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ASSI GNM ENT N O. 13 RULE 106: Constitution of Family Home Section 1. Who may constitute.

- The head of a family owning a house and the land on which it is situated may constitute the same into a family home by filing a verified petition to that effect with the Court of First Instance of the province or city where the property is located. In the City of Manila, the petition shall be filed in the Juvenile and Domestic Relations Court. When there is danger that a person obliged to give support may lose his or her fortune because of grave mismanagement or on account of riotous living, his or her spouse, if any, and a majority of those entitled to be supported by him or by her may petition the Court of First Instance for the creation of the family home. Section 2. Contents of petition. - The petition shall contain the following particulars: (a) Description of the property; (b) An estimate of its actual value; (c) A statement that the petitioner is actually residing in the premises; (d) The encumbrances thereon; (e) The names and addresses of all the creditors of the petitioner or head of the family and of all mortgages and other persons who have an interest in the property; (f) The names of all the beneficiaries of the family home. Section 3. Notice and publication. - The court shall notify the creditors, mortgagees and all other persons who have an interest in the estate, of the filing of the petition, causing copies thereof to be served upon them, and published once a week for three (3) consecutive weeks in a newspaper of general circulation. The petition shall, moreover, be caused to be posted in a conspicuous place in the parcel of land mentioned therein, and also in a conspicuous place of the municipal building of the municipality or city in which the land is situated, for at least fourteen (14) days prior to the day of the hearing. Section 4. Objection and date of hearing. - In the notice and publication required in the preceding section, the court shall require the interested parties to file their objection to the petition within a period of not less than thirty (30) days from receipt of notice or from the date of last publication, and shall fix the date and time of the hearing of the petition. Section 5. Order. - After hearing, if the court finds that the actual value of the proposed family home does not exceed twenty thousand pesos, or thirty thousand pesos in chartered cities, and that no third person is prejudiced thereby, or that creditors have given sufficient security for their credits, the petition shall be approved. Section 6. Registration of order. - A certified copy of the order of the court approving the establishment of the family home shall be furnished the register of deeds who shall record the same in the registry of property. Family Code Chapter 2. The Family Home Art. 152. The family home, constituted jointly by the husband and the wife or by an unmarried head of a family, is the dwelling house where they and their family reside, and the land on which it is situated. (223a)
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Art. 153. The family home is deemed constituted on a house and lot from the time it is occupied as a family residence. From the time of its constitution and so long as any of its beneficiaries actually resides therein, the family home continues to be such and is exempt from execution, forced sale or attachment except as hereinafter provided and to the extent of the value allowed by law. (223a) Art. 154. The beneficiaries of a family home are: (1) The husband and wife, or an unmarried person who is the head of a family; and (2) Their parents, ascendants, descendants, brothers and sisters, whether the relationship be legitimate or illegitimate, who are living in the family home and who depend upon the head of the family for legal support. (226a) Art. 155. The family home shall be exempt from execution, forced sale or attachment except: (1) For nonpayment of taxes; (2) For debts incurred prior to the constitution of the family home; (3) For debts secured by mortgages on the premises before or after such constitution; and (4) For debts due to laborers, mechanics, architects, builders, materialmen and others who have rendered service or furnished material for the construction of the building. (243a) Art. 156. The family home must be part of the properties of the absolute community or the conjugal partnership, or of the exclusive properties of either spouse with the latter's consent. It may also be constituted by an unmarried head of a family on his or her own property. Nevertheless, property that is the subject of a conditional sale on installments where ownership is reserved by the vendor only to guarantee payment of the purchase price may be constituted as a family home. (227a, 228a) Art. 157. The actual value of the family home shall not exceed, at the time of its constitution, the amount of the three hundred thousand pesos in urban areas, and two hundred thousand pesos in rural areas, or such amounts as may hereafter be fixed by law. In any event, if the value of the currency changes after the adoption of this Code, the value most favorable for the constitution of a family home shall be the basis of evaluation. For purposes of this Article, urban areas are deemed to include chartered cities and municipalities whose annual income at least equals that legally required for chartered cities. All others are deemed to be rural areas. (231a) Art. 158. The family home may be sold, alienated, donated, assigned or encumbered by the owner or owners thereof with the written consent of the person constituting the same, the latter's spouse, and a majority of the beneficiaries of legal age. In case of conflict, the court shall decide. (235a) Art. 159. The family home shall continue despite the death of one or both spouses or of the unmarried head of the family for a period of ten years or for as long as there is a minor beneficiary, and the heirs cannot partition the same unless the court finds compelling reasons therefor. This rule shall apply regardless of whoever owns the property or constituted the family home. (238a)

