[G.R. No. 124371. November 23, 2000.] PAULA T. LLORENTE, petitioner, vs. COURT OF APPEALS and ALICIA F.

LLORENTE, respondents. E.A. Dacanay for petitioner. Pardalis, Navarro & Sales for private respondents. SYNOPSIS The deceased Lorenzo N. Llorente was an enlisted serviceman of the United States Navy from 1927 to 1957 and a naturalized American citizen. On February 22, 1937, Lorenzo married petitioner Paula Llorente. Before the outbreak of the Pacific War, Lorenzo departed for the United States and Paula stayed in the conjugal home in barrio Antipolo, Nabua, Camarines Sur. When Lorenzo returned to the Philippines to visit his wife in 1945, he discovered that his wife Paula was pregnant and was "living in" and having an adulterous relationship with his brother, Ceferino Llorente. Lorenzo refused to forgive Paula and live with her. Lorenzo returned to the United States and filed for divorce with the Superior Court of the State of California in and for the County of San Diego. Paula was represented by counsel, John Riley, and actively participated in the proceedings. The Superior Court of the State of California, for the County of San Diego found all factual allegations to be true and issued an interlocutory judgment of divorce. The divorce decree became final in 1952. On January 16, 1958, Lorenzo married Alicia F. Llorente in Manila. Apparently, Alicia had no knowledge of the first marriage even if they resided in the same town as Paula, who did not oppose the marriage or cohabitation. From 1958 to 1985, Lorenzo and Alicia lived together as husband and wife and produced three children, Raul, Luz and Beverly, all surnamed Llorente. On March 13, 1981, Lorenzo executed a Last Will and Testament. In the will, Lorenzo bequeathed all his property to Alicia and their three children. On December 14, 1983, Lorenzo filed with the Regional Trial Court, Iriga, Camarines Sur, a petition for the probate and allowance of his last will and testament wherein Lorenzo moved that Alicia be appointed Special Administratrix of his estate. The trial court admitted the will to probate. On June 11, 1985, before the proceedings could be terminated, Lorenzo died. Paula filed with the same court a petition for letters of administration over Lorenzo's estate in her favor. Alicia also filed in the testate proceeding a petition for the issuance of letters testamentary. The trial court denied Alicia's petition and ruled that the divorce decree granted to the late Lorenzo Llorente was void and inapplicable in the Philippines, therefore, her marriage to Lorenzo was likewise void. The trial court appointed Paula Llorente as legal administrator of the estate of the deceased, Lorenzo Llorente. Respondent Alicia filed with the trial court a motion for reconsideration, but was denied. Alicia appealed to the Court of Appeals. The appellate court promulgated its

decision, affirming with modification the decision of the trial court. The trial court declared Alicia as co-owner of whatever properties she and the deceased Lorenzo may have acquired during the twenty-five (25) years of cohabitation. Petitioner Paula moved for reconsideration, but was denied for lack of merit. Hence, the present petition. The Supreme Court reversed and set aside the ruling of the trial court and recognized as valid and as a matter of comity the decree of divorce granted in favor of the deceased Lorenzo N. Llorente by the Superior Court of the State of California in and for the County of San Diego, made final on December 4, 1952. According to the Court, the "national law" indicated in Article 16 of the Civil Code cannot possibly apply to the general American law. There is no such law governing the validity of testamentary provisions in the United States. Each State of the union has its own law applicable to its citizens and in force only within the State. It can, therefore, refer to no other than the law of the State of which the decedent was a resident and there was also no showing that the application of the renvoi doctrine was called for or required by New York State law. The Court also said that the clear intent of Lorenzo to bequeath his property to his second wife and children by her was glaringly shown in the will he executed and the Court did not wish to frustrate Lorenzo's wishes, since he was a foreigner, not covered by Philippine laws on family rights and duties, status, condition and legal capacity. The Court remanded the cases to the court of origin for determination of the intrinsic validity of Lorenzo N. Llorente's will and determination of the parties' successional rights allowing proof of foreign law. SYLLABUS 1.CIVIL LAW; PRIVATE INTERNATIONAL LAW; RENVOI DOCTRINE; NOT APPLICABLE IN CASE AT BAR. True, foreign laws do not prove themselves in our jurisdiction and our courts are not authorized to take judicial notice of them. Like any other fact, they must be alleged and proved. While the substance of the foreign law was pleaded, the Court of Appeals did not admit the foreign law. The Court of Appeals and the trial court called to the fore the renvoi doctrine, where the case was "referred back" to the law of the decedent's domicile, in this case, Philippine law. We note that while the trial court stated that the law of New York was not sufficiently proven, in the same breath it made the categorical, albeit equally unproven statement that "American law follows the 'domiciliary theory, hence, Philippine law applies when determining the validity of Lorenzo's will. First, there is no such thing as one American law. The "national law" indicated in Article 16 of the Civil Code cannot possibly apply to general American law. There is no such law governing the validity of testamentary provisions in the United States. Each State of the union has its own law applicable to its citizens and in force only within the State. It can therefore refer to no other than the law of the State of which the decedent was a resident. Second, there is no showing that the application of the renvoi doctrine is called for or required

by New York State law. The trial court held that the will was intrinsically invalid since it contained dispositions in favor of Alice, who in the trial court's opinion was a mere paramour. The trial court threw the will out, leaving Alice, and her two children, Raul and Luz, with nothing. The Court of Appeals also disregarded the will. It declared Alice entitled to one half () of whatever property she and Lorenzo acquired during their cohabitation, applying Article 144 of the Civil Code of the Philippines. The hasty application of Philippine law and the complete disregard of the will, already probated as duly executed in accordance with the formalities of Philippine law, is fatal, especially in light of the factual and legal circumstances here obtaining. 2.ID.; ID.; VALIDITY OF FOREIGN DIVORCE; DIVORCE OBTAINED BY PETITIONER'S HUSBAND ABROAD VALID AND RECOGNIZED BY PHILIPPINE LAWS AS A MATTER OF COMITY; SETTLED DOCTRINES. In Van Dorn v. Romillo, Jr., we held that owing to the nationality principle embodied in Article 15 of the Civil Code, only Philippine nationals are covered by the policy against absolute divorces, the same being considered contrary to our concept of public policy and morality. In the same case, the Court ruled that aliens may obtain divorces abroad, provided they are valid according to their national law. Citing this landmark case, the Court held in Quita v. Court of Appeals, that once proven that respondent was no longer a Filipino citizen when he obtained the divorce from petitioner, the ruling in Van Dorn would become applicable and petitioner could "very well lose her right to inherit" from him. In Pilapil v. Ibay-Somera, we recognized the divorce obtained by the respondent in his country, the Federal Republic of Germany. There, we stated that divorce and its legal effects may be recognized in the Philippines insofar as respondent is concerned in view of the nationality principle in our civil law on the status of persons. For failing to apply these doctrines, the decision of the Court of Appeals must be reversed. We hold that the divorce obtained by Lorenzo H. Llorente from his first wife Paula was valid and recognized in this jurisdiction as a matter of comity. Now, the effects of this divorce (as to the succession to the estate of the decedent) are matters best left to the determination of the trial court. 3.ID.; ID.; FORMALITIES OF WILL EXECUTED BY FOREIGN NATIONALS SHALL BE GOVERNED BY PHILIPPINE LAW; DETERMINATION OF SUCCESSIONAL RIGHTS BEST PROVED BY FOREIGN LAW WHICH MUST BE DULY PLEADED AND PROVED; CASE AT BAR. The clear intent of Lorenzo to bequeath his property to his second wife and children by her is glaringly shown in the will he executed. We do not wish to frustrate his wishes, since he was a foreigner, not covered by our laws on "family rights and duties, status, condition and legal capacity." Whether the will is intrinsically valid and who shall inherit from Lorenzo are issues best proved by foreign law which must be pleaded and proved. Whether the will was executed in accordance with the formalities required is answered by referring to Philippine law. In fact, the will was duly probated. As a guide however, the trial court should note

that whatever public policy or good customs may be involved in our system of legitimes, Congress did not intend to extend the same to the succession of foreign nationals. Congress specifically left the amount of successional rights to the decedent's national law. DECISION PARDO, J p: The Case The case raises a conflict of laws issue. What is before us is an appeal from the decision of the Court of Appeals 1 modifying that of the Regional Trial Court, Camarines Sur, Branch 35, Iriga City 2 declaring respondent Alicia F. Llorente (hereinafter referred to as "Alicia"), as co-owners of whatever property she and the deceased Lorenzo N. Llorente (hereinafter referred to as "Lorenzo") may have acquired during the twenty-five (25) years that they lived together as husband and wife.

On December 4, 1945, Paula gave birth to a boy registered in the Office of the Registrar of Nabua as "Crisologo Llorente," with the certificate stating that the child was not legitimate and the line for the father's name was left blank. 9 Lorenzo refused to forgive Paula and live with her. In fact, on February 2, 1946, the couple drew a written agreement to the effect that (1) all the family allowances allotted by the United States Navy as part of Lorenzo's salary and all other obligations for Paula's daily maintenance and support would be suspended; (2) they would dissolve their marital union in accordance with judicial proceedings; (3) they would make a separate agreement regarding their conjugal property acquired during their marital life; and (4) Lorenzo would not prosecute Paula for her adulterous act since she voluntarily admitted her fault and agreed to separate from Lorenzo peacefully. The agreement was signed by both Lorenzo and Paula and was witnessed by Paula's father and stepmother. The agreement was notarized by Notary Public Pedro Osabel. 10 Lorenzo returned to the United States and on November 16, 1951 filed for divorce with the Superior Court of the State of California in and for the County of San Diego. Paula was represented by counsel, John Riley, and actively participated in the proceedings. On November 27, 1951, the Superior Court of the State of California, for the County of San Diego found all factual allegations to be true and issued an interlocutory judgment of divorce. 11 On December 4, 1952, the divorce decree became final. 12 In the meantime, Lorenzo returned to the Philippines. CADHcI On January 16, 1958, Lorenzo married Alicia F. Llorente in Manila. 13 Apparently, Alicia had no knowledge of the first marriage even if they resided in the same town as Paula, who did not oppose the marriage or cohabitation. 14 From 1958 to 1985, Lorenzo and Alicia lived together as husband and wife. 15 Their twenty-five (25) year union produced three children, Raul, Luz and Beverly, all surnamed Llorente. 16 On March 13, 1981, Lorenzo executed a Last Will and Testament. The will was notarized by Notary Public Salvador M. Occiano, duly signed by Lorenzo with attesting witnesses Francisco Hugo, Francisco Neibres and Tito Trajano. In the will, Lorenzo bequeathed all his property to Alicia and their three children, to wit:

"(1)I give and bequeath to my wife ALICIA R. FORTUNO exclusively my residential house and lot, located at San Francisco, Nabua, Camarines Sur, Philippines, including ALL the personal properties and other movables or belongings that may be found or existing therein; "(2)I give and bequeath exclusively to my wife Alicia R. Fortuno and to my children, Raul F. Llorente, Luz F. Llorente and Beverly F. Llorente, in equal shares, all my real properties whatsoever and wheresoever located, specifically my real properties located at Barangay Aro-Aldao, Nabua, Camarines Sur; Barangay Paloyon, Nabua, Camarines Sur; Barangay Baras, Sitio Puga, Nabua, Camarines Sur; and Barangay Paloyon, Sitio Nalilidong, Nabua, Camarines Sur; "(3)I likewise give and bequeath exclusively unto my wife Alicia R. Fortuno and unto my children, Raul F. Llorente, Luz F. Llorente and Beverly F. Llorente, in equal shares, my real properties located in Quezon City Philippines, and covered by Transfer Certificate of Title No. 188652; and my lands in Antipolo, Rizal, Philippines, covered by Transfer Certificate of Title Nos. 124196 and 165188, both of the Registry of Deeds of the province of Rizal, Philippines; "(4)That their respective shares in the above-mentioned properties, whether real or personal properties, shall not be disposed of, ceded, sold and conveyed to any other persons, but could only be sold, ceded, conveyed and disposed of by and among themselves; "(5)I designate my wife ALICIA R. FORTUNO to be the sole executor of this my Last Will and Testament, and in her default or incapacity of the latter to act, any of my children in the order of age, if of age; "(6)I hereby direct that the executor named herein or her lawful substitute should served (sic) without bond; "(7)I hereby revoke any and all my other wills, codicils, or testamentary dispositions heretofore executed, signed, or published, by me; "(8)It is my final wish and desire that if I die, no relatives of mine in any degree in the Llorente's Side should ever bother and disturb in any manner whatsoever my wife Alicia R. Fortunato and my children with respect to any real or personal properties I gave and bequeathed respectively to each one of them by virtue of this Last Will and Testament." 17 On December 14, 1983, Lorenzo filed with the Regional Trial Court, Iriga, Camarines Sur, a petition for the probate and allowance of his last will and testament wherein Lorenzo moved that Alicia be appointed Special Administratrix of his estate. 18

The Facts The deceased Lorenzo N. Llorente was an enlisted serviceman of the United States Navy from March 10, 1927 to September 30, 1957. 3 On February 22, 1937, Lorenzo and petitioner Paula Llorente (hereinafter referred to as "Paula") were married before a parish priest, Roman Catholic Church, in Nabua, Camarines Sur. 4 Before the outbreak of the Pacific War, Lorenzo departed for the United States and Paula stayed in the conjugal home in barrio Antipolo, Nabua, Camarines Sur. 5 On November 30, 1943, Lorenzo was admitted to United States citizenship and Certificate of Naturalization No. 5579816 was issued in his favor by the United States District Court, Southern District of New York. 6 Upon the liberation of the Philippines by the American Forces in 1945, Lorenzo was granted an accrued leave by the U.S. Navy, to visit his wife and he visited the Philippines. 7 He discovered that his wife Paula was pregnant and was "living in" and having an adulterous relationship with his brother, Ceferino Llorente. 8

On January 18, 1984, the trial court denied the motion for the reason that the testator Lorenzo was still alive. 19 On January 24, 1984, finding that the will was duly executed, the trial court admitted the will to probate. 20 On June 11, 1985, before the proceedings could be terminated, Lorenzo died. 21 On September 4, 1985, Paula filed with the same court a petition 22 for letters of administration over Lorenzo's estate in her favor. Paula contended (1) that she was Lorenzo's surviving spouse, (2) that the various property were acquired during their marriage, (3) that Lorenzo's will disposed of all his property in favor of Alicia and her children, encroaching on her legitime and 1/2 share in the conjugal property. 23 On December 13, 1985, Alicia filed in the testate proceeding (Sp. Proc. No. IR-755), a petition for the issuance of letters testamentary. 24 On October 14, 1985, without terminating the testate proceedings, the trial court gave due course to Paula's petition in Sp. Proc. No. IR-888. 25 On November 6, 13 and 20, 1985, the order was published in the newspaper "Bicol Star". 26 On May 18, 1987, the Regional Trial Court issued a joint decision, thus: ISaCTE "Wherefore, considering that this court has so found that the divorce decree granted to the late Lorenzo Llorente is void and inapplicable in the Philippines, therefore the marriage he contracted with Alicia Fortunato on January 16, 1958 at Manila is likewise void. This being so the petition of Alicia F. Llorente for the issuance of letters testamentary is denied. Likewise, she is not entitled to receive any share from the estate even if the will especially said so her relationship with Lorenzo having gained the status of paramour which is under Art. 739 (1). "On the other hand, the court finds the petition of Paula Titular Llorente, meritorious, and so declares the intrinsic disposition of the will of Lorenzo Llorente dated March 13, 1981 as void and declares her entitled as conjugal partner and entitled to one-half of their conjugal properties, and as primary compulsory heir, Paula T. Llorente is also entitled to one-third of the estate and then one-third should go to the illegitimate children, Raul, Luz and Beverly, all surname (sic) Llorente, for them to partition in equal shares and also entitled to the remaining free portion in equal shares.

