Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No.

L-16439 July 20, 1961

ANTONIO GELUZ, petitioner, vs. THE HON. COURT OF APPEALS and OSCAR LAZO, respondents.

Elections and her pregnancy proved to be inconvenient, she had herself aborted again by the defendant in October 1953. Less than two years later, she again became pregnant. On February 21, 1955, accompanied by her sister Purificacion and the latter's daughter Lucida, she again repaired to the defendant's clinic on Carriedo and P. Gomez streets in Manila, where the three met the defendant and his wife. Nita was again aborted, of a two-month old foetus, in consideration of the sum of fifty pesos, Philippine currency. The plaintiff was at this time in the province of Cagayan, campaigning for his election to the provincial board; he did not know of, nor gave his consent, to the abortion. It is the third and last abortion that constitutes plaintiff's basis in filing this action and award of damages. Upon application of the defendant Geluz we granted certiorari. The Court of Appeals and the trial court predicated the award of damages in the sum of P3,000.06 upon the provisions of the initial paragraph of Article 2206 of the Civil Code of the Philippines. This we believe to be error, for the said article, in fixing a minimum award of P3,000.00 for the death of a person, does not cover the case of an unborn foetus that is not endowed with personality. Under the system of our Civil Code, "la criatura abortiva no alcanza la categoria de persona natural y en consscuencia es un ser no nacido a la vida del Derecho" (Casso-Cervera, "Diccionario de Derecho Privado", Vol. 1, p. 49), being incapable of having rights and obligations. Since an action for pecuniary damages on account of personal injury or death pertains primarily to the one injured, it is easy to see that if no action for such damages could be instituted on behalf of the unborn child on account of the injuries it received, no such right of action could derivatively accrue to its parents or heirs. In fact, even if a cause of action did accrue on behalf of the unborn child, the same was extinguished by its pre-natal death, since no transmission to anyone can take place from on that lacked juridical personality (or juridical capacity as distinguished from capacity to act). It is no answer to invoke the provisional personality of a conceived child (conceptus pro nato habetur) under Article 40 of the Civil Code, because that same article expressly limits such provisional personality by imposing the condition that the child should be subsequently born alive: "provided it be born later with the condition specified in the following article". In the present case, there is no dispute that the child was dead when separated from its mother's womb.

Mariano H. de Joya for petitioner. A.P. Salvador for respondents.

REYES, J.B.L., J.: This petition for certiorari brings up for review question whether the husband of a woman, who voluntarily procured her abortion, could recover damages from physician who caused the same. The litigation was commenced in the Court of First Instance of Manila by respondent Oscar Lazo, the of Nita Villanueva, against petitioner Antonio Geluz, a physician. Convinced of the merits of the complaint upon the evidence adduced, the trial court rendered judgment favor of plaintiff Lazo and against defendant Geluz, ordering the latter to pay P3,000.00 as damages, P700.00 attorney's fees and the costs of the suit. On appeal, Court of Appeals, in a special division of five, sustained the award by a majority vote of three justices as against two, who rendered a separate dissenting opinion. The facts are set forth in the majority opinion as follows: Nita Villanueva came to know the defendant (Antonio Geluz) for the first time in 1948 through her aunt Paula Yambot. In 1950 she became pregnant by her present husband before they were legally married. Desiring to conceal her pregnancy from her parent, and acting on the advice of her aunt, she had herself aborted by the defendant. After her marriage with the plaintiff, she again became pregnant. As she was then employed in the Commission on

The prevailing American jurisprudence is to the same effect; and it is generally held that recovery can not had for the death of an unborn child (Stafford vs. Roadway Transit Co., 70 F. Supp. 555; Dietrich vs. Northampton, 52 Am. Rep. 242; and numerous cases collated in the editorial note, 10 ALR, (2d) 639). This is not to say that the parents are not entitled to collect any damages at all. But such damages must be those inflicted directly upon them, as distinguished from the injury or violation of the rights of the deceased, his right to life and physical integrity. Because the parents can not expect either help, support or services from an unborn child, they would normally be limited to moral damages for the illegal arrest of the normal development of the spes hominis that was the foetus, i.e., on account of distress and anguish attendant to its loss, and the disappointment of their parental expectations (Civ. Code Art. 2217), as well as to exemplary damages, if the circumstances should warrant them (Art. 2230). But in the case before us, both the trial court and the Court of Appeals have not found any basis for an award of moral damages, evidently because the appellee's indifference to the previous abortions of his wife, also caused by the appellant herein, clearly indicates that he was unconcerned with the frustration of his parental hopes and affections. The lower court expressly found, and the majority opinion of the Court of Appeals did not contradict it, that the appellee was aware of the second abortion; and the probabilities are that he was likewise aware of the first. Yet despite the suspicious repetition of the event, he appeared to have taken no steps to investigate or pinpoint the causes thereof, and secure the punishment of the responsible practitioner. Even after learning of the third abortion, the appellee does not seem to have taken interest in the administrative and criminal cases against the appellant. His only concern appears to have been directed at obtaining from the doctor a large money payment, since he sued for P50,000.00 damages and P3,000.00 attorney's fees, an "indemnity" claim that, under the circumstances of record, was clearly exaggerated. The dissenting Justices of the Court of Appeals have aptly remarked that: It seems to us that the normal reaction of a husband who righteously feels outraged by the abortion which his wife has deliberately sought at the hands of a physician would be highminded rather than mercenary; and that his primary concern would be to see to it that the medical profession was purged of an unworthy member rather than turn his wife's indiscretion to personal profit, and with that idea in mind to press either the

administrative or the criminal cases he had filed, or both, instead of abandoning them in favor of a civil action for damages of which not only he, but also his wife, would be the beneficiaries. It is unquestionable that the appellant's act in provoking the abortion of appellee's wife, without medical necessity to warrant it, was a criminal and morally reprehensible act, that can not be too severely condemned; and the consent of the woman or that of her husband does not excuse it. But the immorality or illegality of the act does not justify an award of damage that, under the circumstances on record, have no factual or legal basis. The decision appealed from is reversed, and the complaint ordered dismissed. Without costs. Let a copy of this decision be furnished to the Department of Justice and the Board of Medical Examiners for their information and such investigation and action against the appellee Antonio Geluz as the facts may warrant.

Bengzon, C.J., Padilla, Labrador, Barrera, Paredes, Dizon and Natividad, JJ., concur. Concepcion, J., took no part. De Leon, J., took no part.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 26795 July 31, 1970 CARMEN QUIMIGUING, Suing through her parents, ANTONIO QUIMIGUING and JACOBA CABILIN,plaintiffs-appellants, vs. FELIX ICAO, defendant-appellee.

after hearing arguments, the trial judge sustained defendant's motion and dismissed the complaint. Thereafter, plaintiff moved to amend the complaint to allege that as a result of the intercourse, plaintiff had later given birth to a baby girl; but the court, sustaining defendant's objection, ruled that no amendment was allowable, since the original complaint averred no cause of action. Wherefore, the plaintiff appealed directly to this Court. We find the appealed orders of the court below to be untenable. A conceived child, although as yet unborn, is given by law a provisional personality of its own for all purposes favorable to it, as explicitly provided in Article 40 of the Civil Code of the Philippines. The unborn child, therefore, has a right to support from its progenitors, particularly of the defendantappellee (whose paternity is deemed admitted for the purpose of the motion to dismiss), even if the said child is only "en ventre de sa mere;" just as a conceived child, even if as yet unborn, may receive donations as prescribed by Article 742 of the same Code, and its being ignored by the parent in his testament may result in preterition of a forced heir that annuls the institution of the testamentary heir, even if such child should be born after the death of the testator Article 854, Civil Code). ART. 742. Donations made to conceived and unborn children may be accepted by those persons who would legally represent them if they were already born. ART. 854. The preterition or omission of one, some, or all of the compulsory heirs in the direct line, whether living at the time of the execution of the will or born after the death of the testator, shall annul the institution of heir; but the devises and legacies shall be valid insofar as they are not inofficious. If the omitted compulsory heirs should die before the testator, the institution shall be effectual, without prejudice to the right of 'representation. It is thus clear that the lower court's theory that Article 291 of the Civil Code declaring that support is an obligation of parents and illegitimate children "does not contemplate support to children as yet unborn," violates Article 40 aforesaid, besides imposing a condition that nowhere appears in the text of

Torcuato L. Galon for plaintiffs-appellants. Godardo Jacinto for defendant-appellee.

REYES, J.B.L., J.: Appeal on points of law from an order of the Court of First Instance of Zamboanga del Norte (Judge Onofre Sison Abalos, presiding), in its Civil Case No. 1590, dismissing a complaint for support and damages, and another order denying amendment of the same pleading. The events in the court of origin can be summarized as follows: Appellant, Carmen Quimiguing, assisted by her parents, sued Felix Icao in the court below. In her complaint it was averred that the parties were neighbors in Dapitan City, and had close and confidential relations; that defendant Icao, although married, succeeded in having carnal intercourse with plaintiff several times by force and intimidation, and without her consent; that as a result she became pregnant, despite efforts and drugs supplied by defendant, and plaintiff had to stop studying. Hence, she claimed support at P120.00 per month, damages and attorney's fees. Duly summoned, defendant Icao moved to dismiss for lack of cause of action since the complaint did not allege that the child had been born; and

Article 291. It is true that Article 40 prescribing that "the conceived child shall be considered born for all purposes that are favorable to it" adds further "provided it be born later with the conditions specified in the following article" (i.e., that the foetus be alive at the time it is completely delivered from the mother's womb). This proviso, however, is not a condition precedent to the right of the conceived child; for if it were, the first part of Article 40 would become entirely useless and ineffective. Manresa, in his Commentaries (5th Ed.) to the corresponding Article 29 of the Spanish Civil Code, clearly points this out: Los derechos atribuidos al nasciturus no son simples expectativas, ni aun en el sentido tecnico que la moderna doctrina da a esta figura juridica sino que constituyen un caso de los propiamente Ilamados 'derechos en estado de pendenci'; el nacimiento del sujeto en las condiciones previstas por el art. 30, no determina el nacimiento de aquellos derechos (que ya existian de antemano), sino que se trata de un hecho que tiene efectos declarativos. (1 Manresa, Op. cit., page 271) A second reason for reversing the orders appealed from is that for a married man to force a woman not his wife to yield to his lust (as averred in the original complaint in this case) constitutes a clear violation of the rights of his victim that entitles her to claim compensation for the damage caused. Says Article 21 of the Civil Code of the Philippines: ART. 21. Any person who wilfully causes loss or injury to another in a manner that is contrary to morals, good customs or public policy shall compensate the latter for the damage. The rule of Article 21 is supported by Article 2219 of the same Code: ART 2219. Moral damages may be recovered in the following and analogous cases: (3) Seduction, abduction, rape or other lascivious acts: xxx xxx xxx

(10) Acts and actions referred to in Articles 21, 26, 27, 28 .... Thus, independently of the right to Support of the child she was carrying, plaintiff herself had a cause of action for damages under the terms of the complaint; and the order dismissing it for failure to state a cause of action was doubly in error. WHEREFORE, the orders under appeal are reversed and set aside. Let the case be remanded to the court of origin for further proceedings conformable to this decision. Costs against appellee Felix Icao. So ordered.

Concepcion, C.J., Dizon, Makalintal, Zaldivar, Castro, Fernando, Teehankee, Barredo and Villamor, JJ., concur.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-39110 November 28, 1933

ANTONIA L. DE JESUS, ET AL., plaintiff-appellant, vs. CESAR SYQUIA, defendant-appellant.

his own right. His brother-in-law, Vicente Mendoza is the owner of a barber shop in Tondo, where the defendant was accustomed to go for tonsorial attention. In the month of June Antonia Loanco, a likely unmarried girl of the age of twenty years, was taken on as cashier in this barber shop. Syquia was not long in making her acquaintance and amorous relations resulted, as a consequence of which Antonia was gotten with child and a baby boy was born on June 17, 1931. The defendant was a constant visitor at the home of Antonia in the early months of her pregnancy, and in February, 1931, he wrote and placed in her hands a note directed to the padre who has expected to christen the baby. This note was as follows:

Jose Sotelo for plaintiffs-appellants. Vicente J. Francisco for defendant-appellant.

Saturday, 1:30 p. m. February 14, 1931

Rev. FATHER, The baby due in June is mine and I should like for my name to be given to it. CESAR SYQUIA The occasion for writing this note was that the defendant was on the eve of his departure on a trip to China and Japan; and while he was abroad on this visit he wrote several letters to Antonia showing a paternal interest in the situation that had developed with her, and cautioning her to keep in good condition in order that "junior"(meaning the baby to be, "Syquia, Jr.") might be strong, and promising to return to them soon. The baby arrived at the time expected, and all necessary anticipatory preparations were made by the defendant. To this he employed his friend Dr. Crescenciano Talavera to attend at the birth, and made arrangements for the hospitalization of the mother in Saint Joseph's Hospital of the City of Manila, where she was cared for during confinement. When Antonio was able to leave the hospital, Syquia took her, with her mother and the baby, to a house at No. 551 Camarines Street, Manila, where they lived together for about a year in regular family style, all household expenses, including gas and electric light, being defrayed by Syquia. In course of time, however, the defendant's ardor abated and, when Antonia began to show signs of a second pregnancy the defendant decamped, and he is now married to another woman. A point that should here be noted is that when the time came for christening the child, the

STREET, J.: This action was instituted in the Court of First Instance of Manila by Antonia Loanco de Jesus in her own right and by her mother, Pilar Marquez, as next friend and representative of Ismael and Pacita Loanco, infants, children of the first-named plaintiff, for the purpose of recovering from the defendant, Cesar Syquia, the sum of thirty thousand pesos as damages resulting to the first-named plaintiff from breach of a marriage promise, to compel the defendant to recognize Ismael and Pacita as natural children begotten by him with Antonia, and to pay for the maintenance of the three the amount of five hundred pesos per month, together with costs. Upon hearing the cause, after answer of the defendant, the trial court erred a decree requiring the defendant to recognize Ismael Loanco as his natural child and to pay maintenance for him at the rate of fifty pesos per month, with costs, dismissing the action in other respects. From this judgment both parties appealed, the plaintiffs from so much of the decision as denied part of the relief sought by them, and the defendant from that feature of the decision which required him to recognize Ismael Loanco and to pay for his maintenance. At the time with which we are here concerned, the defendant, Cesar Syquia was of the age of twenty-three years, and an unmarried scion of the prominent family in Manila, being possessed of a considerable property in

defendant, who had charge of the arrangement for this ceremony, caused the name Ismael Loanco to be given to him, instead of Cesar Syquia, Jr., as was at first planned. The first question that is presented in the case is whether the note to the padre, quoted above, in connection with the letters written by the defendant to the mother during pregnancy, proves an acknowledgment of paternity, within the meaning of subsection 1 of article 135 of the Civil Code. Upon this point we have no hesitancy in holding that the acknowledgment thus shown is sufficient. It is a universal rule of jurisprudence that a child, upon being conceived, becomes a bearer of legal rights and capable of being dealt with as a living person. The fact that it is yet unborn is no impediment to the acquisition of rights. The problem here presented of the recognition of unborn child is really not different from that presented in the ordinary case of the recognition of a child already born and bearing a specific name. Only the means and resources of identification are different. Even a bequest to a living child requires oral evidence to connect the particular individual intended with the name used. It is contended however, in the present case that the words of description used in the writings before us are not legally sufficient to indemnify the child now suing as Ismael Loanco. This contention is not, in our opinion, well founded. The words of recognition contained in the note to the padre are not capable of two constructions. They refer to a baby then conceived which was expected to be born in June and which would thereafter be presented for christening. The baby came, and though it was in the end given the name of Ismael Loanco instead of Cesar Syquia, Jr., its identity as the child which the defendant intended to acknowledge is clear. Any doubt that might arise on this point is removed by the letters Exhibit F, G, H, and J. In these letters the defendant makes repeated reference to junior as the baby which Antonia, to whom the letters were addressed, was then carrying in her womb, and the writer urged Antonia to eat with good appetite in order that junior might be vigorous. In the last letter (Exhibit J) written only a few days before the birth of the child, the defendant urged her to take good care of herself and of junior also. It seems to us that the only legal question that can here arise as to the sufficiency of acknowledgment is whether the acknowledgment contemplated in subsection 1 of article 135 of the Civil Code must be made in a single document or may be made in more than one document, of indubitable authenticity, written by the recognizing father. Upon this point we are of the opinion that the recognition can be made out by putting

together the admissions of more than one document, supplementing the admission made in one letter by an admission or admissions made in another. In the case before us the admission of paternity is contained in the note to the padreand the other letters suffice to connect that admission with the child then being carried by Antonia L. de Jesus. There is no requirement in the law that the writing shall be addressed to one, or any particular individual. It is merely required that the writing shall be indubitable. The second question that presents itself in this case is whether the trial court erred in holding that Ismael Loanco had been in the uninterrupted possession of the status of a natural child, justified by the conduct of the father himself, and that as a consequence, the defendant in this case should be compelled to acknowledge the said Ismael Loanco, under No. 2 of article 135 of the Civil Code. The facts already stated are sufficient, in our opinion, to justify the conclusion of the trial court on this point, and we may add here that our conclusion upon the first branch of the case that the defendant had acknowledged this child in writings above referred to must be taken in connection with the facts found by the court upon the second point. It is undeniable that from the birth of this child the defendant supplied a home for it and the mother, in which they lived together with the defendant. This situation continued for about a year, and until Antonia became enciente a second time, when the idea entered the defendant's head of abandoning her. The law fixes no period during which a child must be in the continuous possession of the status of a natural child; and the period in this case was long enough to evince the father's resolution to concede the status. The circumstance that he abandoned the mother and child shortly before this action was started is unimportant. The word "continuous" in subsection 2 of article 135 of the Civil Code does not mean that the concession of status shall continue forever, but only that it shall not be of an intermittent character while it continues. What has been said disposes of the principal feature of the defendant's appeal. With respect to the appeal of the plaintiffs, we are of the opinion that the trial court was right in refusing to give damages to the plaintiff, Antonia Loanco, for supposed breach of promise to marry. Such promise is not satisfactorily proved, and we may add that the action for breach of promise to marry has no standing in the civil law, apart from the right to recover money or property advanced by the plaintiff upon the faith of such promise. This case exhibits none of the features necessary to maintain such an action. Furthermore, there is no proof upon which a judgment could be based requiring the defendant to recognize the second baby, Pacita Loanco.

Finally, we see no necessity or propriety in modifying the judgment as to the amount of the maintenance which the trial court allowed to Ismael Loanco. And in this connection we merely point out that, as conditions change, the Court of First Instance will have jurisdiction to modify the order as to the amount of the pension as circumstances will require. The judgment appealed from is in all respects affirmed, without costs. So ordered.

La criatura que vendra el junio es mio y que yo quisiera mi nombre que se de a la criatura. (Fdo.) CESAR SYQUIA Exhibit F, G, H, and j, which are letters written by the said defendantappellant Cesar Syquia to plaintiff-appellee Antonia L. de Jesus prior to the birth of the child contain the following expressions: Exhibit F, Feb. 18, 1931: "No hagas nada malo; ni manches mi nombre y el de junior tambien no lo manches. A cuerdate muy bien Toni que es por ti y por junior volvere alli pronto. ..." Exhibit G. Feb. 24, 1931: "Toni por favor cuida bien a junior eh? . ..." Exhibit H, March 25, 1931: "Toni, cuida tu bien a junior y cuidate bien, y come tu mucho. ... ."

Malcolm, Abad Santos, Hull, Vickers, and butte, JJ., concur.

Separate Opinions

Exhibit J, June 1, 1931: "Cuidate bien y junior tambien . ..." Article 135, number 1, provides as follows:

VILLA-REAL, J., dissenting: The majority opinion is predicated on two grounds: First, that the defendant-appellant Cesar Syquia has expressly acknowledged his paternity of the child Ismael Loanco in an indubitable writing of his; and secondly, that said child has enjoyed the uninterrupted possession of the status of a natural son of said defendant-appellant Cesar Syquia, justified by his acts, as required by article 135 of the Civil Code. The first conclusion is drawn from Exhibits C, F, G, H, and J. Exhibit C, which is in the handwriting of any signed by the defendantappellant Cesar Syquia, reads as follows:

ART. 135. The father may be compelled to acknowledge his natural child in the following cases: 1. When an indisputable paper written by him, expressly acknowledging his paternity, is in existence. Maresa (Codigo Civil, Vol. 1, page 596, 4th ed.) commenting on said article, says: Con arreglo al articulo que comentamos, no puede haber cuestion acerca de si es posible admitir por otro medio la prueba de la paternidad natural. Entendemos que no, porquel el articulo es terminante y la intencion de la ley mas terminante aun. Se establecio en la base 5.a que "no se admitira investigacion de la paternidad sino en los casos de delito, o cuando exista escrito del padre en el que conste su voluntad indubitada de reconocer por suyo al hijo, deliberadamente expresada con ese fin, o cuando

Sabado, 1.30 p. m. 14 febrero, 1931

Rev. PADRE:

medie posesion de estado", y esto mismo es lo que se ordena en el presente articulo. No puede, pues, prosperar la demanda para obligar al padre al reconocimiento de un hijo natural, aunque solo se limite a pedir alimentos, si no se funda en el reconocimiento expreso del padre hecho por escrito, en la posesion constante de estado de hijo natural o en sentencia firme recaida en causa por de delito violacin, estupro o rapto. El escrito y la sentencia habran de acompaarse a la demandada, y no puede admitirse otra prueba que la conducente a justificar que el escrito es indubitadamente del padre que en el reconozca su paternidad, o la relativa a los actos directos del mismo padre o de su familia, que demuestren la posesion continua de dicho estado. Para la prueba de estos dos hechos podran utilizarse todos los medios que permite la Ley de Enjuiciamiento Civil, debiendo el juez rechazar la que por cualquier otro concepto se dirija a la investigacion de la paternidad. xxx xxx xxx

rule are those established in article 135 of the Civil Code quoted above, the first of which is that the father may be compelled to acknowledge his paternity, "When an indubitable writing of his exists in which he expressly acknowledge his paternity." The writing that is required by said provision must be complete in itself and by itself, and must contain all the statements that are necessary to constitute a full and clear acknowledgment by a father of his paternity of a child, in order that it may serve as a basis for compelling him to acknowledge said child should be afterwards deny his paternity. If several writings put together, each not being complete in itself, should be necessary in order to obtain a full and complete expression of acknowledgment by a father of his paternity of a child, the general prohibition to investigate paternity would be violated. By the mere reading of all said letters, the one addressed to a priest and the others to the herein plaintiff-appellee, Antonia L. de Jesus, the reader cannot ascertain which is the "creature that is coming on June", which the defendant- appellant, Cesar Syquia, says in the said letter addressed to the priest is his, nor who is the "junior" that he recommends to said Antonia L. de Jesus to take good care of, as there is nothing in anyone of said letters from which it may be inferred that Antonia L. de Jesus was enciente at the time, that the "junior" was the being she was carrying in her womb, and that it was the "creature that is coming in June." To connect all these facts it was necessary to prove that Cesar Syquia had had illicit relations with Antonia L. de Jesus, that as a result of such relations the woman became pregnant, and that she gave birth to a boy in June 1931. All this certainly constitutes an investigation of the paternity of Cesar Syquia of said child outside of the documents, which is prohibited by law. Either taken alone therefore, or in connection with Exhibits F, G, H, and J, Exhibit C is insufficient to constitute a "indubitable writing of Cesar Syquia, in which he expressly acknowledges his paternity of the child Ismael Loanco," as required by number 1 of article 135 of the Civil Code. As to the second ground of the decision of the majority, number 2 of article 135 of the Civil Code provides: ART. 135. The father may be compelled to acknowledge his natural child in the following cases: xxx xxx xxx

En cuanto al otro requisito de ser expreso el reconocimiento, tengase presente que no basta hacerlo por incidencia; es indespensable que se consigne en el escrito la voluntad indubitada, clara y terminante del padre, de reconocer por suyo al hijo, deliberadamente expresada con este fin, como se ordena an la base 5.a antes citada, de las aprobadas por la Ley de 11 de mayo de 1888; de suerte que el escrito, aunque contenga otros particulares, como sucede en los testamentos, ha de tener por objecto el reconocimiento deliberado y expreso del hijo natural. No llena, pues, ese objecto la manifestacion que incidentalmente haga el padre de ser hijo natural suyo la persona a quien se refiera, y mucho menos el dar a una persona el titulo y tratamiento de hijo en cartas familiares. Sin embrago, en cada caso decidiran los un modo suficientemente expresivo la paternidad, servira de base para acreditar, en union con otros datos, la posesion contante del estado del hijo a los efectos de este articulo, y con arreglo a su numero 2. Let it first be noted that the law prohibits the investigation of paternity (Borres and Barza vs. Municipality of Panay, 42 Phil., 643; Donado vs. Menendez Donado, 55 Phil., 861). The only exceptions to this

2. When the child has been in the uninterrupted possession of the status of a natural child of the defendant father, justified by the conduct of the father himself or that of his family. The majority decision bases its connection on the second point on Exhibits C, F, G, H, and J and the following facts, as found by the lower court in its decision: Cuando la demandante Antonia L. de Jesus estaba para dar a luz, el demandado Cesar Syquia llamo a su comprovinciano Dr. Crescenciano Talavera, medico que entonces ejercia su profesion en la Ciudad de Manila, para que asistiera a aquella en su parto y a ese efecto llevo a la demandante Antonia L. de Jesus acompaado del Dr. Talavera al Hospital San Jose, de esta Ciudad, donde ella dio a luz el 17 de junio de 1931 asistida por dicho Dr. Talavera, que firmo el certificado de necimiento Exhibit E. Despues del nacimiento del demandante Ismael Loanco, el demandado estuvo viviendo con este y con la demandante Antonio L. de Jesus en la casa No. 551 de la Calle Camarines, Manila, entregando a dicha demandante el dinero para los gastos de casa y el pago del consumo de gas y luz electrica, habiendo firmado el contrato para el suministro del fluido electrico en dicha casa. Exhibit, C, F, G, H, and J, are inadmissible in evidence the purpose of showing that Ismael Loanco has enjoyed the continuous possession of the status of a natural child, because being of prior date to the birth of said child they can not be considered as direct acts of Cesar Syquia showing possession of the status of natural child, as no human being can enjoy such possession until he be born with legal capacity for acquiring civil rights (Infantevs. Figueras, 4 Phil., 738; Granados vs. Leynes, G.R. No. 31224, promulgated September 9, 1929, not reported). It must also be stated that Cesar Syquia refused to allow his name to be given to the child Ismael when it was baptized, so that the name of its mother, Loanco, had to be given to it. The facts which were found by the court below to have been proved by the testimony of the witnesses during the trial, are not sufficient to constitute the uninterrupted possession of the status of Ismael Loanco as natural child of said Cesar Syquia, in the light of the following authorities:

said:

In the case of Buenaventura vs. Urbano (5 Phil., 1, 9), this court

. . . Confining ourselves to the acts proved to have been performed by Don Telesforo, we find that he visited the mother of the plaintiff; that he paid money for her support; that he paid money for the support of the plaintiff; that he hold one witness that the plaintiff was his son; that the plaintiff called him "Papa," and that Don Telesforo answered to this designation; that when the plaintiff visited Don Telesforo he kissed his hand; that Don Telesforo wrote letters to him; that he paid his fees for instruction in school, and secured him a position in a commercial house. xxx xxx xxx

All these facts taken together are not sufficient to show that plaintiff possesses continuously the status of a natural child. They may have a tendency to show that Don Telesforo was the father of the child, but that it is not sufficient. It is not sufficient that the father recognize the child as his. By the express terms of article 135 that recognition must appear either in writing, made by the father, or it must appear in acts which show that the son has possessed continuously the status of a natural child. No recognition by the father of the child which comes short of the requirements of these two paragraphs is sufficient. It must appear that it was the intention of the father to recognize the child as to give him that status, and that the acts performed by him were done with that intention. Manresa (Codigo Civil, Vol. 1, page 602, 4th ed.) in citing some decisions of the Supreme Court of Spain says: En la sentencia de 5 de junio de 1906 declarase que para justificar la posesion de estado de hijo natural se requiere que los actos sean de tal naturaleza que revelen, a la vez que el convencimiento de la paternidad, la voluntad ostensible de tener y tratar al hijo como tal en las relaciones sociales y de la vida, y esto no accidentalmente, sino continuedamente, porque en tal supuesto los actos tiene el mismo valor que el reconocimiento expreso.lawphil.net

En el mismo criterio restrictivo se inspira la de 12 de octubre de 1907, que estima que el hecho de que dos nodrizas criaron a otros tantos nios, sufragando el gasto el demandado, quien ademas iba a casa de la demandante, los besada, los llamaba hijos y encargaba para los mismos el mayor cuidado; el de que subvenia a las necesidades de la madre y de los seis hijos que la nacieron, el primero de los cuales se llamaba como el padre; y el de que los porteros de la casa donde vivio la actora sabian que el finado visitaba a esta, se lamentaba de la mucha familia que tenia y era tenido en el concepto publico como padre de los menores, no son suficientes para fundar la declaracion de paternidad, pues no es legal confundir actos que puedan revelar mas o menos la presuncion o convencimiento en que una persona este de su paternidad con relacion a hijos naturales, con los que demuestren su proposito de poner a estos hijos en la posesion de tal estado. It will thus be seen from the foregoing discussion and authorities that the herein defendant-appellant Cesar Syquia cannot be compelled to acknowledge the child Ismael Loanco as his natural son because there exists not an indubitable writing of his in which he expressly acknowledges his paternity of said child, and because the said child has not enjoyed the uninterrupted possession of the status of a natural child of the said defendant-appellant, justified by his own conduct or that of his family, as required by article 135 of the Civil Code. The decision appealed from should, therefore, be reversed and the complaint dismissed.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-770 April 27, 1948

1. The decision of the Public Service Commission is not in accordance with law. 2. The decision of the Public Service Commission is not reasonably supported by evidence. 3. The Public Service Commission erred in not giving petitioner and the Ice and Cold Storage Industries of the Philippines, Inc., as existing operators, a reasonable opportunity to meet the increased demand. 4. The decision of the Public Service Commission is an unwarranted departure from its announced policy with respect to the establishment and operation of ice plant. (Pp. 1-2, petitioner's brief.) In his argument petitioner contends that it was error on the part of the commission to allow the substitution of the legal representative of the estate of Pedro O. Fragante for the latter as party applicant in the case then pending before the commission, and in subsequently granting to said estate the certificate applied for, which is said to be in contravention of law. If Pedro O. Fragante had not died, there can be no question that he would have had the right to prosecute his application before the commission to its final conclusion. No one would have denied him that right. As declared by the commission in its decision, he had invested in the ice plant in question P 35,000, and from what the commission said regarding his other properties and business, he would certainly have been financially able to maintain and operate said plant had he not died. His transportation business alone was netting him about P1,440 a month. He was a Filipino citizen and continued to be such till his demise. The commission declared in its decision, in view of the evidence before it, that his estate was financially able to maintain and operate the ice plant. The aforesaid right of Pedro O. Fragante to prosecute said application to its conclusion was one which by its nature did not lapse through his death. Hence, it constitutes a part of the assets of his estate, for which a right was property despite the possibility that in the end the commission might have denied application, although under the facts of the case, the commission granted the application in view of the financial ability of the estate to maintain and operate the ice plant. Petitioner, in his memorandum of March 19, 1947, admits (page 3) that the certificate of public convenience once granted "as a rule, should descend to his estate as

ANGEL T. LIMJOCO, petitioner, vs. INTESTATE ESTATE OF PEDRO O. FRAGRANTE, deceased, respondent.

Angel Limjoco, Jr. and Delfin L. Gonzales for petitioner. Bienvenido A. Tan for respondent.
HILADO, J.: Under date of May 21, 1946, the Public Service Commission, through Deputy Commissioner Fidel Ibaez, rendered its decision in case No. 4572 of Pedro O. Fragante, as applicant for a certificate of public convenience to install, maintain and operate an ice plant in San Juan, Rizal, whereby said commission held that the evidence therein showed that the public interest and convenience will be promoted in a proper and suitable manner "by authorizing the operation and maintenance of another ice plant of two and one-half (2-) tons in the municipality of San Juan; that the original applicant Pedro O. Fragante was a Filipino Citizen at the time of his death; and that his intestate estate is financially capable of maintaining the proposed service". The commission, therefore, overruled the opposition filed in the case and ordered "that under the provisions of section 15 of Commonwealth Act No. 146, as amended a certificate of public convenience be issued to the Intestate Estate of the deceased Pedro Fragante, authorizing said Intestate Estate through its Special or Judicial Administrator, appointed by the proper court of competent jurisdiction, to maintain and operate an ice plant with a daily productive capacity of two and one-half (2-1/2) tons in the Municipality of San Juan and to sell the ice produced from said plant in the said Municipality of San Juan and in the Municipality of Mandaluyong, Rizal, and in Quezon City", subject to the conditions therein set forth in detail (petitioner's brief, pp. 33-34). Petitioner makes four assignments of error in his brief as follows:

an asset". Such certificate would certainly be property, and the right to acquire such a certificate, by complying with the requisites of the law, belonged to the decedent in his lifetime, and survived to his estate and judicial administrator after his death. If Pedro O. Fragrante had in his lifetime secured an option to buy a piece of land and during the life of the option he died, if the option had been given him in the ordinary course of business and not out of special consideration for his person, there would be no doubt that said option and the right to exercise it would have survived to his estate and legal representatives. In such a case there would also be the possibility of failure to acquire the property should he or his estate or legal representative fail to comply with the conditions of the option. In the case at bar Pedro O. Fragrante's undoubted right to apply for and acquire the desired certificate of public convenience the evidence established that the public needed the ice plant was under the law conditioned only upon the requisite citizenship and economic ability to maintain and operate the service. Of course, such right to acquire or obtain such certificate of public convenience was subject to failure to secure its objective through nonfulfillment of the legal conditions, but the situation here is no different from the legal standpoint from that of the option in the illustration just given. Rule 88, section 2, provides that the executor or administrator may bring or defend actions, among other cases, for the protection of the property or rights of the deceased which survive, and it says that such actions may be brought or defended "in the right of the deceased". Rule 82, section 1, paragraph (a), mentions among the duties of the executor or administrator, the making of an inventory of all goods, chattels, rights, credits, and estate of the deceased which shall come to his possession or knowledge, or to the possession of any other person for him. In his commentaries on the Rules of Court (Volume II, 2nd ed., pages 366, 367) the present chief Justice of this Court draws the following conclusion from the decisions cited by him: Therefore, unless otherwise expressly provided by law, any action affecting the property or rights (emphasis supplied) of a deceased person which may be brought by or against him if he were alive, may likewise be instituted and prosecuted by or against the administrator, unless the action is for recovery of money, debt or

interest thereon, or unless, by its very nature, it cannot survive, because death extinguishes the right . . . . It is true that a proceeding upon the application for a certificate of public convenience before the Public Service Commission is not an "action". But the foregoing provisions and citations go to prove that the decedent's rights which by their nature are not extinguished by death go to make up a part and parcel of the assets of his estate which, being placed under the control and management of the executor or administrator, can not be exercised but by him in representation of the estate for the benefit of the creditors, devisees or legatees, if any, and the heirs of the decedent. And if the right involved happens to consist in the prosecution of an unfinished proceeding upon an application for a certificate of public convenience of the deceased before the Public Service Commission, it is but logical that the legal representative be empowered and entitled in behalf of the estate to make the right effective in that proceeding. Manresa (Vol. III, 6th ed., p. 11) says that No. 10 of article 334 and article 336 of the Civil Code, respectively, consider as immovable and movable things rights which are not material. The same eminent commentator says in the cited volume (p. 45) that article 336 of the Civil Code has been deficiently drafted in that it is not sufficiently expressive of all incorporeal rights which are also property for juridical purposes. Corpus Juris (Vol. 50, p. 737) states that in the broad sense of the term, property includes, among other things, "an option", and "the certificate of the railroad commission permitting the operation of a bus line", and on page 748 of the same volume we read: However, these terms (real property, as estate or interest) have also been declared to include every species of title, inchoate or complete, and embrace rights which lie in contract, whether executory or executed. (Emphasis supplied.) Another important question raised by petitioner is whether the estate of Pedro O. Fragrante is a "person" within the meaning of the Public Service Act. Words and Phrases, First Series, (Vol. 6, p, 5325), states the following doctrine in the jurisdiction of the State of Indiana:

