May an elder sister adopt a younger brother?

The text below are from an old Supreme Court Case –

The issue before Us is, whether or not an elder sister may adopt a younger brother.
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The trial court dismissed the petition reasoning thus:
“A critical consideration in this case is the fact that the parents of the minor to be adopted are also the parents of the petitioner-wife. The minor, therefore, is the latter’s legitimate brother.
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“In this proceeding, the adoption will result in an incongruous situation where the minor Edwin Villa, a legitimate brother of the petitioner-wife, will also be her son. In the opinion of the court, that incongruity, not neutralized by other circumstances absent herein, should prevent the adoption.”
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The petitioners moved to reconsider the decision but the same was denied. Hence, this appeal.
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The facts are not disputed.
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The above-named spouses filed the petition before the court a quo on January 8, 1963, praying that the minor Edwin Villa y Mendoza, 4 years old, be declared their (petitioners’) son by adoption. Evidence was presented that the order setting the case for hearing has been duly published, Exhibit A. There having been no opposition registered to the petition, the petitioners were permitted to adduce their evidence.
It was established that the petitioners are both 32 years of age, Filipinos, residing in the City of Manila. They were married in 1957 and have maintained a conjugal home of their own. They do not have a child of their own blood. Neither spouse has any legitimate, legitimated, illegitimate, acknowledged natural child, or natural child by legal fiction; nor has any one of them been convicted of a crime involving moral turpitude. Edwin Villa y Mendoza, 4 years old, is a child of Francisco Villa and Florencia Mendoza who are the common parents of the petitioner-wife Edipola Villa Santos and the minor. Luis E. Santos, Jr., is a lawyer, with business interests in a textile development enterprise and the IBA electric plant, and is the general manager of Medry, Inc. and the secretary-treasurer of Bearen Enterprises. His income is approximately P600.00 a month. His co-petitioner-wife, is a nurse by profession, with an average monthly earning of about P300.00.
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It was also shown that Edwin Villa y Mendoza was born on May 22, 1958, Exhibit C. He was a sickly child since birth. Due to the child’s impairing health, his parents entrusted him to the petitioners who reared and brought him up for the years thereafter, and as a result, there developed between the petitioners and the child, a deep and profound love for each other. The natural parents of the minor testified that they have voluntarily given their consent to the adoption of their son by the petitioners, and submitted their written consent and conformity to the adoption, and that they fully understand the legal consequences of the adoption of their child by the petitioners.
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We are not aware of any provision in the law, and none has been pointed to Us by the Solicitor General who argues for the State in this case, that relatives, by blood or by affinity, are prohibited from adopting one another. The only objection raised is the alleged “incongruity” that will result in the relation of the petitioner-wife and the adopted, in the circumstance that the adopted who is the legitimate brother of the adopter, will also be her son by adoption. The theory is, therefore, advanced that adoption among people who are related by nature should not be allowed, in order that dual relationship should not result, reliance being made upon the views expressed by this Court in McGee vs. Republic, L-5387, April 29, 1954, 94 Phil. 820.
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In that case, an American citizen, Clyde E. McGee, married to a Filipina by whom he had one child, instituted a proceeding for the adoption of two minor children of the wife had by her first husband. The lower court granted the petition of McGee to adopt his two minor step-children. On appeal by the State, We reversed the decision. We said:
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“The purpose of adoption is to establish a relationship of paternity and filiation where none existed before. Where therefore the relationship of parents and child already exists whether by blood or by affinity as in the case of illegitimate and step-children, it would be unnecessary and superfluous to establish and superimpose another relationship of parent and child through adoption. Consequently, an express authorization of law like article 338 is necessary, if not to render it proper and legal, at least, to remove any and all doubt on the subject matter. Under this view, article 338 may not be regarded as a surplusage. That may have been the reason why in the old Code of Civil Procedure, particularly its provisions regarding adoption, authority to adopt a step-child by a step-father was provided in section 766 notwithstanding the general authorization in section 765 extended to any inhabitant of the Philippines to adopt a minor child. The same argument of surplusage could plausibly have been advanced as regards section 766, that is to say, section 766 was unnecessary and superfluous because without it a step-father could adopt a minor step- child anyway.

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However, the inserting of section 766 was not entirely without reason. It seems to be 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).

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So some states have special laws authorizing the adoption of relatives such as a grandfather adopting a grandchild and a father adopting his illegitimate of natural child.”
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Notwithstanding the views thus expressed, a study of American precedents would reveal that there is a variance in the decisions of the courts in different jurisdictions regarding the matter of adoption of relatives. It cannot be stated as a general proposition that the adoption of a blood relative is contrary to the policy of the law, for in many states of the Union, no restriction of that sort is contained in the statutes authorizing adoption, although laws of other jurisdictions expressly provide that adoption may not take place within persons within a certain degree of relationship (1 Am. Jur. 628-629). Courts in some states hold that in the absence of express statutory restriction, a blood relationship between the parties is not a legal impediment to the adoption of one by the other, and there may be a valid adoption where the relation of parent and child already exists by nature (2 Am. Jur. 2d 869). Principles vary according to the particular adoption statute of a state under which any given case is considered. It would seem that in those states originally influenced by the civil law countries where adoption originated, the rules are liberally construed, while in other states where common law principles predominate, adoption laws are more strictly applied because they are regarded to be in derogation of the common law.
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Article 335 of the Civil Code enumerates those persons who may not adopt, and it has been shown that petitioners-appellants herein are not among those prohibited from adopting. Article 339 of the same code names those who cannot be adopted, and the minor child whose adoption is under consideration, is not one of those excluded by the law. 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 exist 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 in our opinion 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 Havsgord’s Estate, 34 S.D. 131, 147 N.W. 378).
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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 fact alone should not prevent the adoption. One is by nature, while the other is by 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; Muñoz, 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. And as We do not find any provision in the law that expressly prohibits adoption among relatives, they ought not to be prevented.
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For all the foregoing considerations, the decision appealed from is set aside, and the petition for the adoption of the subject minor, granted. No pronouncement as to costs.