"Petitioner, Paula Llorente is appointed legal administrator of the estate of the deceased, Lorenzo Llorente. As such let the corresponding letters of administration issue in her favor upon her filing a bond in the amount (sic) of P100,000.00 conditioned for her to make a return to the court within three (3) months a true and complete inventory of all goods, chattels, rights, and credits, and estate which shall at any time come to her possession or to the possession of any other person for her, and from the proceeds to pay and discharge all debts, legacies and charges on the same, or such dividends thereon as shall be decreed or required by this court; to render a true and just account of her administration to the court within one (1) year, and at any other time when required by the court and to perform all orders of this court by her to be performed. "On the other matters prayed for in respective petitions for want of evidence could not be granted. "SO ORDERED." 27 In time, Alicia filed with the trial court a motion for reconsideration of the aforequoted decision. 28 On September 14, 1987, the trial court denied Alicia's motion for reconsideration but modified its earlier decision, stating that Raul and Luz Llorente are not children "legitimate or otherwise" of Lorenzo since they were not legally adopted by him. 29 Amending its decision of May 18, 1987, the trial court declared Beverly Llorente as the only illegitimate child of Lorenzo, entitling her to one-third (1/3) of the estate and one-third (1/3) of the free portion of the estate. 30

On March 21, 1996, the Court of Appeals, 34 denied the motion for lack of merit. Hence, this petition. 35 The Issue Stripping the petition of its legalese and sorting through the various arguments raised, 36 the issue is simple. Who are entitled to inherit from the late Lorenzo N. Llorente? We do not agree with the decision of the Court of Appeals. We remand the case to the trial court for ruling on the intrinsic validity of the will of the deceased. The Applicable Law The fact that the late Lorenzo N. Llorente became an American citizen long before and at the time of: (1) his divorce from Paula; (2) marriage to Alicia; (3) execution of his will; and (4) death, is duly established, admitted and undisputed. Thus, as a rule, issues arising from these incidents are necessarily governed by foreign law. The Civil Code clearly provides: "ARTICLE 15.Laws relating to family rights and duties, or to the status, condition and legal capacity of persons are binding upon citizens of the Philippines, even though living abroad. SCcHIE

On September 28, 1987, respondent appealed to the Court of Appeals. 31 On July 31, 1995, the Court of Appeals promulgated its decision, affirming with modification the decision of the trial court in this wise: "WHEREFORE, the decision appealed from is hereby AFFIRMED with the MODIFICATION that Alicia is declared as co-owner of whatever properties she and the deceased may have acquired during the twenty-five (25) years of cohabitation. "SO ORDERED." 32 On August 25, 1995, petitioner filed with the Court of Appeals a motion for reconsideration of the decision. 33 True, foreign laws do not prove themselves in our jurisdiction and our courts are not authorized to take judicial notice of them. Like any other fact, they must be alleged and proved. 37 "ARTICLE 16.Real property as well as personal property is subject to the law of the country where it is situated. "However, intestate and testamentary succession, both with respect to the order of succession and to the amount of successional rights and to the intrinsic validity of testamentary provisions, shall be regulated by the national law of the person whose succession is under consideration, whatever may be the nature of the property and regardless of the country wherein said property may be found." (italics ours)

While the substance of the foreign law was pleaded, the Court of Appeals did not admit the foreign law. The Court of Appeals and the trial court called to the fore the renvoi doctrine, where the case was "referred back" to the law of the decedent's domicile, in this case, Philippine law. We note that while the trial court stated that the law of New York was not sufficiently proven, in the same breath it made the categorical, albeit equally unproven statement that "American law" follows the 'domiciliary theory' hence, Philippine law applies when determining the validity of Lorenzo's will. 38 First, there is no such thing as one American law. The "national law" indicated in Article 16 of the Civil Code cannot possibly apply to general American law. There is no such law governing the validity of testamentary provisions in the United States. Each State of the union has its own law applicable to its citizens and in force only within the State. It can therefore refer to no other than the law of the State of which the decedent was a resident. 39 Second, there is no showing that the application of the renvoi doctrine is called for or required by New York State law. The trial court held that the will was intrinsically invalid since it contained dispositions in favor of Alice, who in the trial court's opinion was a mere paramour. The trial court threw the will out, leaving Alice, and her two children, Raul and Luz, with nothing. The Court of Appeals also disregarded the will. It declared Alice entitled to one half (1/2) of whatever property she and Lorenzo acquired during their cohabitation, applying Article 144 of the Civil Code of the Philippines. The hasty application of Philippine law and the complete disregard of the will, already probated as duly executed in accordance with the formalities of Philippine law, is fatal, especially in light of the factual and legal circumstances here obtaining. Validity of the Foreign Divorce In Van Dorn v. Romillo, Jr. 40 we held that owing to the nationality principle embodied in Article 15 of the Civil Code, only Philippine nationals are covered by the policy against absolute divorces, the same being considered contrary to our concept of public policy and morality. In the same case, the Court ruled that aliens may obtain divorces abroad, provided they are valid according to their national law. Citing this landmark case, the Court held in Quita v. Court of Appeals, 41 that once proven that respondent was no longer a Filipino citizen when he obtained the divorce from petitioner, the ruling in Van Dorn would become

applicable and petitioner could "very well lose her right to inherit" from him. In Pilapil v. Ibay-Somera, 42 we recognized the divorce obtained by the respondent in his country, the Federal Republic of Germany. There, we stated that divorce and its legal effects may be recognized in the Philippines insofar as respondent is concerned in view of the nationality principle in our civil law on the status of persons. For failing to apply these doctrines, the decision of the Court of Appeals must be reversed. 43 We hold that the divorce obtained by Lorenzo H. Llorente from his first wife Paula was valid and recognized in this jurisdiction as a matter of comity. Now, the effects of this divorce (as to the succession to the estate of the decedent) are matters best left to the determination of the trial court. Validity of the Will The Civil Code provides: "ARTICLE 17.The forms and solemnities of contracts, wills, and other public instruments shall be governed by the laws of the country in which they are executed. "When the acts referred to are executed before the diplomatic or consular officials of the Republic of the Philippines in a foreign country, the solemnities established by Philippine laws shall be observed in their execution." (italics ours) The clear intent of Lorenzo to bequeath his property to his second wife and children by her is glaringly shown in the will he executed. We do not wish to frustrate his wishes, since he was a foreigner, not covered by our laws on "family rights and duties, status, condition and legal capacity." 44 Whether the will is intrinsically valid and who shall inherit from Lorenzo are issues best proved by foreign law which must be pleaded and proved. Whether the will was executed in accordance with the formalities required is answered by referring to Philippine law. In fact, the will was duly probated. HAICcD As a guide however, the trial court should note that whatever public policy or good customs may be involved in our system of legitimes, Congress did not intend to extend the same to the succession of foreign nationals. Congress specifically left the amount of successional rights to the decedent's national law. 45

Having thus ruled, we find it unnecessary to pass upon the other issues raised. The Fallo WHEREFORE, the petition is GRANTED. The decision of the Court of Appeals in CA-G. R. SP No. 17446 promulgated on July 31, 1995 is SET ASIDE. In lieu thereof, the Court REVERSES the decision of the Regional Trial Court and RECOGNIZES as VALID the decree of divorce granted in favor of the deceased Lorenzo N. Llorente by the Superior Court of the State of California in and for the County of San Diego, made final on December 4, 1952. Further, the Court REMANDS the cases to the court of origin for determination of the intrinsic validity of Lorenzo N. Llorente's will and determination of the parties' successional rights allowing proof of foreign law with instructions that the trial court shall proceed with all deliberate dispatch to settle the estate of the deceased within the framework of the Rules of Court. No costs. SO ORDERED. Davide, Jr., C.J., Puno, Kapunan, and Ynares-Santiago, JJ., concur. [G.R. No. L-23678. June 6, 1967.] TESTATE ESTATE OF AMOS G. BELLIS, deceased, PEOPLE'S BANK & TRUST COMPANY, executor, MARIA CRISTINA BELLIS and MIRIAM PALMA BELLIS, oppositors-appellants, vs. EDWARD A. BELLIS, ET AL., heirs-appellees. Vicente R. Macasaet and Jose D. Villena for oppositors-appellant. Paredes, Poblador, Cruz & Nazareno for heirs-appellees E.A. Bellis, et al. Quijano and Arroyo for heirs-appellees W. S. Bellis, et al. J .R. Balonkita for appellees People's Bank & Trust Company. Ozaeta, Gibbs & Ozaeta for appellee A. B. Allsman. SYLLABUS

1.PRIVATE INTERNATIONAL LAW; LAW APPLICABLE WITH REFERENCE TO THE INTESTATE AND TESTAMENTARY SUCCESSION OF AN ALIEN; SCOPE OF ARTS. 16 (2) AND 1039, CIVIL CODE. Article 16, par. 2, and Article 1039 of the Civil Code, render applicable the national law of the decedent, in intestate or testamentary successions, with regard to four items: (a) the order of succession; (b) the amount of successional rights; (c) the intrinsic validity of the provisions of the will; and (d) the capacity to succeed. 2.ID.; LEGITIMATES; FOREIGN NATIONALS. It is evident that whatever public policy or good customs may be involved in our system of legitimates, Congress has not intended to extend the same to the succession of foreign nationals. For its has chosen to leave, inter alia, the amount of successional rights, to the decedent's national law. Specific provisions must prevail over general ones. 3.ID.; ID.; ID.; FOREIGNER'S WILL; CASE AT BAR. Appellants point out that the decedent executed two wills one to govern his Texas estate and the other his Philippine estate arguing from this that he intended Philippine law to govern his Philippine estate. Assuming that such was the decedent's intention in executing a separate Philippine will, it would not alter the law, for as this Court ruled in the Miciano vs. Brimo (50 Phil., 867) case, a provision in a foreigner's will to the effect that his properties shall be distributed in accordance with Philippine law and not with his national law, is illegal and void for his national law cannot be ignored in regard to those matters that Article 10 now Article 16 of the Civil Code states said national law should govern. The parties admit that the decedent, Amos G. Bellis, was a citizen of the State of Texas, U.S.A., and that under the laws of Texas, there are no forced heirs or legitimates. Accordingly, since the intrinsic validity of the provision of the will and the amount of successional rights are to be determined under Texas law, the Philippine law on legitimes cannot be applied to the testacy of Amos G. Bellis. DECISION BENGZON, J.P., J p: This is a direct appeal to us, upon a question purely of law, from an order of the Court of First Instance of Manila dated April 30, 1964, approving the project of partition filed by the executor in Civil Case No. 37089 therein. The facts of the case are as follows: Amos G. Bellis, born in Texas, was "a citizen of the State of Texas and of the United States." By his first wife, Mary E. Mallen, whom he divorced, he had five legitimate children: Edward A. Bellis, George Bellis (who pre-deceased him in infancy), Henry A. Bellis, Alexander Bellis and Anna Bellis Allsman; by his second wife, Violet Kennedy, who survived him, he had three legitimate

children: Edwin G. Bellis, Walter S. Bellis and Dorothy Bellis; and finally, he had three illegitimate children: Amos Bellis, Jr., Maria Cristina Bellis and Miriam Palma Bellis. On August 5, 1952, Amos G. Bellis executed a will in the Philippines, in which he directed that after all taxes, obligations, and expenses of administration are paid for, his distributable estate should be divided, in trust, in the following order and manner: (a) $240,000.00 to his first wife, Mary E. Mallen; (b) P120,000.00 to his three illegitimate children, Amos Bellis, Jr., Maria Cristina Bellis, and Miriam Palma Bellis, or P40,000.00 each and (c) after the foregoing two items have been satisfied, the remainder shall go to his seven surviving children by his first and second wives, namely: Edward A. Bellis, Henry A. Bellis, Alexander Bellis, and Anna Bellis Allsman, Edwin G. Bellis, Walter S. Bellis, and Dorothy E. Bellis, in equal shares. Subsequently, or on July 8, 1958, Amos G. Bellis died, a resident of San Antonio, Texas, U.S.A. His will was admitted to probate in the Court of First Instance of Manila on September 15, 1958. The People's Bank and Trust Company, as executor of the will, paid all the bequests therein including the amount of $240,000.00 in the form of shares of stock to Mary E. Mallen and to the three (3) illegitimate children, Amos Bellis, Jr., Maria Cristina Bellis and Miriam Palma Bellis, various amounts totalling P40,000.00 each in satisfaction of their respective legacies, or a total of P120,000.00, which it released from time to time according as the lower court approved and allowed the various motions or petitions filed by the latter three requesting partial advances on account of their respective legacies. On January 8, 1964, preparatory to closing its administration, the executor submitted and filed its "Executor's Final Account, Report of Administration and Project of Partition" wherein it reported, inter alia, the satisfaction of the legacy of Mary E. Mallen by the delivery to her of shares of stock amounting to $240,000.00, and the legacies of Amos Bellis, Jr., Maria Cristina Bellis and Miriam Palma Bellis in the amount of P40,000.00 each or a total of P120.000.00. In the project of partition, the executor pursuant to the "Twelfth" clause of the testator's Last Will and Testament divided the residuary estate into seven equal portions for the benefit of the testator's seven legitimate children by his first and second marriages. On January 17, 1964, Maria Cristina Bellis and Miriam Palma Bellis filed their respective oppositions to the project of partition on the ground that they were deprived of their legitimes as illegitimate children and, therefore, compulsory heirs of the deceased.

Amos Bellis, Jr. interposed no opposition despite notice to him, proof of service of which is evidenced by the registry receipt submitted on April 27, 1964 by the executor. 1 After the parties filed their respective memoranda and other pertinent pleadings, the lower court, on April 30, 1964, issued an order overruling the oppositions and approving the executor's final account, report and administration and project of partition. Relying upon Art. 16 of the Civil Code, it applied the national law of the decedent, which in this case is Texas law, which did not provide for legitimes. Their respective motions for reconsideration having been denied by the lower court on June 11, 1964, oppositors-appellants appealed to this Court to raise the issue of which law must apply Texas law or Philippine law. In this regard, the parties do not submit the case on, nor even discuss, the doctrine of renvoi, applied by this Court in Aznar vs. Christensen Garcia, L16749, January 31, 1963. Said doctrine is usually pertinent where the decedent is a national of one country, and a domicile of another. In the present case, it is not disputed that the decedent was both a national of Texas and a domicile thereof at the time of his death. 2 So that even assuming Texas has a conflict of law rule providing that the domiciliary system (law of the domicile) should govern, the same would not result in a reference back (renvoi) to Philippine law, but would still refer to Texas law. Nonetheless, if Texas has a conflict of law rule adopting the situs theory (lex rei sitae) calling for the application of the law of the place where the properties are situated, renvoi would arise, since the properties here involved are found in the Philippines. In the absence, however, of proof as to the conflict of law rule of Texas, it should not be presumed different from ours. 3 Appellants' position is therefore not rested on the doctrine of renvoi. As stated, they never invoked nor even mentioned it in their arguments. Rather, they argue that their case falls under the circumstances mentioned in the third paragraph of Article 17 in relation to Article 16 of the Civil Code. Article 16, par. 2, and Art. 1039 of the Civil Code, render applicable the national law of the decedent, in intestate or testamentary successions, with regard to four items: (a) the order of succession; (b) the amount of successional rights; (c) the intrinsic validity of the provisions of the will; and (d) the capacity to succeed. They provide that "Art 16.Real property as well as personal property is subject to the law of the country where it is situated. "However", intestate and testamentary successions, both with respect to the order of succession and to the amount of successional rights and to the intrinsic validity of testamentary provisions, shall be regulated by the

national law of the person whose succession is under consideration, whatever may be the nature of the property and regardless of the country wherein said property may be found." "Art. 1039.Capacity to succeed is governed by the law of the nation of the decedent." Appellants would however counter that Article 17, paragraph three, of the Civil Code, stating that "Prohibitive laws concerning persons, their acts or property, and those which have for their object public order, public policy and good customs shall not be rendered ineffective by laws, or judgments promulgated, or by determinations or conventions agreed upon in a foreign country." prevails as the exception to Art. 16, par. 2 of the Civil Code aforequoted. This is not correct. Precisely, Congress deleted the phrase, "notwithstanding the provisions of this and the next preceding article" when they incorporated Art. 11 of the old Civil Code as Art. 17 of the new Civil Code, while reproducing without substantial change the second paragraph of Art. 10 of the old Civil Code as Art. 16 in the new. It must have been their purpose to make the second paragraph of Art. 16 a specific provision in itself which must be applied in testate and intestate successions. As further indication of this legislative intent, Congress added a new provision, under Art. 1039, which decrees that capacity to succeed is to be governed by the national law of the decedent.

The parties admit that the decedent, Amos G. Bellis, was a citizen of the State of Texas, U.S.A., and that under the laws of Texas, there are no forced heirs or legitimes. Accordingly, since the intrinsic validity of the provision of the will and the amount of successional rights are to be determined under Texas law, the Philippine law on legitimes cannot be applied to the testacy of Amos G. Bellis. Wherefore, the order of the probate court is hereby affirmed in toto, with costs against appellant. So ordered. Concepcion, C .J ., Reyes, J .B.L., Dizon, Regala, Makalintal Zaldivar, Sanchez and Castro, JJ., concur. Footnotes 1.He later filed a motion praying that as a legal heir he be included in this case as one of the oppositors-appellants; to file or adopt the opposition of his sisters to the project of partition; to submit his brief after paying his proportionate share in the expenses incurred in the printing of the record on appeal; or to allow him to adopt the briefs filed by his sisters but this Court resolved to deny the motion. 2.San Antonio, Texas, was his legal residence. 3.Lim vs. Collector, 36 Phil. 472; re Testate Estate of Suntay, 95 Phil. 500. FIRST DIVISION

to support petitioner's contention that the motion to withdraw was secured through fraudulent means and that Atty. Franco Loyola was not his counsel of record. The records show that after the filing of the contested motion, the petitioner at a later date, filed a manifestation wherein he confirmed that the Motion to Dismiss Opposition was his voluntary act and deed. Moreover, at the time the motion was filed, the petitioner's former counsel, Atty. Jose P. Lagrosa had long withdrawn from the case and had been substituted by Atty. Franco Loyola who in turn filed the motion. The present petitioner cannot, therefore, maintain that the old man's attorney of record was Atty. Lagrosa at the time of filing the motion. Since the withdrawal was in order, the respondent judge acted correctly in hearing the probate of the will ex-parte, there being no other opposition to the same. 2.ID.; SPECIAL PROCEEDINGS; PROBATE OF WILL; PROBATE COURT, SCOPE OF AUTHORITY. As a general rule, the probate court's authority is limited only to the extrinsic validity of the will, the due execution thereof, the testatrix's testamentary capacity and the compliance with the requisites or solemnities prescribed by law. The intrinsic validity of the will normally comes only after the court has declared that the will has been duly authenticated. However, where practical considerations demand that the intrinsic validity of the will be passed upon, even before it is probated, the court should meet the issue (Maninang, v. Court of Appeals, 114 SCRA 478). 3.CIVIL LAW; WILLS AND SUCCESSION; INTRINSIC VALIDITY OF WILLS GOVERNED BY THE NATIONAL LAW OF THE DECEDENT; CASE AT BAR. It is a settled rule that as regards the intrinsic validity of the provisions of the will, as provided for by Articles 16(2) and 1039 of the Civil Code, the national law of the decedent must apply. In the case at bar, although on its face, the will appeared to have preterited the petitioner and thus, the respondent judge should have denied its probate outright, the private respondents have sufficiently established that Adoracion Campos was, at the time of her death, an American citizen and a permanent resident of Philadelphia, Pennsylvania, U.S.A.. Therefore, the law governing Adoracion Campos' will is the law of Pennsylvania, U.S.A., which is the national law of the decedent. Under the Pennsylvania law, no legitimes are provided for, and all the estate may be given away by the testatrix to a complete stranger. 4.REMEDIAL LAW; SPECIAL PROCEEDINGS; SETTLEMENT OF ESTATE; COURT OF FIRST INSTANCE OF THE PROVINCE WHERE THE ESTATE IS LOCATED HAS JURISDICTION. The settlement of the estate of Adoracion Campos was correctly filed with the Court of First Instance of Manila where she had an estate since it was alleged and proven the Adoracion at the time of her death was a citizen and permanent resident of Pennsylvania, United States of America and not a "usual resident of Cavite" as alleged by the petitioner. 5.ID.; ID.; ID.; ID.; PETITIONER ESTOPPED FROM QUESTIONING JURISDICTION OF COURT IN CASE AT BAR. Petitioner is now estopped

It is therefore evident that whatever public policy or good customs may be involved in our system of legitimes, Congress has not intended to extend the same to the succession of foreign nationals. For it has specifically chosen to leave, inter alia, the amount of successional rights, to the decedent's national Law. Specific provisions must prevail over general ones. Appellants would also point out that the decedent executed two wills one to govern his Texas estate and the other his Philippine estate arguing from this that he intended Philippine law to govern his Philippine estate. Assuming that such was the decedent's intention in executing a separate Philippine will, it would not alter the law, for as this Court ruled in Miciano vs. Brimo, 50 Phil. 867, 870, a provision in a foreigner's will to the effect that his properties shall be distributed in accordance with Philippine law and not with his national law, is illegal and void, for his national law cannot be ignored in regard to those matters that Article 10 now Article 16 of the Civil Code states said national law should govern.