Art. 160. When a creditor whose claims is not among those mentioned in Article 155 obtains a judgment in his favor, and he has reasonable grounds to believe that the family home is actually worth more than the maximum amount fixed in Article 157, he may apply to the court which rendered the judgment for an order directing the sale of the property under execution. The court shall so order if it finds that the actual value of the family home exceeds the maximum amount allowed by law as of the time of its constitution. If the increased actual value exceeds the maximum allowed in Article 157 and results from subsequent voluntary improvements introduced by the person or persons constituting the family home, by the owner or owners of the property, or by any of the beneficiaries, the same rule and procedure shall apply. At the execution sale, no bid below the value allowed for a family home shall be considered. The proceeds shall be applied first to the amount mentioned in Article 157, and then to the liabilities under the judgment and the costs. The excess, if any, shall be delivered to the judgment debtor. (247a, 248a) Art. 161. For purposes of availing of the benefits of a family home as provided for in this Chapter, a person may constitute, or be the beneficiary of, only one family home. (n) Art. 162. The provisions in this Chapter shall also govern existing family residences insofar as said provisions are applicable. (n) MODEQUILLO V. BREVA Summary: Family home was being attached for enforcement of judgment awarding damages against Modequillo for a vehicular accident which caused the death of the victim. Court held that since the family home was not constituted in accordance to the Civil Code (which was applicable when the Judgment became final), then the family home is not exempted from execution. Family Code provisions not retroactive. Under the Family Code, a family home is deemed constituted on a house and lot from the time it is occupied as a family residence. There is no need to constitute the same judicially or extrajudicially as required in the Civil Code. If the family actually resides in the premises, it is, therefore, a family home as contemplated by law. Thus, the creditors should take the necessary precautions to protect their interest before extending credit to the spouse or head of the family who owns the home. Facts: -Jose Modequillo and Benito Malubay were involved in a vehicular accident in March 1976, resulting to the death of AUDIE SALINAS. -Case was filed against them, and judgment was rendered in favor of Salinas heirs. Judgment became final JANUARY 1988. -Writ of execution was issued by RTC Davao. -Sheriff levied on the ff: RESIDENTIAL Land in Poblacion Malalag, Davao del Sur (in Modequillo's name) AGRICULTURAL land (also in Davao del Sur in the name of Modequillo) -Modequillo filed a MOTION TO QUASH/TO SET ASIDE LEVY OF EXECUTION: The residential land is a family home built since 1969 So under FC, it's exempt from liabilities except those enumerated in A155 - and the judgment sought to be enforced is not one of them Agricultural land: land, though declared in Modequillo's name, is still public land, because the application for transfer from a cultural minority was not approved TC: Denied motion; MFR denied
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WON the Family Home can be attached? YES Full Arguments of Modequillo: Residential house and lot was duly constituted was occupied since 1969 in accordance with the FC, and not on AUG 1988 when FC became effective Residential house and lot is exempt from payment Vehicular mishap happened 1976 - after family home constituted by residence starting 1969 Judgment became final JANUARY 1988 The judgment is ot one of the instances enumerated under A155,FC RULING 1. The exemption provided in A155 is effective FROM THE TIME OF CONSTITUTION OF FAMILY HOME, LASTS AS LONG AS ANY OF ITS BENEFICIARIES ACTUALLY RESIDES THEREIN 2. HERE: Family Home not constituted judicially nor extrajudicially under NCC 3. Family home only constituted AUG 3 (not 4) 1988, 1 year after publication in Manila Chronicle 4. Interpretation of A162,FC: DOESN'T MEAN that a. A152 AND A153 have a retroactive effect such that all existing family residences are deemed to have been constituted as family homes at the time of their occupation prior to the effectivity of the FC and b. Family homes before (constituted by mere residence) are exempt from execution for payment of obligations before effectivity of FC -FC applies prospectively 5. SINCE both the accident and the finality of the judgment occurred BEFORE THE EFFECTIVITY OF FC, FC not yet applicable so not exempt. ABS ENT EES- R ULE 107 RULE 107: Absentees Section 1. Appointment of representative. - When a person disappears from his domicile, his whereabouts being unknown, and without having left an agent to administer his property, or the power conferred upon the agent has expired, any interested party, relative or friend may petition the Court of First Instance of the place where the absentee resided before his dis-appearance, for the appointment of a person to represent him provisionally in all that may be necessary. In the City of Manila, the petition shall be filed in the Juvenile and Domestic Relations Court. Section 2. Declaration of absence; who may petition. - After the lapse of two (2) years from his disapperance and without any news about the absentee or since the receipt of the last news, or of five (5) years in case the absentee has left a person in charge of the administration of his property, the declaration of his absence and appointment of a trustee or administrative may be applied for by any of the following: (a) The spouse present; (b) The heirs instituted in a will, who may present an authentic copy of the same. (c) The relatives who would succeed by the law of intestacy; and (d) Those who have over the property of the absentee some right subordinated to the condition of his death. Section 3. Contents of petition. - The petition for the appointment of a representative, or for the declaration of absence and the appointment of a trustee or an administrator, must show the following: (a) The jurisdictional facts;

