FIRST DIVISION
[G.R. No. 170829. November 20, 2006.]
PERLA G. PATRICIO, petitioner, vs. MARCELINO G. DARIO III
and THE HONORABLE COURT OF APPEALS, Second Division,
respondents.
DECISION
YNARES-SANTIAGO, J : p
This petition for review on certiorari under Rule 45 of the Rules of Court
seeks to annul and set aside the Resolution of the Court of Appeals dated December
9, 2005 1(1) in CA-G.R. CV No. 80680, which dismissed the complaint for partition
filed by petitioner for being contrary to law and evidence.
On July 5, 1987, Marcelino V. Dario died intestate. He was survived by his
wife, petitioner Perla G. Patricio and their two sons, Marcelino Marc Dario and
private respondent Marcelino G. Dario III. Among the properties he left was a parcel
of land with a residential house and a pre-school building built thereon situated at 91
Oxford corner Ermin Garcia Streets in Cubao, Quezon City, as evidenced by Transfer
Certificate of Title (TCT) No. RT-30731 (175992) of the Quezon City Registry of
Deeds, covering an area of seven hundred fifty five (755) square meters, more or less.
2(2)
On August 10, 1987, petitioner, Marcelino Marc and private respondent,
extrajudicially settled the estate of Marcelino V. Dario. Accordingly, TCT No.
RT-30731 (175992) was cancelled and TCT No. R-213963 was issued in the names
of petitioner, private respondent and Marcelino Marc.
Thereafter, petitioner and Marcelino Marc formally advised private respondent
of their intention to partition the subject property and terminate the co-ownership.
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Private respondent refused to partition the property hence petitioner and Marcelino
Marc instituted an action for partition before the Regional Trial Court of Quezon City
which was docketed as Civil Case No. Q-01-44038 and raffled to Branch 78.
On October 3, 2002, 3(3) the trial court ordered the partition of the subject
property in the following manner: Perla G. Patricio, 4/6; Marcelino Marc G. Dario,
1/6; and Marcelino G. Dario III, 1/6. The trial court also ordered the sale of the
property by public auction wherein all parties concerned may put up their bids. In
case of failure, the subject property should be distributed accordingly in the
aforestated manner. 4(4)
Private respondent filed a motion for reconsideration which was denied by the
trial court on August 11, 2003, 5(5) hence he appealed before the Court of Appeals,
which denied the same on October 19, 2005. However, upon a motion for
reconsideration filed by private respondent on December 9, 2005, the appellate court
partially reconsidered the October 19, 2005 Decision. In the now assailed Resolution,
the Court of Appeals dismissed the complaint for partition filed by petitioner and
Marcelino Marc for lack of merit. It held that the family home should continue
despite the death of one or both spouses as long as there is a minor beneficiary
thereof. The heirs could not partition the property unless the court found compelling
reasons to rule otherwise. The appellate court also held that the minor son of private
respondent, who is a grandson of spouses Marcelino V. Dario and Perla G. Patricio,
was a minor beneficiary of the family home. 6(6)
Hence, the instant petition on the following issues:
I.
THE HONORABLE COURT OF APPEALS PATENTLY ERRED IN
REVERSING ITS EARLIER DECISION OF OCTOBER 19, 2005 WHICH
AFFIRMED IN TOTO THE DECISION OF THE TRIAL COURT DATED 03
OCTOBER 2002 GRANTING THE PARTITION AND SALE BY PUBLIC
AUCTION OF THE SUBJECT PROPERTY. aScIAC
II.
COROLLARILY, THE HONORABLE COURT OF APPEALS PATENTLY
ERRED IN APPLYING ARTICLE 159 IN RELATION TO ARTICLE 154 OF
THE FAMILY CODE ON FAMILY HOME INSTEAD OF ARTICLE 494 IN
RELATION TO ARTICLES 495 AND 498 OF THE NEW CIVIL CODE ON
CO-OWNERSHIP. 7(7)
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The sole issue is whether partition of the family home is proper where one of
the co-owners refuse to accede to such partition on the ground that a minor
beneficiary still resides in the said home.