[G.R. No. 54919. May 30, 1984.] POLLY CAYETANO, petitioner, vs. HON. TOMAS T. LEONIDAS, in his capacity as the Presiding Judge of Branch XXXVIII, Court of First Instance of Manila and NENITA CAMPOS PAGUIA, respondents. Ermelo P. Guzman for petitioner. Armando Z. Gonzales for private respondent. SYLLABUS 1.REMEDIAL LAW; SPECIAL CIVIL ACTION; CERTIORARI; GRAVE ABUSE OF DISCRETION; GRANT OF MOTION TO WITHDRAW OPPOSITION TO PROBATE OF WILL IN CASE AT BAR, NOT A CASE OF. We find no grave abuse of discretion on the part of the respondent judge when he allowed withdrawal of petitioner's opposition to the probate of the will. No proof was adduced

from questioning the jurisdiction of the probate court in the petition for relief. It is a settled rule that a party cannot invoke the jurisdiction of a court to secure affirmative relief, against his opponent and after failing to obtain such relief, repudiate or question that same jurisdiction (See Saulog Transit, Inc. v. Hon. Manuel Lazaro, et al., G.R. No. 63284, April 4, 1984). DECISION GUTIERREZ, JR., J p: This is a petition for review on certiorari, seeking to annul the order of the respondent judge of the Court of First Instance of Manila, Branch XXXVIII, which admitted to and allowed the probate of the last will and testament of Adoracion C. Campos, after an ex-parte presentation of evidence by herein private respondent. LLjur On January 31, 1977, Adoracion C. Campos died, leaving her father, petitioner Hermogenes Campos and her sisters, private respondent Nenita C. Paguia, Remedios C. Lopez and Marieta C. Medina as the surviving heirs. As Hermogenes Campos was the only compulsory heir, he executed an Affidavit of Adjudication under Rule 74, Section I of the Rules of Court whereby he adjudicated unto himself the ownership of the entire estate of the deceased Adoracion Campos. Eleven months after, on November 25, 1977, Nenita C. Paguia filed a petition for the reprobate of a will of the deceased, Adoracion Campos, which was allegedly executed in the United States and for her appointment as administratrix of the estate of the deceased testatrix. In her petition, Nenita alleged that the testatrix was an American citizen at the time of her death and was a permanent resident of 4633 Ditman Street, Philadelphia, Pennsylvania, U.S.A.; that the testatrix died in Manila on January 31, 1977 while temporarily residing with her sister at 2167 Leveriza, Malate, Manila; that during her lifetime, the testatrix made her last will and testament on July 10, 1975, according to the laws of Pennsylvania, U.S.A., nominating Wilfredo Barzaga of New Jersey as executor; that after the testatrix' death, her last will and testament was presented, probated, allowed, and registered with the Registry of Wills at the County of Philadelphia, U.S.A., that Clement L. McLaughlin, the administrator who was appointed after Dr. Barzaga had declined and waived his appointment as executor in favor of the former, is also a resident of Philadelphia, U.S.A., and that therefore, there is an urgent need for the appointment of an administratrix to administer and eventually distribute the properties of the estate located in the Philippines. Cdpr On January 11, 1978, an opposition to the reprobate of the will was filed by herein petitioner alleging among other things, that he has every reason to

believe that the will in question is a forgery; that the intrinsic provisions of the will are null and void; and that even if pertinent American laws on intrinsic provisions are invoked, the same could not apply inasmuch as they would work injustice and injury to him. On December 1, 1978, however, the petitioner through his counsel, Atty. Franco Loyola, filed a Motion to Dismiss Opposition (With Waiver of Rights or Interests) stating that he "has been able to verify the veracity thereof (of the will) and now confirms the same to be truly the probated will of his daughter Adoracion." Hence, an ex-parte presentation of evidence for the reprobate of the questioned will was made. On January 10, 1979, the respondent judge issued an order to wit: "At the hearing, it has been satisfactorily established that Adoracion C. Campos, in her lifetime, was a citizen of the United States of America with a permanent residence at 4633 Ditman Street, Philadelphia, PA 19124, (Exhibit D); that when alive, Adoracion C. Campos executed a Last Will and Testament in the county of Philadelphia, Pennsylvania, U.S.A., according to the laws thereat (Exhibits E-3 to E-3-b); that while in temporary sojourn in the Philippines, Adoracion C. Campos died in the City of Manila (Exhibit C) leaving property both in the Philippines and in the United States of America; that the Last Will and Testament of the late Adoracion C. Campos was admitted and granted probate by the Orphan's Court Division of the Court of Common Pleas, the probate court of the Commonwealth of Pennsylvania, County of Philadelphia, U.S.A., and letters of administration were issued in favor of Clement J. McLaughlin, all in accordance with the laws of the said foreign country on procedure and allowance of wills (Exhibits E to E-10); and that the petitioner is not suffering from any disqualification which would render her unfit as administratrix of the estate in the Philippines of the late Adoracion C. Campos. "WHEREFORE, the Last Will and Testament of the late Adoracion C. Campos is hereby admitted to and allowed probate in the Philippines, and Nenita Campos Paguia is hereby appointed Administratrix of the estate of said decedent; let Letters of Administration with the Will annexed issue in favor of said Administratrix upon her filing of a bond in the amount of P5,000.00 conditioned under the provisions of Section I, Rule 81 of the Rules of Court. Another manifestation was filed by the petitioner on April 14, 1979, confirming the withdrawal of his opposition, acknowledging the same to be his voluntary act and deed. On May 25, 1979, Hermogenes Campos filed a petition for relief, praying that the order allowing the will be set aside on the ground that the withdrawal of his opposition to the same was secured through fraudulent means. According to him, the "Motion to Dismiss Opposition" was inserted

among the papers which he signed in connection with two Deeds of Conditional Sales which he executed with the Construction and Development Corporation of the Philippines (CDCP). He also alleged that the lawyer who filed the withdrawal of the opposition was not his counselof-record in the special proceedings case. The petition for relief was set for hearing but the petitioner failed to appear. He made several motions for postponement until the hearing was set on May 29, 1980. On May 18, 1980, petitioner filed another motion entitled "Motion to Vacate and/or Set Aside the Order of January 10, 1979, and/or dismiss the case for lack of jurisdiction. In this motion, the notice of hearing provided:

"Please include this motion in your calendar for hearing on May 29, 1980 at 8:30 in the morning for submission for reconsideration and resolution of the Honorable Court. Until this Motion is resolved, may I also request for the future setting of the case for hearing on the Oppositor's motion to set aside previously filed." The hearing of May 29, 1980 was re-set by the court for June 19, 1980. When the case was called for hearing on this date, the counsel for petitioner tried to argue his motion to vacate instead of adducing evidence in support of the petition for relief. Thus, the respondent judge issued an order dismissing the petition for relief for failure to present evidence in support thereof. Petitioner filed a motion for reconsideration but the same was denied. In the same order, respondent judge also denied the motion to vacate for lack of merit. Hence, this petition. cdll Meanwhile, on June 6, 1982, petitioner Hermogenes Campos died and left a will, which, incidentally has been questioned by the respondent, his children and forced heirs as, on its face patently null and void, and a fabrication, appointing Polly Cayetano as the executrix of his last will and testament. Cayetano, therefore, filed a motion to substitute herself as petitioner in the instant case which was granted by the court on September 13, 1982. A motion to dismiss the petition on the ground that the rights of the petitioner Hermogenes Campos merged upon his death with the rights of the respondent and her sisters, only remaining children and forced heirs was denied on September 12, 1983. Petitioner Cayetano persists with the allegations that the respondent judge acted without or in excess of his jurisdiction when:

"1)He ruled the petitioner lost his standing in court deprived the Right to Notice (sic) upon the filing of the Motion to Dismiss opposition with waiver of rights or interests against the estate of deceased Adoracion C. Campos, thus, paving the way for the ex-parte hearing of the petition for the probate of decedent will. "2)He ruled that petitioner can waive, renounce or repudiate (not made in a public or authenticated instrument), or by way of a petition presented to the court but by way of a motion presented prior to an order for the distribution of the estate the law especially providing that repudiation of an inheritance must be presented, within 30 days after it has issued an order for the distribution of the estate in accordance with the rules of Court. "3)He ruled that the right of a forced heir to his legitime can be divested by a decree admitting a will to probate in which no provision is made for the forced heir in complete disregard of Law of Succession. "4)He denied petitioner's petition for Relief on the ground that no evidence was adduced to support the Petition for Relief when no Notice nor hearing was set to afford petitioner to prove the merit of his petition a denial of the due process and a grave abuse of discretion amounting to lack of jurisdiction. "5)He acquired no jurisdiction over the testate case, the fact that the Testator at the time of death was a usual resident of Dasmarias, Cavite, consequently Cavite Court of First Instance has exclusive jurisdiction over the case (De Borja vs. Tan, G.R. No. L-7792, July 1955)." The first two issues raised by the petitioner are anchored on the allegation that the respondent judge acted with grave abuse of discretion when he allowed the withdrawal of the petitioner's opposition to the reprobate of the will. We find no grave abuse of discretion on the part of the respondent judge. No proof was adduced to support petitioner's contention that the motion to withdraw was secured through fraudulent means and that Atty. Franco Loyola was not his counsel of record. The records show that after the filing of the contested motion, the petitioner at a later date, filed a manifestation wherein he confirmed that the Motion to Dismiss Opposition was his voluntary act and deed. Moreover, at the time the motion was filed, the petitioner's former counsel, Atty. Jose P. Lagrosa had long withdrawn from the case and had been substituted by Atty. Franco Loyola who in turn filed the motion. The present petitioner cannot, therefore, maintain that the old man's attorney of record was Atty. Lagrosa at the time of filing the motion. Since the withdrawal was in order, the respondent judge acted correctly in

hearing the probate of the will ex-parte, there being no other opposition to the same. LLpr The third issue raised deals with the validity of the provisions of the will. As a general rule, the probate court's authority is limited only to the extrinsic validity of the will, the due execution thereof, the testatrix's testamentary capacity and the compliance with the requisites or solemnities prescribed by law. The intrinsic validity of the will normally comes only after the court has declared that the will has been duly authenticated. However, where practical considerations demand that the intrinsic validity of the will be passed upon, even before it is probated, the court should meet the issue. (Maninang v. Court of Appeals, 114 SCRA 478). In the case at bar, the petitioner maintains that since the respondent judge allowed the reprobate of Adoracion's will, Hermogenes C. Campos was divested of his legitime which was reserved by the law for him. This contention is without merit. Although on its face, the will appeared to have preterited the petitioner and thus, the respondent judge should have denied its reprobate outright, the private respondents have sufficiently established that Adoracion was, at the time of her death, an American citizen and a permanent resident of Philadelphia, Pennsylvania, U.S.A. Therefore, under Article 16 par. (2) and 1039 of the Civil Code which respectively provide: Art. 16 par. (2). xxx xxx xxx "However, intestate and testamentary successions, both with respect to the order of succession and to the amount of successional rights and to the intrinsic validity of testamentary provisions, shall be regulated by the national law of the person whose succession is under consideration, whatever may be the nature of the property and regardless of the country wherein said property may be found." Art. 1039. "Capacity to succeed is governed by the law of the nation of the decedent." the law which governs Adoracion Campo's will is the law of Pennsylvania, U.S.A., which is the national law of the decedent. Although the parties admit that the Pennsylvania law does not provide for legitimes and that all the estate may be given away by the testatrix to a complete stranger, the petitioner argues that such law should not apply because it would be

contrary to the sound and established public policy and would run counter to the specific provisions of Philippine Law. It is a settled rule that as regards the intrinsic validity of the provisions of the will, as provided for by Article 16 (2) and 1039 of the Civil Code, the national law of the decedent must apply. This was squarely applied in the case of Bellis v. Bellis (20 SCRA 358) wherein we ruled: "It is therefore evident that whatever public policy or good customs may be involved in our system of legitimes, Congress has not intended to extend the same to the succession of foreign nationals. For it has specifically chosen to leave, inter alia, the amount of successional rights, to the decedent's national law. Specific provisions must prevail over general ones. xxx xxx xxx "The parties admit that the decedent, Amos G. Bellis, was a citizen of the State of Texas, U.S.A., and under the law of Texas, there are no forced heirs or legitimes. Accordingly, since the intrinsic validity of the provision of the will and the amount of successional rights are to be determined under Texas law, the Philippine Law on legitimes cannot be applied to the testacy of Amos G. Bellis." As regards the alleged absence of notice of hearing for the petition for relief, the records will bear the fact that what was repeatedly scheduled for hearing on separate dates until June 19, 1980 was the petitioner's petition for relief and not his motion to vacate the order of January 10, 1979. There is no reason why the petitioner should have been led to believe otherwise. The court even admonished the petitioner's failing to adduce evidence when his petition for relief was repeatedly set for hearing. There was no denial of due process. The fact that he requested "for the future setting of the case for hearing . . ." did not mean that at the next hearing, the motion to vacate would be heard and given preference in lieu of the petition for relief. Furthermore, such request should be embodied in a motion and not in a mere notice of hearing. prcd Finally, we find the contention of the petition as to the issue of jurisdiction utterly devoid of merit. Under Rule 73, Section 1, of the Rules of Court, it is provided that: "SECTION 1.Where estate of deceased persons settled. If the decedent is an inhabitant of the Philippines at the time of his death, whether a citizen or an alien, his will shall be proved, or letters of administration granted, and his estate settled, in the Court of First Instance in the province in which he resided at the time of his death, and if he is an inhabitant of a foreign country, the Court of First Instance of any province in which he had estate. The court first taking cognizance of the settlement of the estate of a

decedent, shall exercise jurisdiction to the exclusion of all other courts. The jurisdiction assumed by a court, so far as it depends on the place of residence of the decedent, or of the location of his estate, shall not be contested in a suit or proceeding, except in an appeal from that court, in the original case, or when the want of jurisdiction appears on the record." Therefore, the settlement of the estate of Adoracion Campos was correctly filed with the Court of First Instance of Manila where she had an estate since it was alleged and proven the Adoracion at the time of her death was a citizen and permanent resident of Pennsylvania, United States of America an not a "usual resident of Cavite" as alleged by the petitioner. Moreover, petitioner is now estopped from questioning the jurisdiction of the probate court in the petition for relief. It is a settled rule that a party cannot invoke the jurisdiction of a court to secure affirmative relief, against his opponent and after failing to obtain such relief, repudiate or question that same jurisdiction. (See Saulog Transit, Inc. v. Hon. Manuel Lazaro, et al., G.R. No. 63284, April 4, 1984). LLphil

GUERRERO, J p: This is an appeal by certiorari from the decision of the Court of Appeals in CA-G.R. Nos. 54492-R and 54493-R which reversed the decision of the Court of First Instance of Albay allowing the probate of the will of Don Jesus Alsua in Special Proceedings No. 699 and dismissing the complaint in Civil Case 3068 after declaring the two deeds of sale executed by Don Jesus Alsua legal and valid. The respondent court 1 denied the probate of the will, declared null and void the two sales subject of the complaint and ordered the defendants, petitioners herein, to pay damages to the plaintiffs, now the private respondents, the sum of Five Thousand Pesos (P5,000.00), to render an accounting of the properties in their possession and to reimburse the latter the net gain in the proportion that appertains to them in the properties from the date of the filing of the complaint up to complete restoration plus Fifty Thousand Pesos (P50,000.00) as attorney's fees and costs. cdll The antecedent events leading to the filing of these two consolidated actions are the following:

properties described in Annex "A" thereto under the following terms and conditions: (Parafo quinto): To Francisca Alsua, married to Joseph O. Betts were allotted or assigned all the real properties with the improvements thereon specifically described from pages 1 12 of said inventory or, 34 parcels of land with a total land area of 5,720,364 sq. meters, with a book or appraised value of P69,740.00. To Pablo Alsua, married to Teresa Locsin were allotted or assigned all the real properties with the improvements thereon specifically described from pages 12 20 of said inventory or, 26 parcels of land with a total land area of 5,679,262 sq. meters, with a book or appraised value of P55,940.00. To Fernando Alsua, married to Clotilde Samson were allotted or assigned all the real properties with the improvements thereon specifically described from pages 20 33 of said inventory or, 47 parcels of land with a total land area of 6,639,810 sq. meters, with a book or appraised value of P89,300.00. To Amparo Alsua, married to Fernando Buenviaje were allotted or assigned all the real properties with the improvements thereon specifically described from pages 33 47 of said inventory or, 47 parcels of land with a total land area of 5,630,715 sq. meters, with a book or appraised value of P58,830.00. (a)Each and every one of the heirs named above acknowledge and admit that the totality of the properties allotted and adjudicated to the heirs as described in the preceding paragraph, constitute one-half of the properties described in Annex "A", including any amount of cash deposited. (b)That all the heirs acknowledge and admit that all the properties assigned to them as their hereditary portion represent one-half not only of the conjugal properties but includes the paraphernal properties waiving now and forever any complaint or claim they have or they may have concerning the amount, value, extension and location of the properties that are allotted to each and everyone. They also waive any claim they have or they may have over the remaining portion of the properties, which spouses reserved for themselves. (c)That in case of death of one of the spouses, each and everyone of the heirs acknowledge that the properties which are left in the possession of the surviving spouse, including any amount in cash, are even less than the one-half that should correspond in absolute ownership as his legitimate participation in the conjugal properties. In consequence they waive any claim that they have or may have over said portion of said properties or any amount in cash during the lifetime of the surviving spouse, including any right or claim they have or they may have over the paraphernal properties of Doa Tinay in the event the surviving spouse is Don Jesus.