(b) The names, ages, and residences of the heirs instituted in the will, copy of which shall be presented, and of the relatives who would succeed by the law of intestacy; (c) The names and residences of creditors and others who may have any adverse interest over the property of the absentee; (d) The probable value, location and character of the property belonging to the absentee. Section 4. Time of hearing; notice and publication thereof. - When a petition for the appointment of a representative, or for the declaration of absence and the appointment of a trustee or administrator, is filed, the court shall fix a date and place for the hearing thereof where all concerned may appear to contest the petition. Copies of the notice of the time and place fixed for the hearing shall be served upon the known heirs, legatees, devisees, creditors and other interested persons, at least ten (10) days before the day of the hearing, and shall be published once a week for three (3) consecutive weeks prior to the time designated for the hearing, in a newspaper of general circulation in the province or city where the absentee resides, as the court shall deem best. Section 5. Opposition. - Anyone appearing to contest the petition shall state in writing his grounds therefor, and serve a copy thereof on the petitioner and other interested parties on or before the date designated for the hearing. Section 6. Proof at hearing; order. - At the hearing, compliance with the provisions of section 4 of this rule must first be shown. Upon satisfactory proof of the allegations in the petition, the court shall issue an order granting the same and appointing the representative, trustee or administrator for the absentee. The judge shall take the necessary measures to safeguard the rights and interests of the absentee and shall specify the powers, obligations and remuneration of his representative, trustee or administrator, regulating them by the rules concerning guardians. In case of declaration of absence, the same shall not take effect until six (6) months after its publication in a newspaper of general circulation designated by the court and in the Official Gazette. Section 7. Who may be appointed. - In the appointment of a representative, the spouse present shall be preferred when there is no legal separation. If the absentee left no spouse, or if the spouse present is a minor or otherwise incompetent, any competent person may be appointed by the court. In case of declaration of absence, the trustee or administrator of the absentee's property shall be appointed in accordance with the preceding paragraph. Section 8. Termination of administration. - The trusteeship or administration of the property of the absentee shall cease upon order of the court in any of the following cases: (a) When the absentee appears personally or by means of an agent; (b) When the death of the absentee is proved and his testate or intestate heirs appear; (c) When a third person appears, showing by a proper document that he has acquired the absentee's property by purchase or other title. In these cases the trustee or administrator shall cease in the performance of his office, and the property shall be placed at the disposal of whose may have a right thereto.
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REYES V. ALEJANDRO Summary: Wife of absentee (after 9 years of marriage, w/o any property put up by the conjugal partnership) wanted to have her husband declared as absent. Court held that since absentee did not leave any property when he went missing, no point in declaring him absent (which is primarily done for the protection of his estate) Declaration of Absence May be Made in Administration Proceedings It is not necessary that a declaration of absence be made in a proceeding separate from and prior to a petition for administrator. Declaration of Absence is Unnecessary Where There are NO properties The need to have a person judicially declared an absentee is when he has properties which have to be taken care of or administered by a representative appointed by the Court; the spouse of the absentee is asking for separation of property, or his wife is asking the Court that the administration of all classes of property in the marriage be transferred to her. The petition to declare the husband an absentee and the petition to place the management of the conjugal properties in the hands of the wife may be combined and adjudicated in the same proceedings. Hence, there is no need for such declaration if there are no properties. Facts -ROBERTO REYES and ERLINDA REYNOSO REYES got married in May 20, 1960 -due to some misunderstanding over personal matters, ROBERTO left ERLINDA in April 1962. Since then, no news about whereabouts of ROBERTO was heard -October 1969, ERLINDA filed a petition for declaration of absence of her husband. ROBERTO left no will, nor any property in his name, nor any debts: o They have not acquired any properties during their marriage o They have no outstanding obligation in favor of anyone o Filed petition just to establish the absence of her husband TC: DISMISS: no properties left WON Petition for declaration of absence would prosper? NO -SC just affirmed TC's decision o For the purposes of the civil marriage law, it is not necessary to have the former spouse judicially declared an absentee. The declaration of absence made in accordance with the provisions of the Civil Code has for its sole purpose to enable the taking of the necessary precautions for the administration of the estate of the absentee. o For the celebration of civil marriage, however, the law only requires that the former spouse has been absent for seven consecutive years at the time of the second marriage, that the spouse present does not know his or her former spouse to be living, that such former spouse is generally reputed to be dead and the spouse present so believes at the time of the celebration of the marriage (section III, paragraph 2, General Orders, No. 68)." (On page 183). -The need to have a person judicially declared an absentee is when o he has properties which have to be taken cared of or administered by a representative appointed by the Court (Article 384, Civil Code); o the spouse of the absentee is asking for separation of property (Article 191, Civil Code) o or his wife is asking the Court that the administration of all classes of property in the marriage be transferred to her (Article 196, Civil Code).

