G.R. No. 182894.April 22, 2014.

*
FE FLORO VALINO, petitioner, vs. ROSARIO D.
ADRIANO, FLORANTE D. ADRIANO, RUBEN D.
ADRIANO, MARIA TERESA ADRIANO ONGOCO,
VICTORIA ADRIANO BAYONA, and LEAH ANTONETTE
D. ADRIANO, respondents.

Civil Law; Persons and Family Relations; Funerals; It is

undeniable that the law simply confines the right and duty to
make funeral arrangements to the members of the family to the
exclusion of ones common law partner.It is undeniable that the
law simply
1

_______________

* EN BANC.

confines the right and duty to make funeral arrangements to the

members of the family to the exclusion of ones common law
partner. In Tomas Eugenio, Sr. v. Velez, 185 SCRA 425 (1990), a
petition for habeas corpus was filed by the brothers and sisters of
the late Vitaliana Vargas against her lover, Tomas Eugenio, Sr.,
alleging that the latter forcibly took her and confined her in his
residence. It appearing that she already died of heart failure due
to toxemia of pregnancy, Tomas Eugenio, Sr. sought the dismissal
of the petition for lack of jurisdiction and claimed the right to
bury the deceased, as the commonlaw husband.
Same; Same; Same; The right and duty to make funeral
arrangements, like any other right, will not be considered as
having been waived or renounced, except upon clear and
satisfactory proof of conduct indicative of a free and voluntary
intent to that end.It is clear that the law gives the right and
duty to make funeral arrangements to Rosario, she being the
surviving legal wife of Atty. Adriano. The fact that she was living
separately from her husband and was in the United States when
he died has no controlling significance. To say that Rosario had, in
effect, waived or renounced, expressly or impliedly, her right and
duty to make arrangements for the funeral of her deceased
husband is baseless. The right and duty to make funeral
arrangements, like any other right, will not be considered as
having been waived or renounced, except upon clear and
satisfactory proof of conduct indicative of a free and
voluntary intent to that end. While there was disaffection
between Atty. Adriano and Rosario and their children when he
was still alive, the Court also recognizes that human compassion,
more often than not, opens the door to mercy and forgiveness once
a family member joins his Creator. Notably, it is an undisputed
fact that the respondents wasted no time in making frantic pleas to
Valino for the delay of the interment for a few days so they could
attend the service and view the remains of the deceased. As soon as
they came to know about Atty. Adrianos death in the morning of
December 19, 1992 (December 20, 1992 in the Philippines), the
respondents immediately contacted Valino and the Arlington
Memorial Chapel to express their request, but to no avail.
Same; Same; Same; Considering the ambiguity as to the true
wishes of the deceased, it is the law that supplies the presumption
as to his intent. No presumption can be said to have been created
in

Valinos favor, solely on account of a longtime relationship with

Atty. Adriano.Valino insists that the expressed wishes of the
deceased should nevertheless prevail pursuant to Article 307 of
the Civil Code. Valinos own testimony that it was Atty. Adrianos
wish to be buried in their family plot is being relied upon heavily.
It should be noted, however, that other than Valinos claim that
Atty. Adriano wished to be buried at the Manila Memorial Park,
no other evidence was presented to corroborate such claim.
Considering that Rosario equally claims that Atty. Adriano
wished to be buried in the Adriano family plot in Novaliches, it
becomes apparent that the supposed burial wish of Atty. Adriano
was unclear and undefinite. Considering this ambiguity as to the
true wishes of the deceased, it is the law that supplies the
presumption as to his intent. No presumption can be said to have
been created in Valinos favor, solely on account of a longtime
relationship with Atty. Adriano.
Same; Same; Same; Should there be any doubt as to the true
intent of the deceased, the law favors the legitimate family.It
cannot be surmised that just because Rosario was unavailable to
bury her husband when she died, he had already renounced her
right to do so. Verily, in the same vein that the right and duty to
make funeral arrangements will not be considered as having been
waived or renounced, the right to deprive a legitimate spouse of
her legal right to bury the remains of her deceased husband
should not be readily presumed to have been exercised, except
upon clear and satisfactory proof of conduct indicative of a free
and voluntary intent of the deceased to that end. Should there
be any doubt as to the true intent of the deceased, the law
favors the legitimate family. Here, Rosarios keenness to
exercise the rights and obligations accorded to the legal wife was
even bolstered by the fact that she was joined by the children
in this case.
Same; Same; Same; It is generally recognized that any
inferences as to the wishes of the deceased should be established by
some form of testamentary disposition.Even assuming, ex gratia
argumenti, that Atty. Adriano truly wished to be buried in the
Valino family plot at the Manila Memorial Park, the result
remains the same. Article 307 of the Civil Code provides: Art.
307. The funeral shall be in accordance with the expressed
wishes of the deceased. In the absence of such expression, his
religious beliefs or affiliation shall determine the funeral rites.
In case of doubt, the form of the

