Santero V Cfi to carino vs carino.doc

Santero V Cfi Cavite 153 Scra 728

SANTERO ET AL VS. COURT OF FIRST INSTANCE OF CAVITEG.R. No. L-61700, September 14, 1987153 SCRA 728, Paras

FACTS:

Pablo Santero, the only legitimate son of Pascual and Simona Santero, had three children with Felixberta Pacursa namely, Princesita, Federico and Willie (herein petitioners). He also had four children with Anselma Diaz namely, Victor, Rodrigo, Anselmina, and Miguel (herein private respondents). These children are all natural children since neither of their mothers was married to their father. In 1973, Pablo Santero died.

During the pendency of the administration proceedings with the CFI-Cavite involving the estate of the late Pablo Santero, petitioners filed a petition for certiorari with the Supreme Court questioning the decision of CFI-Cavite granting allowance (allegedly without hearing) in the amount of Php 2,000.00, to private respondents which includes tuition fees, clothing materials and subsistence out of any available funds in the hands of the administrator. The petitioners opposed said decision on the ground that private respondents were no longer studying, that they have attained the age of majority, that all of them except for Miguel are gainfully employed, and the administrator did not have sufficient funds to cover the said expenses.

Before the Supreme Court could act on saod petition, the private respondents filed another motion for allowance with the CFI-Cavite which included Juanita, Estelita and Pedrito, all surnamed Santero, as children of the late

Pablo Santero with Anselma Diaz, praying that a sum of Php 6,000.00 be given to each of the seven children as their allowance from the estate of their father. This was granted by the CFI-Cavite.

Later on, the CFI-Cavite issued an amended order directing Anselma Diaz, mother of private respondents, to submit a clarification or explanation as to the additional three children included in the said motion. She said in her clarification that in her previous motions, only the last four minor children were included for support and the three children were then of age should have been included since all her children have the right to receive allowance as advance payment of their shares in the inheritance of Pablo Santero. The CFI-Cavite issued an order directing the administrator to get back the allowance of the three additional children based on the opposition of the petitioners.

ISSUE:

1. Are the private respondents entitled to allowance?

2. Was it proper for the court a quo to grant the motion for allowance without hearing?

RULING:

Yes, they are entitled. Being of age, gainfully employed, or married should not be regarded as the determining factor to their right to allowance under Articles 290 and 188 of the New Civil Code.

Records show that a hearing was made. Moreover, what the said court did was just to follow the precedent of the court which granted previous allowance and that the petitioners and private respondents only received Php 1,500.00 each depending on the availability of funds.

Agapay vs Palang

GR No. 116668, July 28, 1997

FACTS:

Miguel Palang contracted marriage with Carlina in Pangasinan on 1949. He left to work in Hawaii a few months after the wedding. Their only child Herminia was born in May 1950. The trial court found evident that as early as 1957, Miguel attempted to Divorce Carlina in Hawaii. When he returned for good in 1972, he refused to lived with Carlina and stayed alone in a house in Pozzorubio Pangasinan.

The 63 year old Miguel contracted a subsequent marriage with 19 year old Erlinda Agapay, herein petitioner. 2 months earlier, they jointly purchased a parcel of agricultural land located at Binalonan Pangasinan. A house and lot in the same place was likewise purchased. On the other hand, Miguel and Carlina executed a Deed of Donation as a form of compromise agreement and agreed to donate their conjugal property consisting of 6 parcels of land to their child Herminia.

Miguel and Erlinda’s cohabitation produced a son named Kristopher. In 1979, they were convicted of concubinage upon Carlina’s complaint. 2 years later, Miguel died. Carlina and her daughter instituted this case for recovery of ownership and possession with damages against petitioner. They sought to get back the land and the house and lot located at Binalonan allegedly purchase by Miguel during his cohabitation with petitioner. The lower court dismissed the complaint but CA reversed the decision.

ISSUE:

Whether the agricultural land and the house and lot should be awarded in favor of Erlinda Agapay.

HELD:

The sale of the riceland on May 17, 1973, was made in favor of Miguel and Erlinda. However, their marriage is void because of the subsisting marriage with Carlina. Only the properties acquired by both parties through their actual joint contribution shall be owned by them in proportion to their respective contributions. It is required that there be an actual contribution. If actual

contribution is not proved, there will be no co-ownership and no presumption of equal shares.

Erlinda established in her testimony that she was engaged in the business of buy and sell and had a sari-sari store. However, she failed to persuade the court that she actually contributed money to but the subjected riceland. When the land was acquired, she was only around 20 years old compared to Miguel who was already 64 years old and a pensioner of the US Government. Considering his youthfulness, its unrealistic how she could have contributed the P3,750 as her share. Thus, the court finds no basis to justify the co-ownership with Miguel over the same. Hence, the Riceland should, as correctly held by CA, revert to the conjugal partnership property of the deceased and Carlina.

It is immaterial that Miguel and Carlina previously agreed to donate their conjugal property in favor of Herminia. Separation of property between spouses during the marriage shall not take place except by judicial order or without judicial conferment when there is an express stipulation in the marriage settlements. The judgment resulted from the compromise was not specifically for separation of property and should not be so inferred.

With respect to the house and lot, Atty Sagun, notary public who prepared the deed of conveyance for the property revealed the falshood of Erlinda’s claim that she bought such property for P20,000 when she was 22 years old. The lawyer testified that Miguel provided the money for the purchase price and directed Erlinda’s name alone be placed as the vendee.

The transaction made by Miguel to Erlinda was properly a donation and which was clearly void and inexistent by express provision of the law because it was made between persons guilty of adultery or concubinage at the time of the donation. Moreover, Article 87 of the Family Code, expressly provides that the prohibition against donation between spouses now applies to donations between persons living together as husband and wife without a valid marriage, for otherwise, the condition of those who incurred guilt would turn out to be better than those in legal union.

SECOND DIVISION[G.R. No. 116668. July 28, 1997]

ERLINDA A. AGAPAY, petitioner, vs. CARLINA (CORNELIA) V. PALANG and HERMINIA P. DELA CRUZ, respondents.D E C I S I O N

ROMERO, J.:

Before us is a petition for review of the decision of the Court of Appeals in CA-G.R. CV No. 24199 entitled “Erlinda Agapay v. Carlina (Cornelia) Palang and Herminia P. Dela Cruz” dated June 22, 1994 involving the ownership of two parcels of land acquired during the cohabitation of petitioner and private respondent’s legitimate spouse.

Miguel Palang contracted his first marriage on July 16, 1949 when he took private respondent Carlina (or Cornelia) Vallesterol as a wife at the Pozorrubio Roman Catholic Church in Pangasinan. A few months after the wedding, in October 1949, he left to work in Hawaii. Miguel and Carlina’s only child, Herminia Palang, was born on May 12, 1950.

Miguel returned in 1954 for a year. His next visit to the Philippines was in 1964 and during the entire duration of his year-long sojourn he stayed in Zambales with his brother, not in Pangasinan with his wife and child. The trial court found evidence that as early as 1957, Miguel had attempted to divorce Carlina in Hawaii.[1] When he returned for good in 1972, he refused to live with private respondents, but stayed alone in a house in Pozorrubio, Pangasinan.

On July 15, 1973, the then sixty-three-year-old Miguel contracted his second marriage with nineteen-year-old Erlinda Agapay, herein petitioner.[2] Two months earlier, on May 17, 1973, Miguel and Erlinda, as evidenced by the Deed of Sale, jointly purchased a parcel of agricultural land located at San Felipe, Binalonan, Pangasinan with an area of 10,080 square meters. Consequently, Transfer Certificate of Title No. 101736 covering said rice land was issued in their names.

A house and lot in Binalonan, Pangasinan was likewise purchased on September 23, 1975, allegedly by Erlinda as the sole vendee. TCT No. 143120 covering said property was later issued in her name.

On October 30, 1975, Miguel and Cornelia Palang executed a Deed of Donation as a form of compromise agreement to settle and end a case filed by the latter.[3] The parties therein agreed to donate their conjugal property consisting of six parcels of land to their only child, Herminia Palang.[4]

Miguel and Erlinda’s cohabitation produced a son, Kristopher A. Palang, born on December 6, 1977. In 1979, Miguel and Erlinda were convicted of Concubinage upon Carlina’s complaint.[5]Two years later, on February 15, 1981, Miguel died.

On July 11, 1981, Carlina Palang and her daughter Herminia Palang de la Cruz, herein private respondents, instituted the case at bar, an action for recovery of ownership and possession with damages against petitioner before the Regional Trial Court in Urdaneta, Pangasinan (Civil Case No. U-4265). Private respondents sought to get back the riceland and the house and lot both located at Binalonan, Pangasinan allegedly purchased by Miguel during his cohabitation with petitioner.

Petitioner, as defendant below, contended that while the riceland covered by TCT No. 101736 is registered in their names (Miguel and Erlinda), she had already given her half of the property to their son Kristopher Palang. She added that the house and lot covered by TCT No. 143120 is her sole property, having bought the same with her own money. Erlinda added that Carlina is precluded from claiming aforesaid properties since the latter had already donated their conjugal estate to Herminia.

After trial on the merits, the lower court rendered its decision on June 30, 1989 dismissing the complaint after declaring that there was little evidence to prove that the subject properties pertained to the conjugal property of Carlina and Miguel Palang. The lower court went on to provide for the intestate shares of the parties, particularly of Kristopher Palang, Miguel’s illegitimate son. The dispositive portion of the decision reads:

“WHEREFORE, premises considered, judgment is hereby rendered-

1) Dismissing the complaint, with costs against plaintiffs;

2) Confirming the ownership of defendant Erlinda Agapay of the residential lot located at Poblacion, Binalonan, Pangasinan, as evidenced by TCT No. 143120, Lot 290-B including the old house standing therein;

3) Confirming the ownership of one-half (1/2) portion of that piece of agricultural land situated at Balisa, San Felipe, Binalonan, Pangasinan, consisting of 10,080 square meters and as evidenced by TCT No. 101736, Lot 1123-A to Erlinda Agapay;

4) Adjudicating to Kristopher Palang as his inheritance from his deceased father, Miguel Palang, the one-half (1/2) of the agricultural land situated at Balisa, San Felipe, Binalonan, Pangasinan, under TCT No. 101736 in the name of Miguel Palang, provided that the former (Kristopher) executes, within 15 days after this decision becomes final and executory, a quit-claim forever renouncing any claims to annul/reduce the donation to Herminia Palang de la Cruz of all conjugal properties of her parents, Miguel Palang and Carlina Vallesterol Palang, dated October 30, 1975, otherwise, the estate of deceased Miguel Palang will have to be settled in another separate action;

5) No pronouncement as to damages and attorney’s fees.

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SO ORDERED.”[6]

On appeal, respondent court reversed the trial court’s decision. The Court of Appeals rendered its decision on July 22, 1994 with the following dispositive portion:

“WHEREFORE, PREMISES CONSIDERED, the appealed decision is hereby REVERSED and another one entered:

1. Declaring plaintiffs-appellants the owners of the properties in question;

2. Ordering defendant-appellee to vacate and deliver the properties in question to herein plaintiffs-appellants;

3. Ordering the Register of Deeds of Pangasinan to cancel Transfer Certificate of Title Nos. 143120 and 101736 and to issue in lieu thereof another certificate of title in the name of plaintiffs-appellants.

No pronouncement as to costs.”[7]

Hence, this petition.

