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Katipunan vs.

Tenorio

G.R. No. L-15853

July 27, 1960

have had sexual intercourse during their engagement so that the child could be their own, and finding unbelievable plaintiff's claim that he did not notice or even suspect that defendant was pregnant when he married her, the appellate court, nevertheless, affirmed the dismissal of the complaint. On March 17, 1959, plaintiff filed a motion praying that the decision be reconsidered, or, if such reconsideration be denied, that the case be remanded to the lower court for new trial. In support of the motion, plaintiff attached as annexes thereof the following documents: 1. Affidavit of Cesar Aquino (Annex A) (defendant's brother-in-law and plaintiff's brother, with whom defendant was living at the time plaintiff met, courted and married her, and with whom defendant has begotten two more children, aside from her first born, in common-law relationship) admitting that he is the father of defendant's first born, Catherine Bess Aquino, and that he and defendant hid her pregnancy from plaintiff at the time of plaintiff's marriage to defendant; 2. Affidavit of defendant, Conchita Delizo (Annex "B") admitting her pregnancy by Cesar Aquino, her brother-in-law and plaintiff's own brother, at the time of her marriage to plaintiff and her having hidden this fact from plaintiff before and up to the time of their marriage; 3. Affidavit of Albert Powell (Annex "C") stating that he knew Cesar Aquino and defendant lived together as husband and wife before December 27, 1954, the date of plaintiff's marriage to defendant; 4. Birth Certificate of defendant's first born, Catherine Bess Aquino showing her date of birth to be April 26, 1955; 5. Birth Certificate (Annex "D") of Carolle Ann Aquino, the second child of defendant with Cesar Aquino, her brother-in-law; 6. Birth Certificate (Annex "E") of Chris Charibel Aquino, the third child of Cesar Aquino and defendant; and 7. Pictures of defendant showing her natural plumpness as early as 1952 to as late as November, 1954, the November, 1954 photo itself does not show defendant's pregnancy which must have been almost four months old at the time the picture was taken. Acting upon the motion, the Court of Appeals ordered the defendant Conchita Delizo and Assistant Provincial Fiscal of Rizal, who was

FERNANDO AQUINO, petitioner, vs. CONCHITA DELIZO, respondent. GUTIERREZ DAVID, J.: This is a petition for certiorari to review a decision of the Court of Appeals affirming that of the Court of First Instance of Rizal which dismissed petitioner's complaint for annulment of his marriage with respondent Conchita Delizo. The dismissed complaint, which was filed on September 6, 1955, was based on the ground of fraud, it being alleged, among other things, that defendant Conchita Delizo, herein respondent, at the date of her marriage to plaintiff, herein petitioner Fernando Aquino, on December 27, 1954, concealed from the latter that fact that she was pregnant by another man, and sometime in April, 1955, or about four months after their marriage, gave birth to a child. In her answer, defendant claimed that the child was conceived out of lawful wedlock between her and the plaintiff. At the trial, the attorney's for both parties appeared and the court a quo ordered Assistant Provincial Fiscal Jose Goco to represent the State in the proceedings to prevent collusion. Only the plaintiff however, testified and the only documentary evidence presented was the marriage contract between the parties. Defendant neither appeared nor presented any evidence despite the reservation made by her counsel that he would present evidence on a later date. On June 16, 1956, the trial court noting that no birth certificate was presented to show that the child was born within 180 days after the marriage between the parties, and holding that concealment of pregnancy as alleged by the plaintiff does not constitute such fraud sa would annul a marriage dismissed the complaint. Through a verified "petition to reopen for reception of additional evidence", plaintiff tried to present the certificates of birth and delivery of the child born of the defendant on April 26, 1955, which documents, according to him, he had failed to secure earlier and produce before the trial court thru excusable negligence. The petition, however, was denied. On appeal to the Court of Appeals, that court held that there has been excusable neglect in plaintiff's inability to present the proof of the child's birth, through her birth certificate, and for that reason the court a quo erred in denying the motion for reception of additional evidence. On the theory, however, that it was not impossible for plaintiff and defendant to

representing the Government, to answer the motion for reconsideration, and deferred action on the prayer for new trial until after the case is disposed of. As both the defendant and the fiscal failed to file an answer, and stating that it "does not believe the veracity of the contents of the motion and its annexes", the Court of Appeals, on August 6, 1959, denied the motion. From that order, the plaintiff brought the case to this Court thru the present petition for certiorari. After going over the record of the case, we find that the dismissal of plaintiff's complaint cannot be sustained. Under the new Civil Code, concealment by the wife of the fact that at the time of the marriage, she was pregnant by a man other than her husband constitutes fraud and is ground for annulment of marriage. (Art. 85, par. (4) in relation to Art. 86, par. (3). In the case of Buccat vs. Buccat (72 Phil., 19) cited in the decision sought to be reviewed, which was also an action for the annulment of marriage on the ground of fraud, plaintiff's claim that he did not even suspect the pregnancy of the defendant was held to be unbelievable, it having been proven that the latter was already in an advanced stage of pregnancy (7th month) at the time of their marriage. That pronouncement, however, cannot apply to the case at bar. Here the defendant wife was alleged to be only more than four months pregnant at the time of her marriage to plaintiff. At that stage, we are not prepared to say that her pregnancy was readily apparent, especially since she was "naturally plump" or fat as alleged by plaintiff. According to medical authorities, even on the 5th month of pregnancy, the enlargement of a woman's abdomen is still below the umbilicus, that is to say, the enlargement is limited to the lower part of the abdomen so that it is hardly noticeable and may, if noticed, be attributed only to fat formation on the lower part of the abdomen. It is only on the 6th month of pregnancy that the enlargement of the woman's abdomen reaches a height above the umbilicus, making the roundness of the abdomen more general and apparent. (See Lull, Clinical Obstetrics, p. 122) If, as claimed by plaintiff, defendant is "naturally plump", he could hardly be expected to know, merely by looking, whether or not she was pregnant at the time of their marriage more so because she must have attempted to conceal the true state of affairs. Even physicians and surgeons, with the aid of the woman herself who shows and gives her subjective and objective symptoms, can only claim positive diagnosis of pregnancy in 33% at five months. and 50% at six months. (XI Cyclopedia of Medicine, Surgery, etc. Pregnancy, p. 10). The appellate court also said that it was not impossible for plaintiff and defendant to have had sexual intercourse before they got married and therefore the child could be their own. This statement, however, is purely conjectural and finds no support or justification in the record.