Private respondent claims that the subject property which is the family home
duly constituted by spouses Marcelino and Perla Dario cannot be partitioned while a
minor beneficiary is still living therein namely, his 12-year-old son, who is the
grandson of the decedent. He argues that as long as the minor is living in the family
home, the same continues as such until the beneficiary becomes of age. Private
respondent insists that even after the expiration of ten years from the date of death of
Marcelino on July 5, 1987, i.e., even after July 1997, the subject property continues to
be considered as the family home considering that his minor son, Marcelino Lorenzo
R. Dario IV, who is a beneficiary of the said family home, still resides in the
premises.
On the other hand, petitioner alleges that the subject property remained as a
family home of the surviving heirs of the late Marcelino V. Dario only up to July 5,
1997, which was the 10th year from the date of death of the decedent. Petitioner
argues that the brothers Marcelino Marc and private respondent Marcelino III were
already of age at the time of the death of their father, 8(8) hence there is no more
minor beneficiary to speak of.
The family home is a sacred symbol of family love and is the repository of
cherished memories that last during one's lifetime. 9(9) It is the dwelling house where
husband and wife, or by an unmarried head of a family, reside, including the land on
which it is situated. 10(10) It is constituted jointly by the husband and the wife or by
an unmarried head of a family. 11(11) The family home is deemed constituted from
the time it is occupied as a family residence. From the time of its constitution and so
long as any of its beneficiaries actually resides therein, the family home continues to
be such and is exempt from execution, forced sale or attachment except as hereinafter
provided and to the extent of the value allowed by law. 12(12)
The law explicitly provides that occupancy of the family home either by the
owner thereof or by "any of its beneficiaries" must be actual. That which is "actual" is
something real, or actually existing, as opposed to something merely possible, or to
something which is presumptive or constructive. Actual occupancy, however, need
not be by the owner of the house specifically. Rather, the property may be occupied
by the "beneficiaries" enumerated in Article 154 of the Family Code, which may
include the in-laws where the family home is constituted jointly by the husband and
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wife. But the law definitely excludes maids and overseers. They are not the
beneficiaries contemplated by the Code. 13(13)
Article 154 of the Family Code enumerates who are the beneficiaries of a
family home: (1) The husband and wife, or an unmarried person who is the head of a
family; and (2) Their parents, ascendants, descendants, brothers and sisters, whether
the relationship be legitimate or illegitimate, who are living in the family home and
who depend upon the head of the family for legal support. ADHcTE
To be a beneficiary of the family home, three requisites must concur: (1) they
must be among the relationships enumerated in Art. 154 of the Family Code; (2) they
live in the family home; and (3) they are dependent for legal support upon the head of
the family.
Moreover, Article 159 of the Family Code provides that the family home shall
continue despite the death of one or both spouses or of the unmarried head of the
family for a period of 10 years or for as long as there is a minor beneficiary, and the
heirs cannot partition the same unless the court finds compelling reasons therefor.
This rule shall apply regardless of whoever owns the property or constituted the
family home.
Article 159 of the Family Code applies in situations where death occurs to
persons who constituted the family home. Dr. Arturo M. Tolentino comments on the
effect of death of one or both spouses or the unmarried head of a family on the
continuing existence of the family home:
Upon the death of the spouses or the unmarried family head who
constituted the family home, or of the spouse who consented to the constitution
of his or her separate property as family home, the property will remain as
family home for ten years or for as long as there is a minor beneficiary living in
it. If there is no more beneficiary left at the time of death, we believe the
family home will be dissolved or cease, because there is no more reason for its
existence. If there are beneficiaries who survive living in the family home, it
will continue for ten years, unless at the expiration of the ten years, there is
still a minor beneficiary, in which case the family home continues until that
beneficiary becomes of age.
After these periods lapse, the property may be partitioned by the heirs.
May the heirs who are beneficiaries of the family home keep it intact by not
partitioning the property after the period provided by this article? We believe
that although the heirs will continue in ownership by not partitioning the
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property, it will cease to be a family home. 14(14) (Emphasis supplied)
Prof. Ernesto L. Pineda further explains the import of Art. 159 in this manner:
The family home shall continue to exist despite the death of one or both
spouses or of the unmarried head of the family. Thereafter, the length of its
continued existence is dependent upon whether there is still a
minor-beneficiary residing therein. For as long as there is one beneficiary
even if the head of the family or both spouses are already dead, the family
home will continue to exist (Arts. 153, 159). If there is no minor-beneficiary,
it will subsist until 10 years and within this period, the heirs cannot partition
the same except when there are compelling reasons which will justify the
partition. This rule applies regardless of whoever owns the property or who
constituted the family home. 15(15) (Emphasis supplied)
The rule in Article 159 of the Family Code may thus be expressed in this wise:
If there are beneficiaries who survive and are living in the family home, it will
continue for 10 years, unless at the expiration of 10 years, there is still a minor
beneficiary, in which case the family home continues until that beneficiary becomes
of age.