funeral shall be decided upon by the person obliged to make

arrangements for the same, after consulting the other members of
the family. From its terms, it is apparent that Article 307 simply
seeks to prescribe the form of the funeral rites that should
govern in the burial of the deceased. As thoroughly explained
earlier, the right and duty to make funeral arrangements reside
in the persons specified in Article 305 in relation to Article 199 of
the Family Code. Even if Article 307 were to be interpreted to
include the place of burial among those on which the wishes of the
deceased shall be followed, Dr. Arturo M. Tolentino (Dr.
Tolentino), an eminent authority on civil law, commented that it
is generally recognized that any inferences as to the
wishes of the deceased should be established by some form
of testamentary disposition. As Article 307 itself provides, the
wishes of the deceased must be expressly provided. It cannot be
inferred lightly, such as from the circumstance that Atty.
Adriano spent his last remaining days with Valino. It bears
stressing once more that other than Valinos claim that Atty.
Adriano wished to be buried at the Valino family plot, no other
evidence was presented to corroborate it.
Same; Same; Same; It is generally recognized that the corpse
of an individual is outside the commerce of man.It is generally
recognized that the corpse of an individual is outside the
commerce of man. However, the law recognizes that a certain
right of possession over the corpse exists, for the purpose of a
decent burial, and for the exclusion of the intrusion by third
persons who have no legitimate interest in it. This quasiproperty
right, arising out of the duty of those obligated by law to bury
their dead, also authorizes them to take possession of the dead
body for purposes of burial to have it remain in its final resting
place, or to even transfer it to a proper place where the memory of
the dead may receive the respect of the living. This is a family
right. There can be no doubt that persons having this right may
recover the corpse from third persons.

LEONEN, J., Dissenting Opinion:

Civil Law; Persons and Family Relations; Funerals; View that

Article 305 of the Civil Code should only be considered when, first,
the deceased left no explicit instructions on how he wishes to be
interred, and second, when none among the deceaseds surviving
relations are willing to make the funeral arrangements and a
conflict

arises.I am of the opinion that Article 305 should only be

considered when, first, the deceased left no explicit instructions
on how he wishes to be interred, and second, when none among
the deceaseds surviving relations are willing to make the funeral
arrangements and a conflict arises. In these situations, the
conflict must be settled according to the order of preference stated
in Article 199. In any other case, it should be the express wishes
of the deceased which should take precedence.
Same; Same; Same; View that Article 307 of the Civil Code
should be interpreted to mean that the right to determine ones
funeral, including the right to determine how and where one
wishes to be buried, remains with the deceased, and it is only in
the absence of his express wishes, or in the absence of his religious
beliefs and affiliations, or if there is doubt as to his wishes, that
other persons may assume the right to decide the funeral
arrangements.It is the ponencias opinion that the wishes of the
deceased contemplated in Article 307 only governs the form of
the funeral and that the duty and, more specifically, the right to
make arrangements for the funeral remains with the persons
specified in Article 305 in relation to Article 199. It is my
submission, however, that Article 307 should be interpreted to
mean that the right to determine ones funeral, including the
right to determine how and where one wishes to be buried,
remains with the deceased, and it is only in the absence of his
express wishes, or in the absence of his religious beliefs and
affiliations, or if there is doubt as to his wishes, that other
persons may assume the right to decide the funeral
arrangements. This right, like other rights pointed out by the
ponencia, must not be considered waived or renounced except
upon clear and satisfactory proof of conduct indicative of a free
and voluntary intent to that end. There is neither indication nor
have there been any allegations that Atty. Adriano did not freely
and voluntarily relay his last wishes to his commonlaw wife,
petitioner Fe. Atty. Adriano, therefore, did not waive his right to
determine where he should be buried, in favor of the persons
indicated in Article 305 in relation to Article 199.
Same; Same; Same; View that part of life is the ability to
control how one wishes to be memorialized, and such right should
remain with the deceased. It is only when the deceased has not left
any express instructions that the right is given to the persons
specified under the law.It is unfortunate that the ponencia
would rather uphold the

wishes of his estranged family rather than give the deceased his
final request. Part of life is the ability to control how one wishes
to be memorialized, and such right should remain with the
deceased. It is only when the deceased has not left any express
instructions that the right is given to the persons specified under
the law.

PETITION for review on certiorari of the decision and

resolution of the Court of Appeals.
The facts are stated in the opinion of the Court.
Pizarras & Associates Law Office for petitioner.
Ching, Mendoza, Quilas and Associates Law Firm for
respondents.