Upon the other hand, the evidence sought to be introduced at the new trial, taken together with what has already been adduced would, in our opinion, be sufficient to sustain the fraud alleged by plaintiff. The Court of Appeals should, therefore, not have denied the motion praying for new trial simply because defendant failed to file her answer thereto. Such failure of the defendant cannot be taken as evidence of collusion, especially since a provincial fiscal has been ordered of represent the Government precisely to prevent such collusion. As to the veracity of the contents of the motion and its annexes, the same can best be determined only after hearing evidence. In the circumstance, we think that justice would be better served if a new trial were ordered. Wherefore, the decision complained of is set aside and the case remanded to the court a quo for new trial. Without costs. Paras, C.J., Bengzon, Montemayor, Labrador, Concepcion, and Reyes, J.B.L., JJ., concur. Barrera, J., concurs in the result.

G.R. No. L-27930 November 26, 1970 AURORA A. ANAYA, plaintiff-appellant, vs. FERNANDO O. PALAROAN, defendant-appellee. Isabelo V. Castro for plaintiff-appellant. Arturo A. Romero for defendant-appellee. REYES, J.B.L., J.: Appeal from an order of dismissal, issued motu proprio by the Juvenile & Domestic Relations Court, Manila, of a complaint for annulment of marriage, docketed therein as Civil Case No. E-00431, entitled "Aurora A. Anaya, plaintiff vs. Fernando O. Palaroan, defendant." The complaint in said Civil Case No. E-00431 alleged, inter alia, that plaintiff Aurora and defendant Fernando were married on 4 December 1953; that defendant Fernando filed an action for annulment of the marriage on 7 January 1954 on the ground that his consent was obtained through force and intimidation, which action was docketed in the Court of First Instance of Manila as Civil Case No. 21589; that judgment was rendered therein on 23 September 1959 dismissing the complaint of Fernando, upholding the validity of the marriage and granting Aurora's counterclaim; that (per paragraph IV) while the amount of the

counterclaim was being negotiated "to settle the judgment," Fernando had divulged to Aurora that several months prior to their marriage he had premarital relationship with a close relative of his; and that "the nondivulgement to her of the aforementioned pre-marital secret on the part of defendant that definitely wrecked their marriage, which apparently doomed to fail even before it had hardly commenced ... frank disclosure of which, certitude precisely precluded her, the Plaintiff herein from going thru the marriage that was solemnized between them constituted 'FRAUD', in obtaining her consent, within the contemplation of No. 4 of Article 85 of the Civil Code" (sic) (Record on Appeal, page 3). She prayed for the annulment of the marriage and for moral damages. Defendant Fernando, in his answer, denied the allegation in paragraph IV of the complaint and denied having had pre-marital relationship with a close relative; he averred that under no circumstance would he live with Aurora, as he had escaped from her and from her relatives the day following their marriage on 4 December 1953; that he denied having committed any fraud against her. He set up the defenses of lack of cause of action and estoppel, for her having prayed in Civil Case No. 21589 for the validity of the marriage and her having enjoyed the support that had been granted her. He counterclaimed for damages for the malicious filing of the suit. Defendant Fernando did not pray for the dismissal of the complaint but for its dismissal "with respect to the alleged moral damages." Plaintiff Aurora filed a reply with answer to the counterclaim, wherein she alleged: (1) that prior to their marriage on 4 December 1953, he paid court to her, and pretended to shower her with love and affection not because he really felt so but because she merely happened to be the first girl available to marry so he could evade marrying the close relative of his whose immediate members of her family were threatening him to force him to marry her (the close relative); (2) that since he contracted the marriage for the reason intimated by him, and not because he loved her, he secretly intended from the very beginning not to perform the marital duties and obligations appurtenant thereto, and furthermore, he covertly made up his mind not to live with her; (3) that the foregoing clandestine intentions intimated by him were prematurely concretized for him, when in order to placate and appease the immediate members of the family of the first girl (referent being the close relative)

and to convince them of his intention not to live with plaintiff, carried on a courtship with a third girl with whom, after gaining the latter's love cohabited and had several children during the whole range of nine years that Civil Case No. 21589, had been litigated between them (parties); (Record on Appeal, pages 10-11) Failing in its attempt to have the parties reconciled, the court set the case for trial on 26 August 1966 but it was postponed. Thereafter, while reviewing the expendiente, the court realized that Aurora's allegation of the fraud was legally insufficient to invalidate her marriage, and, on the authority of Brown vs. Yambao, 102 Phil. 168, holding: It is true that the wife has not interposed prescription as a defense. Nevertheless, the courts can take cognizance thereof, because actions seeking a decree of legal separation, or annulment of marriage, involve public interest, and it is the policy of our law that no such decree be issued if any legal obstacles thereto appear upon the record. the court a quo required plaintiff to show cause why her complaint should not be dismissed. Plaintiff Aurora submitted a memorandum in compliance therewith, but the court found it inadequate and thereby issued an order, dated 7 October 1966, for the dismissal of the complaint; it also denied reconsideration. The main issue is whether or not the non-disclosure to a wife by her husband of his pre-marital relationship with another woman is a ground for annulment of marriage. We must agree with the lower court that it is not. For fraud as a vice of consent in marriage, which may be a cause for its annulment, comes under Article 85, No. 4, of the Civil Code, which provides: ART. 85. A marriage may be annulled for any of the following causes, existing at the time of the marriage: xxx xxx xxx (4) That the consent of either party was obtained by fraud, unless such party afterwards, with full knowledge of the facts constituting the fraud, freely cohabited with the other as her husband or his wife, as the case may be;