It may be deduced from the view of Dr. Tolentino that as a general rule, the
family home may be preserved for a minimum of 10 years following the death of the
spouses or the unmarried family head who constituted the family home, or of the
spouse who consented to the constitution of his or her separate property as family
home. After 10 years and a minor beneficiary still lives therein, the family home shall
be preserved only until that minor beneficiary reaches the age of majority. The
intention of the law is to safeguard and protect the interests of the minor beneficiary
until he reaches legal age and would now be capable of supporting himself. However,
three requisites must concur before a minor beneficiary is entitled to the benefits of
Art. 159: (1) the relationship enumerated in Art. 154 of the Family Code; (2) they live
in the family home, and (3) they are dependent for legal support upon the head of the
family. CIcTAE
Thus, the issue for resolution now is whether Marcelino Lorenzo R. Dario IV,
the minor son of private respondent, can be considered as a beneficiary under Article
154 of the Family Code.
As to the first requisite, the beneficiaries of the family home are: (1) The
husband and wife, or an unmarried person who is the head of a family; and (2) Their
parents, ascendants, descendants, brothers and sisters, whether the relationship be
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legitimate or illegitimate. The term "descendants" contemplates all descendants of the
person or persons who constituted the family home without distinction; hence, it must
necessarily include the grandchildren and great grandchildren of the spouses who
constitute a family home. Ubi lex non distinguit nec nos distinguire debemos. Where
the law does not distinguish, we should not distinguish. Thus, private respondent's
minor son, who is also the grandchild of deceased Marcelino V. Dario satisfies the
first requisite.
As to the second requisite, minor beneficiaries must be actually living in the
family home to avail of the benefits derived from Art. 159. Marcelino Lorenzo R.
Dario IV, also known as Ino, the son of private respondent and grandson of the
decedent Marcelino V. Dario, has been living in the family home since 1994, or
within 10 years from the death of the decedent, hence, he satisfies the second
requisite.
However, as to the third requisite, Marcelino Lorenzo R. Dario IV cannot
demand support from his paternal grandmother if he has parents who are capable of
supporting him. The liability for legal support falls primarily on Marcelino Lorenzo
R. Dario IV's parents, especially his father, herein private respondent who is the head
of his immediate family. The law first imposes the obligation of legal support upon
the shoulders of the parents, especially the father, and only in their default is the
obligation imposed on the grandparents.
Marcelino Lorenzo R. Dario IV is dependent on legal support not from his
grandmother, but from his father. Thus, despite residing in the family home and his
being a descendant of Marcelino V. Dario, Marcelino Lorenzo R. Dario IV cannot be
considered as beneficiary contemplated under Article 154 because he did not fulfill
the third requisite of being dependent on his grandmother for legal support. It is his
father whom he is dependent on legal support, and who must now establish his own
family home separate and distinct from that of his parents, being of legal age.
Legal support, also known as family support, is that which is provided by law,
comprising everything indispensable for sustenance, dwelling, clothing, medical
attendance, education and transportation, in keeping with the financial capacity of the
family. 16(16) Legal support has the following characteristics: (1) It is personal,
based on family ties which bind the obligor and the obligee; (2) It is intransmissible;
(3) It cannot be renounced; (4) It cannot be compromised; (5) It is free from
attachment or execution; (6) It is reciprocal; (7) It is variable in amount. 17(17)
Professor Pineda is of the view that grandchildren cannot demand support
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directly from their grandparents if they have parents (ascendants of nearest degree)
who are capable of supporting them. This is so because we have to follow the order of
support under Art. 199. 18(18) We agree with this view.