As the estate of the decedent is in law regarded as a person, a forgery committed after the death of the man whose name purports to be signed to the instrument may be prosecuted as with the intent to defraud the estate. Billings vs. State, 107 Ind., 54, 55, 6 N. E. 914, 7 N. E. 763, 57 Am. Rep. 77. The Supreme Court of Indiana in the decision cited above had before it a case of forgery committed after the death of one Morgan for the purpose of defrauding his estate. The objection was urged that the information did not aver that the forgery was committed with the intent to defraud any person. The Court, per Elliott, J., disposed of this objection as follows: . . . The reason advanced in support of this proposition is that the law does not regard the estate of a decedent as a person. This intention (contention) cannot prevail. The estate of the decedent is a person in legal contemplation. "The word "person" says Mr. Abbot, "in its legal signification, is a generic term, and includes artificial as well as natural persons," 2 Abb. Dict. 271; Douglas vs. Pacific, etc. Co., 4 Cal. 304; Planters', etc., Bank vs. Andrews, 8 Port. (Ala.) 404. It said in another work that 'persons are of two kinds: natural and artificial. A natural person is a human being. Artificial persons include (1) a collection or succession of natural persons forming a corporation; (2) a collection of property to which the law attributes the capacity of having rights and duties. The latter class of artificial persons is recognized only to a limited extent in our law. "Examples are the estate of a bankrupt or deceased person." 2 Rapalje & L. Law Dict. 954. Our own cases inferentially recognize the correctness of the definition given by the authors from whom we have quoted, for they declare that it is sufficient, in pleading a claim against a decedent's estate, to designate the defendant as the estate of the deceased person, naming him. Ginn vs. Collins, 43 Ind. 271. Unless we accept this definition as correct, there would be a failure of justice in cases where, as here, the forgery is committed after the death of a person whose name is forged; and this is a result to be avoided if it can be done consistent with principle. We perceive no difficulty in avoiding such a result; for, to our minds, it seems reasonable that the estate of a decedent should be regarded as an artificial person. It is the creation of law for the purpose of enabling a disposition of the assets to be properly made, and, although natural persons as heirs, devises, or creditors, have an interest in the property, the artificial creature is a distinct legal entity. The interest which natural

persons have in it is not complete until there has been a due administration; and one who forges the name of the decedent to an instrument purporting to be a promissory note must be regarded as having intended to defraud the estate of the decedent, and not the natural persons having diverse interests in it, since ha cannot be presumed to have known who those persons were, or what was the nature of their respective interest. The fraudulent intent is against the artificial person, the estate and not the natural persons who have direct or contingent interest in it. (107 Ind. 54, 55, 6 N.E. 914-915.) In the instant case there would also be a failure of justice unless the estate of Pedro O. Fragrante is considered a "person", for quashing of the proceedings for no other reason than his death would entail prejudicial results to his investment amounting to P35,000.00 as found by the commission, not counting the expenses and disbursements which the proceeding can be presumed to have occasioned him during his lifetime, let alone those defrayed by the estate thereafter. In this jurisdiction there are ample precedents to show that the estate of a deceased person is also considered as having legal personality independent of their heirs. Among the most recent cases may be mentioned that of "Estate of Mota vs. Concepcion, 56 Phil., 712, 717, wherein the principal plaintiff was the estate of the deceased Lazaro Mota, and this Court gave judgment in favor of said estate along with the other plaintiffs in these words: . . . the judgment appealed from must be affirmed so far as it holds that defendants Concepcion and Whitaker are indebted to he plaintiffs in the amount of P245,804.69 . . . . Under the regime of the Civil Code and before the enactment of the Code of Civil Procedure, the heirs of a deceased person were considered in contemplation of law as the continuation of his personality by virtue of the provision of article 661 of the first Code that the heirs succeed to all the rights and obligations of the decedent by the mere fact of his death. It was so held by this Court in Barrios vs. Dolor, 2 Phil., 44, 46. However, after the enactment of the Code of Civil Procedure, article 661 of the Civil Code was abrogated, as held in Suiliong & Co. vs. Chio-Taysan, 12 Phil., 13, 22. In that case, as well as in many others decided by this Court after the innovations introduced by the Code of Civil Procedure in the matter of estates of deceased persons, it has been the constant doctrine that it is the estate or the mass of property, rights and assets left by the decedent,

instead of the heirs directly, that becomes vested and charged with his rights and obligations which survive after his demise. The heirs were formerly considered as the continuation of the decedent's personality simply by legal fiction, for they might not have been flesh and blood the reason was one in the nature of a legal exigency derived from the principle that the heirs succeeded to the rights and obligations of the decedent. Under the present legal system, such rights and obligations as survive after death have to be exercised and fulfilled only by the estate of the deceased. And if the same legal fiction were not indulged, there would be no juridical basis for the estate, represented by the executor or administrator, to exercise those rights and to fulfill those obligations of the deceased. The reason and purpose for indulging the fiction is identical and the same in both cases. This is why according to the Supreme Court of Indiana in Billings vs. State, supra, citing 2 Rapalje & L. Dictionary, 954, among the artificial persons recognized by law figures "a collection of property to which the law attributes the capacity of having rights and duties", as for instance, the estate of a bankrupt or deceased person. Petitioner raises the decisive question of whether or not the estate of Pedro O. Fragrante can be considered a "citizen of the Philippines" within the meaning of section 16 of the Public Service Act, as amended, particularly the proviso thereof expressly and categorically limiting the power of the commission to issue certificates of public convenience or certificates of public convenience and necessity "only to citizens of the Philippines or of the United States or to corporations, copartnerships, associations, or joint-stock companies constituted and organized under the laws of the Philippines", and the further proviso that sixty per centum of the stock or paid-up capital of such entities must belong entirely to citizens of the Philippines or of the United States. Within the Philosophy of the present legal system, the underlying reason for the legal fiction by which, for certain purposes, the estate of the deceased person is considered a "person" is the avoidance of injustice or prejudice resulting from the impossibility of exercising such legal rights and fulfilling such legal obligations of the decedent as survived after his death unless the fiction is indulged. Substantially the same reason is assigned to support the same rule in the jurisdiction of the State of Indiana, as announced in Billings vs. State, supra, when the Supreme Court of said State said:

. . . It seems reasonable that the estate of a decedent should be regarded as an artificial person. it is the creation of law for the purpose of enabling a disposition of the assets to be properly made .... Within the framework and principles of the constitution itself, to cite just one example, under the bill of rights it seems clear that while the civil rights guaranteed therein in the majority of cases relate to natural persons, the term "person" used in section 1 (1) and (2) must be deemed to include artificial or juridical persons, for otherwise these latter would be without the constitutional guarantee against being deprived of property without due process of law, or the immunity from unreasonable searches and seizures. We take it that it was the intendment of the framers to include artificial or juridical, no less than natural, persons in these constitutional immunities and in others of similar nature. Among these artificial or juridical persons figure estates of deceased persons. Hence, we hold that within the framework of the Constitution, the estate of Pedro O. Fragrante should be considered an artificial or juridical person for the purposes of the settlement and distribution of his estate which, of course, include the exercise during the judicial administration thereof of those rights and the fulfillment of those obligations of his which survived after his death. One of those rights was the one involved in his pending application before the Public Service Commission in the instant case, consisting in the prosecution of said application to its final conclusion. As stated above, an injustice would ensue from the opposite course. How about the point of citizenship? If by legal fiction his personality is considered extended so that any debts or obligations left by, and surviving, him may be paid, and any surviving rights may be exercised for the benefit of his creditors and heirs, respectively, we find no sound and cogent reason for denying the application of the same fiction to his citizenship, and for not considering it as likewise extended for the purposes of the aforesaid unfinished proceeding before the Public Service Commission. The outcome of said proceeding, if successful, would in the end inure to the benefit of the same creditors and the heirs. Even in that event petitioner could not allege any prejudice in the legal sense, any more than he could have done if Fragrante had lived longer and obtained the desired certificate. The fiction of such extension of his citizenship is grounded upon the same principle, and motivated by the same reason, as the fiction of the extension of personality. The fiction is made necessary to avoid the injustice of subjecting his estate, creditors and heirs, solely by reason of his death to the loss of the investment amounting to P35,000, which he has already made in the ice

plant, not counting the other expenses occasioned by the instant proceeding, from the Public Service Commission of this Court. We can perceive no valid reason for holding that within the intent of the constitution (Article IV), its provisions on Philippine citizenship exclude the legal principle of extension above adverted to. If for reasons already stated our law indulges the fiction of extension of personality, if for such reasons the estate of Pedro O. Fragrante should be considered an artificial or juridical person herein, we can find no justification for refusing to declare a like fiction as to the extension of his citizenship for the purposes of this proceeding. Pedro O. Fragrante was a Filipino citizen, and as such, if he had lived, in view of the evidence of record, he would have obtained from the commission the certificate for which he was applying. The situation has suffered but one change, and that is, his death. His estate was that of a Filipino citizen. And its economic ability to appropriately and adequately operate and maintain the service of an ice plant was the same that it received from the decedent himself. In the absence of a contrary showing, which does not exist here, his heirs may be assumed to be also Filipino citizens; and if they are not, there is the simple expedient of revoking the certificate or enjoining them from inheriting it. Upon the whole, we are of the opinion that for the purposes of the prosecution of said case No. 4572 of the Public Service Commission to its final conclusion, both the personality and citizenship of Pedro O. Fragrante must be deemed extended, within the meaning and intent of the Public Service Act, as amended, in harmony with the constitution: it is so adjudged and decreed. Decision affirmed, without costs. So ordered.

PERFECTO, J., dissenting: Commonwealth Act No. 146 reserves to Filipino citizens the right to obtain a certificate of public convenience to operate an ice plant in San Juan, Rizal. The limitation is in accordance with section 8 of Article XIV of the Constitution which provides No franchise, certificate, or any other form of authorization for the operation of a public utility shall be granted except to citizens of the Philippines or to corporations or other entities organized under the laws of the Philippines, sixty per centum of the capital of which is owned by citizens of the Philippines, nor such franchise, certificate or authorization be exclusive in character or for a longer period than fifty years. No franchise granted to any individual, firm or corporation, except under the condition that it shall be subject to amendment, alteration, or repeal by Congress when the public interest so requires. The main question in this case is whether the estate of Pedro O. Fragrante fulfills the citizenship requirement. To our mind, the question can be restated by asking whether the heirs of Pedro O. Fragrante fulfill the citizenship requirement of the law. The estate is an abstract entity. As such, its legal value depends on what it represents. It is a device by which the law gives a kind of personality and unity to undetermined tangible persons, the heirs. They inherit and replace the deceased at the very moment of his death. As there are procedural requisites for their identification and determination that need time for their compliance, a legal fiction has been devised to represent them. That legal fiction is the estate, a liquid condition in process of solidification. The estate, therefore, has only a representative value. What the law calls estate is, a matter of fact, intended to designate the heirs of the deceased. The question, therefore, in this case, boils down to the citizenship of the heirs of Fragrante. There is nothing in the record to show conclusively the citizenship of the heirs of Fragrante. If they are Filipino citizens, the action taken by the Public Service Commission should be affirmed. If they are not, it should be reversed.

Moran, C.J., Pablo, Bengzon, Briones, Padilla and Tuason, JJ., concur. Paras, J., I hereby certify that Mr. Justice Feria voted with the majority.

Separate Opinions

Petitioner alleges that the estate is just a front or dummy for aliens to go around the citizenship constitutional provision. It is alleged that Gaw Suy, the special administrator of the estate, is an alien. We are of the opinion that the citizenship of the heirs of Fragrante should be determined by the Commission upon evidence that the party should be present. It should also determine the dummy question raised by the petitioner. We are of opinion and so vote that the decision of the Public Service Commission of May 21, 1946, be set aside and that the Commission be instructed to receive evidence of the above factual questions and render a new decision accordingly.

Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. L-27956 April 30, 1976 DIONISIO DUMLAO, in his own behalf and in his capacity as Administrator of the Testate Estate of the late Pedro Oria; FAUSTA DUMLAO, AMADO DUMLAO, and BENJAMIN DUMLAO, plaintiffsappellants, vs. QUALITY PLASTIC PRODUCTS, INC., defendant-appellee.

under the bond. Oria's land, which was covered by Original Certificate of Title No. 28732 and has an area of nine and six-tenths hectares, was levied upon and sold by the sheriff at public auction on September 24, 1962. The sale was confirmed by the lower court in its order of November 20, 1962. It turned out that Oria died on April 23, 1959 or long before June 13, 1960 when the action was filed. Oria's death was not known to Quality Plastic Products, Inc. Nor were the representatives of Quality Plastic Products, Inc. aware that in the same Tayug court Special Proceeding No. T-212, Testate Estate of the deceased Pedro Oria, was pending. The summons and copies of the complaint for the five defendants in Civil Case No. T-662 had been personally served on June 24, 1960 by a deputy sheriff on Soliven, the principal in the bond, who acknowledged such service by signing on the back of the original summons in his own behalf and again signing for his co-defendants. On March 1, 1963 Dionisio, Fausta, Amado and Benjamin, all surnamed Dumlao and all testamentary heirs in Oria's duly probated will, sued Quality Plastic Products, Inc., also in the Tayug court for the annulment of the judgment against Oria and the execution against his land. (Dionisio Dumlao also sued in his capacity as administrator of Oria's testate estate). The ground for annulment was lack of jurisdiction over the person of the deceased Oria (Civil Case No. T- 873). It was only when Quality Plastic Products, Inc. received the summons in Civil Case No. T-873 that it learned that Oria was already dead at the time the prior case, Civil Case No. T-662, was filed. Quality Plastic Products, Inc. in its answer alleged that Oria's heirs were aware of the suit against Soliven and his sureties and that the said heirs were estopped to question the court's jurisdiction over Oria. After hearing the lower court held that it acquired jurisdiction over Soliven and the other defendants in Civil Case No. T-662 by reason of their voluntary appearance. It reasoned out that Soliven acted in bad faith because he did not apprise the court that Oria was dead. It specifically ruled that "it had acquired jurisdiction over the person" of Oria and that the judgment was valid as to him. From that decision the plaintiffs appealed.

Castillo & Castillo for appellants. Eugenio T. Estavillo for appellee.

AQUINO, J.:p On February 28, 1962 the Court of First Instance of Pangasinan in Civil Case No. T-662 rendered a judgment ordering defendants Vicente Soliven, Pedro Oria, Santiago Laurencio, Marcelino Sumalbag and Juana Darang to pay solidarity Quality Plastic Products, Inc. the sum of P3,667.03 plus the legal rate of interest from November, 1958. The lower court directed that in case the defendants failed to pay the said amount before its decision became final, then Quality Plastic Products, Inc. "is hereby authorized to foreclose the bond, Exhibit A, in accordance with law, for the satisfaction of the judgment". (Under that bond the four sureties bound themselves to answer solidarity for the obligations of the principal, Vicente Soliven and certain real properties of the sureties were "given as security for" their undertaking). Upon defendants' failure to pay the amount of the judgment and after the decision had become final, the lower court, on motion of Quality Plastic Products, Inc., ordered the "foreclosure" of the surety bond and the sale at public auction of the land of Pedro Oria which he had given as security

The four assignments of error of appellants Dumlao may be boiled down to the issue as to the validity of the lower court's judgment against the deceased Pedro Oria who, being already in the other world, was never served with summons. There is no difficulty in resolving that issue. Since no jurisdiction was acquired over Oria, the judgment against him is a patent nullity (Ang Lam vs. Rosillosa and Santiago, 86 Phil. 447; Asuncion vs. Nieto, 4 Phil. 97; Gorostiaga vs. Sarte, 68 Phil. 4). As far as Oria was concerned, the lower court's judgment against him in Civil Case No. T-662 is void for lack of jurisdiction over his person. He was not, and he could not have been, validly served with summons. He had no more civil personality. His juridical capacity, which is the fitness to be the subject of legal relations, was lost through death. (Arts. 37 and 42, Civil Code). The lower court erred in ruling that since Soliven's counsel also appeared as counsel for Oria, there was a voluntary appearance which enabled the court to acquire jurisdiction over Oria, as contemplated in section 23, Rule 14 of the Revised Rules of Court. Soliven's counsel could not have validly appeared for a dead co-defendant. Estoppel has no application to this case. But from the fact that appellants Dumlao had to sue Quality Plastic Products, Inc. in order to annul the judgment against Oria, it does not follow that they are entitled to claim attorney's fees against that corporation. The parties herein agreed in their stipulation of facts that Quality Plastic Products, Inc. was unaware of Oria's death. Appellants Dumlao in effect conceded that the appellee acted in good faith in joining Oria as a co-defendant. WHEREFORE, the lower court's decision is reversed and set aside. Its judgment in Civil Case No. T-662 against Pedro Oria is declared void for lack of jurisdiction. The execution sale of Oria's land covered by OCT No. 28732 is also void. No costs. SO ORDERED.

Fernando, Barredo, Antonio and Concepcion, Jr., JJ., concur.

Republic of the Philippines SUPREME COURT Manila EN BANC

injunction (docketed as G.R. No. 85140) seeking to enjoin respondent Judge from proceeding with the Habeas Corpus case (Sp. Proc. No. 88- 55, RTC, Branch 20, Cagayan de Oro City), * the respondent Sheriff from enforcing and implementing the writ and orders of the respondent Judge dated 28, 29, and 30 September 1988, and to declare said writ and orders as null and void. In a resolution issued on 11 October 1988, this Court required comment from the respondents on the petition but denied the application for a temporary restraining order. The records disclose the following: Unaware of the death on 28 August 1988 of (Vitaliana Vargas Vitaliana for brevity), her full blood brothers and sisters, herein private respondents (Vargases', for brevity) filed on 27 September 1988, a petition for habeas corpus before the RTC of Misamis Oriental (Branch 20, Cagayan de Oro City) alleging that Vitaliana was forcibly taken from her residence sometime in 1987 and confined by herein petitioner in his palacial residence in Jasaan, Misamis Oriental. Despite her desire to escape, Vitaliana was allegedly deprived of her liberty without any legal authority. At the time the petition was filed, it was alleged that Vitaliana was 25 years of age, single, and living with petitioner Tomas Eugenio. The respondent court in an order dated 28 September 1988 issued the writ of habeas corpus, but the writ was returned unsatisfied. Petitioner refused to surrender the body of Vitaliana (who had died on 28 August 1988) to the respondent sheriff, reasoning that a corpse cannot be the subject of habeas corpus proceedings; besides, according to petitioner, he had already obtained a burial permit from the Undersecretary of the Department of Health, authorizing the burial at the palace quadrangle of the Philippine Benevolent Christian Missionary, Inc. (PBCM), a registered religious sect, of which he (petitioner) is the Supreme President and Founder. Petitioner also alleged that Vitaliana died of heart failure due to toxemia of pregnancy in his residence on 28 August 1988. As her common law husband, petitioner claimed legal custody of her body. These reasons were incorporated in an explanation filed before the respondent court. Two (2) orders dated 29 and 30 September 1988 were then issued by respondent court, directing delivery of the deceased's body to a funeral parlor in Cagayan de Oro City and its autopsy.

G.R. No. 85140 May 17, 1990 TOMAS EUGENIO, SR., petitioner, vs. HON. ALEJANDRO M. VELEZ, Presiding Judge, Regional Trial Court, Branch 20, Cagayan de Oro City, DEPUTY SHERIFF JOHNSON TAN, JR., Deputy Sheriff of Branch 20, Regional Trial Court, Cagayan de Oro City, and the Private Respondents, the petitioners in Sp. Proc. No. 88-55, for "Habeas Corpus", namely: CRISANTA VARGASSANCHEZ, SANTOS and NARCISA VARGAS-BENTULAN, respondents. G.R. No. 86470 May 17, 1990. TOMAS EUGENIO, petitioner-appellant, vs. HON. ALEJANDRO M. VELEZ, Presiding Judge, Regional Trial Court, Branch 20, Cagayan de Oro City, CRISANTA VARGAS-SANCHEZ, FELIX VARGAS, ERNESTO VARGAS, NATIVIDAD VARGAS-CAGAPE, NENITA VARGAS-CADENAS, LUDIVINA VARGAS-DE LOS SANTOS and NARCISA VARGAS-BENTULAN, respondents-appellees.

Maximo G. Rodriguez for petitioner. Erasmo B. Damasing and Oliver Asis Improso for respondents.

PADILLA, J.: On 5 October 1988, petitioner came to this Court with a petition for certiorari and prohibition with application for restraining order and/or

Petitioner (as respondent in the habeas corpus proceedings) filed an urgent motion to dismiss the petition therein, claiming lack of jurisdiction of the court over the nature of the action under sec. 1(b) of Rule 16 in relation to sec. 2, Rule 72 of the Rules of Court. 1 A special proceeding for habeas corpus, petitioner argued, is not applicable to a dead person but extends only to all cases of illegal confinement or detention of a live person. Before resolving the motion to dismiss, private respondents (as petitioners below) were granted leave to amend their petition. 2 Claiming to have knowledge of the death of Vitaliana only on 28 September 1988 (or after the filing of the habeas corpus petition), private respondents (Vargases') alleged that petitioner Tomas Eugenia who is not in any way related to Vitaliana was wrongfully interfering with their (Vargases') duty to bury her. Invoking Arts. 305 and 308 of the Civil Code, 3 the Vargases contended that, as the next of kin in the Philippines, they are the legal custodians of the dead body of their sister Vitaliana. An exchange of pleadings followed. The motion to dismiss was finally submitted for resolution on 21 October 1988. In the absence of a restraining order from this Court, proceedings continued before the respondent court; the body was placed in a coffin, transferred to the Greenhills Memorial Homes in Cagayan de Oro City, viewed by the presiding Judge of respondent court, and examined by a duly authorized government pathologist. 4 Denying the motion to dismiss filed by petitioner, the court a quo held in an order, 5 dated 17 November 1988, that: It should be noted from the original petition, to the first amended petition, up to the second amended petition that the ultimate facts show that if the person of Vitaliana Vargas turns out to be dead then this Court is being prayed to declare the petitioners as the persons entitled to the custody, interment and/or burial of the body of said deceased. The Court, considering the circumstance that Vitaliana Vargas was already dead on August 28, 1988 but only revealed to the Court on September 29, 1988 by respondent's counsel, did not lose jurisdiction over the nature and subject matter of this case because it may entertain this case thru the allegations in the body of the petition on the determination as to who is entitled to the custody of the dead body of the late Vitaliana Vargas as

well as the burial or interment thereof, for the reason that under the provisions of Sec. 19 of Batas Pambansa Blg. 129, which reads as follows: Sec. 19. Jurisdiction in civil cases. Regional Trial Courts shall exercise exclusive original jurisdiction: (1) In all civil actions in which the subject of the litigation is incapable of pecuniary estimation; xxx xxx xxx (5) In all actions involving the contract of marriage and marital relations; (6) In all cases not within the exclusive jurisdiction of any court, tribunal, person or body exercising judicial or quasijudicial functions: xxx xxx xxx it so provides that the Regional Trial Court has exclusive original jurisdiction to try this case. The authority to try the issue of custody and burial of a dead person is within the lawful jurisdiction of this Court because of Batas Pambansa Blg. 129 and because of the allegations of the pleadings in this case, which are enumerated in Sec. 19, pars. 1, 5 and 6 of Batas Pambansa Blg. 129. Thereafter, the court a quo proceeded as in or civil cases and, in due course, rendered a decision on 17 January 1989, 6 resolving the main issue of whether or not said court acquired jurisdiction over the case by treating it as an action for custody of a dead body, without the petitioners having to file a separate civil action for such relief, and without the Court first dismissing the original petition for habeas corpus. Citing Sections 19 and 20 of Batas Pambansa Blg. 129 (the Judiciary Reorganization Act of 1981), 7 Sections 5 and 6 of Rule 135 of the Rules of

Court 8 Articles 305 and 308 in relation to Article 294 of the Civil Code and Section 1104 of the Revised Administrative Code, 9 the decision stated: . . . . By a mere reading of the petition the court observed that the allegations in the original petition as well as in the two amended petitions show that Vitaliana Vargas has been restrained of her liberty and if she were dead then relief was prayed for the custody and burial of said dead person. The amendments to the petition were but elaborations but the ultimate facts remained the same, hence, this court strongly finds that this court has ample jurisdiction to entertain and sit on this case as an action for custody and burial of the dead body because the body of the petition controls and is binding and since this case was raffled to this court to the exclusion of all other courts, it is the primary duty of this court to decide and dispose of this case. . . . . 10 Satisfied with its jurisdiction, the respondent court then proceeded to the matter of rightful custody over the dead body, (for purposes of burial thereof). The order of preference to give support under Art. 294 was used as the basis of the award. Since there was no surviving spouse, ascendants or descendants, the brothers and sisters were preferred over petitioner who was merely a common law spouse, the latter being himself legally married to another woman. 11 On 23 January 1989, a new petition for review with application for a temporary restraining order and/or preliminary injunction was filed with this Court (G.R. No. 86470). Raised therein were pure questions of law, basically Identical to those raised in the earlier petition (G.R. No. 85140); hence, the consolidation of both cases. 12 On 7 February 1989, petitioner filed an urgent motion for the issuance of an injunction to maintain status quo pending appeal, which this Court denied in a resolution dated 23 February 1989 stating that "Tomas Eugenio has so far failed to sufficiently establish a clear legal right to the custody of the dead body of Vitaliana Vargas, which now needs a decent burial." The petitions were then submitted for decision without further pleadings. Between the two (2) consolidated petitions, the following issues are raised:

1. propriety of a habeas corpus proceeding under Rule 102 of the Rules of Court to recover custody of the dead body of a 25 year old female, single, whose nearest surviving claimants are full blood brothers and sisters and a common law husband. 2. jurisdiction of the RTC over such proceedings and/or its authority to treat the action as one for custody/possession/authority to bury the deceased/recovery of the dead. 3. interpretation of par. 1, Art. 294 of the Civil Code (Art. 199 of the new Family Code) which states: Art. 294. The claim for support, when proper and two or more persons are obliged to give it, shall be made in the following order: (1) Fro m the spo use; xxx xxx xxx Section 19, Batas Pambansa Blg. 129 provides for the exclusive original jurisdiction of the Regional Trial Courts over civil cases. Under Sec. 2, Rule 102 of the Rules of Court, the writ of habeas corpus may be granted by a Court of First Instance (now Regional Trial Court). It is an elementary rule of procedure that what controls is not the caption of the complaint or petition; but the allegations therein determine the nature of the action, and even without the prayer for a specific remedy, proper relief may nevertheless be granted by the court if the facts alleged in the complaint and the evidence introduced so warrant. 13 When the petition for habeas corpus was filed before the court a quo, it was not certain whether Vitaliana was dead or alive. While habeas corpus is a

writ of right, it will not issue as a matter of course or as a mere perfimetory operation on the filing of the petition. Judicial discretion is exercised in its issuance, and such facts must be made to appear to the judge to whom the petition is presented as, in his judgment, prima facie entitle the petitioner to the writ. 14 While the court may refuse to grant the writ if the petition is insufficient in form and substance, the writ should issue if the petition complies with the legal requirements and its averments make a prima facie case for relief. However, a judge who is asked to issue a writ of habeas corpus need not be very critical in looking into the petition for very clear grounds for the exercise of this jurisdiction. The latter's power to make full inquiry into the cause of commitment or detention will enable him to correct any errors or defects in the petition. 15 In Macazo and Nunez vs. Nunez, 16 the Court frowned upon the dismissal of a habeas corpus petition filed by a brother to obtain custody of a minor sister, stating: All these circumstances notwithstanding, we believe that the case should not have been dismissed. The court below should not have overlooked that by dismissing the petition, it was virtually sanctioning the continuance of an adulterous and scandalous relation between the minor and her married employer, respondent Benildo Nunez against all principles of law and morality. It is no excuse that the minor has expressed preference for remaining with said respondent, because the minor may not chose to continue an illicit relation that morals and law repudiate. xxx xxx xxx The minor's welfare being the paramount consideration, the court below should not allow the technicality, that Teofilo Macazo was not originally made a party, to stand in the way of its giving the child full protection. Even in a habeas corpus proceeding the court had power to award temporary custody to the petitioner herein, or some other suitable person, after summoning and hearing all parties concerned. What matters is that the immoral situation disclosed by the records be not allowed to continue. 17

After the fact of Vitaliana's death was made known to the petitioners in the habeas corpus proceedings,amendment of the petition for habeas corpus, not dismissal, was proper to avoid multiplicity of suits. Amendments to pleadings are generally favored and should be liberally allowed in furtherance of justice in order that every case may so far as possible be determined on its real facts and in order to expedite the trial of cases or prevent circuity of action and unnecessary expense, unless there are circumstances such as inexcusable delay or the taking of the adverse party by surprise or the like, which justify a refusal of permission to amend. 18 As correctly alleged by respondents, the writ of habeas corpus as a remedy became moot and academic due to the death of the person allegedly restrained of liberty, but the issue of custody remained, which the court a quo had to resolve. Petitioner claims he is the spouse contemplated under Art. 294 of the Civil Code, the term spouse used therein not being preceded by any qualification; hence, in the absence of such qualification, he is the rightful custodian of Vitaliana's body. Vitaliana's brothers and sisters contend otherwise. Indeed, Philippine Law does not recognize common law marriages. A man and woman not legally married who cohabit for many years as husband and wife, who represent themselves to the public as husband and wife, and who are reputed to be husband and wife in the community where they live may be considered legally mauled in common law jurisdictions but not in the Philippines.19 While it is true that our laws do not just brush aside the fact that such relationships are present in our society, and that they produce a community of properties and interests which is governed by law, 20 authority exists in case law to the effect that such form of co-ownership requires that the man and woman living together must not in any way be incapacitated to contract marriage. 21 In any case, herein petitioner has a subsisting marriage with another woman, a legal impediment which disqualified him from even legally marrying Vitaliana. In Santero vs. CFI of Cavite, 22 ,the Court, thru Mr. Justice Paras, interpreting Art. 188 of the Civil Code (Support of Surviving Spouse and Children During Liquidation of Inventoried Property) stated: "Be it noted however that with respect to 'spouse', the same must be the legitimate 'spouse' (not common-law spouses)." There is a view that under Article 332 of the Revised Penal Code, the term "spouse" embraces common law relation for purposes of exemption from criminal liability in cases of theft, swindling and malicious mischief committed or caused mutually by spouses. The Penal Code article, it is said,

makes no distinction between a couple whose cohabitation is sanctioned by a sacrament or legal tie and another who are husband and wife de facto. 23 But this view cannot even apply to the facts of the case at bar. We hold that the provisions of the Civil Code, unless expressly providing to the contrary as in Article 144, when referring to a "spouse" contemplate a lawfully wedded spouse. Petitioner vis-a-vis Vitaliana was not a lawfullywedded spouse to her; in fact, he was not legally capacitated to marry her in her lifetime. Custody of the dead body of Vitaliana was correctly awarded to her surviving brothers and sisters (the Vargases). Section 1103 of the Revised Administrative Code provides: Sec. 1103. Persons charged with duty of burial. The immediate duty of burying the body of a deceased person, regardless of the ultimate liability for the expense thereof, shall devolve upon the persons hereinbelow specified: xxx xxx xxx (b) If the deceased was an unmarried man or woman, or a child, and left any kin, the duty of burial shall devolve upon the nearest of kin of the deceased, if they be adults and within the Philippines and in possession of sufficient means to defray the necessary expenses. WHEREFORE, the decision appealed from is AFFIRMED. Both petitions are hereby DISMISSED. No Costs. SO ORDERED.

Footnotes * Hon. Alejandro Velez, presiding. 1 Rule 16 (Motion to Dismiss): Sec. 1. Grounds. Within the time for pleading a motion to dismiss the action may be made on any of the following grounds: (a) . . . (b) That the court has no jurisdiction over the nature of the action or suit; Rule 72 (Subject Matter and Applicability of General Rules) xxx xxx xxx Sec. 2. Applicability of rules of civil actions. In the absence of special provisions, the rules provided for in ordinary actions shall be, as far as practicable, applicable in special proceedings. 2 3 and 11 October 1988 orders, Record of Regional Trial Court Proceedings, pp. 74, 75 & 102. 3 Art. 305. The duty and the right to make arrangements for the funeral of a relative shall be in accordance with the order established for support, under article 294. In case of descendants of the same degree, or of brothers and sisters, the oldest shall be preferred. In case of ascendants, the paternal shall have a better right. Art. 308. No human remains shall be retained, interred disposed of or exhumed without the consent of the persons mentioned in Articles 294 and 305. 4 Record of RTC Proceedings, pp. 296-297.

Fernan, C.J., Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Feliciano, Bidin, Sarmiento, Cortes, Medialdea and Regalado, JJ., concur. Gancayco and Grino-Aquino, JJ., are on leave.

5 Ibid., p. 338. 6 Record of RTC Proceedings, p. 577. 7 Supra. 8 Sec. 5 Inherent power of courts; Sec. 6 means to carry jurisdiction into effect. 9 Sec. 1104. Right of custody to body Any person charged by law with the duty of burying the body of a deceased person is entitled to the custody of such body for the purpose of burying it, except when an inquest is required by law for the purpose of determining the cause of death; and, in case of death due to or accompanied by a dangerous communicable disease, such body shall until buried remain in the custody of the local board of health or local health officer, or if there be no such, then in the custody of the municipal council. 10 G.R. No. 86470, Rollo at 34. 11 Annexes 7 & 8, Petition, G.R. No. 85140, Rollo at 85 and 86. 12 Resolution of 26 January 1989, G.R. No. 85140, Rollo at 114. 13 Ras v. Sua, G.R. No. L-23302, September 25, 1968, 25 SCRA 158-159; Nactor v. IAC, G.R. No. 74122, March 15, 1988, 158 SCRA 635. 14 39 Am. Jur., 2d, Habeas corpus 129. 15 Ibid., 130. 16 G.R. No. L-12772, 24 January 1959, 105 Phil. 55. 17 Ibid.

18 PNB vs. CA, G.R. No. L-45770, 30 March 1988, 159 SCRA 933. 19 Fiel vs. Banawa, No. 56284-R, March 26, 1979, 76 OG 619. 20 Article 144 of the Civil Code provides: When a 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 coownership. 21 Aznar, et al. vs. Garcia, et al., G.R. Nos. L-11483-84, 14 February 1958, 102 Phil. 1055. 22 G.R. Nos. 61700-03, September 24, 1987, 153 SCRA 728. 23 People vs. Constantino, No. 01897-CR, September 6, 1963, 60 O.G. 3603.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-5426 May 29, 1953

Joaquin and adopted child of the deceased spouses, and Antonio C. Navarro, respondent, son of Joaquin Navarro, Sr. by first marriage. The facts, which is not disputed, are outlined in the statement in the decision of the Court of Appeals as follows: "On February 6, 1945, while the battle for the liberation of Manila was raging, the spouses Joaquin Navarro, Sr. and Angela Joaquin, together with their three daughters, Pilar, Concepcion, and Natividad, and their son Joaquin Navarro, Jr., and the latter's wife, Adela Conde, sought refuge in the ground floor of the building known as the German Club, at the corner of San Marcelino and San Luis Streets of this City. During their stay, the building was packed with refugees, shells were exploding around, and the Club was set on fire. Simultaneously, the Japanese started shooting at the people inside the building, especially those who were trying to escape. The three daughters were hit and fell of the ground near the entrance; and Joaquin Navarro, Sr., and his son decided to abandon the premises to seek a safer heaven. They could not convince Angela Joaquin who refused to join them; and son Joaquin Navarro, Sr., his son, Joaquin Navarro, Jr., and the latter's wife, Angela Conde, and a friend and former neighbor, Francisco Lopez, dashed out of the burning edifice. As they came out, Joaquin Navarro, Jr. was shot in the head by a Japanese soldier and immediately dropped. The others lay flat on the ground in front of the Club premises to avoid the bullets. Minutes later, the German Club, already on fire, collapsed, trapping many people inside, presumably including Angela Joaquin. "Joaquin Navarro, Sr., Mrs. Joaquin Navarro, Jr., and Francisco Lopez managed to reach an air raid shelter nearby, the stayed there about three days, until February 10, 1915, when they were forced to leave the shelter be- cause the shelling tore it open. They flied toward the St. Theresa Academy in San Marcelino Street, but unfortunately met Japanese Patrols, who fired at the refugees, killing Joaquin Navarro, Sr., and his daughter-inlaw. "At the time of the masaccre, Joaquin Navarro, Sr. was aged 70; his wife Angela Joaquin was about 67 years old; Joaquin Navarro, Jr., about 30; Pilar Navarro was two or three years older than her brother; while the other sisters, Concepcion and Natividad Navarro y Joaquin, were between 23 and 25."

RAMON JOAQUIN, petitioner, vs. ANTONIO C. NAVARRO, respondent.