-The petition to declare the husband an absentee and the petition to place the management of the conjugal properties in the hands of the wife may be combined and adjudicated in the same proceedings, Peyer vs. Martinez, 88 Phil. 72, 80).

DAYA MARIA TOL-NOGUERA V VILLAMOR Summary: An alleged acknowledged natural daughter wanted to petition that her putative father be declared absent and that she be appointed as administrator of his estate, citing as justification the allged fraudulent transfer of her putative father s land to the name of his father s relative. The petition was assailed on the ground that it is a collateral attack to a Torrens Title and that she is not an acknowledged natural child. Court held that no collateral attack on Torrens title, and that it is not necessary that she be an heir to be appointed as administrator. Facts: -DEC 1986: DAYA MARIA-TOL filed PETITION TO declare her the administrator of her father's (REMIGIO TOL's) properties (as well as to declare her father absent): y DAYA MARIA-TOL allegedly the acknowledged natural child of REMIGIO TOL y REMIGIO TOL has been missing since 1984 y A certain DIOSDADO TOL fraudulently secured a free patent over REMIGIO's property, obtained Torrens title in his name TC: DENY y Collateral attack on Torrens Title y Useless to appoint administrator in view of the claim of a 3P that he was the owner of the property -MR denied. Appealed DAYA MARIA No intention to collaterally attack Torrens Title (merely filed for administration of properties, would attack Title in a separate proceedings ) DIOSDADO DAYA Maria is claiming that she is an illegitimate child of absentee - so under A992, prohibited from inheriting ab intestato from the relatives of her father Even if not collateral attack on Torrens Title, cannot now file a case to assail the title as the 1yr period to file already lapsed.

3. 4.

-The purpose of the cited rules is the protection of the interests and property of the absentee, not of the administrator. Thus, the question of whether the administrator may inherit the property to be administered is not controlling. -What is material is whether she is one of those allowed by law to seek the declaration of absence of Remigio Tol and whether she is competent to be appointed as administratrix of his estate. ISSUE AS TO OWNERSHIP SHOULD BE RESOLVED IN ANOTHER PROCEEDING. DAYA MARIA could avail of other remedies if the 1-yr period already prescribed: y Reconveyance y Complaint for damages

CANCELL ATI ON O R CO RR ECTI ON O F EN TRIE S IN T HE CIVIL R EGIS TRY RULE 108: Cancellation Or Correction Of Entries In The Civil Registry Section 1. Who may file petition. - Any person interested in any act, event, order or decree concerning the civil status of persons which has been recorded in the civil register, may file a verified petition for the cancellation or correction of any entry relating thereto, with the Court of First Instance of the province where the corresponding civil registry is located. Section 2. Entries subject to cancellation or correction. - Upon good and valid grounds, the following entries in the civil register may be cancelled or corrected: (a) births: (b) marriage; (c) deaths; (d) legal separations; (e) judgments of annulments of marriage; (f) judgments declaring marriages void from the beginning; (g) legitimations; (h) adoptions; (i) acknowledgments of natural children; (j) naturalization; (k) election, loss or recovery of citizenship; (l) civil interdiction; (m) judicial determination of filiation; (n) voluntary emancipation of a minor; and (o) changes of name. Section 3. Parties. - When cancellation or correction of an entry in the civil register is sought, the civil registrar and all persons who have or claim any interest which would be affected thereby shall be made parties to the proceeding. Section 4. Notice and publication. - Upon the filing of the petition, the court shall, by an order, fix the time and place for the hearing of the same, and cause reasonable notice thereof to be given to the persons named in the petition. The court shall also cause the order to be published once a week for three (3) consecutive weeks in a newspaper of general circulation in the province. Section 5. Opposition. - The civil registrar and any person having or claiming any interest under the entry whose cancellation or correction is sought may, within fifteen (15) days from notice of the petition, or from the last date of publication of such notice, file his opposition thereto. Section 6. Expediting proceedings. - The court in which the proceeding is brought may make orders expediting the proceedings, and may also grant preliminary injunction for the preservation of the rights of the parties pending such proceedings. Section 7. Order. - After hearing, the court may either dismiss the petition or issue an order granting the cancellation or correction prayed for. In either case, a certified copy of the judgment shall be served upon the civil registrar concerned who shall annotated the same in his record. Note:

WON DAYA MARIA's petition to be appointed administrator should be granted? REMANDED Case 1. NO COLLATERAL ATTACK ON A TORREN'S TITLE -merely alleged the fraudulent issuance of title as justification for appointment as administrator (there's a need to appoint an administrator to prevent the property from being usurped) -there's no attack in this proceeding on the title's validity: DAYA even alleged that she would initiate a separate action to assail the validity of the Torren's title 2. DISQUALIFICATION AS AN HEIR TO SUPPOSED GRANDPARENTS DOES NOT INHIBIT HER FROM PETITIONING FOR A DECLARATION OF ABSENCE OR TO BE APPOINTED AS AN ADMINISTRATRIX OF THE ABSENTEE'S ESTATE -It is not necessary that a declaration of absence be made in a proceeding separate from and prior to a petition for administration.
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The provisions of Rule 108 may be deemed modified by RA 9048 allowing corrections in the Civil Register without need of judicial order in an appropriate Summary Procedure. Section 1. Authority to Correct Clerical or Typographical Error and Change of First Name or Nickname. - No entry in a civil register shall be changed or corrected without a judicial order; except for clerical or typographical errors and change of first name or nickname which can be corrected or changed by concerned city or municipal civil registrar or consul general in accordance with the provisions of this Act and its implementing rules and regulations. Appropriate Summary Proceedings vs. Appropriate Adversary Proceedings. -Clerical or typographical errors in entries of the civil register are now to be corrected and changed w/o need of a judicial order and by the city/municipal civil registrar or consul general. -so correction or changing of clerical or typographical errors removed from R108 If substantial changes and corrections in entries of the civil register: R108 applies What are substantial changes: Civil status Citizenship Nationality of party CHIAO BEN LIM V. ZOSA Summary: Petitioner filed petition to have citizenship changed in KIM JOSEPH s birth records from Chinese to Filipino , showing evidences which would prove so. TC dismissed it, saying it s a substantial correction not allowed unde R108. Court held that, using Republic v. Valencia, substantial errors may be corrected using R108 as long as there is a appropriate adversary proceeding . Role of the Court in Hearing the Petition The court's Role in hearing the petition to correct certain entries in the civil registry is to ascertain the truth about the facts recorded therein. Under our system of administering justice, truth is best ascertained or approximated by trial conducted under the adversary system. It is worth emphasizing that proceedings for the correction of erroneous entry should not be considered as establishing one's status in a legal manner conclusively beyond dispute or controversion, for as provided by Article 410 of the Civil Code, 'the books making up the civil register and all documents relating thereto shall be prima facie evidence of the facts therein contained.' Hence, the status as corrected would not have a superior quality for evidentiary purpose. Moreover, the correction should not imply a change of status but a mere rectification of error to make the matter corrected speak for the truth. There is, therefore, no increase or diminution of substantive right, as is the basis for holding that Rule 108 would be unconstitutional if held to allow correction of more than mere harmless and innocuous clerical errors. Cancellation or Correction of Substantial Errors Allowed Provided Proceeding is Adversary Even 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, since a right in law may be enforced and a wrong may be remedied as the appropriate remedy is used, the Court adhered 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. Facts:
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-ANTONIO CHIAO BEN LIM filed a petition to have KIM JOSEPH s citizenship changed from Chinese to Filipino in his birth records, offering the following as evidence: * an earlier birth certificate describing KIM JOSEPH as a FILIPINO * birth certificates of the siblings of KIM JOSEPH, all describing them a FILIPINOs *CA decision recognizing their grandfather as FILIPINO TC: Dismissed outright. Only clerical errors were allowed to be corrected in the summary proceeding under R108 and A412,NCC. Substantial issues like citizenship not covered. *A412, NCC: "No entry in the civil registry shall be changed or corrected without a judicial order." WON the change of citizenship from Chinese to Filipino may be allowed under R108 and A412,NCC? YES (qualified). Remand case so there would be adversary proceedings -court said that with REPUBLIC V. VALENCIA, substantial errors such as entries as to citizenship may be ordered changed provided there was appropriate adversary proceedings: 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. -Appropriate Adversary Proceedings: proceedings where all relevant facts have been fully and properly developed, where opposing counsel have been given opportunity to demolish the opposite party's case, and where the evidence has been thoroughly weighed and considered, the suit or proceeding is 'appropriate. -PARTIES: (1) the civil registrar (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 hearing to be published once a week for three (3) consecutive weeks in a newspaper of general circulation in the province. -WHO ARE ENTITLED TO OPPOSE: (1) the civil registrar, and (2) any persons having or claiming any interest under the entry whose cancellation or correction is sought. -allowing substantial changes such as that of citizenship in records of civil registry is NOT UNCONSTITUTIONAL: Article 412 does not limit in its express terms nor by mere implication, the correction authorized by it to that of mere clerical errors. Upon a consideration of this fact, it would be reasonable and justified to rule that Article 412 contemplates of correction of erroneous entry of whatever nature, procedural safeguards having only to be provided for, as was the manifest purpose of Rule 108. proceedings for the correction of erroneous entry should not be considered as establishing one's status in a legal manner conclusively beyond dispute or controversion, for as provided by Article 410 of the Civil Code, 'the books making up the civil register and all documents relating thereto . . . shall be prima facie evidence of the facts therein contained.' Hence, the status as corrected would not have a superior quality for evidentiary purpose. Moreover, the correction should not imply a change of status but a mere rectification of error to make the matter corrected speak for the truth. There is, therefore, no increase or diminution of substantive right, as is the basis for holding that Rule 108 would be unconstitutional if held to allow correction of more than mere harmless and innocuous clerical errors. -The Valencia ruling has in effect adopted the above-stated views insofar as it now allows changes in the birth entry regarding a person's citizenship as long as adversary proceedings are held. Where such a change is ordered, the Court will not be establishing a substantive right but only correcting or rectifying an erroneous entry in the civil registry as authorized by law. In short, Rule