MENDOZA, J.:

Challenged in this petition is the October 2, 2006

Decision[1] and the May 9, 2008 Resolution[2] of the Court
of Appeals (CA) in C.A.G.R. CV No. 61613, which reversed
the October 1, 1998 Decision[3] of the Regional Trial Court,
Branch 77, Quezon City (RTC) which ruled that petitioner
Fe Floro Valino (Valino) was entitled to the remains of the
decedent.
The Facts
Atty. Adriano Adriano (Atty. Adriano), a partner in the
Pelaez Adriano and Gregorio Law Office, married
respondent Rosario Adriano (Rosario) on November 15,
1955. The couple had two (2) sons, Florante and Ruben
Adriano; three (3) daughters, Rosario, Victoria and Maria
Teresa; and one (1) adopted daughter, Leah Antonette.
_______________

[1]Rollo, pp. 3646; Penned by Associate Justice Vicente Q. Roxas with
Associate Justices Josefina GuevaraSalonga and Apolinario D. Bruselas,
Jr., concurring.
[2] Id., at p. 65.
[3] Id., at pp. 127131.

The marriage of Atty. Adriano and Rosario, however,

turned sour and they were eventually separatedinfact.
Years later, Atty. Adriano courted Valino, one of his clients,
until they decided to live together as husband and wife.
Despite such arrangement, he continued to provide
financial support to Rosario and their children
(respondents).
In 1992, Atty. Adriano died of acute emphysema. At that
time, Rosario was in the United States spending Christmas
with her children. As none of the family members was
around, Valino took it upon herself to shoulder the funeral
and burial expenses for Atty. Adriano. When Rosario
learned about the death of her husband, she immediately
called Valino and requested that she delay the interment for
a few days but her request was not heeded. The remains of
Atty. Adriano were then interred at the mausoleum of the
family of Valino at the Manila Memorial Park.
Respondents were not able to attend the interment.
Claiming that they were deprived of the chance to view
the remains of Atty. Adriano before he was buried and that
his burial at the Manila Memorial Park was contrary to his
wishes, respondents commenced suit against Valino
praying that they be indemnified for actual, moral and
exemplary damages and attorneys fees and that the
remains of Atty. Adriano be exhumed and transferred to
the family plot at the Holy Cross Memorial Cemetery in
Novaliches, Quezon City.
In her defense, Valino countered that Rosario and Atty.
Adriano had been separated for more than twenty (20)
years before he courted her. Valino claimed that
throughout the time they were together, he had introduced
her to his friends and associates as his wife. Although they
were living together, Valino admitted that he never forgot
his obligation to support the respondents. She contended
that, unlike Rosario, she took good care of Atty. Adriano
and paid for all his medical expenses when he got seriously
ill. She also claimed that despite knowing that Atty.
Adriano was in a coma and dying, Rosario still left for the
United States. According to Valino, it

was Atty. Adrianos last wish that his remains be interred

in the Valino family mausoleum at the Manila Memorial
Park.
Valino further claimed that she had suffered damages as
result of the suit brought by respondents. Thus, she prayed
that she be awarded moral and exemplary damages and
attorneys fees.
Decision of the RTC
The RTC dismissed the complaint of respondents for
lack of merit as well as the counterclaim of Valino after it
found them to have not been sufficiently proven.
The RTC opined that because Valino lived with Atty.
Adriano for a very long time, she knew very well that it
was his wish to be buried at the Manila Memorial Park.
Taking into consideration the fact that Rosario left for the
United States at the time that he was fighting his illness,
the trial court concluded that Rosario did not show love and
care for him. Considering also that it was Valino who
performed all the duties and responsibilities of a wife, the
RTC wrote that it could be reasonably presumed that he
wished to be buried in the Valino family mausoleum.[4]
In disposing of the case, the RTC noted that the
exhumation and the transfer of the body of Atty. Adriano to
the Adriano family plot at the Holy Cross Memorial
Cemetery in Novaliches, Quezon City, would not serve any
useful purpose and so he should be spared and respected.[5]
Decision of the CA
On appeal, the CA reversed and set aside the RTC
decision and directed Valino to have the remains of Atty.
Adriano exhumed at the expense of respondents. It likewise
directed

_______________
[4] Id., at pp. 129130.
[5] Id., at p. 131.

respondents, at their expense, to transfer, transport and

inter the remains of the decedent in the family plot at the
Holy Cross Memorial Park in Novaliches, Quezon City.
In reaching said determination, the CA explained that
Rosario, being the legal wife, was entitled to the custody of
the remains of her deceased husband. Citing Article 305 of
the New Civil Code in relation to Article 199 of the Family
Code, it was the considered view of the appellate court that
the law gave the surviving spouse not only the duty but
also the right to make arrangements for the funeral of her
husband. For the CA, Rosario was still entitled to such
right on the ground of her subsisting marriage with Atty.
Adriano at the time of the latters death, notwithstanding
their 30year separation in fact.
Like the RTC, however, the CA did not award damages
in favor of respondents due to the good intentions shown by
Valino in giving the deceased a decent burial when the wife
and the family were in the United States. All other claims
for damages were similarly dismissed.
The Sole Issue
The lone legal issue in this petition is who between
Rosario and Valino is entitled to the remains of Atty.
Adriano.
The Courts Ruling
Article 305 of the Civil Code, in relation to what is now
Article 199[6] of the Family Code, specifies the persons who
have the right and duty to make funeral arrangements for
the deceased. Thus:

Art. 305. The duty and the right to make arrangements for
the funeral of a relative shall be in accor

_______________
[6] Formerly Article 294(a) of the New Civil Code.

10

dance with the order established for support, under Article 294.
In case of descendants of the same degree, or of brothers and
sisters, the oldest shall be preferred. In case of ascendants, the
paternal shall have a better right. [Emphases supplied]
Art. 199. Whenever 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; and
(4) The brothers and sisters. (294a)
[Emphasis supplied]

Further, Article 308 of the Civil Code provides:
 Art. 308. No human remains shall be retained, interred,
disposed of or exhumed without the consent of the persons
mentioned in Articles 294 and 305. [Emphases supplied]
In this connection, Section 1103 of the Revised Administrative
Code provides:
Section 1103. Persons charged with the duty of burial.The
immediate duty of burying the body of a deceased person,
regardless of the ultimate liability for the expense thereof, shall
devolve upon the persons herein below specified:
(a) If the deceased was a married
man or woman, the duty of the burial
shall devolve upon the surviving
spouse if he or she possesses sufficient
means to pay the necessary expenses;
xxxx. [Emphases supplied]

11

From the aforecited provisions, it is undeniable that the

law simply confines the right and duty to make funeral
arrangements to the members of the family to the exclusion
of ones common law partner. In Tomas Eugenio, Sr. v.
Velez,[7] a petition for habeas corpus was filed by the
brothers and sisters of the late Vitaliana Vargas against
her lover, Tomas Eugenio, Sr., alleging that the latter
forcibly took her and confined her in his residence. It
appearing that she already died of heart failure due to
toxemia of pregnancy, Tomas Eugenio, Sr. sought the
dismissal of the petition for lack of jurisdiction and claimed
the right to bury the deceased, as the commonlaw
husband.
In its decision, the Court resolved that the trial court
continued to have jurisdiction over the case
notwithstanding the death of Vitaliana Vargas. As to the
claim of Tomas Eugenio, Sr. that he should be considered a
spouse having the right and duty to make funeral
arrangements for his commonlaw wife, the Court ruled:

x x x Indeed, Philippine Law does not recognize common

law marriages. A man and woman not legally married who
cohabit for many years as husband and wife, who represent
themselves to the public as husband and wife, and who are
reputed to be husband and wife in the community where they live
may be considered legally married in common law jurisdictions
but not in the Philippines.
While it is true that our laws do not just brush aside the fact
that such relationships are present in our society, and that they
produce a community of properties and interests which is
governed by law, authority exists in case law to the effect that
such form of coownership requires that the man and woman
living together must not in any way be incapacitated to contract
marriage. In any case, herein petitioner has a subsisting marriage
with another woman, a legal impediment which disquali

_______________
[7] 263 Phil. 1149; 185 SCRA 425 (1990).

12

fied him from even legally marrying Vitaliana. In Santero vs. CFI
of Cavite, the Court, thru Mr. Justice Paras, interpreting Art. 188
of the Civil Code (Support of Surviving Spouse and Children
During Liquidation of Inventoried Property) stated: Be it noted,
however, that with respect to spouse, the same must be the
legitimate spouse (not commonlaw spouses).
There is a view that under Article 332 of the Revised Penal Code,
the term spouse embraces common law relation for purposes of
exemption from criminal liability in cases of theft, swindling and
malicious mischief committed or caused mutually by spouses. The
Penal Code article, it is said, makes no distinction between a
couple whose cohabitation is sanctioned by a sacrament or legal
tie and another who are husband and wife de facto. But this view
cannot even apply to the facts of the case at bar. We hold that the
provisions of the Civil Code, unless expressly providing to the
contrary as in Article 144, when referring to a spouse
contemplate a lawfully wedded spouse. Petitioner visvis
Vitaliana was not a lawfullywedded spouse to her; in fact, he was
not legally capacitated to marry her in her lifetime.[8] [Emphases
supplied]

As applied to this case, it is clear that the law gives the

right and duty to make funeral arrangements to Rosario,
she being the surviving legal wife of Atty. Adriano. The fact
that she was living separately from her husband and was
in the United States when he died has no controlling
significance. To say that Rosario had, in effect, waived or
renounced, expressly or impliedly, her right and duty to
make arrangements for the funeral of her deceased
husband is baseless. The right and duty to make funeral
arrangements, like any other right, will not be
considered as having been waived or renounced,
except upon clear and satisfactory proof of conduct
indicative of a free and voluntary