Agrava, Peralta & Agrava for petitioner. Leonardo Abola for respondent.
TUASON, J.: This three proceedings was instituted in the Court of First Instance of Manila in the summary settlement of states of Joaquin Navarro, Sr., his wife Angela Joaquin de Navarro, Joaquin Navarro, Jr., and Pilar Navarro, deceased. All of them having been heard jointly, Judge Rafael Amparo handed down a single decision which was appealed to the Court of Appeals, whose decision, modifying that the Court of First Instance, in turn was elevated to the Supreme Court for review. The main question represented in the first two courts related to the sequence of the deaths of Joaquin Navarro, Sr., his wife, and their children, all of whom were killed in the massacre of civilians by Japanese troops in Manila in February 1945. The trial court found the deaths of this persons to have accurred in this order: 1st. The Navarro girls, named Pilar, Concepcion and Natividad; 2nd. Joaquin Navarro, Jr.; 3rd. Angela Joaquin de Navarro, and 4th, Joaquin Navarro, Sr. The Court of Appeals concurred with the trial court except that, with regard to Angela Joaquin de Navarro and Joaquin Navarro, Jr., the latter was declared to have survived his mother. It is this modification of the lower court's finding which is now being contested by the petitioner. The importance of the question whether Angela Joaquin de Navarro died before Joaquin Navarro, Jr., or vice versa, lies in the fact that it radically affects the rights of succession of Ramon Joaquin, the present petitioner who was an acknowledged natural child of Angela

The Court of Appeals' finding were all taken from the testimony of Francisco Lopez, who miraculously survived the holocaust, and upon them the Court of Appeals opined that, "as between the mother Angela Joaquin and the son Joaquin Navarro, Jr., the evidence of the survivorship is uncertain and insufficient" and the statutory presumption must be applied. The appellate Court's reasoning for its conclusion is thus stated: "It does not require argument to show that survivorship cannot be established by proof of the death of only one of the parties; but that there must be adequate proof that one was alive when the other had already died. Now in this case before us, the testimony of the sole witness Lopez is to the effect that Joaquin Navarro, Jr. was shot and died shortly after the living the German Club in the company of his father and the witness, and that the burning edified entirely collapsed minutes after the shooting of the son; but there is not a scintilla of evidence, direct or circumstantial, from which we may infer the condition of the mother, Angela Joaquin, during the appreciable interval from the instant his son turned his back to her, to dash out to the Club, until he died. All we can glean from the evidence is that Angela Joaquin was unhurt when her son left her to escape from the German Club; but she could have died almost immediately after, from a variety of causes. She might have been shot by the Japanese, like her daughters, killed by falling beams from the burning edifice, overcome by the fumes, or fatally struck by splinters from the exploding shells. We cannot say for certain. No evidence is available on the point. All we can decide is that no one saw her alive after her son left her aside, and that there is no proof when she died. Clearly, this circumstance alone cannot support a finding that she died latter than her son, and we are thus compelled to fall back upon the statutory presumption. In deed, it could be said that the purpose of the presumption of survivorship would be precisely to afford a solution to uncertainties like these. Hence the son Joaquin Navarro, Jr. aged 30, must be deemed to have survived his mother, Angela Joaquin, who was admittedly above 60 years of age (Rule 123, sec. 69, subsec. (ii), Rules of Court). "The total lack of evidence on how Angela Joaquin died likewise disposes of the question whether she and her deceased children perished in the same calamity. There being no evidence to the contrary, the only guide is the occasion of the deaths, which is identical for all of them; that battle for the liberation of Manila. A second reason is that the law, in declaring that those fallen in the same battle are to be regarded as perishing in the same calamity, could not overlooked that a variety of cause of death can ( and usually do) operate in the source of combats. During the same battle, some

may die from wounds, other from gages, fire, or drowning. It is clear that the law disregards episodic details, and treats the battle as an overall cause of death in applying the presumption of survivorship. "We are thus led the conclusion that the order in which the members of the Navarro-Joaquin family met their end is as follows: first, the three daughters Pilar, Concepcion, and Natividad; then the mother Angela Joaquin; then the son Joaquin Navarro, Jr., and days later (of which there is no doubt), the father Joaquin Navarro, Sr." Much space in the briefs is taken in a discussion of whether section 334(37) of Act No. 129, now section 69 (ii) of Rule 123 of the Rules of Court, has repealed article 33 of the civil code of 1889, now article 43 of the New Civil Code. It is the contention of the petitioner that it did not, and that on the assumption that there is total lack of evidence, as the Court of Appeals said, then Angela Joaquin and Joaquin Navarro, Jr. should, under article 33, be held to have died at the same time. The point is not of much if any relevancy and will be left open for the consideration when obsolute necessity there for arises. We say irrelevant because our opinion is that neither of the two provisions is applicable for the reasons to be presently set forth. Rule 123, section 69 (ii) of the Revised Rules of Court, reads: When two person perish in the same calamity, such as wreck, battle or conflagration, and it is not (1) shown who died first, and there are no (2) particular circumstances from when it can be inferred, the survivorship is presumed from the probabilities resulting from the strength and ages of the sexes, according to the following rules: xxx xxx xxx

Article 33 of the Civil Code of 1889 of the following tenor: Whenever a doubt arises as to which was the first to die to the two or more persons who would inherent one from the other, the persons who alleges the prior death of either must prove the allegation; in the absence of proof the presumption shall be that

they died at the same time, and no transmission of rights from one to the other shall take place. Most provisions, as their language plainly implies, are intended as a substitute for lacks and so are not to be available when there are facts. With particular reference to section 69 (ii) of Rule 123, "the situation which it present is one in which the facts are not only unknown but unknowable. By hypothesis, there is no specific evidence as to the time of death . . . ." . . . it is assumed that no evidence can be produced. . . . Since the facts are unknown and unknowable, the law may apply the law of fairness appropriate to the different legal situation that arises." (IX Wigmore on Evidence, 1940 ed., 483.) In In re Wallace's Estate, 220 Pac. 683, which the Court of Appeals cited the applied with the respect to the deaths of the Navarro girls, pointing out that "our rule is taken from the Fourth Division of sec. 1936 of the California Code of Civil Procedure," the Supreme Court of California said: When the statue speaks of "particular circumstances from which it can be inferred" that one died before the other it means that there are circumstances from which the fact of death by one before the other may be inferred as a relation conclusion from the facts proven. The statue does not mean circumstances which would shown, or which would tend to show, probably that one died before the other. Grand Lodge A.O.W.W.vs. Miller, 8 Cal. App. 28, 96 Pac. 22. When by circumstantial evidence alone, a party seeks to prove a survivorship contrary to the statutory presumption, the circumstances by which it is sought to prove the survivorship must be such as are competent and sufficient when tested by the general rules of evidence in civil cases. The inference of survivorship cannot rest upon mere surmise, speculation, or conjecture. As was said in Grand Lodge vs. Miller, supra, "if the matter is left to probably, then the statue of the presumption." It is manifest from the language of section 69 (ii) of Rule 123 and of that of the foregoing decision that the evidence of the survivorship need not be direct; it may be indirect, circumstantial, or inferential. Where there are facts, known or knowable, from which a rational conclusion can be made, the presumption does not step in, and the rule of preponderance of evidence controls.

Are there particular circumstances on record from which reasonable inference of survivorship between Angela Joaquin and her son can be drawn? Is Francisco Lopez' testimony competent and sufficient for this purpose? For a better appreciation of this issue, it is convenient and necessary to detail the testimony, which was described by the trial court as "disinterested and trustworthy" and by the Court of Appeals as "entitled to credence." Lopez testified: Q. You said you were also heat at that time as you leave the German Club with Joaquin Navarro, Sr., Joaquin Navarro, Jr. and the latter's wife?- A. Yes, sir. Q. Did you fall? A. I fell down. Q. And you said you fell down close to Joaquin Navarro, Jr.? A. Yes, sir. Q. When the German Club collapsed where were you? A. We were out 15 meters away from the building but I could see what was going on. xxx xxx xxx

Q. Could there have been an interval of fifteen minutes between the two events, that is the shooting of Joaquin Navarro, Jr. and the collapse of the German Club? A. Yes, sir, I could not say exactly, Occasions like that, you know, you are confused. Q. Could there (have) been an interval of an hour instead of fifteen minutes? A. Possible, but not probable. Q. Could it have been 40 minutes? A. Yes, sir, about 40 minutes. xxx xxx xxx

Q. You also know that Angela Joaquin is already dead? A. Yes, sir.

Q. Can you tell the Honorable Court when did Angela Joaquin die? A. Well, a few minutes after we have dashed out, the German Club, which was burning, collapsed over them, including Mrs. Joaquin Navarro, Sr. xxx xxx xxx

Q. So you noticed that they were killed or shot by the Japanese a few minutes before you left the place? A. That is what I think, because those Japanese soldiers were shooting the people inside especially those trying to escape. xxx xxx xxx

Q. From your testimony it would appear that while you can give positive evidence to the fact that Pilar, Concepcion and Natividad Navarro, and Joaquin Navarro, Jr. died, you can not give the same positive evidence to the fact that Angela Joaquin also died? A. Yes, sir, in the sense that I did not see her actually die, but when the building collapsed over her I saw and I am positive and I did not see her come out of that building so I presumed she died there. xxx xxx xxx

Q. And none of them was not except the girls, is that what you mean? A . There were many people shot because they were trying to escape. xxx xxx xxx

Q. How come that these girls were shot when they were inside the building, can you explain that? A. They were trying to escape probably. It is our opinion that the preceding testimony contains facts quite adequate to solve the problem of survivorship between Angela Joaquin and Joaquin Navarro, Jr. and keep the statutory presumption out of the case. It is believed that in the light of the conditions painted by Lopez, a fair and reasonable inference can be arrived at, namely: that Joaquin Navarro, Jr. died before his mother. While the possibility that the mother died before the son can not be ruled out, it must be noted that this possibility is entirely speculative and must yield to the more rational deduction from proven facts that it was the other way around. Joaquin Navarro, Jr., it will be recalled, was killed, while running, in front of, and 15 meters from, the German Club. Still in the prime of life, 30, he must have negotiated that distance in five seconds or less, and so died within that interval from the time he dashed out of the building. Now, when Joaquin Navarro, Jr. with his father and wife started to flee from the clubhouse, the old lady was alive and unhurt, so much so that the Navarro father and son tried hard to have her come along. She could have perished within those five or fewer seconds, as stated, but the probabilities that she did seem very remote. True, people in the building were also killed but these, according to Lopez, were mostly refugees who had tried to slip away from it and were shot by Japanese troops. It was not very likely that Mrs. Joaquin Navarro, Sr. made an attempt to escape. She even made frantic efforts to dissuade her husband and son from leaving the place and exposing themselves to gun fire.

Q. Why did you have to dash out of the German Club, you, Mr. Joaquin Navarro, Sr. and Mr. Joaquin Navarro Jr. and the latter's wife? A. Because the Japanese had set fire to the Club and they were shooting people outside, so we thought of running away rather than be roasted. xxx xxx xxx

Q. You mean to say that before you jumped out of the German Club all the Navarro girls, Pilar, Concepcion, and Natividad, were already wounded? A. to my knowledge, yes. Q. They were wounded? A. Yes, sir. Q. Were they lying on the ground or not? A. On the ground near the entrance, because most of the people who were shot by the Japanese were those who were trying to escape, and as far as I can remember they were among those killed. xxx xxx xxx

This determination of Mrs. Angela Joaquin to stay where she was may well give an idea, at the same time, of a condition of relative safety in the clubhouse at the moment her husband, son, and daughter-in-law left her. It strongly tends to prove that, as the situation looked to her, the perils of death from staying were not so imminent. And it lends credence to Mr. Lopez' statement that the collapse of the clubhouse occurred about 40 minutes after Joaquin Navarro the son was shot in the head and dropped dead, and that it was the collapse that killed Mrs. Angela Navarro. The Court of Appeals said the interval between Joaquin Navarro's death and the breaking down of the edifice was "minutes". Even so, it was much longer than five seconds, long enough to warrant the inference that Mrs. Angela Joaquin was sill alive when her son expired The Court of Appeals mentioned several causes, besides the collapse of the building, by which Mrs. Navarro could have been killed. All these are speculative , and the probabilities, in the light of the known facts, are against them. Dreading Japanese sharpshooters outside as evidenced by her refusal to follow the only remaining living members of her family, she could not have kept away form protective walls. Besides, the building had been set on fire trap the refugees inside, and there was no necessity for the Japanese to was their ammunition except upon those who tried to leave the premises. Nor was Angela Joaquin likely to have been killed by falling beams because the building was made of concrete and its collapse, more likely than not, was sudden. As to fumes, these do not cause instantaneous death; certainly not within the brief space of five seconds between her son's departure and his death. It will be said that all this is indulging in inferences that are not conclusive. Section 69(ii) of Rule 123 does not require that the inference necessary to exclude the presumption therein provided be certain. It is the "particular circumstances from which it (survivorship) can be inferred" that are required to be certain as tested by the rules of evidence. In speaking of inference the rule can not mean beyond doubt, for "inference is never certainty, but if may be plain enough to justify a finding of fact." (In re Bohenko's Estate, 4 N.Y.S. 2nd. 427, citing Tortora vs. State of New York, 269 N.Y. 199 N.E. 44; Hart vs. Hudson River Bridge Co., 80 N.Y.). 622.) As the California courts have said, it is enough that "the circumstances by which it is sought to prove the survivorship must be such as are competent and sufficient when tested by the general rules of evidence in civil cases." (In re Wallace's Estate,supra.) "Juries must often reason," says one author, "according to probabilities, drawing an inference that the main fact in issue existed from collateral facts not directly proving, but strongly tending to prove, its

existence. The vital question in such cases is the cogency of the proof afforded by the secondary facts. How likely, according to experience, is the existence of the primary fact if certain secondary facts exist?" (1 Moore on Facts, Sec. 596.) The same author tells us of a case where "a jury was justified in drawing the inference that the person who was caught firing a shot at an animal trespassing on his land was the person who fired a shot about an hour before at the same animal also trespassing." That conclusion was not airtight, but rational. In fact, the circumstances in the illustration leave greater room for another possibility than do the facts of the case at hand. In conclusion the presumption that Angela Joaquin de Navarro died before her son is based purely on surmises, speculations, or conjectures without any sure foundation in the evidence. the opposite theory that the mother outlived her son is deduced from established facts which, weighed by common experience, engender the inference as a very strong probability. Gauged by the doctrine of preponderance of evidence by, which civil cases are decided, this inference ought to prevail. It can not be defeated as in an instance, cited by Lord Chief Justice Kenyon, "bordering on the ridiculous, where in an action on the game laws it was suggested that the gun with which the defendant fired was not charged with shot, but that the bird might have died in consequence of the fright." (1 Moore on Facts, 63, citing Wilkinson vs. Payne, 4 T. R. 468.) It is said that part of the decision of the Court of Appeals which the appellant impugns, and which has been discussed, involves findings of fact which can not be disturbed. The point is not, in our judgment, well considered. The particular circumstances from which the parties and the Court of Appeals drew conclusions are, as above seen, undisputed, and this being the case, the correctness or incorrectness of those conclusions raises a question of law, not of fact, which the Supreme Court has jurisdiction to look into. As was said in 1 Moran Commentaries on the Rules of ?Court, 3rd Ed. 856, 857, "Undisputed evidence is one thing, and contradicted evidence is another. An incredible witness does not cease to be such because he is not impeached or contradicted. But when the evidence is purely documentary, the authenticity of which is not questioned and the only issue is the construction to be placed thereon, or where a case is submitted upon an agreement of facts, or where all the facts are stated in the judgment and the issue is the correctness of the conclusions drawn therefrom, the question is one of law which may be reviewed by the Supreme Court."

The question of whether upon given facts the operation of the statutory presumption is to be invoked is a question of law. The prohibition against intermeddling with decisions on questions of evidence refers to decisions supported by substantial evidence. By substantial evidence is meant real evidence or at least evidence about which reasonable men may disagree. Findings grounded entirely on speculations, surmises, or conjectures come within the exception to the general rule. We are constrained to reverse the decision under review, and hold that the distribution of the decedents' estates should be made in accordance with the decision of the trial court. This result precludes the necessity of passing upon the question of "reserva troncal" which was put forward on the hypothetical theory that Mrs. Joaquin Navarro's death preceded that of her son. Without costs.

Feria, Pablo, Bengzon, Montemayor, Reyes, Jugo, Bautista Angelo and Labrador, JJ., concur.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 15574 September 17, 1919

at Cebu, the home port of the vessel, to the Collector of Customs for a certificate of Philippine registry. The Collector refused to issue the certificate, giving as his reason that all the stockholders of Smith, Bell & Co., Ltd., were not citizens either of the United States or of the Philippine Islands. The instant action is the result. LAW. The Act of Congress of April 29, 1908, repealing the Shipping Act of April 30, 1906 but reenacting a portion of section 3 of this Law, and still in force, provides in its section 1: That until Congress shall have authorized the registry as vessels of the United States of vessels owned in the Philippine Islands, the Government of the Philippine Islands is hereby authorized to adopt, from time to time, and enforce regulations governing the transportation of merchandise and passengers between ports or places in the Philippine Archipelago. (35 Stat. at L., 70; Section 3912, U. S. Comp Stat. [1916]; 7 Pub. Laws, 364.) The Act of Congress of August 29, 1916, commonly known as the Jones Law, still in force, provides in section 3, (first paragraph, first sentence), 6, 7, 8, 10, and 31, as follows. SEC. 3. That no law shall be enacted in said Islands which shall deprive any person of life, liberty, or property without due process of law, or deny to any person therein the equal protection of the laws. . . . SEC. 6. That the laws now in force in the Philippines shall continue in force and effect, except as altered, amended, or modified herein, until altered, amended, or repealed by the legislative authority herein provided or by Act of Congress of the United States. SEC. 7. That the legislative authority herein provided shall have power, when not inconsistent with this Act, by due enactment to amend, alter modify, or repeal any law, civil or criminal, continued in force by this Act as it may from time to time see fit

SMITH, BELL & COMPANY (LTD.), petitioner, vs. JOAQUIN NATIVIDAD, Collector of Customs of the port of Cebu, respondent.

Ross and Lawrence for petitioner. Attorney-General Paredes for respondent.

MALCOLM, J.: A writ of mandamus is prayed for by Smith, Bell & Co. (Ltd.), against Joaquin Natividad, Collector of Customs of the port of Cebu, Philippine Islands, to compel him to issue a certificate of Philippine registry to the petitioner for its motor vessel Bato. The Attorney-General, acting as counsel for respondent, demurs to the petition on the general ground that it does not state facts sufficient to constitute a cause of action. While the facts are thus admitted, and while, moreover, the pertinent provisions of law are clear and understandable, and interpretative American jurisprudence is found in abundance, yet the issue submitted is not lightly to be resolved. The question, flatly presented, is, whether Act. No. 2761 of the Philippine Legislature is valid or, more directly stated, whether the Government of the Philippine Islands, through its Legislature, can deny the registry of vessels in its coastwise trade to corporations having alien stockholders. FACTS. Smith, Bell & Co., (Ltd.), is a corporation organized and existing under the laws of the Philippine Islands. A majority of its stockholders are British subjects. It is the owner of a motor vessel known as the Bato built for it in the Philippine Islands in 1916, of more than fifteen tons gross The Bato was brought to Cebu in the present year for the purpose of transporting plaintiff's merchandise between ports in the Islands. Application was made

This power shall specifically extend with the limitation herein provided as to the tariff to all laws relating to revenue provided as to the tariff to all laws relating to revenue and taxation in effect in the Philippines. SEC. 8. That general legislative power, except as otherwise herein provided, is hereby granted to the Philippine Legislature, authorized by this Act. SEC. 10. That while this Act provides that the Philippine government shall have the authority to enact a tariff law the trade relations between the islands and the United States shall continue to be governed exclusively by laws of the Congress of the United States: Provided, That tariff acts or acts amendatory to the tariff of the Philippine Islands shall not become law until they shall receive the approval of the President of the United States, nor shall any act of the Philippine Legislature affecting immigration or the currency or coinage laws of the Philippines become a law until it has been approved by the President of the United States: Provided further, That the President shall approve or disapprove any act mentioned in the foregoing proviso within six months from and after its enactment and submission for his approval, and if not disapproved within such time it shall become a law the same as if it had been specifically approved. SEC. 31. That all laws or parts of laws applicable to the Philippines not in conflict with any of the provisions of this Act are hereby continued in force and effect." (39 Stat at L., 546.) On February 23, 1918, the Philippine Legislature enacted Act No. 2761. The first section of this law amended section 1172 of the Administrative Code to read as follows: SEC. 1172. Certificate of Philippine register. Upon registration of a vessel of domestic ownership, and of more than fifteen tons gross, a certificate of Philippine register shall be issued for it. If the vessel is of domestic ownership and of fifteen tons gross or less, the taking of the certificate of Philippine register shall be optional with the owner.

"Domestic ownership," as used in this section, means ownership vested in some one or more of the following classes of persons: (a) Citizens or native inhabitants of the Philippine Islands; (b) citizens of the United States residing in the Philippine Islands; (c) any

corporation or company composed wholly of citizens of the Philippine Islands or of the United States or of both, created under

the laws of the United States, or of any State thereof, or of thereof, or the managing agent or master of the vessel resides in the Philippine Islands Any vessel of more than fifteen gross tons which on February eighth, nineteen hundred and eighteen, had a certificate of Philippine register under existing law, shall likewise be deemed a vessel of domestic ownership so long as there shall not be any change in the ownership thereof nor any transfer of stock of the companies or corporations owning such vessel to person not included under the last preceding paragraph. Sections 2 and 3 of Act No. 2761 amended sections 1176 and 1202 of the Administrative Code to read as follows: SEC. 1176. Investigation into character of vessel. No application

for a certificate of Philippine register shall be approved until the collector of customs is satisfied from an inspection of the vessel section eleven hundred and seventy-two of this Code.

that it is engaged or destined to be engaged in legitimate trade and that it is of domestic ownership as such ownership is defined in

The collector of customs may at any time inspect a vessel or examine its owner, master, crew, or passengers in order to ascertain whether the vessel is engaged in legitimate trade and is entitled to have or retain the certificate of Philippine register. SEC. 1202. Limiting number of foreign officers and engineers on board vessels. No Philippine vessel operating in the coastwise trade or on the high seas shall be permitted to have on board more than one master or one mate and one engineer who are not citizens of the United States or of the Philippine Islands, even if they hold licenses under section one thousand one hundred and ninety-nine hereof. No other person who is not a citizen of the United States or of the Philippine Islands shall be an officer or a

member of the crew of such vessel. Any such vessel which fails to comply with the terms of this section shall be required to pay an additional tonnage tax of fifty centavos per net ton per month during the continuance of said failure. ISSUES. Predicated on these facts and provisions of law, the issues as above stated recur, namely, whether Act No 2761 of the Philippine Legislature is valid in whole or in part whether the Government of the Philippine Islands, through its Legislature, can deny the registry of vessel in its coastwise trade to corporations having alien stockholders . OPINION. 1. Considered from a positive standpoint, there can exist no measure of doubt as to the power of the Philippine Legislature to enact Act No. 2761. The Act of Congress of April 29, 1908, with its specific delegation of authority to the Government of the Philippine Islands to regulate the transportation of merchandise and passengers between ports or places therein, the liberal construction given to the provisions of the Philippine Bill, the Act of Congress of July 1, 1902, by the courts, and the grant by the Act of Congress of August 29, 1916, of general legislative power to the Philippine Legislature, are certainly superabundant authority for such a law. While the Act of the local legislature may in a way be inconsistent with the Act of Congress regulating the coasting trade of the Continental United States, yet the general rule that only such laws of the United States have force in the Philippines as are expressly extended thereto, and the abnegation of power by Congress in favor of the Philippine Islands would leave no starting point for convincing argument. As a matter of fact, counsel for petitioner does not assail legislative action from this direction (See U. S. vs. Bull [1910], 15 Phil., 7; Sinnot vs. Davenport [1859] 22 How., 227.) 2. It is from the negative, prohibitory standpoint that counsel argues against the constitutionality of Act No. 2761. The first paragraph of the Philippine Bill of Rights of the Philippine Bill, repeated again in the first paragraph of the Philippine Bill of Rights as set forth in the Jones Law, provides "That no law shall be enacted in said Islands which shall deprive any person of life, liberty, or property without due process of law, or deny to any person therein the equal protection of the laws." Counsel says that Act No. 2761 denies to Smith, Bell & Co., Ltd., the equal protection of the laws because it,

in effect, prohibits the corporation from owning vessels, and because classification of corporations based on the citizenship of one or more of their stockholders is capricious, and that Act No. 2761 deprives the corporation of its properly without due process of law because by the passage of the law company was automatically deprived of every beneficial attribute of ownership in the Bato and left with the naked title to a boat it could not use . The guaranties extended by the Congress of the United States to the Philippine Islands have been used in the same sense as like provisions found in the United States Constitution. While the "due process of law and equal protection of the laws" clause of the Philippine Bill of Rights is couched in slightly different words than the corresponding clause of the Fourteenth Amendment to the United States Constitution, the first should be interpreted and given the same force and effect as the latter. (Kepner vs. U.S. [1904], 195 U. S., 100; Sierra vs. Mortiga [1907], 204 U. S.,.470; U. S. vs. Bull [1910], 15 Phil., 7.) The meaning of the Fourteenth Amendment has been announced in classic decisions of the United States Supreme Court. Even at the expense of restating what is so well known, these basic principles must again be set down in order to serve as the basis of this decision. The guaranties of the Fourteenth Amendment and so of the first paragraph of the Philippine Bill of Rights, are universal in their application to all person within the territorial jurisdiction, without regard to any differences of race, color, or nationality. The word "person" includes aliens. (Yick Wo vs. Hopkins [1886], 118 U. S., 356; Truax vs. Raich [1915], 239 U. S., 33.) Private corporations, likewise, are "persons" within the scope of the guaranties in so far as their property is concerned. (Santa Clara County vs. Southern Pac. R. R. Co. [1886], 118.U. S., 394; Pembina Mining Co. vs. Pennsylvania [1888],.125 U. S., 181 Covington & L. Turnpike Road Co. vs. Sandford [1896], 164 U. S., 578.) Classification with the end in view of providing diversity of treatment may be made among corporations, but must be based upon some reasonable ground and not be a mere arbitrary selection (Gulf, Colorado & Santa Fe Railway Co. vs. Ellis [1897],.165 U. S., 150.) Examples of laws held unconstitutional because of unlawful discrimination against aliens could be cited. Generally, these decisions relate to statutes which had attempted arbitrarily to forbid aliens to engage in ordinary kinds of business to earn their living. (State vs.Montgomery [1900], 94 Maine, 192, peddling but see. Commonwealth vs. Hana [1907], 195 Mass., 262; Templar vs. Board of Examiners of Barbers [1902], 131 Mich., 254, barbers; Yick Wo vs. Hopkins [1886], 118 U. S.,.356, discrimination against Chinese; Truax vs. Raich [1915], 239 U. S., 33; In re Parrott [1880],

1 Fed , 481; Fraser vs. McConway & Torley Co. [1897], 82 Fed , 257; Juniata Limestone Co. vs. Fagley [1898], 187 Penn., 193, all relating to the employment of aliens by private corporations.) A literal application of general principles to the facts before us would, of course, cause the inevitable deduction that Act No. 2761 is unconstitutional by reason of its denial to a corporation, some of whole members are foreigners, of the equal protection of the laws. Like all beneficient propositions, deeper research discloses provisos. Examples of a denial of rights to aliens notwithstanding the provisions of the Fourteenth Amendment could be cited. (Tragesser vs. Gray [1890], 73 Md., 250, licenses to sell spirituous liquors denied to persons not citizens of the United States; Commonwealth vs. Hana [1907], 195 Mass , 262, excluding aliens from the right to peddle; Patsone vs. Commonwealth of Pennsylvania [1914], 232 U. S. , 138, prohibiting the killing of any wild bird or animal by any unnaturalized foreign-born resident; Ex parte Gilleti [1915], 70 Fla., 442, discriminating in favor of citizens with reference to the taking for private use of the common property in fish and oysters found in the public waters of the State; Heim vs. McCall [1915], 239 U. S.,.175, and Crane vs. New York [1915], 239 U. S., 195, limiting employment on public works by, or for, the State or a municipality to citizens of the United States.) One of the exceptions to the general rule, most persistent and far reaching in influence is, that neither the Fourteenth Amendment to the United States Constitution, broad and comprehensive as it is, nor any other amendment, "was designed to interfere with the power of the State, sometimes termed its `police power,' to prescribe regulations to promote the health, peace, morals, education, and good order of the people, and legislate so as to increase the industries of the State, develop its resources and add to its wealth and prosperity. From the very necessities of society, legislation of a special character, having these objects in view, must often be had in certain districts." (Barbier vs. Connolly [1884], 113 U.S., 27; New Orleans Gas Co. vs. Lousiana Light Co. [1885], 115 U.S., 650.) This is the same police power which the United States Supreme Court say "extends to so dealing with the conditions which exist in the state as to bring out of them the greatest welfare in of its people." (Bacon vs.Walker [1907], 204 U.S., 311.) For quite similar reasons, none of the provision of the Philippine Organic Law could could have had the effect of denying to the Government of the Philippine Islands, acting through its Legislature, the right to exercise that most essential, insistent, and illimitable of powers, the sovereign police power, in the promotion of the general welfare and the public interest. (U. S. vs. Toribio [1910], 15 Phil., 85; Churchill and Taitvs. Rafferty [1915], 32

Phil., 580; Rubi vs. Provincial Board of Mindoro [1919], 39 Phil., 660.) Another notable exception permits of the regulation or distribution of the public domain or the common property or resources of the people of the State, so that use may be limited to its citizens. (Ex parte Gilleti [1915], 70 Fla., 442; McCready vs.Virginia [1876], 94 U. S., 391; Patsone vs. Commonwealth of Pennsylvania [1914], 232U. S., 138.) Still another exception permits of the limitation of employment in the construction of public works by, or for, the State or a municipality to citizens of the United States or of the State. (Atkin vs. Kansas [1903],191 U. S., 207; Heim vs.McCall [1915], 239 U.S., 175; Crane vs. New York [1915], 239 U. S., 195.) Even as to classification, it is admitted that a State may classify with reference to the evil to be prevented; the question is a practical one, dependent upon experience. (Patsone vs. Commonwealth of Pennsylvania [1914], 232 U. S., 138.) To justify that portion of Act no. 2761 which permits corporations or companies to obtain a certificate of Philippine registry only on condition that they be composed wholly of citizens of the Philippine Islands or of the United States or both, as not infringing Philippine Organic Law, it must be done under some one of the exceptions here mentioned This must be done, moreover, having particularly in mind what is so often of controlling effect in this jurisdiction our local experience and our peculiar local conditions. To recall a few facts in geography, within the confines of Philippine jurisdictional limits are found more than three thousand islands. Literally, and absolutely, steamship lines are, for an Insular territory thus situated, the arteries of commerce. If one be severed, the life-blood of the nation is lost. If on the other hand these arteries are protected, then the security of the country and the promotion of the general welfare is sustained. Time and again, with such conditions confronting it, has the executive branch of the Government of the Philippine Islands, always later with the sanction of the judicial branch, taken a firm stand with reference to the presence of undesirable foreigners. The Government has thus assumed to act for the allsufficient and primitive reason of the benefit and protection of its own citizens and of the self-preservation and integrity of its dominion. (In re Patterson [1902], 1 Phil., 93; Forbes vs. Chuoco, Tiaco and Crossfield [1910], 16 Phil., 534;.228 U.S., 549; In re McCulloch Dick [1918], 38 Phil., 41.) Boats owned by foreigners, particularly by such solid and reputable firms as the instant claimant, might indeed traverse the waters of the Philippines for ages without doing any particular harm. Again, some evilminded foreigner might very easily take advantage of such lavish hospitality to chart Philippine waters, to obtain valuable information for

unfriendly foreign powers, to stir up insurrection, or to prejudice Filipino or American commerce. Moreover, under the Spanish portion of Philippine law, the waters within the domestic jurisdiction are deemed part of the national domain, open to public use. (Book II, Tit. IV, Ch. I, Civil Code; Spanish Law of Waters of August 3, 1866, arts 1, 2, 3.) Common carriers which in the Philippines as in the United States and other countries are, as Lord Hale said, "affected with a public interest," can only be permitted to use these public waters as a privilege and under such conditions as to the representatives of the people may seem wise. (See De Villata vs. Stanley [1915], 32 Phil., 541.) In Patsone vs. Commonwealth of Pennsylvania ([1913], 232 U.S., 138), a case herein before mentioned, Justice Holmes delivering the opinion of the United States Supreme Court said: This statute makes it unlawful for any unnaturalized foreign-born resident to kill any wild bird or animal except in defense of person or property, and `to that end' makes it unlawful for such foreignborn person to own or be possessed of a shotgun or rifle; with a penalty of $25 and a forfeiture of the gun or guns. The plaintiff in error was found guilty and was sentenced to pay the abovementioned fine. The judgment was affirmed on successive appeals. (231 Pa., 46; 79 Atl., 928.) He brings the case to this court on the ground that the statute is contrary to the 14th Amendment and also is in contravention of the treaty between the United States and Italy, to which latter country the plaintiff in error belongs . Under the 14th Amendment the objection is twofold; unjustifiably depriving the alien of property, and discrimination against such aliens as a class. But the former really depends upon the latter, since it hardly can be disputed that if the lawful object, the protection of wild life (Geer vs. Connecticut, 161 U.S., 519; 40 L. ed., 793; 16 Sup. Ct. Rep., 600), warrants the discrimination, the, means adopted for making it effective also might be adopted. . . . The discrimination undoubtedly presents a more difficult question. But we start with reference to the evil to be prevented, and that if the class discriminated against is or reasonably might be considered to define those from whom the evil mainly is to be feared, it properly may be picked out. A lack of abstract symmetry

does not matter. The question is a practical one, dependent upon experience. . . . The question therefore narrows itself to whether this court can say that the legislature of Pennsylvania was not warranted in assuming as its premise for the law that resident unnaturalized aliens were the peculiar source of the evil that it desired to prevent. (Barrett vs. Indiana,. 229 U.S., 26, 29; 57 L. ed., 1050, 1052; 33 Sup. Ct. Rep., 692.) Obviously the question, so stated, is one of local experience, on which this court ought to be very slow to declare that the state legislature was wrong in its facts (Adams vs. Milwaukee, 228 U.S., 572, 583; 57 L. ed., 971,.977; 33 Sup. Ct. Rep., 610.) If we might trust popular speech in some states it was right; but it is enough that this court has no such knowledge of local conditions as to be able to say that it was manifestly wrong. . . . Judgment affirmed. We are inclined to the view that while Smith, Bell & Co. Ltd., a corporation having alien stockholders, is entitled to the protection afforded by the dueprocess of law and equal protection of the laws clause of the Philippine Bill of Rights, nevertheless, Act No. 2761 of the Philippine Legislature, in denying to corporations such as Smith, Bell &. Co. Ltd., the right to register vessels in the Philippines coastwise trade, does not belong to that vicious species of class legislation which must always be condemned, but does fall within authorized exceptions, notably, within the purview of the police power, and so does not offend against the constitutional provision. This opinion might well be brought to a close at this point. It occurs to us, however, that the legislative history of the United States and the Philippine Islands, and, probably, the legislative history of other countries, if we were to take the time to search it out, might disclose similar attempts at restriction on the right to enter the coastwise trade, and might thus furnish valuable aid by which to ascertain and, if possible, effectuate legislative intention. 3. The power to regulate commerce, expressly delegated to the Congress by the Constitution, includes the power to nationalize ships built and owned in the United States by registries and

enrollments, and the recording of the muniments of title of American vessels. The Congress "may encourage or it may entirely prohibit such commerce, and it may regulate in any way it may see fit between these two extremes." (U.S. vs.Craig [1886], 28 Fed., 795; Gibbons vs. Ogden [1824], 9 Wheat., 1; The Passenger Cases [1849], 7 How., 283.) Acting within the purview of such power, the first Congress of the United States had not been long convened before it enacted on September 1, 1789, "An Act for Registering and Clearing Vessels, Regulating the Coasting Trade, and for other purposes." Section 1 of this law provided that for any ship or vessel to obtain the benefits of American registry, it must belong wholly to a citizen or citizens of the United States "and no other." (1 Stat. at L., 55.) That Act was shortly after repealed, but the same idea was carried into the Acts of Congress of December 31, 1792 and February 18, 1793. (1 Stat. at L., 287, 305.).Section 4 of the Act of 1792 provided that in order to obtain the registry of any vessel, an oath shall be taken and subscribed by the owner, or by one of the owners thereof, before the officer authorized to make such registry, declaring, "that there is no subject or citizen of any foreign prince or state, directly or indirectly, by way of trust, confidence, or otherwise, interested in such vessel, or in the profits or issues thereof." Section 32 of the Act of 1793 even went so far as to say "that if any licensed ship or vessel shall be transferred to any person who is not at the time of such transfer a citizen of and resident within the United States, ... every such vessel with her tackle, apparel, and furniture, and the cargo found on board her, shall be forefeited." In case of alienation to a foreigner, Chief Justice Marshall said that all the privileges of an American bottom were ipso facto forfeited. (U.S. vs. Willings and Francis [1807], 4 Cranch, 48.) Even as late as 1873, the Attorney-General of the United States was of the opinion that under the provisions of the Act of December 31, 1792, no vessel in which a foreigner is directly or indirectly interested can lawfully be registered as a vessel of the United. States. (14 Op. Atty.-Gen. [U.S.], 340.) These laws continued in force without contest, although possibly the Act of March 3, 1825, may have affected them, until amended by the Act of May 28, 1896 (29 Stat. at L., 188) which extended the privileges of registry from vessels wholly owned by a citizen or citizens of the United States to corporations created under the laws of any of the states thereof. The law, as amended, made possible the deduction that a vessel belonging to a domestic corporation was entitled to registry or enrollment even though some stock of the company be owned by aliens. The right of ownership of stock in a corporation was thereafter distinct from the right to hold the

property by the corporation (Humphreys vs. McKissock [1890], 140 U.S., 304; Queen vs. Arnaud [1846], 9 Q. B., 806; 29 Op. Atty.-Gen. [U.S.],188.) On American occupation of the Philippines, the new government found a substantive law in operation in the Islands with a civil law history which it wisely continued in force Article fifteen of the Spanish Code of Commerce permitted any foreigner to engage in Philippine trade if he had legal capacity to do so under the laws of his nation. When the Philippine Commission came to enact the Customs Administrative Act (No. 355) in 1902, it returned to the old American policy of limiting the protection and flag of the United States to vessels owned by citizens of the United States or by native inhabitants of the Philippine Islands (Sec. 117.) Two years later, the same body reverted to the existing Congressional law by permitting certification to be issued to a citizen of the United States or to a corporation or company created under the laws of the United States or of any state thereof or of the Philippine Islands (Act No. 1235, sec. 3.) The two administration codes repeated the same provisions with the necessary amplification of inclusion of citizens or native inhabitants of the Philippine Islands (Adm. Code of 1916, sec. 1345; Adm. Code of 1917, sec. 1172). And now Act No. 2761 has returned to the restrictive idea of the original Customs Administrative Act which in turn was merely a reflection of the statutory language of the first American Congress. Provisions such as those in Act No. 2761, which deny to foreigners the right to a certificate of Philippine registry, are thus found not to be as radical as a first reading would make them appear. Without any subterfuge, the apparent purpose of the Philippine Legislature is seen to be to enact an anti-alien shipping act. The ultimate purpose of the Legislature is to encourage Philippine ship-building. This, without doubt, has, likewise, been the intention of the United States Congress in passing navigation or tariff laws on different occasions. The object of such a law, the United States Supreme Court once said, was to encourage American trade, navigation, and ship-building by giving American ship-owners exclusive privileges. (Old Dominion Steamship Co. vs. Virginia [1905], 198 U.S., 299; Kent's Commentaries, Vol. 3, p. 139.) In the concurring opinion of Justice Johnson in Gibbons vs. Ogden ([1824], 9 Wheat., 1) is found the following:

Licensing acts, in fact, in legislation, are universally restraining acts; as, for example, acts licensing gaming houses, retailers of spirituous liquors, etc. The act, in this instance, is distinctly of that character, and forms part of an extensive system, the object of which is to encourage American shipping, and place them on an equal footing with the shipping of other nations. Almost every commercial nation reserves to its own subjects a monopoly of its coasting trade; and a countervailing privilege in favor of American shipping is contemplated, in the whole legislation of the United States on this subject. It is not to give the vessel an American character, that the license is granted; that effect has been correctly attributed to the act of her enrollment. But it is to confer on her American privileges, as contradistinguished from foreign; and to preserve the. Government from fraud by foreigners, in surreptitiously intruding themselves into the American commercial marine, as well as frauds upon the revenue in the trade coastwise, that this whole system is projected. The United States Congress in assuming its grave responsibility of legislating wisely for a new country did so imbued with a spirit of Americanism. Domestic navigation and trade, it decreed, could only be carried on by citizens of the United States. If the representatives of the American people acted in this patriotic manner to advance the national policy, and if their action was accepted without protest in the courts, who can say that they did not enact such beneficial laws under the all-pervading police power, with the prime motive of safeguarding the country and of promoting its prosperity? Quite similarly, the Philippine Legislature made up entirely of Filipinos, representing the mandate of the Filipino people and the guardian of their rights, acting under practically autonomous powers, and imbued with a strong sense of Philippinism, has desired for these Islands safety from foreign interlopers, the use of the common property exclusively by its citizens and the citizens of the United States, and protection for the common good of the people. Who can say, therefore, especially can a court, that with all the facts and circumstances affecting the Filipino people before it, the Philippine Legislature has erred in the enactment of Act No. 2761? Surely, the members of the judiciary are not expected to live apart from active life, in monastic seclusion amidst dusty tomes and ancient records, but, as keen spectators of passing events and alive to the dictates of the general the national welfare, can incline the scales of their decisions in favor of that solution which will most effectively promote the public policy. All the presumption is in favor of the constitutionally of the law and without

good and strong reasons, courts should not attempt to nullify the action of the Legislature. "In construing a statute enacted by the Philippine Commission (Legislature), we deem it our duty not to give it a construction which would be repugnant to an Act of Congress, if the language of the statute is fairly susceptible of another construction not in conflict with the higher law." (In re Guaria [1913], 24. Phil., 36; U.S. vs. Ten Yu [1912], 24 Phil., 1.) That is the true construction which will best carry legislative intention into effect. With full consciousness of the importance of the question, we nevertheless are clearly of the opinion that the limitation of domestic ownership for purposes of obtaining a certificate of Philippine registry in the coastwise trade to citizens of the Philippine Islands, and to citizens of the United States, does not violate the provisions of paragraph 1 of section 3 of the Act of Congress of August 29, 1916 No treaty right relied upon Act No. 2761 of the Philippine Legislature is held valid and constitutional . The petition for a writ of mandamus is denied, with costs against the petitioner. So ordered.