This fraud, as vice of consent, is limited exclusively by law to those kinds or species of fraud enumerated in Article 86, as follows: ART. 86. Any of the following circumstances shall constitute fraud referred to in number 4 of the preceding article: (1) Misrepresentation as to the identity of one of the contracting parties; (2) Non-disclosure of the previous conviction of the other party of a crime involving moral turpitude, and the penalty imposed was imprisonment for two years or more; (3) Concealment by the wife of the fact that at the time of the marriage, she was pregnant by a man other than her husband. No other misrepresentation or deceit as to character, rank, fortune or chastity shall constitute such fraud as will give grounds for action for the annulment of marriage. The intention of Congress to confine the circumstances that can constitute fraud as ground for annulment of marriage to the foregoing three cases may be deduced from the fact that, of all the causes of nullity enumerated in Article 85, fraud is the only one given special treatment in a subsequent article within the chapter on void and voidable marriages. If its intention were otherwise, Congress would have stopped at Article 85, for, anyway, fraud in general is already mentioned therein as a cause for annulment. But Article 86 was also enacted, expressly and specifically dealing with "fraud referred to in number 4 of the preceding article," and proceeds by enumerating the specific frauds (misrepresentation as to identity, nondisclosure of a previous conviction, and concealment of pregnancy), making it clear that Congress intended to exclude all other frauds or deceits. To stress further such intention, the enumeration of the specific frauds was followed by the interdiction: "No other misrepresentation or deceit as to character, rank, fortune or chastity shall constitute such fraud as will give grounds for action for the annulment of marriage." Non-disclosure of a husband's pre-marital relationship with another woman is not one of the enumerated circumstances that would constitute a ground for annulment; and it is further excluded by the last paragraph of the article, providing that "no other misrepresentation or deceit as to ...

chastity" shall give ground for an action to annul a marriage. While a woman may detest such non-disclosure of premarital lewdness or feel having been thereby cheated into giving her consent to the marriage, nevertheless the law does not assuage her grief after her consent was solemnly given, for upon marriage she entered into an institution in which society, and not herself alone, is interested. The lawmaker's intent being plain, the Court's duty is to give effect to the same, whether it agrees with the rule or not. But plaintiff-appellant Anaya emphasizes that not only has she alleged "non-divulgement" (the word chosen by her) of the pre-marital relationship of her husband with another woman as her cause of action, but that she has, likewise, alleged in her reply that defendant Fernando paid court to her without any intention of complying with his marital duties and obligations and covertly made up his mind not to live with her. Plaintiff-appellant contends that the lower court erred in ignoring these allegations in her reply. This second set of averments which were made in the reply (pretended love and absence of intention to perform duties of consortium) is an entirely new and additional "cause of action." According to the plaintiff herself, the second set of allegations is "apart, distinct and separate from that earlier averred in the Complaint ..." (Record on Appeal, page 76). Said allegations were, therefore, improperly alleged in the reply, because if in a reply a party-plaintiff is not permitted to amend or change the cause of action as set forth in his complaint (Calo vs. Roldan, 76 Phil. 445), there is more reason not to allow such party to allege a new and additional cause of action in the reply. Otherwise, the series of pleadings of the parties could become interminable. On the merits of this second fraud charge, it is enough to point out that any secret intention on the husband's part not to perform his marital duties must have been discovered by the wife soon after the marriage: hence her action for annulment based on that fraud should have been brought within four years after the marriage. Since appellant's wedding was celebrated in December of 1953, and this ground was only pleaded in 1966, it must be declared already barred. FOR THE FOREGOING REASONS, the appealed order is hereby affirmed. No costs. Concepcion, C.J., Makalintal, Zaldivar, Castro, Fernando, Teehankee, Barredo and Villamor, JJ., concur. Dizon and Makasiar, JJ., are on leave. Ruiz vs Atienza

G.R. No. L-12790

August 31, 1960

JOEL JIMENEZ, plaintiff-appellee, vs.REMEDIOS CAIZARES, defendant. Republic of the Philippines, intervenor-appellant. Acting Solicitor General Guillermo E. Torres and Solicitor Pacifico P. de Castro for appellant. Climaco, Ascarraga and Silang for appellee. PADILLA, J.: In a complaint filed on 7 June 1955 in the Court of First Instance of Zamboanga the plaintiff Joel Jimenez prays for a decree annulling his marriage to the defendant Remedios Caizares contracted on 3 August 1950 before a judge of the municipal court of Zamboanga City, upon the ground that the office of her genitals or vagina was to small to allow the penetration of a male organ or penis for copulation; that the condition of her genitals as described above existed at the time of marriage and continues to exist; and that for that reason he left the conjugal home two nights and one day after they had been married. On 14 June 1955 the wife was summoned and served a copy of the complaint. She did not file an answer. On 29 September 1956, pursuant to the provisions of article 88 of the Civil Code, the Court directed the city attorney of Zamboanga to inquire whether there was a collusion, to intervene for the State to see that the evidence for the plaintiff is not a frame-up, concocted or fabricated. On 17 December 1956 the Court entered an order requiring the defendant to submit to a physical examination by a competent lady physician to determine her physical capacity for copulation and to submit, within ten days from receipt of the order, a medical certificate on the result thereof. On 14 March 1957 the defendant was granted additional five days from notice to comply with the order of 17 December 1956 with warning that her failure to undergo medical examination and submit the required doctor's certificate would be deemed lack of interest on her part in the case and that judgment upon the evidence presented by her husband would be rendered. After hearing, at which the defendant was not present, on 11 April 1957 the Court entered a decree annulling the marriage between the plaintiff and the defendant. On 26 April 1957 the city attorney filed a motion for reconsideration of the decree thus entered, upon the ground, among others, that the defendant's impotency has not been satisfactorily established as required by law; that she had not been physically examined because she had refused to be examined; that instead of annulling the marriage the Court should have punished her for contempt of court and compelled her to undergo a physical examination and submit a medical certificate; and that the decree sought to be reconsidered would open the door to married couples, who want to end their marriage to collude or connive with each other by just alleging impotency of one of them. He