Petitioner claims that the Court of Appeals erred in not sustaining the validity of two deeds of absolute sale covering the riceland and the house and lot, the first in favor of Miguel Palang and Erlinda Agapay and the second, in favor of Erlinda Agapay alone. Second, petitioner contends that respondent appellate court erred in not declaring Kristopher A. Palang as Miguel Palang’s illegitimate son and thus entitled to inherit from Miguel’s estate. Third, respondent court erred, according to petitioner, “in not finding that there is sufficient pleading and evidence that Kristoffer A. Palang or Christopher A. Palang should be considered as party-defendant in Civil Case No. U-4625 before the trial court and in CA-G.R. No. 24199.[8]

After studying the merits of the instant case, as well as the pertinent provisions of law and jurisprudence, the Court denies the petition and affirms the questioned decision of the Court of Appeals.

The first and principal issue is the ownership of the two pieces of property subject of this action. Petitioner assails the validity of the deeds of conveyance over the same parcels of land. There is no dispute that the transfers of ownership from the original owners of the riceland and the house and lot, Corazon Ilomin and the spouses Cespedes, respectively, were valid.

The sale of the riceland on May 17, 1973, was made in favor of Miguel and Erlinda. The provision of law applicable here is Article 148 of the Family Code providing for cases of cohabitation when a man and a woman who are not capacitated to marry each other live exclusively with each other as husband and wife without the benefit of marriage or under a void marriage. While Miguel and Erlinda contracted marriage on July 15, 1973, said union was patently void because the earlier marriage of Miguel

and Carlina was still susbsisting and unaffected by the latter’s de factoseparation.

Under Article 148, only the properties acquired by both of the parties through their actual joint contribution of money, property or industry shall be owned by them in common in proportion to their respective contributions. It must be stressed that actual contribution is required by this provision, in contrast to Article 147 which states that efforts in the care and maintenance of the family and household, are regarded as contributions to the acquisition of common property by one who has no salary or income or work or industry. If the actual contribution of the party is not proved, there will be no co-ownership and no presumption of equal shares.[9]

In the case at bar, Erlinda tried to establish by her testimony that she is engaged in the business of buy and sell and had a sari-sari store[10] but failed to persuade us that she actually contributed money to buy the subject riceland. Worth noting is the fact that on the date of conveyance, May 17, 1973, petitioner was only around twenty years of age and Miguel Palang was already sixty-four and a pensioner of the U.S. Government. Considering her youthfulness, it is unrealistic to conclude that in 1973 she contributed P3,750.00 as her share in the purchase price of subject property,[11] there being no proof of the same.

Petitioner now claims that the riceland was bought two months before Miguel and Erlinda actually cohabited. In the nature of an afterthought, said added assertion was intended to exclude their case from the operation of Article 148 of the Family Code. Proof of the precise date when they commenced their adulterous cohabitation not having been adduced, we cannot state definitively that the riceland was purchased even before they started living together. In any case, even assuming that the subject property was bought before cohabitation, the rules of co-ownership would still apply and proof of actual contribution would still be essential.

Since petitioner failed to prove that she contributed money to the purchase price of the riceland in Binalonan, Pangasinan, we find no basis to justify her co-ownership with Miguel over the same. Consequently, the riceland should, as correctly held by the Court of Appeals, revert to the conjugal partnership property of the deceased Miguel and private respondent Carlina Palang.

Furthermore, it is immaterial that Miguel and Carlina previously agreed to donate their conjugal property in favor of their daughter Herminia in 1975. The trial court erred in holding that the decision adopting their compromise agreement “in effect partakes the nature of judicial confirmation of the separation of property between spouses and the termination of the conjugal partnership.”[12] Separation of property between spouses during the marriage shall not take place except by judicial order or without judicial conferment when there is an express stipulation in the marriage settlements.[13] The judgment which resulted from the parties’ compromise was not specifically and expressly for separation of property and should not be so inferred.









With respect to the house and lot, Erlinda allegedly bought the same for P20,000.00 on September 23, 1975 when she was only 22 years old. The testimony of the notary public who prepared the deed of conveyance for the property reveals the falsehood of this claim. Atty. Constantino Sagun testified that Miguel Palang provided the money for the purchase price and directed that Erlinda’s name alone be placed as the vendee.[14]

The transaction was properly a donation made by Miguel to Erlinda, but one which was clearly void and inexistent by express provision of law because it was made between persons guilty of adultery or concubinage at the time of the donation, under Article 739 of the Civil Code. Moreover, Article 87 of the Family Code expressly provides that the prohibition against donations between spouses now applies to donations between persons living together as husband and wife without a valid marriage,[15] for otherwise, the condition of those who incurred guilt would turn out to be better than those in legal union.[16]

The second issue concerning Kristopher Palang’s status and claim as an illegitimate son and heir to Miguel’s estate is here resolved in favor of respondent court’s correct assessment that the trial court erred in making pronouncements regarding Kristopher’s heirship and filiation “inasmuch as questions as to who are the heirs of the decedent, proof of filiation of illegitimate children and the determination of the estate of the latter and claims thereto should be ventilated in the proper probate court or in a special proceeding instituted for the purpose and cannot be adjudicated in the instant ordinary civil action which is for recovery of ownership and possession.”[17]

As regards the third issue, petitioner contends that Kristopher Palang should be considered as party-defendant in the case at bar following the trial court’s decision which expressly found that Kristopher had not been impleaded as party defendant but theorized that he had submitted to the court’s jurisdiction through his mother/guardian ad litem.[18] The trial court erred gravely. Kristopher, not having been impleaded, was, therefore, not a party to the case at bar. His mother, Erlinda, cannot be called his guardian ad litem for he was not involved in the case at bar. Petitioner adds that there is no need for Kristopher to file another action to prove that he is the illegitimate son of Miguel, in order to avoid multiplicity of suits.[19] Petitioner’s grave error has been discussed in the preceeding paragraph where the need for probate proceedings to resolve the settlement of Miguel’s estate and Kristopher’s successional rights has been pointed out.

WHEREFORE, the instant petition is hereby DENIED. The questioned decision of the Court of Appeals is AFFIRMED. Costs against petitioner.

SO ORDERED.

Regalado, (Chairman), Puno, and Mendoza, JJ., concur.

Torres, Jr., J., on leave.[1] From the Decision of the trial court in Civil Case No. U-4265, page 2, citing Exhibit E of the Records; Rollo, p. 29.

[2] At the Methodist Church of Binalonan.

[3] Civil Case No. U-2501, CFI Branch 9, Urdaneta, Pangasinan.

[4] The judicially-confirmed settlement reads in part:

“COME NOW the parties in the above-entitled case, assisted by their respective counsel, and to this Honorable Court respectfully submit this COMPROMISE AGREEMENT.

1. That defendant hereby admits all the material allegations in the complaint;

2. That the parties have mutually agreed that, for their mutual interest and that of their only child, Herminia B. Palang, all their present conjugal properties, real and personal, be conveyed or transfered (sic) to their said daughter, except some personal properties such as the car mentioned in the complaint which shall remain in the possession of the defendant; x x x”

[5] Criminal Case No. U-0509. Miguel Palang, then seventy years of age, was sentenced to a minimum indeterminate penalty of three months and eleven days of Arresto Mayor and a maximum of one year, eight months and twenty-one days of Prision Correccional. Erlinda Agapay was sentenced to four years and two months of destierro.

[6] Penned by Judge Manuel D. Villanueva, Rollo, pp. 28-36.

[7] Per Justice Eugenio S. Labitoria, with the concurrence of Justices Emeterio C. Cui and Fermin A. Martin, Jr. in CA-G.R. CV No. 24199, “Carlina (Cornelia) V. Palang and Herminia P. Dela Cruz v. Erlinda A. Agapay,” Rollo, pp. 78-90.

[8] Petition, p. 8; Rollo, p. 15.

[9] TOLENTINO, I CIVIL CODE OF THE PHILIPPINES COMMENTARIES AND JURISPRUDENCE 500 (1990 editition).

[10] TSN, February 3, 1988, p. 78; per Decision of the Court of Appeals, Rollo, p. 86.

[11] The entire property was bought for P7,500.00. Exhibit C; Decision of the trial court, Rollo, p. 29.

[12] Decision of the trial court, p. 5; Rollo, p. 32.

[13] Article 134 of the Family Code.

[14] TSN, October 1, 1986, pp.13-16.

[15] The law states: “Every donation or grant of gratuitous advantage direct or indirect, between the spouses during the marriage shall be void, except moderate gifts which the spouses may give each other on the occasion of any family rejoicing. The prohibition shall also apply to persons living together as husband and wife without a valid marriage.”

[16] TOLENTINO, supra. page 376 citing Buenaventura v. Bautista, 50 O.G. 3679 and Matabuena v. Cervantes, 38 SCRA 284.

[17] Decision of the Court of Appeals, Rollo, p. 89.

[18] Decision, p. 8; Rollo, p. 35.

[19] Petition, p. 11; Rollo, p. 18.

EN BANC

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G.R. No. L-26462 June 9, 1969

TERESITA C. YAPTINCHAY, petitioner, vs.HON. GUILLERMO E. TORRES, Judge of the Court of First Instance of Rizal, Pasig Branch; VIRGINIA Y. YAPTINCHAY, in her own behalf and in her capacity as Special Administratrix in the Intestate Estate of the deceased Isidro Y. Yaptinchay and JESUS MONZON, MARY YAPTINCHAY ELIGIR, ERNESTO YAPTINCHAY, ANTONIO YAPTINCHAY, ASUNCION YAPTINCHAY, JOSEFINA Y. YAPTINCHAY, ROSA Y. MONZON, ISABEL Y. VALERIANO, REMEDIOS Y. YAPTINCHAY, FELICIDAD Y. ARGUELLES, MARY DOE and JOHN DOE, respondents.

V. E. del Rosario and Associates for petitioner.Sycip, Salazar, Luna, Manalo and Feliciano for respondents.

SANCHEZ, J.:

The problem posed in this, an original petition for certiorari, is whether or not this Court in the exercise of its supervisory powers should stake down as having been issued in excess of jurisdiction or with grave abuse of discretion, the respondent judge's order of June 15, 1966 in Civil Case 8873 (Court of First Instance of Rizal) directing petitioner to deliver to Special Administratrix Virginia Y. Yaptinchay of the estate of the deceased Isidro Y. Yaptinchay the North Forbes Park property hereinafter described, and to refrain from disturbing or interfering in any manner whatsoever with the latter's possession thereof, such order having been amended by said respondent judge's subsequent order of June, 28, 1966 in turn enjoining defendants in said case (private respondents herein) and/or their duly authorized agents or representatives from selling, disposing, or otherwise encumbering said property in any manner whatsoever pending the termination of said case. We granted the writ of preliminary mandatory injunction prayed for and directed respondents to return the possession of the North Forbes Park property to petitioner upon a P50,000-bond.

The controlling facts are the following:

On July 13, 1965, herein petitioner Teresita C. Yaptinchay sought in the Court of First Instance of Rizal, Pasay City Branch, her appointment first as Special Administratrix and then as regular administratrix of the estate of Isidro Y. Yaptinchay who died in Hongkong on July 7, 1965. This is known in the record as Special Proceedings 1944-P. Petitioner there alleged that the deceased Isidro Y. Yaptinchay had lived with her continuously, openly and publicly as husband and wife for nineteen (19) years: from 1946 to 1964 at 1951 Taft-Avenue, Pasay City, and from 1964 to July 1965 at 60 Russel Avenue, Pasay City; that the deceased who died without a will left an estate consisting of personal and real properties situated in the Philippines, Hongkong and other places with an estimated value of about P500,000; that to

petitioner's knowledge and information, the deceased left three daughters, Virginia Yaptinchay, Mary Yaptinchay Eligir and Asuncion Yaptinchay, all of age; that on July 7, 8 and 11, 1965, certain parties carted away from the residences aforesaid personal properties belonging to the deceased together with others exclusively owned by petitioner. It was averred that in these circumstances the appointment of a special administrator to take custody and care of the interests of the deceased pending appointment of a regular administrator became an urgent necessity.