Arellano, C.J., Torres, Johnson, Araullo, Street, Avancea and Moir, JJ., concur.

EN BANC G.R. No. L-2832 November 24, 1906

convent, and cemetery, and the sacred ornaments, books, jewels, money, and other property of the church. The defendant, by a written document of that date, refused to make such delivery. That document is as follows: At 7 o'clock last night I received through Father Agripino Pisino your respected order of the 12th instant, wherein I am advised of the appointment of Father Pisino as acting parish priest of this town, and directed to turn over to him this parish and to report to you at the vicarage. In reply thereto, I have the honor to inform you that the town of Lagonoy, in conjunction with the parish priest thereof, has seen fit to sever connection with the Pope at Rome and his representatives in these Islands, and join the Filipino Church, the head of which is at Manila. This resolution of the people was reduced to writing and triplicate copies made, of which I beg to inclose a copy herewith. For this reason I regret to inform you that I am unable to obey your said order by delivering to Father Agripino Pisino the parish property of Lagonoy which, as I understand, is now outside of the control of the Pope and his representatives in these Islands. May God guard you many years. Lagonoy, November 14, 1902. (Signed) VICENTE RAMIREZ. RT. REV. VICAR OF THIS DISTRICT. The document, a copy of which is referred to in this letter, is as follows: LAGONOY, November, 9, 1902. The municipality of this town and some of its most prominent citizens having learned through the papers from the capital of these Islands of the constitution of the Filipino National Church, separate from the control of the Pope at Rome by reason of the fact that the latter has refused to either recognize or grant the rights to the Filipino clergy which have many times been urged, and it appearing to us that the reasons advanced why such offices should be given to the Filipino clergy are evidently well-founded, we have deemed it advisable to consult with the parish priest of this town as to whether it would be advantageous to join the said Filipino Church

REV. JORGE BARLIN, in his capacity as apostolic administrator of this vacant bishopric and legal representative of the general interests of the Roman Catholic Apostolic Church in the diocese of Nueva Caceres, plaintiff-appellee, vs. P. VICENTE RAMIREZ, ex-rector of the Roman Catholic Apostolic Parochial Church of Lagonoy, AND THE MUNICIPALITY OF LAGONOY, defendants-appellants.

Manly & Gallup for appellants. Leoncio Imperial and Chicote, Miranda & Sierra for appellee.

WILLARD, J.: There had been priests of the Roman Catholic Church in the pueblo of Lagonoy, in the Province of Ambos Camarines, since 1839. On the 13th of January, 1869, the church and convent were burned. They were rebuilt between 1870 and 1873. There was evidence that this was done by the order of the provincial governor. The labor necessary for this reconstruction was performed by the people of the pueblo the direction of the cabeza debarangay. Under the law then in force, each man in the pueblo was required to work for the government, without compensation, for forty days every year. The time spent in the reconstruction of these buildings was counted as a part of the forty days. The material necessary was brought and paid for in part by the parish priest from the funds of the church and in part was donated by certain individuals of the pueblo. After the completion of the church it was always administered, until November 14, 1902, by a priest of a Roman Catholic Communion and all the people of the pueblo professed that faith and belonged to that church. The defendant, Ramirez, having been appointed by the plaintiff parish priest, took possession of the church on the 5th of July, 1901. he administered it as such under the orders of his superiors until the 14th day of November, 1902. His successor having been then appointed, the latter made a demand on this defendant for the delivery to him of the church,

and to separate from the control of the Pope as long as he continues to ignore the rights of the said Filipino clergy, under the conditions that there will be no change in the articles of faith, and that the sacraments and other dogmas will be recognized and particularly that of the immaculate conception of the mother of our Lord. But the moment the Pope at Rome recognizes and grants the rights heretofore denied to the Filipino clergy we will return to his control. In view of this, and subject to this condition, the reverend parish priest, together with the people of the town, unanimously join in declaring that from this date they separate themselves from the obedience and control of the Pope and join the Filipino National Church. This assembly and the reverend parish priest have accordingly adopted this resolution written in triplicate, and resolved to send a copy thereof to the civil government of this province for its information, and do sign the same below. Vicente Ramirez, Francisco Israel, Ambrosio Bocon, Florentino Relloso, Macario P. Ledesma, Cecilio Obias, Balbino Imperial, Juan Preseada, Fernando Deudor, Mauricio Torres, Adriano Sabater. At the meeting at which the resolution spoken of in this document was adopted, there were present about 100 persons of the pueblo. There is testimony in the case that the population of the pueblo was at that time 9,000 and that all but 20 of the inhabitants were satisfied with the action there taken. Although it is of no importance in the case, we are inclined to think that the testimony to this effect merely means that about 100 of the principal men of the town were in favor of the resolution and about 20 of such principal men were opposed to it. After the 14th of November, the defendant, Ramirez, continued in the possession of the church and other property and administered the same under the directions of his superior, the Obispo Maximo of the Independent Filipino Church. The rites and ceremonies and the manner of worship were the same after the 14th day of November as they were before, but the relations between the Roman Catholic Church and the defendant had been entirely severed. In January, 1904, the plaintiff brought this action against the defendant, Ramirez, alleging in his amended complaint that the Roman Catholic Church was the owner of the church building, the convent, cemetery, the books, money, and other property belonging thereto, and asking that it be restored to the possession thereof and that the defendant render an account of the property which he had received and which was retained by him, and for other relief.

The answer of the defendant, Ramirez, in addition to a general denial of the allegation of the complaint, admitted that he was in the possession and administration of the property described therein with the authority of the municipality of Lagonoy and of the inhabitants of the same, who were the lawful owners of the said property. After this answer had been presented, and on the 1st day of November, 1904, the municipality of Lagonoy filed a petition asking that it be allowed to intervene in the case and join with the defendant, Ramirez, as a defendant therein. This petition been granted, the municipality of the 1st day of December filed an answer in which it alleged that the defendant, Ramirez, was in possession of the property described in the complaint under the authority and with the consent of the municipality of Lagonoy and that such municipality was the owner thereof. Plaintiff answered this complaint, or answer in intervention, and the case was tried and final judgment in entered therein in favor of the plaintiff and against the defendants. The defendants then brought the case here by a bill of exceptions. That the person in the actual possession of the church and other property described in the complaint is the defendant, Ramirez, is plainly established by the evidence. It does not appear that the municipality, as a corporate body, ever took any action in reference to this matter until they presented their petition for intervention in this case. In fact, the witnesses for the defense, when they speak of the ownership of the buildings, say that they are owned by the people of the pueblo, and one witness, the president, said that the municipality as a corporation had nothing whatever to do with the matter. That the resolution adopted on the 14th of November, and which has been quoted above, was not the action of the municipality, as such, is apparent from an inspection thereof. The witnesses for the defenses speak of a delivery of the church by the people of the pueblo to the defendant, Ramirez, but there is no evidence in the case of any such delivery. Their testimony in regard to the delivery always refers to the action taken on the 14th of November, a record of which appears that in the document above quoted. It is apparent that the action taken consisted simply in separating themselves from the Roman Catholic Church, and nothing is said therein in reference to the material property then in possession of the defendant, Ramirez. There are several grounds upon which this judgment must be affirmed.

(1) As to the defendant, Ramirez, it appears that he took possession of the property as the servant or agent of the plaintiff. The only right which he had to the possession at the time he took it, was the right which was given to him by the plaintiff, and he took possession under the agreement to return that possession whenever it should be demanded of him. Under such circumstances he will not be allowed, when the return of such possession is demanded by him the plaintiff, to say that the plaintiff is not the owner of the property and is not entitled to have it delivered back to him. The principle of law that a tenant can not deny his landlord's title, which is found in section 333, paragraph 2, of the Code of Civil Procedure, and also in the Spanish law, is applicable to a case of this kind. An answer of the defendant, Ramirez, in which he alleged that he himself was the owner of the property at the time he received it from the plaintiff, or in which he alleged that the pueblo was the owner of the property at that time, would constitute no defense. There is no claim made by him that since the delivery of the possession of the property to him by the plaintiff he has acquired the title thereto by other means, nor does he is own behalf make any claim whatever either to the property or to the possession thereof. (2) The municipality of Lagonoy, in its answer, claims as such, to be the owner of the property. As we have said before, the evidence shows that it never was in the physical possession of the property. But waiving this point and assuming that the possession of Ramirez, which he alleges in his answer is the possession of the municipality, gives the municipality the rights of a possessor, the question still arises, Who has the better right to the present possession of the property? The plaintiff, in 1902, had been in the lawful possession thereof for more than thirty years and during all that time its possession had never been questioned or disturbed. That possession has been taken away from it and it has the right now to recover the possession from the persons who have so deprived it of such possession, unless the latter can show that they have a better right thereto. This was the preposition which was discussed and settled in the case of Bishop of Cebu vs. Mangaron, 1No. 1748, decided June 1, 1906. That decision holds that as against one who has been in possession for the length of the plaintiff has been in possession, and who had been deprived of his possession, and who can not produce any written evidence of title, the mere fact that the defendant is in possession does not entitle the defendant to retain that possession. In order that he may continue in possession, he must show a better right thereto. The evidence in this case does not show that the municipality has, as such, any right of whatever in the property in question. It has produced no

evidence of ownership. Its claim of ownership is rested in its brief in this court upon the following propositions: That the property in question belonged prior to the treaty of Paris to the Spanish Government; that by the treaty of Paris the ownership thereof passed to the Government of the United States; that by section 12 of the act of Congress of July 1, 1902, such property was transferred to the Government of the Philippine Islands, and that by the circular of that Government, dated November 11, 1902, the ownership and the right to the possession of this property passed to the municipality of Lagonoy. If, for the purposes of the argument, we should admit that the other propositions are true, there is no evidence whatever to support the last proposition, namely that the Government of the Philippine Islands has transferred the ownership of this church to the municipality of Lagonoy. We have found no circular of the date above referred to. The one of February 10, 1903, which is probably the one intended, contains nothing that indicates any such transfer. As to the municipality of Lagonoy, therefore, it is very clear that it has neither title, ownership, nor right of possession. (3) We have said that it would have no such title or ownership ever admitting that the Spanish Government was the owner of the property and it has passed by the treaty of Paris to the American Government. But this assumption is not true. As a matter of law, the Spanish Government at the time the treaty of peace was signed, was not the owner of this property, nor of any other property like it, situated in the Philippine Islands. It does not admit of doubt that from the earliest times the parish churches in the Philippine Islands were built by the Spanish Government. Law 2, title 2, book 1, of the Compilation of the Laws of the Indies is, in part, as follows: Having erected all the churches, cathedrals, and parish houses of the Spaniards and natives of our Indian possessions from their discovery at the cost and expense of our royal treasury, and applied for their service and maintenance the part of the tithes belonging to us by apostolic concession according to the division we have made. Law 3 of the same title to the construction of parochial churches such as the one in question. That law is as follows: The parish churches which was erected in Spanish towns shall be of durable and decent construction. Their costs shall be divided and

paid in three parts: One by our royal treasury, another by the residents and Indianencomenderos of the place where such churches are constructed, and the other part by the Indians who abide there; and if within the limits of a city, village, or place there should be any Indians incorporated to our royal crown, we command that for our part there be contributed the same amount as the residents andencomenderos, respectively, contribute; and the residents who have no Indians shall also contribute for this purpose in accordance with their stations and wealth, and that which is so given shall be deducted from the share of the Indians should pay. Law 11 of the same title is as follows: We command that the part of the tithes which belongs to the fund for the erection of churches shall be given to their superintendents to be expended for those things necessary for these churches with the advice of the prelates and officials, and by their warrants, and not otherwise. And we request and charge the archbishops and bishops not to interfere in the collection and disbursement thereof, but to guard these structures. Law 4, title 3, book 6, is as follows: In all settlements, even though the Indians are few, there shall be erected a church where mass can be decently held, and it shall have a donor with a key, notwithstanding the fact that it be the subject to or separate from a parish. Not only were all the parish churches in the Philippines erected by the King and under his direction, but it was made unlawful to erect a church without the license of the King. This provision is contained in Law 2, title 6, book 1, which is as follows: Whereas it is our intention to erect, institute, found, and maintain all cathedrals, parish churches, monasteries, votive hospitals, churches, and religious and pious establishments where they are necessary for the teaching, propagation, and preaching of the doctrine of our sacred Roman Catholic faith, and to aid to this effect with out royal treasury whenever possible, and to receive information of such places where they should be founded and are

necessary, and the ecclesiastical patronage of all our Indies belonging to us: We command that there shall not be erected, instituted, founded, or maintained any cathedral, parish church, monastery, hospital, or votive churches, or other pious or religious establishment without our express permission as is provided in Law 1, title 2, and Law 1, title 3, of this book, notwithstanding any permission heretofore given by our viceroy or other ministers, which in this respect we revoke and make null, void, and of no effect. By agreement at an early date between the Pope and the Crown of Spain, all tithes in the Indies were given by the former to the latter and the disposition made the King of the fund thus created is indicated by Law 1, title 16, book 1, which is as follows: Whereas the ecclesiastical tithes from the Indies belong to us by the apostolic concessions of the supreme pontiffs, we command the officials of our royal treasury of those provinces to collect and cause to be collected all tithes due and to become due from the crops and flocks of the residents in the manner in which it has been the custom to pay the same, and from these tithes the churches shall be provided with competent persons of good character to serve them and with all ornaments and things which may be necessary for divine worship, to the end that these churches may be well served and equipped, and we shall be informed of God, our Lord; this order shall be observed where the contrary has not already been directed by us in connection with the erection of churches. That the condition of things existing by virtue of the Laws of the Indies was continued to the present time is indicated by the royal order of the 31st of January, 1856, and by the royal order of the 13th of August, 1876, both relating to the construction and repair of churches, there being authority for saying that the latter order was in force in the Philippines. This church, and other churches similarly situated in the Philippines, having been erected by the Spanish Government, and under its direction, the next question to be considered is, To whom did these churches belong?

Title 28 of the third partida is devoted to the ownership of things and, after discussing what can be called public property and what can be called private property, speaks, in Law 12, of those things which are sacred, religious, or holy. That law is as follows: Law XII. HOW SACRED OR RELIGIOUS THINGS CAN NOT BE OWNED BY ANY PERSON. No sacred, religious, or holy thing, devoted to the service of God, can be the subject of ownership by any man, nor can it be considered as included in his property holdings. Although the priests may have such things in their possession, yet they are not the owners thereof. They, hold them thus as guardians or servants, or because they have the care of the same and serve God in or without them. Hence they were allowed to take from the revenues of the church and lands what was reasonably necessary for their support; the balance, belonging to God, was to be devoted to pious purposes, such as the feeding and clothing of the poor, the support of orphans, the marrying of poor virgins to prevent their becoming evil women because of their poverty, and for the redemption of captives and the repairing of the churches, and the buying of chalices, clothing, books, and others things which they might be in need of, and other similar charitable purposes. And then taking up for consideration the first of the classes in to which this law has divided these things, it defines in Law 13, title 28, third partida, consecrated things. That law is as follows: Sacred things, we say, are those which are consecrated by the bishops, such as churches, the altars therein, crosses, chalices, censers, vestments, books, and all other things which are in tended for the service of the church, and the title to these things can not be alienated except in certain specific cases as we have already shown in the first partida of this book by the laws dealing with this subject. We say further that even where a consecrated church is razed, the ground upon which it formerly stood shall always be consecrated ground. But if any consecrated church should fall into the hands of the enemies of our faith it shall there and then cease to be sacred as long as the enemy has it under control, although once recovered by the Christians, it will again become sacred,

reverting to its condition before the enemy seized it and shall have all the right and privileges formerly belonging to it. That the principles of the partida in reference to churches still exist is indicated by Sanchez Roman, whose work on the Civil Law contains the following statement: First Group. Spiritual and corporeal or ecclesiastical. A. Spiritual. From early times distinction has been made by authors and by law between things governed by divine law, called divine, and those governed by human law, called human, and although the former can not be the subject of civil juridical relations, their nature and species should be ascertained either to identify them and exclude them from such relations or because they furnish a complete explanation of the foregoing tabulated statement, or finally because the laws of the partida deal with them.

Divine things are those which are either directly or indirectly established by God for his service and sanctification of men and which are governed by divine or canonical laws. This makes it necessary to divide them into spiritual things, which are those which have a direct influence on the religious redemption of man such as the sacrament, prayers, fasts, indulgences, etc., and corporeal or ecclesiastical, which are those means more or less direct for the proper religious salvation of man.
7. First Group. Divine things. B. Corporeal or ecclesiastical things (sacred, religious, holy, and temporal belonging to the church). Corporeal or ecclesiastical things are so divided.

(a) Sacred things are those devoted to God, religion, and worship in general, such as temples, altars, ornaments, etc. These things can not be alienated except for some pious purpose and in such cases as are provided for in the laws, according to which their control pertains to the ecclesiastical authorities, and in so far as their use is concerned, to the believers and the clergy. (2 Derecho Civil Espaol, Sanchez Roman, p. 480; 8 Manresa, Commentaries on the Spanish Civil Code, p. 636; 3 Alcubilla, Diccionario de la Administracion Espaola, p. 486.) The partidas defined minutely what things belonged to the public in general and what belonged to private persons. In the first group churches are not

named. The present Civil Code declares in article 338 that property is of public or private ownership. Article 339, which defines public property, is as follows: Property of public ownership is 1. That destined to the public use, such as roads, canals, rivers, torrents, ports, and bridges constructed by the State, and banks, shores, roadsteads, and that of similar character. 2. That belonging exclusively to the state without being for public use and which is destined to some public service, or to the development of the national wealth, such as walls, fortresses, and other works for the defense of the territory, and mines, until their concession has been granted. The code also defines the property of provinces and of pueblos, and in defining what property is of public use, article 344 declares as follows: Property for public use in provinces and in towns comprises the provincial and town roads, the squares, streets, fountains, and public waters, the promenades, and public works of general service supported by the said towns or provinces. All other property possessed by either is patrimonial, and shall be governed by the provisions of this code, unless otherwise prescribe in special laws. It will be noticed that in either one of these articles is any mention made of churches. When the Civil Code undertook to define those things in a pueblo which were for the common use of the inhabitants of the pueblo, or which belonged to the State, while it mentioned a great many other things, it did not mention churches. It has been said that article 25 of the Regulations for the Execution of the Mortgage Law indicates that churches belong to the State and are public property. That article is as follows: There shall be excepted from the record required by article 2 of the law:

First. Property which belongs exclusively to the eminent domain of the State, and which is for the use of all, such as the shores of the sea, islands, rivers and their borders, wagon roads, and the roads of all kinds, with the exception of railroads; streets, parks, public promenades, and commons of towns, provided they are not lands of common profit to the inhabitants; walls of cities and parks, ports, and roadsteads, and any other analogous property during the time they are in common and general use, always reserving the servitudes established by law on the shores of the sea and borders of navigable rivers. Second. Public temples dedicated to the Catholic faith. A reading of this article shows that far from proving that churches belong to the State and to the eminent domain thereof, it proves the contrary, for, if they had belonged to the State, they would have been included in the first paragraph instead of being placed in a paragraph by themselves. The truth is that, from the earliest times down to the cession of the Philippines to the United States, churches and other consecrated objects were considered outside of the commerce of man. They were not public property, nor could they be subjects of private property in the sense that any private person could the owner thereof. They constituted a kind of property distinctive characteristic of which was that it was devoted to the worship of God. But, being material things was necessary that some one should have the care and custody of them and the administration thereof, and the question occurs, To whom, under the Spanish law, was intrusted that possession and administration? For the purposes of the Spanish law there was only one religion. That was the religion professed by the Roman Catholic Church. It was for the purposes of that religion and for the observance of its rites that this church and all other churches in the Philippines were erected. The possession of the churches, their care and custody, and the maintenance of religious worship therein were necessarily, therefore, intrusted to that body. It was, by virtue of the laws of Spain, the only body which could under any circumstances have possession of, or any control over, any church dedicated to the worship of God. By virtue of those laws this possession and right of control were necessarily exclusive. It is not necessary or important to give any name to this right of possession and control exercised by the Roman Catholic Church in the church buildings of the Philippines prior to 1898. It is

not necessary to show that the church as a juridical person was the owner of the buildings. It is sufficient to say that this right to the exclusive possession and control of the same, for the purposes of its creation, existed. The right of patronage, existing in the King of Spain with reference to the churches in the Philippines, did not give him any right to interfere with the material possession of these buildings. Title 6 of book 1 of the Compilation of the laws of the Indies treats Del Patronazgo Real de las Indias. There is nothing in any one of the fifty-one laws which compose this title which in any way indicates that the King of Spain was the owner of the churches in the Indies because he had constructed them. These laws relate to the right of presentation to ecclesiastical charges and offices. For example, Law 49 of the title commences as follows:

And it is hereby declared that the relinquishment or cession, as the case may be, to which the preceding paragraph refers, can not in any respect impair the property or rights which by law belong to the peaceful possession of property of all kinds, or provinces, municipalities, public or private establishments, ecclesiastical or civic bodies, or any other associations having legal capacity to acquire and possess property in the aforesaid territories renounced or ceded, or of private individuals, or whatsoever nationality such individuals may be. It is not necessary, however, to invoke the provisions of that treaty. Neither the Government of the United States, nor the Government of these Islands, has ever attempted in any way to interfere with the rights which the Roman Catholic Church had in this building when Spanish sovereignty ceased in the Philippines. Any interference that has resulted has been caused by private individuals, acting without any authority from the Government. No point is made in the brief of the appellant that any distinction should be made between the church and the convent. The convent undoubtedly was annexed to the church and, as to it, the provisions of Law 19, title 2, book 1, of the Compilation of the Laws of the Indies would apply. That law is as follows: We command that the Indians of each town or barrio shall construct such houses as may be deemed sufficient in which the priests of such towns or barrios may live comfortably adjoining the parish church of the place where that may be built for the benefit of the priests in charge of such churches and engaged in the education and conversion of their Indian parishioners, and they shall not be alienated or devoted to any other purpose. The evidence in this case makes no showing in regard to the cemetery. It is always mentioned in connection with the church and convent and no point is made by the possession of the church and convent, he is not also entitled to recover possession of the cemetery. So, without discussing the question as to whether the rules applicable to churches are all respects applicable to cemeteries, we hold for the purpose of this case that the plaintiff has the same right to the cemetery that he has to the church. (4) It is suggested by the appellant that the Roman Catholic Church has no legal personality in the Philippine Islands. This suggestion, made with

Because the patronage and right of presentation of all archbishops, bishops, dignitaries, prevents, curates, and doctrines and all other beneficiaries and ecclesiastical offices whatsoever belong to us, no other person can obtain or possess the same without our presentation as provided in Law 1 and other laws of this title. Title 15 of the first partida treats of the right of patronage vesting in private persons, but there is nothing in any one of its fifteen laws which in any way indicates that the private patron is the owner of the church. When it is said that this church never belonged to the Crown of Spain, it is not intended to say that the Government and had no power over it. It may be that by virtue of that power of eminent domain which is necessarily resides in every government, it might have appropriated this church and other churches, and private property of individuals. But nothing of this kind was ever attempted in the Philippines. It, therefore, follows that in 1898, and prior to the treaty of Paris, the Roman Catholic Church had by law the exclusive right to the possession of this church and it had the legal right to administer the same for the purposes for which the building was consecrated. It was then in the full and peaceful possession of the church with the rights aforesaid. That these rights were fully protected by the treaty of Paris is very clear. That treaty, in article 8, provides, among other things, as follows:

reference to an institution which antedates by almost a thousand years any other personality in Europe, and which existed "when Grecian eloquence still flourished in Antioch, and when idols were still worshiped in the temple of Mecca," does not require serious consideration. In the preamble to the budget relating to ecclesiastical obligations, presented by Montero Rios to the Cortes on the 1st of October 1871, speaking of the Roman Catholic Church, he says: Persecuted as an unlawful association since the early days of its existence up to the time of Galieno, who was the first of the Roman emperors to admit it among the juridicial entities protected by the laws of the Empire, it existed until then by the mercy and will of the faithful and depended for such existence upon pious gifts and offerings. Since the latter half of the third century, and more particularly since the year 313, when Constantine, by the edict of Milan, inaugurated an era of protection for the church, the latter gradually entered upon the exercise of such rights as were required for the acquisition, preservation, and transmission of property the same as any other juridical entity under the laws of the Empire. (3 Dictionary of Spanish Administration, Alcubilla, p. 211. See also the royal order of the 4th of December, 1890, 3 Alcubilla, 189.) The judgment of the court below is affirmed, with the costs of this instance against the appellant. After the expiration of twenty days from the date hereof let judgment be entered in accordance herewith, and ten days thereafter the record be remanded to the court below for execution. So ordered.

CARSON, J., concurring: I am in entire accord with the majority of the court as to the disposition of this case, but I can not adopt the reasoning by which some of the conclusions appear to have been obtained, nor accept without reserve all of the propositions laid down in the majority opinion. Profoundly as I respect the judgment of my associates, and distrustful as I ought to be of my own, the transcendant importance of the issues involved seems to impose upon me the duty of writing a separate opinion and stating therein as clearly as may be the precise grounds upon which I base my assent and the reasons which forbid my acceptance of the majority opinion in its entirety. I accept the argument and authority of the opinion of the court in so far as it finds: That the Roman Catholic Church is a juridical entity in the Philippine Islands; that the defendant, Ramirez, can not and should not be permitted in this action to deny the plaintiff's right to the possession of the property in question, because he can not be heard to set up title thereto in himself or a third person, at least until he has first formally surrendered it to the plaintiff who intrusted it to his care; that the municipality of Lagonoy has failed to show by evidence of record that it is or ever was in physical possession of the property in question; and that the possession of the defendant Ramirez, can not be relied upon as the possession of the municipality because the same reason which estops Ramirez from denying the right of possession in the plaintiff estops any other person claiming possession through him from denying that right. I agree, furthermore, with the finding that the defendant municipality failed to establish a better right to the possession than the plaintiff in this action, because, claiming to be the owner by virtue of a grant from the Philippine Government, it failed to establish the existence of such grant; and because, furthermore, it was shown that the plaintiff or his predecessors had been in possession and control of the property in question for a long period of years prior to the treaty of Paris by unlawful authority of the King of Spain, and that since the sovereignty of these Islands has been transferred to the United States the new sovereign has never at any time divested or attempted to divest the plaintiff of this possession and control. Thus far I am able to accept the reasoning of the majority opinion, and these propositions, supported as they are by the law and the evidence in this case, completely dispose of the question before us and establish the right of the plaintiff to a judgment for possession.

Arellano, C.J., Torres, Mapa and Tracey, JJ., concur. Johnson, J., reserves his vote.

Separate Opinions

I am not prepared, however, to give my assent to the proposition that prior to the Treaty of Paris "The King of Spain was not the owner of the property in question nor of any other property like it situated in the Philippine Islands," and inferentially that the United States is not now the owner thereof and has no property rights therein other than, perhaps, the mere right of eminent domain. I decline to affirm this proposition, first, because it is not necessary in the decision of this case; and second, because I am of opinion that, in the unlimited and unrestricted sense in which it is stated in the majority opinion, it is inaccurate and misleading, if not wholly erroneous. That it is not necessary for the proper disposition of this case will be apparent if we consider the purpose for which it is introduced in the argument and the proposition which it is intended to controvert. As stated in the majority opinion, the claim of ownership of the defendant municipality It is rested upon the following propositions: That the property in question belonged, prior to the treaty of Paris, to the Spanish Government; that by the treaty of Paris the ownership of thereof passed to the Government of the United States; that by article 12 of the act of Congress of July 1, 1902, such property was transferred to the Government of the Philippine Islands, and that by a circular of that Government dated November 11, 1902, the ownership and the right to the possession of this property passed to the municipality of Lagonoy. It is evident that if any of these propositions is successfully controverted, the defendants' claim of ownership must fall to the ground. The majority opinion finds (and I am entire accord as to this finding) that neither the Government of the United States nor the Philippine Government had ever made, or attempted to make, such transfer, and in making its finding it completely, conclusively, and finally disposes of defendants' claim of ownership. All the acts of the Government of the United States and of the present Government of the Philippine Islands which can have any relation to the property in question are before us, and so short a period of years has elapsed since the transfer of the sovereignty of these Islands to the United States that it is possible to demonstrate with the utmost certainty that by no act of the United States or of the Government of the Philippine Islands has the ownership and possession of this property been conferred upon the

defendant municipality; it is a very different undertaking, however, to review the legislation of Spain for the three centuries of her Philippine occupation for the purpose of deciding the much-vexed question of the respective property rights of the Spanish sovereign and the Roman Catholic Church in State-constructed and State-aided churches in these Islands; and if I am correct in my contention that a holding that the King of Spain was not." and, inferentially, that the Government of the United States is not, "the owner of this property or any other property like it is situated in the Philippine Islands" is not necessary for the full, final, and complete determination of the case at bar, then I think that this court should refrain from making so momentous a finding in a case wherein the United States is not a party and has never had an opportunity to be heard. But the mere fact that a finding that the King of Spain had no right of ownership in this property which could pass to the United States under the provisions of the treaty of Paris is not necessary in my opinion for the disposition of the case at bar, would not impose upon me the duty of writing a separate opinion if it were in fact and a law a correct holding. I am convinced, however, that when stated without limitations or restrictions, as it appears in the majority opinion, it is inaccurate and misleading, and it may not be improper, therefore, to indicate briefly my reasons for doubting it. As stated in the majority opinion, "it does not admit of doubt that the parish churches in the Philippines were built by the Spanish Government," and it would seem therefore that prior to their dedication, the beneficial ownership, the legal title, the possession and control of all this property must be taken to have been vested in that Government. But it must be admitted that after this property was dedicated, the ownership, in contemplation of Spanish law, was said to have been in God, and there can be no doubt that the physical possession and control of these churches for the purposes for which they were dedicated was given to the Roman Catholic Church not, as I think, absolutely and conclusively, but limited by and subject to the royal patronage ( patronato real) which included the right to intervene in the appointment of the representatives of the church into whose hands the possession and control of the sacred editors were to be intrusted. The anomalous status thus created might well have given rise to doubts and uncertainties as to the legal title and beneficial ownership of this property had not the grantor and the lawgiver of Spain expressly and specifically provided that neither the Roman Catholic Church nor any other person was

or could become the owner thereof, and that all these sacred edifices were to be regarded as beyond the commerce of men. No sacred, religious, or holy thing, devoted to the service of God, can be the subject of ownership by any man, nor it can be considered as included in his property holdings. Although the priests may have such things in their possession, yet they are not the owners thereof. They hold them thus as guardians or servants, or because they have the care of the same and serve God in or with them. Hence they were allowed to take from the Revenues of the church and lands what was reasonably necessary for their support; the balance, belonging to God, was to be devoted to pious purposes, such as the feeding and clothing of the poor, the support of orphans, the marrying of poor virgins to prevent their becoming evil women because of their poverty; and for the redemption of captivers and the repairing of the churches, and the buying of chalices, clothing, books, and other things which they might be in seed of, and other similar charitable purposes. (Law 12, title 28, partida3.) It is difficult to determine, and still more difficult to state, the precise meaning and legal effect of this disposition of the ownership, possession, and control of the parish churches in the Philippines; but since it was not possible for God, in any usual or ordinary sense to take or hold, to enforce or to defend the legal title to this property, it would seem that a grant to Him by the King or the Government of Spain could not suffice to convey to Him the legal title of the property set out in the grant, and the truth would seem to be that the treatment of this property in contemplation of Spanish law as the property of God was a mere arbitrary convention, the purpose and object of which was crystallize the status of all such property in the peculiar and unusual mold in which it was cast at the time of its dedication. So long as church and state remained united and so long as the Roman Catholic Church continued to be the church of the State, this convention served its purpose well; indeed, its very indefiniteness seems to have aided in the accomplishment of the end for which it was adopted, and on a review of all the pertinent citations of Spanish law which have been brought to my attention, I am satisfied that the status created by the above-cited law 12 of the partidas continued without substantial modification to the date of the transfer of sovereignty from the King of Spain to the United States. But this transfer of sovereignty, and the absolute severance of church and state which resulted therefrom, render it necessary to ascertain as definitely as

may be the true meaning and intent of this conventional treatment of the parish churches in the Philippines as the property of God, and it is evident that for this purpose we must look to the substance rather than the form and examine the intention of the grantor and the object he sought to attain, rather than the words and conventional terms whereby that intent was symbolically expressed. It is not necessary to go beyond the citations of the majority opinion to see that the objects which the grantor sought to attain were, first, and chiefly, to advance the cause of religion among the people of the Philippine Islands and to provide for their religious instruction and edification by furnishing them with parish churches suitable for the worship and glorification of God; second, to place those sacred edifices under the guardian care and custody of the church of the State; and, third, to deny to that church and to all others the right of ownership in the property thus dedicated; and since God could neither take nor hold the legal title to this property, the declaration of the King of Spain as set out in the above-cited law, that when dedicated these churches became in some peculiar and especial manner the property of God, was in effect no more than a solemn obligation imposed upon himself to hold them for the purposes for which they were dedicated, and to exercise no right of property in them inconsistent therewith. This declaration that these churches are the property of God and the provisions which accompanied it, appear to me to be precisely equivalent to a declaration of trust by the grantor that he would hold the property as trustee for the use for which it was dedicated that is, for the religious edification and enjoyment of the people of the Philippine Islands and that he would give to the Roman Catholic Church the physical possession and control thereof, including the disposition of any funds arising therefrom, under certain stipulated conditions and for the purposes expressly provided by law. In other words, the people of the Philippine Islands became the beneficial owners of all such property, and the grantor continued to hold the legal title, in trust nevertheless to hold the property for the purposes for which it was dedicated and on the further trust to give the custody and control thereof to the Roman Catholic Church. If this interpretation of the meaning and intent of the convention of Spanish law which treated God as the owner of the parish churches of the Philippine Islands be correct, a holding that the King of Spain had no right to ownership in this property which could pass to the United States by virtue of the treaty of Paris can not be maintained; and it is to withhold my assent from this proposition that I have been compelled to write this separate opinion.