prayed that the complaint be dismissed or that the wife be subjected to a physical examination. Pending resolution of his motion, the city attorney timely appealed from the decree. On 13 May 1957 the motion for reconsideration was denied. The question to determine is whether the marriage in question may be annulled on the strength only of the lone testimony of the husband who claimed and testified that his wife was and is impotent. The latter did not answer the complaint, was absent during the hearing, and refused to submit to a medical examination. Marriage in this country is an institution in which the community is deeply interested. The state has surrounded it with safeguards to maintain its purity, continuity and permanence. The security and stability of the state are largely dependent upon it. It is the interest of each and every member of the community to prevent the bringing about of a condition that would shake its foundation and ultimately lead to its destruction. The incidents of the status are governed by law, not by will of the parties. The law specifically enumerates the legal grounds, that must be proved to exist by indubitable evidence, to annul a marriage. In the case at bar, the annulment of the marriage in question was decreed upon the sole testimony of the husband who was expected to give testimony tending or aiming at securing the annulment of his marriage he sought and seeks. Whether the wife is really impotent cannot be deemed to have been satisfactorily established, becase from the commencement of the proceedings until the entry of the decree she had abstained from taking part therein. Although her refusal to be examined or failure to appear in court show indifference on her part, yet from such attitude the presumption arising out of the suppression of evidence could not arise or be inferred because women of this country are by nature coy, bashful and shy and would not submit to a physical examination unless compelled to by competent authority. This the Court may do without doing violence to and infringing in this case is not self-incrimination. She is not charged with any offense. She is not being compelled to be a witness against herself.1 "Impotency being an abnormal condition should not be presumed. The presumption is in favor of potency."2 The lone testimony of the husband that his wife is physically incapable of sexual intercourse is insufficient to tear asunder the ties that have bound them together as husband and wife. The decree appealed from is set aside and the case remanded to the lower court for further proceedings in accordance with this decision, without pronouncement as to costs. Paras, C.J., Bengzon, Bautista Angelo, Labrador, Concepcion, Reyes, J.B.L., Barrera, Gutierrez David, and Dizon, JJ. concur. Sarao vs. Guevara

G.R. No. 132524 December 29, 1998 FEDERICO C. SUNTAY, petitioner, vs. ISABEL COJUANGCO-SUNTAY * and HON. GREGORIO S. SAMPAGA, Presiding Judge, Branch 78, Regional Trial Court, Malolos, Bulacan, Respondents MARTINEZ, J.: Which should prevail between the ratio decidendi and the fallo of a decision is the primary issue in this petition for certiorari under Rule 65 filed by petitioner Federico C. Suntay who opposes respondent Isabel's petition for appointment as administratrix of her grandmother's estate by virtue of her right of representation. The suit stemmed from the following: On July 9, 1958, Emilio Aguinaldo Suntay (son of petitioner Federico Suntay) and Isabel Cojuangco-Suntay were married in the Portuguese Colony of Macao. Out of this marriage, three children were born namely: Margarita Guadalupe, Isabel Aguinaldo and Emilio Aguinaldo all surnamed Cojuangco Suntay. After 4 years, the marriage soured so that in 1962, Isabel Cojuangco-Suntay filed a criminal case 1 against her husband Emilio Aguinaldo Suntay. In retaliation, Emilio Aguinaldo filed before the then Court of First Instance (CFI) 2 a complaint for legal separation against his wife, charging her, among others, with infidelity and praying for the custody and care of their children who were living with their mother. 3 The suit was docketed as civil case number Q-7180. On October 3, 1967, the trial court rendered a decision the dispositive portion of which reads: WHEREFORE, the marriage celebrated between Emilio Aguinaldo Suntay and Isabel Cojuangco-Suntay on July 9, 1958 is hereby declared null and void and of no effect as between the parties. It being admitted by the parties and shown by the record that the question of the case and custody of the three children have been the subject of another case between the same parties in another branch of this Court in Special Proceeding No. 6428, the same cannot be litigated in this case. With regard to counterclaim, in view of the manifestation of counsel that the third party defendants are willing to pay P50,000.00 for damages and that defendant is willing to accept the offer instead of her original demand for P130,000.00, the defendant is awarded said sum of

P50,000.00 as her counterclaim and to pay attorney's fees in the amount of P5.000.00. SO ORDERED. As basis thereof, the CFI said: From February 1965 thru December 1965 plaintiff was confined in the Veterans Memorial Hospital. Although at the time of the trial of parricide case (September 8, 1967) the patient was already out of the hospital he continued to be under observation and treatment. It is the opinion of Dr. Aramil that the symptoms of the plaintiffs mental aberration classified as schizophernia (sic) had made themselves manifest even as early as 1955; that the disease worsened with time, until 1965 when he was actually placed under expert neuro-psychiatrist (sic) treatment; that even if the subject has shown marked progress, the remains bereft of adequate understanding of right and wrong. There is no controversy that the marriage between the parties was effected on July 9, 1958, years after plaintiffs mental illness had set in. This fact would justify a declaration of nullity of the marriage under Article 85 of the Civil Code which provides: Art. 95. (sic) A marriage may be annulled for nay of the following causes after (sic) existing at the time of the marriage: xxx xxx xxx (3) That either party was of unsound mind, unless such party, after coming to reason, freely cohabited with the other as husband or wife. There is a dearth of proof at the time of the marriage defendant knew about the mental condition of plaintiff; and there is proof that plaintiff continues to be without sound reason. The charges in this very complaint add emphasis to the findings of the neuro-psychiatrist handling the patient, that plaintiff really lives more in fancy than in
4

(Emphasis supplied).

reality, a strong indication (Emphasis supplied).

of

schizophernia

(sic).