SC Case IN THE MATTER OF THE ADOPTION OF THE MINOR, EDWIN VILLA Y MENDOZA, LUIS E. SANTOS, JR. and EDIPOLA V. SANTOS, petitioners-appellants,

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Change of name

Facts
Emelita Basilio Gan (petitioner) was born on December 21, 1956 out of wedlock to Pia Gan, her father who is a Chinese national, and Consolacion Basilio, her mother who is a Filipino citizen. The petitioner’s birth certificate, which was registered in the Office of the Local Civil Registrar (LCR) of Libmanan, Camarines Sur, indicates that her full name is Emelita Basilio.

On June 29, 2010, the petitioner filed a Petition 5 for correction of name with the Regional Trial Court (RTC) of Libmanan, Camarines Sur. The petitioner sought to change the full name indicated in her birth certificate from “Emelita Basilio” to “Emelita Basilio Gan.” She claimed that she had been using the name “Emelita Basilio Gan” in her school records from elementary until college, employment records, marriage contract, and other government records.

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A change of name is a privilege and not a matter of right; a proper and reasonable cause must exist before a person may be authorized to change his name. “In granting or denying petitions for change of name, the question of proper and reasonable cause is left to the sound discretion of the court. . . . What is involved is not a mere matter of allowance or disallowance of the request, but a judicious evaluation of the sufficiency and propriety of the justifications advanced in support thereof, mindful of the consequent results in the event of its grant and with the sole prerogative for making such determination being lodged in the courts.”


After a judicious review of the records of this case, the Court agrees with the CA that the reason cited by the petitioner in support of her petition for change of name, i.e., that she has been using the name “Emelita Basilio Gan” in all of her records, is not a sufficient or proper justification to allow her petition. When the petitioner was born in 1956, prior to the enactment and effectivity of the Family Code, the pertinent provisions of the Civil Code then regarding the petitioner’s use of surname provide:

Article 366. A natural child acknowledged by both parents shall principally use the surname of the father. If recognized by only one of the parents, a natural child shall employ the surname of the recognizing parent.

Article 368. Illegitimate children referred to in Article 287 shall bear the surname of the mother.

In her amended petition for change of name, the petitioner merely stated that she was born out of wedlock; she did not state whether her parents, at the time of her birth, were not disqualified by any impediment to marry each other, which would make her a natural child pursuant to Article 269 of the Civil Code. If, at the time of the petitioner’s birth, either of her parents had an impediment to marry the other, she may only bear the surname of her mother pursuant to Article 368 of the Civil Code. Otherwise, she may use the surname of her father provided that she was acknowledged by her father.


However, the petitioner failed to adduce any evidence that would show that she indeed was duly acknowledged by his father. The petitioner’s evidence consisted only of her birth certificate signed by her mother, school records, employment records, marriage contract, certificate of baptism, and other government records. Thus, assuming that she is a natural child pursuant to Article 269 of the Civil Code, she could still not insist on using her father’s surname.

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In Coseteng-Magpayo, the issue was the proper procedure to be followed when the change sought to be effected in the birth certificate affects the civil status of the respondent therein from legitimate to illegitimate. The respondent therein claimed that his parents were never legally married; he filed a petition to change his name from “Julian Edward Emerson Coseteng Magpayo,” the name appearing in his birth certificate, to “Julian Edward Emerson Marquez-Lim Coseteng.” The notice setting the petition for hearing was published and, since there was no opposition thereto, the trial court issued an order of general default and eventually granted the petition of the respondent therein by, inter alia, deleting the entry on the date and place of marriage of his parents and correcting his surname from “Magpayo” to Coseteng.” The Court reversed the trial court’s decision since the proper remedy would have been to file a petition under Rule 108 of the Rules of Court. The Court ruled that the change sought by the respondent therein involves his civil status as a legitimate child; it may only be given due course through an adversarial proceedings under Rule 108 of the Rules of Court. The Court’s pronouncement in Coseteng-Magpayo finds no application in this case.

Finally, Lim likewise finds no application in this case. In Lim, the petition that was filed was for correction of entries under Rule 108 of the Rules of Court; the petition sought, among others, is the correction of the surname of the respondent therein from “Yo” to “Yu.” Further, the respondent therein, although an illegitimate child, had long been using the surname of her father. It bears stressing that the birth certificate of the respondent therein indicated that her surname was the same as her father albeit misspelled. Thus, a correction of entry in her birth certificate is appropriate.

Here, the petitioner filed a petition for change of name under Rule 103 and not a petition for correction of entries under Rule 108. Unlike in Lim, herein petitioner’s birth certificate indicated that she bears the surname of her mother and not of her father.


WHEREFORE, in consideration of the foregoing disquisitions, the petition is DENIED.
SO ORDERED.

G.R. No. 207147. September 14, 2016.
EMELITA BASILIO GAN