For the purposes of this opinion it is not necessary, nor would it be profitable, to do more than indicate the line of reasoning which has led me to my conclusions, nor to discuss at length the question of ownership of this property, because whether it be held to be in abeyance or in God or in the Roman Catholic Church or in the United States it has been shown without deciding this question of ownership that the right to the possession for the purpose for which it was dedicated is in the Roman Catholic Church, and while the complaint in this action alleges that the Roman Catholic Church is the owner of the property in question, the prayer of the complaint is for the possession of this property of which it is alleged that church has been unlawfully deprived; and because, furthermore, if I am correct in my contention that the legal title to the State-constructed churches in the Philippines passed to the United States the virtue of the treaty of Paris, it passed, nevertheless, subject to the trusts under which it was held prior thereto, and the United States can not at will repudiate the conditions of that trust and retain its place in the circle of civilized nations; and as long as the property continues to be used for the purposes for which it was dedicated, the Government of the United States has no lawful right to deprive the Roman Catholic Church of the possession and control thereof under the terms and conditions upon which that possession and control were originally granted.

Endnotes 1 6 Phil. Rep., 286.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-5921 July 25, 1911

cent per month from December 15, 1908, until complete payment should have been made of the principal, and to pay the costs. While the judgment was in the course of execution, Elisa Torres de Villanueva, the wife of Vicente Sixto Villanueva, appeared and alleged: (1) That on July 24, 1909, the latter was declared to be insane by the Court of First Instance of the city of Manila; (2) that she was appointed his guardian by the same court; (3) that, on October 11, following, she was authorized by the court, as guardian, to institute the proper legal proceedings for the annulment of several bonds given by her husband while in a state of insanity, among them that concerned in the present cause, issued in behalf of The Standard Oil Company of New York; (4) that she, the guardian, was not aware of the proceedings had against her husband and was only by chance informed thereof; (5) that when Vicente S. Villanueva gave the bond, the subject of this suit, he was already permanently insane, was in that state when summoned and still continued so, for which reason he neither appeared nor defended himself in the said litigation; and, in conclusion, she petitioned the court to relieve the said defendant Villanueva from compliance with the aforestated judgment rendered against him in the suit before mentioned, and to reopen the trial for the introduction of evidence in behalf of the said defendant with respect to his capacity at the time of the execution of the bond in question, which evidence could not be presented in due season on account of the then existing incapacity of the defendant. The court granted the petition and the trial was reopened for the introduction of evidence, after due consideration of which, when taken, the court decided that when Vicente Villanueva, on the 15th of December, 1908, executed the bond in question, he understood perfectly well the nature and consequences of the act performed by him and that the consent that was given by him for the purpose was entirely voluntary and, consequently, valid and efficacious. As a result of such findings the court ruled that the petition for an indefinite stay of execution of the judgment rendered in the case be denied and that the said execution be carried out. After the filing of an exception to the above ruling, a new hearing was requested "with reference to the defendant Vicente S. Villanueva" and, upon its denial, a bill of exceptions was presented in support of the appeal submitted to this court and which is based on a single assignment of error as follows:

THE STANDARD OIL COMPANY OF NEW YORK, plaintiff-appellee, vs. JUAN CODINA ARENAS AND OTHERS, defendants; VICENTE SIXTO VILLANUEVA, appellant.

Chicote and Miranda for appellant. W.A. Kincaid and Thos. L. Hartigan for appellee.
ARELLANO, C.J.: On December 15, 1908, Juan Codina Arenas and Francisco Lara del Pino, as principals, and Alipio Locso, Vicente Sixto Villanueva and the Chinaman, Siy Ho, as sureties, assumed the obligation to pay, jointly and severally, to the corporation, The Standard Oil Company of New York, the sum of P3,305. 76, at three months from date, with interest at P1 per month. On April 5, 1909, The Standard Oil Company of New York sued the said five debtors for payment of the P3,305.76, together with the interest thereon at the rate of 1 per cent per month from the 15th of December, 1908, and the costs. The defendants were summoned, the record showing that summons was served on Vicente Sixto Villanueva on April 17, 1909. On May 12, 1909, Vicente Sixto Villanueva and Siy Ho were declared to be in default and were so notified, the latter on the 14th and the former on the 15th of May, 1909. On August 28, 1909, the Court of First Instance of the city of Manila sentenced all the defendants to pay jointly and severally to the plaintiff company the sum of P3,305.76, together with the interest thereon at 1 per

Because the lower court found that the monomania of great wealth, suffered by the defendant Villanueva, does not imply incapacity to execute a bond such as the one herein concerned. Certainly the trial court founded its judgment on the basis of the medicolegal doctrine which supports the conclusion that such monomania of wealth does not necessarily imply the result that the defendant Villanueva was not a person capable of executing a contract of bond like the one here in question. This court has not found the proof of the error attributed to the judgment of the lower court. It would have been necessary to show that such monomania was habitual and constituted a veritable mental perturbation in the patient; that the bond executed by the defendant Villanueva was the result of such monomania, and not the effect of any other cause, that is, that there was not, nor could there have been any other cause for the contract than an ostentation of wealth and this purely an effect of monomania of wealth; and that the monomania existed on the date when the bond in question was executed. With regard to the first point: "All alienists and those writers who have treated of this branch of medical science distinguish numerous degrees of insanity and imbecility, some of them, as Casper, going so far into a wealth of classification and details as to admit the existence of 60 to 80 distinct states, an enumeration of which is unnecessary. Hence, the confusion and the doubt in the minds of the majority of the authors of treatises on the subject in determining the limits of sane judgment and the point of beginning of this incapacity, there being some who consider as a sufficient cause for such incapacity, not only insanity and imbecility, but even those other chronic diseases or complaints that momentarily perturb or cloud the intelligence, as mere monomania, somnambulism, epilepsy, drunkenness, suggestion, anger, and the divers passional states which more or less violently deprive the human will of necessary liberty." (Manresa, Commentaries on the Civil Code, Vol. V, p. 342.) In our present knowledge of the state of mental alienation such certainly has not yet been reached as to warrant the conclusion, in a judicial decision, that he who suffers the monomania of wealth, believing himself to be very wealthy when he is not, is really insane and it is to be presumed, in the absence of a judicial declaration, that he acts under the influence of a perturbed mind, or that his mind is deranged when he executes an onerous contract .The bond, as aforesaid, was executed by Vicente S. Villanueva on December 15, 1908,

and his incapacity, for the purpose of providing a guardian for him, was not declared until July 24, 1909. The trial court, although it conceded as a fact that the defendant had for several years suffered from such monomania, decided, however, guided by the medico-legal doctrine above cited, that a person's believing himself to be what he is not or his taking a mere illusion for a reality is not necessarily a positive proof of insanity or incapacity to bind himself in a contract. Specifically, in reference to this case, the following facts were brought out in the testimony given by the physicians, Don Rudesino Cuervo and Don Gervasio de Ocampo, witnesses for the defendant, the first of whom had visited him some eight times during the years 1902 and 1903, and the latter, only once, in 1908. Dr. Cuervo: Q. But if you should present to him a document which in no wise concerns his houses and if you should direct him to read it, do you believe that he would understand the contents of the document? A. As to understanding it, it is possible that he might, in this I see nothing particularly remarkable; but afterwards, to decide upon the question involved, it might be that he could not do that; it depends upon what the question was. Dr. Ocampo: Q. Do you say that he is intelligent with respect to things other than those concerning greatness? A. Yes, he reasons in matters which do not refer to the question of greatness and wealth. Q. He can take a written paper and read it and understand it, can he not? A. Read it, yes, he can read it and understand it, it is probable that he can, I have made no trial.

Q. Is he not a man of considerable intelligence, only with the exception of this monomania of greatness and wealth? A. Q. A. Of not much intelligence, an ordinary intelligence. He knows how to read and write, does he not? Yes, sir I believe that he does.

Capacity to act must be supposed to attach to a person who has not previously been declared incapable, and such capacity is presumed to continue so long as the contrary be not proved, that is, that at the moment of his acting he was incapable, crazy, insane, or out his mind: which, in the opinion of this court, has not been proved in this case. With regard to the second point, it is very obvious that in every contract there must be a consideration to substantiate the obligation, so much so that, even though it should not be expressed in the contract, it is presumed that it exists and that it is lawful, unless the debtor proves the contrary. (Civil Code, art. 1277.) In the contract of bond the consideration, general, is no other, as in all contract of pure beneficence, than the liberality of the benefactor. (Id, 1274.) Out of the ordinary, a bond may be given for some other consideration, according to the agreement and the free stipulation of the parties and may be, as in onerous and remuneratory contracts, something remunerative stipulated as an equivalent, on the part of the beneficiary of the bond. It is not clear as to the reason why Villanueva gave the bond in favor of the two members of the firm of Arenas & Co., Francisco Lara, and Juan Arenas. Lara testified that he had never had dealings with Villanueva; from which it is inferred that the latter could hardly have been moved to favor the former by the benefit of an assumed obligation to pay him some three thousand pesos, with monthly interest .But he added that Arenas & Co. obtained an agent to look for sureties for them, to whom Arenas paid a certain sum of money. The witness did not know, however, whether Arenas gave the money for the signature of the bond or simply in order that the agent might find sureties. The fact is that the sureties came with the agent and signed the bond. The appellant presented, as proof that Villanueva concealed from his family his dealings with Arenas, a note by the latter addressed to his friend, Mr. Villanueva, on the 13th of May, 1909, that is, two days before Villanueva was declared to be in default, inviting him to a conference "for the purpose of treating of a matter of great importance of much interest to Villanueva, between 5 and 6 of that same day, in the garden and on the benches which are in front of the Delmonico Hotel, on Calle Palacio, corner of Calle Victoria, and if rained, in the bar on the corner." It can not be affirmed with certainty (the trial court considers it probable) that Villanueva engaged in the business of giving bonds for a certain consideration or remuneration; but neither can it be sustained that there was no other cause for the giving of the bond in question than the mental disorder that dominated the intellect of

Mr. F.B. Ingersoll, a witness for the plaintiff, testified that as a notary he had prepared the instrument of bond and received the statements of the signers; that he explained to Mr. Villanueva its contents and when the witness asked the latter whether he wished to sign it he replied that he was willing and did in fact do so; that the defendant's mental condition appeared to the witness to be normal and regular and that he observed nothing to indicate the contrary; and that the defendant was quiet and composed and spoke in an ordinary way without giving cause fir any suspicion that there was anything abnormal. Honorable Judge Araullo testified as a witness for the plaintiff that while trying in the Court of First Instance, over which he presided, the case concerning the estate of the Chinaman Go-Cho-Co, and Mr. Villanueva having been proposed as a surety therein, the witness asked him some questions about his property, in order to ascertain whether he was solvent and would be adequate surety, and that Villanueva testified the same as many, others had done, and witness did not notice any particular disorder or perturbation of his mental faculties; that he answered the questions concerning the property that he held, stated its value, specified the place where it was situated, his answers being precisely relevant to the matter treated; that he therefore approved the bond; and that all this took place between July and September, 1908. This witness having been asked, on cross-examination, whether Mr. Villanueva, subsequent to the date mentioned, had again been surety in any other case, and whether it appeared strange to witness that Mr. Villanueva should engage in giving bonds and whether for that reason he rejected this new bond, replied that it was in that same case relative to the estate of the Chinaman Go-Cho-Co that he endeavored to investigate, as he customarily did, with regard to whether Mr. Villanueva had given any other previous bond, and the discovered that he had in fact previously given bond in a criminal case, but that, as it had already been cancelled, he had no objection to accepting the one offered by Mr. Villanueva in the said Go-Cho-Co case.

the person obligated, to the extent of his believing himself so oversupplied with money as to be able to risk it in behalf of any person whatever. There is no proof that the said bond was merely the product of an insensate ostentation of wealth, nor that, if Villanueva boasted of wealth in giving several bonds, among them that herein concerned, he was influenced only by the monomania of boasting of being wealthy, when he was not. Neither is there any proof whatever with respect to the third point, that is, that, granting that he was a monomaniac, he was dominated by that malady when he executed the bond now under discussion. In the interpretative jurisprudence on this kind of incapacity, to wit, lunacy or insanity, it is a rule of constant application that is not enough that there be more or less probability that a person was in a state of dementia at a given time, if there is not direct proof that, at the date of the performance of the act which it is endeavored to invalidate for want of capacity on the part of the executor, the latter was insane or demented, in other words, that he could not, in the performance of that act, give his conscious, free, voluntary, deliberate and intentional consent. The witness who as physicians testified as to extravagancies observed in Villanueva's conduct, referred, two of them, to a time prior to 1903, and another of them to the year 1908, but none to December 15, 1908, the date of the execution of the bond sought to be invalidated. the testimony of one of these witnesses shows that when Villanueva's wife endeavored, in 1908, to have her husband confined in the Hospicio de San Jose and cared for therein, objection was made by the director of the institution who advised her that if he entered in that way and lodged in the ward for old men, as soon as he shouted and disturbed them in their sleep he would have to be locked up in the insane ward; to which Villanueva's wife replied "that her husband was not exactly insane enough to be placed among the insane." This same lady, testifying as a witness in this case, stated: that no restrictions had ever been placed upon her husband's liberty to go wherever he wished and do what he liked; that her husband had property of his own and was not deprived of its management; that he went out every morning without her knowing where he went; that she did not know whether he had engaged in the business of signing bonds, and that, with reference to the one now concerned, she had learned of it only by finding to note, before mentioned, wherein Arenas invited him to a rendezvous on the benches in front of the Delmonico Hotel; that she had not endeavored legally to deprive him of the management of his own real estate which had been inherited by him, although he did not attend to the collection of the rents and the payment of the land tax, all this being done by her, and she also it was who attended to the subsistence of the family

and to all their needs. Finally, and with direct reference to the point under discussion, she was asked: Q. It is not true that, up to the date of his signing this bond, he used to go out of the house and was on the streets nearly every day? to which she replied: A. He went where he pleased, he does this even now. He goes to the markets, and buys provisions and other things. In fact I don't know where he goes go. Q. From his actions toward others, did he show any indication of not being sane when he was on the street, according to your opinion? A. Half of Manila knows him and are informed of this fact and it is very strange that this should have occurred. If you need witnesses to prove it, there are many people who can testify in regard to this particular. The only incorrectness mentioned by this lady is that her husband, when he went to the market, would return to the house with his pockets full of tomatoes and onions, and when she was asked by the judge whether he was a man of frugal habits, she replied that, as far as she knew, he had never squandered any large sum of money; that he had never been engaged in business; that he supported himself on what she gave him; and that if he had something to count on for his living, it was the product of his lands. Such is a summary of the facts relating to the debated incapacity of the appellant, and it is very evident that it can not be concluded therefrom that, on December 15, 1908, when Villanueva subscribed the obligation now contested, he did not possess the necessary capacity to give efficient consent with respect to the bond which he freely executed. Therefore, the judgment appealed from is affirmed, with the costs of this instance against the appellant. So ordered.

Torres, Johnson, Carson, and Moreland, JJ., concur.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-11872 December 1, 1917

DOMINGO MERCADO and JOSEFA MERCADO, plaintiffs-appellants, vs. JOSE ESPIRITU, administrator of the estate of the deceased Luis Espiritu, defendant-appellee.

Perfecto Salas Rodriguez for appellants. Vicente Foz for appellee.

getting the plaintiffs Domingo and Josefa Mercado to sign a deed of sale of the land left by their mother, for the sum of P400, which amount was divided among the two plaintiffs and their sisters Concepcion and Paz, notwithstanding the fact that said land, according to its assessment, was valued at P3,795; that one-half of the land in question belonged to Margarita Espiritu, and one-half of this share, that is, one-fourth of said land , to the plaintiffs, and the other one-fourth, to their two sisters Concepcion and Paz; that the part of the land belonging to the two plaintiffs could produce 180 cavanes of rice per annum, at P2.50 per cavan, was equivalent to P450 per annum; and that Luis Espiritu had received said products from 1901 until the time of his death. Said counsel therefore asked that judgment be rendered in plaintiffs' favor by holding to be null and void the sale they made of their respective shares of their land, to Luis Espiritu, and that the defendant be ordered to deliver and restore to the plaintiffs the shares of the land that fell to the latter in the partition of the estate of their deceased mother Margarita Espiritu, together with the products thereof, uncollected since 1901, or their equivalent, to wit, P450 per annum, and to pay the costs of the suit. In due season the defendant administrator answered the aforementioned complaint, denying each and all of the allegations therein contained, and in special defense alleged that the land, the subject-matter of the complaint, had an area of only 21 cavanes of seed rice; that, on May 25, 1894, its owner, the deceased Margarita Espiritu y Yutoc, the plaintiffs' mother, with the due authorization of her husband Wenceslao Mercado y Arnedo Cruz sold to Luis Espiritu for the sum of P2,000 a portion of said land, to wit, an area such as is usually required for fifteen cavanes of seed; that subsequently, on May 14, 1901, Wenceslao Mercado y Arnedo Cruz, the plaintiffs' father, in his capacity as administrator of the property of his children sold under pacto de retro to the same Luis Espiritu at the price of P375 the remainder of the said land, to wit, an area covered by six cavanes of seed to meet the expenses of the maintenance of his (Wenceslao's) children, and this amount being still insufficient the successively borrowed from said Luis Espiritu other sums of money aggregating a total of P600; but that later, on May 17,1910, the plaintiffs, alleging themselves to be of legal age, executed, with their sisters Maria del Consejo and Maria dela Paz, the notarial instrument inserted integrally in the 5th paragraph of the answer, by which instrument, ratifying said sale under pacto de retro of the land that had belonged to their mother Margarita Espiritu, effected by their father Wenceslao Mercado in favor of Luis Espiritu for the sum of P2,600, they sold absolutely and perpetually to said Luis Espiritu, in consideration of P400, the property that had belonged to their deceased mother and which they

TORRES, J.: This is an appeal by bill of exceptions, filed by the counsel for the plaintiffs from the judgment of September 22, 1914, in which the judge of the Seventh Judicial District dismissed the complaint filed by the plaintiffs and ordered them to keep perpetual silence in regard to the litigated land, and to pay the costs of the suit. By a complaint dated April 9, 1913, counsel for Domingo and Josefa Mercado brought suit in the Court of First Instance of Bulacan, against Luis Espiritu, but, as the latter died soon thereafter, the complaint was amended by being directed against Jose Espiritu in his capacity of his administrator of the estate of the deceased Luis Espiritu. The plaintiffs alleged that they and their sisters Concepcion and Paz, all surnamed Mercado, were the children and sole heirs of Margarita Espiritu, a sister of the deceased Luis Espiritu; that Margarita Espiritu died in 1897, leaving as her paraphernal property a tract of land of 48 hectares in area situated in the barrio of Panducot, municipality of Calumpit, Bulacan, and bounded as described in paragraph 4 of the amended complaint, which hereditary portion had since then been held by the plaintiffs and their sisters, through their father Wenceslao Mercado, husband of Margarita Espiritu; that, about the year 1910, said Luis Espiritu, by means of cajolery, induced, and fraudulently succeeded in

acknowledged having received from the aforementioned purchaser. In this cross-complaint the defendant alleged that the complaint filed by the plaintiffs was unfounded and malicious, and that thereby losses and damages in the sum of P1,000 had been caused to the intestate estate of the said Luis Espiritu. He therefore asked that judgment be rendered by ordering the plaintiffs to keep perpetual silence with respect to the land in litigation and, besides, to pay said intestate estate P1,000 for losses and damages, and that the costs of the trial be charged against them. In reply to the cross-complaint, the plaintiffs denied each and all of the facts therein set forth, and in special defense alleged that at the time of the execution of the deed of sale inserted in the cross-complaint the plaintiffs were still minors, and that since they reached their majority the four years fixed by law for the annulment of said contract had not yet elapsed. They therefore asked that they be absolved from the defendant's cross-complaint. After trial and the introduction of evidence by both parties, the court rendered the judgment aforementioned, to which the plaintiffs excepted and in writing moved for a reopening of the case and a new trial. This motion was overruled, exception was taken by the petitioners, and the proper bill of exceptions having been presented, the same was approved and transmitted to the clerk of this court. As the plaintiffs assailed the validity of the deed of sale, Exhibit 3, executed by them on May 17, 1910, on the ground that they were minors when they executed it, the questions submitted to the decision of this court consist in determining whether it is true that the plaintiffs were then minors and therefore incapable of selling their property on the date borne by the instrument Exhibit 3; and in case they then were such, whether a person who is really and truly a minor and, notwithstanding, attests that he is of legal age, can, after the execution of the deed and within legal period, ask for the annulment of the instrument executed by him, because of some defect that invalidates the contract, in accordance with the law (Civ. Code, arts. 1263 and 1300), so that he may obtain the restitution of the land sold. The records shows it to have been fully proven that in 1891 Lucas Espiritu obtained title by composition with the State, to three parcels of land, adjoining each other, in the sitio of Panducot of the pueblo of Calumpit, Bulacan, containing altogether an area of 75 hectares, 25 ares, and 59 centares, which facts appear in the title Exhibit D; that, upon Luis Espiritu's death, his said lands passed by inheritance to his four children named

Victoria, Ines, Margarita, and Luis; and that, in the partition of said decedent's estate, the parcel of land described in the complaint as containing forty-seven and odd hectares was allotted to the brother and sister Luis and Margarita, in equal shares. Margarita Espiritu, married to Wenceslao Mercado y Ardeno Cruz, had by this husband five children, Maria Consejo, Maria de la Paz, Domingo, Josefa, and Amalia, all surnamed Mercado y Espiritu, who, at the death of their mother in 1896 inherited, by operation of law, one-half of the land described in the complaint. The plaintiffs' petition for annulment of the sale and the consequent restitution to them of two-fourths of the land left by their mother, that is, of one-fourth of all the land described in the complaint, and which, they stated, amounts to 11 hectares, 86 ares and 37 centares. To this claim the defendant excepted, alleging that the land in question comprised only an area such as is customarily covered by 21 cavanes of seed. It was also duly proven that, by a notarial instrument of May 25, 1894, the plaintiffs' mother conveyed by actual and absolute sale for the sum of P2,000, to her brother Luis Espiritu a portion of the land now on litigation, or an area such as is usually covered by about 15 cavanes of seed; and that, on account of the loss of the original of said instrument, which was on the possession of the purchaser Luis Espiritu, and furthermore because, during the revolution, the protocols or registers of public documents of the Province of Bulacan were burned, Wenceslao Mercado y Arnedo Cruz, the widower of the vendor and father of the plaintiffs, executed, at the instance of the interested party Luis Espiritu, the notarial instrument Exhibit 1, of the date of May 20, 1901, in his own name and those of his minor children Maria Consejo, Maria de la Paz, Domingo, Josefa, and Amalia, and therein set forth that it was true that the sale of said portion of land had been made by his aforementioned wife, then deceased, to Luis Espiritu in 1894. However, even prior to said date, to wit, on May 14th of the same year, 1901, the widower Wenceslao Mercado, according to the private document Exhibit 2, pledged or mortgaged to the same man, Luis Espiritu, for P375, a part, or an area covered by six cavanes of seed, of the land that had belonged to this vendor's deceased wife, to the said Luis Espiritu and which now forms a part of the land in question a transaction which Mercado was obliged to make in order to obtain funds with which "to cover his children's needs." Wenceslao Mercado, the plaintiffs' father, having died, about the year 1904, the plaintiffs Domingo and Josefa Mercado, together with their sisters Consejo and Paz, declaring themselves to be of legal age and in possession of the required legal status to contract, executed and

subscribed before a notary the document Exhibit 3, on May 17, 1910, in which referring to the previous sale of the land, effected by their deceased mother for the sum of P2,600 and with her husband's permission and authorization, they sold absolutely and in perpetuity to Luis Espiritu, for the sum of P400 "as an increase" of the previous purchase price, the land described in said instrument and situated in Panducot, pueblo of Calumpit, Bulacan, of an area equal to that usually sown with 21 cavanes of seed bounded on the north by the lands of Flaviano Abreu and the heirs of Pedro Espiritu, on the east by those of Victoria Espiritu and Ines Espiritu, on the south by those of Luis Espiritu, and on the west by those of Hermogenes Tan-Toco and by the Sapang-Maitu stream. In this status of the case the plaintiffs seek the annulment of the deed Exhibit 3, on the ground that on the date of its execution they were minors without legal capacity to contract, and for the further reason that the deceased purchaser Luis Espiritu availed himself of deceit and fraud in obtaining their consent for the execution of said deed. As it was proven by the testimony of the clerk of the parochial church of Apalit (plaintiffs were born in Apalit) that the baptismal register books of that parish pertaining to the years 1890-1891, were lost or burned, the witness Maria Consejo Mercado recognized and identified the book Exhibit A, which she testified had been kept and taken care of by her deceased father Wenceslao Mercado, pages 396 and 397 of which bear the attestation that the plaintiff Domingo Mercado was born on August 4, 1890, and Josefa Mercado, on July 14, 1891. Furthermore, this witness corroborated the averment of the plaintiffs' minority, by the personal registration certificate of said Domingo Mercado, of the year 1914, Exhibit C, by which it appears that in 1910 he was only 23 years old, whereby it would also be appear that Josefa Mercado was 22 years of age in 1910, and therefore, on May 17,1910, when the instrument of purchase and sale, Exhibit 3, was executed, the plaintiffs must have been, respectively, 19 and 18 years of age. The witness Maria Consejo Mercado also testified that after her father's death her brother and sisters removed to Manila to live there, although her brother Domingo used to reside with his uncle Luis Espiritu, who took charge of the administration of the property left by his predecessors in interest; that it was her uncle Luis who got for her brother Domingo the other cedula, Exhibit B, pertaining to the year 1910, where in it appears that the latter was then already 23 years of age; that she did not know why her uncle did so; that she and her brother and sisters merely signed the deed of

May 17, 1910; and that her father Wenceslao Mercado, prior to his death had pledged the land to her uncle Luis Espiritu. The witness Ines Espiritu testified that after the death of the plaintiffs' father, it was Luis Espiritu who directed the cultivation of the land in litigation. This testimony was corroborated by her sister Victoria Espiritu, who added that her nephew, the plaintiff Domingo, had lived for some time, she did not know just how long, under the control of Luis Espiritu. Roque Galang, married to a sister of Luis Espiritu, stated that the land that fell to his wife and to his sister-in-law Victoria, and which had an area of about 8 hectares less than that of the land allotted to the aforementioned Luis and Margarita produced for his wife and his sister-in-law Victoria a net and minimum yield of 507 cavanes in 1907, in spite of its being high land and of inferior quality, as compared with the land in dispute, and that its yield was still larger in 1914, when the said two sisters' share was 764 cavanes. Patricio Tanjucto, the notary before whom the deed Exhibit 3 was ratified, was a witness for the defendant. He testified that this deed was drawn up by him at the request of the plaintiff Josefa Mercado; that the grantors of the instrument assured him that they were all of legal age; that said document was signed by the plaintiffs and the other contracting parties, after it had been read to them and had been translated into the Pampangan dialect for those of them who did not understand Spanish. On crossexamination, witness added that ever since he was 18 years of age and began to court, he had known the plaintiff Josefa Mercado, who was then a young maiden, although she had not yet commenced to attend social gatherings, and that all this took place about the year 1898, for witness said that he was then [at the time of his testimony, 1914,] 34 years of age. Antonio Espiritu, 60 years of age, who knew Lucas Espiritu and the properties owned by the latter, testified that Espiritu's land contained an area of 84 cavanes, and after its owner's death, was under witness' administration during to harvest two harvest seasons; that the products yielded by a portion of this land, to wit, an area such as is sown by about 15 cavanes of seed, had been, since 1894, utilized by Luis Espiritu, by reason of his having acquired the land; and that, after Margarita Espiritu's death, her husband Wenceslao Mercado took possession of another portion of the land, containing an area of six cavanes of seed and which had been left by this

deceased, and that he held same until 1901, when he conveyed it to Luis Espiritu. lawphi1.net The defendant-administrator, Jose Espiritu, son of the deceased Luis Espiritu, testified that the plaintiff Domingo Mercado used to live off and on in the house of his deceased father, about the year 1909 or 1910, and used to go back and forth between his father's house and those of his other relatives. He denied that his father had at any time administered the property belonging to the Mercado brother and sisters. In rebuttal, Antonio Mercado, a cousin of Wenceslao, father of the plaintiffs, testified that he mediate in several transactions in connection with a piece of land belonging to Margarita Espiritu. When shown the deed of purchase and sale Exhibit 1, he stated that he was not acquainted with its contents. This same witness also testified that he mediated in a transaction had between Wenceslao Mercado and Luis Espiritu (he did not remember the year), in which the former sold to the latter a parcel of land situated in Panducot. He stated that as he was a witness of the deed of sale he could identify this instrument were it exhibited to him; but he did not do so, for no instrument whatever was presented to him for identification. The transaction mentioned must have concerned either the ratification of the sale of the land of 15 cavanes, in 1901, attested in Exhibit 1, or the mortgage or pledge of the other parcel of 6 cavanes, given on May 14, 1901, by Wenceslao Mercado to Luis Espiritu, as may be seen by the private document Exhibit 2. In rebuttal, the plaintiff Josefa Mercado denied having gone to the house of the notary Tanjutco for the purpose of requesting him to draw up any document whatever. She stated that she saw the document Exhibit 3 for the first time in the house of her uncle Luis Espiritu on the day she signed it, on which occasion and while said document was being signed said notary was not present, nor were the witnesses thereto whose names appear therein; and that she went to her said uncle's house, because he had sent for her, as well as her brother and sisters, sending a carromata to fetch them. Victoria Espiritu denied ever having been in the house of her brother. Luis Espiritu in company with the plaintiffs, for the purpose of giving her consent to the execution of any deed in behalf of her brother. The evidence adduced at the trial does not show, even circumstantially, that the purchaser Luis Espiritu employed fraud, deceit, violence, or intimidation, in order to effect the sale mentioned in the document Exhibit 3, executed on May 17, 1910. In this document the vendors, the brother and the sisters Domingo, Maria del Consejo, Paz and, Josefa surnamed Mercado y Espiritu, attested the certainty of the previous sale which their mother, during her

lifetime, had made in behalf of said purchaser Luis Espiritu, her brother with the consent of her husband Wenceslao Mercado, father of the vendors of the portion of land situated in the barrio of Panducot, pueblo of Calumpit, Bulacan; and in consideration of the fact that the said vendor Luis Espiritu paid them, as an increase, the sum of P400, by virtue of the contract made with him, they declare having sold to him absolutely and in perpetuity said parcel of the land, waive and thenceforth any and all rights they may have, inasmuch as said sum constitutes the just price of the property. So that said document Exhibit 3 is virtually an acknowledgment of the contract of sale of the parcel or portion of land that would contain 15 cavanes of seed rice made by the vendors' mother in favor of the purchaser Luis Espiritu, their uncle, and likewise an acknowledgment of the contract of pledge or mortgage of the remainder of said land, an area of six cavanes, made with the same purchaser, at an increase of P400 over the price of P2,600, making an aggregate sum of P3,000, decomposed as follows: P2,000, collected during her lifetime, by the vendors' father; and the said increase of P400, collected by the plaintiffs. In the aforementioned sale, according to the deed of May 25, 1894, Margarita Espiritu conveyed to her brother Luis the parcel of 15 cavanes of seed, Exhibit 1, and after her death the plaintiffs' widowed father mortgaged or pledged the remaining parcel or portion of 6 cavanes of seed to her brother-in-law, Luis Espiritu, in May, 1901 (Exhibit 2). So it is that the notarial instrument Exhibit 3, which was assailed by the plaintiffs, recognized the validity of the previous contracts, and the totality of the land, consisting of an area containing 21 cavanes of seed rice, was sold absolutely and in perpetuity, the vendors receiving in exchange P400 more; and there is no conclusive proof in the record that this last document was false and simulated on account of the employment of any violence, intimidation, fraud, or deceit, in the procuring of the consent of the vendors who executed it. Considering the relation that exists between the document Exhibit 3 and those of previous dates, Exhibits 1 and 2, and taking into the account the relationship between the contracting parties, and also the general custom that prevails in many provinces of these Islands for the vendor or debtor to obtain an increase in the price of the sale or of the pledge, or an increase in the amount loaned, without proof to the contrary, it would be improper and illegal to hold, in view of the facts hereinabove set forth, that the purchaser Luis Espiritu, now deceased, had any need to forge or simulate the document Exhibit 3 inasmuch as, since May, 1894, he has held in the

capacity of owner by virtue of a prior acquisition, the parcel of land of 15 cavanes of seed, and likewise, since May, 1901, according to the contract of mortgage or pledge, the parcel of 6 cavanes, or the remainder of the total area of 21 cavanes. So that Luis Espiritu was, during his lifetime, and now, after his death, his testate or intestate estate is in lawful possession of the parcel of land situated in Panducot that contains 21 cavanes of seed, by virtue of the title of conveyance of ownership of the land measuring 15 cavanes, and, in consequence of the contract of pledge or mortgage in security for the sum of P600, is likewise in lawful possession of the remainder of the land, or an area containing 6 cavanes of seed. The plaintiffs have absolutely no right whatever to recover said first parcel of land, as its ownership was conveyed to the purchaser by means of a singular title of purchase and sale; and as to the other portion of 6 cavanes of seed, they could have redeemed it before May 17, 1910, upon the payment or the return of the sum which their deceased father Wenceslao Mercado had, during his lifetime, received as a loan under security of the pledged property; but, after the execution of the document Exhibit 3, the creditor Luis Espiritu definitely acquired the ownership of said parcel of 6 cavanes. It is therefore a rash venture to attempt to recover this latter parcel by means of the contract of final and absolute sale, set forth in the deed Exhibit 3. Moreover, the notarial document Exhibit 1, are regards the statements made therein, is of the nature of a public document and is evidence of the fact which gave rise to its execution and of the date of the latter, even against a third person and his predecessors in interest such as are the plaintiffs. (Civ. Code, art. 1218.) The plaintiffs' father, Wenceslao Mercado, recognizing it to be perfectly true that his wife Margarita Espiritu sold said parcel of land which she inherited from her father, of an area of about "15 cavanes of seed," to her brother Luis Espiritu, by means of an instrument executed by her on May 25,1894 an instrument that disappeared or was burned and likewise recognizing that the protocols and register books belonging to the Province of Bulacan were destroyed as a result of the past revolution, at the request of his brother-in-law Luis Espiritu he had no objection to give the testimony recorded in said notarial instrument, as it was the truth regarding what had occurred, and in so doing he acted as the plaintiffs' legitimate father in the

exercise of his parental authority, inasmuch as he had personal knowledge of said sale, he himself being the husband who authorized said conveyance, notwithstanding that his testimony affected his children's interest and prejudiced his own, as the owner of any fruits that might be produced by said real property. The signature and handwriting of the document Exhibit 2 were identified as authentic by one of the plaintiffs, Consejo Mercado, and as the record shows no evidence whatever that this document is false, and it does not appear to have been assailed as such, and as it was signed by the plaintiffs' father, there is no legal ground or well-founded reason why it should be rejected. It was therefore properly admitted as evidence of the certainty of the facts therein set forth. The principal defect attributed by the plaintiffs to the document Exhibit 3 consists in that, on the date of May 17, 1910, when it was executed that they signed it, they were minors, that is, they had not yet attained the age of 21 years fixed by Act No. 1891, though no evidence appears in the record that the plaintiffs Josefa and Domingo Mercado were in fact minors, for no certified copies were presented of their baptismal certificates, nor did the plaintiffs adduce any supplemental evidence whatever to prove that Domingo was actually 19 and Josefa 18 years of age when they signed the document Exhibit 3, on May 17, 1910, inasmuch as the copybook, Exhibit A, notwithstanding the testimony of the plaintiff Consejo Mercado, does not constitute sufficient proof of the dates of births of the said Domingo and Josefa. However, even in the doubt whether they certainly were of legal age on the date referred to, it cannot be gainsaid that in the document Exhibit 3 they stated that they were of legal age at the time they executed and signed it, and on that account the sale mentioned in said notarial deed Exhibit 3 is perfectly valid a sale that is considered as limited solely to the parcel of land of 6 cavanes of seed, pledged by the deceased father of the plaintiffs in security for P600 received by him as a loan from his brother-in-law Luis Espiritu, for the reason that the parcel of 15 cavanes had been lawfully sold by its original owner, the plaintiffs' mother. The courts, in their interpretation of the law, have laid down the rule that the sale of real estate, made by minors who pretend to be of legal age, when in fact they are not, is valid, and they will not be permitted to excuse themselves from the fulfillment of the obligations contracted by them, or to

have them annulled in pursuance of the provisions of Law 6, title 19, of the 6th Partida; and the judgment that holds such a sale to be valid and absolves the purchaser from the complaint filed against him does not violate the laws relative to the sale of minors' property, nor the juridical rules established in consonance therewith. (Decisions of the supreme court of Spain, of April 27, 1860, July 11, 1868, and March 1, 1875.) itc@alf With respect to the true age of the plaintiffs, no proof was adduced of the fact that it was Luis Espiritu who took out Domingo Mercado's personal registration certificate on April 13, 1910, causing the age of 23 years to be entered therein in order to corroborate the date of the notarial instrument of May 17th of the same year; and the supposition that he did, would also allow it to be supposed, in order to show the propriety of the claim, that the cedula Exhibit C was taken out on February 14, 1914, where in it is recorded that Domingo Mercado was on that date 23 years of age, for both these facts are not proved; neither was any proof adduced against the statement made by the plaintiffs Domingo and Josefa in the notarial instrument Exhibit 3, that, on the date when they executed it, they were already of legal age, and, besides the annotation contained in the copybook Exhibit A, no supplemental proof of their true ages was introduced. Aside from the foregoing, from a careful examination of the record in this case, it cannot be concluded that the plaintiffs, who claim to have minors when they executed the notarial instrument Exhibit 3, have suffered positive and actual losses and damages in their rights and interests as a result of the execution of said document, inasmuch as the sale effected by the plaintiffs' mother, Margarita Espiritu, in May, 1894, of the greater part of the land of 21 cavanes of seed, did not occasion any damage or prejudice to the plaintiffs, inasmuch as their father stated in the document Exhibit 2 that he was obliged to mortgage or pledge said remaining portion of the land in order to secure the loan of the P375 furnished by Luis Espiritu and which was subsequently increased to P600 so as to provide for certain engagements or perhaps to meet the needs of his children, the plaintiff; and therefore, to judge from the statements made by their father himself, they received through him, in exchange for the land of 6 cavanes of seed, which passed into the possession of the creditor Luis Espiritu, the benefit which must have accrued to them from the sums of money received as loans; and, finally, on the execution of the impugned document Exhibit 3, the plaintiffs received and divided between themselves the sum of P400, which sum, added to that P2,000 received by Margarita Espiritu, and to that of the P600 collected by Wenceslao Mercado, widower of the latter and father of the plaintiffs, makes all together the sum of P3,000, the amount paid by the

purchaser as the price of all the land containing 21 cavanes of seed, and is the just price of the property, was not impugned, and, consequently, should be considered as equivalent to, and compensatory for, the true value of said land. For the foregoing reasons, whereby the errors assigned to the judgment appealed from have been refuted, and deeming said judgment to be in accordance with law and the evidence of record, we should, and do hereby, affirm the same, with costs against the appellants. So ordered.