The reasons behind Art. 199 as explained by Pineda and Tolentino: the closer
the relationship of the relatives, the stronger the tie that binds them. Thus, the
obligation to support under Art. 199 which outlines the order of liability for support is
imposed first upon the shoulders of the closer relatives and only in their default is the
obligation moved to the next nearer relatives and so on. EHTIDA
There is no showing that private respondent is without means to support his
son; neither is there any evidence to prove that petitioner, as the paternal
grandmother, was willing to voluntarily provide for her grandson's legal support. On
the contrary, herein petitioner filed for the partition of the property which shows an
intention to dissolve the family home, since there is no more reason for its existence
after the 10-year period ended in 1997.
With this finding, there is no legal impediment to partition the subject
property.
The law does not encourage co-ownerships among individuals as oftentimes it
results in inequitable situations such as in the instant case. Co-owners should be
afforded every available opportunity to divide their co-owned property to prevent
these situations from arising.
As we ruled in Santos v. Santos, 19(19) no co-owner ought to be compelled to
stay in a co-ownership indefinitely, and may insist on partition on the common
property at any time. An action to demand partition is imprescriptible or cannot be
barred by laches. Each co-owner may demand at any time the partition of the
common property. 20(20)
Since the parties were unable to agree on a partition, the court a quo should
have ordered a partition by commissioners pursuant to Section 3, Rule 69 of the Rules
of Court. Not more than three competent and disinterested persons should be
appointed as commissioners to make the partition, commanding them to set off to the
plaintiff and to each party in interest such part and proportion of the property as the
court shall direct.
When it is made to appear to the commissioners that the real estate, or a
portion thereof, cannot be divided without great prejudice to the interest of the parties,
the court may order it assigned to one of the parties willing to take the same, provided
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he pays to the other parties such sum or sums of money as the commissioners deem
equitable, unless one of the parties interested ask that the property be sold instead of
being so assigned, in which case the court shall order the commissioners to sell the
real estate at public sale, and the commissioners shall sell the same accordingly.
21(21)
The partition of the subject property should be made in accordance with the
rule embodied in Art. 996 of the Civil Code. 22(22) Under the law of intestate
succession, if the widow and legitimate children survive, the widow has the same
share as that of each of the children. However, since only one-half of the conjugal
property which is owned by the decedent is to be allocated to the legal and
compulsory heirs (the other half to be given exclusively to the surviving spouse as her
conjugal share of the property), the widow will have the same share as each of her
two surviving children. Hence, the respective shares of the subject property, based on
the law on intestate succession are: (1) Perla Generosa Dario, 4/6; (2) Marcelino Marc
G. Dario II, 1/6 and (3) Marcelino G. Dario III, 1/6.
In Vda. de Daffon v. Court of Appeals, 23(23) we held that an action for
partition is at once an action for declaration of co-ownership and for segregation and
conveyance of a determinate portion of the properties involved. If the court after trial
should find the existence of co-ownership among the parties, the court may and
should order the partition of the properties in the same action. 24(24)
WHEREFORE, the petition is GRANTED. The Resolution of the Court of
Appeals in CA-G.R. CV No. 80680 dated December 9, 2005, is REVERSED and
SET ASIDE. The case is REMANDED to the Regional Trial Court of Quezon City,
Branch 78, who is directed to conduct a PARTITION BY COMMISSIONERS and
effect the actual physical partition of the subject property, as well as the
improvements that lie therein, in the following manner: Perla G. Dario, 4/6;
Marcelino Marc G. Dario, 1/6 and Marcelino G. Dario III, 1/6. The trial court is
DIRECTED to appoint not more than three (3) competent and disinterested persons,
who should determine the technical metes and bounds of the property and the proper
share appertaining to each heir, including the improvements, in accordance with Rule
69 of the Rules of Court. When it is made to the commissioners that the real estate, or
a portion thereof, cannot be divided without great prejudice to the interest of the
parties, the court a quo may order it assigned to one of the parties willing to take the
same, provided he pays to the other parties such sum or sums of money as the
commissioners deem equitable, unless one of the parties interested ask that the
property be sold instead of being so assigned, in which case the court shall order the
commissioners to sell the real estate at public sale, and the commissioners shall sell
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the same accordingly, and thereafter distribute the proceeds of the sale appertaining to
the just share of each heir. No pronouncement as to costs. SDHETI
SO ORDERED.
Panganiban, C.J., Austria-Martinez, Callejo, Sr. and Chico-Nazario, JJ.,
concur.