Upon the foregoing allegations, the court issued on July 17, 1965 an order appointing herein petitioner Teresita C. Yaptinchay special administratrix of the state of the deceased Isidro Y. Yaptinchay upon a P25,000-bond.

To the petition of Teresita C. Yaptinchay, an opposition was registered by Josefina Y. Yaptinchay, the alleged legitimate wife, and Ernesto Y. Yaptinchay and other children, of the deceased Isidro Y. Yaptinchay, upon the ground that said Teresita C. Yaptinchay, not being an heir of the decedent, had no right to institute the proceeding for the settlement of the latter's estate, much less to procure appointment as administratrix thereof; and that having admittedly cohabited with the deceased for a number of years said petitioner was not qualified to serve as administratrix for want of integrity. At the same time, oppositors counter-petitioned for the appointment of Virginia Y. Yaptinchay, daughter of the deceased, as special administratrix and of Josefina Y. Yaptinchay, the alleged surviving spouse, as regular administratrix.

To give oppositors an opportunity to be heard, the probate court, on July 19, 1965, set aside its order of July 17, 1965 appointing petitioner Teresita C. Yaptinchay special administratrix.

On July 30, 1965, after the parties were heard, the probate court granted counter-petitioners' prayer and named Virginia Y. Yaptinchay special administratrix upon a P50,000-bond.1awphil.nêt

On August 18, 1965, the special administratrix submitted a preliminary inventory of the assets of the estate of the deceased Isidro Y. Yaptinchay. Included amongst these was "[a] bungalow residential house with swimming pool, situated at Park corner Talisay Road, North Forbes Park, Makati, Rizal" adverted to at the start of this opinion.

It was after respondent Virginia Y. Yaptinchay had been appointed special administratrix that herein petitioner Teresita C. Yaptinchay made her second move. That was on August 14, 1965. This time, petitioner filed in another branch (Pasig Branch) of the Court of First Instance of Rizal an action for replevin and for liquidation of the partnership supposedly formed during the period of her cohabitation with Isidro Y. Yaptinchay and for damages. This case was docketed as Civil Case 8873. 1 Pending hearing on the question of the issuance of the writs of replevin and preliminary injunction prayed for, respondent

judge Guillermo E. Torres issued an order of August 17, 1965 temporarily restraining defendants therein (private respondents here) and their agents from disposing any of the properties listed in the complaint and from interfering with plaintiff's (herein petitioner's) rights to, and possession over, amongst others, "the house now standing at North Forbes Park, Makati, Rizal."

On August 25, 1965, defendants (private respondents herein) resisted the action, opposed the issuance of the writs of replevin and preliminary injunction, mainly upon these propositions: (1) that exclusive jurisdiction over the settlement of the estate of the deceased Isidro Y. Yaptinchay was already vested in the Court of First Instance of Rizal, Pasay City Branch in the special proceedings heretofore mentioned (Special Proceedings No. 1944-P); (2) that the present liquidation case was filed to oust said probate court of jurisdiction over the properties enumerated in this, the second case (Civil Case 8873); and (3) that plaintiff was not entitled to the remedy of injunction prayed for, her alleged right sought to be protected thereby being doubtful and still in dispute.

Said defendants (private respondents before this Court) in turn prayed the court for a writ of preliminary injunction to direct plaintiff (petitioner here) and all others in her behalf to cease and desist from disturbing in any manner whatsoever defendant Virginia Y. Yaptinchay's possession amongst others of the North Forbes Park house and to order the removal from the premises of said North Forbes Park house of the guards, agents and employees installed therein by plaintiff; to enjoin plaintiff and her agents from entering the aforesaid house and any other real property registered in the name of Isidro Y. Yaptinchay and from interfering with or from disturbing the exercise by Virginia Y. Yaptinchay of her rights and powers of administration over the assets registered in the name of Isidro Y. Yaptinchay and/or in the latter's possession at the time of his death.

Came the herein disputed order of June 15, 1966 issued in said Civil Case 8873, the pertinent portion of which reads: "From the pleadings as well as the evidence already submitted and representations made to the court during the arguments, it appears that one of the properties in dispute is the property located at the corner of Park Road and Talisay Street, North Forbes Park, Makati, Rizal which at the time of the death of the deceased Isidro Y. Yaptinchay was still under construction and it also appears that after his death said property was among the properties of the deceased placed under the administration of the special administratrix, the defendant Virginia Y. Yaptinchay. Information has been given that in the evening of August 14, 1965, the plaintiff was able to dispossess the special administratrix from the premises in question and that since then she had been in custody of said house.

While the Court is still considering the merits of the application and counter-application for provisional relief, the Court believes that for the protection of the properties and considering the Forbes Park property is really under the responsibility of defendant Virginia Y. Yaptinchay, by virtue of her being appointed Special Administratrix of the estate of the deceased Isidro Yaptinchay, the Court denies the petition for the issuance of a writ of preliminary injunction of the plaintiff with respect to the Forbes Park property and the restraining order issued by this Court is lifted. The Court also orders the plaintiff to cease and desist from disturbing in any manner whatsoever the defendant Virginia Y. Yaptinchay in the possession of said property.

WHEREFORE, upon defendant's filing a bond in the amount of P10,000.00, let a writ of preliminary injunction is requiring the plaintiff, her representatives and agents or other persons acting in her behalf to deliver the possession of the property located at the corner of Park Road and Talisay Street, North Forbes Park, Makati, Rizal to the Special Administratrix Virginia Y. Yaptinchay, and to refrain from disturbing interfering in any manner whatsoever defendant's possession thereof.

Which, as aforestated, was amended by the court order of June 28, 1966, which in part recites:

Considering that the present case treats principally with the liquidation of an alleged partnership between the plaintiff and the deceased Isidro Yaptinchay and considering further that said house in North Forbes Park is included among the properties in dispute, the Court hereby clarifies its Order of June 15, 1966 by enjoining the defendants and/or their duly authorized agents or representatives from selling, disposing or otherwise encumbering said property in any manner whatsoever pending the termination of this case.

Petitioner's motion to reconsider the June 15, 1966 order was overturned by respondent judge's order of August 8, 1966, which recites that:

Considering that defendants, principally Virginia Y. Yaptinchay, took actual or physical possession of the said properties which were formerly held by the deceased Isidro Yaptinchay and the plaintiff, by virtue of her appointment and under her authority, as Special Administratrix of the estate of the deceased Isidro Yaptinchay, the plaintiff's Motion for Reconsideration is hereby denied.2

The orders of June 15 and August 8, 1966 triggered the present proceedings in this Court.

1. Petitioner's stance before us is this: As she was occupying the Forbes Park property at the time of the death of Isidro Yaptinchay, grave abuse of discretion attended respondent judge's order issuing an injunctive writ transferring possession of said property to respondent Virginia Y. Yaptinchay.

A rule of long standing echoed and reechoed in jurisprudence is that injunction is not to be granted for the purpose of taking property out of possession and/or control of a party and placing it in that of another whose title thereto has not been clearly established. 3 With this as guidepost, petitioner would have been correct if she were lawfully in possession of the house in controversy when Civil Case 8873 (where the injunctive writ was issued) was commenced in the Pasig court, and if respondent special administratrix, to whom the possession thereof was transferred, were without right thereto. But the situation here is not as petitioner pictures it to be. It is beyond debate that with the institution on July 13, 1965 of Special Proceedings 1944-P, properties belonging not only to the deceased Isidro Y. Yaptinchay but also to the conjugal partnership of said deceased and his legitimate wife, Josefina Y. Yaptinchay, 4 were brought under the jurisdiction of the probate court, properly to be placed under administration. 5 One such property is the lot at North Forbes Park. 6

With respect to the Forbes Park house, petitioner offers varying versions. In the verified petition before this Court, petitioner avers "that the construction of said North Forbes Park property was undertaken jointly by petitioner and the deceased, petitioner even contributing her own exclusive funds therefor." 7 This is a reproduction of an allegation in petitioner's June 27, 1966 alternative motion for reconsideration or for clarification/amendment of the herein controverted order of June 15, 1966 in Civil Case 8873. 8 And again, in the affidavit of Teresita C. Yaptinchay dated August 3, 1965, she spoke of the acquisition of properties, real and personal, in her own words, "through our joint efforts and capital, among which properties are those situated" in "North Forbes Park." 9 All of which contradict her averment in the amended complaint dated October 25, 1965 — also verified — in said Case 8873 to the effect that she "acquired through her own personal funds and efforts real properties such as ... the house now standing at North Forbes Park, Makati, Rizal." 10

But herein private respondents vehemently dispute petitioner's claim of complete or even partial ownership of the house. They maintain that the construction of that house was undertaken by the deceased Isidro Y. Yaptinchay without her (petitioner's) intervention and the deceased paid with his own personal funds all expenses incurred in connection with the construction thereof. 11

It was only after hearing and considering the evidence adduced and the fact that after the death of Isidro Y. Yaptinchay the Forbes Park house "was among the properties of the deceased placed under the administration of" respondent Virginia Y. Yaptinchay, that

respondent judge issued the injunction order of June 15, 1966 herein complained of. Worth repeating at this point is that respondent judge, in his order of August 8, 1966, declared that defendants (private respondents herein), "principally Virginia Y. Yaptinchay, took actual or physical possession", amongst others, of the North Forbes Park house — "by virtue of her appointment and under her authority, as Special Administratrix."

On this score, petitioner herein is not entitled to the injunction she prayed for below.

2. As well established is the rule that the grant or denial of an injunction rests upon the sound discretion of the court, in the exercise of which appellate courts will not interfere except in a clear case of abuse. 12

A considerate and circumspect view of the facts and circumstances in this case obtaining will not permit us to tag the disputed order of June 15, 1966 with the vice of grave abuse of discretion. It is quite true that, in support of the allegation that the house in North Forbes Park was her exclusive property, petitioner presented proof in the form of loans that she had contracted during the period when said house was under construction. But evidence is wanting which would correlate such loans to the construction work. On the contrary, there is much to the documentary proof presented by petitioner which would tend to indicate that the loans she obtained from the Republic Bank were for purposes other than the construction of the North Forbes Park home. And this, we gather from pages 17 to 18 of petitioner's memorandum before this Court; and the affidavit of Teresita C. Yaptinchay, Annex A thereof, which states in its paragraph 4 that she obtained various loans from the Republic Bank "for her own exclusive account" and that the proceeds thereof "were also used by affiant both for her business and for the construction, completion and furnishing of the said house at North Forbes Park", and which cites her seven promissory notes in favor of Republic Bank, Appendices 1 to 7 of said affidavit. Not one of the promissory notes mentioned reveals use of the proceeds for the construction of the North Forbes Park house. On the contrary, there is Appendix 2, the promissory note for P54,000 which says that the purpose of the loan for "Fishpond development"; Appendix 3 for P100,000 for the same purpose; Appendix 5 for P50,000, "To augment working capital in buying & selling of appliances & gift items"; and Appendix 7 for P1,090,000, "For Agricultural Development". In plain terms, the fact alone of petitioner's indebtedness to the Republic Bank does not establish that said house was built with her own funds.