Arellano, C. J., Johnson, Street, and Malcolm, JJ., concur.

Separate Opinions

CARSON, J., concurring: I concur. But in order to avoid misunderstanding, I think it well to indicate that the general statement, in the prevailing opinion to the effect that the making of false representations as to his age by an infant executing a contract will preclude him from disaffirming the contract or setting up the defense of infancy, must be understood as limited to cases wherein, on account of the minor's representations as to his majority, and because of his near approach thereto, the other party had good reason to believe, and did in fact believe the minor capable of contracting.

The doctrine set forth in the Partidas, relied upon by the supreme court of Spain in the cases cited in the prevailing opinion, is substantially similar to the doctrine of estoppel as applied in like instances by many of the courts in the United States. For the purposes of convenient comparison, I here insert some citations of authority, Spanish and American, recognizing the limitations upon the general doctrine to which I am inviting attention at this time; and in this connection it is worthy of note that the courts of the United States look with rather less favor than the supreme court of Spain upon the application of the doctrine, doubtless because the cases wherein it may properly be applied, are much less likely to occur in a jurisdiction where majority is reached at the age of 21 than a jurisdiction wherein majority is not ordinarily attained until the infant reaches the age of 25. Ley 6, tit. 19, Partida 6. is, in part, as follows: If he who is minor (1) deceitfully says or sets forth in an instrument that he is over twenty-five years of age, and this assertion is believed by another person who takes him to be of about that age, (2) in an action at law he should be deemed to be of the age he asserted, and should no (3) afterwards be released from liability on the plea that he was not of said age when he assumed the obligation. The reason for this is that the law helps the deceived and not the deceivers. In the glossary to these provisions of the Partidas by Gregorio Lopez, I find the following: (1) De tal tiempo. Nota bene hoc verbum, nam si appareret ex aspectu eum esse minorem, tunc adversarius non potest dicere se deceptum; imo tam ipse, quam minor videntur esse in dolo, quo casu competit minori restitutio, quia facta doli compensatione, perinde ast ac si nullus fuiset in dolo, et ideo datur restitutio; et quia scienti dolus non infertur, l. 1. D. de act. empt. secundum Cyn. Alberic et Salic. in l. 3. C. si minor se major. dixer. adde Albericum tenentem, quabndo per aspectum a liter constaret, in authent. sacramenta puberum, col. 3. C. si advers vendit. (2) Engoosamente. Adde 1. 2. et 3. C. si minor se major. dixer. Et adverte nam per istam legem Partitarum, que non distinguit, an

adultus, vel pupillus talem assertionem faciat, videtur comprobari dictum Guillielm. de Cun. de quo per Paul. de Castr. in 1. qui jurasse. in princ. D. de jurejur. quod si pupillus proximus pubertari juret, cum contrahit, se esse puberem, et postea etiam juret, quod non veniet contra contractum quod habebit locum dispositio authenticae sacramenta puberum, sicut si esset pubes: et cum isto dicto transit ibi Paul. de Cast. multum commendans, dicens, se alibi non legisse; si tamen teneamus illam opinionem, quod etiam pupillus doli capax obligatur ex juramento, non esset ita miranda dicat, decissio; vide per Alexand. in dict. 1. qui jurasse, in princ. Item lex ista Partitarum expresse sentit de adulto, non de pupillo, cum superius dixit, que paresciere de tal tiempo: Doctores etiam intelligunt de adulto 11. dict. tit. C. si minor. se major. dixer. et patet ex 11. illius tituli. Quid autem dicemus in dubio, cum non constat de dolo minoris? Azon. in summa illius tit. in fin. Cynus tamen, et alli, tenent oppositum, quia dolus non praesumitur, nisi probetur, 1. quotiens, s., qui dolo, D. de probat. Et hoc etiam vult ista lex Partitarum, cum dicit, si lo faze engoosamente: et ita tenent Alberic. et Salicet. in dict. 1. 3. ubi etiam Bart. in fin. Si autem minor sui facilitate asserat se mojorem, et ita juret, tunc distingue, ut habetur dict. 1. 3 quia aut juravit verbo tenus, et tunc non restituitur, nisi per instrumentum seu scripturam probet se minorem; et si juravit corporaliter, nullo modo restituitur, ut ibi; et per quae instrumenta probentur, cum verbo tenus juravit, vide per Specul. tit. de restit, in integr. s. quis autem, col. 4. vers. sed cujusmodi erit scriptura, ubi etiam vide per Speculatorem aliquas notabiles quaestiones in ista materia, in col. 5. videlicet, an praejudicet sibi minor ex tali juramento in aliis contractibus, et tenet, quod non; et tenet glossa finalis in 1. de aetate, D. de minor. in fin. gloss. vide ibi per Speculat. ubi etiam de aliis in ista materia. In the decision of the supreme court of Spain dated the 27th of April, 1860, I find an excellent illustration of the conditions under which that court applied the doctrine, as appears from the following resolution therein set forth. Sales of real estate made by minors are valid when the latter pretend to be twenty-five years of age and, due to the circumstances that they are nearly of that age, are married, or have administration of their property, or on account of other special circumstances affecting them, the other parties to the contract believe them to be of legal age.

With these citations compare the general doctrine in the United States as set forth in 22 Cyc. (p. 610), supported by numerous citations of authority.

Estoppel to disaffirm (I) In General. The doctrine of estoppel

not being as a general rule applicable to infants, the court will not readily hold that his acts during infancy have created an estoppel against him to disaffirm his contracts. Certainly the infant cannot be estopped by the acts or admissions of other persons.

(II) False representations as to age. According to some authorities the fact that an infant at the time of entering into a contract falsely represented to the person with whom he dealt that he had attained the age of majority does not give any validity to the contract or estop the infant from disaffirming the same or setting up the defense of infancy against the enforcement of any rights thereunder; but there is also authority for the view that such false representations will create an estoppel against the infant, and under the statutes of some states no contract can be disaffirmed where, on account of the minor's representations as to his majority, the other party had good reason to believe the minor capable of contracting. Where the infant has made no representations whatever as to his age, the mere fact that the person with whom he dealt believed him to be of age, even though his belief was warranted by the infant's appearance and the surrounding circumstances, and the infant knew of such belief, will not render the contract valid or estop the infant to disaffirm.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-27710 January 30, 1928

to Exhibit 3, was P200 and according to the testimony of Paula Prado, was P150, and Genoveva Muerong having learned later that the land within which was included that described in said Exhibit 3, had a Torrens title issued in favor of the plaintiff's father, of which the latter is the only heir and caused the plaintiff to sign a conveyance of the land. At any rate, even supposing that the document in question, Exhibit 1, embodies all of the requisites prescribed by law for its efficacy, yet it does not, according to the provisions of section 50 of Act No. 496, bind the land and would only be a valid contract between the parties and as evidence of authority to the register of deeds to make the proper registration, inasmuch as it is the registration that gives validity to the transfer. Therefore, the defendants, by virtue of the document Exhibit 1 alone, did not acquire any right to the property sold as much less, if it is taken into consideration, the vendor Isidro Bambalan y Prado, the herein plaintiff, was a minor. As regards this minority, the doctrine laid down in the case of Mercado and Mercado vs. Espiritu (37 Phil., 215), wherein the minor was held to be estopped from contesting the contract executed by him pretending to be age, is not applicable herein. In the case now before us the plaintiff did not pretend to be of age; his minority was well known to the purchaser, the defendant, who was the one who purchased the plaintiff's first cedula used in the acknowledgment of the document. In regard to the amount of money that the defendants allege to have given the plaintiff and her son in 1992 as the price of the land, the preponderance of evidence shows that no amount was given by the defendants to the alleged vendors in said year, but that the sum of P663.40, which appears in the document Exhibit 1, is arrived at, approximately, by taking the P150 received by Paula Prado and her husband in 1915 and adding thereto interest at the rate of 50 per cent annum, then agreed upon, or P75 a year for seven years up to July 31, 1922, the sate of Exhibit 1. The damages claimed by the plaintiff have not been sufficiently proven, because the witness Paula Prado was the only one who testified thereto, whose testimony was contradicted by that of the defendant Genoveva Muerong who, moreover, asserts that she possesses about half of the land in question. There are, therefore, not sufficient data in the record to award the damages claimed by the plaintiff.

ISIDRO BAMBALAN Y PRADO, plaintiff-appellant, vs. GERMAN MARAMBA and GENOVEVA MUERONG, defendantsappellants.

Pedro C. Quinto for plaintiff-appellant. Turner, Rheberg and Sanchez for defendants-appellants.
ROMUALDEZ, J.: The defendants admit in their amended answer those paragraphs of the complaint wherein it is alleged that Isidro Bambalan y Colcotura was the owner, with Torrens title, of the land here in question and that the plaintiff is the sole and universal heir of the said deceased Isidro Bambalan y Colcotura, as regards the said land. This being so, the fundamental question to be resolved in this case is whether or not the plaintiff sold the land in question to the defendants. The defendants affirm they did and as proof of such transfer present document Exhibit 1, dated July 17, 1922. The plaintiff asserts that while it is true that he signed said document, yet he did so by intimidation made upon his mother Paula Prado by the defendant Genoveva Muerong, who threatened the former with imprisonment. While the evidence on this particular point does not decisively support the plaintiff's allegation, this document, however, is vitiated to the extent of being void as regards the said plaintiff, for the reason that the latter, at the time he signed it, was a minor, which is clearly shown by the record and it does not appear that it was his real intention to sell the land in question. What is deduced from the record is, that his mother Paula Prado and the latter's second husband Vicente Lagera, having received a certain sum of money by way of a loan from Genoveva Muerong in 1915 which, according

In view of the foregoing, the dispositive part of the decision appealed from is hereby affirmed, without any express findings as to the costs in this instance. So ordered.

Johnson, Street, Malcolm, Ostrand, Johns and Villa-Real, JJ., concur.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-1720 March 4, 1950

the lot sold to Antonio Azores (who was absolved from the complaint), and to reconvey to Ramon Alcantara an undivided one-fourth interest in the lot originally covered by certificate of title NO. 752 of Laguna plus the cost of the suit. From this judgment Sia Suan and Gaw Chiao have come to us on appeal by certiorari. It is undeniable that the deed of sale signed by the appellee, Ramon Alcantara, On August 3, 1931, showed that he, like his co-signers (father and brother), was then of legal age. It is not pretend and there is nothing to indicate that the appellants did not believe and rely on such recital of fact. This conclusion is decisive and very obvious in the decision of the Court of Appeals It is true that in the resolution on the for reconsideration, the Court of Appeals remarked that "The fact that when informed of appellant's minority, the appellees too no steps for nine years to protect their interest beyond requiring the appellant to execute a ratification of the sale while still a minor, strongly indicates that the appellees knew of his minority when the deed of sale was executed." But the feeble insinuation is sufficiently negative by the following positive pronouncements of the Court of Appeals as well in said resolution as in the decision. As to the complaint that the defendant is guilty of laches, suffice it to say that the appellees were informed of his minority within one (1) month after the transaction was completed. (Resolution.) Finally, the appellees were equally negligent in not taking any action to protect their interest form and after August 27, 1931, when they were notified in writing of appellant's minority. (Resolution.) . . . The fact remains that the appellees were advised within the disaffirm the contract . . . (Decision.)

SIA SUAN and GAW CHIAO, petitioners, vs. RAMON ALCANTARA, respondent.

Antonio Barredo for petitioners. Zosimo D. Tanalega for respondents.

PARAS, J.: On August 3, 1931, a deed of sale was executed by Rufino Alcantara and his sons Damaso Alcantara and Ramon Alcantara conveying to Sia Suan five parcels of land. Ramon Alcantara was then 17 years, 10 months and 22 days old. On August 27, 1931, Gaw Chiao (husband of Sia Suan) received a letter from Francisco Alfonso, attorney of Ramon Alcantara, informing Gaw Chiao that Ramon Alcantara was a minor and accordingly disavowing the contract. After being contacted by Gaw Chiao, however, Ramon Alcantara executed an affidavit in the office of Jose Gomez, attorney of Gaw Chiao, wherein Ramon Alcantara ratified the deed of sale. On said occasion Ramon Alcantara received from Gaw Chiao the sum of P500. In the meantime, Sia Suan sold one of the lots to Nicolas Azores from whom Antonio Azores inherited the same. On August 8, 1940, an action was instituted by Ramon Alcantara in the Court of First Instance of Laguna for the annulment of the deed of sale as regards his undivided share in the two parcels of land covered by certificates of title Nos. 751 and 752 of Laguna. Said action was against Sia Suan and her husband Gaw Chiao, Antonio, Azores, Damaso Alcantara and Rufino Alcantara (the latter two being, respectively, the brother and father of Ramon Alcantara appealed to the Court of Appealed which reversed the decision of the trial court, on the ground that the deed of sale is not binding against Ramon Alcantara in view of his minority on the date of its execution, and accordingly sentenced Sia Suan to pay to Ramon Alcantara the sum of P1,750, with legal interest from December 17, 1931, in lieu of his share in

month that appellant was a minor, through the letter of Attorney Alfonso (Exhibit 1) informing appellees of his client's desire to

The purchaser having been apprised of incapacity of his vendor shortly after the contract was made, the delay in bringing the

action of annulment will not serve to bar it unless the period fixed by the statute of limitations expired before the filing of the complaint. . . . (Decision.)

In support of the contend that the deed of sale is binding on the appellee, counsel for the appellants invokes the decision in Mercado and Mercado vs. Espiritu (37 Phil., 215), wherein this court held: The courts, in their interpretation of the law, have laid down the rule that the sale of real estate, made by minors who pretend to be of legal age, when it fact they are not, is valid, and they will not be permitted to excuse themselves from the fulfillment of the obligations contracted by them, or to have them annulled in pursuance of the provisions of Law 6 title 19, of the 6th Partida; and the judgment that holds such a sale to valid and absolves the purchaser from the complaint filed against him does not violate the laws relative to the sale of minors' property, nor the juridical rules established in consonance therewith. (Decisions of the Supreme Court of Spain, of April 27, 1840, July 11, 1868, and March 1, 1875.) The Court of Appeals has refused to apply this doctrine on the ground that the appellants did not actually pay any amount in cash to the appellee and therefore did not suffer any detriment by reason of the deed of sale, it being stipulated that the consideration therefore was a pre-existing indebtedness of appellee's father, Rufino Alcantara. We are of the opinion that the Court of Appeals erred. In the first place, in the case cited, the consideration for sale consisted in greater part of pre-existing obligation. In the second place, under the doctrine, to bind a minor who represents himself to be of legal age, it is not necessary for his vendee to actually part with cash, as long as the contract is supported by a valid consideration. Since appellee's conveyance to the appellants was admittedly for and in virtue of a preexisting indebtedness (unquestionably a valid consideration), it should produce its full force and effect in the absence of any other vice that may legally invalidate the same. It is not here claimed that the deed of sale is null and void on any ground other than the appellee's minority. Appellee's contract has become fully efficacious as a contract executed by parties with full legal capacity. The circumstance that, about one month after the date of the conveyance, the appellee informed the appellants of his minority, is of no moment, because appellee's previous misrepresentation had already estopped him from disavowing the contract. Said belated information merely leads to the inference that the appellants in fact did not know that the appellee was a minor on the date of the contract, and somewhat emphasizes appellee's had faith, when it is borne in mind that no sooner had he given said information

than he ratified his deed of sale upon receiving from the appellants the sum of P500. Counsel for the appellees argues that the appellants could not have been misled as to the real age of the appellee because they were free to make the necessary investigation. The suggestion, while perhaps practicable, is conspicuously unbusinesslike and beside the point, because the findings of the Court of Appeals do not show that the appellants knew or could suspected appellee's minority. The Court of Appeals seems to be of the opinion that the letter written by the appellee informing the appellants of his minority constituted an effective disaffirmance of the sale, and that although the choice to disaffirm will not by itself avoid the contract until the courts adjudge the agreement to be invalid, said notice shielded the appellee from laches and consequent estoppel. This position is untenable since the effect of estoppel in proper cases is unaffected by the promptness with which a notice to disaffirm is made. The appealed decision of the Court of Appeals is hereby reversed and the appellants absolved from the complaint, with costs against the appellee, Ramon Alcantara. So ordered.

Ozaeta, Tuason, Montemayor and Torres, JJ., concur.

Separate Opinions PADILLA, J., concurring: I concur in the result not upon the grounds stated in the majority opinion but for the following reasons: The deed of sale executed by Ramon Alcantara on 3 August 1931 conveying to Sia Suan five parcels of land is null and void insofar as the interest, share, or participation of Ramon Alcantara in two parcels of land is concerned, because on the date of sale he was 17 years, 10 months and 22 days old only. Consent being one of the essential requisites for the execution of a valid contract, a minor, such as Ramon Alcantara was, could not give his consent thereof. The only

misrepresentation as to his age, if any, was the statement appearing in the instrument that he was of age. On 27 August 1931, or 24 days after the deed was executed, Gaw Chiao, the husband of the vendee Sia Suan, was advised by Atty. Francisco Alfonso of the fact that his client Ramon Alcantara was a minor. The fact that the latter, for and in consideration of P500, executed an affidavit, whereby he ratified the deed of sale, is of no moment. He was still minor. The majority opinion invokes the rule laid down in the case of Mercado et al. vs. Espiritu, 37 Phil., 215. The rule laid down by this Court in that case is based on three judgments rendered by the Supreme Court of Spain on 27 April 1960, 11 July 1868, and 1 March 1875. In these decisions the Supreme Court of Spain applied Law 6, Title 19, of the 6th Partida which expressly provides: "Diziendo o ortogando el que fuese menor, que era mayor de XXV aos, si ouiesse persona que paresciesse de tal tiempo, si lo faze enganosamente, valdria el pleyto que assi fuere fecho con el e non deue ser desatado despues, como quier que non era de edad quando lo fizo: esto es, porque las leyes ayudan a los enganados, e non a los enganadores. . . ." (Alcubilla, Codigos Antigous de Espaa, p. 613.) The contract of sale involved in the case of Mercado vs. Espiritu, supra, was executed by the minors on 17 May 1910. The Law in force on this lastmentioned date was not Las Siete Partidas, 1 which was the in force at the time the cases decided by the Supreme Court of Spain referred to, but the Civil Code which took effect in the Philippines on 8 December 1889. As already stated, the Civil Code requires the consent of both parties for the valid execution of a contract (art. 1261, Civil Code). As a minor cannot give his consent, the contract made or executed by him has no validity and legal effect. There is no provision in the Civil Code similar to that of Law 6, Title 19, of the 6th Partida which is equivalent to the common law principle of estoppel. If there be an express provision in the Civil Code similar law 6, Title 19, of the 6th Partida, I would agree to the reasoning of the majority. The absence of such provision in the Civil Code is fatal to the validity of the contract executed by a minor. It would be illogical to uphold the validity of a contract on the ground of estoppel, because if the contract executed by a minor is null and void for lack of consent and produces no legal effect, how could such a minor be bound by misrepresentation about his age? If he could not be bound by a direct act, such as the execution of a deed of sale, how could he be bound by an indirect act, such as misrepresentation as to his age? The rule laid down in Young vs. Tecson, 39 O. G. 953, in my opinion, is the correct one.

Nevertheless, as the action in this case was brought on 8 August 1940, the same was barred, because it was not brought within four (4) years after the minor had become of age, pursuant to article 1301 of the Civil Code. Ramon Alcantara became of age sometime in September 1934.

Moran, C.J. and Bengzon, J., concur.

PABLO, M., disidente: No creo que Ramon Alcantara este en estoppel al querer recuperar su participacion en los lotes que el cedio a Sia Suan en la escritura de 3 de Agosto de 1931. Las circunstancias que concurrieron en su otorgamiento demostraran que es insostenible esa conclusion. La acreedora era Sia Suan, y el deudor, Rufino Alcantara por transactiones que tuvo con ella en el negocio de copra. Al fallecimiento de la esposa de Rufino, alguien se habra percatado de la dificultad de cobrar el credito porque Rufino no tenia mas que tres lotes de su exclusiva propiedad y dos lotes, como bienes gananciales. Ramon, uno de los herederos, era un menor de edad. Por eso, se procuro el otorgamiento de tal escritura, vendiendo el padre (Rufino) y sus dos hijos (Damaso y Ramon) cinco lotes amillarados en P19,592.85 por P2,500; que en realidad no fue mas que una dacion en pago de la deuda. Si no se otorgaba tal escritura, la acreedora tenia necesidad de utilizar un proceso largo de abintestato para obtener el pago de la deuda en cuanto afecte, si podia afectar, los bienes gananciales de Rufino Alcantara y su difunta esposa, o de tutela para que alguien actue en lugar del menor Ramon. El procedimiento mas corto y menos costoso entonces era hacer que el menos apareciera como con edad competente para otorgar la escritura de venta. Y asi sucedio: se otorgo la escritura. El menor no recibio ni un solo centimo. Con la herencia que habia de recibier de su difunta madre, pago la deuda de su padre. Despues de notificada Sia Suan de la reclamacion de nulidad del documento, por gestion de Gaw Chiao, Ramon Alcantara siendo menor de edad aun, firmo un affidavit ratificando la venta en la oficina del abogado de Gaw Chiao. Esta actuacion de Gar Chiao, marido de Sia Suan, denuncia que no fue Ramon el que les hacia creer que era mayor de edad y que oficiosa y voluntariamente haya solicitado el otorgamiento de la escritura de venta. Si Gaw Chiao, marido de Sia Suan, fue el que gestiono el otorgamientodel affidavit de ratificacion, ?por que no debemos concluir que

el fue quien gestiono a indicacion tal vez de algun abogado, que Ramon Alcantara estampara su firma en la escritura de 3 de agosto de 1931? Pero la firma de un menor no vale nada; debia aparecer entonces que Ramon era de mayor edad. Por que habia de interesarse el menor en otorgar una escritura de venta de tales terrenos? No es mas probable que la acreedora o su marido o algun agente haya sido el que se intereso por que Ramon tomara parte en el otorgamiento de la escritura? Que beneficio obtuvo el menor en el otorgamiento de la escritura? Nada; en cambio, la acreedora consiguio ser duena de los cinco lotes a cambio de su credito. Quedaba favorecido el menor al firmas su affidavit de ratificacion? Tampoco; con todo, Sia Suan reclama que el menor fue quien la indujo a error. Si alguien engano al alguien, no habra sido Ramon. Tenia que ser la acreedora o alguien que ayudaba a ella en conseguir el pago del credito; pero no fue, no podia ser el menor. Teniendo en cuenta todas estas circunstancias, no podemos concluir que Ramon Alcantara haya inducido a error a Sia Suan. No es aplicable, por tanto, la decision de este Tribunal en Mercado y Mercado contra Espiritu (37 Jur. Fil., 227); ni la del Tribunal Supremo de Espana, pues en tales casos, el menor fingio e hizo creer a los compradores que era mayor de edad: no era justo que el que indujo a los compradores a comprar un terreno desprendiendosedel precio de compra, sea permitido despues alegar su minoria de edad para anular la actuacion hecha por el. Eso es verdadero estoppel; pero en el caso presente no lo hay. Laches es el otro fundamento sobre que descansa la mayoria para revocar la decision apelada. Laches es medida de equidad, y no es aplicable al caso presente. Solamente debe admitirse como defensa cuando la aplicacion y hay necesidad de hacer uso de la equidad. No debe aplicarse para fomentar una injusticia sino para minimizar sus efectos y solamente debe ser utilizada como defensa cuando en la aplicacion de una ley se comete verdadera injusticia (30 C. J. S., 531). En el caso presente Ramon Alcantara tiene diez anos de plazo a contar del 3 de Agosto de 1931, dentro del cual puede pedir la anulacion de la venta. Y la demanda que inicio esta causa se presento dentro de ese plazo; no esta prescrita pues aun la accion (art. 43, Cod. Proc. Civ.). Suponiendo que Ramon Alcantara hubiera presentado su demanda antes de la venta de un lote a Nicolas Azores que sentencia se hubiera dictado? El otorgamiento de una escritura de traspaso de una cuarta parte de los dos

lotes; pero despues de vendido un lote, se ordenaria, como decidio el Tribunal de Apelacion, el traspaso de la cuarta parte del lote restante y el pago de la cuarta parte del importe en venta del lote vendido a Ramon. En uno y otro caso no se hace ningun dano a Sia Suan, solamente se le obliga a traspasar a Ramon la parte que, en herencia de los bienes gananciales dejados por su difunta madre, le corresponde. No hay dao desproporcionado que en equidad autorica a Sia Suan a invocar la defensa de laches. Si Sia Suan antes de la presentacion de la demanda, hubiera construido edificios en los lotes por valor de P3,000,000, demos por caso, tal vez seria de equidad para Sia Suan invocar la defensa de laches, pues por el silencio de Ramon Alcantara, ella ha hecho mejoras de mucho valor que con una decision semejante seria perjudicada. El trasparo a Ramon Alcantara de una cuarta parte de cada uno de los dos lotes pondria a ella en la alternativa de comprar esa cuarta parte de los lotes con precio excesivo o derribar parte de los edificios construidos. En el caso presente no se le ha puesto en esa dificil situacion; al contrario, ella estuvo disfrutando de esos dos lotes sin hacer mejoras extraordinarias, y despues de vendido el segundo lote, utilizo el dinero recibido, y no hay pruebas de que se haya causado a ella dano por no presentarse la demanda mas temprano. Voto por la confirmacion de la decision del Tribunal de Apalacion

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-12471 April 13, 1959

There can be no question about the responsibility of Mrs. Rosario L. Braganza because the minority of her consigners note release her from liability; since it is a personal defense of the minors. However, such defense will benefit her to the extent of the shares for which such minors may be responsible, (Art. 1148, Civil Code). It is not denied that at the time of signing Exhibit A, Guillermo and Rodolfo Braganza were minors-16 and 18 respectively. However, the Court of Appeals found them liable pursuant to the following reasoning: . . . . These two appellants did not make it appears in the promissory note that they were not yet of legal age. If they were really to their creditor, they should have appraised him on their incapacity, and if the former, in spite of the information relative to their age, parted with his money, then he should be contended with the consequence of his act. But, that was not the case. Perhaps defendants in their desire to acquire much needed money, they readily and willingly signed the promissory note, without disclosing the legal impediment with respect to Guillermo and Rodolfo. When minor, like in the instant case, pretended to be of legal age, in fact they were not, they will not later on be permitted to excuse themselves from the fulfillment of the obligation contracted by them or to have it annulled. (Mercado, et al. vs. Espiritu, 37 Phil., 215.) [Emphasis Ours.] We cannot agree to above conclusion. From the minors' failure to disclose their minority in the same promissory note they signed, it does not follow as a legal proposition, that they will not be permitted thereafter to assert it. They had no juridical duty to disclose their inability. In fact, according to Corpuz Juris Secundum, 43 p. 206; . . . . Some authorities consider that a false representation as to age including a contract as part of the contract and accordingly hold that it cannot be the basis of an action in tort. Other authorities hold that such misrepresentation may be the basis of such an action, on the theory that such misrepresentation is not a part of, and does not grow out of, the contract, or that the enforcement of liability for such misrepresentation as tort does not constitute an indirect of enforcing liability on the contract. In order

ROSARIO L. DE BRAGANZA, ET AL., petitioners, vs. FERNANDO F. DE VILLA ABRILLE, respondent.

Oscar M. Herrera for petitioners. R. P. Sarandi and F. Valdez Anama for respondents.
BENGZON, J.: Rosario L. de Braganza and her sons Rodolfo and Guillermo petition for review of the Court of Appeal's decision whereby they were required solidarily to pay Fernando F. de Villa Abrille the sum of P10,000 plus 2 % interest from October 30, 1944. The above petitioners, it appears, received from Villa Abrille, as a loan, on October 30, 1944 P70,000 in Japanese war notes and in consideration thereof, promised in writing (Exhibit A) to pay him P10,000 "in legal currency of the P. I. two years after the cessation of the present hostilities or as soon as International Exchange has been established in the Philippines", plus 2 % per annum. Because payment had not been made, Villa Abrille sued them in March 1949. In their answer before the Manila court of first Instance, defendants claimed to have received P40,000 only instead of P70,000 as plaintiff asserted. They also averred that Guillermo and Rodolfo were minors when they signed the promissory note Exhibit A. After hearing the parties and their evidence, said court rendered judgment, which the appellate court affirmed, in the terms above described.

to hold infant liable, however, the fraud must be actual and not constructure. It has been held that his mere silence when making a contract as to age does not constitute a fraud which can be made the basis of an action of decit. (Emphasis Ours.)

The fraud of which an infant may be held liable to one who contracts with him in the belief that he is of full age must be actual not constructive, and mere failure of the infant to disclose his age is not sufficient. (27 American Jurisprudence, p. 819.) The Mecado case1 cited in the decision under review is different because the document signed therein by the minor specifically stated he was of age; here Exhibit A contained no such statement. In other words, in the Mercado case, the minor was guilty of active misrepresentation; whereas in this case, if the minors were guilty at all, which we doubt it is of passive (or constructive) misrepresentation. Indeed, there is a growing sentiment in favor of limiting the scope of the application of the Mercado ruling, what with the consideration that the very minority which incapacitated from contracting should likewise exempt them from the results of misrepresentation. We hold, on this point, that being minors, Rodolfo and Guillermo Braganza could not be legally bound by their signatures in Exhibit A. It is argued, nevertheless, by respondent that inasmuch as this defense was interposed only in 1951, and inasmuch as Rodolfo reached the age of majority in 1947, it was too late to invoke it because more than 4 years had elapsed after he had become emancipated upon reaching the age of majority. The provisions of Article 1301 of the Civil Code are quoted to the effect that "an action to annul a contract by reason of majority must be filed within 4 years" after the minor has reached majority age. The parties do not specify the exact date of Rodolfo's birth. It is undenied, however, that in October 1944, he was 18 years old. On the basis of such datum, it should be held that in October 1947, he was 21 years old, and in October 1951, he was 25 years old. So that when this defense was interposed in June 1951, four years had not yet completely elapsed from October 1947. Furthermore, there is reason to doubt the pertinency of the 4-years period fixed by Article 1301 of the Civil Code where minority is set up only as a defense to an action, without the minors asking for any positive relief from the contract. For one thing, they have not filed in this case an action for annulment.2 They merely interposed an excuse from liability. Upon the other hand, these minors may not be entirely absolved from monetary responsibility. In accordance with the provisions of Civil Code, even if their written contact is unenforceable because of non-age, they shall

make restitution to the extent that they have profited by the money they received. (Art. 1340) There is testimony that the funds delivered to them by Villa Abrille were used for their support during the Japanese occupation. Such being the case, it is but fair to hold that they had profited to the extent of the value of such money, which value has been authoritatively established in the so-called Ballantine Schedule: in October 1944, P40.00 Japanese notes were equivalent to P1 of current Philippine money. Wherefore, as the share of these minors was 2/3 of P70,000 of P46,666.66, they should now return P1,166.67.3Their promise to pay P10,000 in Philippine currency, (Exhibit A) can not be enforced, as already stated, since they were minors incapable of binding themselves. Their liability, to repeat, is presently declared without regard of said Exhibit A, but solely in pursuance of Article 1304 of the Civil Code. Accordingly, the appealed decision should be modified in the sense that Rosario Braganza shall pay 1/3 of P10,000 i.e., P3,333.334 plus 2% interest from October 1944; and Rodolfo and Guillermo Braganza shall pay jointly5 to the same creditor the total amount of P1,166.67 plus 6% interest beginning March 7, 1949, when the complaint was filed. No costs in this instance.

Paras, C.J., Padilla, Montemayor, Reyes, A., Bautista Angelo, Labrador, Concepcion and Endencia, JJ., concur.

Footnotes
1

Mercado vs. Espiritu, 37 Phil., 215.

It would be observed in this connection, that the new Civil Code does not govern the contract executed in 1944.
3

P46,666.00 divided by 40.

She says peso for peso, in view of the terms of Exhibit A. She is, indeed, willing to pay as much.

Arts. 1137, 1138, Civil Code. Debtors presumed to be bound jointly not severally. Un Pak Leung vs. Negora, 9 Phil., 381; Flaviano vs. Delgado, 11 Phil., 154; Compania General vs. Obed, 13 Phil., 391.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. Nos. L-9471 and L-9472 March 13, 1914

"eyes were very big and red and his sight penetrating" at the time he was killing his wife and daughter, and that "according to my own eyes as he looked at me he was crazy because if he was not crazy he would not have killed his family his wife and child." Diego Agustin, a witness for the defense, testified that he helped Martin Agustin capture the appellant; that the appellant "himself used to say before that time he had felt pains in the head and the stomach;" that at the moment he was cutting those people " he looked like a madman; crazy because he would cut everybody at random without paying any attention to who it was." Alejandra Vaquilar, the appellant's sister, testified that her brother had headache and stomach trouble about five days prior to the commission of the crimes; that "he looked very sad at the time, but I saw him run downstairs and then he pursued me;" and that "he must have been crazy because he cut me." Estanislao Canaria, who was a prisoner confined in the same jail with the appellant, testified that he had observed the appellant about five months and that sometimes "his head is not all right;" that "oftentimes since he came to the jail when he is sent for something he goes back he does without saying anything, even if he comes back he does not say anything at all;" that when the appellant returns from work he does not say a word; and that about every other night he, the appellant, cries aloud, saying, "What kind of people are you to me, what are you doing to me, you are beasts." The health officer who examined the two deceased and the other wounded parties found that the appellant's wife had five mortal wounds on the head, besides several other wounds on her hands; and that the daughter's skull was split "through and through from one side to the other." The witness stated that he made a slight examination of the defendant in the jail and that he did not notice whether defendant in the jail and that he did not notice whether defendant was suffering from any mental derangement or not. There is vast different between an insane person and one who has worked himself up into such a frenzy of anger that he fails to use reason or good judgment in what he does. Persons who get into a quarrel of fight seldom, if ever, act naturally during the fight. An extremely angry man, often, if not always, acts like a madman. The fact that a person acts crazy is not

THE UNITED STATES, plaintiff-appellee, vs. EVARISTO VAQUILAR, defendant-appellant.

