ANNOTATION

ADOPTION
Nature and Concept of Adoption.Adoption is the taking
and receiving as ones own that to which he bore no prior
relation, colorable or otherwise. Davies v. Lahann, CCA.
N.M., 145 F. 2d 656, 659. The act of one who takes
anothers child into his own family, treating him as his own
child. See In re Chambers Estate, 183 N.Y.S. 526, 528, 112
Misc. 551. In manner provided by and with consequences
specified in statute. Fisher v. Robison, 329
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Pa. 305, 189 A. 81, 82. A juridical act creating between two
persons certain relations, purely civil, of paternity and
filiation. 6 Demol, par. 1; (Crimes v. Grimes, 207 N.C.
778,178 S.E. 573. Blacks Law Dictionary, Revised Fourth
Edition. Adoption is a juridical act which creates between
two persons a relationship similar to that which results
from legitimate .paternity and filiation. (4 Valverde 473)
Purpose of Adoption.Originally, adoption was
considered mainly for the benefit of the adopter. Persons
who had no children were allowed to adopt so that they
may experience the joys of paternity and have an object for
the manifestation of their instinct of parenthood. The
modern tendency, however, is toward the view that
adoption is for the benefit of the children to be adopted.
Adoption is thus given a social and moral purpose; that is,
to extend to the orphan or to the child of the indigent, the
person of the adopter. Under this theory, adoption has.
been used to give children born of illegitimate unions the
same consideration as those born in lawful wedlock.
(Tolentino, Civil Code of the, Philippines, Vol. 1, 1968

Edition, citing the case of Santos-Yigo, et al. vs. Republic,

95 Phil, 244.) The purpose of adoption is to establish a
relationship of paternity and filiation where none existed
before. McGee vs. Republic, No. L-5387, April 29, 1954.
Interest and welfare of child to be adopted should be
paramount consideration.The interest and welfare of the
child to be adopted should be of paramount consideration
(Art. 363, New Civil Code). Adoption statutes, being
humane and salutary and designed to provide homes, care
and education for unfortunate children, should be
construed so as to encourage the adoption of such children
by person who can properly rear and educate them. Santos,
Jr. vs. Republic, 21 SCRA 379.
Adoption and legitimation distinguished.Adoption and
legitimation are similar in the sense that in both of them
the child is given the status of a child born in lawful
wedlock of the parents adopting or legitimizing it. There
552

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SUPREME COURT REPORTS ANNOTATED

Hofilea vs. Republic

are, however, certain fundamental differences: (1) only

natural children can be legitimated, while adoption
generally applies to strangers; (2) legitimation may take
place by extrajudicial act of the parents of the child, while
adoption may be made by one parent alone; (3) legitimation
gives the children exactly the same status and right as a
legitimate child; not only in relation to the legitimizing
parents, but also in relation to the other relatives of the
latter, while adoption creates a relationship only between
the child and the adopting parent, but not with the
relatives of either. (Op. cit.)
Persons who may adopt.Any person who is of age in
full possession of his civil rights and who is not disqualified
by law to adopt may adopt.
No limitation on capacity.There must have been no
curtailment of the civil rights of the adopter, so that if he
had a legitimate child he could fully exercise parental
authority. Adoption is not permitted for persons who are
suffering from limitations on their capacity to act, such as
those mentioned in Article 32: minority, or imbecility, deafmutism, prodigality and civil interdiction. (Tolentino, The
Civil Code of the Philippines, Vol. 1, 1968 Edition.)

The following cannot adopt:

(1) Those
who
have
legitimate,
legitimated,
acknowledged natural children, or natural children
by legal fiction;
(2) The guardian, with respect to the ward, before the
final approval of his accounts;
(3) A married person, without the consent of the other
spouse;
(4) Non-resident aliens;
(5) Resident aliens with whose government the
Republic of the Philippines has broken diplomatic
relations; and
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(6) Any person who has been convicted of a crime involving
moral turpitude, when the penalty imposed was six
months imprisonment or more. (Art. 335, Civil Code.)
One with children cannot adopt.If the person adopting
has already a child whether legitimate, legitimated,
acknowledged natural child or natural child by legal
fiction, the reason for adoption disappears. (Yigo vs.
Republic, 50 O.G. 3030.)
Step-father who has a child cannot adopt a step-child.
A step-father who already has a child may not adopt a stepchild regardless of the provisions of Art. 338, paragraph 3,
of the same Code, the latter provisions being confined and
applicable to those step-fathers and stepmothers who have
no children of their own. (McGee vs. Republic, L-5272, Dec.
21, 1953).
Non-resident alien cannot adopt.The present Civil
Code in force (Art. 335) only disqualifies from being
*
adopters those aliens that are either (a) non-residents or
(b) who
________________
*