decision declaring the marriage of respondent Isabel's parents "null and void" must be upheld; and (d) said decision had long become final and had, in fact, been executed. On the other hand, respondent Isabel asserts that petitioner's motion to dismiss was alte having been filed after the opposition was already filed in court, the counterpart of an answer in an ordinary civil action and that petitioner in his opposition likewise failed to specifically deny respondent Isabel's allegation that she is a legitimate child of Emilio Aguinaldo Suntay, the decedent's son. She further contends that petitioner proceeds from a miscomprehension of the judgment in Civil Case No. Q-7180 and the erroneous premise that there is a conflict between the body of the decision and its dispositive portion because in an action for annulment of a marriage, the court either sustains the validity of the marriage or nullifies it. It does not, after hearing declare a marriage "voidable" otherwise, the court will fail to decide and lastly, that the status of marriages under Article 85 of the Civil Code before they are annulled is "voidable." The petition must fail. Certiorari as a special civil action can be availed of only if there is concurrence of the essential requisites, to wit: (a) the tribunal, board or officer exercising judicial functions has acted without or in excess of jurisdiction or with grave abuse of discretion amounting to lack or in excess of jurisdiction, and (b) there is no appeal, nor any plain, speedy and adequate remedy in the ordinary course of law for the purpose of annulling or modifying the proceeding. 13 There must be a capricious, arbitrary and whimsical exercise of power for it to prosper. 14 A reading of the assailed order, however, shows that the respondent court did not abuse its discretion in denying petitioner's motion to dismiss, pertinent portions of which are quoted thereunder, to wit: The arguments of both parties judiciously and objectively assessed and the pertinent laws applied, the Court finds that a motion to dismiss at this juncture is inappropriate considering the peculiar nature of this special proceeding as distinguished from an ordinary civil action. At the outset, this proceeding was not adversarial in nature and the petitioner was not called upon to assert a cause of action against a particular defendant. Furthermore, the State has a vital interest in the maintenance of the proceedings, not only because of the taxes due it, but also because if no heirs qualify, the State shall acquire the estate by escheat.

On June 1, 1979, Emilio Aguinaldo Suntay predeceased his mother, the decedent Cristina Aguinaldo-Suntay. The latter is respondent Isabel's paternal grandmother. The decedent died on June 4, 1990 without leaving a will. 6 Five years later or on October 26, 1995, respondent Isabel Aguinaldo Cojuangco Suntay filed before the Regional Trial Court (RTC) 7 a petition for issuance in her favor of Letters of Administration of the Intestate Estate of her late grandmother Cristina Aguinaldo-Suntay which case was docketed as Special Proceeding Case No. 117-M-95. In her petition, she alleged among others, that she is one of the legitimate grandchildren of the decedent and prayed that she be appointed as administratrix of the estate. 8 On December 15, 1995, petitioner filed an Opposition claiming that he is the surviving spouse of the decedent, that he has been managing the conjugal properties even while the decedent has been alive and is better situated to protect the integrity of the estate than the petitioner, that petitioner and her family have been alienated from the decedent and the Oppositor for more than thirty (30) years and thus, prayed that Letters of Administration be issued instead to him. 9 On September 22, 1997 or almost two years after filing an opposition, petitioner moved to dismiss the special proceeding case alleging in the main that respondent Isabel should not be appointed as administratrix of the decedent's estate. In support thereof, petitioner argues that under Article 992 of the Civil Code an illegitimate child has no right to succeed by right of representation the legitimate relatives of her father or mother. Emilio Aguinaldo Suntay, respondent Isabel's father predeceased his mother, the late Cristina Aguinaldo Suntay and thus, opened succession by representation. Petitioner contends that as a consequence of the declaration by the then CFI of Rizal that the marriage of respondent Isabel's parents is "null and void," the latter is an illegitimate child, and has no right nor interest in the estate of her paternal grandmother the decedent. 10 On October 16, 1997, the trial court issued the assailed order denying petitioner's Motion to Dismiss. 11 When his motion for reconsideration was denied by the trial court in an order dated January 9, 1998, 12 petitioner, as mentioned above filed this petition. Petitioner imputes denying his motion the grounds that: proceeding for the motion to dismiss grave abuse of discretion to respondent court in to dismiss as well as his motion for reconsideration on (a) a motion to dismiss is appropriate in a special settlement of estate of a deceased person; (b) the was timely filed; (c) the dispositive portion of the

xxx xxx xxx The court rules, for the purpose of establishing the personality of the petitioner to file and maintain this special proceedings, that in the case bench, the body of the decision determines the nature of the action which is for annulment, not declaration of nullity. The oppositor's contention that the fallo of the questioned decision (Annex "A" Motion) prevails over the body thereof is not without any qualification. It holds true only when the dispositive portion of a final decision is definite, clear and unequivocal and can be wholly given effect without need of interpretation or construction. Where there is ambiguity or uncertainty, the opinion or body of the decision may be referred to for purposes of construing the judgment (78 SCRA 541 citing Morelos v. Go Chin Ling; and Heirs of Juan Presto v. Galang). The reason is that the dispositive portion must find support from the decision's ratio decidendi. Per decision of the Court of First Instance Branch IX of Quezon City, marked as Annex "A" of oppositor's motion, the marriage of Emilio Aguinaldo Suntay and Isabel Cojuangco-Suntay was annulled on the basis of Art. 85 par. 3 of the Civil Code which refers to marriages which are considered voidable. Petitioner being conceived and born of a voidable marriage before the decree of annulment, she is considered legitimate (Art. 89, par. 2, Civil Code of the Phils.). 15 The trial court correctly ruled that "a motion to dismiss at this juncture is inappropriate." The 1997 Rules of Civil Procedure governs the procedure to be observed in actions, civil or criminal and special proceedings. 16 The Rules do not only apply to election cases, land registration, cadastral, naturalization and insolvency proceedings, and other cases not therein provided for. Special proceedings being one of the actions under the coverage of the Rules on Civil Procedure, a motion to dismiss filed thereunder would fall under Section 1, Rule 16 thereof. Said rule provides that the motion to dismiss may be filed "within the time for but before filing the answer to the complaint." Clearly, the motion should have been filed on or before the filing of petitioner's opposition 17 which is the counterpart of an answer in ordinary civil actions.