_______________
[8] Id., at pp. 11581159; p. 435.
 13

intent to that end.[9] While there was disaffection

between Atty. Adriano and Rosario and their children
when he was still alive, the Court also recognizes that
human compassion, more often than not, opens the door to
mercy and forgiveness once a family member joins his
Creator. Notably, it is an undisputed fact that the
respondents wasted no time in making frantic pleas to
Valino for the delay of the interment for a few days so they
could attend the service and view the remains of the
deceased. As soon as they came to know about Atty.
Adrianos death in the morning of December 19, 1992
(December 20, 1992 in the Philippines), the respondents
immediately contacted Valino and the Arlington Memorial
Chapel to express their request, but to no avail.
Valino insists that the expressed wishes of the deceased
should nevertheless prevail pursuant to Article 307 of the
Civil Code. Valinos own testimony that it was Atty.
Adrianos wish to be buried in their family plot is being
relied upon heavily. It should be noted, however, that other
than Valinos claim that Atty. Adriano wished to be buried
at the Manila Memorial Park, no other evidence was
presented to corroborate such claim. Considering that
Rosario equally claims that Atty. Adriano wished to be
buried in the Adriano family plot in Novaliches, it becomes
apparent that the supposed burial wish of Atty. Adriano
was unclear and undefinite. Considering this ambiguity as
to the true wishes of the deceased, it is the law that
supplies the presumption as to his intent. No presumption
can be said to have been created in Valinos

_______________
[9] See Marawi Marantao General Hospital, Inc. v. Court of Appeals,
402 Phil. 356, 369; 349 SCRA 321, 330331 (2001). See also Thomson v.
Court of Appeals, 358 Phil. 761, 778; 298 SCRA 280, 294 (1998);
Gatchalian v. Delim, G.R. No. 56487, October 21, 1991, 203 SCRA 126,
132; Yepes v. Samar Express Transit, 123 Phil. 948, 949; 17 SCRA 91, 93
(1966); Andres v. The Crown Life Insurance Co., 102 Phil. 919, 924 (1958);
Lang v. Acting Provincial Sheriff of Surigao, 93 Phil. 661, 669 (1953); and
Fernandez v. Sebido, 70 Phil. 151, 159 (1940).

14

favor, solely on account of a longtime relationship with

Atty. Adriano.
 Moreover, it cannot be surmised that just because
Rosario was unavailable to bury her husband when he
died, she had already renounced her right to do so. Verily,
in the same vein that the right and duty to make funeral
arrangements will not be considered as having been waived
or renounced, the right to deprive a legitimate spouse of
her legal right to bury the remains of her deceased
husband should not be readily presumed to have been
exercised, except upon clear and satisfactory proof of
conduct indicative of a free and voluntary intent of the
deceased to that end. Should there be any doubt as to
the true intent of the deceased, the law favors the
legitimate family. Here, Rosarios keenness to exercise
the rights and obligations accorded to the legal wife was
even bolstered by the fact that she was joined by the
children in this case.
Even assuming, ex gratia argumenti, that Atty. Adriano
truly wished to be buried in the Valino family plot at the
Manila Memorial Park, the result remains the same.
Article 307 of the Civil Code provides:

Art. 307. The funeral shall be in accordance with the

expressed wishes of the deceased. In the absence of such
expression, his religious beliefs or affiliation shall determine the
funeral rites. In case of doubt, the form of the funeral shall be
decided upon by the person obliged to make arrangements for the
same, after consulting the other members of the family.

From its terms, it is apparent that Article 307 simply
seeks to prescribe the form of the funeral rites that should
govern in the burial of the deceased. As thoroughly
explained earlier, the right and duty to make funeral
arrangements reside in the persons specified in Article 305
in relation to Article 199 of the Family Code. Even if
Article 307 were to be interpreted to include the place of
burial among those on which the

15

wishes of the deceased shall be followed, Dr. Arturo M.

Tolentino (Dr. Tolentino), an eminent authority on civil
law, commented that it is generally recognized that any
inferences as to the wishes of the deceased should be
established by some form of testamentary
disposition.[10] As Article 307 itself provides, the wishes
of the deceased must be expressly provided. It cannot be
inferred lightly, such as from the circumstance that Atty.
Adriano spent his last remaining days with Valino. It bears
stressing once more that other than Valinos claim that
Atty. Adriano wished to be buried at the Valino family plot,
no other evidence was presented to corroborate it.
At any rate, it should be remembered that the wishes
of the decedent with respect to his funeral are not
absolute. As Dr. Tolentino further wrote:

The dispositions or wishes of the deceased in relation to his

funeral, must not be contrary to law. They must not violate
the legal and reglamentary provisions concerning funerals
and the disposition of the remains, whether as regards the
time and manner of disposition, or the place of burial, or the
ceremony to be observed.[11] [Emphases supplied]

In this case, the wishes of the deceased with respect to

his funeral are limited by Article 305 of the Civil Code in
relation to Article 199 of the Family Code, and subject
the same to those charged with the right and duty to make
the proper

_______________
[10] TOLENTINO, CIVIL CODE OF THE PHILIPPINES, Vol. I, p. 657,
citing Sheeban v. Commercial Travelers, 283 Mass. 543, 186 N.E.
627; Lindh v. Great Northern, 99 Minn. 408, 109 N.W. 823; Kyles
v. Southern Ry Co., 147 N.C. 394, 61 S.E. 278.
[11] TOLENTINO, CIVIL CODE OF THE PHILIPPINES, Vol. I, p. 657,
citing Sacred Heart of Jesus v. Soklowski, 159 Minn. 331, 199
N.W. 81; Wilson v. Read, 74 N.H. 322, 68 Atl. 37; Pettigrew v.
Pettigrew, 20 Pa. 313, 56 Atl. 878.