A person is deemed a resident of a place in a country or state where

he has his abode and lives there permanently. It is a place chosen by him
freely and voluntarily, although he may later on change his mind and live

elsewhere. A place in a country or state where he lives and stays

permanently and to which he intends to return after a temporary
absence, no matter how long, is his domicile. A sojourn such as a tourist
though actually present at a place of his free choice cannot be deemed a
resident of that place. A foreigner who has a business or interest therein
or property located in a country or state and goes and stays in that
country or state to look after his business or property or to check up the
manner or way his business or property is being conducted or run by his
manager but does not intend to remain in the country indefinitely cannot
be deemed a resident of such country. Actual or physical presence or stay
of a person in a place, not of his free and voluntary choice and without
intent to remain there indefinitely, does not make him a resident of the
place. Looking after the welfare of a minor to be adopted the law has
surrounded him with safeguards to achieve and insure such welfare. It
cannot be gainsaid that an adopted minor may be removed from the
country by the adopter, who is not a resident of the Philippines, and
placed beyond the reach and protection
554

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SUPREME COURT REPORTS ANNOTATED

Hofilea vs. Republic

are residents but the Republic of the Philippines has

broken diplomatic relations with their government. Outside
of these two cases, alienage by itself alone does not
disqualify a foreigner from adopting a person under our
law.
The citizenship of the adopter is a political matter, and
not civil in nature, and the ways in which it should be
conferred lie outside the ambit of the Civil Code. It is not
within the province of our Civil law to determine how or
when citizenship in a foreign state is to be acquired. The
disapproval of the adoption of an alien child in order to
forestall circumvention of our exclusion laws does not
warrant denial of the adoption of a Filipino minor by
qualified alien adopting parents, since it is net shown that
our public policy would be thereby subverted.
An American citizen serving the U.S. Navy with
temporary assignment at Subic Bay is a non-resident alien
and cannot adopt anybody in the Philippines (Brehm vs.
Republic, 9 SCRA 173; Ellis vs. Republic, 7 SCRA 962.)
Another reason why our law prohibits adoption by nonresident aliens is to prevent Filipino children from being
taken away to foreign countries (Capistrano, Civil Code

Annotated, Vol. I, 1950 ed., p. 305).

The philosophy behind adoption statutes is to promote
the welfare of the child. Accordingly, the modern trend is to
encourage adoption and every reasonable intendment
should be sustained to promote that objective (Santos, et al.
vs. Aranzanso, et al, L-23828, Feb. 28, 1966). Republic vs.
Lewin, 7 SCRA 965.
Purpose of disqualifying persons with children to adopt.
The purpose of adoption is to afford to persons who have
no child of their own the consolation of having one by
creating, through legal fiction, the relation of paternity and
filiation where none exists by blood relationship. This
purpose rejects the idea of adoption by persons who
________________
of the country of his birth. (Caraballo vs. Republic, L-15080, April 25,
1962; Raft vs. Republic, CA-G.R. No. 25483-R, Feb 7, 1963.)
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Hofilea vs. Republic

have children of their own, for otherwise, conflicts, friction,
and differences may arise resulting from the infiltrafbion of
foreign element into a family which already counts with,
children upon whom the parents can show their parental
love and affection. (In re Adoption of Resaba, 95 Phil. 244.)
Persons who may be adopted.Any person, even if of
age, may be adopted, provided the adopter is sixteen years
older. (Art. 337, Civil Code).
Affection may make the adoption of an adult desirable,,
as when a child has grown up under the care of a family,
and after he has reached majority, the head of the family
wants him to be legally considered as an heir. (Tolentino,
Civil Code of the Phil., Vol. I, 1968 Ed., citing Report of the
Code Commission p. 91.)
The following may even be adopted:
(1) The natural child, by the natural father or mother.
(2) Other illegitimate children, by the father or mother.
(3) A step-child, by the step-father or step-mother (Art.
338, Civil Code).

