction sought
to be made in the civil register is clerical, then the procedure to be adopted is summary.
If the rectification affects the civil status, citizenship or nationality of a party, it is
deemed substantial, and the procedure to be adopted is adversary.
Rectifications regarding nationality or citizenship in the civil register may be undertaken
as long as the appropriate remedy is used. The appropriate remedy may well be a
petition filed by way of special proceeding for the cancellation and/or correction of
substantial entries in the civil register with the requisite parties, notices, publications and
the proceedings to be taken thereafter pursuant to Sections 3, 4 and 5 of Rule 108
because then the proceedings will be adversary in character. If all these procedural
requirements have been followed, a petition for correction and/or cancellation of
entries in the record of birth even if filed and conducted under Rule 108 of the Revised
Rules of Court can no longer be described as “summary” and thereon becomes
adversary proceedings.
FACTS:
 Imelda Mangabat Sorensen sought to correct and change the word “American”
into the word “Danish” in the birth certificate of her minor son, Raymund
Mangabat Sorensen to reflect the true nationality of Bo Huage Sorensen, her
husband and the father of said minor child.
 Upon compliance with the jurisdictional requirements set forth in Rule 108 of the
Rules of Court on cancellation or correction of entries in the Civil Registry, the
petition was set for hearing.
 The evidence adduced in support of the petition:
o Imelda in substance testified that she is married to Bo Huage Sorensen, a
Danish citizen. She and her Danish husband, she begot two (2) children,
namely: Launny and Raymund. The nationality of her husband was
correctly stated as Danish,while in the birth certificate of her second son
Raymund, her husband’s nationality was erroneously stated as American
o Bo Huage Sorensen testified that he was born of a Danish father, on April
22, 1944, at Vejle, Denmark, and presented a certification issued by the
Royal Danish Consulate of Manila. On March 14, 1968, he was married to
Imelda at Makati, Rizal. He is still considered tourist and living with his
wife and two sons at 122-A Mabuhay St., Pasay City. In the birth
“Danish” was correctly stated, while in the birth certificate of his second
son, Raymund, his citizenship was erroneously entered as “American”
 The Republic of the Philippines opposed the aforesaid petition and moved for the
dismissal on the ground that a correction of entry in the Civil Registry is allowed
only when the same refers to mere clerical errors or mistakes, but not to substantial
changes affecting the civil status, nationality or citizenship of the person concerned.
 CFI: Granted and ordered the Local Civil Registrar to make the necessary
corrections in the entry of birth of minor Raymund Mangabat Sorensen.
 RP filed MR – Denied. So RP appealed to the SC.
RULING: the instant petition for review on certiorari is hereby denied for lack of merit
and the decision of the court a quo in Special Proceedings No. 2191- P is affirmed.
Whether the challenged decision, which involves the question of citizenship, is a
matter that can legally be treated under the provision of Article 412 of the Civil
Code, in conjunction with Rule 108 of the Rules of Court
- YES
Republic:
 The proceedings laid down in Article 412 (CC), in relation to Rule 108 of the Rules
of Court, refer only to corrections of clerical errors or alterations which are
harmless and innocuous. Since the petition under consideration concerns the
citizenship of private respondent’s son, the same cannot be determined under the
aforementioned provisions of law. Citizenship is a grave and serious matter which
should be threshed out only in an appropriate suit, wherein not only the State but
also all affected persons are made parties defendants or respondents including the
Commissioner of the then Bureau of Immigration who was not summoned in the
special proceedings below.
COURT:
 Proceedings under Article 412 of the Civil Code and Rule 108 of the Rules of
Court may either be summary or adversary in nature. [Republic v. Valencia]
 If the correction sought to be made in the civil register is clerical, then the
procedure to be adopted is summary. If the rectification affects the civil
status, citizenship or nationality of a party, it is deemed substantial, and the
procedure to be adopted is adversary.
 Republic vs. Valencia: It is undoubtedly true that if the subject matter of a petition is
not for the correction of clerical errors of a harmless and innocuous nature, but
one involving nationality or citizenship, which is indisputably substantial as well as
controverted, affirmative relief cannot be granted in a proceeding summary in
nature. However, it is also true that a right in law may be enforced and a wrong
may be remedied as long as the appropriate remedy is used. This Court adheres to the
principle that even substantial errors in a civil registry may be corrected and the
true facts established provided the parties aggrieved by the error avail themselves of
the appropriate adversary proceeding, What is meant by “appropriate adversary
proceeding?” Black’s Law Dictionary defines “adversary proceeding” as “One
having opposing parties; contested, as distinguished from an ex parte
 application, one of which the party seeking relief has given legal warning to
the other party, and afforded the latter an opportunity to contest it”
 We further ruled in Republic vs. Valencia that if the procedural requirements
provided in Sections 3, 4 and 5 of the Rules of Court are followed, the
procedure ceases to be summary and becomes litigious. Proceedings following
the aforementioned sections may then be appropriate for the correction of
substantial matters in the civil registry.
 Republic vs. Medina: From the effectivity of the new Civil Code on August 30, 1950
until the promulgation of the Revised Rules of Court on January 1, 1984, there was
no rule of court prescribing the particular course of action for securing judicial
authorization to effect harmless changes or revisions in the civil register pursuant
to Article 412 of the Civil Code. Rule 108 of the 1964 Rules of Court provides for
such a mode which should however be limited solely to the implementation of
Article 412, the substantive law on corrections in the civil register.
 From case of Ty Kong Tin vs. Republic (1954) to the case of Republic vs. Caparosso
(1981), the consistent rule laid down was that the revision of any entry pursuant to
Article 412, as implemented by Rule 108, referred to those changes that are
harmless and innocuous. In those cases, however, it was intimated that
rectifications regarding nationality or citizenship in the civil register may be
undertaken as long as the appropriate remedy is used.
Republic vs. Valencia:
 The appropriate remedy may well be a petition filed by way of special proceeding
for the cancellation and/or correction of substantial entries in the civil register with
the requisite parties, notices, publications and the proceedings to be taken
thereafter pursuant to Sections 3, 4 and 5 of Rule 108 because then the proceedings
will be adversary in character.
 Thus, the persons who must be made parties to a proceeding concerning the
cancellation or correction of an entry in the civil register are — (1) the civil
registrar, and (2) all persons who have or claim any interest which would be
affected thereby. Upon the filing of the petition, it becomes the duty of the court to
— (1) issue an order fixing the time and place for the hearing of the petition, and
(2) cause the order for the hearing to be published once a week for three [3]
consecutive weeks in a newspaper of general circulation in the province. The
following are likewise entitled to oppose the petition: - (1) the civil registrar, and (2)
any person having or claiming any interest under the entry whose cancellation or
correction is sought.
 If all these procedural requirements have been followed, a petition for correction
and/or cancellation of entries in the record of birth even if filed and conducted
under Rule 108 of the Revised Rules of Court can no longer be described as
“summary.” There can be no doubt that when an opposition to the petition is filed
either by the Civil Registrar or any person having or claiming any interest in the
entries sought to be cancelled and/or corrected and the opposition is actively
prosecuted, the proceedings thereon become adversary proceedings.
As applied
 In the present case, the records show that the Pasay City Local Civil Registrar and
the Solicitor General [as counsel for the Republic] were made parties to the petition
for correction of entry in the civil registry filed in the CFI of Rizal, Pasay City
branch. The proper notice was published once a week for three [3] consecutive
weeks in the Rizal Weekly Bulletin, a newspaper of general circulation. The Republic
appeared through a trial attorney of the Office of the Solicitor General who was
present and did not object to the presentation of evidence, although after the
hearing, the said trial attorney filed an opposition and/or motion to dismiss on the
ground that the correction being sought did riot refer to a mere clerical mistake but
to a substantial change involving the nationality of a person.
 In the light of the foregoing which show compliance with Sections 2, 4 and 5 of
Rule 108, the proceedings undertaken in the lower court in Special Proceedings No.
2191-P were unmistakably adversary, thus removing the initial apprehension of the
State that "if the entries in the civil registrar could corrected ... through a mere
summary proceeding and not through an appropriate action wherein all the parties
who may be affected by the entries are notified or represented, we would set wide
open the door to fraud or other mischief, the consequence of which might be
detrimental and far-reaching."
LEONOR v CA
April 2, 1996 | Panganiban, J. | Topic
Digester: Angat, Christine Joy
SUMMARY: Virginia and Mauricio Leonor married in San Carlos City on 1960. During
their marriage, Mauricio resided in Switzerland while Virginia stayed in the Philippines.
Virginia learned that Mauricio was staying with someone else in Switzerland, prompting
her to file a civil action in Geneva for separation and alimony. Mauricio countersued for
divorce. Meanwhile, Virginia discovered that their solemnizing officer did not send a
copy of their marriage contract to the civil registrar. She then filed for late registration
which was granted. When Mauricio learned this, he filed a petition for cancellation of
late registration under Rule 108 on account of nullity of marriage. The trial court ruled
in favor of Mauricio and declared the marriage null and void. Virginia argues that the
trial court cannot rule on the validity of marriage because Mauricio’s petition is limited
to the cancellation or correction of entries in the Civil Registry. The Court held that in
Rule 108 proceedings, only clerical or typographical errors can be subject of correction
or cancellation. When the matter sought to be corrected or cancelled constitute a
substantial change in the parties’ civil status, such as the validity of Virginia and
Mauricio’s marriage, Rule 108 does not lie and the issue must be resolved in an
adversarial proceeding.
DOCTRINE: The only errors that can be cancelled or corrected under Rule 108 are
typographical or clerical errors, not material or substantial ones like the validity or nullity
of a marriage. A clerical error is one which is visible to the eyes or obvious to the
understanding; error made by a clerk or a transcriber; a mistake in copying or writing or
some harmless and innocuous change such as a correction of name that is clearly
misspelled or of a misstatement of the occupation of the parent.
Thus, where the effect of a correction in a civil registry will change or substantially
alter the civil status or citizenship of a person in the Civil Registry Records, the court
cannot thresh out the same in a Rule 108 proceeding unless first threshed out in an
adversarial proceeding – an appropriate action wherein all parties who may be affected
by the entries are notified or represented.
FACTS:
 Virginia Leonor and Mauricio Leonor married in San Carlos City on March 13,
1960. Their union was blessed with three children, Mauricio III, Ned, and Don.
 During their marriage, Mauricio resided in Switzerland studying and working, while
Virginia stayed in the Philippines working as a nurse in Laguna. Mauricio became
unfaithful and lived with a certain Lynda Pond in Switzerland.
 Upon learning this, Virginia instituted a civil action in Geneva, Switzerland for
separation and alimony. Mauricio filed a counter-suit for divorce.
 February 14, 1991: The lower Cantonal Civil Court of Switzerland granted the
divorce but reserved the liquidation of the matrimonial partnership. It also denied
alimony in favor of Virginia.
 March 1991: Mauricio filed a letter with the court raising for the first time the
alleged non-existence of his marriage to Virginia.
 Meanwhile, Virginia learned that the solemnizing officer of their marriage, Justice
of the Peace Mabini Kaltas, did not send a copy of their marriage contract to the
Civil Registrar of San Carlos City. She then applied for late registration of their
marriage which was granted by the Civil Registrar.
 On the other hand, the Cantonal Civil Court in Switzerland affirmed the divorce
but granted alimony in favor of Virginia. Mauricio appealed this decision to the
Federal Court, who affirmed the Cantonal Civil Court’s ruling.
 May 22, 1992: Mauricio, represented by his brother Teodoro Leonor, filed a
petition for cancellation of the late registration of marriage in the civil registry
pursuant to Rule 108 of the Rules of Court.
o Cited as a ground in the said petition is the tardiness of registration and nullity
of marriage due to non-observance of legal requirements of a valid marriage.
 The trial court declared the marriage null and void for being sham and fictitious.
Virginia filed a notice of appeal eleven days after she received the decision (on
January 15, 1993 after she received the decision on January 4, 1995).
o This was opposed by Mauricio on the ground that she failed to file her record
on appeal within 30 days from date of receipt. Thus, her appeal has not been
perfected.
 The trial court ruled in favor of Mauricio. Virginia filed a petition for certiorari,
prohibition and mandamus with the CA, seeking the cancellation of the lower
court’s decisions (on the nullity of marriage and dismissal of her appeal). The CA
ruled that appeal should have been the proper remedy, but nonetheless granted the
petition insofar as the dismissal of her appeal (i.e. lower court should not have
dismissed her appeal notwithstanding failure to file a record on appeal).
 Hence, the instant petition by Virginia, arguing that:
o The lower court erred in treating Mauricio’s petition under Rule 108 as a
petition for declaration of nullity of marriage instead of a special proceeding
for cancellation of an entry in the civil registry
o Her marriage with Mauricio is not null and void
 The lower court erred in disregarding the presumptions in favor of the
rights of children, administration of conjugal property, and the validity of
marriage.
RULING: Petition granted.
Whether in disposing of a special proceeding under Rule 108, the trial court have
jurisdiction to declare the marriage null and void and to order the cancellation of
its entry in the local civil registry - NO
 According to Rule 108, Sec. 1, the special proceeding for the cancellation or
correction of entries in the civil registry may be availed of by any person interested
in any act or decree concerning the civil status of persons which has been recorded
in the civil register. One of the matters subject to cancellation or correction under
this Rule is marriages (Rule 108, Sec. 2[b]).
 On its face, the Rule would appear to authorize the cancellation of any entry
regarding marriages in the civil registry for any reason by the mere filing of a
verified petition for the purpose. However, in truth, the only errors that can be
cancelled or corrected under this Rule are typographical or clerical errors,
not material or substantial ones like the validity or nullity of a marriage.
o A clerical error is one which is visible to the eyes or obvious to the
understanding; error made by a clerk or a transcriber; a mistake in copying or
writing or some harmless and innocuous change such as a correction of name
that is clearly misspelled or of a misstatement of the occupation of the parent.
 Thus, where the effect of a correction in a civil registry will change or substantially
alter the civil status or citizenship of a person in the Civil Registry Records, the
court cannot thresh out the same in a Rule 108 proceeding unless first threshed out
in an adversarial proceeding – an appropriate action wherein all parties who may be
affected by the entries are notified or represented.
 In this case, the summary procedure under Rule 108, and for that matter under Art.
412 of the Civil Code, cannot be used by Mauricio to change his and Virginia’s civil
status from married to single and of their three children from legitimate to
illegitimate. The court does not have jurisdiction to declare the marriage null and
void and order the local civil registrar to cancel the marriage entry in the civil
registry.
Whether the CA erred in ordering the trial court to give due course to Virginia’s
appeal instead of deciding the merits of the case – NO
Whether the Supreme Court should decide on the merits of the case (whether the
marriage is null and void) notwithstanding the limited question (propriety of
CA’s order) raised before it - YES
 The Court of Appeals acted within its authority in simply ordering the trial court to
give due course to petitioner’s appeal without going into the merits of the case.
o Virginia actually filed a proper Notice of Appeal which the trial court
disallowed. Hence, she had no choice but to bring her petition for certiorari in
CA.
 o Since the petitioner before it is a certiorari, the CA limited itself to ruling upon
the question before it—whether the trial court acted in grave abuse of
discretion in dismissing the appeal.
 However, it should be noted that the courts have the duty to uphold the principles
of speedy, adequate and substantial justice. The courts must pro-actively provide
weary litigants with immediate legal and equitable relief, free from the delays and
legalistic contortions that oftentimes result from applying purely formal and
procedural approaches to judicial dispensations.
 In this case, while the CA did not abuse its authority in ordering the trial court to
give due course to Virginia’s appeal, to not resolve the issue is to constrain her to
go back to the CA, this time by ordinary appeal. This would be tantamount to
punishing her and delaying her cause for faults not attributable to her.
 Thus, considering the peculiar circumstances present in the petition, there should
be an exception to the normal procedures and allow the SC to delve deeper into the
substantive issue of the validity/nullity of the trial courts proceedings and
judgment.
TEOFISTA BABIERA v. PRESENTACION CATOTAL
June 15, 2000 | Panganiban, J. | Cancellation or correction of entries in the civil registry
Digester: Aspi, Maria Margarita
SUMMARY: Presentacion filed with the RTC a petition for the cancellation of the
entry of birth of Teofista. She asserted that she is the only surviving child of the late
spouses Eugenio and Hermogena and that a baby girl was delivered by ‘hilot’ in the
house of spouses Eugenio and Hermogena and without the knowledge of said spouses,
Flora Guinto, the mother of the child and a housemaid of spouses Eugenio and
Hermogena, caused the registration/recording of the facts of birth of her child, by
simulating that she was the child of the spouses Eugenio, then 65 years old and
Hermogena, then 54 years old, and made Hermogena appear as the mother by forging
her signature. Teofista filed an MTD on the grounds that the petition states no cause of
action, it being an attack on the legitimacy of the respondent as the child of the spouses
Eugenio and Hermogena; that plaintiff has no legal capacity to file the instant petition
pursuant to Article 171 FC; and finally that the instant petition is barred by prescription
in accordance with Article 170 FC. The TC denied the MTD. CA, SC affirmed the TC.