It is in the context just recited that the unsupported assertion that the North Forbes Park house is petitioner's exclusive property may not be permitted to override the prima facie presumption that house, having been constructed on the lot of Isidro Y. Yaptinchay (or of the conjugal partnership) at his instance, and during the existence of his marriage with respondent Josefina Y.

Yaptinchay, is part of the estate that should be under the control of the special administratrix.

3. Nor can petitioner's claim of ownership presumably based on the provisions of Article 144 of the Civil Code be decisive. Said Article 144 says that: "When man and a woman live together as husband and wife, but they are not married, or their marriage is void from the beginning, the property acquired by either or both of them through their work or industry or their wages and salaries shall be governed by the rules on co-ownership." .

But stock must be taken of the fact that the creation of the civil relationship envisaged in Article 144 is circumscribed by conditions, the existence of which must first be shown before rights provided thereunder may be deemed to accrue. 13 One such condition is that there must be a clear showing that the petitioner had, during cohabitation, really contributed to the acquisition of the property involved. Until such right to co-ownership is duly established, petitioner's interests in the property in controversy cannot be considered the "present right" or title that would make available the protection or aid afforded by a writ of injunction. 14 For, the existence of a clear positive right especially calling for judicial protection is wanting. Injunction indeed, is not to protect contingent or future rights; 15 nor is it a remedy to enforce an abstract right. 16

At any rate, it would seem to us that the interests of the parties would be better safeguarded if the controverted North Forbes Park property be in the hands of the bonded administratrix in the estate proceedings. For then, her acts would be subject to the control of the probate court.

Finding no error in the disputed orders of respondent judge, the herein petition for certiorari is hereby dismissed, and the writ of preliminary mandatory injunction 17 issued by this Court is hereby dissolved and set aside.

Costs against petitioner. So ordered.

Reyes, J.B.L., Dizon, Zaldivar, Fernando, Capistrano, JJ., concur.Makalintal, Teehankee and Barredo, JJ., took no part.Concepcion, C.J., and Castro, J., are on leave.

Footnotes

1Entitled "Teresita C. Yaptinchay, Plaintiff, versus Virginia Y. Yaptinchay, in her own behalf and in her capacity as Special Administratrix in the Inestate Estate of the deceased Isidro Y. Yaptinchay; and Jesus Monzon, Mary Yaptinchay Eligir, Antonio Yaptinchay, Ernesto Yaptinchay, Asuncion Yaptinchay, Josefina Y. Yaptinchay, Rosa Y. Monson, Isabel Y. Valeriano, Remedios Y. Yaptinchay, Felicidad Y. Arguelles, Mary Doe and John Doe, Defendants." This complaint was

amended on October 25, 1965 to include a claim over some other properties.

2Emphasis supplied.

3Devesa vs Arbes, 13 Phil. 273, 278; Evangelista vs. Pedreños, 27 Phil. 648, 650-651; Asombra vs. Dorado, 36 Phil. 883, 885-886; Kabankalan Sugar Co. vs. Rubin, 54 Phil. 645, 654; Rodulfa vs. Alfonso, 76 Phil. 225, 231; Calo vs. Roldan, 76 Phil. 445, 452; Iman Sahim vs. Montejo (June 29, 1963), 8 SCRA 333, 335; Emilia vs. Bado (April 25, 1968), 23 SCRA 183, 188-190.

4See Certificado de Matrimonio dated September 6, 1920; Annex 1 of the Answer herein filed by respondents.

5Picardal vs. Lladas (December 29, 1967), 21 SCRA 1483, 1491, citing Roxas vs. Pecson, 82 Phil. 407 and Fernandez vs. Maravilla, L-18799, March 31, 1964.

6 In a pleading filed in Special Proceedings 1944-P, petitioner herself alleged that this Forbes Park lot was acquired by her and the deceased during the period of their cohabitation (Rollo, p. 155), although she also states that title thereto is in the name of one Jose (or Erlinda) Oledan (Rollo, p. 15).

7Emphasis supplied.8See Rollo, pp. 16, 79.9Rollo, p. 160; emphasis supplied.10See Rollo, pp. 26, 31.11See Verified Opposition, Motion to Dismiss, and Counter Petition for Issuance of Preliminary Injunction dated August 25, 1965 filed by defendants in Civil Case 8873. Rollo, pp. 38-67.12Rodulfa vs. Alfonso, supra, at p. 232; Gregorio vs. Mencias (September 29, 1962), 6 SCRA 114, 119.13 See Lesaca vs. Lesaca, 91 Phil. 135, 140; Aznar vs. Garcia, 102 Phil. 1055, 1068.14Bacolod-Murcia Milling Co., Inc. vs. Capitol Subdivision, Inc. (July 26, 1966), 17 SCRA 731, 736-737; Angela Estate, Inc. vs. CFI of Negros Occidental (July 31, 1968), 24 SCRA 500, 509.15Bacolod-Murcia Milling Co., Inc. vs. Capitol Subdivision, Inc., supra, at p. 736.16Id. at p. 737; North Negros Sugar Co. vs. Hidalgo, 63 Phil. 664, 671.17Rollo, pp. 176-177.

EN BANC

G.R. No. L-28093 January 30, 1971

BASILIA BERDIN VDA. DE CONSUEGRA; JULIANA, PACITA, MARIA LOURDES, JOSE, JR., RODRIGO, LINEDA and LUIS, all surnamed CONSUEGRA, petitioners-appellants, vs.GOVERNMENT SERVICE INSURANCE SYSTEM, COMMISSIONER OF PUBLIC HIGHWAYS, HIGHWAY DISTRICT ENGINEER OF SURIGAO DEL NORTE, COMMISSIONER OF CIVIL SERVICE, and ROSARIO DIAZ,respondents-appellees.

Bernardino O. Almeda for petitioners-appellants.

Binag and Arevalo, Jr. for respondent-appellee Government Service Insurance System.

Office of the Solicitor General for other respondents-appellees.

ZALDIVAR, J.:

Appeal on purely questions of law from the decision of the Court of First Instance of Surigao del Norte, dated March 7, 1967, in its Special Proceeding No. 1720.

The pertinent facts, culled from the stipulation of facts submitted by the parties, are the following:

The late Jose Consuegra, at the time of his death, was employed as a shop foreman of the office of the District Engineer in the province of Surigao del Norte. In his lifetime, Consuegra contracted two marriages, the first with herein respondent Rosario Diaz, solemnized in the parish church of San Nicolas de Tolentino, Surigao, Surigao, on July 15, 1937, out of which marriage were born two children, namely, Jose Consuegra, Jr. and Pedro Consuegra, but both predeceased their father; and the second, which was contracted in good faith while the first marriage was subsisting, with herein petitioner Basilia Berdin, on May 1, 1957 in the same parish and municipality, out of which marriage were born seven children, namely, Juliana, Pacita, Maria Lourdes, Jose, Rodrigo, Lenida and Luz, all surnamed Consuegra.

Being a member of the Government Service Insurance System (GSIS, for short) when Consuegra died on September 26, 1965, the proceeds of his life insurance under policy No. 601801 were paid by the GSIS to petitioner Basilia Berdin and her children who were the beneficiaries named in the policy. Having been in the service of the government for 22.5028 years, Consuegra was entitled to retirement insurance benefits in the sum of P6,304.47 pursuant to Section 12(c) of Commonwealth Act 186 as amended by Republic Acts 1616 and 3836. Consuegra did not designate any beneficiary who would receive the retirement insurance benefits due to him. Respondent Rosario Diaz, the widow by the first marriage, filed a claim with the GSIS asking that the retirement

insurance benefits be paid to her as the only legal heir of Consuegra, considering that the deceased did not designate any beneficiary with respect to his retirement insurance benefits. Petitioner Basilia Berdin and her children, likewise, filed a similar claim with the GSIS, asserting that being the beneficiaries named in the life insurance policy of Consuegra, they are the only ones entitled to receive the retirement insurance benefits due the deceased Consuegra. Resolving the conflicting claims, the GSIS ruled that the legal heirs of the late Jose Consuegra were Rosario Diaz, his widow by his first marriage who is entitled to one-half, or 8/16, of the retirement insurance benefits, on the one hand; and Basilia Berdin, his widow by the second marriage and their seven children, on the other hand, who are entitled to the remaining one-half, or 8/16, each of them to receive an equal share of 1/16.

Dissatisfied with the foregoing ruling and apportionment made by the GSIS, Basilia Berdin and her children1 filed on October 10, 1966 a petition for mandamus with preliminary injunction in the Court of First Instance of Surigao, naming as respondents the GSIS, the Commissioner of Public Highways, the Highway District Engineer of Surigao del Norte, the Commissioner of Civil Service, and Rosario Diaz, praying that they (petitioners therein) be declared the legal heirs and exclusive beneficiaries of the retirement insurance of the late Jose Consuegra, and that a writ of preliminary injunction be issued restraining the implementation of the adjudication made by the GSIS. On October 26, 1966, the trial court issued an order requiring therein respondents to file their respective answers, but refrained from issuing the writ of preliminary injunction prayed for. On February 11, 1967, the parties submitted a stipulation of facts, prayed that the same be admitted and approved and that judgment be rendered on the basis of the stipulation of facts. On March 7, 1967, the court below rendered judgment, the pertinent portions of which are quoted hereunder:

This Court, in conformity with the foregoing stipulation of facts, likewise is in full accord with the parties with respect to the authority cited by them in support of said stipulation and which is herein-below cited for purposes of this judgment, to wit:

"When two women innocently and in good faith are legally united in holy matrimony to the same man, they and their children, born of said wedlock, will be regarded as legitimate children and each family be entitled to one half of the estate. Lao & Lao vs. Dee Tim, 45 Phil. 739; Estrella vs. Laong Masa, Inc., (CA) 39 OG 79; Pisalbon vs. Bejec, 74 Phil. 88.

WHEREFORE, in view of the above premises, this Court is of the opinion that the foregoing stipulation of facts is in order and in accordance with law and the same

is hereby approved. Judgment, therefore, is hereby rendered declaring the petitioner Basilia Berdin Vda. de Consuegra and her co-petitioners Juliana, Pacita, Maria Lourdes, Jose, Jr., Rodrigo, Lenida and Luis, all surnamed Consuegra, beneficiary and entitled to one-half (1/2) of the retirement benefit in the amount of Six Thousand Three Hundred Four Pesos and Fourty-Seven Centavos (P6,304.47) due to the deceased Jose Consuegra from the Government Service Insurance System or the amount of P3,152.235 to be divided equally among them in the proportional amount of 1/16 each. Likewise, the respondent Rosario Diaz Vda. de Consuegra is hereby declared beneficiary and entitled to the other half of the retirement benefit of the late Jose Consuegra or the amount of P3,152.235. The case with respect to the Highway District Engineer of Surigao del Norte is hereby ordered dismissed.

Hence the present appeal by herein petitioners-appellants, Basilia Berdin and her children.

It is the contention of appellants that the lower court erred in not holding that the designated beneficiaries in the life insurance of the late Jose Consuegra are also the exclusive beneficiaries in the retirement insurance of said deceased. In other words, it is the submission of appellants that because the deceased Jose Consuegra failed to designate the beneficiaries in his retirement insurance, the appellants who were the beneficiaries named in the life insurance should automatically be considered the beneficiaries to receive the retirement insurance benefits, to the exclusion of respondent Rosario Diaz. From the arguments adduced by appellants in their brief We gather that it is their stand that the system of life insurance and the system of retirement insurance, that are provided for in Commonwealth Act 186 as amended, are simply complementary to each other, or that one is a part or an extension of the other, such that whoever is named the beneficiary in the life insurance is also the beneficiary in the retirement insurance when no such beneficiary is named in the retirement insurance.