108 of the Rules of Court provides only the procedure or mechanism for the proper enforcement of the substantive law embodied in Article 412 of the Civil Code and so does not violate the Constitution. DE JESUS V. ESTATE OF DECEDENT JUAN GAMBOA DIZON Summary: Though born during the marriage of their mother and her husband (therefore, legitimate children of the latter), the petitioners alleged that they are the acknowledged illegitimate children of decedent, showing a notarized document, so that they could take part in decedent s estate. Court held that since they were born during the marriage of their mother and the father who is indicated in their birth certificates, they cannot claim illegitimacy without first impugning their legitimacy as the legitimate children of their father. Impugning Legitimacy of Child Collaterally Not Allowed The child contrary to his birth certificate as the legitimate child of the named parents cannot claim in an action for partition that he is the illegitimate child and acknowledged as such in a notarized document of a different father and therefore entitled to inherit from the estate of the latter. There must be a separate action to impugn the legitimacy that is, a direct action for the purpose. The presumption of legitimacy fixes a civil status for the child born in wedlock, and only the father, or in exceptional circumstances the latter's heirs can contest in an appropriate ACTION TO IMPUGN THE LEGITIMACY OF A CHILD BORN TO HIS WIFE. Thus, it is only when the legitimacy of a child has been successfully impugned that the paternity of the husband can be rejected. Facts: -DANILO DE JESUS and CAROLINA AVES DE JESUS were married, and during their marriage, the 2 petitioners JACQUELINE and JINKIE CHRISTIE were born. -However, JUAN GAMBOA DIZON acknowledged JACQUELINE and JINKIE CHRISTIE as his own illegitimate children with CAROLINA AVES DE JESUS in a notarized document -JUAN DIZON died intestate, with considerable assets consisting of shares of stocks and real properties -petitioners filed COMPLAINT FOR PARTITION w/ Inventory and Accounting -surviving spouse and legitimate children + corporations where DIZON was a SH, filed MTD: even if PARTITION complaint, it would call for change of status of petitioners from legitimate children to illegitimate children. -MTD initially denied but later on granted by TC: the declaration of heirship could only be made in a special proceeding, as they were seeking the establishment of a status or a right -relying on DIVINAGRACIA V. BELLOSILLO, petitioners filed petition alleging that the recognition as being illegitimate children of decedent, embodied in an authentic writing, is in itself sufficient to establish their status as such, does not require a separate action for judicial approval. WON the complaint for partition of the petitioners should be granted? NO Granting it would in effect impugn their legitimacy, which should be done in a separate proceeding. 1. Filiation of illegitimate children may be made by an admission of [il]legitimate filiation in a public document or a private handwritten instrument and signed by the parent concerned. The due recognition of an illegitimate child in any authentic writing is, in itself, a consummated act of acknowledgment of the child, and no further court action is required (voluntary recognition) 2. Attempt to establish their illegitimate filiation with decedent is in effect impugning their legitimate status as children born during marriage of parents: a. Children born in wedlock are presumed to be legitimate. b. Legitimacy is conclusive presumption, provided no proof of physical impossibility of access between spouses during the first 120 days of the 300 days w/c immediately precedes the birth of child
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c. Action to impugn legitimacy of a child can only be contested by the FATHER, or HIS HEIRS under exceptional cases. d. Only after legitimacy successfully impugned that paternity of husband can be rejected 3. DIVINAGRACIA not applicable. Not a case of legitimate children asserting to be someone else s illegitimate children. 4. Written acknowledgment actually irrelevant in the issue of WON petitioners are indeed acknowledged illegitimate offsprings w/o impugning legitimacy. Legitimacy cannot be collaterally attacked. CABATBAT-LIM V. IAC Summary: Respondent surviving spouse and siblings of the decedent filed an action for partition of decedent s estate, alleging that the person in possession of the bijon factory was a merely an ampon of the decedent, hence not a legal heir. TC and CA (and SC) held that the petitioner is not a legal heir. Court held that she is indeed not an heir, with the evidence presented putting a cloud on her evidence and that the action she initiated is inappropriate, it being an action to impugn legitimacy. Petition under Rule 108 to Correct and/or to Cancel wrong Filiation Allowed Petitioner's recourse to Article 263 of the New Civil Code [now Art.170 of the Family Code] is not well-taken. This legal provision refers to an action to impugn legitimacy. It is inapplicable to this case because this is not an action to impugn the legitimacy of a child, but an action of the private respondents to claim their inheritance as legal heirs of their childless deceased aunt. They do not claim that petitioner Violeta Cabatbat-Lim is an illegitimate child of the deceased, but that she is not the decedent's child at all. Being neither legally adopted child, nor an acknowledged natural child, nor a child by legal fiction of Esperanza Cabatbat, Violeta is not a legal heir of the deceased. Facts: -Dra. ESPERANZA CABATBAT died, leaving part of her estate the CALASIAO BIJON FACTORY which is in possession of VIOLETA CABTBAT-LIM, allegedly her legitimate daughter. -her husband (PROCESO), siblings and their children filed a complaint for partition of her estate (died intestate w/o isuse) -they alleged that VIOLETA (who was in possession of the factory) was not the offspring of ESPERANZA (merely an AMPON, not legally adopted), thus, not a legal heir. This was denied by VIOLETA, arguing that she is an heir. EVIDENCE OF RESPONDENTS EVIDENCE OF VIOLETA 1) the absence of any record that Esperanza 1) Violeta Cabatbat's birth record which was Cabatbat was admitted in the hospital where filed on June 15, 1948 showing that she was Violeta was born and that she gave birth to born on May 26, 1948 at the Pangasinan Violeta on the day the latter was born; Provincial Hospital and that she is a legitimate 2) the absence of the birth certificate of Violeta child of the spouses Proceso and Esperanza Cabatbat in the files of certificates of live births Cabatbat; of the Pangasinan Provincial Hospital for the 2) testimony of Proceso Cabatbat that Violeta is years 1947 and 1948, when Violeta was his child with the deceased Esperanza Frianeza; supposedly born; 3) testimony of Benita Lastimosa denying that 3) certification dated March 9, 1977, of the Civil she delivered a child in the Pangasinan Registry coordinator Eugenio Venal of the Provincial Hospital and that Violeta Cabatbat Office of the Civil Registrar General, that his Lim is that child; office has no birth record of Violeta Cabatbat 4) the marriage contract of Violeta and Lim Biak alleged to have been born on May 26, 1948 or Chiao where Esperanza appeared as the 1949 in Calasiao, Pangasinan; mother of the bride; 4) certification dated June 16, 1977 of Romeo 5) Deed of Sale dated May 14, 1960, wherein