Presentacion has the legal capacity to file the special proceeding. Article 171 FC is not
applicable. It applies to instances in which the father impugns the legitimacy of his
wife’s child. It presupposes that the child was the undisputed offspring of the mother.
The present case alleges and shows that Hermogena did not give birth to petitioner. The
prayer is not to declare that petitioner is an illegitimate child of Hermogena, but to
establish that the former is not the latter’s child at all. Moreover, the present action
involves the cancellation of petitioner’s Birth Certificate; it does not impugn her
legitimacy. Thus, the prescriptive period set forth in Article 170 FC does not apply.
Lastly, petitioner, relying merely on the assumption of validity of the Birth Certificate,
has presented no other evidence other than the said document to show that she is really
Hermogena’s child. Neither has she provided any reason why her supposed mother
would make a deposition stating that the former was not the latter’s child at all.
DOCTRINE: Respondent has the requisite standing to initiate the present action.
Section 2, Rule 3 of the Rules of Court, provides that a real party in interest is one “who
stands to be benefited or injured by the judgment in the suit, or the party entitled to the
avails of the suit.” The interest of respondent in the civil status of petitioner stems from
an action for partition which the latter filed against the former. The case concerned the
properties inherited by respondent from her parents. The present action involves the
cancellation of petitioner’s Birth Certificate; it does not impugn her legitimacy. Thus,
the prescriptive period set forth in Article 170 FC does not apply.
FACTS:
 Presentation B. Catotal (Presentacion) filed with the RTC of Lanao del Norte,
Branch II, Iligan City, a petition for the cancellation of the entry of birth of
Teofista Babiera (Teofista) in the Civil Registry of Iligan City.
 Presentacion asserted:
o that she is the only surviving child of the late spouses Eugenio Babiera and
Hermogena Cariñosa, who died on May 26, 1996 and July 6, 1990 respectively;
that on September 20, 1996 (weird nung dates kasi the spouses were already dead when
their alleged child was born; but I checked other copies of the cases, eto talaga eh. But
supposedly 1956 based on other dates in the facts) a baby girl was delivered by ‘hilot’
in the house of spouses Eugenio and Hermogena and without the knowledge
of said spouses, Flora Guinto, the mother of the child and a housemaid of
spouses Eugenio and Hermogena, caused the registration/recording of the
facts of birth of her child, by simulating that she was the child of the spouses
Eugenio, then 65 y/o and Hermogena, then 54 y/o, and made Hermogena
appear as the mother by forging her signature;
o that petitioner, then 15 y/o, saw with her own eyes and personally witnessed
Flora Guinto give birth to Teofista Guinto, in their house, assisted by ‘hilot’;
o that the birth certificate of Teofista is void ab initio, as it was totally a simulated
birth, signature of informant forged, and it contained false entries: a) the child
is made to appear as the legitimate child of the late spouses Eugenio and
Hermogena, when she is not; b) the signature of Hermogena, the mother, is
falsified/forged. She was not the informant; c) the family name BABIERA is
false and unlawful and her correct family name is GUINTO, her mother being
single; d) Her real mother was Flora Guinto and her status, an illegitimate
child; The natural father, the carpenter, did not sign it;
o that the respondent Teofista’s birth certificate is void ab initio, and it is patently a
simulation of birth, since it is clinically and medically impossible for the
supposed parents to bear a child in 1956 because: a) Hermogena, was already
54 y/o; b) Hermogena’s last child birth was in 1941, the year petitioner was
born; c) Eugenio was already 65 y/o, that the void and simulated birth
certificate of Teofista would affect the hereditary rights of petitioner who
inherited the estate of cancelled and declared void and theretofore she prays
that after publication, notice and hearing, judgment be rendered declaring the
certificate of birth of respondent Teofista as declared void, invalid and
ineffective and ordering the respondent local civil registrar of Iligan to cancel
 from the registry of live birth of Iligan City birth certificate recorded as
Registry No. 16035.
 TC issued an order directing the publication of the petition and the date of hearing
in a newspaper, the Local Civil Registrar of Iligan City, the office of the City
Prosecutor of Iligan City and [sending a copy to] Teofista.
 Teofista filed a motion to dismiss on the grounds that the petition states no cause
of action, it being an attack on the legitimacy of the respondent as the child of the
spouses Eugenio and Hermogena; that plaintiff has no legal capacity to file the
instant petition pursuant to Article 171 FC; and finally that the instant petition is
barred by prescription in accordance with Article 170 FC.
 The trial court denied the motion to dismiss.
 Teofista averred that she was always known as Teofista Babiera and not Teofista
Guinto; that plaintiff is not the only surviving child of the late spouses Eugenio and
Hermogena, for the truth of the matter is that plaintiff Presentation and defendant
Teofista are sisters of the full-blood. Her Certificate of Birth, signed by her mother
Hermogena, Certificate of Baptism, Student’s Report Card all incorporated in her
answer, are eloquent testimonies of her filiation.
 CA: the evidence adduced during trial proved that petitioner was not the biological
child of Hermogena. No evidence was presented to show that Hermogena became
pregnant in 1959. She was already 54 y/o at the time, and that her last pregnancy
had occurred in 1941. The supposed birth took place at home, notwithstanding the
advanced age of Hermogena and its concomitant medical complications. Moreover,
petitioner’s Birth Certificate was not signed by the local civil registrar, and the
signature therein, which was purported to be that of Hermogena, was different
from her other signatures. Also inapplicable are Articles 170 and 171 FC, which
stated that only the father could impugn the child’s legitimacy, and that the same
was not subject to a collateral attack. It held that said provisions contemplated a
situation wherein the husband or his heirs asserted that the child of the wife was
not his. In this case, the action involved the cancellation of the child’s Birth
Certificate for being void ab initio on the ground that the child did not belong to
either the father or the mother.
RULING: Petition is denied and the assailed decision affirmed.
Whether respondent has the legal capacity to file the special proceeding on
appeal – YES.
 Petitioner: respondent has no standing to sue, because Article 171 FC states that
the child’s filiation can be impugned only by the father or, in special circumstances,
his heirs. She adds that the legitimacy of a child is not subject to a collateral attack.
 Respondent has the requisite standing to initiate the present action. Section 2, Rule
3 of the Rules of Court, provides that a real party in interest is one “who stands to
be benefited or injured by the judgment in the suit, or the party entitled to the
avails of the suit.” The interest of respondent in the civil status of petitioner stems
from an action for partition which the latter filed against the former. The case
concerned the properties inherited by respondent from her parents.
 Article 171 FC is not applicable to the present case. It applies to instances in which
the father impugns the legitimacy of his wife’s child. It presupposes that the child
was the undisputed offspring of the mother. The present case alleges and shows
that Hermogena did not give birth to petitioner. In other words, the prayer herein
is not to declare that petitioner is an illegitimate child of Hermogena, but to
establish that the former is not the latter’s child at all.
 Benitez-Badua v. CA: on the applicability of Articles 164, 166, 170 and 171 FC xxx
they do not contemplate a situation where a child is alleged not to be the child of
nature or biological child of a certain couple. Rather, these articles govern a
situation where a husband (or his heirs) denies as his own a child of his wife. Under
Article 166, it is the husband who can impugn the legitimacy of said child by
proving: (1) it was physically impossible for him to have sexual intercourse, with his
wife within the first 120 days of the 300 days which immediately preceded the birth
of the child; (2) that for biological or other scientific reasons, the child could not
have been his child; (3) that in case of children conceived through artificial
insemination, the written authorization or ratification by either parent was obtained
through mistake, fraud, violence, intimidation or undue influence. Articles 170 and
171 speak of the prescriptive period within which the husband or any of his heirs
should file the action impugning the legitimacy of said child.
Whether the special proceeding on appeal is improper and is barred by the
statue of limitations – NO.
 Petitioner: the action to contest her status as a child of the late Hermogena Babiera
has already prescribed. She cites Article 170 FC which provides the prescriptive
period for such action: Art. 170. The action to impugn the legitimacy of the child shall be brought
within one year from the knowledge of the birth or its recording in the civil register, if the husband or,
in a proper case, any of his heirs, should reside in the city or municipality where the birth took place or
was recorded. If the husband or, in his default, all of his heirs do not reside at the place of birth as
defined in the first paragraph or where it was recorded, the period shall be two years if they should
reside in the Philippines; and three years if abroad. If the birth of the child has been concealed from or
was unknown to the husband or his heirs, the period shall be counted from the discovery or knowledge
of the birth of the child or of the fact of registration of said birth, whichever is earlier.
 This argument is bereft of merit. The present action involves the cancellation of
petitioner’s Birth Certificate; it does not impugn her legitimacy. Thus, the
prescriptive period set forth in Article 170 FC does not apply.
Whether the CA was correct in failing to hold that the ancient public record of
petitioner’s birth is superior to the self-serving testimony of respondent – YES.
 Petitioner: the evidence presented, especially Hermogena’s testimony that petitioner
was not her real child, cannot overcome the presumption of regularity in the
issuance of the Birth Certificate.
 Petitioner’s Birth Certificate enjoys the presumption of regularity, the specific facts
attendant in the case at bar, as well as the totality of the evidence presented during
trial, sufficiently negate such presumption. First, there were already irregularities
regarding the Birth Certificate itself. It was not signed by the local civil registrar.
The mother’s signature therein was different from her signatures in other
documents presented during the trial. Second, the circumstances surrounding the
 birth of petitioner show that Hermogena is not the former’s real mother. For one,
there is no evidence of Hermogena’s pregnancy. No witness was presented to attest
to the pregnancy of Hermogena during that time. Moreover, at the time of her
supposed birth, Hermogena was already 54 years old. Even if it were possible for
her to have given birth at such a late age, it was highly suspicious that she did so in
her own home, when her advanced age necessitated proper medical care normally
available only in a hospital. In her deposition, Hermogena stated that she did no
give birth to petitioner, and that the latter was neither hers nor her husband’s.
Q: Who are your children?
A: Presentacion and Florentino Babiera
Q: Now, this Teofista Babiera claims that she is your legitimate child with your husband Eugenio
Babiera, what can you say about that?
A: She is not our child x x x
Q: Now, during this time, do you recall if you ever asserted her as your daughter with your husband?
A: No, sir.
 Relying merely on the assumption of validity of the Birth Certificate, petitioner has
presented no other evidence other than the said document to show that she is really
Hermogena’s child. Neither has she provided any reason why her supposed mother
would make a deposition stating that the former was not the latter’s child at all.
ALBA v. CA
July 29, 2005 | Ynares-Santiago, J. | Cancellation or Correction of Entries in the Civil
Registry
Digester: Bathan, Maria Aurelia
SUMMARY: Herrera filed a petition for cancellation of entries in the birth certificate
of Rosendo, Jr. which indicated him as the father. The RTC then issued an Order
setting the petition for hearing and caused its publication. Notice of the Order to
Rosendo, Jr. and the mother, Armi, was personally served but it failed because
apparently they did not live in the address. RTC granted Herrera’s petition. When Armi
found out, she filed a petition for annulment of judgment on the ground of lack of
jurisdiction and extrinsic fraud. Re lack of jurisdiction, SC held that jurisdiction over
person is not necessary in actions quasi in rem such as the present petition for
correction of entries in the birth certificate. In such actions, filing of the petition vests
the court with jurisdiction and publication suffices to comply with the due process
requirement. Publication of the notice also binds the whole world to the decision. Re
extrinsic fraud, such was not proven. Furthermore, Armi failed to establish the merits of
her petition. She failed to show that anything would be achieved if the RTC judgment
would be annulled. Illegitimate children unrecognized by their fathers such as the minor
in this case, are required to use the surname of their mothers.
DOCTRINE: Substantial corrections or cancellations of entries in civil registry records
affecting the status or legitimacy of a person may be effected through the institution of
a petition under Rule 108 with the proper Regional Trial Court. Being a proceeding in
rem, acquisition of jurisdiction over the person of petitioner is therefore not required in
the present case. It is enough that the trial court is vested with jurisdiction over the
subject matter.
FACTS:
 Oct. 21, 1996 – Rosendo Herrera (respondent) filed a petition for cancellation of
the following entries in the birth certificate of “Rosendo Alba Herrera, Jr.”:
o (1) the surname “Herrera” as appended to the name of said child;
o (2) the reference to respondent as the father of Rosendo Alba Herrera, Jr.; and
o (3) the alleged marriage of respondent to the child’s mother, Armi A. Alba
(Armi) on August 4, 1982 in Mandaluyong City.
 HE claimed that these are false and that it was only in Sept. 1996 that he learned
of the existence of said birth certificate. He married only once, on June 28, 1965 to
Esperanza C. Santos and never contracted marriage with Armi nor fathered
Rosendo, Jr. He presented certifications from the Civil Registrar of Mandaluyong
City and the NSO that they have no record of marriage between him and Armi.
 Nov. 1996 – Herrera filed an amended petition, impleading Armi and all the
persons who have or claim any interest in the petition
 RTC: Set the petition for hearing and directed the publication and service of order
to Armi at her address appearing in the birth certificate (No. 418 Aquiza St.,
Ermita, Manila), and to the Civil Registrar of Manila and the SolGen.
 The trial court rescheduled the hearing from Jan. 24, 1997 to Feb. 26, 1997, a copy
of which was published in “Today” a newspaper of general circulation in Manila in
its Jan. 20, 27, and Feb. 3 issues. Copies were also sent to Armi, LCR of Manila,
and SolGen.
 At the scheduled hearing, the OSG appeared, but filed no opposition. Armi was
not present. The return of the notice sent to her had the following notation: This
is to certify that on January 17, 1997, the undersigned [process server] personally
served a copy of the Amended Order in Sp. Proc. No. 96-80512 dated January 13,
1997 to the private respondent, Armi Alba Herrera at . . . 418 Arquiza St., Ermita,
Manila, but failed and unavailing for reason that (sic), private respondent is no
longer residing at said given address.

 RTC rendered a decision on Apr. 1, which became final and executor on June 2,
granting Herrera’s petition.
 Herrera filed a motion for amendment of the decretal portion of the decision to
include the cancellation of all entries havig reference to him as the father of
Rosendo, Jr., which was granted on Aug. 11: xxx The surname Herrera, Jr., and the
name of the father Rosendo Caparas Herrera are ordered deleted, and the child shall be
known as ROSENDO ALBA;
 Nov. 2000 – Armi and Rosendo, Jr. filed a petition for annulment of judgment
before the CA on the grounds of extrinsic fraud and lack of jurisdiction over their
person. She allegedly came to know of the decision of the trial court only on Febr.
26, 1998, when San Beda College, where her son was enrolled as a high school
student, was furnished by private respondent with a copy of a court order directing
the change of petitioner minor’s surname from Herrera to Alba.
o Herrera was aware that her address is at Unit 302 Plaza Towers Condominium,
1175 Lorenzo Guerrero St., Ermita, Manila, because such was her residence
when she and Herrera cohabited as husband and wife from 1982 to 1988; and
her abode when petitioner minor was born on March 8, 1985. Even after their
separation, Herrera continued to give support to their son until 1998; and that
 Unit 302 was conveyed to her by Herrera on June 14, 1991 as part of his
support to Rosendo, Jr.
o Her address i.e., No. 418 Arquiza St., Ermita, Manila, as appearing in the birth
certificate of their son, was entered in said certificate through the erroneous
information given by her sister, Corazon Espiritu. She stressed that private
respondent knew all along that No. 418 Arquiza St., is the residence of her
sister and that he deliberately caused the service of notice therein to prevent
her from opposing the petition.
 Herrera denied paternity and purported cohabitation and branded the allegations
as “false statements coming from a polluted source.”
 CA dismissed the petition because Armi failed to prove that Herrera employed
fraud and purposely deprived them of their day in court. As an illegitimate child,
Rosendo, Jr. should bear the surname of his mother. MR denied.
RULING: Denied.
Whether the nature of Herrera’s action is in personam, in rem, or quasi in rem –
in rem
Whether the trial court acquired jurisdiction over the person of Armi and
Rosendo, Jr. – YES.
 An action in personam is lodged against a person based on personal liability; an
action in rem is di rected against the thing itself instead of the person; while an
action quasi in rem names a person as defendant, but its object is to subject that
person’s interest in a property to a corresponding lien or obligation.
Hence,
petitions directed against the “thing” itself or the res, which concerns the status of
a person, like a petition for adoption, annulment of marriage, or correction of
entries in the birth certificate, as in the instant case, are actions in rem.
 In an action in personam, jurisdiction over the person of the defendant is necessary
for the court to validly try and decide the case. In a proceeding in rem or quasi in
rem, jurisdiction over the person of the defendant is not a prerequisite to confer
jurisdiction on the court, provided that the latter has jurisdiction over the res.