The contention of appellants is untenable.

It should be noted that the law creating the Government Service Insurance System is Commonwealth Act 186 which was enacted by the National Assembly on November 14, 1936. As originally approved, Commonwealth Act 186 provided for the compulsory membership in the Government Service Insurance System of all regularly and permanently appointed officials and employees of the government, considering as automatically insured on life all such officials and employees, and issuing to them the corresponding

membership policy under the terms and conditions as provided in the Act.2

Originally, Commonwealth Act 186 provided for life insurance only. Commonwealth Act 186 was amended by Republic Act 660 which was enacted by the Congress of the Philippines on June 16, 1951, and, among others, the amendatory Act provided that aside from the system of life insurance under the Government Service Insurance System there was also established the system of retirement insurance. Thus, We will note in Republic Act 660 that there is a chapter on life insurance and another chapter on retirement insurance. 3 Under the chapter on life insurance are sections 8, 9 and 10 of Commonwealth Act 186, as amended; and under the chapter on retirement insurance are sections 11, 12, 13 and 13-A. On May 31, 1957, Republic Act 1616 was enacted by Congress, amending section 12 of Commonwealth Act 186 as amended by Republic Act 660, by adding thereto two new subsections, designated as subsections (b) and (c). This subsection (c) of section 12 of Commonwealth Act 186, as amended by Republic Acts 660, 1616 and 3096, was again amended by Republic Act 3836 which was enacted on June 22, 1963.lâwphî1.ñèt The pertinent provisions of subsection (c) of Section 12 of Commonwealth Act 186, as thus amended and reamended, read as follows:

(c) Retirement is likewise allowed to a member, regardless of age, who has rendered at least twenty years of service. The benefit shall, in addition to the return of his personal contributions plus interest and the payment of the corresponding employer's premiums described in subsection (a) of Section 5 hereof, without interest, be only a gratuity equivalent to one month's salary for every year of service, based on the highest rate received, but not to exceed twenty-four months; Provided, That the retiring officer or employee has been in the service of the said employer or office for at least four years, immediately preceding his retirement.

xxx xxx xxx

The gratuity is payable by the employer or office concerned which is hereby authorized to provide the necessary appropriation to pay the same from any unexpended items of appropriations.

Elective or appointive officials and employees paid gratuity under this subsection shall be entitled to the commutation of the unused vacation and sick leave, based on the highest rate received, which they may have to their credit at the time of retirement.

Jose Consuegra died on September 26, 1965, and so at the time of his death he had acquired rights under the above-quoted provisions of subsection (c) of Section 12 of Com. Act 186, as finally amended by Rep. Act 3836 on June 22, 1963. When Consuegra died on September 26, 1965, he had to his credit 22.5028 years of service in the government, and pursuant to the above-quoted provisions of subsection (c) of Section 12 of Com. Act 186, as amended, on the basis of the highest rate of salary received by him which was P282.83 per month, he was entitled to receive retirement insurance benefits in the amount of P6,304.47. This is the retirement benefits that are the subject of dispute between the appellants, on the one hand, and the appellee Rosario Diaz, on the other, in the present case. The question posed is: to whom should this retirement insurance benefits of Jose Consuegra be paid, because he did not, or failed to, designate the beneficiary of his retirement insurance?

If Consuegra had 22.5028 years of service in the government when he died on September 26, 1965, it follows that he started in the government service sometime during the early part of 1943, or before 1943. In 1943 Com. Act 186 was not yet amended, and the only benefits then provided for in said Com. Act 186 were those that proceed from a life insurance. Upon entering the government service Consuegra became a compulsory member of the GSIS, being automatically insured on his life, pursuant to the provisions of Com. Act 186 which was in force at the time. During 1943 the operation of the Government Service Insurance System was suspended because of the war, and the operation was resumed sometime in 1946. When Consuegra designated his beneficiaries in his life insurance he could not have intended those beneficiaries of his life insurance as also the beneficiaries of his retirement insurance because the provisions on retirement insurance under the GSIS came about only when Com. Act 186 was amended by Rep. Act 660 on June 16, 1951. Hence, it cannot be said that because herein appellants were designated beneficiaries in Consuegra's life insurance they automatically became the beneficiaries also of his retirement insurance. Rep. Act 660 added to Com. Act 186 provisions regarding retirement insurance, which are Sections 11, 12, and 13 of Com. Act 186, as amended. Subsection (b) of Section 11 of Com. Act 186, as amended by Rep. Act 660, provides as follows:

(b) Survivors benefit. — Upon death before he becomes eligible for retirement, his beneficiaries as recorded in the application for retirement annuity filed with the System shall be paid his own premiums with interest of three per centum per annum, compounded monthly. If on his death he is eligible for retirement, then the automatic retirement annuity or the annuity chosen by him previously shall be paid accordingly.

The above-quoted provisions of subsection (b) of Section 11 of Commonwealth Act 186, as amended by Rep. Act 660, clearly indicate that there is need for the employee to file an application for retirement insurance benefits when he becomes a member of the GSIS, and he should state in his application the beneficiary of his retirement insurance. Hence, the beneficiary named in the life insurance does not automatically become the beneficiary in the retirement insurance unless the same beneficiary in the life insurance is so designated in the application for retirement insurance.

Section 24 of Commonwealth Act 186, as amended by Rep. Act 660, provides for a life insurance fund and for a retirement insurance fund. There was no such provision in Com. Act 186 before it was amended by Rep. Act 660. Thus, subsections (a) and (b) of Section 24 of Commonwealth Act 186, as amended by Rep. Act 660, partly read as follows:

(a) Life insurance fund. — This shall consist of all premiums for life insurance benefit and/or earnings and savings therefrom. It shall meet death claims as they may arise or such equities as any member may be entitled to, under the conditions of his policy, and shall maintain the required reserves to the end of guaranteeing the fulfillment of the life insurance contracts issued by the System ...

(b) Retirement insurance fund. — This shall consist of all contributions for retirement insurance benefit and of earnings and savings therefrom. It shall meet annuity payments and establish the required reserves to the end of guaranteeing the fulfillment of the contracts issued by the System. ...

Thus, We see that the GSIS offers two separate and distinct systems of benefits to its members — one is the life insurance and the other is the retirement insurance. These two distinct systems of benefits are paid out from two distinct and separate funds that are maintained by the GSIS.

In the case of the proceeds of a life insurance, the same are paid to whoever is named the beneficiary in the life insurance policy. As in the case of a life insurance provided for in the Insurance Act (Act 2427, as amended), the beneficiary in a life insurance under the GSIS may not necessarily be a heir of the insured. The insured in a life insurance may designate any person as beneficiary unless disqualified to be so under the provisions of the Civil Code.4 And in the absence of any beneficiary named in the life insurance policy, the proceeds of the insurance will go to the estate of the insured.

Retirement insurance is primarily intended for the benefit of the employee — to provide for his old age, or incapacity, after rendering service in the government for a required number of years. If the employee reaches the age of retirement, he gets the retirement benefits even to the exclusion of the beneficiary or beneficiaries named in his application for retirement insurance. The beneficiary of the retirement insurance can only claim the proceeds of the retirement insurance if the employee dies before retirement. If the employee failed or overlooked to state the beneficiary of his retirement insurance, the retirement benefits will accrue to his estate and will be given to his legal heirs in accordance with law, as in the case of a life insurance if no beneficiary is named in the insurance policy.

It is Our view, therefore, that the respondent GSIS had correctly acted when it ruled that the proceeds of the retirement insurance of the late Jose Consuegra should be divided equally between his first living wife Rosario Diaz, on the one hand, and his second wife Basilia Berdin and his children by her, on the other; and the lower court did not commit error when it confirmed the action of the GSIS, it being accepted as a fact that the second marriage of Jose Consuegra to Basilia Berdin was contracted in good faith. The lower court has correctly applied the ruling of this Court in the case of Lao, et al. vs. Dee Tim, et al., 45 Phil. 739 as cited in the stipulation of facts and in the decision appealed from.5 In the recent case of Gomez vs. Lipana, L-23214, June 30, 1970, 6 this Court, in construing the rights of two women who were married to the same man — a situation more or less similar to the case of appellant Basilia Berdin and appellee Rosario Diaz — held "that since the defendant's first marriage has not been dissolved or declared void the conjugal partnership established by that marriage has not ceased. Nor has the first wife lost or relinquished her status as putative heir of her husband under the new Civil Code, entitled to share in his estate upon his death should she survive him. Consequently, whether as conjugal partner in a still subsisting marriage or as such putative heir she has an interest in the husband's share in the property here in dispute.... " And with respect to the right of the second wife, this Court observed that although the second marriage can be presumed to be void ab initio as it was celebrated while the first marriage was still subsisting, still there is need for judicial declaration of such nullity. And inasmuch as the conjugal partnership formed by the second marriage was dissolved before judicial declaration of its nullity, "[t]he only lust and equitable solution in this case would be to recognize the right of the second wife to her share of one-half in the property acquired by her and her husband and consider the other half as pertaining to the conjugal partnership of the first marriage."

WHEREFORE, the decision appealed from is affirmed, with costs against petitioners-appellants. It is so ordered.

Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Castro, Fernando, Teehankee, Barredo, Villamor and Makasiar, JJ., concur.

Footnotes

1 The minor children were represented by Basilia Berdin as their natural guardian.

2 Section 4 of Com. Act 186 as originally enacted. Under Section 2(d) of the Act a "member" is an employee who is admitted into the Government Service Insurance System in accordance with the provisions of Section 4 of the Act. Under Section 8 of the Act every member is granted a membership policy. Under Section 2(f) a "membership policy shall mean a life insurance pay for an amount, the annual premium of which is equivalent to six per centum of an employee's basic annual salary or compensation..."

3 No such chapters were designated in Com. Act 186 before it was amended by Rep. Act 660.

4 Article 2012 of the New Civil Code.

5 See also Pisalbon vs. Bejec, 74 Phil. 88.

6 33 SCRA 615.

FIRST DIVISION[G.R. No. 122749. July 31, 1996]

ANTONIO A. S. VALDES, petitioner, vs. REGIONAL TRIAL COURT, BRANCH 102, QUEZON CITY, and CONSUELO M. GOMEZ-VALDES,respondents.D E C I S I O N

VITUG, J.:

The petition for review bewails, purely on a question of law, an alleged error committed by the Regional Trial Court in Civil Case No. Q-92-12539. Petitioner avers that the court a quo has failed to apply the correct law that should govern the disposition of a family dwelling in a situation where a marriage is declared void ab initio because of psychological incapacity on the part of either or both of the parties to the contract.

The pertinent facts giving rise to this incident are, by and large, not in dispute.

Antonio Valdes and Consuelo Gomez were married on 05 January 1971. Begotten during the marriage were five children. In a petition, dated 22 June 1992, Valdes sought the declaration of nullity of the marriage pursuant to Article 36 of the Family Code (docketed Civil Case No. Q-92-12539, Regional Trial Court of Quezon City, Branch 102). After hearing the parties following the joinder of issues, the trial court,[1] in its decision of 29 July 1994, granted the petition; viz:

"WHEREFORE, judgment is hereby rendered as follows:

"(1) The marriage of petitioner Antonio Valdes and respondent Consuelo Gomez-Valdes is hereby declared null and void under Article 36 of the Family Code on the ground of their mutual psychological incapacity to comply with their essential marital obligations;

"(2) The three older children, Carlos Enrique III, Antonio Quintin and Angela Rosario shall choose which parent they would want to stay with.