16

arrangements to bury the remains of their lovedone. As

aptly explained by the appellate court in its disquisition:

The testimony of defendantappellee Fe Floro Valino that it

was the oral wish of Atty. Adriano Adriano that he be interred at
the Floro familys mausoleum at the Manila Memorial Park, must
bend to the provisions of the law. Even assuming arguendo that it
was the express wish of the deceased to be interred at the Manila
Memorial Park, still, the law grants the duty and the right to
decide what to do with the remains to the wife, in this case,
plaintiffappellant Rosario D. Adriano, as the surviving spouse,
and not to defendantappellee Fe Floro Valino, who is not even in
the list of those legally preferred, despite the fact that her
intentions may have been very commendable. The law does not
even consider the emotional fact that husband and wife had, in
this case at bench, been separatedinfact and had been living
apart for more than 30 years.[12]
 As for Valinos contention that there is no point in
exhuming and transferring the remains of Atty. Adriano, it
should be said that the burial of his remains in a place
other than the Adriano family plot in Novaliches runs
counter to the wishes of his family. It does not only violate
their right provided by law, but it also disrespects the
family because the remains of the patriarch are buried in
the family plot of his livein partner.
It is generally recognized that the corpse of an
individual is outside the commerce of man. However, the
law recognizes that a certain right of possession over the
corpse exists, for the purpose of a decent burial, and for the
exclusion of the intrusion by third persons who have no
legitimate interest in it. This quasiproperty right, arising
out of the duty of those obligated by law to bury their dead,
also authorizes them to take possession of the dead body
for purposes of burial to have

_______________
[12] Rollo, p. 43.

17

it remain in its final resting place, or to even transfer it to

a proper place where the memory of the dead may receive
the respect of the living. This is a family right. There can
be no doubt that persons having this right may recover the
corpse from third persons.[13]
All this notwithstanding, the Court finds laudable the
acts of Valino in taking care of Atty. Adriano during his
final moments and giving him a proper burial. For her
sacrifices, it would indeed be unkind to assess actual or
moral damages against her. As aptly explained by the CA:

The trial court found that there was good faith on the part of
defendantappellee Fe Floro Valino, who, having lived with Atty.
Adriano after he was separated in fact from his wife, lovingly and
caringly took care of the wellbeing of Atty. Adriano Adriano while
he was alive and even took care of his remains when he had died.
On the issue of damages, plaintiffsappellants are not entitled
to actual damages. Defendantappellee Fe Floro Valino had all the
good intentions in giving the remains of Atty. Adriano a decent
burial when the wife and family were all in the United States and
could not attend to his burial. Actual damages are those awarded
in satisfaction of, or in recompense for, loss or injury sustained.
To be recoverable, they must not only be capable of proof but must
actually be proven with a reasonable degree of certainty. In this
case at bench, there was no iota of evidence presented to justify
award of actual damages.
Plaintiffsappellants are not also entitled to moral and
exemplary damages. Moral damages may be recovered only if the
plaintiff is able to satisfactorily prove the existence of the factual
basis for the damages and its causal connection with the acts
complained of because moral damages although incapable of
pecuniary estimation are designed not to impose a penalty but to
compen

_______________
13 TOLENTINO, CIVIL CODE OF THE PHILIPPINES, Vol. I, p. 654, citing 1I Enneccerus,
Kipp & Wolff 548 fn; 1 Valverde 239240 fn.

18

sate for injury sustained and actual damages suffered. No injury

was caused to plaintiffsappellants, nor was any intended by
anyone in this case. Exemplary damages, on the other hand, may
only be awarded if claimant is able to establish his right to moral,
temperate, liquidated or compensatory damages. Unfortunately,
neither of the requirements to sustain an award for either of these
damages would appear to have been adequately established by
plaintiffsappellants.
As regards the award of attorneys fees, it is an accepted
doctrine that the award thereof as an item of damages is the
exception rather than the rule, and counsels fees are not to be
awarded every time a party wins a suit. The power of the court to
award attorneys fees under Article 2208 of the New Civil Code
demands factual, legal and equitable justification, without which
the award is a conclusion without a premise, its basis being
improperly left to speculation and conjecture. In this case, we
have searched but found nothing in plaintiffsappellants suit that
justifies the award of attorneys fees.[14]

Finally, it should be said that controversies as to who

should make arrangements for the funeral of a deceased
have often aggravated the bereavement of the family and
disturbed the proper solemnity which should prevail at
every funeral. It is for the purpose of preventing such
controversies that the Code Commission saw it best to
include the provisions on Funerals.[15]
WHEREFORE, the petition is DENIED.
SO ORDERED.