Gabriana, Principal II, that when Violeta studied the vendee Violeta Cabatbat, then a minor, was in the Calasiao Pilot Central School, Proceso represented and assisted by her "mother," Dra. Cabatbat and Esperanza Cabatbat were listed Esperanza Cabatbat; and as her guardians only, not as her parents; 6) another Deed of Absolute Sale dated April 5) testimony of Amparo Reside that she was in 21, 1961, wherein Violeta Cabatbat was the Pangasinan Provincial Hospital on May 21, assisted and represented by her "father," 1948 to watch a cousin who delivered a child Proceso Cabatbat. there and that she became acquainted with a patient named Benita Lastimosa who gave birth on May 26, 1948 to a baby girl who grew up to be known as Violeta Cabatbat. TC: not a child by nature of spouses ESPERANZA and PROCESO CA: Affirmed TC Decision WON Court erred in ignoring the Ancient Document Rule (R132.22)? NO -Exhibit 5 of VIOLETA (supposed birth registry record: showing that she was born on May 26, 1948 at the Pangasinan Provincial Hospital, with Proceso and Esperanza as herparents) is doubtful because: >REGISTRY BOOK OF ADMISSIONS of the hospital does not show that ESPERANZA was ever admitted to the Pangasinan Provincial Hospital during the time VIOLETA was born >The RECORDS OF THE HOSPITAL does show that a certain BENITA LASTIMOSA of Ilocos Sur gave birth on May 26, 1948 to an illegitimate child named BABY GIRL LASTIMOSA >Record of Birth Certificates of Pangasinan Provincial Hospital for May 26, 1948 is that of Baby Girl Lastimosa, not Violeta Cabatbat WON Court erred in not considering A263,NCC? No. -A263 is an action to impugn legitimacy -it is inapplicable to this case because it is an action of the heirs to claim their inheritance as legal heirs of the childless deceased aunt. -no claim that Violeta was an illegitimate child of the deceased, but that she is NOT A CHILD AT ALL: not legally adopted, not an acknowledged natural child, not a child by legal fiction = not an heir APP EAL S IN SPECI AL PR OCEEDIN GS RULE 109: Appeals in Special Proceedings 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. Section 2. Advance distribution in special proceedings. - Notwithstanding 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 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 this rules. *period of appeals: 30 days. Record on appeal required When record on appeal required: *Appeal from an award of Attorney's fees filed in the probate case *Appeals in liquidation proceedings against insolvent corporation REPUBLIC VS. COURT OF APPEALS 458 SCRA 200 (2005) Facts: -Apolinaria Malinao Jomoc wanted a declaration of the presumptive death of her husband Clemente Jomoc, who has been absent for 9 years, to be able to marry again. -RTC: granted it, declared her husband presumptively dead basis: Article 41,par2, FC: four consecutive years only required; must institute a summary proceeding for the declaration of presumptive death of absentee spouse -Republic, through OSG, sought to appeal by filing ONLY A NOTICE OF APPEAL -TC disapporved the Notice of appeal: based on Rule 41, Section 2(a), there should also be a RECORD OF APPEAL filed and served as the present case was a special proceeding -OSG filed MR: denied -OSG filed Petition for certiorari before CA: declaration of presumptive death is NOT A SPECIAL PROCEEDING or a case of multiple or separate appeals which would require a record on appeal -CA: denied Petition for certiorari: (1) OSG failed to attach CTC of assailed order (TC's denial of MR) (2) OSG failed to attach a copy of the order declaring Clemente Jomoc presumptively dead ---based on (1) and (2) alone + Rule 46.3: the case should have been dismissed! (3) Declaration of presumptive death is a SPECIAL PROCEEDING as it merely seeks for a declaration of the trial court of the presumptive death of the absentee spouse. It does not seek enforcement or protection of a right or the prevention or redress of a wrong. Neither does it involve a demand of a right or a COA that can be enforced ISSUE: WON THE DECLARATION OF PRESUMPTIVE DEATH OF AN ABSENTEE SPOUSE IS A SPECIAL PROCEEDIGN OR A SUMMARY PROCEEDING (IF NOT A SPECIAL PROCEEDING, DOES NOT NEED A RECORD ON APPEAL) HELD: it is NOT A SPECIAL RPOCEEDING! RULE 72: SUBJECT MATTER AND APPLICABILITY OF GENERAL RULES Section 1. Subject matter of special proceedings. Rules of special proceedings are provided for in the following: a. Settlement of estate of deceased persons; b. Escheat; c. Guardianship and custody of children;