"Stella Eloisa and Joaquin Pedro shall be placed in the custody of their mother, herein respondent Consuelo Gomez-Valdes.

"The petitioner and respondent shall have visitation rights over the children who are in the custody of the other.

"(3) The petitioner and respondent are directed to start proceedings on the liquidation of their common properties as defined by Article 147 of the Family Code, and to comply with the provisions of Articles 50, 51 and 52 of the same code, within thirty (30) days from notice of this decision.

"Let a copy of this decision be furnished the Local Civil Registrar of Mandaluyong, Metro Manila, for proper recording in the registry of marriages."[2] (Italics ours)

Consuelo Gomez sought a clarification of that portion of the decision directing compliance with Articles 50, 51 and 52 of the Family Code. She asserted that the Family Code contained no provisions on the procedure for the liquidation of common property in "unions without marriage." Parenthetically, during the hearing on the motion, the children filed a joint affidavit expressing their desire to remain with their father, Antonio Valdes, herein petitioner.

In an Order, dated 05 May 1995, the trial court made the following clarification:

"Consequently, considering that Article 147 of the Family Code explicitly provides that the property acquired by both parties during their union, in the absence of proof to the contrary, are presumed to have been obtained through the joint efforts of the parties and will be owned by them in equal shares, plaintiff and defendant will own their 'family home' and all their other properties for that matter in equal shares.

"In the liquidation and partition of the properties owned in common by the plaintiff and defendant, the provisions on co-ownership found in the Civil Code shall apply."[3] (Italics supplied)




In addressing specifically the issue regarding the disposition of the family dwelling, the trial court said:

"Considering that this Court has already declared the marriage between petitioner and respondent as null and void ab initio, pursuant to Art. 147, the property regime of petitioner and respondent shall be governed by therules on co-ownership.

"The provisions of Articles 102 and 129 of the Family Code finds no application since Article 102 refers to the procedure for the liquidation of the conjugal partnership property and Article 129 refers to the procedure for the liquidation of the absolute community of property."[4]

Petitioner moved for a reconsideration of the order. The motion was denied on 30 October 1995.

In his recourse to this Court, petitioner submits that Articles 50, 51 and 52 of the Family Code should be held controlling; he argues that:

"I

"Article 147 of the Family Code does not apply to cases where the parties are psychological incapacitated.

"II

"Articles 50, 51 and 52 in relation to Articles 102 and 129 of the Family Code govern the disposition of the family dwelling in cases where a marriage is declared void ab initio, including a marriage declared void by reason of the psychological incapacity of the spouses.

"III

"Assuming arguendo that Article 147 applies to marriages declared void ab initio on the ground of the psychological incapacity of a spouse, the same may be read consistently with Article 129.

"IV

"It is necessary to determine the parent with whom majority of the children wish to stay."[5]

The trial court correctly applied the law. In a void marriage, regardless of the cause thereof, the property relations of the parties during the period of cohabitation is governed by the provisions of Article 147 or Article 148, such as the case may be, of the Family Code. Article 147 is a remake of Article 144 of the Civil Code as interpreted and so applied in previous cases;[6] it provides:

"ART. 147. When a man and a woman who are capacitated to marry each other, live exclusively with each other as husband and wife without the benefit of marriage or under a void marriage, their wages and salaries shall be owned by them in equal shares and the property acquired by both of them through their work or industry shall be governed by the rules on co-ownership.

"In the absence of proof to the contrary, properties acquired while they lived together shall be presumed to have been obtained by their joint efforts, work or industry, and shall be owned by them in equal shares. For purposes of this Article, a party who did not participate in the acquisition by the other party of any property shall be deemed to have contributed jointly in the acquisition thereof if the former's efforts consisted in the care and maintenance of the family and of the household.

"Neither party can encumber or dispose by acts inter vivos of his or her share in the property acquired during cohabitation and owned in common, without the consent of the other, until after the termination of their cohabitation.

"When only one of the parties to a void marriage is in good faith, the share of the party in bad faith in the co-ownership shall be forfeited in favor of their common children. In case of default of or waiver by any or all of the common children or their descendants, each




vacant share shall belong to the respective surviving descendants. In the absence of descendants, such share shall belong to the innocent party. In all cases, the forfeiture shall take place upon termination of the cohabitation."

This peculiar kind of co-ownership applies when a man and a woman, suffering no legal impediment to marry each other, so exclusively live together as husband and wife under a void marriage or without the benefit of marriage. The term "capacitated" in the provision (in the first paragraph of the law) refers to the legal capacity of a party to contract marriage, i.e., any "male or female of the age of eighteen years or upwards not under any of the impediments mentioned in Articles 37 and 38"[7] of the Code.

Under this property regime, property acquired by both spouses through their work and industry shall be governed by the rules on equal co-ownership. Any property acquired during the union isprima facie presumed to have been obtained through their joint efforts. A party who did not participate in the acquisition of the property shall still be considered as having contributed thereto jointly if said party's "efforts consisted in the care and maintenance of the family household." [8] Unlike the conjugal partnership of gains, the fruits of the couple's separate property are not included in the co-ownership.

Article 147 of the Family Code, in substance and to the above extent, has clarified Article 144 of the Civil Code; in addition, the law now expressly provides that —

(a) Neither party can dispose or encumber by act inter vivos his or her share in co-ownership property, without the consent of the other, during the period of cohabitation; and

(b) In the case of a void marriage, any party in bad faith shall forfeit his or her share in the co-ownership in favor of their common children; in default thereof or waiver by any or all of the common children, each vacant share shall belong to the respective surviving descendants, or still in default thereof, to the innocent party. The forfeiture shall take place upon the

termination of the cohabitation[9] or declaration of nullity of the marriage.[10]

When the common-law spouses suffer from a legal impediment to marry or when they do not live exclusively with each other (as husband and wife ),only the property acquired by both of them through their actual joint contribution of money, property or industry shall be owned in common and in proportion to their respective contributions. Such contributions and corresponding shares, however, are prima facie presumed to be equal. The share of any party who is married to another shall accrue to the absolute community or conjugal partnership, as the case may be, if so existing under a valid marriage. If the party who has acted in bad faith is not validly married to another, his or her share shall be forfeited in the manner already heretofore expressed.[11]

In deciding to take further cognizance of the issue on the settlement of the parties' common property, the trial court acted neither imprudently nor precipitately; a court which has jurisdiction to declare the marriage a nullity must be deemed likewise clothed with authority to resolve incidental and consequential matters. Nor did it commit a reversible error in ruling that petitioner and private respondent own the "family home" and all their common property in equal shares, as well as in concluding that, in the liquidation and partition of the property owned in common by them, the provisions on co-ownership under the Civil Code, not Articles 50, 51 and 52, in relation to Articles 102 and 129, [12] of the Family Code, should aptly prevail. The rules set up to govern the liquidation of either the absolute community or the conjugal partnership of gains, the property regimes recognized for valid and voidable marriages (in the latter case until the contract is annulled ),are irrelevant to the liquidation of the co-ownership that exists between common-law spouses. The first paragraph of Article 50 of the Family Code, applying paragraphs (2 ),(3 ),(4) and (5) of Article 43,[13] relates only, by its explicit terms, to voidable marriages and, exceptionally, to void marriages under Article 40[14] of the Code, i.e., the declaration of nullity of a subsequent marriage contracted by a spouse of a prior void marriage before the latter is judicially declared void. The latter is a special rule that somehow









recognizes the philosophy and an old doctrine that void marriages are inexistent from the very beginning and no judicial decree is necessary to establish their nullity. In now requiring for purposes of remarriage, the declaration of nullity by final judgment of the previously contracted void marriage, the present law aims to do away with any continuing uncertainty on the status of the second marriage. It is not then illogical for the provisions of Article 43, in relation to Articles 41[15] and 42,[16] of the Family Code, on the effects of the termination of a subsequent marriage contracted during the subsistence of a previous marriage to be made applicable pro hac vice. In all other cases, it is not to be assumed that the law has also meant to have coincident property relations, on the one hand, between spouses in valid and voidable marriages (before annulment) and, on the other, between common-law spouses or spouses of void marriages, leaving to ordain, in the latter case, the ordinary rules on co-ownership subject to the provision of Article 147 and Article 148 of the Family Code. It must be stressed, nevertheless, even as it may merely state the obvious, that the provisions of the Family Code on the "family home," i.e., the provisions found in Title V, Chapter 2, of the Family Code, remain in force and effect regardless of the property regime of the spouses.

WHEREFORE, the questioned orders, dated 05 May 1995 and 30 October 1995, of the trial court are AFFIRMED. No costs.

SO ORDERED.

Padilla, Kapunan, and Hermosisima, Jr., JJ., concur.

Bellosillo, J., on leave.

[1] Hon. Perlita Tria Tirona, presiding.

[2] Rollo, p. 22.

[3] Rollo, p. 42.

[4] Rollo, pp. 38-39.

[5] Rollo, pp. 24-25.

[6] See Margaret Maxey vs. Court of Appeals, 129 SCRA 187; Aznar, et al. vs. Garcia, et al., 102 Phil. 1055.

[7] Art. 5.Any male or female of the age of eighteen years or upwards not under any of the impediments mentioned in Articles 37 and 38, may contract marriage.

Art. 37.Marriages between the following are incestuous and void from the beginning, whether the relationship between the parties be legitimate or illegitimate:

(1) Between ascendants and descendants of any degree; and

(2) Between brothers and sisters, whether of the full or half-blood.

Art. 38. The following marriages shall be void from the beginning for reasons of public policy:

(1) Between collateral blood relatives; whether legitimate or illegitimate, up to the fourth civil degree;

(2) Between step-parents and stepchildren;

(3) Between parents-in-law and children-in-law;

(4) Between the adopting parent and the adopted child;

(5) Between the surviving spouse of the adopting parent and the adopted child;

(6) Between the surviving spouse of the adopted child and the adopter;

(7) Between an adopted child and a legitimate child of the adopter;

(8) Between adopted children of the same adopter; and

(9) Between parties where one, with the intention to marry the other, killed that other person's spouse or his or her own spouse.

[8] Article 147, Family Code.


[10] Articles 43, 50 and 51, Family Code.


[12] Art. 50. The effects provided for in paragraphs (2 ),(3 ),(4) and (5) of Article 43 and in Article 44 shall also apply in proper cases to marriages which are declared void ab initio or annulled by final judgment under Articles 40 and 45.

The final judgment in such case shall provide for the liquidation, partition and distribution of the properties of the spouses, the custody and support of the common children, and the delivery of their presumptive legitimes, unless such matters had been adjudicated in previous judicial proceedings.















All creditors of the spouses as well as of the absolute community or the conjugal partnership shall be notified of the proceedings for liquidation.

In the partition, the conjugal dwelling and the lot on which it is situated, shall be adjudicated in accordance with the provisions of Articles 102 and 129.

Art. 51. In said partition, the value of the presumptive legitimes of all common children, computed as of the date of the final judgment of the trial court, shall be delivered in cash, property or sound securities, unless the parties, by mutual agreement judicially approved, had already provided for such matters.

The children or their guardian, or the trustee of their property, may ask for the enforcement of the judgment.

The delivery of the presumptive legitimes herein prescribed shall in no way prejudice the ultimate successional rights of the children accruing upon the death of either or both of the parents; but the value of the properties already received under the decree of annulment or absolute nullity shall be considered as advances on their legitime.

Art. 52. The judgment of annulment or of absolute nullity of the marriage, the partition and distribution of the properties of the spouses, and the delivery of the children's presumptive legitimes shall be recorded in the appropriate civil registry and registries of property; otherwise, the same shall not affect third persons.