Sereno (CJ.), Carpio, Velasco, Jr., LeonardoDe Castro,

Brion, Peralta, Bersamin, Del Castillo, Villarama, Jr.,
Perez, Reyes and PerlasBernabe, JJ., concur.
_______________
[14] Id., at pp. 4345.
[15] Report of the Code Commission, p. 49.

19

Abad, J., I join Justice Leonens Dissent.

Leonen, J., I dissent. See Separate Opinion.

DISSENTING OPINION

LEONEN, J.:
We will all die. But what may matter to many of us is
how we live and how our life is kept in the memories of
those we leave behind. This case is not about whether a
commonlaw wife has more rights over the corpse of the
husband than the latters estranged legal spouse. This case
is about which between them knows his wishes.
Therefore, I respectfully disagree with the ponencia in
denying this petition.
I vote to set aside the decision of the Court of Appeals
dated October 2, 2006 in C.A.G.R. CV No. 61613, which
directs petitioner Fe to have the remains of Atty. Lope
Adriano exhumed, and orders respondents to transfer,
transport, and inter, at their expense, the remains of the
decedent from Manila Memorial Park to the family plot in
Holy Cross Memorial Park in Novaliches, Quezon City. I
vote to sustain the decision dated October 1, 1998, of the
Regional Trial Court of Quezon City, Branch 77 in Civil
Case No. Q9315288, dismissing respondents complaint
for damages.
I disagree with the position that in the determination of
how Atty. Adriano should be buried, the law gives the
right and duty to make funeral arrangements to Rosario,
she being the surviving legal wife of Atty. Adriano,[1] in
accordance with Article 305[2] of the Civil Code in relation
to Article 199[3] of the Family Code.

[1] Ponencia, p. 12.
[2] Article 305. The duty and the right to make
arrangements for the funeral of a relative shall be in
accordance with the order

_______________
[1] Ponencia, p. 12.
[2] Article 305. The duty and the right to make arrangements for the
funeral of a relative shall be in accordance with the order
 20

I am of the opinion that Article 305 should only be

considered when, first, the deceased left no explicit
instructions on how he wishes to be interred, and second,
when none among the deceaseds surviving relations are
willing to make the funeral arrangements and a conflict
arises. In these situations, the conflict must be settled
according to the order of preference stated in Article 199.
In any other case, it should be the express wishes of the
deceased which should take precedence.
This view, in fact, is embodied in Article 307 of the Civil
Code, which states:

Article 307. The funeral shall be in accordance with the

expressed wishes of the deceased. In the absence of such
expression, his religious beliefs or affiliation shall determine the
funeral rites. In case of doubt, the form of the funeral shall be
decided upon by the person obliged to make arrangements for the
same, after consulting the other members of the family. (Emphasis
supplied)

It is the ponencias opinion that the wishes of the

deceased contemplated in Article 307 only governs the
form of the funeral and that the duty and, more
specifically, the right to make arrangements for the funeral
remains with the persons specified in Article 305 in
relation to Article 199. It is my submission, however, that
Article 307 should be interpreted

_______________
established for support, under Article 294. In case of descendants of
the same degree, or of brothers and sisters, the oldest shall be preferred.
In case of ascendants, the paternal shall have a better right.
[3] Article 199. Whenever 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; and
(4) The brothers and sisters. (294a)

21

to mean that the right to determine ones funeral, including

the right to determine how and where one wishes to be
buried, remains with the deceased, and it is only in the
absence of his express wishes, or in the absence of his
religious beliefs and affiliations, or if there is doubt as to
his wishes, that other persons may assume the right to
decide the funeral arrangements.
This right, like other rights pointed out by the ponencia,
[4] must not be considered waived or renounced except upon
clear and satisfactory proof of conduct indicative of a free
and voluntary intent to that end. There is neither
indication nor have there been any allegations that Atty.
Adriano did not freely and voluntarily relay his last wishes
to his commonlaw wife, petitioner Fe. Atty. Adriano,
therefore, did not waive his right to determine where he
should be buried, in favor of the persons indicated in
Article 305 in relation to Article 199.
Accordingly, it was improper to cite in the ponencia
Tomas Eugenio, Sr. v. Judge Velez.[5] In Eugenio, Tomas
Eugenio, Sr. claimed the right to bury his commonlaw
wife, arguing that he should be considered a spouse under
Article 305 in relation to Article 199. The assertion led this
court to expound on the interpretation of Article 305 in
relation to Article 199 and conclude that:

x x x. Indeed, Philippine Law does not recognize common law

marriages. A man and woman not legally married who cohabit for
many years as husband and wife, who represent themselves to the
public as husband and wife, and who are reputed to be husband
and wife in the community where they live may be considered
legally married in common law jurisdictions but not in the
Philippines.
While it is true that our laws do not just brush aside the fact
that such relationships are present in our