Not only was petitioner's motion to dismiss filed out of time, it was filed almost two years after respondent Isabel was already through with the presentation of her witnesses and evidence and petitioner had presented two witnesses. The filing of the motion to dismiss is not only improper but also dilatory. The respondent court, far from deviating or straying off course from established jurisprudence on this matter, as petitioner asserts, had in fact faithfully observed the law and legal precedents in this case. In fact, the alleged conflict between the body of the decision and the dispositive portion thereof which created the ambiguity or uncertainty in the decision of the CFI of Rizal is reconcilable. The legal basis for setting aside the marriage of respondent Isabel's parents is clear under paragraph 3, Article 85 of the New Civil Code, the law in force prior to the enactment of the Family Code. Petitioner, however, strongly insists that the dispositive portion of the CFI decision has categorically declared that the marriage of respondent Isabel's parents is "null and void" and that the legal effect of such declaration is that the marriage from its inception is void and the children born out of said marriage are illegitimate. Such argument cannot be sustained. Articles 80, 81, 82 and 83 18 of the New Civil Code classify what marriages are void while Article 85 enumerates the causes for which a marriage may be annulled. 19 The fundamental distinction between void and voidable marriages is that a void marriage is deemed never to have taken place at all. The effects of void marriages, with respect to property relations of the spouses are provided for under Article 144 of the Civil Code. Children born of such marriages who are called natural children by legal fiction have the same status, rights and obligations as acknowledged natural children under Article 89 20 irrespective of whether or not the parties to the void marriage are in good faith or in bad faith. On the other hand, a voidable marriage, is considered valid and produces all its civil effects, until it is set aside by final judgment of a competent court in an action for annulment. Juridically, the annulment of a marriage dissolves the special contract as if it had never been entered into but the law makes express provisions to prevent the effects of the marriage from being totally wiped out. The status of children born in voidable marriages is governed by the second paragraph of Article 89 which provides that: Children conceived of voidable marriages before the decree of annulment shall be considered legitimate; and children conceived thereafter shall have the same status, rights and obligations as acknowledged natural children,

and are also called natural children by legal fiction. (Emphasis supplied).

21

be any less binding upon the courts in relation to its judgments. . . .The judgment must be read in its entirety, and must be construed as a whole so as to bring all of its parts into harmony as far as this can be done by fair and reasonable interpretation and so as to give effect to every word and part if possible, and to effectuate the intention and purpose of the Court, consistent with the provisions of the organic law. (49 C.J.S., pp. 863-864) [Emphasis supplied]. Thus, a reading of the pertinent portions of the decision of the CFI of Rizal quoted earlier shows that the marriage is voidable: It is the opinion of Dr. Aramil that the symptoms of the plaintiffs mental aberration classified as schizophernia (sic) had made themselves manifest even as early as 1955; that the disease worsened with time, until 1965 when he was actually placed under expert neuro-psychiatrict (sic) treatment; that even if the subject has shown marked progress, he remains bereft of adequate understanding of right and wrong. There is no controversy that the marriage between the parties was effected on July 9, 1958, years after plaintiff's mental illness had set in. This fact would justify a declaration of nullity of the marriage under Article 85 of the Civil Code which provides: Art. 95 (sic) A marriage may be annulled for any of the following causes, existing at the time of the marriage: xxx xxx xxx (3) That either party was of unsound mind, unless such party, after coming to reason, freely cohabited with the other as husband and wife; xxx xxx xxx There is a dearth of proof at the time of the marriage defendant knew about the mental condition of plaintiff; and there is proof that plaintiff continues to be without sound reason. The charges in this very handling the patient, that plaintiff really lives more in fancy than in reality, a strong indication of schizophernia (sic). 27

Stated otherwise, the annulment of "the marriage by the court abolishes the legal character of the society formed by the putative spouses, but it cannot destroy the juridical consequences which the marital union produced during its continuance." 22 Indeed, the terms "annul" and "null and void" have different legal connotations and implications, Annul means to reduce to nothing; annihilate; obliterate; to make void or of no effect; to nullify; to abolish; to do away with 23 whereas null and void is something that does not exist from the beginning. A marriage that is annulled presupposes that it subsists but later ceases to have legal effect when it is terminated through a court action. But in nullifying a marriage, the court simply declares a status or condition which already exists from the very beginning. There is likewise no merit in petitioner's argument that it is the dispositive portion of the decision which must control as to whether or not the marriage of respondent Isabel's parents was void or voidable. Such argument springs from a miscomprehension of the judgment in Civil Case No. Q-7180 and the erroneous premise that there is a conflict between the body of the decision and its dispositive portion. Parenthetically, it is an elementary principle of procedure that the resolution of the court in a given issue as embodied in the dispositive part of a decision or order is the controlling factor as to settlement of rights of the parties and the questions presented, notwithstanding statement in the body of the decision or order which may be somewhat confusing, 24 the same is not without a qualification. The foregoing rule holds true only when the dispositive part of a final decision or order is definite, clear and unequivocal and can be wholly given effect without need of interpretation or construction-which usually is "the case where the order or decision in question is that of a court not of record which is not constitutionally required to state the facts and the law on which the judgment is based." 25 Assuming that a doubt or uncertainty exists between the dispositive portion and the body of the decision, effort must be made to harmonize the whole body of the decision in order to give effect to the intention, purpose and judgment of the court. In Republic v. de los Angeles 26 the Court said: Additionally, Article 10 of the Civil Code states that "[i]n case of doubt in the interpretation or application of laws, it is presumed that the lawmaking body intended right and justice to prevail." This mandate of law, obviously cannot