WHEREFORE, the petition for certiorari and prohibition is hereby dismissed for lack of merit. SO ORDERED. Melencio-Herrera, Plana, Relova and De la Fuente, JJ ., concur. Teehankee, J ., took no part.

On November 25, 1949, Don Jesus Alsua and his wife, Doa Florentina Ralla, both of Ligao, Albay, together with all their living children, Francisca AlsuaBetts, Pablo Alsua, Fernando Alsua thru this judicial guardian Clotilde Samson, and Amparo Alsua de Buenviaje, entered into a duly notarized agreement, Escritura de Particion Extrajudicial (Exhibit 8), over the then present and existing properties of the spouses Don Jesus and Doa Florentina enumerated in a prepared inventory, Exhibit 8-A, the essential features of which are stated in private respondents' Brief, pp. 26-29, to wit: "(1)Basis of the partition: Inventory (Annex A) of all the properties of the Alsua spouses, which inventory consists of 97 pages, all of them signed by the spouses and all the abovenamed heirs in the left margin of every page (parafo primero). (2)An acknowledgment of the spouses that all the properties described in the inventory (Annex A) are conjugal properties with the exception of five parcels of land identified with the figures of 1 to 5 and 30 shares of San Miguel Brewery stock which are paraphernal properties of the late Doa Tinay (segundo parafo). (3)An acknowledgment that during their marriage, they had nine children but five of them died minors, unmarried (parafo tercero y cuatro). (4)An acknowledgment that on the basis of Article 1056 of the Civil Code (old) to avoid possible misunderstanding among their children concerning the inheritance they are entitled to in the event of death of one of them they have decided to effectuate an extrajudicial partition of all the

[G.R. Nos. L-46430-31. July 30, 1979.] FRANCISCA ALSUA-BETTS, JOSEPH O. BETTS, JOSE MADARETA, ESTEBAN P. RAMIREZ, and THE REGISTER OF DEEDS FOR ALBAY PROVINCE, petitioners, vs. COURT OF APPEALS, AMPARO ALSUA-BUENVIAJE, FERNANDO BUENVIAJE, FERNANDO ALSUA, represented by his guardian, CLOTILDE S. ALSUA and PABLO ALSUA, respondents. Rafael Triumfante for petitioners. Sabido-Sabido & Associates and Madrid Law Office for private respondents. DECISION

(d)The spouses on their part in case of death of any one of them, the surviving spouse waives any claim he or she may have over the properties assigned or adjudicated to the heirs under and by virtue of this deed. The properties which were reserved for them (the spouses) should be considered as his or her legitimate participation in the conjugal properties and the fair compensation of his or her usufruct on the properties that the surviving spouse reserved for himself or herself which shall be distributed in equal shares among the heirs upon his or her death unless said properties of some of them have been disposed of during the lifetime of the surviving spouse. (e)Any heir who may dare question the validity and legitimacy of the provision contained herein shall be under obligation to pay to the other heirs, in the concept of damages and prejudice, the sum of P5,000.00 plus attorney's fees. (f)The provisions of this deed shall bind the successors of the herein heirs. (g)In the event of death of one of the spouses, the properties assigned or adjudicated to each and everyone of the heirs shall be considered as his share or participation in the estate or as his inheritance left by the deceased and each heir shall become the absolute owner of the properties adjudicated to him under this deed. On January 5, 1955, Don Jesus and Doa Florentina, also known as Doa Tinay separately executed their respective holographic wills (Exhs. 6-B and 7-B), the provisions of which were in conformity and in implementation of the extrajudicial partition of November 25, 1949. Their holographic wills similarly provided for the institution of the other to his or her share in the conjugal properties, the other half of the conjugal assets having been partitioned to constitute their legitime among their four living children in the Extrajudicial Partition of 1949. The wills also declared that in the event of future acquisitions of other properties by either of them, one-half thereof would belong to the other spouse, and the other half shall be divided equally among the four children. The holographic will of Doa Tinay written in Spanish reads, as translated: "TESTAMENT I, FLORENTINA R. DE ALSUA, 67 years old, Filipina, married to Don Jesus Alsua, resident of and with postal address in the Municipality of Ligao, Province of Albay, Philippines, being in the full possession of my mental and physical faculties freely and spontaneously execute this my last will and testament in my handwriting and signed by me and expressed in the Spanish language which I speak, write and understand, this 5th day of January, 1955 in the Municipality of Ligao, Province of Albay, and in which I ordain and provide:

"First: That in or about the year 1906 I was married to my husband Don Jesus Alsua and begot nine (9) children with him, four (4) of whom are still living and they are Francisca Alsua, Pablo Alsua, Fernando Alsua and Amparo Alsua. The other five (5) died during their minority, single and without children. "Second: That after my marriage to my husband Don Jesus Alsua and during our conjugal union, and as a result of our efforts and industry, we were able to acquire conjugal properties consisting of abaca (abales) and cacao lands and urban lands registered in the office of the Registry of Property of the Province of Albay and in the City of Manila. "Third: That I institute as my heirs with right to inherit the following: my spouse Don Jesus Alsua, one-half (1/2) of my properties, real and personal, and the other half, to my children Francisca Alsua, married to Joseph O. Betts, Pablo Alsua, Fernando Alsua, married to Clotilde Samson, and Amparo Alsua, married to Fernando Buenviaje, in equal parts. It is to be understood, however, that the other half that corresponds as legitime to my above named children have already been given to them, pursuant to a document dated November 25, 1949 and ratified on the same day. month and year before Notary Public Segundo G. Flores (Reg. No. 525; Pag. 15; Lib. II; Series of 1949) enjoining each and everyone of them to respect and faithfully comply with each and every clause contained in the said document.

As previously stated, Don Jesus Alsua executed a separate but similar holographic will on the same day, Jan. 5, 1955 in exactly the same terms and conditions as the above will of his wife. On May 21, 1956, the spouses Don Jesus and Doa Tinay filed before the Court of First Instance of Albay their respective petitions for the probate of their respective holographic wills which were docketed as Special Proceedings No. 484 (Jesus Alsua, Petitioner) and Special Proceedings No. 485 (Doa Florentina Ralla de Alsua, Petitioner). On August 14, 1956, the spouses Don Jesus and Doa Tinay executed their mutual and reciprocal codicils amending and supplementing their respective holographic wills. Again, the codicils similarly acknowledged and provided that one-half of all the properties of the spouses, conjugal and paraphernal, had been disposed of, conveyed to and partitioned among their legitimate heirs in the "Escritura de Particion" of November 25, 1949, but that they reserved for themselves (the spouses Don Jesus and Doa Tinay) the other half or those not disposed of to the said legitimate heirs under the above agreement of partition, and that they mutually and reciprocally bequeathed unto each other their participation therein as well as in all properties which might be acquired subsequently. Each spouse also declared that should she or he be the surviving spouse, whatever belongs to him or her or would pertain to him or her, would be divided equally among the four children. It was also declared in both codicils that upon the death of either of the spouses, the surviving spouse was designated mutually and reciprocally as the executor or administrator of all the properties reserved for themselves. cdrep The codicil executed by Doa Tinay written in Spanish reads, as translated: "CODICIL This codicil supplements and amends the preceding testament. That my spouse and I have agreed to divide the properties which we have acquired into 2 parts. The 1/2 that would correspond to me covers all the properties that I have partitioned among my children in the Document of Partition dated November 25, 1949 before Notary Public Segundo G. Flores, Jr. (Doc. No. 525; Pag. No. 15; Lib. No. II; Series of 1949) (and) even as the properties which by reason of this testament I leave to my husband as his share and the other half that corresponds to my husband constitutes all the properties that up to now have not been disposed of, particularly the urban lands situated in Legaspi, Albay, Ligao of the Province of Albay and in the City of Manila, with the exception of that portion that I bequeath to my husband as his inheritance and his legitimate. That I institute as my heirs with the right to inherit my husband Don Jesus Alsua and my children Francisca Alsua, Pablo Alsua, Fernando Alsua and

"Fourth: That should I acquire new properties after the execution of this testament, the same shall be partitioned among my spouse and above named children or the children mentioned in above par. 3 in the same proportion, that is, one-half (1 1/2) to my spouse; and the other half to my children in equal parts. "Fifth: That I name as my executor my husband Don Jesus Alsua without having to post any bond. IN VIRTUE WHEREOF, I hereby sign in my own handwriting this testament on this 5th day of January, 1955 in the Municipality of Ligao, Province of Albay, Philippines. (SGD.) FLORENTINA R. DE ALSUA" (Joint Record on Appeal, pp. 420-423, CA-G.R. No. 54492-R)

Amparo Alsua. I leave to my aforecited children all the properties described in the above mentioned Document of Partition dated November 25, 1949 which correspond to each one of them and in the profits (fruits) expressed in the same, and in the event that the properties granted to one or any of my children should exceed in quantity or value those corresponding to another or others, I hereby declare that it is my will that the same be divided among my children as their inheritance from the free portion of my property. I leave to my spouse Don Jesus Alsua as his legitime and as his inheritance the part of the free portion of my property which have not been allocated in favor of my children in the Document of Partition aforecited and that which should exceed 1/2 of the conjugal property of gains that pertains to him as above stated, including all those properties which we shall acquire after the execution of this document. In case it should be God's will that I survive my spouse, I hereby declare that it is my will that any and all kinds of property that pertain to me or would pertain to me, which have not been disposed of pursuant to the partition, should be divided equally among my above-mentioned heirs after my death. Ligao, Albay, Philippines, August 14, 1956. (SGD.) FLORENTINA RALLA DE ALSUA" (Joint Record on Appeal, pp. 423-425, CA-G.R. No. 54492-R) And as stated previously, on the same day, August 14, 1956, Don Jesus executed also a separate but similar codicil in exactly the same terms and conditions as the above codicil of his wife. Also on the same day of August 14, 1956, the spouses Don Jesus and Doa Tinay both filed their respective supplemental petitions for the probate of their respective codicils in the probate proceedings earlier filed. On February 19, 1957, their respective holographic wills and the codicils thereto were duly admitted to probate. Upon the death of Doa Tinay on October 2, 1959, Don Jesus was named executor to serve without bond in an order issued by the probate court on October 13, 1959. Letters testamentary having been issued in favor of Don Jesus, he took his oath of office and performed his duties as such until July 1, 1960. Thereafter in the early part of November, 1959, Don Jesus cancelled his holographic will in the presence of his bookkeeper and secretary, Esteban P. Ramirez, whom he instructed to make a list of all his remaining properties with their corresponding descriptions. His lawyer, Atty. Gregorio Imperial,

Sr. was then instructed to draft a new will which was duly signed by Don Jesus and his attesting witnesses on November 14, 1959 at his home in Ligao, Albay. This notarial will and testament (Exh. A) of Don Jesus executed on November 14, 1959 had three essential features: (a) it expressly cancelled, revoked and annulled all the provisions of Don Jesus' holographic will of January 5, 1955 and his codicil of August 14, 1956; (b) it provided for the collation of all his properties donated to his four living children by virtue of the "Escritura de Particion Extrajudicial" of 1949, and that such properties be taken into account in the partition of his estate among the children; and (c) it instituted his children as legatees/devisees of certain specific properties, and as to the rest of the properties and whatever may be subsequently acquired in the future, before his death, were to be given to Francisca and Pablo, naming Francisca as executrix to serve without a bond. LLpr After all debts, funeral charges and other expenses of the estate of Doa Tinay had been paid, all her heirs including Don Jesus, submitted to the probate court for approval a deed of partition executed on December 19, 1959 (Exh. 7-Q) and which essentially confirmed the provisions of the partition of 1949, the holographic will and codicil of Doa Tinay. On July 6, 1960, the court approved the partition of 1959 and on January 6, 1961 declared the termination of the proceedings on the estate of Doa Tinay. On May 6, 1964, Don Jesus Alsua died. On May 20, 1964, petitioner herein Francisca Alsua Betts, as the executrix named in the will of November 14, 1959, filed a petition for the probate of said new will of Don Jesus Alsua before the Court of First Instance of Albay and was docketed as Special Proceedings No. 699. Oppositions thereto were filed by Pablo, Amparo and Fernando, thru his judicial guardian Clotilde Samson, on the following grounds: (a) that Don Jesus was not of sound and disposing mind at the time of the execution of the alleged will; (b) that the will was executed under duress or influence of fear or threats; or it was procured by undue and improper pressure and influence on the part of the main beneficiaries and of person or persons in collusion with them, or the signature of the testator was secured by or thru fraud; (c) that the will was not executed according to the formal requirements of the law; and (d) that the alleged will subject of probate contravened the Extrajudicial Partition of 1949 agreed upon by him, his deceased spouse, Doa Tinay, and all his children, Francisca, Pablo, Amparo and Fernando thru his judicial guardian Clotilde Samson, and also contravened Don Jesus' own probated holographic will and codicil of 1955 and 1956, respectively, essentially confirming and implementing the said partition of 1949 which had already been partially executed by all the signatories thereto in the partition of the estate of Doa Tinay in December, 1959. LLphil On the basis of Francisca's designation as executrix in the new will dated November 14, 1959, the Probate Court appointed her Administratrix of the

estate of her late father, Don Jesus Alsua. She then filed with the Probate Court an inventory of the properties of the estate which, according to the oppositors therein (the private respondents now) did not include some properties appearing in the agreement of November 25. 1949 or in the inventory attached thereto as Annex "A" and in the "Escritura de Particion" of December 19, 1959 as belonging to or should pertain to Don Jesus. According to the oppositors, these properties consist of thirty-three (33) premium agricultural lots with a total land area of 1,187,970 square meters, or approximately 119 hectares and with a total assessed value of P48,410.00 or a probable total market value of P238,000,00 at only P2,000.00 per hectare, and four (4) commercial urban lots ideally located in the business section of Legazpi City including the lot and the building presently occupied by the well-known "Mayon Hotel" with an assessed value of approximately P117,260.00 or a probable market value at the time of P469,040.00. It appearing from the new will that these properties were bequeathed to Pablo Alsua and Francisca Alsua-Betts, specifically, 3 parcels of the 33 agricultural lands to Pablo and the rest to Francisca, the oppositors also raised in issue the non-inclusion of said properties in the inventory of the estate of their late father. In answer, Francisca claimed ownership over the same, alleging that she bought the properties from their father and presenting the two Deeds of Sale now being assailed, one dated August 26, 1961 purporting to show the sale of the 33 parcels of agricultural land to Francisca by their father for the price of P70,000.00 and the other dated November 26, 1962 evidencing the sale of the four urban lots for the sum of P80,000.00. Claiming fraud in the sales, the oppositors filed Civil Case No. 3068, seeking the annulment of the aforesaid two deeds of sale, with damages, which upon agreement of the parties was then jointly heard and tried with Special Proceedings No. 699 for probate of the Last Will and Testament of Don Jesus executed on November 14, 1959.