The following cannot be adopted:

(1) A married person, without the written consent of
the other spouse;
(2) An alien with whose government the Republic of
the Philippines has broken diplomatic relations;
(3) A person who, has already been adopted. (Art. 339,
Civil Code.)
Adoption of relatives.-.It is an established principle in
American jurisprudence that a person may not adopt his
own relative, the reason being that it is unnecessary to
establish a relationship where such already exists (the
same philosophy underlying our codal provisions on
adoption). So, some states have special laws authorizing
the adoption of relatives such as a grandfather adopting a
grandchild and a father adopting Ms illegitimate or natural
child. McGee vs. Republic, L-5387, April 29, 1954.
556

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SUPREME COURT REPORTS ANNOTATED

Hofilea vs. Republic

Relatives by blood or affinity are not prohibited from

adopting another.There is no provision in the law
prohibiting relatives, by blood or by affinity, from adopting
one another. To say that adoption should not be allowed
when the adopter and the adopted are related to each
other, except in those cases enumerated. in Article 338 of
the Civil Code, is to preclude adoption among relatives, no
matter how far removed or in whatever degree that
relationship might be, which is not the policy of the law.
Santos, Jr. vs. Republic, 21 SCRA 379.
An elder sister may adopt a younger brother.Article
335 of the Civil Code enumerates those persons who may
not adopt xxx. Article 339 of the same code names those
who cannot be adopted x x x . Article 338, on the other
hand, allows the adoption of a natural child by the natural
father or mother, of other illegitimate children by their
father or mother, and of a step-child by the step-father or
step-mother. This last article is, of course, necessary to
remove all doubts that adoption is not prohibited even in
these cases where there already exists a relationship of

parent and child between them by nature. To say that

adoption should not be allowed when the adopter and the
adopted are related to each other, except in these cases
enumerated in Article 338, is to preclude adoption among
relatives no matter how far removed or in whatever degree
that relationship might be, which is not the policy of the
law. The interest and welfare of the child to be adopted
should be of paramount consideration. Adoption statutes,
being humane and salutary, and designed to provide
homes, care and education for unfortunate children should
be construed so as to encourage the adoption of such
children by person who can properly rear and educate them
(In re Havsgords Estate, 34 S.D. 131, 147 N.W. 378).
With respect to the objection that the adoption in this
particular case will result in a dual relationship between
the parties, that the adopted brother will also be the son of
the adopting elder sister, that alone should not prevent the
adoption. One is by nature, while the other is by
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Hofilea vs. Republic

fiction of law. The relationship established by the adoption
is limited to the adopting parents and does not extend to
their other relatives, except as expressly provided by law.
Thus, the adopted child cannot be considered as a relative
of the ascendants and collaterals of the adopting parents,
nor of the legitimate children which they may have after
the adoption except that the law imposes certain
impediments to marriage by reason of adoption. Neither
are the children of the adopted considered as descendants
of the adopter (Tolentino, Civil Code, Vol. I, 1960 ed., p.
652, citing 1 Oyuelos 284; Perez, Gonzales and Castan; 4-11
Enneccerus, Kipp & Wolff 177; Muoz, p. 104). So even
considered in relation to the rules on succession which are
in pari materia, the adoption under consideration would
not be objectionable on the ground alone of the resulting
dual relationship between the adopter and the adopted.
Similar dual relationships also result under our law on
marriage when persons who are already related, by blood
or by affinity, marry each other. But as long as the
relationship is not within the degrees prohibited by law,
such marriages are allowed, notwithstanding the resulting

dual relationship. Santos, Jr. vs. Republic, L-22523, Sept.

29, 1967, 21 SCRA 379.
Acknowledged natural child may be adopted by the
natural parents.The petitioner has only one child, the one
she wants to adopt; she has no legitimate, legitimated,
acknowledged natural children or natural children by legal
fiction; hence, paragraph 1 of Article 335 of the New Civil
Code would not apply, for it clearly refers to persons who
have legitimate, legitimated, acknowledged natural
children or natural children by legal fiction and yet desire
to adopt another. On the other hand, paragraph 1 of Article
338 clearly provides that the natural child may be adopted
by the natural father or mother in order to allow the
parents to make amends for the wrong done to the child
and to raise the latter to the status of a legitimate child.
Hence, an acknowledged natural child may be adopted by
his or her natural father or mother. Durang-Parang
Jimenez vs. Republic, 101 Phil. 518.
558

558

SUPREME COURT REPORTS ANNOTATED

Hofilea vs. Republic

Natural children, whether recognized or not may be

adopted.Article 338 of the new Civil Code evidently
intends to allow adoption of a natural child whether the
child be recognized or not. If the intention were to allow
adoption only to unrecognized children, then said article
would be of no useful purpose because such children could
have been validly adopted even without it. This is so
because a natural child not recognized has no right
whatever and being considered legally a total stranger to
his parents, he may be adopted under Article 337. The
same cannot be said with regard to an acknowledged
natural child because, his filiation having already been
established his adoption cannot be made under the general
principles governing adoption. There is therefore need of an
express provision allowing the adoption of an acknowledged
natural child as an exception to the rule and that is what is
contemplated in Article 338. Prasnik vs. Republic, 98 Phil.
666.
Illegitimate minor child, adoption of by husband and
wife.Although section 766 of the Code of Civil Procedure
refers only to adoption by the stepfather of a legitimate