Jurisdiction over the res is acquired either (a) by the seizure of the property under
legal process, whereby it is brought into actual custody of the law; or (b) as a result
of the institution of legal proceedings, in which the power of the court is
recognized and made effective. The service of summons or notice to the
defendant is not for the purpose of vesting the court with jurisdiction but merely
for satisfying the due process requirements.
 party outside of the trial of the case, whereby the defeated party was prevented
 In the case at bar, the filing with the trial court of the petition for cancellation
vested the latter jurisdiction over the res. Substantial corrections or cancellations of
entries in civil registry records affecting the status or legitimacy of a person may be
effected through the institution of a petition under Rule 108 with the proper
Regional Trial Court. Being a proceeding in rem, acquisition of jurisdiction over the
person of petitioner is therefore not required in the present case. It is enough that
the trial court is vested with jurisdiction over the subject matter.
 The service of the order at No. 418 Arquiza St., Ermita, Manila and the
publication thereof in a newspaper of general circulation in Manila, sufficiently
complied with the requirement of due process, the essence of which is an
opportunity to be heard.
 Considering that the Certificate of Birth bears her signature, the entries appearing
therein are presumed to have been entered with her approval. Moreover, the
publication of the order is a notice to all indispensable parties, including Armi and
petitioner minor, which binds the whole world to the judgment that may be
rendered in the petition. An in rem proceeding is validated essentially through
publication.
 The order to Armi was therefore cured by the trial court’s compliance with Sec. 4,
Rule 108, which requires notice by publication.
 Barco v. CA: The trial court granted a petition for correction/change of entries in a
minor’s birth certificate to reflect the name of the minor’s real father as well as to
effect the corresponding change of her surname. In seeking to annul said decision,
the other children of the alleged father claimed that they are indispensable parties
to the petition for correction, hence, the failure to implead them is a ground to
annul the decision of the trial court. The Court of Appeals denied the petition
which was sustained by the Court on the ground, inter alia, that while petitioner is
indeed an indispensable party, the failure to implead her was cured by the
publication of the order of hearing.
 The purpose precisely of Sec. 4, Rule 108 is to bind the whole world to the
subsequent judgment on the petition. The sweep of the decision would cover even
parties who should have been impleaded under Sec. 3, Rule 108, but were
inadvertently left out.
 Verily, a petition for correction is an action in rem, an action against a thing and not
against a person. The decision on the petition binds not only the parties thereto
but the whole world. An in rem proceeding is validated essentially through
publication. Publication is notice to the whole world that the proceeding has for its
object to bar indefinitely all who might be minded to make an objection of any
sort against the right sought to be established. It is the publication of such notice
that brings in the whole world as a party in the case and vests the court with
jurisdiction to hear and decide it.
Whether Armi was able to prove extrinsic fraud – NO.
 Extrinsic fraud exists when there is a fraudulent act committed by the prevailing
from presenting fully his side of the case by fraud or deception practiced on him
by the prevailing party.
 Armi contended that Herrera is aware of her present address because they lived
together as husband and wife in the condominium unit from 1982 to 1988 and
because Herrera continued to give support to their son until 1998. To prove her
claim, she presented (1) Herrera’s title over the condominium unit; (2) receipts
allegedly issued to private respondent for payment of homeowner’s or association
dues; (2) a photocopy of a January 14, 1991 deed of sale of the subject unit in
 favor of Armi; and (3) the subsequent title issued to the latter. However, these
documents only tend to prove Herrera’s previous ownership of the unit and the
subsequent transfer thereof to Armi, but not the claimed live-in relationship of the
parties. Neither does the sale prove that the conveyance of the unit was part of
Herrera’s support to Rosendo, Jr. Indeed, intimate relationships and family
relations cannot be inferred from what appears to be an ordinary business
transaction.
 Although the January 14, 1991 deed of sale stated that Armi resides at 1175 L.
Guerrero St., Ermita, Manila, the same is not sufficient to prove that Herrera has
knowledge of Armi’s address because the former objected to the offer of the deed
for being a mere photocopy. The counsel for petitioners even admitted that they
do not have the original of the deed and that per certification of the Clerk of
Court, the Notary Public who notarized the deed of sale did not submit a copy of
the notarized document as required by the rules.
 While Armi presented the alleged love letters/notes from Herrera, they were only
attached as annexes to the petition and not formally offered as evidence before the
CA. More importantly, said letters/notes do not have probative value because they
were mere photocopies and never proven to be an authentic writing of Herrera.
 The affidavits of Armi and her sister are of no evidentiary weight. The basic rule
of evidence is that unless the affiants themselves are placed on the witness stand to
testify on their affidavits, such affidavits must be rejected for being hearsay.
 Ei incumbit probotio qui dicit, non qui negat. He who asserts, not he who denies, must
prove.
Whether Armi availed of the proper remedy – NO.
 The proper remedy of a party aggrieved by a decision of the CA in an action to
annul a judgment of a Regional Trial Court is a petition for review on certiorari
under Rule 45 of the Revised Rules of Civil Procedure, where only questions of
law may be raised. The resort of petitioner to the instant civil action for certiorari
under Rule 65 is therefore erroneous.
Whether Armi was able to establish the merits of her petition to annul the trial
court’s decision – NO
 In an action for annulment of judgment, the petitioner must convince the court
that something may indeed be achieved should the assailed decision be annulled.
Under Art. 176 of the Family Code, illegitimate children shall use the surname of
their mother, unless their father recognizes their filiation, in which case they may
bear the father’s surname. In the present case, it is clear from the allegations of
Armi that petitioner minor is an illegitimate child because she was never married
to private respondent. Considering that the latter strongly asserts that he is not the
father of petitioner minor, the latter is therefore an unrecognized illegitimate child.
As such, he must bear the surname of his mother.
CORPUZ v. STO. TOMAS
August 11, 2010 | Brion, J. | Cancellation or Correction of Entries in the Civil Registry
Digester: Bathan, Maria Aurelia for PRIL
Edited by Villafuerte, Beatriz C. for SpecPro
SUMMARY: Petitioner was a former Filipino citizen who acquired Canadian
citizenship through naturalization. He was married to the respondent but caught her
having an affair. He went back to Canada and filed a petition for divorce which was
granted. Desirous to marry another woman he now loved, he registered the divorce
decree in the Civil Registry Office and was informed that the foreign decree must first
be judicially recognized by a competent Philippine court. He filed for judicial
recognition of foreign divorce and declaration of marriage as dissolved with the RTC
where respondent failed to submit any response. The RTC denied the petition on the
basis that the petitioner lacked locus standi. SC agreed with the RTC that the alien
spouse cannot claim a right under Art. 26(2), FC but ruled that the decree serves as
presumptive evidence of right in his favor. Direct involvement or being the subject of
the foreign judgment is sufficient to clothe a party with the requisite interest to institute
an action before our courts for the recognition of the foreign judgment. Case remanded.
Also, the Court ruled that the recognition that the RTC may extend to the Canadian
divorce does not, by itself, authorize the cancellation of the entry in the civil registry. A
petition for recognition of a foreign judgment is not the proper proceeding,
contemplated under the ROC, for the cancellation of entries in the civil registry.
DOCTRINE:
Art. 407 of the Civil Code states that “[a]cts, events and judicial decrees concerning the
civil status of persons shall be recorded in the civil register.” The law requires the entry
in the civil registry of judicial decrees that produce legal consequences touching upon a
person’s legal capacity and status, i.e., those affecting “all his personal qualities and
relations, more or less permanent in nature, not ordinarily terminable at his own will,
such as his being legitimate or illegitimate, or his being married or not.” A judgment of
divorce is a judicial decree, although a foreign one, affecting a person’s legal capacity
and status that must be recorded. Act. No. 3753 (Law on Registry of Civil Status
specifically requires the registration of divorce decrees in the civil registry.
While the law requires the entry of the divorce decree in the civil registry, the law and
the submission of the decree by themselves do not ipso facto authorize the decree’s
registration. The law should be read in relation with the requirement of a judicial
recognition of the foreign judgment before it can be given res judicata effect. In the
context of the present case, no judicial order as yet exists recognizing the foreign
divorce decree. Thus, the Pasig City Civil Registry Office acted totally out of turn and
without authority of law when it annotated the Canadian divorce decree on Gerbert and
Daisylyn’s marriage certificate, on the strength alone of the foreign decree presented by
Gerbert.
Moreover the recognition that the RTC may extend to the Canadian divorce decree
does not, by itself, authorize the cancellation of the entry in the civil registry. A
petition for recognition of a foreign judgment is not the proper proceeding,
contemplated under the Rules of Court, for the cancellation of entries in the civil
registry. Art. 412 of the Civil Code declares that “no entry in a civil register shall be
changed or corrected, without judicial order.” The ROC supplements this by specifically
providing for a special remedial proceeding by which entries in the civil registry may be
judicially cancelled or corrected. Rule sets in detail the jurisdictional and procedural
requirements that must be complied with before a judgment, authorizing the
cancellation or correction, may be annotated in the civil registry. It also requires, among
others, that the verified petition must be filed with the RTC of the province where the
corresponding civil registry is located; that the civil registrar and all persons who have or
claim any interest must be made parties to the proceedings; and that the time and place
for hearing must be published in a newspaper of general circulation. As these basic
jurisdictional requirements have not been met in the present case, we cannot consider
the petition Gerbert filed with the RTC as one filed under Rule 108.
FACTS:
 Gerbert R. Corpuz (petitioner) was a former Filipino citizen. He acquired
Canadian citizenship through naturalization on Nov. 29, 2000. He married
Daisylyn Sto. Tomas, a Filipina, in Pasig in 2005. He left for Canada for work and
other professional commitments soon after the wedding. He returned 4 months
later to surprise his wife, but was shocked to discover that she was having an affair
with another man. Hurt and disappointed, he returned to Canada and filed a
petition for divorce. The Superior Court of Justice, Windsor, Ontario, Canada,
granted this petition on Dec. 8, 2005 and took effect on Jan. 8, 2006.
 2 years later, he met another Filipina and found love. He returned to the
Philippines and went to the Pasig City Civil Registry Office and registered the
Canadian divorce decree on his and Daisylyn’s marriage certificate. Despite this,
the NSO informed him that the marriage between them still subsists under
Philippine law. To be enforceable, the foreign divorce decree must first be
judicially recognized by a competent Philippine court, pursuant to NSO Circular
No. 4 S. 1982.
 Corpuz filed a petition for judicial recognition of foreign divorce and/or
declaration of marriage as dissolved with the RTC.
 Although summoned, Daisylyn did not file any responsive pleading but submitted
a notarized letter to the RTC and offered no opposition to such. She alleged her
desire to file a similar case herself but was prevented by financial and personal
circumstances. She requested that she be considered as a party-in-interest with a
similar prayer to Corpuz.
 RTC denied the petition. It concluded that Corpuz was not the proper party to
instate the action for judicial recognition of the foreign divorce decree as he is a
naturalized Canadian citizen. Only the Filipino spouse can avail of the remedy, under Art.
261(2) of the Family Code, in order for him or her to be able to remarry under
Philippine law. This is consistent with the legislative intent behind the enactment
of par. 2, as determined in Republic v. Orbecido III. It was enacted to “avoid the
1Art.26. All marriages solemnized outside the Philippines, in accordance with the laws in force in the country
where they were solemnized, and valid there as such, shall also be valid in this country, except those
prohibited under Articles 35(1), (4), (5) and (6), 36, 37 and 38.
absurd situation where the Filipino spouse remains married to the alien spouse
who, after obtaining a divorce, is no longer married to the Filipino spouse.”
CORPUZ
 His petition before the RTC is essentially for declaratory relied, similar to the filed
in Orbecido and asks for a determination of his rights under Art. 26(2), FC. The
provision applied as well to the benefit of the alien spouse.
 The RTC ruling unduly stretched the doctrine in Orbecido by limiting the standing
to file the petition only to the Filipino spouse, which is contrart to the essence of
the said provision.
 He is a proper party, vested with sufficient legal interest, to institute the case, as
there is a possibility that he might be prosecuted for bigamy if he marries his new
Filipina fiancée in the Philippines since two marriage certificates involving him
would be on file with the Civil Registry office.
 The Solicitor General and Daisylyn support this position.
RULING: Petition granted. RTC reversed. Remanded.
Whether the alien spouse can claim a right under Art. 26(2), FC – NO.
 The Family Code recognizes only two types of defective marriages: void and
voidable. In both, the basis for the judicial declaration of absolute nullity or
annulment of the marriage exists before or at the time of the marriage. Divorce, on
the other hand, contemplates the dissolution of the lawful union for cause arising
after the marriage. Our family laws do not recognize absolute divorce between
Filipino citizens.
 Recognizing the reality that divorce is a possibility in marriages between a Filipino
and an alien, President Corazon C. Aquino, in the exercise of her legislative
powers under the Freedom Constitution, enacted Executive Order No. (EO) 227,
amending Art. 26. Through par. 2 of Art 26, EO 227 effectively incorporated into
the law SC’s holding in Van Dorn v. Romillo, Jr. and Pilapil v. Ibay-Somera. In both
cases, the Court refused to acknowledge the alien spouse’s assertion of marital
rights after a foreign court’s divorce decree between the alien and the Filipino: To
maintain that, under our laws, [the Filipino spouse] has to be considered still married to [the
alien spouse] and still subject to a wife’s obligations cannot be just. She should not be
discriminated against in her country if the ends of justice are to be served.
 The provision was included in the law to avoid the absurd situation where the
Filipino spouse remains married to the alien spouse who, after obtaining a divorce,
is no longer married to the Filipino spouse. The legislative intent is for the benefit
of the Filipino spouse, by clarifying his or her marital status, settling the doubts
created by the divorce decree. Essentially, par. 2 Art. 26 provided the Filipino
Where a marriage between a Filipino citizen and a foreigner is validly celebrated and a divorce is
thereafter validly obtained abroad by the alien spouse capacitating him or her to remarry, the Filipino
spouse shall likewise have capacity to remarry under Philippine law.
 spouse a substantive right to have his or her marriage to the alien spouse
considered as dissolved, capacitating him or her to remarry.
 Without par. 2, the judicial recognition of the foreign decree of divorce, whether in
a proceeding instituted precisely for that purpose or as a related issue in another
proceeding, would be of no significance to the Filipino spouse since our laws do
not recognize divorce as a mode of severing the marital bond
 Art. 17, NCC provides that the policy against absolute divorces cannot be
subverted by judgments promulgated in a foreign country. The inclusion of the
Par. 2, Art. 26 FC provides the direct exception to this rule and serves as basis for
recognizing the dissolution of the marriage between the Filipino spouse and his or
her alien spouse.
 An action based on par. 2, Art. 26 is not limited to the recognition of the foreign
divorce decree. If the court finds that the decree capacitated the alien spouse to
remarry, the courts can declare that the Filipino spouse is likewise capacitated to
contract another marriage. No court in this jurisdiction, however, can make a
similar declaration for the alien spouse (other than that already established by the
decree), whose status and legal capacity are generally governed by his national law.
Whether the unavailability of Art. 26(2) strips Corpuz of legal interest to petition
the RTC for the recognition of his foreign divorce decree – NO.
 The foreign divorce decree itself, after its authenticity and conformity with the
alien’s national law had been duly proven according to our rules of evidence,
serves as a presumptive evidence of right in favor of Corpuz, pursuant to Sec. 48,
Rule 392, ROC.
 Direct involvement or being the subject of the foreign judgment is sufficient to
clothe a party with the requisite interest to institute an action before our courts for
the recognition of the foreign judgment. In a divorce situation, we have declared,
no less, that the divorce obtained by an alien abroad may be recognized in the
Philippines, provided the divorce is valid according to his or her national law.
 The starting point in any recognition of a foreign divorce judgment is the
acknowledgment that our courts do not take judicial notice of foreign judgments
and laws. Justice Herrera explained that, as a rule, “no sovereign is bound to give
effect within its dominion to a judgment rendered by a tribunal of another
country.” This means that the foreign judgment and its authenticity must be
proven as facts under our rules on evidence, together with the alien’s applicable
national law to show the effect of the judgment on the alien himself or herself.
The recognition may be made in an action instituted specifically for the purpose or
in another action where a party invokes the foreign decree as an integral aspect of
his claim or defense.
 In the instant case, since both the foreign divorce decree and the national law of
the alien, recognizing his or her capacity to obtain a divorce, purport to be official
acts of a sovereign authority, Sec, 24, Rule 132 ROC comes into play. This Section
2SEC. 48. Effect of foreign judgments or final orders.· The effect of a judgment or final order of a tribunal of a
foreign country, having jurisdiction to render the judgment or final order is as follows: xxx
requires proof, either by (1) official publications or (2) copies attested by the
officer having legal custody of the documents. If the copies of official records are
not kept in the Philippines, these must be (a) accompanied by a certificate issued
by the proper diplomatic or consular officer in the Philippine foreign service
stationed in the foreign country in which the record is kept and (b) authenticated
by the seal of his office.