Art. 102. Upon dissolution of the absolute community regime, the following procedure shall apply:

(1) An inventory shall be prepared, listing separately all the properties of the absolute community and the exclusive properties of each spouse.

(2) The debts and obligations of the absolute community shall be paid out of its assets. In case of insufficiency of said assets, the spouses shall be solidarily liable for the unpaid balance with their separate properties in accordance with the provisions of the second paragraph of Article 94.

(3) Whatever remains of the exclusive properties of the spouses shall thereafter be delivered to each of them.

(4) The net remainder of the properties of the absolute community shall constitute its net assets, which shall be divided equally between husband and wife, unless a different proportion or division was agreed upon in the marriage settlements, or unless there has been a voluntary waiver of such share as provided in this Code. For purposes of computing the net profits subject to forfeiture in accordance with Articles 43, No. (2) and 63, No. (2 ), the said profits shall be the increase in value between the market value of the community property at the time of the

celebration of the marriage and the market value at the time of its dissolution.

(5) The presumptive legitimes of the common children shall be delivered upon partition, in accordance with Article 51.

(6) Unless otherwise agreed upon by the parties, in the partition of the properties, the conjugal dwelling and the lot on which it is situated shall be adjudicated to the spouse with whom the majority of the common children choose to remain. Children below the age of seven years are deemed to have chosen the mother, unless the court has decided otherwise. In case there is no such majority, the court shall decide, taking into consideration the best interests of said children.

Art. 129. Upon the dissolution of the conjugal partnership regime, the following procedure shall apply;

(1) An inventory shall be prepared, listing separately all the properties of the conjugal partnership and the exclusive properties of each spouse.

(2) Amounts advanced by the conjugal partnership in payment of personal debts and obligations of either spouse shall be credited to the conjugal partnership as an asset thereof.

(3) Each spouse shall be reimbursed for the use of his or her exclusive funds in the acquisition of property or for the value of his or her exclusive property, the ownership of which has been vested by law in the conjugal partnership.

(4) The debts and obligations of the conjugal partnership shall be paid out of the conjugal assets. In case of insufficiency of said assets, the spouses shall be solidarily liable for the unpaid balance with their separate properties, in accordance with the provisions of paragraph (2) of Article 121.

(5) Whatever remains of the exclusive properties of the spouses shall thereafter be delivered to each of them.

(6) Unless the owner has been indemnified from whatever source, the loss or deterioration of movables used for the benefit of the family, belonging to either spouse, even due to fortuitous event, shall be paid to said spouse from the conjugal funds, if any.

(7) The net remainder of the conjugal partnership properties shall constitute the profits, which shall be divided equally between husband and wife, unless a different proportion or division was agreed upon in the marriage settlements or unless there has been a voluntary waiver or forfeiture of such share as provided in this Code.

(8) The presumptive legitimes of the common children shall be delivered upon partition in accordance with Article 51.

(9) In the partition of the properties, the conjugal dwelling and the lot on which it is situated shall, unless otherwise agreed upon by the parties, be adjudicated to

the spouse with whom the majority of the common children choose to remain. Children below the age of seven years are deemed to have chosen the mother, unless the court has decided otherwise. In case there is no such majority, the court shall decide, taking into consideration the best interests of said children.

[13] Art. 43. The termination of the subsequent marriage referred to in the preceding Article shall produce the following effects:

(1) The children of the subsequent marriage conceived prior to its termination shall be considered legitimate, and their custody and support in case of dispute shall be decided by the court in a proper proceeding;

(2) The absolute community of property or the conjugal partnership, as the case may be, shall be dissolved and liquidated, but if either spouse contracted said marriage in bad faith, his or her share of the net profits of the community property or conjugal partnership property shall be forfeited in favor of the common children or, if there are none, the children of the guilty spouse by a previous marriage or, in default of children, the innocent spouse;

(3) Donations by reason or marriage shall remain valid, except that if the donee contracted the marriage in bad faith, such donations made to said donee are revoked by operation of law;

(4) The innocent spouse may revoke the designation of the other spouse who acted in bad faith as a beneficiary in any insurance policy, even if such designation be stipulated as irrevocable; and

(5) The spouse who contracted the subsequent marriage in bad faith shall be disqualified to inherit from the innocent spouse by testate and intestate succession.

[14] Art. 40. The absolute nullity of a previous marriage may be invoked for purposes of remarriage on the basis solely of a final judgment declaring such previous marriage void.

[15] 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 spouse had been absent for four consecutive years and the spouse present had a well-founded belief that the absent spouse 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 spouse 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 reappearance of the absent spouse.

[16] Art. 42. The subsequent marriage referred to in the preceding Article shall be automatically terminated by the recording of the affidavit of reappearance of the absent

spouse, unless there is a judgment annulling the previous marriage or declaring it void ab initio.

A sworn statement of the fact and circumstances of reappearance shall be recorded in the civil registry of the residence of the parties to the subsequent marriage at the instance of any interested person, with due notice to the spouses of the subsequent marriage and without prejudice to the fact of reappearance being judicially determined in case such fact is disputed.

FIRST DIVISION[G.R. No. 132529. February 2, 2001]





SUSAN NICDAO CARIÑO, petitioner, vs. SUSAN YEE CARIÑO, respondent.D E C I S I O N

YNARES-SANTIAGO, J.:

The issue for resolution in the case at bar hinges on the validity of the two marriages contracted by the deceased SPO4 Santiago S. Cariño, whose “death benefits” is now the subject of the controversy between the two Susans whom he married.

Before this Court is a petition for review on certiorari seeking to set aside the decision[1] of the Court of Appeals in CA-G.R. CV No. 51263, which affirmed in toto the decision[2] of the Regional Trial Court of Quezon City, Branch 87, in Civil Case No. Q-93-18632.

During the lifetime of the late SPO4 Santiago S. Cariño, he contracted two marriages, the first was on June 20, 1969, with petitioner Susan Nicdao Cariño (hereafter referred to as Susan Nicdao), with whom he had two offsprings, namely, Sahlee and Sandee Cariño; and the second was on November 10, 1992, with respondent Susan Yee Cariño (hereafter referred to as Susan Yee), with whom he had no children in their almost ten year cohabitation starting way back in 1982.

In 1988, SPO4 Santiago S. Cariño became ill and bedridden due to diabetes complicated by pulmonary tuberculosis. He passed away on November 23, 1992, under the care of Susan Yee, who spent for his medical and burial expenses. Both petitioner and respondent filed claims for monetary benefits and financial assistance pertaining to the deceased from various government agencies. Petitioner Susan Nicdao was able to collect a total of P146,000.00 from “MBAI, PCCUI, Commutation, NAPOLCOM, [and] Pag-ibig,”[3] while respondent Susan Yee received a total of P21,000.00 from “GSIS Life, Burial (GSIS) and burial (SSS).”[4]

On December 14, 1993, respondent Susan Yee filed the instant case for collection of sum of money against petitioner Susan Nicdao praying, inter alia, that petitioner be ordered to return to her at least one-half of the one hundred forty-six thousand pesos (P146,000.00) collectively denominated as “death benefits” which she (petitioner) received from “MBAI, PCCUI, Commutation, NAPOLCOM, [and] Pag-ibig.” Despite service of summons, petitioner failed to file her answer, prompting the trial court to declare her in default.

Respondent Susan Yee admitted that her marriage to the deceased took place during the subsistence of, and without first obtaining a judicial declaration of nullity of, the marriage between petitioner and the deceased. She, however, claimed that she had no knowledge of the previous marriage and that she became aware of it only at the funeral of the deceased, where she met petitioner who introduced herself as the wife of the deceased. To bolster her action for collection of sum of money, respondent contended that the marriage of petitioner and the deceased is void ab initio because the same was solemnized without the required marriage license. In support thereof, respondent presented: 1) the marriage certificate of the deceased and the petitioner which bears no marriage license number;[5] and

2) a certification dated March 9, 1994, from the Local Civil Registrar of San Juan, Metro Manila, which reads –

This is to certify that this Office has no record of marriage license of the spouses SANTIAGO CARINO (sic) and SUSAN NICDAO, who are married in this municipality on June 20, 1969. Hence, we cannot issue as requested a true copy or transcription of Marriage License number from the records of this archives.

This certification is issued upon the request of Mrs. Susan Yee Cariño for whatever legal purpose it may serve.[6]

On August 28, 1995, the trial court ruled in favor of respondent, Susan Yee, holding as follows:

WHEREFORE, the defendant is hereby ordered to pay the plaintiff the sum of P73,000.00, half of the amount which was paid to her in the form of death benefits arising from the death of SPO4 Santiago S. Cariño, plus attorney’s fees in the amount of P5,000.00, and costs of suit.

IT IS SO ORDERED.[7]

On appeal by petitioner to the Court of Appeals, the latter affirmed in toto the decision of the trial court. Hence, the instant petition, contending that:

I.

THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN AFFIRMING THE FINDINGS OF THE LOWER COURT THAT VDA. DE CONSUEGRA VS. GSIS IS APPLICABLE TO THE CASE AT BAR.

II.

THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN APPLYING EQUITY IN THE INSTANT CASE INSTEAD OF THE CLEAR AND UNEQUIVOCAL MANDATE OF THE FAMILY CODE.

III.

THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN NOT FINDING THE CASE OF VDA. DE CONSUEGRA VS GSIS TO HAVE BEEN MODIFIED, AMENDED AND EVEN ABANDONED BY THE ENACTMENT OF THE FAMILY CODE.[8]

Under Article 40 of the Family Code, the absolute nullity of a previous marriage may be invoked for purposes of remarriage on the basis solely of a final judgment declaring such previous marriage void. Meaning, where the absolute nullity of a previous marriage is sought to be invoked for purposes of contracting a second marriage, the sole basis acceptable in law, for said projected marriage to be free from legal infirmity, is a final judgment declaring the previous marriage void.[9] However, for purposes other than remarriage, no judicial action is necessary to declare a marriage an absolute nullity. For other

http://sc.judiciary.gov.ph/jurisprudence/2001/feb2001/132529.htm#_edn9









purposes, such as but not limited to the determination of heirship, legitimacy or illegitimacy of a child, settlement of estate, dissolution of property regime, or a criminal case for that matter, the court may pass upon the validity of marriage even after the death of the parties thereto, and even in a suit not directly instituted to question the validity of said marriage, so long as it is essential to the determination of the case.[10] In such instances, evidence must be adduced, testimonial or documentary, to prove the existence of grounds rendering such a previous marriage an absolute nullity. These need not be limited solely to an earlier final judgment of a court declaring such previous marriage void.[11]

It is clear therefore that the Court is clothed with sufficient authority to pass upon the validity of the two marriages in this case, as the same is essential to the determination of who is rightfully entitled to the subject “death benefits” of the deceased.

Under the Civil Code, which was the law in force when the marriage of petitioner Susan Nicdao and the deceased was solemnized in 1969, a valid marriage license is a requisite of marriage,[12] and the absence thereof, subject to certain exceptions,[13] renders the marriage void ab initio.[14]

In the case at bar, there is no question that the marriage of petitioner and the deceased does not fall within the marriages exempt from the license requirement. A marriage license, therefore, was indispensable to the validity of their marriage. This notwithstanding, the records reveal that the marriage contract of petitioner and the deceased bears no marriage license number and, as certified by the Local Civil Registrar of San Juan, Metro Manila, their office has no record of such marriage license. In Republic v. Court of Appeals,[15] the Court held that such a certification is adequate to prove the non-issuance of a marriage license. Absent any circumstance of suspicion, as in the present case, the certification issued by the local civil registrar enjoys probative value, he being the officer charged under the law to keep a record of all data relative to the issuance of a marriage license.