Inevitably, the decision of the CFI of Rizal declared null and void the marriage of respondent Isabel's parents based on paragraph 3, Article 85 of the New Civil Code. The legal consequences as to the rights of the children are therefore governed by the first clause of the second paragraph of Article 89. A contrary interpretation would be anathema to the rule just above-mentioned. Based on said provision the children of Emilio Aguinaldo Suntay and Isabel Cojuangco-Suntay who were conceived and born prior to the decree of the trial court setting aside their marriage on October 3, 1967 are considered legitimate. For purposes of seeking appointment as estate administratrix, the legitimate grandchildren, including respondent Isabel, may invoke their successional right of representation the estate of their grandmother Cristina Aguinaldo Suntay after their father, Emilio Aguinaldo Suntay, had predeceased their grandmother. This is, however, without prejudice to a determination by the courts of whether the Letters of Administration may be granted to her. Neither do the Court adjudged herein the successional rights of the personalities involved over the decedent's estate. It would not therefore be amiss to reiterate at this point what the Court, speaking through Chief Justice Ruiz Castro, emphasized to "all magistrates of all levels of the judicial hierarchy that extreme degree of care should be exercised in the formulation of the dispositive portion of a decision, because it is this portion that is to be executed once the decision becomes final. The adjudication of the rights and obligations of thoe parties, and the dispositions made as well as the directions and instructions given by the court in the premises in conformity with the body of the decision, must all be spelled out clearly, distinctly and unequivocally leaving absolutely no room for dispute, debate or interpretation. 28 WHEREFORE, finding no grave abuse of discretion, the instant petition is DISIMISSED. SO ORDERED. Bellosillo, Puno and Mendoza, JJ., concur.

G.R. No. L-43701

March 6, 1937

In re Instate of the deceased Marciana Escao. ANGELITA JONES., petitioner-appellant-appellee, vs. FELIX HORTIGUELA, as administrator, widower and heir, oppositor-appellant-appellee. Salvador E. Imperial for petitioner-appellant-appellee. Vicente L. Faelnar , Hipolito Alo and Ciriaco S. Salazar for oppositorappellant-appellee. CONCEPCION, J.: This is an appeal taken from the order issued by the Court of First Instance of Cebu on March 14, 1935 , in the intestate proceedings of the deceased Marciana Escao, denying thereby: (1) the motion to appoint a new administrator and (2) to set aside the order of May 9, 1932, declaring the heirs of said deceased; (3) holding it unwarranted to declare that the properties of the intestate estate are paraphernal properties of said deceased, but reserving to the parties the right to discuss which of said properties are paraphernal and which are conjugal; (4)setting aside the order of January 10, 1933. granting to the administrator fees in the sum of P10,000, and that of June 26, 1933, approving the project of portion and the final account; and (5) ordering the presentation of another project of partition and final account. As Marciana Escao had died intestate, her widower Felix Hortiguela was appointed judicial administrator of her entire estate, and in an order issued on May 9, 1932, Angelita Jones, her daughter by her first marriage, and Felix Hortiguela, her widower by her second marriage, were declared her only heirs. In a motion filed with the conformity of the guardian of the heiress Angelita Jones, Felix Hortiguela, as administrator, prayed that his fees, as such, be fixed at P10,000 which was granted by the court in its order of January 10, 1933. The administrator later presented an inventory of the properties left by said deceased Marciana Escao, a final account of his administration, and a project of partition of the intestate estate wherein he adjudicated to himself a part of the estate in payment of his share of the conjugal properties and his usufructuary right, and the remaining part to Angelita Jones. The latter, who was a minor, was represented in the proceedings by her guardian Paz Escao de Corominas. The project of partition and final account were approved in an order of June 26, 1933, and the properties were turned over to the respective grantees by virtue thereof. On May 3, 1934, the heiress Angelita Jones, then married to Ernesto Lardizabal, filed a motion alleging that she was the only heir of her mother, the deceased Marciana Escao; that there never was a valid marriage between her mother and Felix Hortiguela or that had such

marriage been celebrated, it was null and void; and even granting that it were valid, Felix Hortiguela was not entitled to a share in usufruct of onethird of the inheritance; that the petitioner was a minor and that during the hearing of the intestate proceedings she had not been assisted by counsel but was represent by the same attorney of Felix Hortiguela; that during said proceedings there had been committed many errors and inaccuracies which impaired her rights and that the fees of P10,000 charged by the administrator were highly unreasonable and unconscionable. She prayed: (a) for the reopening of the proceedings; (b) that her husband appointed special administrator without bond; (c) that her mother's alleged marriage to Felix Hortiguela be declared null and void; (d) that the partition of the properties made by administrator or Hortiguela be declared null and void that petitioner be declared the only universal heir of her deceased mother; and (e) that in case there was a valid marriage between Felix Hortiguela and Marciana Escao, Hortiguela be declared not entitled to the widower's usufruct; the errors in the administrator's account be corrected; the latter be granted a remuneration of only P4 a day, and new partition of the properties be made. After Hortiguela's answer had been filed and the evidence for both parties received, the court issued the order of March 14, 1935, the provisions of which are stated in the first paragraph of this decision. Both parties appealed therefrom. The principal question upon the resolution of which depends that of the others, is whether or not Felix Hortiguela's alleged marriage to Marciana Escao was celebrated. It is a fact that in December, 1914, Marciana Escao married Arthur W. Jones in the suburban catholic church of San Nicolas, Province of Cebu. On January 10, 1918, Jones secured a passport to go abroad and thereafter nothing was ever heard of him. In October, 1919, proceedings were institute in the Court of First Instance of Maasin, Leyte, at the instance of Marciana Escao, to have her husband judicially declared an absentee. On the 25th of said month, the court issued an order declaring Arthur W. Jones an absentee from the Philippine Islands pursuant to the provisions of article 186 of the Civil Code, with the proviso that said judicial declaration of absence would not take effect until six months after its publication in the official newspapers. Said order directed the publication thereof in the Official Gazette and in the newspaper "El Ideal". Pursuant thereto, said order was published in the Official Gazette during the month of December, 1919, and January, February, March, April, May and June, 1920. On April 23, 1921, the court issued another order for the taking effect of the declaration of absence, publication thereof having been made in the Official Gazette and in "El Ideal." On May 6, 1927, Felix Hortiguela and Marciana Escao were married before the justice of the peace of Malitbog, Leyte, and they signed the certificate of marriage.