 The records show that Corpuz attached to his petition a copy of the divorce
decree, as well as the required certificates proving its authenticity, but failed to
include a copy of the Canadian law on divorce. Under this situation, we can, at this
point, simply dismiss the petition for insufficiency of supporting evidence, unless
we deem it more appropriate to remand the case to the RTC to determine whether
the divorce decree is consistent with the Canadian divorce law.
 SC deems it more appropriate to take this latter course of action, given the Art. 26
interests that will be served and Daisylyn’s obvious conformity with the petition. A
remand, at the same time, will allow other interested parties to oppose the foreign
judgment and overcome a petitioner’s presumptive evidence of a right by proving
want of jurisdiction, want of notice to a party, collusion, fraud, or clear mistake of
law or fact.
 Every precaution must be taken to ensure conformity with our laws before a
recognition is made, as the foreign judgment, once recognized, shall have the
effect of res judicata between the parties, as provided in Sec 48, Rule 39 ROC.
 More than the principle of comity that is served by the practice of reciprocal
recognition of foreign judgments between nations, the res judicata effect of the
foreign judgments of divorce serves as the deeper basis for extending judicial
recognition and for considering the alien spouse bound by its terms. This same
effect will not obtain for the Filipino spouse were it not for the substantive rule
that Art. 26(2), FC provides.
[TOPIC]
Whether the recording of the Pasig City Civil Registry Office of the divorce
decree was proper – NO.
 Art. 407 of the Civil Code states that “[a]cts, events and judicial decrees
concerning the civil status of persons shall be recorded in the civil register.” The
law requires the entry in the civil registry of judicial decrees that produce legal
consequences touching upon a person’s legal capacity and status, i.e., those
affecting “all his personal qualities and relations, more or less permanent in nature,
not ordinarily terminable at his own will, such as his being legitimate or
illegitimate, or his being married or not.” A judgment of divorce is a judicial decree,
although a foreign one, affecting a person’s legal capacity and status that must be
recorded. Act. No. 3753 (Law on Registry of Civil Status specifically requires the
registration of divorce decrees in the civil registry.
 While the law requires the entry of the divorce decree in the civil registry, the law
and the submission of the decree by themselves do not ipso facto authorize the
(b) In case of a judgment or final order against a person, the judgment or final order is presumptive
evidence of a right as between the parties and their successors in interest by a subsequent title. xxx
 decree’s registration. The law should be read in relation with the requirement of a
judicial recognition of the foreign judgment before it can be given res judicata
effect. In the context of the present case, no judicial order as yet exists recognizing
the foreign divorce decree. Thus, the Pasig City Civil Registry Office acted totally
out of turn and without authority of law when it annotated the Canadian divorce
decree on Gerbert and Daisylyn’s marriage certificate, on the strength alone of the
foreign decree presented by Gerbert.
 Moreover the recognition that the RTC may extend to the Canadian divorce
decree does not, by itself, authorize the cancellation of the entry in the civil
registry. A petition for recognition of a foreign judgment is not the proper
proceeding, contemplated under the Rules of Court, for the cancellation of entries
in the civil registry.
 Art. 412 of the Civil Code declares that “no entry in a civil register shall be
changed or corrected, without judicial order.” The ROC supplements this by
specifically providing for a special remedial proceeding by which entries in the civil
registry may be judicially cancelled or corrected. Rule sets in detail the
jurisdictional and procedural requirements that must be complied with before a
judgment, authorizing the cancellation or correction, may be annotated in the civil
registry. It also requires, among others, that the verified petition must be filed with
the RTC of the province where the corresponding civil registry is located; that the
civil registrar and all persons who have or claim any interest must be made parties
to the proceedings; and that the time and place for hearing must be published in a
newspaper of general circulation. As these basic jurisdictional requirements have
not been met in the present case, we cannot consider the petition Gerbert filed
with the RTC as one filed under Rule 108.
 However, this ruling should not be construed as requiring two separate
proceedings for the registration of a foreign divorce decree in the civil registry -
one for recognition of the foreign decree and another specifically for cancellation
of the entry under Rule 108. The recognition of the foreign divorce decree may be
made in a Rule 108 proceeding itself, as the object of special proceedings is
precisely to establish the status or right of a party or a particular fact. Moreover,
Rule 108 can serve as the appropriate adversarial proceeding by which the
applicability of the foreign judgment can be measured and tested in terms of
jurisdictional infirmities, want of notice to the party, collusion, fraud, or clear
mistake of law or fact.
REPUBLIC OF THE PHILIPPINES vs. JULIAN EDWARD EMERSON
COSETENG-MAGPAYO (A.K.A. JULIAN EDWARD EMERSON
MARQUEZ-LIM COSETENG)
February 2, 2011 | Carpio Morales, J. | Cancellation or Correction of Entries in the
Civil Registry
SUMMARY: Julian Edward Emersen Coseteng-Magpayo filed a petition to have his
name changed to Julian Edward Emerson Marquez-Lim Coseteng. He alleged that his
parents' marriage was not valid, therefore it's his mother's name which he should be
using. The RTC granted his petition, but the Republic, through the OSG, opposed such
ruling on the grounds that: (a) the petition for change of name involves the change of
Julian's civil status from legitimate to illegitimate, and therefore should be made through
appropriate adversarial proceedings; and (b) the trial court exceeded its jurisdiction
when it directed the deletion of Julian's father from his birth certificate even though
nothng of this sort was indicated in the prayer. The SC reversed the RTC ruling because
Julian's petition failed to adhere to the procedural requirements on venue and
indispensable parties under Rule 108.
DOCTRINE: When a petition for cancellation or correction of an entry in the civil
register involves substantial and controversial alterations including those on citizenship,
legitimacy of paternity or filiation, or legitimacy of marriage, a strict compliance with the
requirements of Rule 108 of the Rules of Court is mandated.
FACTS:
 Julian Edward Emerson Coseteng Magpayo was born in Makati on September 9,
1972 to Fulvio M. Magpayo Jr. and Anna Dominique Marquez-Lim Coseteng who,
as his certificate of live birth shows, contracted marriage on March 26, 1972.
 Claiming, however, that his parents were never legally married, Julian filed on July
22, 2008 at the QC RTC a Petition to change his name to Julian Edward Emerson
Marquez Lim Coseteng. The petition, docketed as SPP No. Q-0863058, was
entitled IN RE PETITION FOR CHANGE OF NAME OF JULIAN EDWARD
EMERSON COSETENG MAGPAYO TO JULIAN EDWARD EMERSON
MARQUEZ-LIM COSETENG.
 In support of his petition, Julian submitted the following documents:
o a certification from the National Statistics Office stating that his mother Anna
Dominique does not appear in its National Indices of Marriage;
o his academic records from elementary up to college showing that he carried
the surname Coseteng; and
o the birth certificate of his child where Coseteng appears as his surname.
 In the 1998, 2001 and 2004 Elections, respondent ran and was elected as Councilor
of Quezon Citys 3rd District using the name JULIAN M.L. COSETENG.
 RTC granted Julian's petition and directed the Civil Registrar of Makati City to:
o Delete the entry March 26, 1972 in Item 24 for DATE AND PLACE OF
MARRIAGE OF PARTIES;
o Correct the entry MAGPAYO in the space for the Last Name of the Julian to
COSETENG;
o Delete the entry COSETENG in the space for Middle Name of the Jeffrey;
and
o Delete the entry Fulvio Miranda Magpayo, Jr. in the space for FATHER of
Julian.
 Hence, the instant petition.
RULING: Petition granted. RTC ruling nullified.
Whether Julian's petition for change of name involves the change of Julian's civil
status from legitimate to illegitiate and therefore should be made through
appropriate adversarial proceedings. – YES.
 REPUBLIC: The deletion of the entry on the date and place of marriage of
respondents parents from his birth certificate has the effect of changing his civil
status from legitimate to illegitimate, hence, any change in civil status of a person
must be effected through an appropriate adversary proceeding.
 JULIAN: The proceeding before the trial court was adversarial in nature. He cites
the serving of copies of the petition and its annexes upon the Civil Registrar of
Makati, the Civil Registrar General, and the OSG; the posting of copies of the
notice of hearing in at least four public places at least ten days before the hearing;
the delegation to the OSG by the City Prosecutor of Quezon City to appear on
behalf of the Republic; the publication of the notice of hearing in a newspaper of
general circulation for three consecutive weeks; and the fact that no oppositors
appeared on the scheduled hearing.
 SC: A person can effect a change of name under Rule 103 using valid and
meritorious grounds including (a) when the name is ridiculous, dishonorable or
extremely difficult to write or pronounce; (b) when the change results as a legal
consequence such as legitimation; (c) when the change will avoid confusion; (d)
when one has continuously used and been known since childhood by a Filipino
name, and was unaware of alien parentage; (e) a sincere desire to adopt a Filipino
name to erase signs of former alienage, all in good faith and without prejudicing
anybody; and (f) when the surname causes embarrassment and there is no showing
that the desired change of name was for a fraudulent purpose or that the change
of name would prejudice public interest.
 In the present case, Julian's reason for changing his name cannot be considered as
one of, or analogous to, recognized grounds listed above.
 In fact, the change being sought in respondents petition goes so far as to affect his
legal status in relation to his parents. It seeks to change his legitimacy to that of
illegitimacy. Rule 103 then would not suffice to grant respondents supplication.
 Labayo-Rowe v. Republic: Changes which may affect the civil status from legitimate to
illegitimate are substantial and controversial alterations which can only be allowed
after appropriate adversary proceedings.
Whether the trial court exceeded its jurrisdiction when it directed the deletion of
the name of Julian's father from his birth certificate. – YES.
 REPUBLIC: By ordering the deletion of Julian's parents' date of marriage and the
name of Julian's father from the entries in Julian's birth certificate, the trial court
exceeded its jurisdiction, such order not being in accord with Julian's prayer
reading, viz:
WHEREFORE, premises considered, it is most respectfully prayed
that the Honorable Court issue an order allowing the change of
name of petitioner from JULIAN EDWARD EMERSON
COSETENG MAGPAYO to JULIAN EDWARD EMERSON
MARQUEZ-LIM COSETENG, and that the Honorable Court
order the Local Civil Registrar and all other relevant government
agencies to reflect the said change of name in their records.
 SC: Since Julian's desired change affects his civil status from legitimate to
illegitimate, Rule 108 applies. The Rules of Court clearly direct that a petition which
concerns one's civil status should be filed in the civil registry in which the entry is
sought to be cancelled or corrected -- that of Makati in the present case --- and all
persons who have or claim any interest which would be affected thereby should be
made parties to the proceeding.
 Julian's petition was marred by the following irregularities:
o failure to file the petition or in the civil registry in which the entry is sought to
be cancelled or corrected;
o failure to implead necessary parties;
On where to file petition
 Rule 108 clearly directs that a petition which concerns one's civil status should be
filed in the civil registry in which the entry is sought to be cancelled or corrected –
that of Makati in the present case, and all persons who have or claim any interest
which would be affected thereby should be made parties to the proceeding.
On necessary parties
 A petition for a substantial correction or change of entries in the civil registry
should have as respondents the civil registrar, as well as all other persons who have
or claim to have any interest that would be affected thereby. It cannot be gainsaid
that change of status of a child in relation to his parents is a substantial correction
or change of entry in the civil registry.
 The necessity of impleading indispensable parties in a petition which involves
substantial and controversial alterations must be complied with. This is because a
petition for a substantial correction or change of entries in the civil registry should
have as respondents the civil registrar, as well as all other persons who have or
claim to have any interest that would be affected thereby. It cannot be gainsaid that
change of status of a child in relation to his parents is a substantial correction or
change of entry in the civil registry.
 Aside from the Office of the Solicitor General, all other indispensable parties
should have been made respondents. They include not only the declared father of
the child but the child as well, together with the paternal grandparents, if any, as
their hereditary rights would be adversely affected thereby. All other persons who
may be affected by the change should be notified or represented. The truth is best
ascertained under an adversary system of justice.
 BRAZA v. CITY REGISTRAR
December 4, 2009| Carpio-Morales, J. | Cancellation or Correction in the Civil Registry
Digester: Bea, Alexis
SUMMARY: Cristina and her children, the legitimate family of deceased Pablito Braza,
filed a petition to correct entries in the birth record of Patrick, which contained that he
was acknowledged by Pablo and that he was legitimated by virtue of the marriage of
Pablo and Lucille in April 1998. Trial court dismissed. Court held that the trial court has
no jurisdiction to nullify marriages and rule on legitimacy and filiation in a special
proceeding under Rule 108.
DOCTRINE: The proceeding contemplated in Rule 108 vis-à-vis CC 412, may
generally be used only to correct clerical, spelling, typographical and other innocuous
errors in the civil registry. A clerical error is one which is visible to the eyes or obvious
to the understanding; an error made by a clerk or a transcriber; a mistake in copying or
writing, or a harmless change such as a correction of name that is clearly misspelled or
of a misstatement of the occupation of the parent.
FACTS:
 Petitioner Ma. Cristina Torres was married to Sicad Braza, Jr. on 4 January 1978.
They had 3 children: Pablo Josef, Gian Carlo, and Janelle Ann. Pablo died on 15
April 2002.
 After his death, Lucille Titular began introducing her son Patrick Alvin Titular
Braza as her and Pablo’s son.
 Cristina made inquiries and obtained the birth certificate of Patrick from the
respondent City Registrar.
o It noted that he was acknowledged by Pablo in 1997, and legitimated by
the marriage of his parents on 22 April 1998.
o Cristina also obtained a copy of the marriage contract showing the
marriage of Pablo and Lucille.
 Cristina and 2 of her children filed a petition to correct entries in the birth record
of Patrick. They alleged that the 2nd marriage was bigamous because of the prior
subsisting marriage between Cristina and Pablo. Hence, they prayed for:
(1) correction of the entries in Patrick’s birth record as to his legitimation, the
father’s name and acknowledgement, and the use of the surname “BRAZA”;
(2) a directive for the guardians of Patrick to submit him to DNA testing to
determine his paternity; and
(3) the declaration of nullity of the legitimation of Patrick by declaring the 2nd
marriage as bigamous.
 Patrick filed a Motion to Dismiss for Lack of Jurisdiction.
3Art. 412. No entry in a civil registrar shall be changed or corrected without a judgment order
4Art. 171. The heirs of the husband may impugn the filiation of the child within the period prescribed in the
preceding article only in the following cases:
 RTC: dismissed without prejudice, holding that in a special proceeding for
correction of entry, the court not acting as a family court under the Family Code
has no jurisdiction to annul the marriage of Lucille and Pablo, to impugn the
legitimacy of Patrick, and to order that Patrick be subjected to a DNA test.
 Hence, the present petition for review.
RULING: Petition DENIED
Whether or not the court may pass upon validity of marriage and questions of
legitimacy in an action to correct entries in the Civil Registrar—NO
 The procedure outlined by Rule 108 vis a vis Art. 4123 of the Civil Code can be
used only to correct clerical, spelling, typographical and other “innocuous” errors in
the civil registry.
 This error is one which is visible to the eyes or obvious to the understanding; an
error made by a clerk or transcriber; a mistake in copying or writing, or a harmless
change such a correction of a misspelled name, or a misstated occupation of the
parents.
 Substantial or contentious alterations may be allowed only in adversarial
proceedings, in which all interested parties are impleaded and due process is
observed.
 Cristina: The main cause of action is for the correction of Patrick’s birth records
with the rest of the prayers being incidental.
 Court: Does not agree as the allegations of the petition clearly show that Cristina,
et al. seek to nullify the marriage between Pablo and Lucille and to impugn
Patrick’s filiation by subjecting him to a DNA test.
 These causes of action are not governed by Rule 108 but by AM No. 02-11-10-SC
and Art. 1714 of the Family Code respectively. Hence, they should have been filed
with the Family Court as provided by the Family Code.
 The cases relied upon by Cristina are not in point:
o Carino v. Carino – action filed by the 2nd wife against the 1st wife for
one-half of the death benefits. The Court ruled on the validity of the 2nd
marriage as it was essential to determining entitlement to the benefits.
o Lee v. CA – relief sought was to change the name of the mother from
“Keh Shiok Cheng” to “Tiu Chuan”. There was impugning of legitimacy
as there was allegedly no blood relation at all between the children and
Keh Shiok Cheng. The collateral attack was allowed and the petition was
deemed an adversarial proceeding.
o Republic v. Kho — petitioners themselves sought to have their birth
certificates corrected to reflect that they were “illegitimate” and “Filipino”
instead of Chinese. The court considered the changes substantial but
found the proceedings to be adversarial.
(1) If the husband should die before the expiration of the period fixed for bringing this action;
(2) If he should die after the filing of the complaint, without having desisted therefrom; or
(3) If the child was born after the death of the husband.