William J. Rohde for appellant. Acting Attorney-General Harvey for appellee.

TRENT, J.: The appellant, Evaristo Vaquilar, was charged in two separate informations with parricide, in one for the killing of his wife and in the other for the killing of his daughter. He was sentenced to life imprisonment, to indemnify the heirs, to the accessory penalties, and to the payment of the costs in each case. From this judgment he appealed. The two cases have been submitted to this court together. The appellant in these two cases was proven to have killed his wife and daughter in the manner charged and to have wounded other persons with a bolo. The commission of these crimes is not denied. The defendant did not testify but several witnesses were introduced in his behalf, testifying that the defendant appeared to them to be insane at and subsequent to the commission of the crimes. they also testified that he had been complaining of pains in his head and stomach prior to the killing. Our attention has been directed to the following testimony: Martin Agustin, witness for the prosecution, testified that he heard the appellant, his uncle, making a noise, and that he refused into the house and saw the appellant kill his wife and daughter; that he was cut by the appellant; that there "were seven, including the small boys and girls who were cut by him;" that he did not know of any disagreement between the appellant and the two deceased; that on the morning before she was killed that the appellant had 'felt pains in his head and stomach." The witness further stated that the appellant's

conclusive that he is insane. The popular meaning of the word "crazy" is not synonymous with the legal terms "insane," "non compos mentis," "unsound mind," "idiot," or "lunatic." In this case as before indicated, one witness testified that "according to my own eyes as he looked at me he was crazy because if he was not crazy he would not have killed his family." That witness' conception of the word "crazy" evidently is the doing of some act by a person which an ordinarily rational person would not think of doing. Another witness testified that "he looked like a madman; crazy, because he would cut everybody at random without paying any attention to who it was." It is not at all unnatural for a murderer, caught in the act of killing his wife and child, to fly into a passion and strike promiscuously at those who attempt to capture him. The appellant's sister said "he must have been crazy because he cut me." This is another illustration of the popular conception of the word "crazy," it being thus used to describe a person or an act unnatural or out of the ordinary. The conduct of the appellant after he was confined in jail as described by his fellow prisoner is not inconsistent with the actions of a sane person. The reflection and remorse which would follow the commission of such deeds as those committed by the appellant might be sufficient to cause the person to cry out, "What kind of people are you to me; what are you doing to me; you are beast," and yet such conduct could not be sufficient to show that the person was insane at the time the deeds were committed. In People vs. Mortimer (48 Mich., 37; 11 N. W., 776), the defendant was indicated for an assault with intent to murder. The defense attempted to prove "a mental condition which would involved no guilt." The supreme court on appeal in this decision distinguished between passion and insanity as follows: But passion and insanity are very different things, and whatever indulgence the law may extend to persons under provocation, it does not treat them as freed from criminal responsibility. Those who have not lost control of their reason by mental unsoundness are bound to control their tempers and restrain their persons, and are liable to the law if they do not. Where persons allow their anger to lead them so far as to make them reckless, the fact that they have become at last too infuriated to keep them from mischief is merely the result of not applying restraint in season. There would be no safety for society if people could with impunity lash themselves into fury, and then to desperate acts of violence. That condition which springs from undisciplined and unbridled passion is

clearly within legal as well as moral censure and punishment. (People vs. Finley, 38 Mich., 482; Welch vs. Ware, 32 Mich., 77.) In People vs. Foy (138 N. Y., 664), the court sad: "The court very properly continued with an explanation to the jury that 'the heat of passion and feeling produced by motives of anger, hatred, or revenge, is not insanity. The law holds the doer of the act, under such conditions, responsible for the crime, because a large share of homicides committed are occasioned by just such motives as these.' " The Encyclopedia of Law and Procedure (vol. 12, p. 170), cites many cases on the subject of anger and emotional insanity and sums up those decisions in the following concise statement: Although there have been decisions to the contrary, it is now well settled that mere mental depravity, or moral insanity, so called, which results, not from any disease of mind, but from a perverted condition of the moral system, where the person is mentally sense, does not exempt one from responsibility for crimes committed under its influence. Care must be taken to distinguish between mere moral insanity or mental depravity and irresistable impulse resulting from disease of the mind. In the case of United States vs. Carmona (18 Phil. Rep., 62), the defendant was convicted of the crime of lesiones graves. The defendant's counsel, without raising any question as to the actual commission of the alleged acts, or the allegation that the accused committed them, confined himself to the statement, in behalf of his client, that on the night of the crime the defendant was sick with fever and out of his mind and that in one of his paroxysms he committed the said acts, wounding his wife and the other members of her family, without any motives whatever. In the decision in that case this court stated: In the absence of proof that the defendant had lost his reason or became demented a few moments prior to or during the perpetration of the crime, it is presumed that he was in a normal condition of mind. It is improper to conclude that he acted unconsciously, in order to relieve him from responsibility on the ground of exceptional mental condition, unless his insanity and absence of will are proven.

Regarding the burden of proof in cases where insanity is pleaded in defense of criminal actions, we quote as follows from State vs. Bunny (24 S. C., 439; 58 Am. Rep., 262, 265): But as the usual condition of men is that of sanity, there is a presumption that the accused is sane, which certainly in the first instance affords proof of the fact. (State vs. Coleman, 20 S. C., 454.) If the killing and nothing more appears, this presumption, without other proof upon the point of sanity, is sufficiently to support a conviction and as the State must prove every element of the crime charged "beyond a reasonable doubt," it follows that this presumption affords such proof. This presumption however may be overthrow. It may be shown on the part of the accused that the criminal intent did not exist at the time the act was committed. This being exceptional is a defense, and like other defenses must be made out by the party claiming the benefit of it. "The positive existence of that degree and kind of insanity that shall work a dispensation to the prisoner in the case of established homicide is a fact to be proved as it s affirmed by him." (State vs. Stark, 1 Strob., 506.) What then is necessary to make out this defense? It surely cannot be sufficient merely to allege insanity to put his sanity "in issue." That is merely a pleading, a denial, and ineffectual without proof. In order to make not such defense, as it seems to us, sufficient proof must be shown to overcome in the first place the presumption of sanity and then any other proof that may be offered. In the case of State vs. Stickley (41 Iowa, 232), the court said (syllabus): One who, possession of a sound mind, commits a criminal act under the impulse of passion or revenge, which way temporarily dethrone reason and for the moment control the will, cannot nevertheless be shield from the consequences of the act by the plea of insanity. Insanity will only excuse the commission of a criminal act, when it is made affirmatively to appear that the person committing it was insane, and that the offense was the direct consequences of his insanity.

The appellant's conduct, as appears from the record, being consistent with the acts of an enlarged criminal, and it not having been satisfactorily, shown that he was of unsound mind at the time he committed the crimes, and the facts charged in each information having been proven, and the penalty imposed being in accordance with the law, the judgments appealed from are affirmed, with costs against the appellant.

Arellano, C.J., Carson and Araullo, JJ., concur. Moreland, J., concurs in the result.

Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. L-54135 November 21, 1991 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. POLICARPIO RAFANAN, JR., defendant-appellant.

The Solicitor General for plaintiff-appellee. Causapin, Millar & Tutana Law Office for defendant-appellant.

On March 16, 1976, in the evening, after dinner, Estelita Ronaya was sent by the mother of the accused to help in their store which was located in front of their house about six (6) meters away. Attending to the store at the time was the accused. At 11:00 o'clock in the evening, the accused called the complainant to help him close the door of the store and as the latter complied and went near him, he suddenly pulled the complainant inside the store and said, "Come, let us have sexual intercourse," to which Estelita replied, "I do not like," and struggled to free herself and cried. The accused held a bolo measuring 11/2 feet including the handle which he pointed to the throat of the complainant threatening her with said bolo should she resist. Then, he forced her to lie down on a bamboo bed, removed her pants and after unfastening the zipper of his own pants, went on top of complainant and succeeded having carnal knowledge of her inspite of her resistance and struggle. After the sexual intercourse, the accused cautioned the complainant not to report the matter to her mother or anybody in the house, otherwise he would kill her. Because of fear, the complainant did not immediately report the matter and did not leave the house of the accused that same evening. In fact, she slept in the house of the accused that evening and the following morning she scrubbed the floor and did her daily routine work in the house. She only left the house in the evening of March 17, 1976. Somehow, in the evening of March 17, 1976, the family of the accused learned what happened the night before in the store between Policarpio and Estelita and a quarrel ensued among them prompting Estelita Ronaya to go back to her house. When Estelita's mother confronted her and asked her why she went home that evening, the complainant could not answer but cried and cried. It was only the following morning on March 18, 1976 that the complainant told her mother that she was raped by the accused. Upon knowing what happened to her daughter, the mother Alejandra Ronaya, immediately accompanied her to the house of Patrolman Bernardo Mairina of the

FELICIANO, J.:p Policarpio Rafanan, Jr. appeals from a decision of the then Court of First Instance of Pangasinan convicting him of the crime of rape and sentencing him to reclusion perpetua, to indemnify complainant Estelita Ronaya in the amount of P10,000.00 by way of moral damages, and to pay the costs. The facts were summarized by the trial court in the following manner: The prosecution's evidence shows that on February 27, 1976, complainant Estelita Ronaya who was then only fourteen years old was hired as a househelper by the mother of the accused, Ines Rafananalias "Baket Ines" with a salary of P30.00 a month. The accused Policarpio Rafanan and his family lived with his mother in the same house at Barangay San Nicholas, Villasis, Pangasinan. Policarpio was then married and had two children.

Villasis Police Force who lives in Barrio San Nicolas, Villasis, Pangasinan. Patrolman Mairina is a cousin of the father of the complainant. He advised them to proceed to the municipal building while he went to fetch the accused. The accused was later brought to the police headquarter with the bolo, Exhibit "E", which the accused allegedly used in threatening the complainant. 1 At arraignment, appellant entered a plea of not guilty. The case then proceeded to trial and in due course of time, the trial court, as already noted, convicted the appellant. The instant appeal is anchored on the following: Assignment of Errors 1. The lower court erred in basing its decision of conviction of appellant solely on the testimony of the complainant and her mother. 2. The lower court erred in considering the hearsay evidence for the prosecution, "Exhibits B and C". 3. The lower court erred in not believing the testimony of the expert witnesses, as to the mental condition of the accused-appellant at the time of the alleged commission of the crime of rape. 4. The lower court erred in convicting appellant who at the time of the alleged rape was suffering from insanity.2 Appellant first assails the credibility of complainant as well as of her mother whose testimonies he contends are contradictory. It is claimed by appellant that the testimony of complainant on direct examination that she immediately went home after the rape incident, is at variance with her testimony on cross examination to the effect that she had stayed in the house of appellant until the following day. Complainant, in saying that she left the house of appellant by herself, is also alleged to have contradicted her mother who stated that she (the mother) went to the store in the evening of 17 March 1979 and brought Estelita home.

The apparently inconsistent statements made by complainant were clarified by her on cross examination. In any case, the inconsistencies related to minor and inconsequential details which do not touch upon the manner in which the crime had been committed and therefore did not in any way impair the credibility of the complainant. 3 The commission of the came was not seriously disputed by appellant. The testimony of complainant in this respect is clear and convincing: Fiscal Guillermo: Q Now, we go back to that time when according to you the accused pulled you from the door and brought you inside the store after you helped him closed the store. Now, after the accused pulled you from the door and brought you inside the store what happened then? A "You come and we will have sexual intercourse," he said. Q And what did you say? A "I do not like," I said. Q And what did you do, if any, when you said you do not like to have sexual intercourse with him? A I struggled and cried. Q What did the accused do after that? A He got a knife and pointed it at my throat so I was frightened and he could do what he wanted to do. He was able to do what he wanted to do.

Q This "kutsilyo" you were referring to or knife, how big is that knife? Will you please demonstrate, if any? A This length, sir. (Which parties agreed to be about one and one-half [1-1/2] feet long.) xxx xxx xxx Fiscal Guillermo: Q Now, you said that the accused was able to have sexual intercourse with you after he placed the bolo or that knife [at] your throat. Now, will you please tell the court what did the accused do immediately after placing that bolo your throat and before having sexual intercourse you? A He had sexual intercourse with me. Q What was your wearing apparel that evening? A I was wearing pants, sir. Q Aside from the pants, do you have any underwear? A Yes, sir, I have a panty. Q Now, before the accused have sexual intercourse with you what, if any, did he do with respect to your pants and your panty? A He removed them, sir.

Q Now, while he was removing your pants and your panty what, if any, did you do? A I continued to struggle so that he could not remove my pants but he was stronger that's why he succeeded. Q Now, after he had removed your panty and your pants or pantsuit what else happened? A He went on top of me, sir. Q At the time what was the accused wearing by way of apparel? A He was wearing pants. Q When you said he went on top of you after he has removed your pantsuit and your panty, was he still wearing his pants? A He unbuttoned his pants and unfastened the zipper of his pants. Q And after he unbuttoned and unfastened his pants what did you see which he opened? A I saw his penis. Q Now, you said that after the accused has unzipped his pants and brought out his penis which you saw, he went on top of you. When he was already on top of you what did you do, if any?

A I struggled. Q Now, you said that you struggled. What happened then when you struggled against the accused when he was on top of you? A Since he was stronger, he succeeded doing what he wanted to get. xxx xxx xxx COURT: Alright, what do you mean by he was able to succeed in what he wanted to get? Fiscal Guillermo: Considering the condition of the witness, your honor, with tears, may we just be allowed to ask a leading question which is a follow-up question? Witness: A He inserted his private part inside my vagina. Fiscal Guillermo: Q Now, when he inserted his private part inside your vagina what did you feel, if any? A I felt something that came out from his inside.

Q Now, how long, if you remember, did the accused have his penis inside your vagina:? A Around five minutes maybe, sir. Q After that what happened then? A He removed it. Q After the accused has removed his penis from your vagina what else happened? A No more, sir, he sat down. Q What, if any, did he tell you? A There was, sir. He told me not to report the matter to my mother and to anybody in their house. Q What else did he tell you? A He told me that if I told anyone what happened, he will kill me. Q After that where did you go? A I went home already, sir. 4 The principal submission of appellant is that he was suffering from a metal aberration characterized as schizophrenia when he inflicted his violent intentions upon Estelita. At the urging of his counsel, the trial court suspended the trial and ordered appellant confined at the National Mental Hospital in Mandaluyong for observation and treatment. In the meantime, the case was archived. Appellant was admitted into the hospital on 29 December 1976 and stayed there until 26 June 1978.

During his confinement, the hospital prepared four (4) clinical reports on the mental and physical condition of the appellant, all signed by Dr. Simplicio N. Masikip and Dr. Arturo E. Nerit, physician-in-charge and chief, Forensic Psychiatry Service, respectively. In the first report dated 27 January 1977, the following observations concerning appellant's mental condition were set forth: On admission he was sluggish in movements, indifferent to interview, would just look up whenever questioned but refused to answer. On subsequent examinations and observations he was carelessly attired, with dishevelled hair, would stare vacuously through the window, or look at people around him. He was indifferent and when questioned, he would just smile inappropriately. He refused to verbalize, even when persuaded, and was emotionally dull and mentally inaccessible. He is generally seclusive, at times would pace the floor, seemingly in deep thought. Later on when questioned his frequent answers are "Aywan ko, hindi ko alam." His affect is dull, he claimed to hear strange voices "parang ibon, tinig ng ibon," but cannot elaborate. He is disoriented to 3 spheres and has no idea why he was brought here. The report then concluded: In view of the foregoing examinations and observations, Policarpio Rafanan, Jr. y Gambawa is found suffering from a mental disorder called schizophrenia, manifested by carelessness in grooming, sluggishness in movements, staring vacuously, indifferen[ce], smiling inappropriately, refusal to verbalize, emotional dullness, mental inaccessibility, seclusiveness, preoccupation, disorientation, and perceptual aberrations of hearing strange sounds. He is psychotic or insane, hence cannot stand court trial. He needs further hospitalization and treatment. 5

The second report, dated 21 June 1977, contained the following description of appellant's mental condition: At present he is still seclusive, undertalkative and retarded in his reponses. There is dullness of his affect and he appeared preoccupied. He is observed to mumble alone by himself and would show periods of being irritable saying "oki naman" with nobody in particular. He claim he does not know whether or not he was placed in jail and does not know if he has a case in court. Said he does not remember having committed any wrong act and the following conclusions: In view of the foregoing examinations and observations Policarpio Rafanan, Jr. y Gambawa is at present time still psychotic or insane, manifested by periods of irritability cursing nobody in particular, seclusive, underactive, undertalkative, retarded in his response, dullness of his affect, mumbles alone by himself, preoccupied and lack of insight. He is not yet in a condition to stand court trial. He needs further hospitalization and treatment. 6 In the third report, dated 5 October 1977, appellant was described as having become "better behaved, responsive" and "neat in person," and "adequate in his emotional tone, in touch with his surroundings and . . . free from hallucinatory experiences." During the preceding period, appellant had been allowed to leave the hospital temporarily; he stayed with a relative in Manila while coming periodically to the hospital for check-ups. During this period, he was said to have been helpful in the doing of household chores, conversed and as freely with other members of the household and slept well, although, occasionally, appellant smiled while alone. Appellant complained that at times he heard voices of small children, talking in a language he could not understand. The report concluded by saying that while appellant had improved in his mental condition, he was not yet in a position to stand trial since he needed further treatment, medication and check-ups. 7

In the last report dated 26 June 1978, appellant was described as behaved, helpful in household chores and no longer talking while alone. He was said to be "fairly groomed" and "oriented" and as denying having hallucinations. The report concluded that he was in a "much improved condition" and "in a mental condition to stand court trial." 8 Trial of the case thus resumed. The defense first presented Dr. Arturo Nerit who suggested that appellant was sick one or two years before his admission into the hospital, in effect implying that appellant was already suffering from schizophrenia when he raped complainant. 9 The defense next presented Raquel Jovellano, a psychiatrist engaged in private practice, who testified that she had examined and treated the appellant. Appellant's plea of insanity rests on Article 12 of the Revised Penal Code which provides: Art. 12. Circumstances which exempt from criminal

necessary that there be a complete deprivation of intelligence in committing the act, that is, that the accused be deprived of reason; that there be no responsibility for his own acts; that heacts without the least discernment; (Decision of the Supreme Court of Spain of
November 21, 1891; 47 Jur. Crim. 413.) that there be a complete absence of the power to discern, (Decision of the Supreme Court of Spain of April 29, 1916; 96 Jur. Crim. 239) or that there be a total deprivation of freedom of the will. (Decision of the Supreme Court of Spain of April 9, 1872; 6 Jur. Crim. 239) For this reason, it was held that the imbecility or insanity at the time of the

commission of the act should absolutely deprive a person of intelligence or freedom of will, because mere abnormality of his mental faculties does not exclude imputability. (Decision of the Supreme Court of Spain of
April 20, 1911; 86 Jur. Crim. 94, 97.)

liability.

The following are exempt from criminal liability: 1. An imbecile or an insane person, unless the latter has acted during a lucid interval. Where the imbecile or an insane person has committed an act which the law defines as a felony (delito), the court shall order his confinement in one of the hospitals or asylums established for persons thus afflicted, which he shall not be permitted to leave without first obtaining the permission of the same court. xxx xxx xxx Although the Court has ruled many times in the past on the insanity defense, it was only in People vs. Formigones10 that the Court elaborated on the required standards of legal insanity, quoting extensively from the Commentaries of Judge Guillermo Guevara on the Revised Penal Code, thus: The Supreme Court of Spain held that in order that this

The Supreme Court of Spain likewise held that deafmuteness cannot be [equated with] imbecility or insanity. The allegation of insanity or imbecility must be clearly proved. Without positive evidence that the defendant had previously lost his reason or was demented, a few

moments prior to or during the perpetration of the crime, it will be presumed that he was in a normal condition. Acts penalized by law are always reputed to be voluntary, and
it is improper to conclude that a person acted unconsciously, in order to relieve him from liability, on the basis of his mental condition, unless his insanity and absence of will are proved. (Emphasis supplied.)

exempting circumstance may be taken into account, it is

The standards set out in Formigones were commonly adopted in subsequent cases. 11 A linguistic or grammatical analysis of those standards suggests that Formigones established two (2) distinguishable tests: (a) the test of cognition "complete deprivation of intelligence in committing the [criminal] act," and (b) the test of volition "or that there be a total deprivation freedom of the will." But our caselaw shows common reliance on the test of cognition, rather than on a test relating to "freedom of the will;" examination of our caselaw has failed to turn up any case where this Court has exempted an accused on the sole ground that he was totally deprived of "freedom of the will," i.e., without an accompanying "complete deprivation

of intelligence." This is perhaps to be expected since a person's volition naturally reaches out only towards that which is presented as desirable by his intelligence, whether that intelligence be diseased or healthy. In any case, where the accused failed to show complete impairment or loss of intelligence, the Court has recognized at most a mitigating, not an exempting, circumstance in accord with Article 13(9) of the Revised Penal Code: "Such illness of the offender as would diminish the exercise of the will-power of the offender without however depriving him of the consciousness of his acts." 12 Schizophrenia pleaded by appellant has been described as a chronic mental disorder characterized by inability to distinguish between fantasy and reality, and often accompanied by hallucinations and delusions. Formerly calleddementia praecox, it is said to be the most common form of psychosis an usually develops between the ages 15 and 30. 13 A standard textbook in psychiatry describes some of the symptoms of schizophrenia in the following manner: Eugen Bleuler later described three general primary symptoms of schizophrenia: a disturbance of association, a disturbance of affect, and a disturbance of activity. Bleuler also stressed the dereistic attitude of the schizophrenic that is, his detachment from reality and consequent autism and the ambivalence that expresses itself in his uncertain affectivity and initiative. Thus, Bleuler's system of schizophrenia is often referred to as the four A's: association, affect, autism, and ambivalence. xxx xxx xxx Kurt Schneider described a number of first-rank symptoms of schizophrenia that he considered in no way specific for the disease but of great pragmatic value in making a diagnosis. Schneider's first-rank symptoms include the hearing of one's thoughts spoken aloud, auditory hallucinations that comment on the patient's behavior, somatic hallucinations, the experience of having one's thoughts controlled, the spreading of one's thoughts to others, delusions, and the experience of having one's actions controlled or influenced from the outside.

Schizophrenia, Schneider pointed out, also can be diagnosed exclusively on the basis of second-rank symptoms, along with an otherwise typical clinical appearances. Second-rank symptoms include other forms of hallucination, perplexity, depressive and euphoric disorders of affect, and emotional blunting.

Perceptual Disorders
Various perceptual disorders occur in schizophrenia . . . .

Hallucinations. Sensory experiences or perceptions without

corresponding external stimuli are common symptoms of schizophrenia. Most common are auditory hallucinations, or the hearing of voices. Most characteristically, two or more voices talk about the patient, discussing him in the third person. Frequently, the voices address the patient, comment on what he is doing and what is going on around him, or are threatening or obscene and very disturbing to the patient. Many schizophrenic patients experience the hearing of their own thoughts. When they are reading silently, for example, they may be quite disturbed by hearing every word they are reading clearly spoken to them.

Visual hallucinations occur less frequently than auditory hallucinations in schizophrenic patients, but they are not rare. Patients suffering from organic of affective psychoses experience visual hallucinations primarily at night or during limited periods of the day, but schizophrenic patients hallucinate as much during the day as they do during the night, sometimes almost continuously. They get relief only in sleep. When visual occur in schizophrenia, they are usually seen nearby, clearly defined, in color, life size, in three dimensions, and moving. Visual hallucinations almost never in one of the other sensory modalities. xxx xxx xxx

Cognitive Disorders

Delusions. By definition, delusions are false ideas that

cannot be corrected by reasoning, and that are idiosyncratic for the patient that is, not part of his cultural environment. They are among the common symptoms of schizophrenia.

Q Would you say doctor, therefore, that

he was conscious of threatening the victim at the time of the commission of the alleged rape?
A Yes, he was conscious. Q And he was conscious of forcing the

Most frequent are delusions of persecution, which are the key symptom in the paranoid type of schizophrenia. The conviction of being controlled by some unseen mysterious power that exercises its influence from a distance is almost pathognomonic for schizophrenia. It occurs in most, if not all, schizophrenics at one time or another, and for many it is a daily experience. The modern schizophrenic whose delusions have kept up with the scientific times may be preoccupied with atomic power, Xrays, or spaceships that take control over his mind and body. Also typical for many schizophrenics are delusional fantasies about the destruction of the world. 14 In previous cases where schizophrenia was interposed as an exempting circumtance, 15 it has mostly been rejected by the Court. In each of these cases, the evidence presented tended to show that if there was impairment of the mental faculties, such impairment was not so complete as to deprive the accused of intelligence or the consciousness of his acts. The facts of the instant case exhibit much the same situation. Dr. Jovellano declared as follows: (Fiscal Guillermo:) Q Now, this condition of the accused

victim to lie down?

A Yes.

Q And he was also conscious of

removing the panty of the victim at the time?

A Yes. Q And he was also conscious and knows

that the victim has a vagina upon which he will place his penis?
A Yeah. Q And he was conscious enough to be

competent and have an erection?

A Yes.

schizophrenic as you found him, would you say doctor that he was completely devoid of any consciousness of whatever he did in connection with the incident in this case?
A He is not completely devoid of

Q Would you say that those acts of a person no matter whether he is schizophrenic which you said, it deals

(sic) some kind of intelligence and consciousness of some acts that is committed?

A Yes, it involves the consciousness

consciousness.

because the consciousness there in relation to the act is what we call

primitive acts of any individual. The

difference only in the act of an insane and a normal individual, a normal individual will use the power of reasoning and consciousness within the standard of society while an insane causes (sic) already devoid of the fact that he could no longer withstand himself in the ordinary environment, yet his acts are within the bound of insanity or psychosis. Q Now, Doctor, of course this person suffering that ailment which you said the accused here is suffering is capable

A Well, there is no weakness on that part of the individual. They may know

what is wrong but yet there is no inhibition on the individual.

Q Yes, but actually, they are mentally

equipped with knowledge that an act they are going to commit is wrong?
A Yeah, they are equipped but the

of planning the commission of a rape?

A Yes, they are also capable.

difference is, there is what we call they lost the inhibition. The reasoning is weak and yet they understand but the volition is [not] there, the drive is [not] there. 16 (Emphasis supplied)
The above testimony, in substance, negates complete destruction of intelligence at the time of commission of the act charged which, in the current state of our caselaw, is critical if the defense of insanity is to be sustained. The fact that appellant Rafanan threatened complainant Estelita with death should she reveal she had been sexually assaulted by him, indicates, to the mind of the Court, that Rafanan was aware of the reprehensible moral quality of that assault. The defense sought to suggest, through Dr. Jovellano's last two (2) answers above, that person suffering from schizophrenia sustains not only impairment of the mental faculties but also deprivation of there power self-control. We do not believe that Dr. Jovellano's testimony, by itself, sufficiently demonstrated the truth of that proposition. In any case, as already pointed out, it is complete loss of intelligence which must be shown if the exempting circumstance of insanity is to be found. The law presumes every man to be sane. A person accused of a crime has the burden of proving his affirmative allegation of insanity. 17 Here, appellant failed to present clear and convincing evidence regarding his state of mind immediately before and during the sexual assault on Estelita. It has been held that inquiry into the mental state of the accused should relate to the period immediately before or at the very moment the act is committed. 18Appellant rested his case on the testimonies of two (2) physicians (Dr. Jovellano and Dr. Nerit) which, however, did not purport to characterize his mental condition during that critical period of time. They did not specifically relate to circumtances occurring on or immediately before

Q He is capable of laying in wait in order

to assault?
A Yes.

Q And would you say that condition that ability of a person to plan a rape and to perform all the acts preparatory to the actual intercourse could be done by an insane person? A Yes, it could be done. Q Now, you are talking of insanity in its broadest sense, is it not? A Yes, sir. Q Now, is this insane person also

capable of knowing what is right and what is wrong?

the day of the rape. Their testimonies consisted of broad statements based on general behavioral patterns of people afflicted with schizophrenia. Curiously, while it was Dr. Masikip who had actually observed and examined appellant during his confinement at the National Mental Hospital, the defense chose to present Dr. Nerit. Accordingly, we must reject the insanity defense of appellant Rafanan. In People vs. Puno (supra), the Court ruled that schizophrenic reaction, although not exempting because it does not completely deprive the offender of the consciousness of his acts, may be considered as a mitigating circumstance under Article 13(9) of the Revised Penal Code, i.e., as an illness which diminishes the exercise of the offender's willpower without, however, depriving him of the consciousness of his acts. Appellant should have been credited with this mitigating circumstance, although it would not have affected the penalty imposable upon him under Article 63 of the Revised Penal Code: "in all cases in which the law prescribes a single indivisible penalty (reclusion perpetua in this case), it shall be applied by the courts regardless of any mitigating or aggravating circumstances that may have attended the commission of the deed." WHEREFORE, the Decision appealed from is hereby AFFIRMED, except that the amount of moral damages is increased to P30,000.00. Costs against appellant.

5 Record, pp. 69-70. 6 Id., p. 83, 7 Id., pp. 93-94. 8 Id., pp. 90-91. 9 TSN, 27 February 1979, pp. 21-23. 10 87 Phil. 658 (1950). 11 See, e.g., People v. Cruz, 177 SCRA 451 (1989); People vs. Aldemita, 145 SCRA 451 (1986); People vs. Ambal, 100 SCRA 325 (1980); People vs. Magallano, 100 SCRA 570 (1980); People vs. Renegado, 57 SCRA 275 (1976). 12 E.g., People v. Amit, 82 Phil. 820 (1949); People v. Balneg, 79 Phil. 805 (1948); People v. Bonoan, 64 Phil. 95 (1937). 13 Encyclopedia and Dictionary of Medicine and Nursing, Miller-Keane, p. 860 (1972). 14 Modern Synopsis of Comprehensive Textbook of Psychiarty/III, Kaplan and Sadock, M.D. (3rd ed., 1981), pp. 309-311. 15 See People vs. Aldemita, 145 SCRA 451 (1986); People vs. Puno, 105 SCRA 151 (1981); People vs. Fausto, 113 Phil. 841 (1961). 16 TSN, 28 March 1979, pp. 74-77. 17 People vs. Dungo, G.R. No. 89420, 31 July 1991; People vs. Morales, 121 SCRA 426 (1983). 18 People vs. Aquino, 186 SCRA 851 (1990); People vs. Aldemita, 45 SCRA 451 (1986).

Narvasa, Cruz, Grio-Aquino and Medialdea, JJ., concur.

# Footnotes 1 Decision, pp. 2-4. 2 Brief for the Accused-Appellant, p. 12. 3 People vs. Veloso, 148 SCRA 60 (1987); People vs. Bautista, 147 SCRA 500 (1987); People vs. Polo, 147 SCRA 551 (1987). 4 TSN, 5 September 1978, pp. 10-15.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 100710 September 3, 1991 BENJAMIN P. ABELLA, petitioner, vs. COMMISSION ON ELECTIONS and ADELINA Y. LARRAZABAL, respondents. G.R. No. 100739 September 3, 1991 ADELINA Y. LARRAZABAL, petitioner, vs. COMMSSION ON ELECTIONS and SILVESTRE DE LA CRUZ, respondents.

hereby disqualified as such Governor"; 2) petitioner Benjamin Abella (G.R. No. 100710), who obtained the second highest number of votes for the position of governor but was not allowed by the COMELEC to be proclaimed as governor after the disqualification of Larrazabal; or 3) Leopoldo E. Petilla, the vice-governor of the province of. Leyte. This is the fourth time that the controversy relating to the local elections in February 1, 1988 for governor of the province of Leyte is elevated to this Court. The antecedent facts of these cases are stated in the earlier consolidated cases of BENJAMIN P. ABELLA and SILVESTRE T. DE LA CRUZ, petitioners, v. ADELINA INDAY LARRAZABAL, PROVINCIAL BOARD OF CANVASSERS OF LEYTE and COMMISSION ON ELECTIONS, respondents (G.R. Nos. 87721-30) and BENJAMN P. ABELLA and SILVESTRE T. DE LA CRUZ, petitioners v. ADELINA LARRAZABAL and COMMISSION ON ELECTIONS, respondents (G. R. No. 88004) 180 SCRA 509 [1989]), to wit: The Court has ordered the consolidation of G.R. Nos 87721-30 and G.R. No. 88004 involving the same parties and the same election in 1988 for the office of provincial governor of Leyte. Challenged in the petitions for certiorari are the resolutions of the respondent Commission on Elections dismissing the pre-proclamation and disqualification cases filed by the herein petitioners against private respondent Adelina Larrazabal. Petitioner Benjamin P. Abella was the official candidate of the Liberal Party for provincial governor of Leyte in the local election held on February 1, 1988. The private respondent is the wife of Emeterio V. Larrazabal, the original candidate of the Lakas ng Bansa-PDP-Laban who was disqualified by the Commission on Elections on January 18, 1988, for lack of residence. (G.R. No. 88004, Rollo, pp. 102-104) (He filed a petition for certiorari to challenge this resolution. He, however, filed an urgent exparte motion to withdraw petition which was granted in a resolution dated January 21, 1988 and the case was dismissed. [G.R. No. 81313]) On January 31, 1988, the day before the election, she filed her own certificate of candidacy in substitution of her husband. (Ibid., p. 48) The following day, at about 9:30 o'clock in the morning, Silvestre de la Cruz, a registered voter of Tacloban City, filed a petition with the provincial election supervisor of

Sixto S. Brillantes, Jr. for petitioner in 100739. Cesar A. Sevilla for petitioner in 100710. Panganiban, Benitez, Baninaga & Bautista for private respondent S. de la Cruz.

GUTIERREZ, JR., J.:p The main issue in these consolidated petitions centers on who is the rightful governor of the province of Leyte 1) petitioner Adelina Larrazabal (G.R. No. 100739) who obtained the highest number of votes in the local elections of February 1, 1988 and was proclaimed as the duly elected governor but who was later declared by the Commission on Elections (COMELEC) "... to lack both residence and registration qualifications for the position of Governor of Leyte as provided by Art. X, Section 12, Philippine Constitution in relation to Title II, Chapter I, Sec. 42, B.P. Blg. 137 and Sec. 89, R.A. No. 179 and is

Leyte to disqualify her for alleged false statements in her certificate of candidacy regarding her residence. (Id., pp. 113-118) This was immediately transmitted to the main office of the Commission on Elections, which could not function, however, because all but one of its members had not yet been confirmed by the Commission on Appointments. De la Cruz then came to this Court, which issued a temporary restraining order on February 4, 1988, enjoining the provincial board of canvassers of Leyte 'from proclaiming Adelina Larrazabal as the winning candidate for the Office of the Governor in the province of Leyte, in the event that she obtains the winning margin of votes in the canvass of election returns of said province.' (Id., p. 179) On March 1, 1988, the Commission on Elections having been fully constituted, we remanded the petition thereto for appropriate action, including maintenance or lifting of the Court's temporary restraining order of February 4, 1988. (Id. pp. 182-184) In the meantime, petitioner Abella, after raising various verbal objections (later duly reduced to writing) during the canvass of the election returns, seasonably elevated them to the Commission on Elections in ten separate appeals docketed as SPC Nos. 88-627 to 88627-I. Pending resolution of these cases, Abella intervened on March 7, 1988 in the disqualification case, docketed as SPC No. 88546, and the following day filed a complaint, with the Law Department of the COMELEC charging the private respondent with falsification and misrepresentation of her residence in her certificate of candidacy. On March 22, 1988, the public respondent consolidated the preproclamation and disqualification cases with the Second Division. On February 3, 1989, this Division unanimously upheld virtually all the challenged rulings of the provincial board of canvassers, mostly on the ground that the objection raised were merely formal and did not affect the validity of the returns or the ballots, and ordered the proclamation of the winner after completion of the canvass. (G.R. Nos. 87721-30, Rollo, pp. 18-50) On that same date, the disqualification case was also dismissed by a 2-1 decision,

and the matter was referred to the Law Department for 'preliminary investigation for possible violation of Section 74 of the Omnibus Election Code. ' (G.R. Nos. 88004, Rollo, pp. 26-40) The motion for reconsideration of the resolution on the pre-proclamation cases was denied by the COMELEC en banc on April 13, 1989, with no dissenting vote. (G.R. Nos. 87721-30, Rollo, pp. 51-56) These cases are the subject of G.R. Nos. 87721-30, where we issued on April 18, 1989, another temporary restraining order to the provincial board of canvassers of Leyte to CEASE and DESIST from resuming the canvass of the contested returns and/or from proclaiming private respondent Adelina Larrazabal Governor of Leyte. The motion for reconsideration of the resolution on the qualification case was also denied by the COMELEC en banc on May 4, 1989, but with three commissioners dissenting. (G.R. No. 88004, Rollo, pp 47-61; penned by Commissioner Abueg, Jr., with Commissioners Africa Rama, and Yorac, dissenting) The dismissal of this case is the subject of G.R. No. 88004. (at pp. 511-513) Disposing of the consolidated petitions, this Court rendered judgment as follows: 1. In G.R.Nos. 87721-30, the decision dated February 3, 1989, the resolution dated April 13, 1989, are affirmed and the petition is DISMISSED. 2. In G.R. No. 88004, the decision dated February 3,1989, and the resolution dated May 4, 1989, are REVERSED and SET ASIDE. Respondent Commission on Elections is ORDERED to directly hear and decide SPC Case No. 88546 under Section 78 of the Omnibus Election Code, with authority to maintain or lift our temporary restraining order of April 18, 1989, according to its own assessment of the evidence against the private respondent.