minor child, it does not operate as a prohibition for the

adoption by a husband and wife jointly of the latters
illegitimate minor child which is clearly permissible under
the general provision of sections 765 and 769. Joaquin vs.
Navarro, 81 Phil. 374.
Adoption of child does not deprive him of the right to
seek recognition as a natural child.From the foregoing
the following conclusions may be drawn: (1) that since
appellant did not have the status of an acknowledged
natural child of the deceased Zosimo Bongal at the time of
the adoption of the child Rustico Bongal, the provision of
Article 335, paragraph 1, of the Civil Code did not apply
and constituted no impediment to the proceeding; (2) that
by the same token, appellant had no personality then to
contest the adoption and could not be bound thereby in any
way insofar as his own status was concerned; and (3)
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Hofilea vs. Republic

that the adoption of Rustico Bongal did not deprive
plaintiff of his right to seek recognition as a natural child
in a proper petition and upon evidence that is competent
and legally admissible. It would have been irregular for
plaintiff to appear in the adoption proceeding with a
petition for compulsory recognition in his own behalf, and
at the same time use such petition as a ground for opposing
the adoption. Bongal vs. Vda. de Bongal, 20 SCRA 79.
Effect of necessity of adopting acknowledged natural
children.It may be contended that the adoption of an
acknowledged natural child is unnecessary because there
already exists between the father and the child the relation
of paternity and filiation which is precisely the purpose
which adoption seeks to accomplish through legal fiction.
But it should be borne in mind that the rights of an
acknowledged natural child are much less than those of a
legitimate child and it is indeed to the great advantage of
the latter if he be given, even through legal fiction, a
legitimate status. And this view, is in keeping with the
modern trend which considers adoption as an act not
merely to establish the relation of paternity and filiation
but one which may give the child a legitimate status.
Prasnik vs. Republic, 98 Phil. 666.

Consent of parents.It is sound public policy for the

natural parents, no matter how lowly they might be, to be
given the opportunity to be heard in the changing of the
legal status of their childrenwhich would necessarily
affect their filial devotion. Such requirement appears to be
in accordance with the fundamental principle of natural
justice, human feelings and virtual filial regard. So much
so that there should first be sufficient court findings and
concomitant conclusions on fits part, that a parent or
parents have deserted their children and consequently
forfeited their parental authority or rights. But said
parents are previously entitled to previous noticefor
them to be heard (Sullivan vs. People, 79 NE 696). Consent
to adoption by guardians ad litem is allowed only
560

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SUPREME COURT REPORTS ANNOTATED

Hofilea vs. Republic

in cases where there is no living natural parent. Santos vs.

Amanianso, CA-G.R. No. 26317-R, Sept. 14, 1964.
Written consent of mother to adoption of her child is
sufficient.Article 340 of the New Civil Code on consent to
adoption provides that the written consent of the following
shall be necessary: (1) the person to be adopted, if fourteen
years of age or over (2) the parents, guardian or person in
charge of the person to be adopted. Section 3 of Rule 100 of
the Old Rules of Court (now
Sec. 3 of Rule 99) likewise provides: x x x
From these provisions, as correctly pointed out by
petitioners, the requirement as to consent has been met, for
both our substantive and procedural laws do not further
require the testimony of the consenting parent before the
court aside from the requisite written consent attached to
the petition.
And contrary to the courts opinion that genuine efforts
were not exerted to bring the mother to testify before it, the
evidence before the court shows that petitioners, after their
own efforts had failed, sought the help of the Chief of Police
of Angeles, Pampanga to locate the mother. Patrolman
Mariano Carbungco, the investigator assigned to locate the
mother, finally found her in Paulines Cavern where she
worked as a night club hostess. She refused to reveal her
residence and to testify in court, but she reaffirmed the fact

that she has given her written consent to the adoption.