 REPUBLIC v. NISHINA
November 15, 2010|Carpio-Morales, J.| Appeals in Special Proceedings
Digester: de Vera, Clarissa M.
SUMMARY: Nishina filed a petition for the cancellation of birth record and change of
surname. She wanted to cancel her birth record of 1993 under which her surname was
Hakamada. She also prayed that her surname be changed to Watanabe by virtue of her
adoption by her mother’s new husband, Watanabe [she was represented by her mother].
the RTC granted the petition but the Republic filed a notice of appeal. Nishina filed a
motion to dismiss on the ground of wrong mode of appeal, which was granted. The CA
dismissed the appeal. The SC granted the Republic’s petition and reinstated the appeal
of the Republic.
DOCTRINE: See parts in bold
FACTS:
 Nisaida Sumera Nishina was born on October 31, 19872 in Malolos, Bulacan to her
Filipino mother Zenaida and Japanese father Koichi Nishina who were married on
February 18, 1987
 When her father died, her mother married Kenichi Hakamada on July 19, 1989.
 They could not find any record of her birth at the Malolos Civil Registry, thus, her
mother, Zenaida Sumera Watanabe, caused the late registration of her birth in
1993, under the surname of the her mother’s second husband.
 Eventually, her mother and step-father divorced. Her mother married another
Japanese named Takayuki Watanabe. Watanabe later adopted her by virtue of a
decree issued by the Tokyo Family Court of Japan on January 25, 2001.
o The adoption decree was filed and recorded in the civil registry of
Manila in 2006
 In 2007, it surfaced that her birth was in fact originally registered at the Malolos
Civil Registry under the name Nisaida Sumera Nishina, hence, she filed a petition
for cancellation of birth record and change of surname in the civil registry of
Malolos, Bulacan, before the RTC.
o She prayed that her second birth certificate bearing the surname
Hakamada, issued through late registration in 1993, be cancelled
o She also prayed that her surname Nishina in the original birth
certificate be changed to Watanabe
 The RTC Branch 83 granted the petition and directed the Local Civil Registry of
Malolos to “cancel the second birth record of the Nisaida Sumera Hakamada issued
in 1993 and to change it [in its stead] Registry No. 87-04983, particularly the
surname of [respondent] from NISAIDA SUMERA NISHINA to NISAIDA
SUMERA WATANABE
 The OSG, in behalf of the Republic, filed a notice of appeal.
 Nishina filed a motion to dismiss alleging that the Republic adopted a wrong mode
of appeal since it did not file a record on appeal as required under Sections 2 and
3, Rule 41 (appeal from the RTCs) of the 1997 Rules of Civil Procedure
o SEC. 2. Modes of appeal
(a) Ordinary appeal.·The appeal to the Court of Appeals in cases
decided by the Regional Trial Court in the exercise of its original
jurisdiction shall be taken by filing a notice of appeal with the
court which rendered the judgment or final order appealed from
and serving a copy thereof upon the adverse party. No record
on appeal shall be required except in special proceedings
and other cases of multiple or separate appeals where the
law or these Rules so require. In such cases, the record on
appeal shall be filed and served in like manner.
o Sec 3. Period of ordinary appeal.·The appeal shall be taken within
fifteen (15) days from notice of the judgment or final order
appealed from. Where a record on appeal is required, the
appellant shall file a notice of appeal and a record on
appeal within thirty (30) days from notice of the judgment
or final order. However, an appeal in habeas corpus cases shall be
taken within forty-eight (48) hours from notice of the judgment
or final order appealed from. (A.M. No. 01-1-03- SC, June 19,
2001)
The period of appeal shall be interrupted by a timely motion
for new trial or reconsideration. No motion for extension of
time to file a motion for new trial or reconsideration shall be
allowed.
xxx
o SEC. 9. Perfection of appeal; effect thereof.·x x x.
A party’s appeal by record on appeal is deemed perfected as to
him with respect to the subject matter thereof upon the approval
of the record on appeal filed in due time.
 The Republic countered the MTD stating that a record on appeal is required only
in proceedings where multiple appeals may arise, a situation not obtaining in the
present case
 The Court of Appeals dismissed the petition by the Republic holding that since
respondent’s petition before the RTC is classified as a special proceeding, petitioner
should have filed both notice of appeal and a record on appeal within 30 days from
receipt of the October 8, 2007 Order granting respondent’s petition, and by not
filing a record on appeal, petitioner never perfected its appeal
 Republic’s MR was denied, thus, it filed the present petition for review on certiorari
RULING: WHEREFORE, the petition is GRANTED. The Court of Appeals
Resolutions of September 2, 2008 and December 22, 2008 in CA-G.R. CV No.
90346 are REVERSED and SET ASIDE. The appeal of petitioners before the
appellate court is REINSTATED.
Whether or not the CA correctly dismissed the appeal of the Republic – NO, the
Republic’s mode of appeal is not erroneous
 Section 1, Rule 109 of the 1997 Rules of Civil Procedure specifies the orders or
judgments in special proceedings which may be the subject of an appeal:
Section 1. Orders or judgments from which appeals may be taken.·An interested person
may appeal in special proceedings from an order or judgment rendered by a Court
of First Instance or a Juvenile and Domestic Relations Court, where such order or
judgment:
(a) Allows or disallows a will;
(b) Determines who are the lawful heirs of a deceased person, or the distributive
share of the estate to which such person is entitled;
(c) Allows or disallows, in whole or in part, any claim against the estate of a
deceased person, or any claim presented on behalf of the estate in offset to a claim
against it;
(d) Settles the account of an executor, administrator, trustee or guardian;
(e) Constitutes, in proceedings relating to the settlement of the estate of a deceased
person, or the administration of a trustee or guardian, a final determination in the
lower court of the rights of the party appealing, except that no appeal shall be
allowed from the appointment of a special administrator; and
(f) Is the final order or judgment rendered in the case, and affects the substantial
rights of the person appealing unless it be an order granting or denying a motion
for a new trial or for reconsideration
 The above-quoted rule contemplates multiple appeals during the pendency of special
proceedings. A record on appeal – in addition to the notice of appeal – is thus
required to be filed as the original records of the case should remain with the trial
court to enable the rest of the case to proceed in the event that a separate and
distinct issue is resolved by said court and held to be final.
 In the case at bar, the filing of a record on appeal was not necessary since no
other matter remained to be heard and determined by the trial court after it
issued the appealed order granting respondent’s petition for cancellation of
birth record and change of surname in the civil registry.
 The appellate courtÊs reliance on Zayco v. Hinlo, Jr. in denying petitionerÊs motion
for reconsideration is misplaced. In Zayco which was a petition for letters of
administration of a deceased person’s estate, the decedents children appealed the trial
court’s order appointing the grandson of the decedent as administrator of the estate.
o Their notice of appeal and record on appeal were denied due course
by the trial court on the ground that the appealed order is
interlocutory and not subject to appeal. But even if the appeal were
proper, it was belatedly filed.
o On certiorari by the decedent’s children, the appellate court sustained
the trial court.
o On petition for review, this Court reversed the appellate court,
holding that [a]n order appointing an administrator of a deceased
person’s estate is a final determination of the rights of the parties in
connection with the administration, management and settlement of
the decedent’s estate, hence, the order is final and appealable. The
Court also held that the appeal was filed on time.
 In Zayco, unlike in the present case, a record on appeal was obviously necessary
as the proceedings before the trial court involved the administration,
management and settlement of the decedent’s estate·matters covered by
Section 1 of Rule 109 wherein multiple appeals could, and did in that case,
call for them.
Lebin v. Mirasol
September 7, 2011 | Bersamin, J. | Appeals in Special proceedings
Digester: Endaya, Ana Kristina R.
SUMMARY: Petitioners offered to purchase a lot from the administrator of the estate
of Hodges. The RTC approved this after sending someone to conduct an ocular
inspection who confirmed that petitioner was an actual occupant. Apparently
respondent was also an actual occupant. The RTC ruled to divide the property equally
between the parties. Petitioner filed an MR which RTC denied. Petitioner then filed a
notice of appeal, then later a record on appeal. Respondent filed a MTD petitioner’s
appeal since the record on appeal was filed late. RTC granted the MTD.
The SC ruled that the record on appeal was belatedly filed.
Recap of dates and explanation
(May 3, 1995) RTC Order dividing the property equally between petitioner and
respondent
(May 15, 1995) Petitioner received the order – 30 days will now start to run.
(May 24, 1995) They filed MR – 9 days/30 days expired; but the filing of MR
interrupted the running of the period of 30 days
(March 2, 1998) RTC Order denying their MR
(March 23, 1998) They received the above order – 21 days remaining will run again.
(April 13, 1998) 21 days has ended.
(May 5, 1998) They filed record on appeal – 22 days beyond end of reglementary
period
The effect of late filing empowers the RTC, motu proprio or on motion, to dismiss the
appeal for having been taken out of time.
The failure of the petitioners and their counsel to file their record on appeal on time
rendered the orders of the RTC final and unappealable. Thereby, the appellate court lost
the jurisdiction to review the challenged orders, and the petitioners were precluded from
assailing the orders.
DOCTRINE: A judgment or final order in special proceedings is appealed by record
on appeal. A judgment or final order determining and terminating a particular part is
usually appealable, because it completely disposes of a particular matter in the
proceeding, unless otherwise declared by the Rules of Court.
Reason for requiring a record on appeal instead of only a notice of appeal: The multi-
part nature of nearly all special proceedings, with each part susceptible of being finally
determined and terminated independently of the other parts. An appeal by notice of
appeal is a mode that envisions the elevation of the original records to the appellate
court as to thereby obstruct the trial court in its further proceedings regarding the other
parts of the case. In contrast, the record on appeal enables the trial court to continue
with the rest of the case because the original records remain with the trial court even as
it affords to the appellate court the full opportunity to review and decide the appealed
matter. Section 1,
Rule 109 underscores the multi-part nature of special proceedings by enumerating the
particular judgments and final orders already subject of appeal by any interested party
despite other parts of the proceedings being still untried or unresolved.
Perfection of an appeal within the period laid down by law is mandatory and
jurisdictional, because the failure to perfect the appeal within the time prescribed by the
Rules of Court causes the judgment or final order to become final as to preclude the
appellate court from acquiring the jurisdiction to review the judgment or final order.
FACTS:
 Petitioners relayed their offer to the administrator of the Estate of L.J. Hodges to
purchase an asset of the Estate
◦ P22,560.00 – Lot 18
 Administrator sought judicial approval of the offer
 (August 28, 1985) RTC: Granted approval of offer upon sending someone to
conduct an ocular inspection and who confirmed that Petitioner was an actual
occupant.
 Respondent Mirasol also offered to purchase the lot containing an area of 188
square meters where her house stood.
◦ Lot was initially identified as Lot 4, but a later survey revealed that her house
was actually standing on Lot 18,
 Respondent learned of the approval of petitioner’s offer to purchase Lot 18, hence,
Mirasol filed a petition for relief from the order dated August 28, 1985.
 Pending resolution of the petition for relief, the petitioners paid the last installment
and moved for the execution of the deed of sale. Apparently, the motion was not
acted upon by the RTC.
Important dates (To be repeated later to emphasize the late filing of record on appeal)
 (May 3, 1995) RTC finally resolved the petition for relief 5 – Basically ½ each for
respondent and petitioner.
 (May 23, 1995) Petitioners filed for MR and/or new trial
 (March 2, 1998) RTC denied MR/MNT.
 (March 27, 1998) Petitioners filed a notice of appeal in RTC.
5For the Administrator of the L.J. Hodges Estate:
1) To assist both offeror-claimants in effecting a Relocation Survey Plan and cause the equal
partition of the subject lot herein between the said offeror-claimant;
 (May 5, 1998) Petitioners filed a record on appeal.
 (January 25, 1999) Petitioners presented an ex parte motion to approve the record
on appeal.
 (June 15, 2000) Mirasol filed a MTD the appeal, insisting that the record on appeal
had been filed late.
 (February 1, 2002) RTC granted the MTD the appeal on
 (March 13, 2002) Petitioners moved for reconsideration on
 (May 21, 2004) RTC denied petitioner’s MR.(June 23, 2004): Petitioners appealed
via petitioner for review on certiorari to seek reversal of RTC’s orders of February
1, 2002 and May 21, 2004.
RULING: Petition DENIED. RTC AFFIRMED. DISMISS petitioner’s appeal
for the record on appeal being filed 22 days late!
Whether or not the RTC erred in dismissing the petitioners appeal for their
failure to timely file a record on appeal – RTC did NOT ERR in dismissing the
petitioners appeal for their failure to timely file a record on appeal
DISCUSSION ON APPEAL
One innovation introduced by B.P. 129 is the elimination of the record on appeal
in most cases, retaining the record on appeal only for appeals in special
proceedings and in other cases in which the Rules of Court allows multiple
appeals.
 Section 39. Appeals. - The period for appeal from final orders, resolutions, awards,
judgments, or decisions of any court in all cases shall be 15 days counted from the
notice of the final order, resolution, award, judgment, or decision appealed from:
Provided however, That in habeas corpus cases, the period for appeal shall be 48
hours from the notice of the judgment appealed from.
No record on appeal shall be required to take an appeal. In lieu thereof,
the entire record shall be transmitted with all the pages prominently
numbered consecutively, together with an index of the contents thereof.
This section shall not apply in appeals in special proceedings and in
other cases wherein multiple appeals are allowed under applicable
provisions of the Rules of Court.
2) To execute the corresponding deed of sale over the aforecited subject lot in favor of the herein
offeror-claimants --- Erlinda Lebin and Vilma S. Mirasol purposely to expedite the issuance of
respective title;
3) To exact payment from either or both offeror-claimants should there be any deficiency, and/or
to refund payment should there be any excess payment from either or both offeror-claimants.
Murillo v. Consul – Clarified and fortified a judicial policy against misdirected
or erroneous appeals
 There is no longer any justification for allowing transfers of erroneous appeals
from one court to the other, much less for tolerating continued ignorance of the
law on appeals.
 It thus behooves every attorney seeking review and reversal of a judgment or order
promulgated against his client, to determine clearly the errors he believes may be
ascribed to the judgment or order, whether of fact or of law; then to ascertain
which court properly has appellate jurisdiction; and finally, to observe scrupulously
the requisites for appeal prescribed by law, with keen awareness that any error or
imprecision in compliance therewith may well be fatal to his client's cause.
Offshoot of Murillo v. Consul is the inclusion in the 1997 Rules of Civil
Procedure of a provision that forthrightly delineated the modes of appealing an
adverse judgment or final order – (Rule 41, Section 2)
 Section 2. Modes of appeal.
 (a) Ordinary appeal. The appeal to the Court of Appeals in cases decided by the
Regional Trial Court in the exercise of its original jurisdiction shall be taken by
filing a notice of appeal with the court which rendered the judgment or final order
appealed from and serving a copy thereof upon the adverse party. No record on
appeal shall be required except in special proceedings and other cases of multiple
or separate appeals where the law or these Rules so require. In such cases, the
record on appeal shall be filed and served in like manner.
Implication of changes and clarifications on the rules of appeal and its nature
 Appeal is neither a natural nor a constitutional right, but merely statutory
 It is of statutory character - the party who intends to appeal must always comply
with the procedures and rules governing appeals, or else the right of appeal may be
lost or squandered.
*Appeal in Special Proceedings – Record on Appeal
 A judgment or final order in special proceedings is appealed by record on appeal.
◦ A judgment or final order determining and terminating a particular part is
usually appealable, because it completely disposes of a particular matter in the
proceeding, unless otherwise declared by the Rules of Court.
 Reason for requiring a record on appeal instead of only a notice of appeal
6 Section 1. Orders or judgments from which appeals may be taken. - An interested person
may appeal in special proceedings from an order or judgment rendered by a Court of First
Instance or a Juvenile and Domestic Relations Court, where such order or judgment:
(a) Allows or disallows a will;
(b) Determines who are the lawful heirs of a deceased person, or the distributive share of the
estate to which such person is entitled;
(c) Allows or disallows, in whole or in part, any claim against the estate of a deceased person, or
any claim presented on behalf of the estate in offset to a claim against it
◦The multi-part nature of nearly all special proceedings, with each part
susceptible of being finally determined and terminated independently of the
other parts.
◦ An appeal by notice of appeal is a mode that envisions the elevation of the
original records to the appellate court as to thereby obstruct the trial court in its
further proceedings regarding the other parts of the case.
◦ In contrast, the record on appeal enables the trial court to continue with the
rest of the case because the original records remain with the trial court even as
it affords to the appellate court the full opportunity to review and decide the
appealed matter.
 Section 1, Rule 109 underscores the multi-part nature of special proceedings by
enumerating the particular judgments and final orders already subject of appeal by
any interested party despite other parts of the proceedings being still untried or
unresolved.6
*Effect of elimination of record on appeal on the period of appeal
 Made feasible the shortening of the period of appeal from the original 30 days →
only 15 days from notice of the judgment or final order
 But for appeal by record of appeal
◦ Section 3, Rule 41 retained the original 30 days as the period for perfecting the
appeal by record on appeal to take into consideration the need for the trial
court to approve the record on appeal.