After a joint hearing of the merits of these two cases, the Court of First Instance of Albay promulgated a decision on January 15, 1973, the dispositive portion of which states: "WHEREFORE, in view of all the foregoing, judgment is hereby rendered, to wit: 1.In Special Proceedings 699, the Court hereby APPROVES and ALLOWS the Will executed by Don Jesus Alsua at Ligao, Albay, on November 14, 1959, which had been marked as Exhibit A, consisting of nine (9) pages, and orders that the same be made the basis for division and distribution of the estate of said testator; 2.In Civil Case 3068, the Court hereby dismisses the complaint and holds that the sale on August 26, 1961 (Exh. U) and the sale on November 26,

1962 (Exh. W), are lawful and valid sales and accordingly conveyed title to the VENDEE thereof. The Plaintiffs in Civil Case 3068, are ordered jointly and severally to pay to the defendant, Francisca Alsua Betts Fifty Thousand Pesos (P50,000 00) as damages and Fifty Thousand (P50,000.00) Pesos for attorney's fees or a total of One Hundred Thousand Pesos (P100,000.00) and to pay the costs." On appeal by herein respondents to the Court of Appeals, the court reversed the appealed decision in a judgment rendered on April 4, 1977, the dispositive portion of which states, as translated, thus "IN VIEW OF THE FOREGOING, this Tribunal finds itself constrained to set aside as it hereby sets aside the decision appealed from in the following manner: (1) in Special Proceedings 699, the probate of the will, Exh. A, is hereby denied; (2) in Civil Case No. 3068, Exhs. U and W and the titles issued on the basis thereof are hereby declared null and void, ordering the appellees Francisca Alsua and Joseph Betts to pay to the plaintiffs in the concept of fixed damages, the sum of P5,000.00 and to render an accounting of properties in their possession and to reimburse the plaintiffs the net gain, in the proportion that appertains to them in the properties subject of litigation in Civil Case No. 3068 from the date of the filing of this complaint, up to the complete restoration of the properties pertaining to (plaintiffs) pursuant to Article 2208 of the New Civil Code, paragraph 11, ordering them in addition to pay to the plaintiffs and oppositors the sum of P50,000.00 as attorney's fees, and the costs." Hence, the petition at bar assailing the respondent court's decision on four assigned errors, to wit: I.The respondent Court of Appeals erred in not affirming the findings of the probate court (Special Proceedings No. 699) that private respondents, oppositors to the probate of the will, are in estoppel to question the competence of testator Don Jesus Alsua. II.The respondent Court of Appeals grossly erred in holding that testator Don Jesus Alsua cannot revoke his previous will. III.The respondent court's finding is grounded entirely on speculation, surmises or conjectures resulting in a gross misapprehension of facts. IV.The respondent court grossly erred in annulling the sales of August 26, 1961 (Exh. U), and of November 26, 1962 (Exh. W). On the first issue of estoppel raised in the assignment of errors, We hold that the same is of no moment. The controversy as to the competency or incompetency of Don Jesus Alsua to execute his will cannot be determined

by acts of the herein private respondents as oppositors to the will in formally agreeing in writing jointly with the petitioner Francisca Alsua de Betts that their father, Don Jesus Alsua, be appointed by the court executor of the will of their mother in Special Proceedings No. 485, Testate Estate of Doa Florentina Ralla de Alsua and in subsequently petitioning the court not to require Don Jesus Alsua to file any accounting as executor in the proceedings, which petitioners claim and was upheld by the trial court as constituting estoppel on the part of the private respondents from questioning the competence of Don Jesus Alsua. The principle of estoppel is not applicable in probate proceedings, a ruling laid down in the case of Testate Estate of the Late Procopia Apostol. Benedicta Obispo, et al vs. Remedios Obispo, 50 O.G. 614, penned by Justice J.B.L. Reyes, an eminent and recognized authority on Civil Law when he was still in the Court of Appeals, and We quote: "Finally, probate proceedings involve public interest, and the application therein of the rule of estoppel, when it will block the ascertainment of the truth as to the circumstances surrounding the execution of a testament, would seem inimical to public policy. Over and above the interest of private parties is that of the state to see that testamentary dispositions be carried out if, and only if, executed conformably to law. The Supreme Court of New York aptly said in Re Canfield's Will, 300 N.Y.S., 502: "The primary purpose of the proceeding is not to establish the existence of the right of any living person, but to determine whether or not the decedent has performed the acts specified by the pertinent statutes, which are the essential prerequisites to personal direction of the mode of devolution of his property on death. There is no legal but merely a moral duty resting upon a proponent to attempt to validate the wishes of the departed, and he may and frequently does receive no personal benefit from the performance of the act. One of the most fundamental conceptions of probate law, is that it is the duty of the court to effectuate, in so far as may be compatible with the public interest, the devolutionary wishes of a deceased person (Matter of Watson's Will, 262 N.Y., 284, 294, 186, N.E., 787; Matter of Marriman's Estate, 124 Misc. 320, 325, 208, N.Y.S., 672; Foley, S., affirmed 217 app. Div., 733, 216 N.Y.S., 126, Henderson, S., Matter of Draske's Estate, 160 Misc. 587, 593, 290, N.Y.S., 581). To that end, the court is, in effect, an additional party to every litigation affecting the disposal of the assets of the deceased. Matter of Van Valkenburgh's Estate, 164 Misc. 295, 298, N.Y.S., 219.'"

The next issue that commands Our attention is whether the respondent court erred in not allowing the probate of the last will and testament of Don Jesus Alsua. Petitioners claim that the disallowance was based on speculations, surmises or conjectures, disregarding the facts as found by the trial court. The Civil Court is very clear and explicit in providing the cases where a will may be disallowed under Article 839 which provides as follows: "Art. 839.The will shall be disallowed in any of the following cases: (1)If the formalities required by law have not been complied with; (2)If the testator was insane, or otherwise mentally incapable of making a will, at the time of its execution; (3)If it was executed through force or under duress, or the influence of fear, or threats; (4)If it was procured by undue and improper pressure and influence, on the part of the beneficiary or of some other person; (5)If the signature of the testator was procured by fraud; (6)If the testator acted by mistake or did not intend that the instrument he signed should be his will at the time of affixing his signature thereto." The issue under consideration appears to Us to have been answered by the respondent court itself when it accepted the findings of the trial court on the due execution of the questioned will and testament of Don Jesus, declaring: ". . . and going back to the previous question, whether the questioned will and testament of November 14, 1959, Exh. A. was executed in accordance with Arts. 805-809 of the New Civil Code, this Tribunal from the very beginning accepts the findings of the inferior court concerning the question, On October 2, 1959, Doa Florentina died at Ligao, Albay. About 2 weeks after said death of his wife, Don Jesus Alsua decided to make a new will, thereby revoking and cancelling his previous holographic will which he made on January 5, 1955 and also its codicil dated August 14, 1956. In the presence of his bookkeeper and secretary, Esteban P. Ramirez, he crossed out in ink each and every page of said page he wrote on each page the word "cancelado", and affixed his signature thereon (Exh. V-5, V-6, consecutively up to and including Exh. V-14). He then instructed Ramirez to make a list of all his properties with their corresponding descriptions.

Meanwhile, Don Jesus Alsua sent for his lawyer, Don Gregorio Imperial, Sr. and the latter came accompanied by his son, Atty. Jorge S. Imperial, who, incidentally, is now a judge of the Court of First Instance of Naga City, Camarines Sur. Don Jesus informed his lawyers that he wanted to make a new will, and accordingly gave more detailed instructions as to how he wanted to divide his properties among his four children. He handed to them a list and on the left he indicated the name of the child to whom the listed properties shall pertain. Atty. Jorge Imperial took notes of the instructions of Don Jesus Alsua. To Don Jesus, Spanish is his major language, as in fact his conversations with Don Gregorio are always in Spanish. A few days before November 14, 1959, Atty. Jorge S. Imperial showed to Don Jesus the semi-final draft of the will and after reading it Don Jesus said that it was as directed by him, and after making a few minor corrections, he instructed Atty. Jorge S. Imperial to put the will in final form. He further told Atty. Jorge Imperial that the signing of the will should be at his home in Ligao, in the morning of November 14 1959, and that the witnesses should be Mr. Ramon Balana, the then Register of Deeds of Albay; Mr. Jose Madarieta who is a friend of the family; and Mr. Jose Gaya who is a sort of employee of Don Jesus. Thus in the morning of November 14, 1959, Don Gregorio and Atty. Jorge S. Imperial, riding in a sedan, stopped at the Legaspi residence of Mr. Ramon Balana, and informed the latter that Don Jesus was requesting him to be one of the attesting witnesses to his will. Mr. Balana, having a very high regard for Don Jesus, considered it an honor to be so asked, and gladly went with the Imperials. They arrived at the residence of Don Jesus at Ligao; Albay, almost ten o'clock of that morning, and they were ushered in by Mr. Jose Gaya and the latter requested them to be seated at the usual receiving room on the ground floor while he announced their arrival to Don Jesus who was on the second floor. Soon Don Jesus came down, carrying with him the will to be signed placed inside a cartolina folder. He greeted Don Gregorio, Mr. Balan, and Atty. Imperial and immediately joined them in conversation. Mr. Gaya called for Mr. Jose Madarieta, whose residence is just across the road from the house of Don Jesus. Mr. Madarieta was already informed by Don Jesus himself about the fact of signing the will that morning, and so, on being advised by Mr. Gaya that the Imperials had already arrived, Madarieta proceeded to the residence of Don Jesus, without much delay. With the coming of Madarieta and the coming back of Gaya, there were now six people gathered in the living room, namely: Don Jesus Alsua, Don Gregorio Imperial, Atty. Jorge S. Imperial, Mr. Ramon Balana, Mr. Jose Madarieta, and Mr. Jose Gaya. All the witnesses who testified for the petitioner declared that Don Jesus was in bright and lively conversation which ran from problems of farming and the merits of Frenchmade wines. At 11:00 o'clock, Don Gregorio made a remark that it is about time to do what they were there for, and this was followed by a more or less statement from Jesus, who said:

'Precisamente es por lo que he llamado a ustedes que esten presentes para ser testigos de mi ultimo voluntad y testamento que ha sido preparado por el abogado Sr. Gregorio Imperial segun mis instrucciones cuyo documento tengo aqui conmigo y encuentro que, despues de lo he leido, esta satisfactoriamente hecho segun mis instrucciones, Como saben ustedes tengo cuatro (4) hijos todos ellos.' (pp. 43-44, t.s.n., hearing of December 7, 1967, Sarte'. On request of Don Jesus, all of them moved to the big round table on another part of the same sala for convenience in signing because there were chairs all around this table. The will which consisted of nine pages, with a duplicate, and triplicate was laid on the round table and the signing began, with Atty. Jorge S. Imperial assisting each person signing by indicating the proper place where the signature shall be written. Don Jesus, as testator, signed first. After signing the original and the two other sets, the three sets were then passed to Mr. Ramon Balana who signed as attesting witness. After Mr. Balana, Mr. Jose Madarieta signed next as another attesting witness, and when Mr. Madarieta finished signing all the three sets, the same were passed to Mr. Jose Gaya who also signed as the third attesting witness. On each of the three sets, Don Jesus signed ten times, one on the margin of each of the nine pages, and at the end of the instrument proper. Each of the three attesting witnesses (Balana, Madarieta and Gaya) signed eleven times on each set, one on the margin of each of the nine pages, one at the end of the instrument proper and one below the attestation clause. The original will was marked as Exh. A (or set A); the duplicate as Exh. K (or set K) and the triplicate of Don Jesus, Mr. Balana, Mr. Madarieta, and Mr. Gaya were identified by Mr. Balana, Mr. Madarieta and Atty. (now Judge) Imperial. It was also clearly established that when Don Jesus signed the will, Mr. Balana, Mr. Madarieta, and Mr. Gaya were present and witnessed said signing, and that when each of these three witnesses was signing, Don Jesus and the two other attesting witnesses were present and witnessing said signing. The signing by the testator and the attesting witnesses having been completed, Atty. Jorge S. Imperial, as Notary Public with commission for the entire province of Albay, notarized the will, and sealed it with his notarial seal, which seal he brought along that morning. After all the three sets were notarized, they were all given back to Don Jesus who placed them inside the same folder. At that moment, it was already about 12:30 P.M. and Don Jesus invited all of them to lunch, which invitation was gladly accepted by all of them. (pp. 474-480, Joint Record on Appeal in CA-G.R. No. 54492-R). which findings are supported by the evidence, it is quite difficult to conclude that the same had not complied with the requirements of Arts. 804-806 of the New Civil Code. . . ." (CA Decision, pp. 13-16, as translated). This cited portion of the appealed decision accepts as a fact that the findings of the lower court declaring the contested will as having been executed with all the formal requirements of a valid will, are supported by

the evidence. This finding is conclusive upon this Tribunal and We cannot alter, review or revise the same. Hence, there is no further need for Us to dwell on the matter as both the lower court and the respondent appellate court have declared that these are the facts and such facts are fully borne and supported by the records. We find no error in the conclusion arrived at that the contested will was duly executed in accordance with law. We rule that the questioned last will and testament of Don Jesus Alsua fully complied with the formal requirements of the law. LLphil Respondent court, however, denied probate of the will after "noting certain details which were a little bit difficult to reconcile with the ordinary course of things and of life." First was the fact that the spouses Don Jesus and Doa Tinay together with their four children Francisca, Pablo, Amparo and Fernando had executed the Extrajudicial Partition of November 25, 1949 (Exh. A) which divided the conjugal properties of the spouses between the spouses themselves and the children under the terms and conditions and dispositions hereinbefore stated and to implement its provisions, Don Jesus and Doa Tinay subsequently executed separately their respective holographic wills both dated January 5, 1955 and codicils dated August 14, 1956 with the same terms and conditions as reproduced herein earlier. Both holographic wills and codicils having been probated thereafter and upon the death of Doa Tinay, Don Jesus was appointed executor of the will and in due time the partition of the properties or estate of Doa Tinay was approved by the probate court on July 6, 1960. llcd The respondent court ruled that the Extrajudicial Partition of November 25, 1949 was an enforceable contract which was binding on Don Jesus Alsua as the surviving spouse, barring him from violating said partition agreement, barring him from revoking his holographic will of January 5, 1955 and his codicil of August 14, 1956, and further barring him from executing his new will and testament of November 14, 1959, now the subject of the probate proceedings elevated to this Court. We do not agree with this ruling of the Court of Appeals. We hold that the Extrajudicial Partition of November 25, 1949 is null and void under Article 1056 in relation to Article 1271 of the old Civil Code which are applicable hereto. These Articles provide as follows: "Art 1056.If the testator should make a partition of his property by an act inter vivos, or by will, such partition shall stand in so far as it does not prejudice the legitime of the forced heirs. . . ." "Art. 1271.All things, even future ones, which are not excluded from the commerce of man, may be the subject-matter of contracts.

Nevertheless, no contract may be entered into with respect to future inheritances, except those the object of which is to make a division inter vivos of an estate, in accordance with Article 1056. All services not contrary to law or to good morals may also be the subjectmatter of contract." Article 1056 specifically uses the word "testator" from which the clear intent of the law may be deduced that the privilege of partitioning one's estate by acts inter vivos is restricted only to one who has made a prior will or testament. In other words, Article 1056 being an exception cannot be given a wider scope as to include in the exception any person whether he has made a will or not. Respondent court citing the same Article concluded that under both the old and new Civil Code, a person who executes a will is permitted at the same time or a little thereafter or even before as long as he mentions this fact in the will, to partition his properties pursuant to the provisions of Article 1056 of the old Civil Code. The court further added that jurisprudence is to the effect that the partition presupposes the execution of the will that it ratifies or effectuates, citing the case of Legasto vs. Verzosa, 54 Phil. 776. Finally, respondent court held the opinion that the extrajudicial partition of November 14, 1949 was ratified in the holographic will executed by Don Jesus on Jan. 5, 1955 and in the codicil of August 14, 1956. Again, We do not agree with this ruling of the respondent court. In Legasto vs. Verzosa, supra, the Supreme Court categorically declared the necessity of a prior will before the testator can partition his properties among his heirs, and We quote the pertinent portions of the decision: "The first question to decide in the instant appeal is whether the partition made by Sabina Almadin of her property among her nieces the defendants and appellants herein, was valid and enforceable. Article 1056 of the Civil Code provides: 'Art. 1056.If the testator should make a partition of his property by an act inter vivos, or by will, such partition shall stand in so far as it does not prejudice the legitime of the forced heirs. The Supreme Court of Spain, in a decision rendered on June 13, 1903, laid down the following doctrine: 'Considering that the language of article 1056 cannot be interpreted to mean that a person may, by acts inter vivos, partition his property referred to in the section wherein said article is found, without the authority of a

testament containing an expression of his last will, or the authority of law, for, otherwise, a partition thus made would be tantamount to making a will in a manner not provided for, authorized, nor included in the chapter referring to testaments, and especially, to the forms thereof, which is entirely different from the legal consequences of a free disposition made by parents during their lifetime, whereby they give to their children the whole or a part of their property; 'Considering that, inasmuch as the second paragraph of article 1271 makes reference to the aforesaid article, in providing that no contracts may be entered into with respect to future inheritances except those the object of which is to make a division inter vivos of the estate in accordance with article 1056, it is evident that said difference likewise leads to the conclusion that a partition thus made should be on the basis of a testamentary or legal succession and should be made in conformity with the fundamental rules thereof and the order of the heirs entitled to the estate, because neither of the two provisions could be given a wider meaning or scope than that they simply provide for the division of the estate during the lifetime of the owner, which, otherwise, would have to be done upon the death of the testator in order to carry into effect the partition of the estate among the persons interested.' Manresa comments on the same article as follows: 'A distinction must be made between the disposition of property and its division; and the provision of article 1056 authorizing the testator to dispose of his property by acts inter vivos or by last will, must be understood in accordance with this distinction. The idea is to divide the estate among the heirs designated by the testator. This designation constitutes the disposition of the properties to take effect after his death, and said act must necessarily appear in the testament because it is the expression of the testator's last will and must be surrounded by appropriate formalities. Then comes the second part, to wit, the division in conformity with that disposition, and the testator may make this division in the same will or in another will, or by an act inter vivos. With these words, the law, in article 1056 as well as in article 1057, which we shall hereafter examine, makes allusion to the forms or manner of making the partition and not to the effects thereof, which means that, for purposes of partition the formal solemnities which must accompany every testament or last will are not necessary. Neither is it necessary to observe the special formalities required in case of donations, because it is not a matter of disposing gratuitously of properties, but of dividing those which already have been legally disposed of.'