The parties are enjoined to resolve this case with all possible speed, to the end that the Governor of Leyte may be ascertained and installed without further delay. (p. 520) In view of these rulings, the COMELEC, upon motion of Larrazabal, lifted its temporary restraining order against her proclamation paving Larrazabal's proclamation and her assumption to the Office of Governor of Leyte while the hearings in the disqualification case (SPC No. 88-546) continued. On February 14, 1991, the second division in a 2-1 vote rendered a decision disqualifying Larrazabal as governor. On July 18, 1991, the Commission en banc issued a resolution which denied Larrazabal's motion to declare decision void and/or motion for reconsideration and affirmed the second division's decision. In the same resolution, the Commission disallowed Abella's proclamation as governor of Leyte. Hence, these petitions. We treat the various Comments as Answers and decide the petitions on their merits. Acting on a most urgent petition (motion) for the issuance of a restraining order filed by petitioner Larrazabal, this Court issued a temporary restraining order on August 1, 1991. xxx xxx xxx ... [E]ffective immediately and continuing until further orders from this Court, ordering the respondent on on Elections to CEASE and DESIST from enforcing, implementing and executing the decision and resolution, respectively dated February 14, 1991 and July 18, 1991. It appearing that despite the filing of this petition before this Court and during its pendency, the incumbent ViceGovernor of Leyte Hon. Leopoldo E. Petilla, took his oath as Provincial Governor of Leyte and assumed the

governorship as contained in his telegraphic message, pursuant to COMELEC resolution SPC No. 88-546, promulgated on July 18, 1991, the Court further Resolved to ORDER Hon. Leopoldo E. Petilla to MAINTAIN the status quo ante then prevailing and/or existing before the filing of this petition and to DESIST from assuming the office of the Governor and from discharging the duties and functions thereof. (Rollo-100739, p. 204) In G.R. No. 100739, petitioner Larrazabal professes that the COMELEC completely disregarded our pronouncement in G.R. No. 88004 in that instead of acting on SPC Case No. 88-546 under section 78 of the Election Code, the COMELEC proceeded with a disqualification case not contemplated in G.R. No. 88004. The argument is not meritorious. The questioned decision and resolution of the COMELEC conform with this Court's decision in G.R. No. 88004. Initially, herein respondent Silvestre T. de la Cruz (Benjamin P. Abella, petitioner in G.R. No. 100710 was allowed to intervene in the case) filed a petition with the COMELEC to disqualify petitioner Larrazabal from running as governor of Leyte on the ground that she misrepresented her residence in her certificate of candidacy as Kananga, Leyte. It was alleged that she was in fact a resident of Ormoc City like her husband who was earlier disqualified from running for the same office. The COMELEC dismissed the petition and referred the case to its Law Department for proper action on the ground that the petition was a violation of Section 74 of the Election Code and, pursuant to it rules, should be prosecuted as an election offense under Section 262 of the Code. This Court reversed and set aside the COMELEC's ruling, to wit: The Court holds that the dismissal was improper. The issue of residence having been squarely raised before it, it should not have been shunted aside to the Law Department for a roundabout investigation of the private respondent's qualification through the filing of a criminal prosecution, if found to be warranted, with resultant disqualification of the accused in case of conviction. The

COMELEC should have opted for a more direct and speedy process available under the law, considering the vital public interest involved and the necessity of resolving the question of the earliest possible time for the benefit of the inhabitants of Leyte. In the view of the Court, the pertinent provision is Section 78 in relation to Section 6 of R.A. No. 6646. Sec. 78. Petition to deny due course to or cancel a certificate of candidacy. A verified petition seeking to deny due course or to cancel a certificate of candidacy may be filed by any person exclusively on the ground that any material representation contained therein as required under Section 74 hereof is false. The petition may be filed at any time not later than twenty-five days from the time of the filing of the certificate of candidacy and shall be decided, after due notice and hearing, not later than fifteen days before the election. Section 6 of R.A. 6646 states as follows:

circumstances, such proceedings are allowed by Section 6 of RA. 6646 if for any reason a candidate is not declared by final judgment before an election to be disqualified ... In fine, the Court directed the COMELEC to determine the residence qualification of petitioner Larrazabal in SPC Case No. 88-546. Concomitant with this directive would be the disqualification of petitioner Larrazabal in the event that substantial evidence is adduced that she really lacks the residence provided by law to qualify her to run for the position of governor in Leyte. In line with the Court's directive, the COMELEC conducted hearings in SPC Case No. 88-546 to resolve the qualification of Larrazabal on the basis of two (2) legal issues raised by Silvestre T. de la Cruz namely, Larrazabal's lack of legal residence in the province of Leyte and her not being a registered voter in the province, as required by Title II, Chapter I, Section 42, B.P. Blg. 337, in relation to Article X, Section 12 of the Constitution, to wit: Sec. 42. Qualification. (1) An elective local official must be a citizen of the Philippines, at least twenty-three years of age on election day, a qualified voter registered as such in the barangay, municipality, city or province where he proposes to be elected, a resident therein for at least one year at the time of the filing of his certificate of candidacy, and able to read and write English, Pilipino, or any other local language or dialect. xxx xxx xxx Sec. 12. Cities that are highly urbanized, as determined by law, and component cities whose charters prohibit their voters from voting for provincial elective officials, shall be independent of the province. The voters of component cities within a province, whose charters contain no such prohibition, shall not be deprived of their right to vote for elective provincial officials. The position of petitioners De la Cruz and Abena was that respondent Larrazabal is neither a resident nor a registered voter of Kananga, Leyte as she claimed but a resident and registered voter of Ormoc City, a component

Effect of Disqualification Case. Any candidate who has

been declared by final judgment to be disqualified shall not be voted for, and the votes cast for him shall not be counted. If for any reason a candidate is not declared by final judgment before an election to be disqualified and he is voted in such election, the Court or Commission shall continue with the trial and hearing of the action, inquiry, or protest and, upon motion of the complainant or any intervenor, may during the pendency thereof order the suspension of the proclamation of such candidate whenever the evidence of his guilt is strong. ... xxx xxx xxx The above-stressed circumstances should explain the necessity for continuing the investigation of the private respondent's challenged disqualification even after the election notwithstanding that such matter is usually resolved before the election. Independently of these

city of the province of Leyte but independent of the province pursuant to Section 12, Article X of the Constitution thereby disqualifying her for the position of governor of Leyte. They presented testimonial as well as documentary evidence to prove their stance. On the other hand, respondent Larrazabal maintained that she was a resident and a registered voter of Kananga, Leyte. She, too presented testimonial as well as documentary evidence to prove her stand. The COMELEC ruled against the respondent, now petitioner Larrazabal. In its questioned decision and resolution, the COMELEC found that petitioner Larrazabal was neither a resident of Kananga, Leyte nor a registered voter thereat. With these findings, the COMELEC disqualified the petitioner as governor of the province of Leyte. The petitioner, however, avers that the COMELEC decision is erroneous when it relied on the provisions of the Family Code to rule that the petitioner lacks the required residence to qualify her to run for the position of governor of Leyte. She opines that under "the Election Law, the matter of determination of the RESIDENCE is more on the principle of INTENTION, the animus revertendi rather than anything else." In this regard she states that ... "her subsequent physical transfer of residence to Ormoc City thereafter, did not necessarily erased (sic) or removed her Kananga residence, for as long as she had the ANIMUS REVERTENDIevidenced by her continuous and regular acts of returning there in the course of the years, although she had physically resided at Ormoc City." (Petition, Rollo, p. 40) As can be gleaned from the questioned decision, the COMELEC based its finding that the petitioner lacks the required residence on the evidence of record to the effect that despite protestations to the contrary made by the petitioner, she has established her residence at Ormoc City from 1975 to the present and not at Kananga, Leyte. Her attempt to purportedly change her residence one year before the election by registering at Kananga, Leyte to qualify her to ran for the position of governor of the province of Leyte clearly shows that she considers herself already a resident of Ormoc City. In the absence of any evidence to prove otherwise, the reliance on the provisions of the Family Code was proper and in consonance with human experience. The petitioner did not present evidence to show that she and

her husband maintain separate residences, she at Kananga, Leyte and her husband at Ormoc City. The second division of the COMELEC in its decision dated February 14, 1991 states: xxx xxx xxx But there is the more fundamental issue of residence. The only indications of a change of residence so far as respondent is concerned are: the address indicated in the application for cancellation filed by respondent indicating her postal address as Kananga, Leyte, the annotation in her Voter's affidavit for Precinct No. 15 that her registration was cancelled due to lack of residence; the testimony of Anastacia Dasigan Mangbanag that she entered into a contract of lease with option to buy with the spouses Emeterio and Inday Larrazabal over two parcels of land the witness owned in Mahawan, Kananga, Leyte; that she sees the spouses in the leased house in Kananga, that she was informed by Inday Larrazabal that the spouses had decided to buy their property because she wanted to beautify the house for their residence. She attached as annex the written contract signed by her and the spouses; and the testimony of Adolfo Larrazabal Exh. "10" cousin of the spouses that 'at a family meeting ... the political plan of the Larrazabal clan was discussed, among which were (sic) the problem of Terry's residence in Ormoc City' and that it was decided in said meeting ... that Inday Larrazabal, wife of Terry, will transfer her Ormoc Registration as a voter to Kananga, Leyte (so) she will be able to vote for Terry and also help me in my candidacy; that they have been staying in Kananga, very often as they have properties in Lonoy and a house in Mahawan. The references to residence in the documents of cancellation and registration are already assessed for their evidentiary value in relation to the documents themselves above. The question must therefore be addressed in relation to the testimony of Anastacia Dasigan Mangbanag and Adolfo V. Larrazabal. The gist of the testimonies is that they leased properties in Mahawan, Leyte and that they are seen in the house on the land leased. But the

contract of lease with option to purchase itself indicates as to where the legal residence of the Jarrazabal is. The pertinent portion states: SPS EMETERIO V. LARRAZABAL AND ADELINA Y. LARRAZABAL, both of legal age, Filipino, andresidents of Ormoc City, Philippines, hereinafter referred to as the LESSEES. The acknowledgment also indicates that Emeterio V. Larrazabal presented his Residence Certificate No. 155774914 issued in Ormoc City. The testimony of Adolfo Larrazabal reenforces this conclusion. It admits, as of the second or third week of November, that the residence of Emeterio Larrazabal was Ormoc City and that Inday Larrazabal was going to transfer her registration so she may be able to vote for him. For the purpose of running for public office, the residence requirement should be read as legal residence or domicile, not any place where a party may have properties and may visit from time to time. The Civil Code is clear that '[F]or the exercise of civil rights and the fulfillment of civil obligations, the domicile of natural persons is the place of their habitual residence. Arts. 68 and 69 of the Family Code, E.O. No. 209 also provide as follows: Art. 68. The husband and wife are obliged to live together, observe mutual love, respect and fidelity, and render mutual help and support. Art. 69. The husband and wife shall fix the family domicile. In case of disagreement, the court shall decide.

The court may exempt one spouse from living with the other if the latter should live abroad or there are other valid and compelling reasons for the exemption. However, such exemption shall not apply if the same is not compatible with the solidarity of the family. Husband and wife as a matter of principle live together in one legal residence which is their usual place of abode. (COMELEC decision, pp. 21-23; Rollo 100710, pp. 67-69; Emphsis supplied) As regards the principle of ANIMUS REVERTENDI we ruled in the case of Faypon v. Quirino, 96 Phil. 294 [1954]): xxx xxx xxx ... [M]ere absence from one's residence or origin-domicileto pursue studies, engage in business, or practice his avocation, is not sufficient to constitute abandonment or loss of such residence.' ... The determination of a persons legal residence or domicile largely depends upon intention which may be inferred from his acts, activities and utterances. The party who claims that a person has abandoned or left his residence or origin must show and prove pre-ponderantly such abandonment or loss. xxx xxx xxx ... A citizen may leave the place of his birth to look for 'greener pastures' as the saying goes, to improve his life, and that, of course, includes study in other places, practice of his avocation, or engaging in business. When an election is to be held, the citizen who left his birthplace to improve his lot may desire to return to his native town to cast his ballot but for professional or business reasons, or for any other reason, he may not absent himself from the place of his professional or business activities; so there he registers as voter as he has the qualifications to be one and is not willing to give up or lose the opportunity

to choose the officials who are to run the government especially in national elections. Despite such registration, the animus revertendi to his home, to his domicile or residence of origin, has not forsaken him. ... (at pp. 297300) In the instant case, there is no evidence to prove that the petitioner temporarily left her residence in Kananga, Leyte in 1975 to pursue any calling, profession or business. What is clear is that she established her residence in Ormoc City with her husband and considers herself a resident therein. The intention of animus revertendi not to abandon her residence in Kananga, Leyte therefor, is nor present. The fact that she occasionally visits Kananga, Leyte through the years does not signify an intention to continue her residence therein. It is common among us Filipinos to often visit places where we formerly resided specially so when we have left friends and relatives therein although for intents and purposes we have already transferred our residence to other places. Anent the issue of whether or not the petitioner is a registered voter of Kananga, Leyte, the petitioner insists that she is such a registered voter based on the following antecedents: 1) She cancelled her registration in Ormoc City on November 25, 1987, and 2) she then transferred her registration to Kananga, Leyte on November 25, 1987 by registering thereat and 3) she later voted on election day (February 1, 1988) in Kananga, Leyte. Despite the insistence of the petitioner, the evidence shows that her supposed cancellation of registration in Ormoc City and transfer of registration in Kananga, Leyte, is not supported by the records. As the COMELEC stated: The train of events, which led to respondent's g of her certificate of candidacy on the basis of her registration started on November 25, 1987, when she allegedly filed all application for cancellation of registration Exh. "2-B". Subsequent to this request, her voter's affidavit in Precinct 15, Ormoc City with Serial No. 0918394 J was annotated with the words 'cancelled upon application of the voter due to transfer of residence.' Thereafter, she registered in Precinct No. 17, Mahawan, Kananga, Leyte on November 28,1987 which registration was contained in Voter's Affidavit with Serial No. 0190840-J The cancellation of

registration was submitted to the Board of Election Inspectors on January 9, 1988 (Revision Day) on the submission of the sworn application at 4:30 p.m. allegedly by a clerk from the Election Registrar's Office with only the poll clerk and the third member because the Chairman of the Board of Election Inspectors allegedly left earlier and did not come back. Exh. "3-B". We find the version pressed by respondent unworthy of belief. The story is marked by so many bizarre cirumtances not consistent with the ordinary course of events or the natural behavior of persons. Among these are: (1) The application for cancellation of registration by respondent Adelina Y. Larrazabal happened to be misplaced by a clerk in the Election Registrar's Office for Ormoc City so it was not sent to the Board of Election Inspectors in a sealed envelope; (2) The 'inadverterment' (sic) misplacement was discovered only on January 9,1988; (3) The voter's affidavit was delivered by itself without any endorsement or covering letter from the Election Registrar or anybody else; (4) The election clerk delivered the application for cancellation only towards the last hour of the revision day, allegedly at 4:30 P.M., January 9, 1988; (5) All the members of the Board of Election Inspectors had already signed the Minutes indicating that no revision of the voter's list was made as of 5:00 PM (6) The poll clerk and the third member prepared another minutes stating that the election clerk had delivered the application for cancellation at 4:30 P.M. without any reference to the minutes they had previously signed;

(7) Emeterio Larrazabal, who was supposed to have registered in Precinct 17, Mahawan, Kananga, was supposed to have filled up an application for cancellation of his registration in Precinct No. 15, Ormoc City at Precinct 17 concurrent with his registration. His application for cancellation was never submitted in evidence. (8) The serial number of the voter's affidavits of the spouses Larrazabal in Precinct No. 17 are far removed from the serial numbers of the other new registrants in November 28, 1987 in the same precinct. The most telling evidence is the list of voters (Form 2-A), Exh. "G", that the Chairman and the poll clerk had written in Part II of the same, closed by the signatures of both officials showing that there were only nine (9) additional registered voters in Precinct 17, Mahawan, Kananga, Leyte, namely, Bantasan, Merly; Conie; Limosnero Anita; Limosnero W; Pame Virginia; Savenario, Analiza; Verallo, Ofelia; Basan, Juanita; and Acgang Bonifacio. This is consistent with the list of new voters after the November 28, 1987 for Precinct No. 17, Mahawan, Kananga, Leyte submitted by the Election of Kananga to the National Central File of the Commission per certification of the Chief, National Central File Division on January 25, 1988 dated January 25, 1988, Exh. 'C'. The affidavits submitted by the Election Registrar to the Commission could only have come from the Board of Election Inspectors of Precinct No. 17, after the November 28, 1987 registration, for the Election Registrar could not have had the affidavits of these new registrants apart from those supplied by the Precinct itself. Why were not the affidavits of the Larrazabals included? Was this part of the incredibly bizarre series of inadvertence and neglect that spanned Ormoc City and Kananga? This also explains the certification dated January 29, 1988, of the Election Registrar of Kananga that as of that date Mrs. Adelina Larrazabal was not a registered voter in any of the' precincts in Kananga. Exh. "L". It was only on February 15, 1988, or two weeks after the election day that the same Registrar certified for the first time that there were two voters lists, the first without the names of the

Larrazabals and the second, which appeared only after February 1, submitted by the Chairman of the Board for Precinct 17 which contained the spouses Larrazabals' names. It might also be stressed that one set of voter's list Exh. "G" had the signature of both the Chairman, poll clerk and third member of the board, while the one which appeared later which included the names of the Larrazabal had the signature only of the Chairman. Exh. "I". From the certification of the National Central Files, it appears that the Serial Nos. of the newly registered voters were as follows: 0189821-J 018922-J 0189823-J 0189824J 0189825-J 0189826-J 0189827-J 0189828-J 0189839-J The alleged registration of Emeterio V. Larrazabal and Adelina Y. Larrazabal are inexplicably effected through voter's affidavits with Serial Nos. 0190893J and 01 90840J. These serial numbers are traced per record of the Commission to Precinct No. 6, municipality of Kananga, Leyte. Per official Project of precincts on file with the Commission, Precinct No. 6 is a poblacion precinct located in Kananga, Municipal High School Building. How these documents came to be used in Precinct No. 17 in Barangay Mahawan and only by the Larrazabals has never been explained. It also takes a lot of straining to believe the story about the effort to cancel registration on November 25, 1987, which application surfaced before the Board of Election inspectors for Precinct No. 15, Ormoc City only on January 9, 1988, Revision Day. As pointed out by Petitioner, it is absurd that it would only be on Revision Day, normally set aside for the purpose of receiving inclusion and exclusion orders from the courts, that the application for cancellation would be coincidentally found and delivered to the Board of Election Inspectors for Precinct 15. Furthermore, the entire membership of the Board of Inspectors for said precinct, signed a Minutes, Exh. "3-A" which indicates that no order of inclusion or exclusion was received from any court and that the board proceeded with the numbering of a total 229 voters for the precinct.

The Minutes also indicates that the Board adjourned at 5:00 p.m. Exh. "3-B" which was supposedly prepared after Exh. "3-A" signed only by the poll clerk and third member indicates that at 4:30 P.M. an unidentified clerk from the Election Registrar's Office arrived with the application for cancellation of Vilma Manzano and Adelina Larrazabal. It also appears that on November 28, 1987, the Board of Election Inspectors for Precinct 15, Ormoc City prepared the list of voters for said precinct, Exh. 'N' where the name of Adelina Y. Larrazabal appears as voter No. 96 and Emeterio V. Larrazabal is listed as Voter No. 98. At the back of the list there is a certification that there was no voter which was included by court order and that to voters, one Montero and one Salvame were excluded by virtue of such order. As of January 29, 1988, when the certified true copy of the Voter's List for Precinct 15 was furnished the petitioner, no additional entry was reflected on the list which would show what transpired on January 9, 1988, as alleged by the Election Registrar for Ormoc City and the poll clerk and third member of the board of inspectors that a cancellation was effected. It taxes credulity therefore, to lend belief to Exh. "2-C", when was issued by the City Registrar for Ormoc only on February 1, 1990, which for the first time showed handwritten annotations of cancellation of the registration of Adelina Larrazabal and Vilma Manzano by witnesses Gratol and Patonog. If this evidence did not exist at the time of the entry which purports to have been on January 9, 1988, this evidence could have been used to confront within Carolina Quezon when she testified and identified Exh. "N" on April 14, 1988. In fact if these entries indicating (sic) were made, they would have been evident in Exh. 'W. The failure to confront Quezon with the entries and the late submission of Exh. "2-C" can only lead to two conclusions: these entries did not exist as of January 29, 1988 when the certification of the list of voters was made and that they were annotated in the voter's list after that date. This is consistent with Exh. "P" which was issued on February 11, 1988.

The relative weight of the parties' evidence supports petitioner's thesis that respondent was not a registered voter in Precinct No. 17, Brgy. Mahawan, Kananga, Leyte, and, that she and her husband Emeterio Larrazabal continued to be registered voters in Precinct No. 15, Ormoc City. (Rollo, pp. 62-67; COMELEC decision, pp. 2227) The Court is bound by these factual findings as they are supported by substantial evidence: In Aratuc v. Commission on Elections (88 SCRA 251), speaking of the need to preserve the 'independence and all the needed concomitant powers' of the Commission on Elections, Justice Antonio P. Barredo declared that it is but proper that the Court should accord the greatest measures of presumption of regularity to its course of action ... to the end it may achieve its designed place in the democratic fabric of our government ... (Abella v. Larrazabal, supra) Failing in her contention that she is a resident and registered voter of Kananga, Leyte, the petitioner poses an alternative position that her being a registered voter in Ormoc City was no impediment to her candidacy for the position of governor of the province of Leyte. Section 12, Article X of the Constitution provides: Cities that are highly urbanized, as determined by law, and component cities whose charters prohibit their voters from voting for provincial elective officials, shall be independent of the province. The voters of component cities within a province, whose charters contain no such prohibition, shall not be deprived of their right to vote for elective provincial officials. Section 89 of Republic Act No. 179 creating the City of Ormoc provides: Election of provincial governor and members of the Provincial Board of the members of the Provincial Board of the Province of Leyte The qualified voters of Ormoc City

shall not be qualified and entitled to vote in the election of the provincial governor and the members of the provincial board of the Province of Leyte. Relating therefore, section 89 of R.A. 179 to section 12, Article X of the Constitution one comes up with the following conclusion: that Ormoc City when organized was not yet a highly-urbanned city but is, nevertheless, considered independent of the province of Leyte to which it is geographically attached because its charter prohibits its voters from voting for the provincial elective officials. The question now is whether or not the prohibition against the 'city's registered voters' electing the provincial officials necessarily mean, a prohibition of the registered voters to be elected as provincial officials. The petitioner citing section 4, Article X of the Constitution, to wit: Sec. 4. The President of the Philippines shall exercise general supervision over local governments. Provinces with respect to component cities and municipalities and cities and municipalities with respect to component barangays, shall ensure that the acts of their component units are within the scope of their prescribed powers and functions. submits that "while a Component City whose charter prohibits its voters from participating in the elections for provincial office, is indeed independent of the province, such independence cannot be equated with a highly urbanized city; rather it is limited to the administrative supervision aspect, and nowhere should it lead to the conclusion that said voters are likewise prohibited from running for the provincial offices." (Petition, p. 29) The argument is untenable. Section 12, Article X of the Constitution is explicit in that aside from highlyurbanized cities, component cities whose charters prohibit their voters from voting for provincial elective officials are independent of the province. In the same provision, it provides for other component cities within a province whose charters do not provide a similar prohibition. Necessarily, component cities like Ormoc City whose charters prohibit their voters from voting for provincial elective officials are treated like highly urbanized cities which are outside the supervisory power of the province to which they are

geographically attached. This independence from the province carries with it the prohibition or mandate directed to their registered voters not to vote and be voted for the provincial elective offices. The resolution in G.R. No. 80716 entitled Peralta v. The Commission on Elections, et al. dated December 10, 1987 applies to this case. While the cited case involves Olongapo City which is classified as a highly urbanized city, the same principle is applicable. Moreover, Section 89 of Republic Act 179, independent of the constitutional provision, prohibits registered voters of Ormoc City from voting and being voted for elective offices in the province of Leyte. We agree with the COMELEC en banc that "the phrase 'shall not be qualified and entitled to vote in the election of the provincial governor and the members of the provincial board of the Province of Leyte' connotes two prohibitions one, from running for and the second, from voting for any provincial elective official." (Resolution En Banc, p. 6) The petitioner takes exception to this interpretation. She opines that such interpretation is "wrong English" since nowhere in the provision is there any reference to a prohibition against running for provincial elective office. She states that if the prohibition to run was indeed intended, the provision should have been phrased "Shall not be qualified TO RUN in the election FOR provincial governor." A comma should have been used after the word qualified and after the word "vote" to clearly indicate that the phrase "in the election of the provincial governor" is modified separately and distinctly by the words "not qualified" and the words "not entitled to vote." (Petition, p. 19) The Court finds the petitioner's interpretation fallacious. In the case of Mapa v. Arroyo (175 SCRA 76 [1989]) this Court interpreted Section 20 of Presidential Decree No. 957 in relation to the conjunction and, to wit:

Time of Completion. Every owner or developer shall

construct and provide the facilities, improvements, infrastructures and other forms of development, including water supply and lighting facilities, which are offered and indicated in the approved subdivision or condominium plans. ...

The Court ruled: We further reject petitioner's strained and tenuous application of the called doctrine of last antecedent in the interpretation of Section 20 and, correlatively, of Section 21. He would thereby have the enumeration of 'facilities, improvements, infrastructures and other forms of development' interpreted to mean that the demonstrative Phrase 'which are offered and indicated in the approved subdivision plans, etc,' refer only to 'other forms of development' and not to 'facilities, improvements and infrastructures.' While this subserves his purpose, such bifurcation whereby the supposed adjectives phrase is set apart from the antecedent words, is illogical and erroneous. The complete and applicable rule is ad proximum antedecens flat relationisi impediatursentencia (See Black's Law Dictionary, 4th Ed., 57 citing Brown v. Brown, Delta 3 Terry 157, 29 A. 2d 149, 153) Relative words refer to the nearest antecedent, unless it be prevented by the context. In the present case, the employment of the word 'and' between 'facilities, improvements, infrastructures' and 'other forms of development,' far from supporting petitioner's theory, enervates it instead since it is basic in legal hermeneutics that and is not meant to separate words but is a conjunction used to denote a joinder or union. (at pp. 8183) Applying these principles to the instant case, the conjunction and between the phrase shall not be qualified andentitled to vote refer to two prohibitions as ruled by the COMELEC in relation to the demonstrative phrase "in the election of the provincial governor and the members of the provincial board of the Province of Leyte." Finally, the petitioner contends that the February 14, 1991 decision of the COMELEC's second division is null and void on the ground that on that date, the term of Commissioner Andres Flores, one of the signatories of the majority opinion (vote was 2-1) had already expired on February 2, 1991. (Commissioner Flores was nominated by the President on January 30, 1988 and was confirmed by the Commission on Appointments on February 15, 1988. His term of office was fixed by the President for three years from February 15, 1988 to February 15, 1991.)

The petitioner postulates that the President has no power to fix the terms of office of the Commissioners of the COMELEC because the Constitution impliedly fixes such terms of office. With regards to Commissioner Flores, the petitioner professes that Flores' term of three (3) years expired on February 2, 1991 based in section 1(2), Article IX, C, of the Constitution, to wit: xxx xxx xxx (2) The Chairman and the Commissioners shall be appointed by the President with the consent of the Commission on Appointments for a term of seven years without reappointment. Of those first appointed, three Members shall hold office for seven years, two Members for five years, and the last Members for three years, without reappointment. Any appointment to any vacancy shall be only for the unexpired term of the predecessor. In no case shall any Member be appointed or designated in a temporary or acting capacity. In relation to the Transitory Provision of the 1987 Constitution (Article XVIII) particularly Section 15 thereof, to wit: xxx xxx xxx The incumbent Members of the Civil Service Commission, the Commission on Elections, and the Commission on Audit shall continue in office for one year after the ratification of this Constitution, unless they are sooner removed for cause or become incapacitated to discharge The duties of their office or appointed to a new term thereunder. In no case shall any Member serve longer than seven years including service before the ratification of this Constitution. There is no need to pass upon this constitutional issue raised by the petitioner. The Court ruled in the case ofAlger Electric, Inc. v. Court of Appeals (135 SCRA 37 [1985]): xxx xxx xxx

... This Court does not decide questions of a constitutional nature unless absolutely necessary to a decision of the case. If there exists some other ground based on statute or general law or other grounds of construction, we decide the case on a non-constitutional determination. (See Burton v. United States, 196 U.S. 283; Siler v. Louisville & Nashville R. Co. 213 U.S. 175; Berea College v. Kentucky 211 U.S. 45.) (at p. 45) Even if we concede that Commissioner Flores' term expired on February 2, 1991, we fail to see how this could validate the holding of an elective office by one who is clearly disqualified from running for that position and the continued exercise of government powers by one without legal authority to do so. The powers of this Court are broad enough to enjoin the violation of constitutional and statutory provisions by public officers especially where, as in this case, we merely affirm the decision of the COMELEC en banc promulgated at a time when Commissioner Flores was no longer a member. Moreover, under the peculiar circumstances of this case, the decision of the second division of COMELEC would still be valid under the de facto doctrine. Commissioner Flores was appointed for a three-year term from February 15, 1988 to February 15, 1991. In these three years he exercised his duties and functions as Commissioner. Granting in the absence of a statute expressly stating when the terms of the COMELEC Chairman and members commence and expire, that his term expired on February 2, 1991 to enable a faithful compliance with the constitutional provision that the terms of office in the COMELEC are on a staggered basis commencing and ending at fixed intervals, his continuance in office until February 15, 1991 has a color of validity. Therefore, all his official acts from February 3, 1991 to February 15, 1991, are considered valid. The Court ruled in the case of Leyte Acting Vice-

There is no denying that the petitioner assumed the Office of the Vice-Governor under color of a known appointment. As revealed by the records, the petitioner was appointed by no less than the alter ego of the President, the Secretary of Local Government, after which he took his oath of office before Senator Alberto Romulo in the Office of Department of Local Government Regional Director Res Salvatierra. Concededly, the appointment has the color of validity. Petitioner Benjamin P. Abella in G.R. No. 100710 obtained the second highest number of votes, next to Larrazabal in the local elections of February 1, 1988 in the province of Leyte. The COMELEC en banc, after affirming the February 14, 1991 decision of its second division disqualifying arrazabal as governor disallowed Abella from assuming position of governor in accordance with section 6, Republic Act No. 6646 and the rulings in the cases ofFrivaldo v. Commission on Elections (174 SCRA 245 [1989]) and Labo, Jr. v. Commission on Elections (176 SCRA 1 [1989]). Abella claims that the Frivaldo and Labo cases were misapplied by the COMELEC. According to him these cases are fundamentally different from SPC No. 88-546 in that the Frivaldo and Labo cases were petitions for a quowarranto filed under section 253 of the Omnibus Code, contesting the eligibility of the respondents after they had been proclaimed duly elected to the Office from which they were sought to be unseated while SPC No. 88546 which was filed before proclamation under section 78 of the Omnibus Election Code sought to deny due course to Larrazabal's certificate of candidacy for material misrepresentations and was seasonably filed on election day. He, therefore, avers that since under section 6 of Republic Act 6646 it is provided therein that: Any candidate who has been declared by final judgment to be disqualified shall not be voted for, and the votes case for him shall not be counted. the votes cast in favor of Larrazabal who obtained the highest number of votes are not considered counted making her a non-candidate, he, who obtained the second highest number of votes should be installed as regular Governor of Leyte in accordance with the Court's ruling in G.R. No. 88004. The petitioner's arguments are not persuasive.

Governor Aurelio D. Menzon v. Leyte Acting Governor Leopoldo E. Perilla, et al. G.R. No. 90762, May 20, 1991:
And finally, even granting that the President, acting through the Secretary of Local Government, possesses no power to appoint the petitioner, at the very least, the petitioner is a de facto officer entitled to compensation.

While it is true that SPC No. 88-546 was originally a petition to deny due course to the certificate of candidacy of Larrazabal and was filed before Larrazabal could be proclaimed the fact remains that the local elections of February 1, 1988 in the province of Leyte proceeded with Larrazabal considered as a bona-fide candidate. The voters of the province voted for her in the sincere belief that she was a qualified candidate for the position of governor. Her votes were counted and she obtained the highest number of votes. The net effect is that the petitioner lost in the election. He was repudiated by the electorate. In the Frivaldo and Labo cases, this is precisely the reason why the candidates who obtained the second highest number of votes were not allowed to assume the positions vacated by Frivaldo the governorship of Sorsogon, and Labo, the position of mayor in Baguio City. The nature of the proceedings therefore, is not that compelling. What matters is that in the event a candidate for an elected position who is voted for and who obtains the highest number of votes is disqualified for not possessing the eligibility requirements at the time of the election as provided by law, the candidate who obtains the second highest number of votes for the same position can not assume the vacated position. It should be stressed that in G.R. No. 88004, the Court set aside the dismissal of SPC No. 88-546, and directed the COMELEC to conduct hearings to determine whether or not Larrazabal was qualified to be a candidate for the position of governor in the province of Leyte. This is the import of the decision in G.R. No. 88004. Thus, the Court ruled in the case of Labo, Jr. v. Commission on Elections: Finally, there is the question of whether or not the private respondent, who filed the quo warranto petition, can replace the petitioner as mayor. He cannot. The simple reason is that as he obtained only the second highest number of votes in the election, he was obviously not the choice of the people of Baguio City. The latest ruling of the Court on this issue is Santos v. Commission on Elections, (137 SCRA 740) decided in 1985. In that case, the candidate who placed second was proclaimed elected after the votes for his winning rival, who was disqualified as a turncoat and considered a noncandidate, were all disregard as stray. In effect, the second placer won by default. That decision was supported by eight members of the Court then, (Cuevas, J., ponente, with Makasiar, Concepcion, Jr., Escolin, Relova, De la Fuente, Alampay and Aquino, JJ.,

concurring.) with three dissenting (Teehankee, Acting C.J., Abad Santos and Melencio-Herrera, JJ.) and another two reserving their vote. (Plana and Gutierrez, Jr., JJ.) One was on official leave. (Fernando, C.J.) Re-examining that decision, the Court finds, and so holds, that it should be reversed in favor of the earlier case of Geronimo v. Ramos, (136 SCRA 435) which represents the more logical and democratic rule. That case, which reiterated the doctrine first announced in 1912 in Topacio v. Paredes, (23 Phil. 238) was supported by ten members of the Court, (Gutierrez, Jr., ponente, with Teehankee, Abad Santos, Melencio-Herrera, Plana, Escolin, Relova, De la Fuente, Cuevas and Alampay, JJ., concurring) without any dissent, although one reserved his vote, (Makasiar, J.) another took no part, (Aquino, J.) and two others were on leave. (Fernando, C.J. and Concepcion, Jr., J.) There the Court held: ... it would be extremely repugnant to the basic concept of the constitutionally guaranteed right to suffrage if a candidate who has not acquired the majority or plurality of votes is proclaimed a winner and imposed as the representative of a constituency, the majority of which have positively declared through their ballots that they do not choose him. Sound policy dictates that public elective offices are filled by those who have received the highest number of votes cast in the election for that office, and it is a fundamental idea in all republican forms of government that no one can be declared elected and no measure can be declared carried unless he or it receives a majority or plurality of the legal votes cast in the election. (20 Corpus Juris 2nd, S 243, p. 676.)

The fact that the candidate who obtained the highest number of votes is later declared to be disqualified or not eligible for the office to which he was elected does not necessarily entitle the candidate who obtained the second highest number of votes to be declared the winner of the elective office. The votes cast for a dead, disqualified, or non-eligible person may not be valid the vote the winner into office or maintain him there. However the absence of a statute which clearly asserts a contrary politics and legislative policy on the matter, if the votes were cast in the sincere belief that the candidate was alive, qualified, or eligible, they should not be treated as stray, void or meaningless. (at pp. 20-21) In sum, the Court does not find any reason to reverse and set aside the questioned decision and resolution of the COMELEC. The COMELEC has not acted without or in excess of jurisdiction or in grave abuse of discretion. WHEREFORE, the instant petitions are DISMISSED. The questioned decision of the second division of the Commission on Elections dated February 14, 1991 and the questioned Resolution en banc of the Commission dated July 18, 1991 are hereby AFFIRMED. The temporary restraining order issued on August 1, 1991 is LIFTED. Costs against the petitioners. SO ORDERED.

Narvasa, Melencio-Herrera, Cruz, Paras, Padilla, Bidin, Grio-Aquino, Medialdea, Regalado and Davide, Jr., JJ., concur. Fernan , C.J., took no part. Feliciano and Sarmiento, JJ., is on leave.