◦ Within that 30-day period a party aggrieved by a judgment or final order issued
in special proceedings should perfect an appeal by filing both a notice of
appeal and a record on appeal in the trial court, serving a copy of the notice of
appeal and a record on appeal upon the adverse party within the period;
◦ Moreover, the appealing party shall pay within the period for taking an appeal
to the clerk of the court that rendered the appealed judgment or final order the
full amount of the appellate court docket and other lawful fees.
 Violation of requirement for timely perfection of an appeal by record on appeal or
the non-payment of the full amount of the appellate court docket and other lawful
fees to the clerk of the trial court – ground for the dismissal of the appeal.
AS APPLIED
(d) Settles the account of an executor, administrator, trustee or guardian;
(e) Constitutes, in proceedings relating to the settlement of the estate of a deceased person, or the administration of a
trustee or guardian, a final determination in the lower court of the rights of the party appealing, except that no
appeal shall be allowed from the appointment of a special administrator; and
(f) Is the final order or judgment rendered in the case, and affects the substantial rights of the
person appealing, unless it be an order granting or denying a motion for a new trial or for
reconsideration.
 Petitioners appeal comes under item (e) of Section 1 due to the final order of May
3, 1995 issued in the settlement of the estate being a final determination in the
lower court of the rights of the party appealing.
◦ In order to elevate a part of the records sufficient for appellate review without
the RTC being deprived of the original records, the remedy was to file a record
on appeal to be approved by the RTC.
Petitioners filed their appeal 22 days late!
Late filing!
 They should have filed the record on appeal within 30 days from their notice of the
judgment. Their appeal was not perfected, therefore, because their filing of the
record on appeal happened beyond the end of their period for the perfection of
their appeal.
Recap of dates and explanation
 (May 3, 1995) RTC Order dividing the property equally between petitioner and
respondent
 (May 15, 1995) They received the order
◦ 30 days will now start to run.
 (May 24, 1995) They filed MR
◦ 9 days/30 days expired – but the filing of MR interrupted the running of the
period of 30 days;
 (March 2, 1998) RTC Order denying their MR
 (March 23, 1998) They received the above order.
◦ 21 days remaining will run again.
 (April 13, 1998) 21 days has ended.
 (May 5, 1998) They filed record on appeal
◦ 22 days beyond end of reglementary period
 Although, by that time, the 1997 Rules on Civil Procedure had meanwhile taken
effect7, their period of appeal remained 30 days.
 Under the 1997 revisions, the timely filing of the motion for reconsideration
interrupted the running of the period of appeal8.
7July 1, 1997
8 Section 3, Rule 41. Period of ordinary appeal.
The appeal shall be taken within fifteen (15) days from notice of the judgment or final order
appealed from. Where a record on appeal is required, the appellant shall file a notice of
appeal and a record on appeal within thirty (30) days from notice of the judgment or final
order.
The period of appeal shall be interrupted by a timely motion for new trial or
reconsideration. No motion for extension of time to file a motion for new trial or
reconsideration shall be allowed.
9 Section 6. Record on appeal; form and contents thereof. - The full names of all the parties to
the proceedings shall be stated in the caption of the record on appeal and it shall include the
Effect of late filing
 Section 13, Rule 41 empowers the RTC , motu proprio or on motion, to dismiss the
appeal for having been taken out of time or for non-payment of the docket and
other lawful fees within the reglementary period.
 For that reason, the RTC rightly granted Mirasol’s motion to dismiss the record on
appeal.
Petitioner: Excused from the requirement of filing a record on appeal because:
 To require a record on appeal here is to reproduce the more than 18 volumes of
records here which is quite impossible to do and that most of these records, have
nothing to do with the present controversy.
 Counsel was of the honest belief and impression that the same was not really
necessary because the nature of the controversy is civil and not an intestate one.
Supreme Court – FRAIL AND FACETIOUS
 In order to come up with the record on appeal, the petitioners were not expected to
reproduce over 18 volumes of the records, for their record on appeal would have
included only the records of the trial court which the appellate court would be
asked to pass upon.
 Section 6, Rule 41 specified what the record on appeal should contain. 9
Parting words on the requirement of complying with these procedures regarding appeals
 GR: These rules are considered indispensable interdictions against needless delays
and for an orderly discharge of judicial business.
 EXC: Highly exceptional circumstances warranting their relaxation, like when the
loftier demands of substantial justice and equity require the relaxation, or when
there are other special and meritorious circumstances and issue
 Perfection of an appeal within the period laid down by law is mandatory and
jurisdictional, because the failure to perfect the appeal within the time
prescribed by the Rules of Court causes the judgment or final order to
become final as to preclude the appellate court from acquiring the
jurisdiction to review the judgment or final order.
judgment or final order from which the appeal is taken and, in chronological order, copies of only
such pleadings, petitions, motions and all interlocutory orders as are related to the appealed
judgment or final order for the proper understanding of the issue involved, together with such
data as will show that the appeal was perfected on time. If an issue of fact is to be raised on
appeal, the record on appeal shall include by reference all the evidence, testimonial and
documentary, taken upon the issue involved. The reference shall specify the documentary
evidence by the exhibit numbers or letters by which it was identified when admitted or offered at
the hearing, and the testimonial evidence by the names of the corresponding witnesses. If the
whole testimonial and documentary evidence in the case is to be included, a statement to that
effect will be sufficient without mentioning the names of the witnesses or the numbers or letters
of exhibits. Every record on appeal exceeding twenty (20) pages must contain a subject index.
 The failure of the petitioners and their counsel to file their record on appeal on time
rendered the orders of the RTC final and unappealable. Thereby, the appellate court
lost the jurisdiction to review the challenged orders, and the petitioners were
precluded from assailing the orders.
Whether or not the RTC committed reversible error in adjudging that Lot 18 be
sold to both the petitioners and Mirasol in equal portions – RTC did NOT
commit an error.
 SC declares that RTC did not err in allocating the parcel of land equally to the
parties if only to serve and enforce a standing policy in the settlement of the large
estate to prefer actual occupants in the disposition of estate assets.
 The policy was entirely within the power of the RTC to adopt and enforce as the
probate court.
 Under Rule 89 of the Rules of Court, the RTC may authorize the sale, mortgage, or
encumbrance of assets of the estate. The approval of the sale in question, and the
modification of the disposition of property of the Estate were made pursuant to
Section 4 of Rule 8910
 Without doubt, the disposal of estate property required judicial approval before it
could be executed.
◦ Implicit in the requirement for judicial approval was that the probate court
could rescind or nullify the disposition of a property under administration that
was effected without its authority.
◦ This power included the authority to nullify or modify its approval of the sale
of the property of the estate to conform to the law or to the standing policies
set and fixed for the purpose, where the invalidation or modification derived
from the falsity of the factual basis of the disposition, or from any other
factual mistake, or from the concealment of a material fact by a party.
 Consequently, the probate courts modification of its approval of the petitioners
offer to purchase was well within the power of the RTC to nullify or modify after
it was found to be contrary to the condition for the approval (since apparently
respondent was also an occupant – not only petitioner).
 RTCs ruling, being sound and judicious, constituted neither abuse of discretion nor
excess of jurisdiction.
10 Section 4. When court may authorize sale of estate as beneficial to interested
persons; Disposal of proceeds. - When it appears that the sale of the whole or a part
of the real or personal estate will be beneficial to the heirs, devisees, legatees,
and other interested persons, the court may, upon application of the executor or
administrator and on written notice to the heirs, devisees and legatees who are
REPUBLIC v. CA
May 6, 2005| Carpio-Morales, J. | Appeals in Special Proceedings
Digester: Alexis Bea; Edited by: Jim Fausto
SUMMARY: The Ormoc RTC granted the Declaration of Presumptive Death of
Absentee Spouse Clemente P. Jomoc. Petitioner Republic filed a Notice of Appeal. The
trial court disapproved the notice of appeal because it held that the case was a special
proceeding but petitioner did not file a record on appeal. The CA affirmed the RTC,
ruling that the case was a special proceeding as compared to an ordinary action, and
thus a record on appeal was required. The SC held that a petition for declaration of
absence and death is a special proceeding (Rule 72.1 (m)). [IT SEEMS THAT] Since the
instant petition merely seeks for a declaration by the trial court of the presumptive death
of absentee spouse Clemente Jomoc, it does not seek the enforcement or protection of
a right or the prevention or redress of a wrong. HOWEVER, Art. 41 FC, which was
the basis of the trial court’s ruling, provides that “for the purpose of contracting a valid
subsequent marriage during the subsistence of a previous marriage where the prior spouse had been
absent for four consecutive years, the spouse present must institute summary proceedings for the
declaration of presumptive death of the absentee spouse…” Given that Jomoc’s petition had for
its purpose her desire to contract a valid subsequent marriage, Art. 41, FC governs. It is
thus a summary proceeding and no record of appeal was required. The SC reversed the
CA ruling and remanded the case.
DOCTRINE: If it is a special proceeding, the period to appeal is 30 days and the party
appealing must, in addition to a notice of appeal, file with the trial court a record on
appeal to perfect its appeal. Otherwise, if the petition is an ordinary action, the period to
appeal is 15 days from notice or decision or final order appealed from and the appeal is
perfected by filing a notice of appeal (Section 3, Rule 41, Rules of Court).
FACTS:
 By the Order of the RTC in Ormoc in September 29, 1999, the Declaration of
Presumptive Death of Absentee Spouse Clemente P. Jomoc was granted, declaring
him presumptively dead.
o Clemente left his wife, Apolinaria Malinao nine years earlier.
o The basis of this decision was Art. 41 of the Family Code which states
that: “for the purpose of contracting a valid subsequent marriage during the subsistence
of a previous marriage where the prior spouse had been absent for four consecutive years,
the spouse present must institute summary proceedings for the declaration of
presumptive death of the absentee spouse…”
 The Republic, through the OSG, sought to appeal the order by filing a Notice of
Appeal.
interested in the estate to be sold, authorize the executor or administrator to sell the
whole or a part of said estate, although not necessary to pay debts, legacies, or expenses
of administration; but such authority shall not be granted if inconsistent with the
provisions of a will. In case of such sale, the proceeds shall be assigned to the persons
entitled to the estate in the proper proportions.
 By Order of November 22, 1999, the trial court noted that no record of appeal was
filed and served as required by Sec. 2(a) of Rule 41 of the ROC, the present case
being a special proceeding, disapproved the Notice of Appeal filed by the SolGen
in behalf of the Republic. MR denied.
 Republic filed a petition for certiorari before the CA
o It asserts that the declaration of presumptive death under Art. 41 of the
Family Code is not a special proceeding or a case of multiple or
separate appeals requiring a record of appeal.
 CA: denied
o The principal issue in this case is whether a petition for declaration of the
presumptive death of a person is in the nature of a special proceeding. If it
is, the period to appeal is 30 days and the party appealing must, in
addition to a notice of appeal, file with the trial court a record on appeal
to perfect its appeal. Otherwise, if the petition is an ordinary action, the
period to appeal is 15 days from notice or decision or final order appealed
from and the appeal is perfected by filing a notice of appeal (Section 3,
Rule 41, Rules of Court).
o As defined in Section 3(a), Rule 1 of the Rules of Court, a civil action is
one by which a party sues another for the enforcement or protection of a
right, or the prevention of redress of a wrong while a special proceeding
under Section 3(c) of the same rule is defined as a remedy by which a
party seeks to establish a status, a right or a particular fact (Heirs of
Yaptinchay, et al. v. Del Rosario, et al., G.R. No. 124320, March 2, 1999).
o Considering the aforementioned distinction, this Court finds that the
instant petition is in the nature of a special proceeding and not an ordinary
action. The petition merely seeks for a declaration by the trial court of the
presumptive death of absentee spouse Clemente Jomoc. It does not seek
the enforcement or protection of a right or the prevention or redress of a
wrong. Neither does it involve a demand of right or a cause of action that
can be enforced against any person.
o On the basis of the foregoing discussion, the subject Order dated January
13, 2000 denying OSGs Motion for Reconsideration of the Order dated
November 22, 1999 disapproving its Notice of Appeal was correctly
issued. The instant petition, being in the nature of a special proceeding,
OSG should have filed, in addition to its Notice of Appeal, a record on
appeal in accordance with Section 19 of the Interim Rules and Guidelines
to Implement BP Blg. 129 and Section 2(a), Rule 41 of the Rules of Court
 The Republic insists that the declaration of presumptive death is not a special
proceeding citing Rule 109 of the Revised Rules of Court which enumerates the
cases wherein multiple appeals are allowed and a record on appeal is required for an
appeal to be perfected—which does not include the petition for the declaration of
presumptive death of an absent spouse. Thus, a mere Notice of Appeal should
suffice
RULING: Decision of the Court of Appeals is hereby REVERSED and SET ASIDE.
Let the case be REMANDED to it for appropriate action in light of the foregoing
discussion.
Whether or not the Declaration of Presumptive Death of an Absentee Spouse is
considered a special proceeding—NO (if for purposes of remarriage).
 [TOPIC] If it is a special proceeding, the period to appeal is 30 days and the party
appealing must, in addition to a notice of appeal, file with the trial court a record on
appeal to perfect its appeal. Otherwise, if the petition is an ordinary action, the
period to appeal is 15 days from notice or decision or final order appealed from
and the appeal is perfected by filing a Notice of Appeal (Section 3, Rule 41, Rules
of Court).
 As defined in Section 3(a), Rule 1 of the Rules of Court, a civil action is one by
which a party sues another for the enforcement or protection of a right, or the
prevention of redress of a wrong while a special proceeding under Section 3(c) of
the same rule is defined as a remedy by which a party seeks to establish a status, a
right or a particular fact (Heirs of Yaptinchay, et al. v. Del Rosario, et al., G.R. No.
124320, March 2, 1999).
As Applied
 Considering the aforementioned distinction, the Court found that the instant
petition is in the nature of a special proceeding and not an ordinary action. The
petition merely seeks for a declaration by the trial court of the presumptive death of
absentee spouse Clemente Jomoc. It does not seek the enforcement or protection
of a right or the prevention or redress of a wrong. Neither does it involve a
demand of right or a cause of action that can be enforced against any person.
 On the basis of the foregoing discussion, the subject Order dated January 13, 2000
denying OSGs Motion for Reconsideration of the Order dated November 22, 1999
disapproving its Notice of Appeal was correctly issued.
 The instant petition, being in the nature of a special proceeding, OSG should have
filed, in addition to its Notice of Appeal, a record on appeal in accordance with
Section 19 of the Interim Rules and Guidelines to Implement BP 129 and Section
2(a), Rule 41, ROC.
HOWEVER:
 PETITIONER Republic: the declaration of presumptive death under Article 41 of
the Family Code is not a special proceeding involving multiple or separate appeals
where a record on appeal shall be filed and served in like manner. Petitioner cites
Rule 109 ROC, which enumerates the cases wherein multiple appeals are allowed
and a record on appeal is required for an appeal to be perfected. The petition for
the declaration of presumptive death of an absent spouse not being included in the
enumeration, petitioner contends that a mere notice of appeal suffices.
 COURT: Rule 72 Sec. 1 (m) of the ROC which governs the General Rules on
Special Proceedings states that:
o Sec. 1. Subject matter of special proceedings. Rules of special proceedings
are provided for in the following: (m) Declaration of absence and death;
 o Sec. 2. Applicability of rules of civil actions. In the absence of special
provisions, the rules provided for in ordinary actions shall be, as far as
practicable, applicable in special proceedings. (Underscoring supplied)
 The pertinent provision of the Civil Code on presumption of death provides:
o Art. 390. After an absence of seven years, it being unknown whether or
not the absentee still lives, he shall be presumed dead for all purposes,
except for those of succession.
o Art. 41. A marriage contracted by any person during the subsistence of a
previous marriage shall be null and void, unless before the celebration of
the subsequent marriage, the prior spouses had been absent for four
consecutive years and the spouse present had a well-founded belief that
the absent spouses was already dead. In case of disappearance where there
is danger of death under the circumstances set forth in the provisions of
Article 391 of the Civil Code, an absence of only two years shall be
sufficient. For the purpose of contracting the subsequent marriage
under the preceding paragraph, the spouses present must institute a
summary proceeding as provided in this Code for the declaration of
presumptive death of the absentee, without prejudice to the effect of a
reappearance of the absent spouse.