Patrolman Carbungco executed .an affidavit (Exh. F) where
such facts were attested to. Subsequently, she could not he
found anymore.
While it would have been ideal, to remove all possible
doubts, for the mother to have been presented in court, the
primary considerationthe welfare of the childshould
not be prejudiced by the absence of it in view of the
circumstances showing that the petitioners did all they
could and all that reasonably could have been expected
from them. Cathey vs. Republic, 18 SCRA 86.
The Supreme Court of Wisconsin, construing a statute
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Hofilea vs. Republic

akin to our law in this regard, said in Parsons vs. Parsons,
101 Wis., 76, 77 N.W. 147, 1948.
The statute to be considered is Section 4022, Rev. St. 1878, which
reads as follows: No such adoption shall be made without the
written consent of the living parents of such child unless the court
shall find that one of the parents has abandoned the child or gone to
parts unknown. Thus, it will be seen that upon the fact being
established that the living parent has abandoned his child, he is
deemed by the statute to have thereby relinquished all parental
right to be consulted in respect to the childs welfare, and his
consent to the adoption is therefore dispensed with. The term
abandon obviously means no more than neglect or refusal to
perform the natural and legal obligations of care and support which
parents owe to their children. The fact of abandonment, judicially
determined was essential to the jurisdiction; not essential that it
should be determined on proper evidence, necessarily, or in
accordance with the truth, because mere error in that regard does
not affect jurisdiction. If jurisdiction be obtained to determine a
fact, its determination of wrong or on insufficient or improper
evidence is immaterial on the question of legal right to proceed
judicially to the next step. That is deemed to be elementary, x x x A
judicial determination may be contrary to conclusive evidence, yet
cannot be impeached for want of jurisdiction. Van Fleet, Coll.
Attack, Secs. 663, 665 That rule applies to all judicial proceedings,
xxx

Santos vs. Aranzanso, 16 SCRA 344.

In adoption cases notice is not required in regard to
abandoning parent.Anent the alleged lack of notice of the
adoption proceedings on the natural parents, suffice it to
mark that adoption is a proceeding in rem and that
constructive notice, such as the publication duly made as
aforesaid, is enough where the residence of the parents is
unknown (2 Am. Jur., 2d. Adoption, Sec. 56, p. 906). Notice,
moreover, is not required in adoption cases in regard to the
abandoning parent (Parsons vs. Parsons, 101 Wis. 76, 77
N.W. 147, 148). Santos vs. Aranzanso, supra.
Proof of consent of the minors natural parents.The
statement, subscribed and sworn to before a notary public,
by the natural parents of the child sought to be adopted
wherein they expressed their conformity to the adoption of
their minor child by the petitioner, was correctly admitted
in evidence, although no testimonial evidence iden562

562

SUPREME COURT REPORTS ANNOTATED

Hofilea vs. Republic

tifying the signatures on the said statement had been

introduced by the petitioner, because said statement was
duly authenticated and the other evidence on record,
strongly indicate that it is what it purports to be. Tan
Suarez vs. Republic, 15 SCRA 545.
Effects of adoption.The adoption shall : (1) Give to the
adopted person the same right and duties as if he were a
legitimate child of the adopter; (2) dissolve the authority
vested in the parents by nature; (3) make the adopted
person a legal heir of the adopter; and (4) entitle the
adopted to use the adopters surname. (Art. 341. Civil
Code.)
General effect of adoption.The general effect of the
decree of adoption is to transfer to the adopting parents the
parental authority of the parents by nature, to the same
extent as if the child had been born in lawful wedlock of the
adopting parents, except as limited by law. Thus, the duty
of obedience owing by the child to the parents by nature is
terminated; the right to the custody of the child is
transferred to the adopting parents; the duties of support
and education, and the rights of correction and punishment
pass from the parents by consanguinity to the parents by

adoption. Tolentino, Civil Code of the Philippines, op. cit.

The provisions of Art. 341,-Nos. (1) and (3), of the new
Civil Code that give to the adopted person the same rights
and duties as if he were a legitimate child of the adopter
(see Art. 979, N.C.C.), are not extendible and applicable to
the formers children, legitimate or otherwise. It is only the
estate left at his death by an adopted child that goes to his
parents and relatives by consanguinity and not by adoption
(Art. 984, New Civil Code). Eusebio vs. Valmores, 97 Phil.
163.
Successional rights of adopted child; Adopted child
preferred as administrator of estate.Although Article 887
of the new Civil Code does not expressly mention an
adopted child as a compulsory heir of the adopting parent,
yet the abovequoted article provides that the adoption
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Hofilea vs. Republic

shall give to the adopted person the same right and duties
as if he were a legitimate child of the adopter x x x and
shall make the adopted person a legal heir of the adopter.
Although the legitime of an adopted child is not the same
as that of a legitimate child in all cases, yet his legitime is
that of a legitimate child of the adopter if he concurs with
legitimate children or with any of the concurring
compulsory heirs and if the adopter is not survived by
legitimate children or descendants but only by legitimate
parents or ascendants, his legitime shall only be that of an
acknowledged natural child. (Arts. 341 and 343, new Civil
Code.) As the adopted child has the same rights and duties
as if he were a legitimate child, it follows that an adopted
daughter or son should be given the preference in the
appointment of an administrator of the estate by the
adopting parents. To the same effect is 21 Am. Jur. 410.
Smith vs. Alzate, CA-G.R. No. 20768-R, Oct. 31, 1959.
Effect on succession where child dies with direct
descendants.Under Sec. 768 of Act No. 190 as amended
by Act 3977, the properties inherited by the adopted child
who died without direct descendant reverts to the adopting
parents or to their legitimate heirs. But if the adopted child
dies with direct descendants, his properties are
transmitted to said descendants as provided for in Civil