It is thus seen that both the Spanish Supreme Court and the learned and authoritative commentator, Manresa, are of opinion that a testator may, by an act inter vivos, partition his property, but he must first make a will with all the formalities provided for by law. And it could not be otherwise, for without a will there can be no testator; when the law, therefore, speaks of the partition inter vivos made by a testator of his property, it necessarily refers to that property which he has devised to his heirs. A person who disposes of his property gratis inter vivos is not called a testator, but a donor. In employing the word "testator," the law evidently desired to distinguish between one who freely donates his property in life and one who disposes of it by will to take effect after his death." We are not in conformity with the holding of the respondent court that the extrajudicial partition of November 25, 1949 which under the old Civil Code was expressly prohibited as against public policy had been validly ratified by the holographic will of Don Jesus executed on January 5, 1955 and his codicil of August 14, 1956. Such a holding of the appellate court that a person who executes a will is permitted to partition his properties pursuant to the provisions of Article 1056 of the old Civil Code even before executing his will as long as he mentions this fact in the will, is not warranted under the ruling of Legasto vs. Verzosa, supra and the commentary of Manresa as quoted above. We rule, therefore, that the respondent court erred in denying probate to the will of Don Jesus dated November 14, 1959; it erred in holding that Don Jesus being a party to the extrajudicial partition of 1949 was contractually bound by the provisions thereof and hence could not revoke his participation therein by the simple expedience of making a new will with contrary provisions or dispositions. It is an error because the socalled extrajudicial partition of 1949 is void and inoperative as a partition; neither is it a valid or enforceable contract because it involved future inheritance; it may only be given effect as a donation inter vivos of specific properties to the heirs made by the parents. cdll Considering that the document, the extrajudicial partition of November 25, 1949, contained specific designation of properties allotted to each child, We rule that there was substantial compliance with the rules on donations inter vivos under the old Civil Code (Article 633). On the other hand, there could have been no valid donation to the children of the other half reserved as the free portion of Don Jesus and Doa Tinay which, as stated in the deed, was to be divided equally among the children for the simple reason that the property or properties were not specifically described in the public instrument, an essential requirement under Article 633 which provides as follows: "Art. 633.In order that a donation or real property be valid it must be made by public instrument in which the property donated must be specifically described and in the amount of the encumbrances to be assumed by the donee expressed.

The acceptance must be made in the deed of gift or in a separate public writing; but it shall produce no effect if not made during the lifetime of the donor. If the acceptance is made by separate public instrument, authentic notice thereof shall be given the donor, and this proceeding shall be noted in both instruments. This other half, therefore, remained as the disposable free portion of the spouses which may be disposed of in such manner that either of the spouses would like in regards to his or her share in such portion, unencumbered by the provision enjoining the last surviving spouse to give equally to the children what belongs or would pertain to him or her. The end result, therefore, is that Don Jesus and Doa Tinay, in the Deed of 1949, made to their children valid donations of only one-half of their combined properties which must be charged against their legitime and cannot anymore be revoked unless inofficious; the other half remained entirely at the free disposal of the spouses with regards to their respective shares. Upon the death of Doa Tinay on October 2, 1959, her share in the free portion was distributed in accordance with her holographic will dated January 25, 1955 and her codicil dated August 14, 1956. It must be stressed here that the distribution of her properties was subject to her holographic will and codicil, independently of the holographic will and codicil of Don Jesus executed by him on the same date. This is fundamental because otherwise, to consider both wills and codicils jointly would be to circumvent the prohibition of the Civil Code on joint wills (Art. 818) and secondly because upon the death of Doa Tinay, only her estate was being settled, and not that of Don Jesus. We have carefully examined the provisions of the holographic will and codicil of Doa Tinay and We find no indication whatsoever that Doa Tinay expressly or impliedly instituted both the husband and her children as heirs to her free portion of her share in the conjugal assets. In her holographic will, mention of her children as heirs was made in the fourth clause but it only provided that, to wit: "Cuatro.Que si yo adquieriese nuevase propiedades despues de otorgado ests mi testamento seran las mismas repartados entre mi esposo o hijos arriba mencionada en el parrafo tercero su la misma proporcion o sea: la mitad (1/2) para mis esposa; y la otra mitad (1/2) para mis hijos en partes iguales." For purposes of clarity and convenience, this fourth clause provided that "Should I acquire new properties after the execution of this testament, the same shall be partitioned among my spouse and above named children or the children mentioned in above par. 3 in the same proportion, that is, one-

half (1/2) to my spouse; and the other half to my children in equal parts." From the above-quoted provision, the children would only inherit together with Don Jesus whatever new properties Doa Tinay would acquire after the execution of her will. LLpr Likewise, the codicil of Doa Tinay instituted her husband as sole heir to her share in the free portion of the conjugal assets, and We quote that part of the codicil: "Dejo a mi esposo Jesus Alsua como su legitima y como herencia que se sacara de mi cuenta de libre disposicion todos aquellos bienes de los que no he dispuesto aun en favor de mis hijos en la escritura de reparticion precitada y que excedieran de la mitad de gananciales que le corresponde tal como arriba declaro, incluyendo todos aquellos bienes que se adquiriesen por nosotros despues de otorgado por mi este testamento. "Para el caso de que Dios dispusiera que yo sobreviviera a mi esposo declaro que es mi voluntad que todas las propiedades de todo genero que me pertenecen y me pudieran pertenecer, no dispuestas aun en la reparticion, se dividan por igual entre mis herederos mencionados despues de mi muerte." Again for purposes of clarity and convenience, the above portion states: "I leave to my spouse Don Jesus Alsua as his legitime and as his inheritance the part of the free portion of my property which have not been allocated in favor of my children in the Document of Partition aforecited and that which should exceed 1/2 of the conjugal property of gains that pertains to him as above stated, including all those properties which we shall acquire after the execution of this document. In case it should be God's will that I survive my spouse, I hereby declare that it is my will that any and all kinds of property that pertains to me or would pertain to me which have not been disposed of pursuant to the partition, should be divided equally among my above-mentioned heirs after my death." The children, therefore, would only receive equal shares in the remaining estate of Doa Tinay in the event that she should be the surviving spouse. To stress the point, Doa Tinay did not oblige her husband to give equally to the children, upon his death, all such properties she was bequeathing him. Considering now the efficacy of Don Jesus' last will and testament executed on November 14, 1959 in view of Our holding that Doa Tinay's will and codicil did not stipulate that Don Jesus will bestow the properties equally to the children, it follows that all the properties of Doa Tinay bequeathed to

Don Jesus under her holographic will and codicil became part of Don Jesus' estate unburdened by any condition, obligation or proviso. Respondents insist that Don Jesus was bound by the extrajudicial partition of November 25, 1949 and had in fact conformed to said partition by making a holographic will and codicil with exactly the same provisions as those of Doa Tinay, which respondent court sustained. We rule, however, that Don Jesus was not forever bound thereby for his previous holographic will and codicil as such, would remain revokable at his discretion. Art. 828 of the new Civil Code is clear: "A will may be revoked by the testator at any time before his death. Any waiver or restriction of this right is void." There can be no restriction that may be made on his absolute freedom to revoke his holographic will and codicil previously made. This would still hold true even if such previous will had as in the case at bar already been probated. (Palacios v. Palacios, 106 Phil. 739). For in the first place, probate only authenticates the will and does not pass upon the efficacy of the dispositions therein. And secondly, the rights to the succession are transmitted only from the moment of the death of the decedent (Article 777, New Civil Code). In fine, Don Jesus retained the liberty of disposing of his property before his death to whomsoever he chose, provided the legitime of the forced heirs are not prejudiced, which is not herein claimed for it is undisputed that only the free portion of the whole Alsua estate is being contested. prcd After clearly establishing that only Don Jesus was named as sole heir instituted to the remaining estate of Doa Tinay in her holographic will and codicil resulting in all such properties becoming the properties of Don Jesus alone, and after clearly pointing out that Don Jesus can, in law, revoke his previous holographic will and codicil, by making another will expressly cancelling and revoking the former, the next issue for the Court's resolution is the validity of the provisions of the contested will. Though the law and jurisprudence are clear that only questions about the extrinsic validity of the will may be entertained by the probate court, the Court had, on more than one occasion, passed upon the intrinsic validity of a will even before it had been authenticated. Thus We declared in Nuguid v. Nuguid, 17 SCRA 499:

"The parties shunted aside the question of whether or not the will should be allowed to probate. For them, the meat of the case is the intrinsic validity of the will. Normally this comes only after the court has declared that the will has been duly authenticated. . . . ". . . If the case were to be remanded for probate of the will, nothing will be gained. On the contrary, this litigation will be protracted and for ought that appears in the record, in the event of probate or if the court rejects the will,

probability exists that the case will come up once again before us on the same issue of the intrinsic validity or nullity of the will. Result: waste of time, effort, expense, plus added anxiety. These are the practical considerations that induce us to a belief that we might as well meet headon the issue of the validity of the provisions of the will in question. . . ." The last Will and Testament of Don Jesus executed on November 14, 1959 contained an express revocation of his holographic will of January 5, 1955 and the codicil of August 14, 1956; a statement requiring that all of his properties donated to his children in the Deed of 1949 be collated and taken into account in the partition of his estate; the institution of all his children as devisees and legatees to certain specific properties; a statement bequeathing the rest of his properties and all that may be acquired in the future, before his death, to Pablo and Francisca; and a statement naming Francisca as executrix without bond. Considering these testamentary provisions, a close scrutiny of the properties distributed to the children under the Deed of 1949 and those distributed under the contested will of Don Jesus does not show that the former had in fact been included in the latter. This being so, it must be presumed that the intention of Don Jesus in his last will was not to revoke the donations already made in the Deed of 1949 but only to redistribute his remaining estate, or that portion of the conjugal assets totally left to his free disposal and that which he received as his inheritance from Doa Tinay. The legitimes of the forced heirs were left unimpaired, as in fact, not one of said forced heirs claimed or intimated otherwise. The properties that were disposed of in the contested will belonged wholly to Don Jesus Alsua's free portion and may be disposed of by him to whomsoever he may choose. LLpr If he now favored Francisca more, as claimed by private respondents, or Pablo as in fact he was, We cannot and may not sit in judgment upon the motives and sentiments of Don Jesus in doing so. We have clearly laid down this rule in Bustamante v. Arevalo, 73 Phil. 635, to wit: ". . . nevertheless it would be venturesome for the court to advance its own idea of a just distribution of the property in the face of a different mode of disposition so clearly expressed by the testatrix in the latter will. . . . It would be a dangerous precedent to strain the interpretation of a will in order to effect what the court believes to be an equitable division of the estate of a deceased person. The only functions of the courts in these cases is to carry out the intention of the deceased as manifested in the will. Once that intention has been determined through a careful reading of the will or wills, and provided the law on legitimes has not been violated, it is beyond the place of judicial cognizance to inquire into the fairness or unfairness of any devise or bequest. The court should not sit in judgment upon the motives and sentiments of the testatrix, first, because as already stated,

nothing in the law restrained her from disposing of her property in any manner she desired, and secondly, because there are no adequate means of ascertaining the inward process of her conscience. She was the sole judge of her own attitude toward those who expected her bounty. . . ." Respondent court, in trying to rationalize the will of Don Jesus which allegedly benefited and favored the petitioner to the prejudice of the other heirs who would have been entitled to an equal share under the extrajudicial partition of 1949, faced two alternatives-one, to consider Don Jesus as a man of culture and honor and would not allow himself to violate the previous agreement, and the other as one whose mental faculties or his possession of the same had been diminished considering that when the will was executed, he was already 84 years of age and in view of his weakness and advanced age, the actual administration of his properties had been left to his assistant Madarieta who, for his part received instructions from Francisca and her husband, Joseph Betts. According to the court, the better explanation is the latter, which is not legally tenable. Under Article 799 of the New Civil Code which provides as follows: "Art. 799.To be of sound mind, it is not necessary that the testator be in full possession of all his reasoning faculties, or that his mind be wholly unbroken, unimpaired, or unshattered by disease, injury or other cause. It shall be sufficient if the testator was able at the time of making the will to know the nature of the estate to be disposed of, the proper objects of his bounty, and the character of the testamentary act," The test of testamentary capacity is at the time of the making of the will. Mere weakness of mind or partial imbecility from disease of body or from age does not render a person incapable of making a will. "Between the highest degree of soundness of mind and memory which unquestionably carries with it full testamentary capacity, and that degrees of mental aberration generally known as insanity or idiocy, there are numberless degrees of mental capacity or incapacity and while on one hand it has been held that mere weakness of mind, or partial imbecility from disease of body, or from age, will not render a person incapable of making a will; a weak or feebleminded person may make a valid will, provided he has understanding and memory sufficient to enable him to know what he is about to do and how or to whom he is disposing of his property. To constitute a sound and disposing mind, it is not necessary that the mind be unbroken or unimpaired or unshattered by disease or otherwise. It has been held that testamentary incapacity does not necessarily require that a person shall actually be insane or of unsound mind." (Bugnao vs. Ubag, 14 Phil. 163)

The Civil Code itself provides under Article 798 that in order to make a will, it is essential that the testator be of sound mind at the time of its execution, and under Article 800, the law presumes that every person is of sound mind in the absence of proof to the contrary. In the case at bar, the acceptance by the respondent court of the findings of fact of the trial court on the due execution of the last will and testament of Don Jesus has foreclosed any and all claim to the contrary that the will was not executed in accordance with the requirements of the law. But more than that, gleaned from the quoted portions of the appealed decision, the described behavior of Don Jesus is not that of a mentally incapacitated person nor one suffering from "senile dementia" as claimed by private respondents. From these accepted facts, We find that: (a) it was Don Jesus himself who gave detailed instructions to his lawyer as to how he wanted to divide his properties among his children by means of a list of his properties should pertain; (b) the semi-final draft of the contested will prepared by his lawyer was even corrected by Don Jesus; (c) on the day of the signing of the will at his house in Ligao, "Don Jesus was in bright and lively spirits . . ., leading in the conversation which ran from problems of farming and the merits of French-made wines"; (d) the signing of the will by Don Jesus and his attesting witnesses was made after a statement from Don Jesus of the purpose of their meeting or gathering, to wit: "Precisamente es por lo que he llamado a ustedes que esten presentes para ser testigos de mi ultima voluntad y testamento que ha sido preparado por el abogado Sr. Gregorio Imperial segun mis instrucciones cuyo documento tengo aqui con migo y encuentro que, despues de lo he leido, esta satisfactoriamente hecho segun mis instrucciones, Como saben ustedes tengo cuatro (4) hijos todos ellos." Clearly then, Don Jesus knew exactly what his actions were and the full implications thereof. In rejecting probate of the will, respondent court further pointed out other details which, in the words of the decision "are a little bit difficult to reconcile with the ordinary course of things and of life" such as the fact that Don Jesus had sought the probate of his will of January 5, 1955 and his codicil of August 14, 1956 during his lifetime but insofar as the will of November 14, 1959 is concerned, he had no intention of seeking the probate thereof during his lifetime, the alleged redundant and unnecessary proceedings undertaken by Don Jesus in selling the properties under question to petitioner Francisca Alsua-Betts when the same properties had already been bequeathed to her in the will of November 14, 1959 and that "nothing, absolutely nothing, could be made the basis for finding that Don Jesus Alsua had regarded his other children with less favor, and that he was more sympathetic to Francisca so as to disregard or forget the former depriving them of benefits already given to them and rewarding the latter with disproportionate advantages or benefits, to such an extreme as to

violate his previous disposition consecrated in the previous extrajudicial partition, Exh. 8." We agree with the petitioner that these details which respondent court found difficult to reconcile with the ordinary course of things and of life are mere conjectures, surmises or speculations which, however, do not warrant or justify disallowance of the probate of the will of Don Jesus. The fact that Don Jesus did not cause his will to be probated during his lifetime while his previous holographic will and codicil were duly probated when he was still alive is a mere speculation which depends entirely on the discretion of Don Jesus as the testator. The law does not require that a will be probated during the lifetime of the testator and for not doing so there cannot arise any favorable or unfavorable consequence therefrom. The parties cannot correctly guess or surmise the motives of the testator and neither can the courts. Such surmise, speculation or conjecture is no valid and legal ground to reject allowance or disallowance of the will. The same thing can be said as to whatever reason Don Jesus had for selling the properties to his daughter Francisca when he had already assigned the same properties to her in his will. While We can speculate that Don Jesus desired to have possession of the properties transferred to Francisca after the sale instead of waiting for his death may be a reasonable explanation or speculation for the act of the testator and yet there is no certainty that such was actually the reason. This is as good a conjecture as the respondents may offer or as difficult to accept which respondent court believes. A conjecture is always a conjecture; it can never be admitted as evidence. LLpr

made by the Court of Appeals. These are exceptions to the general rule, where We have reviewed and revised the findings of fact of the Court of Appeals. Among the exceptions to the rule that findings of fact by the Court of Appeals cannot be reviewed on appeals by certiorari are: 1.When the conclusion is a finding grounded entirely on speculation, surmises or conjectures (Joaquin vs. Navarro, 93 Phil. 257); 2.When the inference made is manifestly mistaken, absurd or impossible (Luna vs. Linatok, 74 Phil. 15); 3.Where there is a grave abuse of discretion (Buyco vs. People, 51 OG 2927); 4.When the judgment is based on a misapprehension of facts (Cruz vs. Sosing, L-4875, Nov. 27, 1953); 5.When the findings of fact are conflicting (Casica vs. Villaseca, L-9590, April 30, 1957); and 6.When the Court of Appeals, in making its findings, went beyond the issues of the case and the same is contrary to the admissions of both appellant and appellee (Evangelista vs. Alto Surety & Ins. Co., L-11139, April 23, 1958; Ramos vs. Pepsi Cola, L-22533, Feb. 9, 1967, 19 SCRA 289). In the case at bar, We find and so declare that the respondent court's conclusion as to the nullity of the contested sales was not supported by the evidence on record and adduced during the trial. Evident from the records are the following documentary evidence: (1) Exhibit U, a deed of sale over agricultural lands executed on August 26, 1961 by Don Jesus in favor of Francisca for the consideration of Seventy Thousand Pesos (P70,000.00), which document bears the signature of Don Jesus, not assailed as a forgery, and the signature of Pablo Alsua as an instrumental witness, again not assailed as a forgery nor alleged as done thru fraud, force or threat. (2) Exhibit "W", a deed of sale over urban lots executed on November 26, 1962 for the consideration of Eighty Thousand Pesos (P80,000.00), which document also bears the signature of Don Jesus, also admittedly not a forgery. (3) Exhibit "F", a document dated August 26, 1961 and signed by Don Jesus and Pablo Alsua as witness, acknowledging receipt of a Bank of Philippine Island Check No. 0252 in the amount of Seventy Thousand Pesos (P70,000.00) for the sale of 33 parcels of agricultural land to Francisca under the same date; again, Pablo did not deny the genuineness of his signature. (4) Exhibit "X", a Bank of the Philippine Islands Check No. D-6979 dated November 26, 1962, in the amount of P32,644.71, drawn and signed by Francisca, payable to Don