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d. e. f. g. h. i. j. k. l. m. n.

Trustees; Adoption; Rescission and revocation of adoption; Hospitalization of insane persons; Habeas corpus; Change of name; Voluntary dissolution of corporations; Judicial approval of voluntary recognition of minor natural children; Constitution of family home; Declaration of absence and death; Cancellation or correction of entries in the civil registry.

Since Title XI of the Family Code, entitled SUMMARY JUDICIAL PROCEEDING IN THE FAMILY LAW, contains the following provision, inter alia: xxx 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) x x x, 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 court s order sufficed. 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, (Emphasis and underscoring supplied), seals the case in petitioner s favor. *IN SHORT, SINCE THE TRIAL COURT USED THE FAMILY CODE, AND THE FAMILY CODE DESIGNATES SUCH CASES AS A SUMMARY PROCEEDING AND NOT A SPECIAL PROCEEDING, IT IS NOT A SPECIAL PROCEEDING Finally, on the alleged procedural flaw in petitioner s petition before the appellate court. Petitioner s failure to attach to his petition before the appellate court a copy of the trial court s 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. As for petitioner s failure to submit copy of the trial court s order granting the petition for declaration of presumptive death, contrary to the appellate court s observation that petitioner was also assailing it, petitioner s 8-page petition filed in said court does not so reflect, it merely having assailed the order disapproving the Notice of Appeal.

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) CIVIL CODE 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. x x x (Emphasis and underscoring supplied) FAMILY CODE 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 pf 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. (Emphasis and underscoring supplied) RULES OF COURT ON WHEN RECORD ON APPEAL REQUIRED Rule 41, Section 2 of the Revised Rules of Court, on Modes of Appeal, invoked by the trial court in disapproving petitioner s Notice of Appeal, provides: Sec. 2. Modes of appeal. 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 court s 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.

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