Code. Act 3977, approved by the Philippine Legislature

which requires reversion of the properties to the adopting
parents or to their legitimate heirs in case of death without
direct descendants, is a substantive law. Reyes vs. Luz, 88
Phil, 580.
Person not legally adopted has no interest in the estate;
Proof of adoption required.Where a petitioner claiming to
be an heir of the deceased due to an alleged adoption never
appeared in court to prove the supposed adoption of him by
the spouses and the supposed adoption was only testified to
by the brother and no competent evidence thereof was
presented as required by Section 41, of Rule 123, Rules of
Court, no records of adoption in the Court of First Instance
have existed and neither were presented
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SUPREME COURT REPORTS ANNOTATED

Hofilea vs. Republic

at the hearing or subsequent thereto nor was there

evidence submitted to prove that the records, of the
adoption proceedings were lost or destroyed, on the other
hand, there is the certification of the local Civil Registrar to
the effect that there is no record of adoption of the
petitioner. It was held that these circumstances engender
the belief that the petitioner was not at all adopted by the
deceased and therefore had no interest in the prosperity of
the latter. A petition for letters of administration must be
filed by an interested person and must show, so far as
known to the petitioner. (Sec 2, Rule 80, Rules of Court.)
Eusebio vs. Valmores, supra.
Relationship established by adoption is limited to
adopting parents.The relationship established by the
adoption is limited to the adopting parents and does not
extend to their other relatives, except as expressly provided
by law. Thus, the adopted child cannot be considered as a
relative of the ascendants and collaterals of the adoptingparents, nor of the legitimate children which they may
have after the adoption, except that the law imposes
certain impediments to marriage by reason of adoption.
Neither are the children of the adopted considered as
descendants of the adopter. Santos, Jr. vs. Republic, 21
SCRA 379. Hence, no relationship is created between the
adopted and the collaterals of the adopting parent. As a

consequence, the adopted is an heir of the adopters but not

of the relatives of the adopter. Teotico vs. Del Val 13 SCRA
406.
Surname in adoption.The provision of law (Article
341, par. 4, New Civil Code) which entitles the adopted
minor to the use of the adopters surname, refers to the
adopters own surname and not to her surname acquired by
virtue of marriage. The adoption created a personal
relationship between the adopter and the adopted, and the
consent of the husband, to the adoption1 by her wife, did
not have the effect of making him an adopting father, so as
to entitle the child to the use of the husbands own
surname. Valdes-Johnston vs. Republic, No. L-18284. April
30, 1963.
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An adopted child cannot bear the surname of the adopter,
as a married woman, where the latters husband had not
joined her in the petition for adoption and cannot join it,
because he has children by a previous marriage. Tan
Suarez vs. Republic, 15 SCRA 545.
Reason behind the strict application of surnames in
adoption cases.Since adoption gives the person adopted
the same rights and duties as if he were a legitimate child
of the adopted (Art. 341, par. 1, Civil Code), much confusion
would indeed result, if the minor child to be adopted is
allowed to use the surname of the spouse who did not join
in the adoption.
For one thing, to allow the minor to adopt the surname
of the husband of the adopter, would mislead the public
into believing that she had also been adopted by the
husband, which is not the case. And when later, questions
of successional rights arise, the husbands consent to the
adoption might be presented to prove that he had actually
joined in the adoption. It is to forestall befuddling
situations and other possible confusing situations that may
arise in the future, that the provisions of the Civil Code to
the effect (that an adopted child use the surname of the
adopter himself or herself, and not that which is acquired
by marriage should be strictly applied. Veldez-Johnston vs.
Republic, supra.