 Rule 41, Section 2 of the Revised Rules of Court, on Modes of Appeal, invoked by
the trial court in disapproving petitioners Notice of Appeal, provides:
o Sec. 2. Modes of appeal. - (a) Ordinary appeal. - The appeal to the Court of
Appeals in cases decided by the Regional Trial Court in the exercise of its
original jurisdiction shall be taken by filing a notice of appeal with the
court which rendered the judgment or final order appealed from and
serving a copy thereof upon the adverse party. No record on appeal shall
be required except in special proceedings and other cases of multiple
or separate appeals where the law or these Rules so require. In such
cases, the record on appeal shall be filed and served in like manner.
(Emphasis and underscoring supplied)
 By the trial courts citation of Article 41 of the Family Code, it is gathered that the
petition of Apolinaria Jomoc to have her absent spouse declared presumptively
dead had for its purpose her desire to contract a valid subsequent marriage.
 Ergo, the petition for that purpose is a summary proceeding, following above-
quoted Art. 41, paragraph 2 of the Family Code.
 Title XI of the Family Code, entitled SUMMARY JUDICIAL PROCEEDING IN
THE FAMILY LAW, contains the following provision:
o Art. 238. Unless modified by the Supreme Court, the procedural rules in
this Title shall apply in all cases provided for in this Codes requiring
summary court proceedings. Such cases shall be decided in an
expeditious manner without regard to technical rules. (Emphasis and
underscoring supplied)
 IMPORTANT PART: There is no doubt that the petition of Apolinaria Jomoc
required, and is, therefore, a summary proceeding under the Family Code, not a
special proceeding under the Revised Rules of Court appeal for which calls for the
filing of a Record on Appeal. It being a summary ordinary proceeding, the filing of
a Notice of Appeal from the trial courts order sufficed.
o That the Family Code provision on repeal, Art. 254, provides as follows:
Art. 254. Titles III, IV, V, VI, VII, VIII, IX, XI and XV of Book I of
Republic Act No. 386, otherwise known as the Civil Code of the
Philippines, as amended, and Articles 17, 18, 19, 27, 28, 29, 30, 31, 39, 40,
41 and 42 of Presidential Decree No. 603, otherwise known as the Child
and Youth Welfare Code, as amended, and all laws, decrees, executive
orders, proclamations rules and regulations, or parts thereof,
inconsistent therewith are hereby repealed, seals the case in petitioners
favor.
NOTES:
1. On the alleged procedural flaw in petitioners petition before the appellate
court. Petitioners failure to attach to his petition before the appellate court a
copy of the trial courts order denying its motion for reconsideration of the
disapproval of its Notice of Appeal is not necessarily fatal, for the rules of
procedure are not to be applied in a technical sense. Given the issue raised
before it by petitioner, what the appellate court should have done was to direct
petitioner to comply with the rule.
2. As for petitioners failure to submit copy of the trial courts order granting the
petition for declaration of presumptive death, contrary to the appellate courts
observation that petitioner was also assailing it, petitioners 8-page petition[10]
filed in said court does not so reflect, it merely having assailed the order
disapproving the Notice of Appeal.
Aida Bañez v. Gabriel Bañez
January 23, 2002| Quisumbing, J. | Appeals in Special Proceedings
Digester: Lingat, Anna Mickaella N.
SUMMARY: RTC Cebu decreed the legal separation between petitioner Aida and
respondent Gabriel Bañez. Gabriel filed a Notice of Appeal, while Aida filed a Motion
for Execution Pending Appeal which was granted by the RTC (Gabriel will vacate their
small residential house in Cebu and surrender a Mazda motor vehicle). Gabriel filed an
appeal before CA, which was granted. Subsequently, RTC gave due course to Gabriel’s
Notice of Appeal (elevated entire records to the CA). The two petitions are consolidated
in this case. Aida argues that CA erred in setting aside the writ of execution and in
denying her MTD of Gabriel’s appeal and not returning the records to RTC.
The Court denied the petition and held that execution of judgment pending appeal was
not justified. Aida did not refute Gabriel's allegations that she did not intend to use the
house and that that she has two houses in US where she is a permanent resident, while
Gabriel had none. The Court also that multiple appeals is not allowed in action for legal
separation. The effects of legal separation, such as entitlement to live separately,
dissolution and liquidation of the ACP or CPG, custody of minor children, follow from
the decree of legal separation. They are not separate or distinct matters that may be
resolved by the court and become final prior to or apart from the decree of legal
separation.
DOCTRINE: In Roman Catholic Archbishop of Manila v. Court of Appeals: Multiple
appeals are allowed in special proceedings, in actions for recovery of property with
accounting, in actions for partition of property with accounting, in the special civil
actions of eminent domain and foreclosure of mortgage. The rationale behind allowing
more than one appeal in the same case is to enable the rest of the case to proceed in the
event that a separate and distinct issue is resolved by the court and held to be final.
FACTS:
 RTC Cebu decreed the legal separation between Aida and Gabriel Bañez on the
ground of the Gabriel’s sexual infidelity. RTC also decreed the ff:
o Dissolution of their conjugal property relations and the division of the net
conjugal assets in favor of the common children
o Forfeiture of Gabriel’s 1/2 share in the net conjugal assets in favor of the
common children
o Payment to Aida’s counsel of the sum of P100,000 as attorney’s fees (taken
from Gabriel’s share in the net assets)
o Surrender by Gabriel of the use and possession of a Mazda motor vehicle and
the smaller residential house located at Maria Luisa Estate Park Subdivision to
Aida and their common children.
 Thereafter, Aida filed an urgent ex-parte motion to modify said decision, while
Gabriel filed a Notice of Appeal.
RTC – October 1996 order (modified decision)
 RTC granted Aida’s urgent ex-parte motion to modify the decision: (October 1996
order)
o Obliging Aida to pay as attorney’s fees the equivalent of 5% of the total value
of Gabriel’s ideal share in the net conjugal assets; and
o Ordering the administrator to pay Aida’s counsel, Atty. Adelino B. Sitoy, the
sum of P100,000 as advance attorney’s fees chargeable against the aforecited
5%.
 In another motion to modify the decision, Aida Bañez sought moral and exemplary
damages, as well as litigation expenses. Aida also filed a motion for execution
pending appeal.
 Respondent Gabriel Bañez filed a consolidated written opposition to the two
motions, and also prayed for the reconsideration of the October 1996 order.
RTC – Execution pending appeal (writ of execution)
 RTC denied Aida’s motion for moral and exemplary damages and litigation
expenses but gave due course to the execution pending appeal.
o A writ of execution was issued to enforce the decision for
(1) Gabriel to vacate the premises of the small residential house situated in
Maria Luisa Estate Park Subdivision, Lahug, Cebu City and for
(2) Gabriel to surrender the use and possession of said Mazda motor vehicle
together with its keys and accessories to Aida.
o Atty. Edgar Gica, the Special Administrator, is ordered to make the necessary
computation of the value of the one-half (1/2) share of Aida in the net
remaining conjugal assets of the spouses within 10 days from receipt of this
order.
o Aida was also ordered to post a bond in the amount of P1,500,000.00 to
answer for all the damages that Gabriel may suffer arising from the issuance of
said writ of execution pending appeal and to further answer for all the
advances that petitioner may have received from the Special Administrator in
this case pending final termination of this present case.
CA (first petition)
 Gabriel Bañez filed a petition for certiorari. Granted.
 RTC (October 1996 order) was set aside
 Writ of execution was also set aside.
 The Administrator of the conjugal partnership is ordered to cause the
reimbursement by counsel for Aida Bañez of the amount of P100,000.00 released
to him as advance payment of attorney’s fees
 Aida’s MR was denied; hence, this petition
CA - Gabriel’s Notice of Appeal (second petition)
 Meanwhile, RTC gave due course to Gabriel’s Notice of Appeal (elevated entire
records to the CA)
 Aida filed a motion to dismiss the appeal on the ground that Gabriel failed to file
with the CA a Record on Appeal.
 CA denied the MTD but affirmed appointment of Aida as administratrix of the
conjugal properties.
 Aida filed an Appeal but was subsequently dismissed in view of her own Motion to
Withdraw her own appeal and for failing to pay the required docket fee.
 CA denied Aida’s MR
Two petitions are consolidated.
Aida now avers:
 Re first petition: CA erred in setting aside the grant of execution pending appeal (by
RTC) ordering Gabriel to vacate the smaller residential house and to pay P100,000
to Aida’s counsel to be taken from her share in the net conjugal assets.
o She no longer questions the CA decision on the Mazda vehicle because
Gabriel repossessed it.
o As to the residential house, she claimed that being conjugal in nature, justice
requires that she and her children be allowed to occupy and enjoy the house
considering that during the entire proceedings before the trial court, she did
not have the chance to occupy it.
 Re second petition: CA erred in not granting her MTD of Gabriel’s ordinary appeal
and not returning the records of the civil case to RTC
 Aida posted a bond of P1,500,000 for the damages which respondent may suffer.
For these reasons, she asked for execution pending appeal. The amount of
P100,000 as advance payment to her counsel was a "drop in the bucket" compared
to the bond she posted, according to her.
 She also suggested as an alternative that she simply be required to put up an
additional bond. She also agreed to submit to an accounting as regular
administratrix and the advance attorney’s fees be charged to her share in the net
conjugal assets.
Gabriel’s answer:
 He denied Aida’s allegation that she did not have the chance to occupy the
residential house. He averred that she could have, had she chosen to.
 According to him, as the inventory of the couple’s properties showed, petitioner
owned two houses and lots and two motor vehicles in the United States, where she
is a permanent resident. Respondent contended that there was no compelling
reason for petitioner to have the judgment executed pending appeal.
RULING: Petitions are denied for lack of merit
Whether the execution of judgment pending appeal was justified? - NO
 As held in Echaus vs. Court of Appeals, execution pending appeal is allowed
when superior circumstances demanding urgency outweigh the damages
that may result from the issuance of the writ. Otherwise, instead of being an
instrument of solicitude and justice, the writ may well become a tool of oppression
and inequity.
 In this case, there is no superior or urgent circumstance that outweighs the damage
which respondent would suffer if he were ordered to vacate the house.
 Aida did not refute respondent’s allegations that she did not intend to use said
house, and that she has two (2) other houses in the United States where she is a
permanent resident, while he had none at all.
 Merely putting up a bond is not sufficient reason to justify her plea for execution
pending appeal. To do so would make execution routinary, the rule rather than the
exception.
 Similarly, the Court is not persuaded that the P100,000 advance payment to Aida’s
counsel was properly granted. There is no justification to pre-empt the judgment by
the CA concerning said amount of P100,000 at the time that the trial court’s
judgment was already on appeal.
Whether multiple appeals is allowed in an action for legal separation? - NO
Aida argues:
 Aida contends that an action for legal separation is among the cases where multiple
appeals may be taken.
o According to her, the filing of a record on appeal, pursuant to Section 2(a),
Rule 41 of the Rules of Court, is required in this case.
o She concludes that respondent’s appeal should have been dismissed for his
failure to file the record on appeal within the reglementary period, as provided
under Section 1-b, Rule 50 of the Rules of Court.
 Petitioner likewise prays that, in the event that this Court does not dismiss Gabriel
Bañez’ appeal, SC should direct the appellate court to return the records of the case
to the RTC of Cebu.
o Thereafter, according to her, respondent should file his record on appeal for
approval and transmittal to the Court of Appeals.
o In the alternative, she prays that the appellate court retain only the pleadings
and evidence necessary to resolve respondent’s appeal pursuant to Section 6,
Rule 4415 and Section 6, Rule 13516 of the Rules of Court, and return the rest
of the case records to the RTC.
Gabriel argues:
 Section 39 of B.P. 12917 expressly abolished the requirement of a record on appeal,
except in appeals in special proceedings in accordance with Rule 109,18 and other
cases wherein multiple appeals are allowed.
 An action for legal separation is neither a special proceeding nor one where
multiple appeals are allowed.
Court:
 In Roman Catholic Archbishop of Manila v. Court of Appeals:
o Multiple appeals are allowed in special proceedings, in actions for recovery of
property with accounting, in actions for partition of property with accounting,
in the special civil actions of eminent domain and foreclosure of mortgage.
The rationale behind allowing more than one appeal in the same case is to
enable the rest of the case to proceed in the event that a separate and distinct
issue is resolved by the court and held to be final.
o The two issues raised by petitioner in this case that may allegedly be the
subject of multiple appeals arose from the same cause of action, and the
subject matter pertains to the same lessor-lessee relationship between the
parties. Hence, splitting the appeals in that case would only be violative of the
rule against multiplicity of appeals.
 The same holds true in an action for legal separation. The issues involved in the
case will necessarily relate to the same marital relationship between the parties. The
effects of legal separation, such as entitlement to live separately, dissolution and
liquidation of the absolute community or conjugal partnership, and custody of the
minor children, follow from the decree of legal separation. They are not separate or
distinct matters that may be resolved by the court and become final prior to or
apart from the decree of legal separation. Rather, they are mere incidents of legal
separation. Thus, they may not be subject to multiple appeals.
 Petitioner’s alternative prayers that in case we do not dismiss the appeal, we return
the records to the trial court and require respondent to file a record on appeal, or
we return the records to the trial court and retain only the pleadings and orders
relevant to the appeal, are untenable.
 If we grant the first, we are effectively saying that the instant case is one involving
multiple appeals, which it is not. If we allow the second, we are effectively applying
by analogy, Section 6, Rule 44 and Section 6, Rule 135 of the Rules of Court,
without petitioner showing support therefor in law or jurisprudence.
BPI v. PRYCE GASES
June 29, 2011 | Carpio, J. | Appeals in Special Proceedings
Digester: Magtanong, Patch
SUMMARY: Pryce Gases (PGI) filed a petition for rehabilitation with the Makati RTC.
Under the plan, its sustainable debt would be rescheduled as senior loans. Based on the
proposal, PGI’s loan from BPI Family Savings Bank (BFB) shall be paid in 10 years.
The RTC granted this. PGI informed the RTC that Pryce Corp. had offered to help
through dacion en pago of its real estate assets to PGI’s creditors. BFB objected to
dacion en pago as a mode of payment, stating that BFB’s exposure to PGI was secured
by assets that were considered non-operating and not critical to the rehabilitation plan.
The RTC approved this. BFB filed a notice of appeal on Nov. 3, 2003, which it
dismissed, ruling that the law clearly states that in special proceedings, record on appeal
is required to perfect the appeal. The Court held that under A.M. No. 00-8-10-SC, a
petition for corporate rehabilitation is a special proceeding. The period of appeal
provided in par.19(b) of the Interim Rules Relative to the Implementation of BP 129 for
special proceedings shall apply—the period of appeal shall be 30 days since a record of
appeal is required. Filing of the notice of appeal was not sufficient because at the time
of its filing, the Rules required the filing of the record on appeal and not merely a notice
of appeal.
DOCTRINE: Under A.M. No. 00-8-10-SC, a petition for corporate rehabilitation is
considered a special proceeding. The period of appeal shall be 30 days since a record of
appeal is required.
FACTS:
 Pryce Gases, Inc. (PGI) is a corporation engaged in the business of producing,
selling and trading in all kinds of liquids, gases, and other chemicals, including but
not limited to oxygen, acetylene, hydrogen, nitrogen, argon, carbon dioxide,
carbonex, nitrous oxide, compressed air, helium, and other allied or related
products.
 PGI is a debtor of the International Finance Corporation (IFC), an international
organization and an affiliate of the International Bank of Reconstruction and
Development (World Bank), and the Nederlandse Financier ings-Maatschappij
Voor Ontwikkelingslanden N.V. (FMO), a Dutch development bank engaged in
promoting the expansion of private enterprise in emerging markets.
 IFC and FMO filed a Petition for Rehabilitation with the Regional Trial Court of
Makati due to the failure of PGI to service its debts as well as the refusal of PGI’s
parent company, the Pryce Corporation, to provide financial support to PGI.
 The petition for rehabilitation was meant to preserve PGI’s workforce and ensure
that its cash flow would not be diverted to ill-advised ventures but would instead be
channeled back to its operating capital to generate profits to pay off and retire
debts. IFC and FMO proposed a financial restructuring that called for the
conversion of dollar-denominated loans to peso and the splitting of the whole debt
instrument into two categories: (1) the sustainable debt which would be
rescheduled as a senior loan and secured by PGIÊs assets; and (2) the unsustainable
portion to be transformed into redeemable preferred shares with voting rights.
Under the proposal, senior loans shall be paid in five years while the shares are
forecast to be redeemed in ten years. Based on the proposed financial restructuring,
PGIÊs loan from BPI Family Savings Bank, Inc. (BFB) shall be paid in ten years as
it was a non-MTI5 creditor.
RTC:
 PGI informed RTC, Branch 138, that its parent company, Pryce Corporation, had
offered to help through dacion en pago of its real estate assets to PGI’s creditors,
subject to certain terms and conditions.
 In a Compliance dated July 2003, Mendoza (receiver) submitted his
recommendation which, among others, states:
“2. Creditors Secured with Non-Operating Assets.·Payment of principal and
interest accrued as of August 31, 2002 by way of assets already mortgaged to them
at dacion values pegged to the average of two appraisals to be undertaken by
Bangko Sentral- accredited appraisal firms who are nominated by the creditors in a
meeting called for that purpose.”