Now, Angelita Jones contends that the declaration of absence must be understood to have been made not in the order of October 25, 1919, but in that of April 23, 1921, and that from the latter date to May 6, 1927, the date of the celebration of the marriage, only 6 years and 14 days elapsed; and in accordance with section III, paragraph 2, of General Orders, No. 68, the marriage so contracted by Felix Hortiguela and Marciana Escao is null and void. This court does not believe so. For the purposes of the civil marriage law, it is not necessary to have the former spouse judicially declared an absentee. The declaration of absence made in accordance with the provisions of the Civil Code has for its sole purpose to enable the taking of the necessary precautions for the administration of the estate of the absentee. For the celebration of civil marriage, however, the law only requires that the former spouse has been absent for seven consecutive years at the time of the second marriage, that the spouse present does not know his or her former spouse to be living, that such former spouse is generally reputed to be dead and the spouse present so believe at the time of the celebration of the marriage (section III, paragraph 2, General orders, No. 68). In accordance with the foregoing legal provision, the absence of Marciana Escao's former husband should be counted from January 10, 1918, the date on which the last news concerning Arthur W. Jones was received, and from said date to May 6, 1927, more than nine years elapsed. Said marriage is, therefore, valid and lawful. For some unknown reason not attributable, of course, to the fault or negligence of Felix Hortiguela or Marciana Escao, the marriage contracted does not appear recorded in the marriage register of the municipality of Malitbog. Angelita Jones assigns as one of the errors of the court its having declared that failure to record said marriage does not affect the efficacy and validity thereof. On this point, the court a quo very correctly stated as follows: Section VIII of General Orders, No. 68, as amended, provides that the person solemnizing the marriage must transmit the marriage certificate to the municipal secretary, and failure to transmit such certificate shall be fined not less than twenty-five and not more than fifty dollars; but does not provide that failure to transmit such certificate to the municipal secretary annuls the marriage. Interpreting this legal provision, the Supreme Court, in its decision of September 5, 1931 (Madridejo vs. De Leon, 55 Phil., 1 ) said: "The mere fact that the parish priest who married the plaintiff's natural father and mother, while the latter was in articulo mortis failed to send a copy of the marriage certificate to the municipal secretary, does not invalidate

said marriage, since it does not appear that in the celebration thereof all requisites for its validity were not present, the forwarding of a copy of the marriage certificate not being one said requisites." In another case (U. S. vs. De Vera, 28 Phil., 105), the court said: "Certificate issued pursuant the provisions of section 20 of the Municipal Code by municipal secretaries, marriages recorded in their respective registers, are not the only ones that can attest and prove such facts to such an extent that other proofs established by law may not be presented or admitted at trial, when through the omission or fault either of the municipal secretary himself or of the person who solemnized the marriage, it was not duly entered or recorded in the municipal register." Furthermore, Marciana Escao believed Arthur W. Jones to be dead when she contracted her second marriage. Her daughter Angelita Jones herself was of the same belief, since she lived with her mother after the latter had married Hortiguela, treated Hortiguela as her true stepfather, and lived and traveled with him together with her mother. She certainly would not have behaved so if she had not believed her father to be dead. Still furthermore, according to section 334, No. 24, of the Code of Civil Procedure, a person not heard from in seven years is presumed to be dead. Inasmuch as Felix Hortiguela was lawfully married to Marciana Escao and was divorced from her at the time of her death there is no doubt that he is entitled to inherit in usufruct, not only in testate but also in intestate succession, as in the present case (6 and 7 Manresa, pages 497-499 and 134-141, respectively). Therefor, there is no reason to annul the order of May 9, 1932, declaring that the heirs of the deceased were her widower and her daughter Angelita Jones. Neither is there any reason to annul the order of June 26, 1933, approving the partition of the properties of the intestate estate. The inaccuracies and error attributed to the administrator Felix Hortiguela in Angelita Jones' motion and alleged therein as one of the grounds for asking for the reopening of any assignment of error. It should, therefore, be considered that the petitioner has desisted from her intention relative to this alleged ground for the nullity of the proceedings. As to the administrator's fees, the evidence shows that of the P10,000 granted by the court to Hortiguela as his own sum of P8,000 for the latter's professional services in this as well as in other cases affecting the estate of his deceased wife. Taking into consideration the nature of and

the amount involved in this and in the other cases wherein Attorney Faelnar has rendered his services this court is of the opinion that the sum of P8,000 paid by the administrator is a reasonable and moderate compensation. Angelita Jones' objection to the effect that she had no reason to contribute to the payment of Faelnar's fees is untenable, considering the fact that said attorney's professional services were rendered for the benefit of the administration of the estate of the deceased Escao prior to the controversy provoked by said heiress. As to the remainder of P2,000, said administrator is entitled to collect the sum of P4 for every day employed by him as such, and considering the importance of the inheritance in question and the time elapsed since the inception of the administration proceedings this court is of the opinion that the sum of P2,000 is an adequate compensation for said administrator's services. Lastly, had the court jurisdiction to set aside, as it did, the order of January 10, 1933, approving the administrator's fees and the order of June 26, 1933, approving the partition and the final account? Had the court jurisdiction to order the presentation of another project of partition and final account? These are the questions raised by Felix Hortiguela and this court is of the opinion that said orders having therefrom, the court has lost jurisdiction that no appeal was ever taken therefrom, the court has lost jurisdiction over the case and it could not resume it under section 113 of the Code of Civil Procedure or under section 598 thereof because the above-cited section refer to grounds other than those upon which Angelita Jones' motion of May 3, 1934, is based. For all the foregoing consideration this court reverses the appealed order of March 14, 1935, in so far as it set aside the order of January 10, 1933, relative to the administrator's fees and the order of June 26, 1933, approving the final account and the project of portion, and in so far as said order of March 14, 1935, required the presentation of a new project of partition; denied the appointment of Angelita Jones husband as administrator; affirms the order of May 9, 1932, relative to declaration of heirs; and holds it unwarranted to make a finding as to whether or not the properties of this intestate estate are paraphernal properties of the deceased Marciana Escao reserving to the parties the right to discuss which are paraphernal and which are conjugal properties. So ordered. Avancea, C.J., Villa-Real, Abad Santos, Diaz and Laurel, JJ., concur.

Taman vs. Ortiz