_______________
[4] Ponencia, pp. 1213.
[5]263 Phil. 1149; 185 SCRA 425 (1990) [Per J. Padilla, En Banc].

22

society, and that they produce a community of properties and

interests which is governed by law, authority exists in case law to
the effect that such form of coownership requires that the man
and woman living together must not in any way be incapacitated
to contract marriage. In any case, herein petitioner has a
subsisting marriage with another woman, a legal impediment
which disqualified him from even legally marrying Vitaliana. In
Santero vs. CFI of Cavite, the Court, thru Mr. Justice Paras,
interpreting Art. 188 of the Civil Code (Support of Surviving
Spouse and Children During Liquidation of Inventoried Property)
stated: Be it noted however that with respect to spouse, the
same must be the legitimate spouse (not commonlaw
spouses).
There is a view that under Article 332 of the Revised Penal
Code, the term spouse embraces common law relation for
purposes of exemption from criminal liability in cases of theft,
swindling and malicious mischief committed or caused mutually
by spouses. The Penal Code article, it is said, makes no distinction
between a couple whose cohabitation is sanctioned by a sacrament
or legal tie and another who are husband and wife de facto. But
this view cannot even apply to the facts of the case at bar. We
hold that the provisions of the Civil Code, unless expressly
providing to the contrary as in Article 144, when referring to a
spouse contemplate a lawfully wedded spouse. Petitioner visa
vis Vitaliana was not a lawfullywedded spouse to her; in fact, he
was not legally capacitated to marry her in her lifetime.[6]

In the present case, petitioner Fe has not asserted that
she be considered a spouse under Article 305 in relation
to Article 199 with the right and the duty to make funeral
arrangements for Atty. Adriano. What she asserts is that
she was Atty. Adrianos constant companion for a long time
who was constantly by his side, showing him the love and
devotion as a wife would have, who took care of him in his
final moments

_______________
[6] Id., at pp. 11591160; p. 435. See also ponencia, pp. 1112.

23

and gave him a proper burial. As such, there is a

presumption that she would be in the best position to relay
his final wishes.
The trial court in its decision dated October 1, 1998
reached the same conclusion, thus:

Atty. Lope Adrianos wish was established at the trial

and shown in the following testimony of the defendant, to
wit:
ATTY. PIZARRAS:
Madam witness, what was the wish of Atty.
Lope Adriano regarding his burial?
WITNESS:
He wanted to be buried at Manila
Memorial.
Q: Why do you say that?
A: We have discussed it long before.
 Q: When did you first discuss this?
A: The first time we went to Manila
Memorial. He wanted that his lawn type lot be
upgraded to estate type. He doesnt want that
people will step on his grave.
Q: What happened to this request if his
lawn type lot to be upgraded to estate type?
A: It did not take long. I had it
upgraded. (TSN, May 7, 1997, pp. 45;
underscoring supplied)
This crucial fact remained unrefuted.
Moreover, considering the very, very long time that the
defendant and the deceased lived like husband and wife
prior to his death, it can be reasonably assumed that it is
the defendant who really knows the wishes of the deceased.
And it appears that it was the express wish of the deceased
that he be interred at the Manila Memorial Park.[7]

_______________
[7] Rollo, p. 129.

24

The ponencia also noted there was animosity between

Atty. Adriano and respondents when he was still alive. He
and his legal spouse, respondent Rosario, have been
separatedinfact for more than thirty (30) years, and he
has not been in contact with his children, the other
respondents, for about the same period of time. They did
not even visit him when he fell ill and was on his deathbed;
it was only after he died that they came, asserting their
rights to his remains.
It is unfortunate that the ponencia would rather uphold
the wishes of his estranged family rather than give the
deceased his final request. Part of life is the ability to
control how one wishes to be memorialized, and such right
should remain with the deceased. It is only when the
deceased has not left any express instructions that the
right is given to the persons specified under the law.
Given the circumstances, the remains of Atty. Adriano
should remain in the Floro family mausoleum at the
Manila Memorial Park.
The law reaches into much of our lives while we live. It
constitutes and frames most of our actions. But at the same
time, the law also grants us the autonomy or the space to
define who we are. Upon our death, the law does not cease
to respect our earned autonomy. Rather, it gives space for
 us to speak through the agency of she who may have sat at
our bedside as we suffered through a lingering illness.
I am of the view that it is that love and caring which
should be rewarded with the honor of putting us in that
place where we mark our physical presence for the last
time and where we will be eternally remembered.
ACCORDINGLY, the petition should be GRANTED.
The decision of the Court of Appeals in C.A.G.R. CV No.
61613, reversing the October 1, 1998 decision of the
Regional Trial Court, Branch 77, Quezon City, must be
SET ASIDE.

Petition denied.

25

Note.In Buena Obra v. SSS (401 SCRA 206 [2003]),

the Supreme Court, speaking through then Associate, now
Chief Justice Puno, held that the claim for funeral benefits
under P.D. No. 626, as amended, which was filed after the
lapse of 10 years by the therein petitioner who had earlier
filed a claim for death benefits, had not prescribed. (Mesa
vs. Social Security System, 584 SCRA 183 [2009])
o0o

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