Footnotes
1. Rollo, pp 38-49. Penned by Associate Justice Eugenio S. Labitoria and concurred in
by Associate Justices Eliezer R. de los Santos and Jose C. Reyes, Jr.
2. Id. at 59.
3. Id. at 77-80. Penned by Judge Percival Mandap Lopez.
4. Id. at 80.
5. Id. at 88. Penned by Judge Demetrio B. Macapagal, Sr. as Pairing Judge.
6. Id. at 44-49.
7. Id. at 21.
8. Id. at 26.
9. A. Tolentino, Commentaries and Jurisprudence on the Civil Code of the Philippines,
Vol. I (1990 ed.), p. 508, citing Code Commission of 1947, pp. 18-19, 20.
10. FAMILY CODE, Art. 152.
11. Id.
12. Id., Art. 153.
13. Manacop v. Court of Appeals, 342 Phil. 735, 744 (1997).
14. Supra note 9 at 515-516.
15. E. Pineda, The Family Code of the Philippines Annotated (1999 ed.), p. 291.
16. FAMILY CODE, Art. 194.
17. Supra note 9 at 575.
18. Supra note 15 at 401. Art. 199 provides that "[w]henever two or more persons are
obliged to give support, the liability shall devolve upon the following persons in the
order herein provided: (1) The spouse; (2) The descendants in the nearest degree; (3)
The ascendants in the nearest degree; (4) The brothers and sisters."
19. 396 Phil. 928 (2000).
20. Id. at 948.
21. RULES OF COURT, Rule 69, Sec. 5.
22. Art. 996 states that "[i]f the widow or widower and legitimate children or descendants
are left, the surviving spouse has in the succession the same share as that of each of
the children."
23. 436 Phil. 233 (2002).
24. Id. at 240-241.
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Endnotes
1 (Popup - Popup)
1. Rollo, pp 38-49. Penned by Associate Justice Eugenio S. Labitoria and concurred in
by Associate Justices Eliezer R. de los Santos and Jose C. Reyes, Jr.
2 (Popup - Popup)
2. Id. at 59.
3 (Popup - Popup)
3. Id. at 77-80. Penned by Judge Percival Mandap Lopez.
4 (Popup - Popup)
4. Id. at 80.
5 (Popup - Popup)
5. Id. at 88. Penned by Judge Demetrio B. Macapagal, Sr. as Pairing Judge.
6 (Popup - Popup)
6. Id. at 44-49.
7 (Popup - Popup)
7. Id. at 21.
8 (Popup - Popup)
8. Id. at 26.
9 (Popup - Popup)
9. A. Tolentino, Commentaries and Jurisprudence on the Civil Code of the Philippines,
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Vol. I (1990 ed.), p. 508, citing Code Commission of 1947, pp. 18-19, 20.
10 (Popup - Popup)
10. FAMILY CODE, Art. 152.
11 (Popup - Popup)
11. Id.
12 (Popup - Popup)
12. Id., Art. 153.
13 (Popup - Popup)
13. Manacop v. Court of Appeals, 342 Phil. 735, 744 (1997).
14 (Popup - Popup)
14. Supra note 9 at 515-516.
15 (Popup - Popup)
15. E. Pineda, The Family Code of the Philippines Annotated (1999 ed.), p. 291.
16 (Popup - Popup)
16. FAMILY CODE, Art. 194.
17 (Popup - Popup)
17. Supra note 9 at 575.
18 (Popup - Popup)
18. Supra note 15 at 401. Art. 199 provides that "[w]henever two or more persons are
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obliged to give support, the liability shall devolve upon the following persons in the
order herein provided: (1) The spouse; (2) The descendants in the nearest degree; (3)
The ascendants in the nearest degree; (4) The brothers and sisters."
19 (Popup - Popup)
19. 396 Phil. 928 (2000).
20 (Popup - Popup)
20. Id. at 948.
21 (Popup - Popup)
21. RULES OF COURT, Rule 69, Sec. 5.
22 (Popup - Popup)
22. Art. 996 states that "[i]f the widow or widower and legitimate children or descendants
are left, the surviving spouse has in the succession the same share as that of each of
the children."
23 (Popup - Popup)
23. 436 Phil. 233 (2002).
24 (Popup - Popup)
24. Id. at 240-241.
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