Effect of adoption as to citizenship

Adopted child follows citizenship of natural father and not
of adopting parent.The rights of a legitimate child given
to an adopted child, as stated in Article 341 of our Civil
Code, do not include the acquisition of the citizenship of the
adopter (Cheng Ling vs. Galang, L-11931, October 27,
1958). Even, assuming that petitioners son has been
adopted as claimed, the fact remains that he would still
retain the citizenship of his natural father with the result
that he should eventually benefit from it should his father
become a naturalized Filipino, Tan Hoi vs. Republic, No. L15266, Sept. 30, 1960.
566

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SUPREME COURT REPORTS ANNOTATED

Hofilea vs. Republic

Art. 341 of the Civil Code, in relation to Art. 264 of the

same Code, does not include the acquisition of the
nationality of the adopting parent as one of the effects of
adoption. Acquisition of nationality partakes of the
character of naturalization), and consequently, it is the
Naturalization Law and next the Civil Code that will
govern acquisition of citizenship through adoption (Art. 49,
Civil Code). It is clear that under the Naturalization Law,
the term children does not refer to children by legal
fiction or by adoption, but to those begotten in lawful
wedlock by the person who seeks to be naturalized. Ching
Leng vs. Galang, No. L-11931, Oct. 31, 1958.
Nature of adoption proceedings.Adoption proceedings
being in rem, no court may entertain them unless it has
jurisdiction, not only over the subject matter of the case
and over the parties, but also, over the res, which is the
personal status not only of the person to be adopted, but
also of the adapting parents. The Civil Code of the
Philippines (Art. 15) adheres to the theory that jurisdiction
over the status of a natural person is determined by his
nationality. Pursuant thereto, the Philippine courts have
no jurisdiction over the status of an alien petitioner in
adoption proceedings. The political law of the Philippines is
patterned after the Anglo-American legal system, in
general, is determined by and/or subject to the jurisdiction
of the domiciliary law (Restatement of the Law of Conflict

of Laws, by Beale, Vol. I, p. 305; Vol. II, pp. 713-714).

Hence, under either the nationality theory or the
domiciliary theory, the Philippine courts cannot assume
and exercise jurisdiction over the status of petitioner, who
are not domiciled in the Philippines, and hence,
nonresident aliens. Ellis vs. Republic, 7 SCRA 962.
The Civil Code on revocation of adoption do not specify
the court where the proceedings should be filed. The Rules
of Court designate the venue of a proceeding for adoption,
which is the place where the petitioner resides (Section 1,
Rule 99), but is silent with respect to the venue of
proceeding for rescission and revocation of adoption (Rule
100.) It is clear that the two proceedings are se567

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567

Hofilea vs. Republic

parate and distinct from each other. In the first what is
determined is the propriety of establishing the relationship
of parent and child between two persons not so related by
nature. For that purpose the court inquires into the
qualifications and disqualifications of the adopter; the
personal circumstances of the person to be adopted; the
probable value and character of his estate and whether the
adoption would be for his benefit. In the other proceeding
either the adopting parent or the adopted seeks to sever
the relationship previously established, and the inquiry
refers to the truth of the grounds upon which the
revocation is sought. Once the proper court has granted a
petition for adoption and the decree has become final the
proceeding is terminated and closed. A subsequent petition
for revocation of the adoption is neither a continuation of
nor an incident in the proceeding for adoption. It is an
entirely new one, dependent on facts which have happened
since the decree of adoption. De la Cruz vs. De la Cruz, L19391, Sept. 29, 1966.
The name of a person as recorded in the civil register,
and not his baptismal name, is, for legal purposes, his real
name; baptismal names having never been legally
recognized, nor the practice of using baptismal names
sanctioned by the flaw (Chomi vs. Local Civil Registrar of
Manila, 99 Phil. 1004). It follows, therefore, that the use of
the baptismal name of the child to be adopted, instead of its

name in the civil register, would countenance or permit

that which has always been frowned upon.
A proceeding in adopting is a proceeding in rem (Ellis,
et. al. vs. Republic, L-16922, 7 SCRA 962; Van Matre vs.
Sankey, 148 111. 536; 36 NE 628) in which notice is made
through publication (Sec. 4 of former Rule 100, now Section
4 of Rule 99) to protect the interests of all persons
concerned (3 Moran 534, 1963 Ed.). Said interest will not
be protected if the notice by publication does not carry the
true name of the child to be adopted because the persons to
be served by the notice have the right to expect the use of
the childs officially recorded name. The defect, in
568