Such being the case, the presumed validity of the marriage of petitioner and the deceased has been sufficiently overcome. It then became the burden of petitioner to prove that their marriage is valid and that they secured the required marriage license. Although she was declared in default before the trial court, petitioner could have squarely met the issue and explained the absence of a marriage license in her pleadings before the Court of Appeals and this Court. But petitioner conveniently avoided the issue and chose to refrain from pursuing an argument that will put her case in jeopardy. Hence, the presumed validity of their marriage cannot stand.

It is beyond cavil, therefore, that the marriage between petitioner Susan Nicdao and the deceased, having been solemnized without the necessary marriage license, and not being one of the marriages exempt from the marriage license requirement, is undoubtedly void ab initio.

It does not follow from the foregoing disquisition, however, that since the marriage of petitioner and the deceased is declared void ab initio, the “death benefits” under scrutiny would now be awarded to respondent Susan Yee. To reiterate, under Article 40 of the Family Code, for purposes of remarriage, there must first be a prior judicial declaration of the nullity of a

previous marriage, though void, before a party can enter into a second marriage, otherwise, the second marriage would also be void.

Accordingly, the declaration in the instant case of nullity of the previous marriage of the deceased and petitioner Susan Nicdao does not validate the second marriage of the deceased with respondent Susan Yee. The fact remains that their marriage was solemnized without first obtaining a judicial decree declaring the marriage of petitioner Susan Nicdao and the deceased void. Hence, the marriage of respondent Susan Yee and the deceased is, likewise, void ab initio.

One of the effects of the declaration of nullity of marriage is the separation of the property of the spouses according to the applicable property regime.[16] Considering that the two marriages are void ab initio, the applicable property regime would not be absolute community or conjugal partnership of property, but rather, be governed by the provisions of Articles 147 and 148 of the Family Code on “Property Regime of Unions Without Marriage.”

Under Article 148 of the Family Code, which refers to the property regime of bigamous marriages, adulterous relationships, relationships in a state of concubine, relationships where both man and woman are married to other persons, multiple alliances of the same married man,[17] -

“... [O]nly the properties acquired by both of the parties through their actual joint contribution of money, property, or industry shall be owned by them in common in proportion to their respective contributions ...”

In this property regime, the properties acquired by the parties through their actual joint contribution shall belong to the co-ownership. Wages and salaries earned by each party belong to him or her exclusively. Then too, contributions in the form of care of the home, children and household, or spiritual or moral inspiration, are excluded in this regime.[18]

Considering that the marriage of respondent Susan Yee and the deceased is a bigamous marriage, having been solemnized during the subsistence of a previous marriage then presumed to be valid (between petitioner and the deceased), the application of Article 148 is therefore in order.

The disputed P146,000.00 from MBAI [AFP Mutual Benefit Association, Inc.], NAPOLCOM, Commutation, Pag-ibig, and PCCUI, are clearly renumerations, incentives and benefits from governmental agencies earned by the deceased as a police officer. Unless respondent Susan Yee presents proof to the contrary, it could not be said that she contributed money, property or industry in the acquisition of these monetary benefits. Hence, they are not owned in common by respondent and the deceased, but belong to the deceased alone and respondent has no right whatsoever to claim the same. By intestate succession, the said “death benefits” of the deceased shall pass to his legal heirs. And, respondent, not being the legal wife of the deceased is not one of them.

As to the property regime of petitioner Susan Nicdao and the deceased, Article 147 of the Family Code governs. This article applies to unions of parties who are legally capacitated and not barred by any impediment to contract marriage, but










whose marriage is nonetheless void for other reasons, like the absence of a marriage license. Article 147 of the Family Code reads -

Art. 147. When a man and a woman who are capacitated to marry each other, live exclusively with each other as husband and wife without the benefit of marriage or under a void marriage, their wages and salaries shall be owned by them in equal shares and the property acquired by both of them through their work or industry shall be governed by the rules on co-ownership.

In the absence of proof to the contrary, properties acquired while they lived together shall be presumed to have been obtained by their joint efforts, work or industry, and shall be owned by them in equal shares. For purposes of this Article, a party who did not participate in the acquisition by the other party of any property shall be deemed to have contributed jointly in the acquisition thereof if the former’s efforts consisted in the care and maintenance of the family and of the household.

x x x x x x x x x

When only one of the parties to a void marriage is in good faith, the share of the party in bad faith in the co-ownership shall be forfeited in favor of their common children. In case of default of or waiver by any or all of the common children or their descendants, each vacant share shall belong to the respective surviving descendants. In the absence of descendants, such share shall belong to the innocent party. In all cases, the forfeiture shall take place upon termination of the cohabitation.

In contrast to Article 148, under the foregoing article, wages and salaries earned by either party during the cohabitation shall be owned by the parties in equal shares and will be divided equally between them, even if only one party earned the wages and the other did not contribute thereto.[19] Conformably, even if the disputed “death benefits” were earned by the deceased alone as a government employee, Article 147 creates a co-ownership in respect thereto, entitling the petitioner to share one-half thereof. As there is no allegation of bad faith in the present case, both parties of the first marriage are presumed to be in good faith. Thus, one-half of the subject “death benefits” under scrutiny shall go to the petitioner as her share in the property regime, and the other half pertaining to the deceased shall pass by, intestate succession, to his legal heirs, namely, his children with Susan Nicdao.

In affirming the decision of the trial court, the Court of Appeals relied on the case of Vda. de Consuegra v. Government Service Insurance System,[20] where the Court awarded one-half of the retirement benefits of the deceased to the first wife and the other half, to the second wife, holding that:

“... [S]ince the defendant’s first marriage has not been dissolved or declared void the conjugal partnership established by that marriage has not ceased. Nor has the first wife lost or relinquished her status as putative heir of her husband under the new Civil Code, entitled to share in his estate upon his death should she survive him. Consequently, whether as conjugal partner in a still subsisting marriage or as such putative heir she

has an interest in the husband’s share in the property here in dispute....” And with respect to the right of the second wife, this Court observed that although the second marriage can be presumed to be void ab initio as it was celebrated while the first marriage was still subsisting, still there is need for judicial declaration of such nullity. And inasmuch as the conjugal partnership formed by the second marriage was dissolved before judicial declaration of its nullity, “[t]he only just and equitable solution in this case would be to recognize the right of the second wife to her share of one-half in the property acquired by her and her husband, and consider the other half as pertaining to the conjugal partnership of the first marriage.”[21]

It should be stressed, however, that the aforecited decision is premised on the rule which requires a prior and separate judicial declaration of nullity of marriage. This is the reason why in the said case, the Court determined the rights of the parties in accordance with their existing property regime.

In Domingo v. Court of Appeals,[22] however, the Court, construing Article 40 of the Family Code, clarified that a prior and separate declaration of nullity of a marriage is an all important condition precedent only for purposes of remarriage. That is, if a party who is previously married wishes to contract a second marriage, he or she has to obtain first a judicial decree declaring the first marriage void, before he or she could contract said second marriage, otherwise the second marriage would be void. The same rule applies even if the first marriage is patently void because the parties are not free to determine for themselves the validity or invalidity or their marriage. However, for purposes other than to remarry, like for filing a case for collection of sum of money anchored on a marriage claimed to be valid, no prior and separate judicial declaration of nullity is necessary. All that a party has to do is to present evidence, testimonial or documentary, that would prove that the marriage from which his or her rights flow is in fact valid. Thereupon, the court, if material to the determination of the issues before it, will rule on the status of the marriage involved and proceed to determine the rights of the parties in accordance with the applicable laws and jurisprudence. Thus, in Niñal v. Bayadog,[23] the Court explained:

[T]he court may pass upon the validity of marriage even in a suit not directly instituted to question the same so long as it is essential to the determination of the case. This is without prejudice to any issue that may arise in the case. When such need arises, a final judgment of declaration of nullity is necessary even if the purpose is other than to remarry. The clause “on the basis of a final judgment declaring such previous marriage void” in Article 40 of the Family Code connoted that such final judgment need not be obtained only for purpose of remarriage.

WHEREFORE, the petition is GRANTED, and the decision of the Court of Appeals in CA-G.R. CV No. 51263 which affirmed the decision of the Regional Trial Court of Quezon City ordering petitioner to pay respondent the sum of P73,000.00 plus attorney’s fees in the amount of P5,000.00, is REVERSED and SET ASIDE. The complaint in Civil Case No. Q-93-18632, is hereby DISMISSED. No pronouncement as to costs.






SO ORDERED.

Davide, Jr., C.J. (Chairman), Kapunan, and Pardo, JJ., concur.

Puno J., on official leave.

[1] Rollo, pp. 43-47.

[2] Rollo, pp. 49-55.

[3] Exhibit “F”, Records, p. 38.

[4] Ibid.

[5] Exhibit “D-1”, Records, p. 36

[6] Exhibit “E”, Records, p. 37.

[7] Rollo, p. 55.

[8] Rollo, p. 18.

[9] Domingo v. Court of Appeals, 226 SCRA 572, 579 [1993].

[10] Niñal, et al., v. Bayadog, G.R. No. 133778, March 14, 2000.

[11] Domingo v. Court of Appeals, supra.

[12] ART. 53. No marriage shall be solemnized unless all these requisites are complied with:

(1) Legal capacity of the contracting parties;

(2) Their consent, freely given;

(3) Authority of the person performing the marriage; and

(4) A marriage license, except in a marriage of exceptional character.

[13] ART. 58. Save marriages of an exceptional character authorized in Chapter 2 of this Title, but not those under Article 75, no marriage shall be solemnized without a license first being issued by the local civil registrar of the municipality where either contracting party habitually resides.

[14] ART. 80. The following marriages shall be void from the beginning:

x x x x x x x x x

(3) Those solemnized without a marriage license, save marriages of exceptional character;

x x x x x x x x x

[15] 236 SCRA 257, 261-262; citing the Rules of Court, Rule 132, Section 29.

[16] Art. 50. The effects provided for in paragraphs (2), (3), (4) and (5) of Article 43 and in Article 44 shall also apply in proper cases to marriages which are declared void ab initio or annulled by final judgment under Articles 40 and 45.

The final judgment in such cases shall provide for the liquidation, partition, and distribution of the properties of the spouses, the custody and support of the common children, and the delivery of their presumptive legitimes, unless such matters had been adjudicated in previous judicial proceedings.

x x x x x x x x x

Art. 43. The termination of the subsequent marriage referred to in the preceding Article shall produce the following effects:

x x x x x x x x x

(2) The absolute community of property or the conjugal partnership, as the case may be, shall be dissolved and liquidated, but if either spouse contracted said marriage in bad faith, his or her share of the net profits of the community property or conjugal partnership property shall be forfeited in favor of the common children or, if there are none, the children of the guilty spouse by a previous marriage or, in default of children, the innocent spouse;

x x x x x x x x x

Art. 44. If both spouses of the subsequent marriage acted in bad faith, said marriage shall be void ab initio and all donations by reason of marriage and testamentary dispositions made by one in favor of the other are revoked by operation of law.

[17] Sempio-Diy, Handbook on the Family Code of the Philippines, p. 233-234 (1995).

[18] Id., p. 234.

[19] Id., p. 230.

[20] 37 SCRA 316 [1971].

[21] Id., p. 326.

[22] Supra.

[23] Supra.

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