Jesus. (5) Exhibit "X-1", a second Bank of Philippine Islands Check (No. D6980) also dated November 26, 1962 in the amount of P47,355.29, drawn by Francisca and payable to Don Jesus. (6) Exhibit "X-3 " and "X-5", endorsements on the back of the last two checks by Don Jesus, again, his signatures thereon were not assailed. (7) Exhibit "A" (in the annulment case), a Bureau of Internal Revenue Receipt (No. 2347260) dated November 29, 1962 with a notation acknowledging the receipt of BPI Check No. D6980 in the amount of P47,355.29 from Don Jesus Alsua in payment of Balance of Transfer of Tax Ass. No. EA-35415-19 plus interest. We are convinced and satisfied from this array of documentary evidence that in fact, Don Jesus sold the subject properties to his daughter, Francisca for the total consideration of P150,000.00. prcd The claim of the private respondents that the sales were fictitious and void for being without cause or consideration is as weak and flimsy as the ground upon which the respondent court upheld said claim on the basis that there was no need for funds in Don Jesus' old age aside from the speculation that there was nothing in the evidence that showed what motivated Don Jesus to change his mind as to favor Francisca and discriminate against the other children. The two contracts of sale executed by Don Jesus in favor of Francisca are evidenced by Exhibits "U" and "W", the genuineness of which were not at all assailed at any time during this long drawn-out litigation of 15 years standing. That the consideration stated in the contracts were paid is also sufficiently proved as the receipts thereof by Don Jesus were even signed by one of the private respondents, Pablo Alsua, as a witness. The latter cannot now deny the payment of the consideration. And even if he now allege that in fact no transfer of money was involved, We find his allegation belied by Exhibits "X-3" and "X-5", which show that the checks of Francisca made payable to Don Jesus were in fact given to Don Jesus as he endorsed them on the back thereof, and most specifically Exhibit "A" in the annulment case, which proved that Don Jesus actually used Exhibit "X-1" to complete payment on the estate and inheritance tax on the estate of his wife to the Bureau of Internal Revenue. Cdpr Private respondents further insist that the sales were fraudulent because of the inadequacy of the given price. Inadequacy of consideration does not vitiate a contract unless it is proven, which in the case at bar was not, that there was fraud, mistake or undue influence. (Article 1355, New Civil Code). We do not find the stipulated price as so inadequate to shock the court's conscience, considering that the price paid was much higher than the assessed value of the subject properties and considering that the sales were effected by a father to her daughter in which case filial love must be taken into account. WHEREFORE, IN VIEW OF THE FOREGOING, the decision appealed from is hereby set aside. The decision of the Court of First Instance of Albay in

Now, the annulment case. The only issue raised anent the civil case for annulment of the two Deeds of Sale executed by and between Don Jesus and petitioner Francisca is their validity or nullity. Private respondents mainly contend that the sales were fictitious or simulated, there having been no actual consideration paid. They further insist that the issue raised is a question of fact and, therefore, not reviewable in a certiorari proceeding before the Supreme Court. On the other hand, petitioners herein maintain that it was error for the respondent court to set aside on appeal the factual findings of the trial court that the two sales were valid. It is true that the jurisprudence of this Court in cases brought to Us from the Court of Appeals is limited to reviewing and revising the errors of law imputed to it, its findings of fact being conclusive; and this same principle applies even if the Court of Appeals was in disagreement with the lower court as to the weight of evidence with a consequent reversal of its findings of fact. But what should not be ignored by lawyers and litigants alike is the more basic principle that the "findings of fact" described as "final" or "conclusive" are those borne out by the record or those which are based upon substantial evidence. The general rule laid down by the Supreme Court does not declare the absolute correctness of all the findings of fact

Special Proceedings No. 699 and Civil Case No. 3068 is hereby reinstated, with costs against respondents. SO ORDERED. [G.R. No. L-37453. May 25, 1979] RIZALINA GABRIEL GONZALES, petitioner, vs. HONORABLE COURT OF APPEALS and LUTGARDA SANTIAGO, respondents. Francisco D. Rilloraza, Jr. for petitioners. Angel A. Sison for private respondent. SYNOPSIS Isabel Gabriel executed a 5-page will two months prior to her death. The signatures of the deceased appear at the end of the will and at the left margin of all the pages. The signatures of the three attesting witnesses appear at the bottom of the attestation clause and on the left margin of all the other pages. The will named private respondent as universal heir and executor, and gave legacies in specified amounts to certain persons including the petitioner herein. The petition for the probate of the will filed by private respondent was opposed by petitioner. The trial court disallowed the will on the grounds that the will of the deceased was not executed and attested as required by law and that the document presented for probate is not the purported will allegedly dictated by the deceased, executed and signed by her, and attested by the three attesting witnesses. Respondent appealed. The Court of Appeals, upon consideration of the evidence, reversed the trial court's decision and allowed the probate of the will. In this petition for review, petitioner assigned ten errors which are substantially factual in character and content. Affirming the decision of the Court of Appeals, the Supreme Court held that the factual finding of the Court of Appeals are not reviewable and are binding upon the Supreme Court. SYLLABUS 1.APPEAL; FACTUAL FINDINGS OF THE COURT OF APPEALS ARE NOT REVIEWABLE. The factual findings of the Court of Appeals are not reviewable the same being binding and conclusive on the Supreme Court, particularly where the premises are borne by the record or based upon substantial evidence. Assignments of errors involving factual issues cannot be ventilated in a review of the decision of the Court of Appeals because only legal question may be raised.

2.WILLS; ATTESTING WITNESSES; QUALIFICATIONS. Under the law, there is no mandatory requirement that the witnesses testify initially at any time during the trial as to his good standing in the community, his reputation for trustworthiness and reliability, his honesty and uprightness in order that his testimony may be believed and accepted by the trial court. It is enough that the qualifications enumerated in Article 820 of the Civil Code are complied with, such that the soundness of his mind can be shown by or deduced from his answers to the questions propounded to him, that his age (18 years or more) is shown from his appearance, testimony, or competently proved otherwise, as well as the fact that he is not blind, deaf or dumb and that he is able to read and write to the satisfaction of the court, and that he has none of the disqualifications under Article 821 of the Civil Code. 3.ID.; ATTESTING WITNESSES ARE NOT CHARACTER WITNESSES. The instrumental witnesses are not character witnesses for they merely attest the execution of a will or testament and affirm the formalities attendant to said execution. The rulings concerning character witnesses in naturalization proceedings are not applicable to instrumental witnesses to wills executed under the Civil Code. 4.ID.; ID.; CREDIBLE WITNESSES MEAN COMPETENT WITNESSES. "Credible witnesses" mean competent witnesses and not those who testify to facts from or upon hearsay. In the strict sense, the competency of a person to be an instrumental witness to a will is determined by the statute, that is Art. 820 and 821, Civil Code, whereas his credibility depends on the appreciation of his testimony and arises from the belief and conclusion of the court that said witness is telling the truth. It is not necessary to introduce prior and independent proof of the fact that the witnesses are "credible witnesses", that is, that they have a good standing in the community and reputed to be trustworthy and reliable. 5.ID.; NOTARIAL WILLS, NATURE OF. A notarial will duly acknowledged by the testatrix and the witnesses before a notary public is a public document executed and attested through the intervention of the notary public and as such public document is evidence of the facts in clear, unequivocal manner therein expressed. It has in its favor the presumption of regularity. To contradict all these, there must be evidence that is clear, convincing the more than merely preponderant. 6.ID.; ATTESTATION CLAUSE. The attestation clause which the attesting witness signed is the best evidence as to date of signing because it preserves in permanent form a recital of all the material facts attending the execution of the will. This is the very purpose of the attestation clause which is made for the purpose of preserving in permanent form, a record of the facts attending the execution of the will, so that in case of failure in the memory of the subscribing witnesses, or other casualty they may still be proved.

7.ID.; EVIDENCE; WITNESSES; PHOTOGRAPHER NOT REQUIRED FOR EXECUTION OF WILL. The law does not require a photographer for the execution and attestation of the will. The fact that an attesting witness mistakenly identified the photographer scarcely detracts from her testimony that she was present when the will was signed because what matters here is not the photographer but the photograph taken which clearly portrays the attesting witnesses and her co-witnesses. 8.ID.; ID.; MINOR INCONSISTENCIES. The discrepancy in the description of the typewriter used by the notary which he described as "elate" which to him meant big letters which are of the type in which the will was typewritten but which was identified by an experts as "pica", and the mistake by the instrumental witness in mentioning the name of the photographer-these are unimportant details which could have been affected by the lapse of time and the treachery of human memory such as by themselves would not alter the probative value of the testimonies of the witnesses on the true execution of the will, for it cannot be expected that the testimony of every person will be identical and coinciding with each other with regard to details in an incident and that witnesses are not expected to remember all details. 9.APPEAL; FINDING OF FACT OF TRIAL COURT. The right of the Court of Appeals to review, alter and reverse the findings of the trial court where the appellate court, in reviewing the evidence has found that facts and circumstances of weight and influence have been ignored and overlooked and the significance of which have been misinterpreted by the trial court, cannot be disputed. Find of facts made by the trial court, particularly when they are based on conflicting evidence whose evaluation hinges on questions of credibility of contending witnesses lies particularly within the province of trial courts and generally, the appellate court should not interfere with the same, unless the trial court has overlooked and misinterpreted the facts and circumstances established in the record. 10.ID.; ID.; EXCEPTION TO THE RULE THAT JUDGMENT OF COURT OF APPEALS IS CONCLUSIVE AS TO FACTS. Among the exceptions to the rule that the judgment of the Court of Appeals is conclusive as to the facts and cannot be reviewed by the Supreme Court are: (1) when the conclusion as a finding grounded entirely on speculations, surmises or conjectures; (2) when the inference is manifestly mistaken, absurd or impossible; (3) when there is a grave abuse of discretion; (4) when the judgment is based on a misapprehension of facts; (5) when the findings of facts are conflicting; (6) when the Court of Appeals, in making its findings, went beyond the issues of the case and the same is contrary to the admissions of both appellant and appellee. 11.WILLS; DUE EXECUTION. Where the tree instrumental witnesses, who constitute the best evidence of the will-making, as well as the lawyer who prepared it and who thereafter notarized it have testified in favor of the

will, and where all of them are disinterested witnesses who stand to received no benefit from the testament, and the signatures of the witnesses and the testatrix have been identified on the will and there is no claim whatsoever and by any one, much less the petitioner that they are not genuine, the decision holding that the will was executed in accordance with the formalities required by law should be affirmed. DECISION GUERRERO, J p: This is a petition for review of the decision of the Court of Appeals, First Division, 1 promulgated on May 4, 1973 in CA-G. R. No. 36523-R which reversed the decision of the Court of First Instance of Rizal dated December 15, 1964 and allowed the probate of the last will and testament of the deceased Isabel Gabriel. It appears that on June 24, 1961, herein private respondent Lutgarda Santiago filed a petition with the Court of First Instance of Rizal docketed as Special Proceedings No. 3617, for the probate of a will alleged to have been executed by the deceased Isabel Gabriel and designating therein petitioner as the principal beneficiary and executrix. There is no dispute in the records that the late Isabel Andres Gabriel died as a widow and without issue in the municipality of Navotas, province of Rizal her place of residence, on June 7, 1961 at the age of eighty-five (85), having been born in 1876. It is likewise not controverted that herein private respondent Lutgarda Santiago and petitioner Rizalina Gabriel Gonzales are nieces of the deceased, and that private respondent, with her husband and children, lived with the deceased at the latter's residence prior and up to the time of her death. The will submitted for probate, Exhibit "F", which is typewritten and in Tagalog, appears to have been executed in Manila on the 15th day of April, 1961, or barely two (2) months prior to the death of Isabel Gabriel. It consists of five (5) pages, including the pages whereon the attestation clause and the acknowledgment of the notary public were written. The signatures of the deceased Isabel Gabriel appear at the end of the will on page four and at the left margin of all the pages. The attestation clause, which is found on page four, reads as follows:

"Kaming mga nakalagdang mga saksi o testigo na ang aming mga tinitirahan ay nakasulat sa gawing kanan at kahilira ng aming mga pangalan sa ibaba nito, ay pagpapatutuo na ipinakilala, ipinaalam at ipinahayag sa amin ni Isabel Gabriel na ang kasulatang ito na binubuo ng Limang Dahon (Five Pages) pati na ang dahong ito, na siya niyang TESTAMENTO AT HULING HABILIN, ngayong ika 15 ng Abril, 1961, ay nilagdaan ng nasabing testadora na si Isabel Gabriel ang nasabing testamento sa ibaba o ilalim ng kasulatan na nasa ika apat na dahon (page four) at nasa itaas ng patunay naming ito, at sa kaliwang panig ng lahat at bawat dahon (and on the left hand margin of each and every page), sa harap ng lahat at bawat isa sa amin, at kami namang mga saksi ay lumagda sa harap ng nasabing testadora, at sa harap ng lahat at bawat isa sa amin, sa ilalim ng patunay ng mga saksi at sa kaliwang panig ng lahat at bawa't dahon ng testamentong ito." At the bottom thereof, under the heading "Pangalan", are written the signatures of Matilde D. Orobia, Celso D. Gimpaya and Maria R. Gimpaya, and opposite the same, under the heading "Tirahan", are their respective places of residence, 961 Highway 54, Philamlife, for Miss Orobia, and 12 Dagala St., Navotas, Rizal, for the two Gimpayas. Their signatures also appear on the left margin of all the other pages. The will is paged by typewritten words as follows: "Unang Dahon" and underneath "(Page One)", "Ikalawang Dahon" and underneath "(Page Two)", etc., appearing at the top of each page. prLL The will itself provides that the testatrix desired to be buried in the Catholic Cemetery of Navotas, Rizal in accordance with the rites of the Roman Catholic Church, all expenses to be paid from her estate; that all her obligations, if any, be paid; that legacies in specified amounts be given to her sister, Praxides Gabriel Vda. de Santiago, her brother Santiago Gabriel, and her nephews and nieces, Benjamin, Salud, Rizalina (herein petitioner), Victoria, Ester, Andres, all surnamed Gabriel, and Evangelina, Rudyardo, Rosa, Andrea, Marcial, Numancia, Verena, all surnamed Santiago. The herein private respondent Lutgarda Santiago, who was described in the will by the testatrix as "aking mahal na pamangkin na aking pinalaki, inalagaan at minahal na katulad ng isang tunay na anak" and named as universal heir and executor, were bequeathed all properties and estate, real or personal, already acquired, or to be acquired, in her (testatrix's) name, after satisfying the expenses, debts and legacies as aforementioned. The petition was opposed by Rizalina Gabriel Gonzales, herein petitioner, assailing the document purporting to be the will of the deceased on the following grounds: 1.that the same is not genuine; and in the alternative

3.that, at the time of the alleged execution of the purported will, the decedent lacked testamentary capacity due to old age and sickness; and in the second alternative 4.that the purported will was procured through undue and improper pressure and influence on the part of the principal beneficiary, and/or of some other person for her benefit. Lutgarda Santiago filed her Answer to the Opposition on February 1, 1962. After trial the court a quo rendered judgment, the summary and dispositive portions of which read: "Passing in summary upon the grounds advanced by the oppositor, this Court finds: "1.That there is no iota of evidence to support the contention that the purported will of the deceased was procured through undue and improper pressure and influence on the part of the petitioner, or of some other person for her benefit; "2.That there is insufficient evidence to sustain the contention that at the time of the alleged execution of the purported will, the deceased lacked testamentary capacity due to old age and sickness; "3.That sufficient and abundant evidence warrants conclusively the fact that the purported will of the deceased was not executed and attested as required by law; "4.That the evidence is likewise conclusive that the document presented for probate, Exhibit 'F' is not the purported will allegedly dictated by the deceased, executed and signed by her, and attested by her three attesting witnesses on April 15, 1961. "WHEREFORE, Exhibit 'F', the document presented for probate as the last will and testament of the deceased Isabel Gabriel, is hereby DISALLOWED." From this judgment of disallowance, Lutgarda Santiago appealed to respondent Court, hence, the only issue decided on appeal was whether or not the will in question was executed and attested as required by law. The Court of Appeals, upon consideration of the evidence adduced by both parties, rendered the decision now under review, holing that the will in question was signed and executed by the deceased Isabel Gabriel on April 15, 1961 in the presence of the three attesting witnesses, Matilde Orobia, Celso Gimpaya and Maria Gimpaya, signing and witnessing the document in the presence of the deceased and of each other as required by law, 2 hence allowed probate.