568

SUPREME COURT REPORTS ANNOTATED

Hofilea vs. Republic

the present case, amounts to a failure of service by

publication, and the court a quo acquired no jurisdiction
over the case (cf. Yuseco vs. Republic, L-13441, 30 June
1960).
Judgments; Error in exercise of jurisdiction.The court
had. jurisdiction on matters of adaption. Any error in the
exercise of said jurisdiction cannot be attacked collaterally.
Gil vs. Gil, III, 80 Phil. 790.
Registration of adoption
Registration of civil status not limited by law to local
adoptions.Art. 409 of the Civil Code and section 11 of Act
3753, which impose a duty to a Clerk of Court to ascertain
and/or furnish a copy of the decision of the court to the local
civil registrar for purposes of registration of civil status,
apparently refer to adoptions effected in the Philippines,
for, indeed, Art, 409 of the Civil Code and Section 10 of the
Registry law speak of adoption which shall be registered in
the municipality or city where the court issuing the
adoption decree is functioning. The Court is not persuaded
to adopt the Governments theory that what is registrable
is only adoption obtained through a judgment rendered by
a Philippine Court. This is a misconception which should
be corrected by a broader view, for if registration is to be
narrowed down to local adoptions, it is the function of
Congress, not of the Court, to spell out such limitation, and

we cannot carve out a prohibition where the law does not so

state. Ramirez Marcaida vs. Aglubat, 21 SCRA 1033.
Recording of foreign adoption safeguarded by Civil Code.
Where there is no suggestion in the record that prejudice
to the State and adoptee, or any other persons, would
ensue from the registration of a foreign adoption, the
validity of which is not under attack, the rights of the State
and adoptee and other persons interested are fully
safeguarded by Art. 15 of the Civil Code which, in terms
explicit, provides that Laws relating to family rights and
duties, or to the status, condition and legal capacity of
persons are binding upon citizens of the Philippines,
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Hofilea vs. Republic

even though living abroad. Ramirez Marcaida vs. Aglubat,
supra.
Recording of foreign adoptions not inimical to private
international law.Private international law offers no
obstacle to recognition of foreign adoption, the principle
being that the status of adoption, created by the law of a
State having jurisdiction to create it, will be given the same
effect to the status of adoption when created by its own law.
It is quite obvious then that the status of adoption, once
created under the proper foreign law, will be recognized in
this country, except where public policy or the interest of its
inhabitants forbid its enforcement and demand the
substitution of the lex fori. Indeed, implicit in Art. 15 of the
Civil Code is that the exercise of incidents to foreign
adoption remains subject to the local law. Ramirez
Marcaida vs. Aglubat, supra.
Rescission by the adopted
A minor or other incapacitated person may, through a
guardian ad litem, act for the rescission of the adoption, on
the same ground that cause the loss of parental authority.
(Art. 347, Civil Code).
This rule does not apply to an adopted person of legal
age, because he is no longer subject to parental authority.
The adopter may petition the court for revocation of the
adoption in any of these cases: (1) if the adopted person has

attempted against the life of the adopter; (2) when the

adopted minor has abandoned the home of the adopter for
more than three years; (3) when by other acts the adapted
person has definitely repudiated the adoption. (Art. 348,
New Civil Code).ATTY.JULIANA B. DE CASTRO and
LEONARDO C. CANTA, JR.
Notes.(a) Adoption in general.The purpose of
adoption is to afford persons who have no child of their own
the consolation of having one by creating, through legal
fiction, the relationship of paternity and filiation where
none exists by blood relationship (Santos-Yigo vs. Re
570

570

SUPREME COURT REPORTS ANNOTATED

Kee Boc vs. Director of Patents

public, L-6294, June 28, 1954, 50 O.G. 3030; McGee vs.

Republic, L-5387).
The modern trend is to encourage adoption, not to
establish the relation of paternity and filiation but also to
give children a legitimate status (Prasnik vs. Republic, L8639, March 23, 1956).
(b) Who may adopt and who may be adopted.Under
Article 335 of the new Civil Code, one who has a legitimate
child of his own is ineligible to adopt, another child, even
though such other child is the legitimate son of his wife by
a former marriage (Ball vs. Republic, L-5272, Dec. 21,
1953, 50 O.G. 142). This is regardless of the provisions of
paragraph 3 of Article 338 of the same Code, said
provisions being confined and applicable only to stepfathers and stepmothers who have no children of their own
(McGee vs. Republic, supra).
The principal reason behind paragraph 1 of Article 355
of the new Civil Code, denying the right to adopt to those
who already have children, is that adoption would not only
create conflicts within the family but would also materially
diminish or affect the successional rights of the child or
children already had (McGee vs. Republic, supra).
In Santos-Yigo vs. Republic, supra, paragraph 1 of
Article 335 was held to bar adoption by the petitioners of
the child of third persons because they had legitimate
children of their own, notwithstanding they had reared the
child under an agreement with its parents for its adoption

which antedated the new Civil Code, and their own

children were born in the interim between the execution of
the agreement and the filing of the petition.

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