 BFB objected to dacion en pago as a mode of payment. BFB’s exposure to PGI
was secured by assets that were considered non-operating and not critical to the
rehabilitation plan recommended by Mendoza. PGI and Pryce Corporation
submitted a Partial Opposition to the provision on income sharing of receiver’s
recommended revised rehabilitation plan but manifested their conformity to the
other provisions of the plan.
 The RTC approved the rehabilitation plan.
 BFB filed a notice of appeal. PGI filed a motion to dismiss the appeal on the
ground that BFB failed to perfect the appeal because of failure to file the record on
appeal within the required period.
 The RTC ruled that the law clearly states that in special proceedings, record on
appeal is required to perfect the appeal. MR of BFB denied, filed a petition for
certiorari in the CA.
CA:
 The Court of Appeals ruled that corporate rehabilitations are special proceedings
and as such, appeals from the final order or decision therein should be by record
on appeal in accordance with Section 2, Rule 41 of the 1997 Rules of Civil
Procedure.
 When BFB filed the notice of appeal, the rule in force was the Interim Rules of
Procedure on Corporate Rehabilitation which required the filing of a record on
appeal. The mere filing of a notice of appeal would not suffice without the required
record on appeal.
 BFB’s prayer that the petition be treated as filed under Rule 43 of the 1997 Rules of
Civil Procedure lacked merit because it was filed out of time. Due to the dismissal
of BFB’s appeal and the denial of its motion for reconsideration by the RTC, the
10 October 2003 Order had become final and executory.
 BFB’s petition was grossly defective because the verification was signed by an
employee of the Bank of the Philippine Islands, a completely different entity from
BPI Family Savings Bank, Inc.
 BFB’s MR denied.
RULING: Petition denied.
Whether the CA committed a reversible error in sustaining the RTC in
dismissing BFB’s appeal– NO.
 Section 5 of the Interim Rules on Corporate Rehabilitation provides that „(t)he
review of any order or decision of the court or an appeal therefrom shall be in
accordance with the Rules of Court x x x. Under A.M. No. 00-8-10-SC, a petition
for corporate rehabilitation is considered a special proceeding.
 Thus, the period of appeal provided in paragraph 19(b) of the Interim Rules
Relative to the Implementation of Batas Pambansa Blg. 129 for special proceedings
shall apply, that is, the period of appeal shall be 30 days since a record of appeal is
required. Thus:
19. Period of Appeal.·
(a) x x x
(b) In appeals in special proceedings in accordance with Rule 109 of the Rules of
Court and other cases wherein multiple appeals are allowed, the period of appeal
shall be thirty (30) days, a record of appeal being required.
 On 14 September 2004, this Court issued A.M. No. 04-9- 07-SC providing that all
decisions and final orders in cases falling under the Interim Rules of Corporate
Rehabilitation and the Interim Rules of Procedure Governing Intra- Corporate
Controversies under Republic Act No. 8799 shall be appealed to the Court of
Appeals through a petition for review under Rule 43 of the Rules of Court, to be
filed within fifteen (15) days from notice of the decision or final order of the
Regional Trial Court.
 However, in this case, BFB filed a notice of appeal on 3 November 2003, before
the effectivity of A.M. No. 04-9-07-SC. Hence, at the time of filing of BFB’s
appeal, the applicable mode of appeal is Section 2, Rule 41 of the 1997 Rules of
Civil Procedure which provides:
 “Sec. 2. Modes of Appeal.·
(a) Ordinary appeal.·The appeal to the Court of Appeals in cases decided by the
Regional Trial Court in the exercise of its original jurisdiction shall be taken by
filing a notice of appeal with the court which rendered the judgment or final order
appealed from and serving a copy thereof upon the adverse party. No record on
appeal shall be required except in special proceedings and other cases of multiple or
separate appeals where the law or these Rules so require. In such cases, the record
on appeal shall be filed and served in like manner.”
 Under Section 9, Rule 41 of the 1997 Rules of Civil Procedure, “(a) party’s appeal
by record on appeal is deemed perfected as to him with respect to the subject
matter thereof upon approval of the record on appeal filed in due time.”
 In this case, BFB did not perfect the appeal when it failed to file the record on
appeal. The filing of the notice of appeal on 3 November 2003 was not sufficient
because at the time of its filing, the Rules required the filing of the record on appeal
and not merely a notice of appeal.
 The issuance by the Court of A.M. No. 04-9-07-SC providing that all decisions and
final orders in cases falling under the Interim Rules of Corporate Rehabilitation and
the Interim Rules of Procedure Governing Intra-Corporate Controversies under
Republic Act No. 8799 shall be appealed to the Court of Appeals through a
petition for review under Rule 43 of the Rules of Court, to be filed within 15 days
from notice of the decision or final order of the Regional Trial Court, did not
change the fact that BFB’s appeal was not perfected.
 Further, BFB filed its Motion With Leave to Withdraw Notice of Appeal only on
20 April 2006 or almost two years after the issuance of A.M. No. 04-9-07-SC on 14
September 2004.
 Appeal is not a matter of right but a mere statutory privilege. The party who seeks
to exercise the right to appeal must comply with the requirements of the rules,
failing in which the right to appeal is lost. While the Court, in certain cases, applies
the policy of liberal construction, it may be invoked only in situations where there
is some excusable formal deficiency or error in a pleading, but not where its
application subverts the essence of the proceeding or results in the utter disregard
of the Rules of Court.
 In addition, BFB filed a motion for reconsideration of the 9 May 2006 Order of the
RTC, Branch 138. Under Section 1, Rule 3 of the Interim Rules of Procedure on
Corporate Rehabilitation, the proceedings shall be summary and non- adversarial in
nature and a motion for new trial or reconsideration is a prohibited pleading.
 Hence, in view of the failure of BFB to perfect its appeal and its subsequent filing
of a motion for reconsideration which is a prohibited pleading, the 10 October
2003 Order of the RTC, Branch 138, approving the rehabilitation plan had become
final and executory.
RUIZ v. CA
January 29, 1996 | Puno, J. | Powers and duties of executors and administrators;
restrictions
Digester: Valena, Maria Patricia S. (edited by F.S.L.Melliza)
SUMMARY: Executor of the testator’s estate filed an ex-parte motion for release of
funds, which was granted but only to the amount necessary to cover the expenses of
administration and allowances for support of the testators three granddaughters. The
executor challenged this order on the ground that it deprived him of his right to take
possession of all the real and personal properties of the estate. The Court held that he
had already been granted by the probate court certain amounts for repair and
maintenance expenses on the properties of the estate, and payment of the real estate
taxes, so the probate court was correct in requiring him to submit an accounting of
the necessary expenses for administration before releasing any further money in his
favor.
DOCTRINE: The right of an executor or administrator to the possession and
management of the real and personal properties of the deceased is not absolute and can
only be exercised so long as it is necessary for the payment of the debts and expenses of
administration
Re Appeal in Special Proceedings:
Rule 109, Sec. 2. Advance distribution in special proceedings. - Nothwithstanding a
pending controversy or appeal in proceedings to settle the estate of a decedent, the
court may, in its discretion and upon such terms as it may deem proper and just,
permit that such part of the estate as may not be affected by the controversy or
appeal be distributed among the heirs or legatees, upon compliance with the
conditions set forth in Rule 90 of these Rules.
FACTS:
 Hilario M. Ruiz executed a holographic will naming as his heirs his only son,
Edmond Ruiz, his adopted daughter, private respondent Maria Pilar Ruiz Montes,
and his three granddaughters, private respondents Maria Cathryn, Candice
Albertine and Maria Angeline, all children of Edmond Ruiz. The testator
bequeathed to his heirs substantial cash, personal and real properties and named
Edmond Ruiz executor of his estate.
 Four years after the testators death, private respondent Maria Pilar Ruiz Montes
filed a petition for the probate and approval of Hilario Ruizs will and for the
issuance of letters testamentary to Edmond Ruiz. Edmond opposed the petition on
the ground that the will was executed under undue influence.
 On November 2, 1992, one of the properties of the estate - Valle Verde house
which the testator bequeathed to Maria Cathryn, Candice Albertine and Maria
Angeline - was leased by Edmond Ruiz to third persons.
 On January 19, 1993, the probate court ordered Edmond to deposit with the
Branch Clerk of Court the rental deposit and payments totalling P540,000.00
representing the one-year lease of the Valle Verde property. In compliance,
on January 25, 1993, Edmond turned over the amount of P348,583.56, representing
the balance of the rent after deducting P191,416.14 for repair and maintenance
expenses on the estate.
 On May 14, 1993, Edmond withdrew his opposition to the probate of the
will. Consequently, the probate court, on May 18, 1993, admitted the will to
probate and ordered the issuance of letters testamentary to Edmond conditioned
upon the filing of a bond in the amount of P50,000.00. The letters testamentary
were issued on June 23, 1993.
 On July 28, 1993, petitioner Testate Estate of Hilario Ruiz as executor, filed
an Ex-Parte Motion for Release of Funds. It prayed for the release of the rent
payments deposited with the Branch Clerk of Court. Respondent Montes opposed
the motion and concurrently filed a Motion for Release of Funds to Certain Heirs
and Motion for Issuance of Certificate of Allowance of Probate Will. Montes
prayed for the release of the said rent payments to Maria Cathryn, Candice
Albertine and Maria Angeline and for the distribution of the testators properties,
specifically the Valle Verde property and the Blue Ridge apartments, in accordance
with the provisions of the holographic will.
 On August 26, 1993, the probate court denied petitioners motion for release of
funds but granted respondent Montes motion in view of petitioners lack of
opposition. It thus ordered the release of the rent payments to the decedents three
granddaughters. It further ordered the delivery of the titles to and possession of the
properties bequeathed to the three granddaughters and respondent Montes upon
the filing of a bond of P50,000.00.
 Petitioner moved for reconsideration alleging that he actually filed his opposition to
respondent Montes motion for release of rent payments which opposition the
court failed to consider. Petitioner likewise reiterated his previous motion for
release of funds.
 On November 23, 1993, petitioner, through counsel, manifested that he was
withdrawing his motion for release of funds in view of the fact that the lease
contract over Valle Verde property had been renewed for another year.
 Despite petitioners manifestation, the probate court, on December 22, 1993,
ordered the release of the funds to Edmond but only such amount as may be
necessary to cover the expenses of administration and allowances for
support of the testators three granddaughters subject to collation and
deductible from their share in the inheritance. The court, however, held in
abeyance the release of the titles to respondent Montes and the three
granddaughters until the lapse of six months from the date of first publication of
the notice to creditors.
 CA dismissed petition challenging this Order.
RULING: Affirmed with the modification that those portions of the order granting an
allowance to the testators grandchildren and ordering the release of the titles to the
private respondents upon notice to creditors are annulled and set aside.
Whether the probate court, after admitting the will to probate but before
payment of the estates debts and obligations, has the authority:
1. To grant an allowance from the funds of the estate for the support of the
testators grandchildren – NO.
2. To order the release of the titles to certain heirs – NO.
3. To grant possession of all properties of the estate to the executor of the will –
NO. Right of an executor or administrator to the possession and management of
the real and personal properties of the deceased is not absolute
On issue #1
 Sec. 3, Rule 83: Allowance to widow and family. - The widow and minor or incapacitated
children of a deceased person, during the settlement of the estate, shall receive therefrom
under the direction of the court, such allowance as are provided by law.
 PETITIONER: this provision only gives the widow and the minor or incapacitated
children of the deceased the right to receive allowances for support during the
 settlement of estate proceedings. The testators three granddaughters do not qualify
for an allowance because they are not incapacitated and are no longer minors but of
legal age, married and gainfully employed. In addition, the provision expressly
states children of the deceased which excludes the latters grandchildren.
 Allowances for support under Section 3 of Rule 83 should not be limited to the
minor or incapacitated children of the deceased. Article 188 of the Civil Code of
the Philippines provides that during the liquidation of the conjugal partnership, the
deceaseds legitimate spouse and children, regardless of their age, civil status or
gainful employment, are entitled to provisional support from the funds of the
estate. BUT, grandchildren are not entitled to provisional support from the funds
of the decedents estate. The law clearly limits the allowance to widow and children
and does not extend it to the grandchildren.
On #2
 An order releasing titles to properties of the estate amounts to an advance
distribution of the estate which is allowed only under the following conditions:
Rule 109, Sec. 2. Advance distribution in special proceedings. - Nothwithstanding a pending
controversy or appeal in proceedings to settle the estate of a decedent, the court may, in its
discretion and upon such terms as it may deem proper and just, permit that such part of the
estate as may not be affected by the controversy or appeal be distributed among the heirs or
legatees, upon compliance with the conditions set forth in Rule 90 of these Rules.
 Rule 90, Sec. 1. When order for distribution of residue made. - When the debts, funeral charges, and
expenses of administration, the allowance to the widow, and inheritance tax, if any,
chargeable to the estate in accordance with law, have been paid, the court, on the application
of the executor or administrator, or of a person interested in the estate, and after hearing
upon notice, shall assign the residue of the estate to the persons entitled to the same, naming
them and the proportions, or parts, to which each is entitled, and such persons may demand
and recover their respective shares from the executor or administrator, or any other person
having the same in his possession. If there is a controversy before the court as to who are
the lawful heirs of the deceased person or as to the distributive shares to which each person
is entitled under the law, the controversy shall be heard and decided as in ordinary cases.
No distribution shall be allowed until the payment of the obligations above-mentioned has
been made or provided for, unless the distributees, or any of them, give a bond, in a sum to
be fixed by the court, conditioned for the payment of said obligations within such time as
the court directs.
 In settlement of estate proceedings, the distribution of the estate properties can
only be made: (1) after all the debts, funeral charges, expenses of administration,
allowance to the widow, and estate tax have been paid; or (2) before payment of
said obligations only if the distributees or any of them gives a bond in a sum fixed
by the court conditioned upon the payment of said obligations within such time as
the court directs, or when provision is made to meet those obligations.
 In the case at bar, the probate court ordered the release of the titles to the Valle
Verde property and the Blue Ridge apartments to the private respondents after the
lapse of six months from the date of first publication of the notice to creditors. The
questioned order speaks of notice to creditors, not payment of debts and
obligations. Hilario Ruiz allegedly left no debts when he died but the taxes on his
estate had not hitherto been paid, much less ascertained. But, the estate tax is one
of those obligations that must be paid before distribution of the estate. If not yet
paid, the rule requires that the distributees post a bond or make such provisions as
to meet the said tax obligation in proportion to their respective shares in the
inheritance. Notably, at the time the order was issued the properties of the estate
had not yet been inventoried and appraised.
 It was also too early in the day for the probate court to order the release of the
titles six months after admitting the will to probate. The intrinsic validity of
Hilarios holographic will was controverted by petitioner before the probate court.
Petitioner assailed the distributive shares of the devisees and legatees inasmuch as
his fathers will included the estate of his mother and allegedly impaired his legitime
as an intestate heir of his mother – there still exists a controversy.
[TOPIC] Issue #3
 Petitioner cannot correctly claim that the assailed order deprived him of his right to
take possession of all the real and personal properties of the estate. The right of an
executor or administrator to the possession and management of the real and
personal properties of the deceased is not absolute and can only be exercised so
long as it is necessary for the payment of the debts and expenses of administration.
Section 3 of Rule 84 of the Revised Rules of Court explicitly provides:
Sec. 3. Executor or administrator to retain whole estate to pay debts, and to administer estate not willed. -
An executor or administrator shall have the right to the possession and management of the
real as well as the personal estate of the deceased so long as it is necessary for the payment
of the debts and expenses for administration
 When petitioner moved for further release of the funds deposited with the clerk of
court, he had been previously granted by the probate court certain amounts for
repair and maintenance expenses on the properties of the estate, and payment of
the real estate taxes thereon. But petitioner moved again for the release of
additional funds for the same reasons he previously cited. It was correct for the
probate court to require him to submit an accounting of the necessary expenses for
administration before releasing any further money in his favor.
 It was relevantly noted by the probate court that petitioner had deposited with it
only a portion of the one-year rental income from the Valle Verde property.
Petitioner did not deposit its succeeding rents after renewal of the lease. Neither did
he render an accounting of such funds.
 Petitioner must be reminded that his right of ownership over the properties of his
father is merely inchoate as long as the estate has not been fully settled and
partitioned. As executor, he is a mere trustee of his fathers estate. The funds of the
estate in his hands are trust funds and he is held to the duties and responsibilities of
a trustee of the highest order. He cannot unilaterally assign to himself and possess
all his parents properties and the fruits thereof without first submitting an
inventory and appraisal of all real and personal properties of the deceased,
rendering a true account of his administration, the expenses of administration, the
amount of the obligations and estate tax, all of which are subject to a determination
by the court as to their veracity, propriety and justness.