"PATUNAY NG MGA SAKSI 2.that the same was not executed and attested as required by law;

Oppositor Rizalina Gabriel Gonzales moved for reconsideration 3 of the aforesaid decision and such motion was opposed 4 by petitioner-appellant Lutgarda Santiago. Thereafter, parties submitted their respective Memoranda, 5 and on August 28, 1973, respondent Court, Former Special First Division, by Resolution 6 denied the motion for reconsideration stating that: "The oppositor-appellee contends that the preponderance of evidence shows that the supposed last will and testament of Isabel Gabriel was not executed in accordance with law because the same was signed on several occasions, that the testatrix did not sign the will in the presence of all the instrumental witnesses did not sign the will in the presence of each other. "The resolution of the factual issue raised in the motion for reconsideration hinges on the appreciation of the evidence. We have carefully re-examined the oral and documentary evidence of record. There is no reason to alter the findings of fact in the decision of this Court sought to be set aside. 7 In her petition before this Court, oppositor Rizalina Gabriel Gonzales contends that respondent Court abused its discretion and/or acted without or in excess of its jurisdiction in reversing the findings of fact and conclusions of the trial court. The Court, after deliberating on the petition but without giving due course resolved, in the Resolution dated Oct. 11, 1973 to require the respondents to comment thereon, which comment was filed on Nov. 14, 1973. Upon consideration of the allegations, the issues raised and the arguments adduced in the petition, as well as the Comment 8 of private respondent thereon, We denied the petition by Resolution on November 26, 1973, 9 the question raised being factual and for insufficient showing that the findings of fact by respondent Court were unsupported by substantial evidence. Subsequently, or on December 17, 1973, petitioner Rizalina Gabriel Gonzales filed a Motion for Reconsideration 10 which private respondent answered by way of her Comment or Opposition 11 filed on January 15, 1974. A Reply and Rejoinder to Reply followed. Finally, on March 27, 1974, We resolved to give due course to the petition. The petitioner in her brief makes the following assignment of errors: I.The respondent Court of Appeals erred in holding that the document, Exhibit "F" was executed and attested as required by law when there was absolutely no proof that the three instrumental witnesses were credible witnesses. II.The Court of Appeals erred in reversing the finding of the lower court that the preparation and execution of the will Exhibit "F", was unexpected and coincidental.

III.The Court of Appeals erred in finding that Atty. Paraiso was not previously furnished with the names and residence certificates of the witnesses as to enable him to type such data into the document Exhibit "F". IV.The Court of Appeals erred in holding that the fact that the three typewritten lines under the typewritten words "Pangalan" and "Tinitirahan" were left blank shows beyond cavil that the three attesting witnesses were all present in the same occasion. V.The Court of Appeals erred in reversing the trial court's finding that it was incredible that Isabel Gabriel could have dictated the will, Exhibit "F", without any note or document, to Atty. Paraiso. VI.The Court of Appeals erred in reversing the finding of the trial court that Matilde Orubia was not physically present when the will, Exhibit "F" was allegedly signed on April 15, 1961 by the deceased Isabel Gabriel and the other witnesses Celso Gimpaya and Maria Gimpaya. VII.The Court of Appeals erred in holding that the trial court gave undue importance to the picture takings as proof that the will was improperly executed. VIII.The Court of Appeals erred in holding that the grave contradictions, evasions, and misrepresentations of witnesses (subscribing and notary) presented by the petitioner had been explained away, and that the trial court erred in rejecting said testimonies. IX.The Court of Appeals acted in excess of its appellate jurisdiction or has so far departed from the accepted and usual course of judicial proceedings, as to call for an exercise of the power of supervision. X.The Court of Appeals erred in reversing the decision of the trial court and admitting to probate Exhibit "F", the alleged last will and testament of the deceased Isabel Gabriel. It will be noted from the above assignments of errors that the same are substantially factual in character and content. Hence, at the very outset, We must again state the oft-repeated and well-established rule that in this jurisdiction, the factual findings of the Court of Appeals are not reviewable, the same being binding and conclusive on this Court. This rule has been stated and reiterated in a long line of cases enumerated in Chan vs. CA (L27488, June 30, 1970, 33 SCRA 737, 743) 12 and Tapas vs. CA (L-22202, February 27; 1976, 69 SCRA 393), 13 and in the more recent cases of Baptista vs. Carillo and CA (L-32192, July 30, 1976, 72 SCRA 214, 217) and Vda. de Catindig vs. Heirs of Catalina Roque (L-25777, November 26, 1976, 74 SCRA 83, 88). In the case of Chan vs. CA, this Court said: LibLex

". . . from Guico v. Mayuga, a 1936 decision, the opinion being penned by the then Justice Recto, it has been well-settled that the jurisdiction of this Court in cases brought to us from the Court of Appeals is limited to reviewing and revising the errors of law imputed to it, its findings of fact being conclusive. More specifically, in a decision exactly a month later, this Court, speaking through the then Justice Laurel it was held that the same principle is applicable, even if the Court of Appeals was in disagreement with the lower court as to the weight of the evidence with a consequent reversal of its findings of fact. . . . Stated otherwise, findings of facts by the Court of Appeals, when supported by substantive evidence are not reviewable on appeal by certiorari. Said findings of the appellate court are final and cannot be disturbed by Us particularly because its premises are borne out by the record or based upon substantial evidence and what is more, when such findings are correct. Assignments of errors involving factual issues cannot be ventilated in a review of the decision of the Court of Appeals because only legal questions may be raised. The Supreme Court is not at liberty to alter or modify the facts as set forth in the decision of the Court of Appeals sought to be reversed. Where the findings of the Court of Appeals are contrary to that of the trial court, a minute scrutiny by the Supreme Court is in order, and resort to duly-proven evidence becomes necessary. The general rule We have thus stated above is not without some recognized exceptions. Having laid down the above legal precepts as Our foundation, We now proceed to consider petitioner's assignments of errors. Petitioner, in her first assignment, contends that the respondent Court of Appeals erred in holding that the document, Exhibit "F", was executed and attested as required by law when there was absolutely no proof that the three instrumental witnesses were credible witnesses. She argues that the requirement in Article 806, Civil Code, that the witnesses must be credible is an absolute requirement which must be complied with before an alleged last will and testament may be admitted to probate and that to be a credible witness, there must be evidence on record that the witness has a good standing in his community, or that he is honest and upright, or reputed to be trustworthy and reliable. According to petitioner, unless the qualifications of the witness are first established, his testimony may not be favorably considered. Petitioner contends that the term "credible" is not synonymous with "competent" for a witness may be competent under Article 820 and 821 of the Civil Code and still not be credible as required by Article 805 of the same Code. It is further urged that the term "credible" as used in the Civil Code should receive the same settled and well-known meaning it has under the Naturalization Law, the latter being a kindred legislation with the Civil Code provisions on wills with respect to the qualifications of witnesses.

We find no merit to petitioner's first assignment of error. Article 820 of the Civil Code provides the qualifications of a witness to the execution of wills while Article 821 sets forth the disqualification from being a witness to a will. These Articles state: "Art. 820.Any person of sound mind and of the age of eighteen years or more, and not blind, deaf or dumb, and able to read and write, may be a witness to the execution of a will mentioned in article 805 of this Code. "Art. 821.The following are disqualified from being witnesses to a will: (1)Any person not domiciled in the Philippines, (2)Those who have been convicted of falsification of a document, perjury or false testimony. Under the law, there is no mandatory requirement that the witness testify initially or at any time during the trial as to his good standing in the community, his reputation for trustworthiness and reliableness, his honesty and uprightness in order that his testimony may be believed and accepted by the trial court. It is enough that the qualifications enumerated in Article 820 of the Civil Code are complied with, such that the soundness of his mind can be shown by or deduced from his answers to the questions propounded to him, that his age (18 years or more) is shown from his appearance, testimony, or competently proved otherwise, as well as the fact that he is not blind, deaf or dumb and that he is able to read and write to the satisfaction of the Court, and that he has none of the disqualifications under Article 821 of the Civil Code. We reject petitioner's contention that it must first be established in the record the good standing of the witness in the community, his reputation for trustworthiness and reliableness, his honesty and uprightness, because such attributes are presumed of the witness unless the contrary is proved otherwise by the opposing party. We also reject as without merit petitioner's contention that the term "credible" as used in the Civil Code should be given the same meaning it has under the Naturalization Law where the law is mandatory that the petition for naturalization must be supported by two character witnesses who must prove their good standing in the community, reputation for trustworthiness and reliableness, their honesty and uprightness. The two witnesses in a petition for naturalization are character witnesses in that being citizens of the Philippines, they personally know the petitioner to be a resident of the Philippines for the period of time required by the Act and a person of good repute and morally irreproachable and that said petitioner has in their opinion all the qualifications necessary to become a citizen of the Philippines and is not in any way disqualified under the provisions of the Naturalization Law (Section 7, Commonwealth Act No. 473 as amended).

In probate proceedings, the instrumental witnesses are not character witnesses for they merely attest the execution of a will or testament and affirm the formalities attendant to said execution. And We agree with the respondent that the rulings laid down in the cases cited by petitioner concerning character witnesses in naturalization proceedings are not applicable to instrumental witnesses to wills executed under the Civil Code of the Philippines. In the case at bar, the finding that each and everyone of the three instrumental witnesses, namely, Matilde Orobia, Celso Gimpaya and Maria Gimpaya, are competent and credible is satisfactorily supported by the evidence as found by the respondent Court of Appeals, which findings of fact this Tribunal is bound to accept and rely upon. Moreover, petitioner has not pointed to any disqualification of any of the said witnesses, much less has it been shown that anyone of them is below 18 years of age, of unsound mind, deaf or dumb, or cannot read or write. It is true that under Article 805 of the New Civil Code, every will, other than a holographic will, must be subscribed at the end thereof by the testator himself or by the testator's name written by some other person in his presence, and by his express direction, and attested and subscribed by three or more credible witnesses in the presence of the testator and of one another. While the petitioner submits that Article 820 and 821 of the New Civil Code speak of the competency of a witness due to his qualifications under the first Article and none of the disqualifications under the second Article, whereas Article 805 requires the attestation of three or more credible witnesses, petitioner concludes that the term credible requires something more than just being competent and, therefore, a witness in addition to being competent under Articles 820 and 821 must also be a credible witness under Article 805. Petitioner cites American authorities that competency and credibility of a witness are not synonymous terms and one may be a competent witness and yet not a credible one. She exacerbates that there is no evidence on record to show that the instrumental witnesses are credible in themselves, that is, that they are of good standing in the community since one was a family driver by profession and the second the wife of the driver, a housekeeper. It is true that Celso Gimpaya was the driver of the testatrix and his wife Maria Gimpaya, merely a housekeeper, and that Matilde Orobia was a piano teacher to a grandchild of the testatrix. But the relation of employer and employee much less the humble social or financial position of a person do not disqualify him to be a competent testamentary witness. (Molo-Pekson and Perez-Nable vs. Tanchuco, et al., 100 Phil. 344; Testate Estate of Raymundo, Off. Gaz., March 18, 1941, p. 788). llcd Private respondent maintains that the qualifications of the three or more credible witnesses mentioned in Article 805 of the Civil Code are those mentioned in Article 820 of the same Code, this being obvious from that

portion of Article 820 which says "may be a witness to the execution of a will mentioned in Article 805 of this Code," and cites authorities that the word "credible" insofar as witnesses to a will are concerned simply means "competent." Thus, in the case of Suntay vs. Suntay, 95 Phil. 500, the Supreme Court held that "Granting that a will was duly executed and that it was in existence at the time of, and not revoked before, the death of the testator, still the provisions of the lost will must be clearly and distinctly proved by at least two credible witnesses. 'Credible witnesses' mean competent witnesses and not those who testify to facts from or upon hearsay." (emphasis supplied). In Molo Pekson and Perez-Nable vs. Tanchuco, et al., 100 Phil. 344, the Supreme Court held that "Section 620 of the same Code of Civil Procedure provides that any person of sound mind, and of the age of eighteen years or more, and not blind, deaf, or dumb and able to read and write, may be a witness to the execution of a will. This same provision is reproduced in our New Civil Code of 1950, under Art. 820. The relation of employer and employee, or being a relative to the beneficiary in a will, does not disqualify one to be a witness to a will. The main qualification of a witness in the attestation of wills, if other qualifications as to age, mental capacity and literacy are present, is that said witness must be credible, that is to say, his testimony may be entitled to credence. There is a long line of authorities on this point, a few of which we may cite:

"A 'credible witness' is one who is not disqualified to testify by mental incapacity, crime, or other cause. Historical Soc. of Dauphin County vs. Kelker, 74 A. 619, 226 Pa. 16, 134 Am. St. Rep. 1010." (Words and Phrases, Vol. 10, p. 340). "As construed by the common law, a 'credible witness' to a will means a 'competent witness.' Appeal of Clark, 95 A. 517, 114 Me. 105, Ann. Cas. 1917A, 837." (Ibid, p. 341). "Expression 'credible witness' in relation to attestation of wills means 'competent witness'; that is, one competent under the law to testify to fact of execution of will. Vernon's Ann. Civ. St. art. 8283. Moos vs. First State Bank of Uvalde, Tex. Civ. App. 60 S. W. 2nd 888, 889." (Ibid, p. 342) "The term 'credible', used in the statute of wills requiring that a will shall be attested by two credible witnesses means competent; witnesses who, at the time of attesting the will, are legally competent to testify, in a court of justice, to the facts attested by subscribing the will, the competency being determined as of the date of the execution of the will and not of the time it is offered for probate. Smith vs. Goodell, 101 N.E. 255, 266, 258 Ill. 145." (Ibid.)

"'Credible witnesses', as used in the statute relating to wills, means competent witnesses that is, such persons as are not legally disqualified from testifying in courts of justice, by reason of mental incapacity, interest, or the commission of crimes, or other cause excluding them from testifying generally, or rendering them incompetent in respect of the particular subject matter or in the particular suit. Hill vs. Chicago Title & Trust co., 152 N.E. 545, 546, 322 Ill. 42." (Ibid. p. 343) In the strict sense, the competency of a person to be an instrumental witness to a will is determined by the statute, that is Art. 820 and 821, Civil Code, whereas his credibility depends on the appreciation of his testimony and arises from the belief and conclusion of the Court that said witness is telling the truth. Thus, in the case of Vda. de Aroyo v. El Beaterio del Santissimo Rosario de Molo, No. L-22005, May 3, 1968, the Supreme Court held and ruled that: "Competency as a witness is one thing, and it is another to be a credible witness, so credible that the Court must accept what he says. Trial courts may allow a person to testify as a witness upon a given matter because he is competent, but may thereafter decide whether to believe or not to believe his testimony." In fine, We state the rule that the instrumental witnesses in order to be competent must be shown to have the qualifications under Article 820 of the Civil Code and none of the disqualifications under Article 821 and for their testimony to be credible, that is worthy of belief and entitled to credence, it is not mandatory that evidence be first established on record that the witnesses have a good standing in the community or that they are honest and upright or reputed to be trustworthy and reliable, for a person is presumed to be such unless the contrary is established otherwise. In other words, the instrumental witnesses must be competent and their testimonies must be credible before the court allows the probate of the will they have attested. We, therefore, reject petitioner's position that it was fatal for respondent not to have introduced prior and independent proof of the fact that the witnesses were "credible witnesses", that is, that they have a good standing in the community and reputed to be trustworthy and reliable. Under the second, third, fourth, fifth, sixth, seventh and eighth assignments of errors, petitioner disputes the findings of fact of the respondent court in finding that the preparation and execution of the will was expected and not coincidental, in finding that Atty. Paraiso was not previously furnished with the names and residence certificates of the witnesses as to enable him to type such data into the document Exhibit "F", in holding that the fact that the three typewritten lines under the typewritten words "pangalan" and "tinitirahan" were left blank shows beyond cavil that the three attesting witnesses were all present in the same occasion, in holding credible that Isabel Gabriel could have dictated the will without note or document to Atty. Paraiso, in holding that Matilde Orobia was physically present when the will was signed on April 15, 1961 by the deceased Isabel Gabriel and the

other witnesses Celso Gimpaya and Maria Gimpaya, in holding that the trial court gave undue importance to the picture takings as proof that the will was improperly executed, and in holding that the grave contradictions, evasions and misrepresentations of the witnesses (subscribing and notary) presented by the petitioner had been explained away. Since the above errors are factual, We must repeat what We have previously laid down that the findings of fact of the appellate court are binding and controlling which We cannot review, subject to certain exceptions which We will consider and discuss hereinafter. We are convinced that the appellate court's findings are sufficiently justified and supported by the evidence on record. Thus, the alleged unnaturalness characterizing the trip of the testatrix to the office of Atty. Paraiso and bringing all the witnesses without previous appointment for the preparation and execution of the will and that it was coincidental that Atty. Paraiso was available at the moment impugns the finding of the Court of Appeals that although Atty. Paraiso admitted the visit of Isabel Gabriel and of her companions to his office on April 15, 1961 was unexpected as there was no prior appointment with him, but he explained that he was available for any business transaction on that day and that Isabel Gabriel had earlier requested him to help her prepare her will. The finding of the appellate court is amply based on the testimony of Celso Gimpaya that he was not only informed on the morning of the day that he witnessed the will but that it was the third time when Isabel Gabriel told him that he was going to witness the making of her will, as well as the testimony of Maria Gimpaya that she was called by her husband Celso Gimpaya to proceed to Isabel Gabriel's house which was nearby and from said house, they left in a car to the lawyer's office, which testimonies are recited in the respondent Court's decision. The respondent Court further found the following facts: that Celso Gimpaya and his wife Maria Gimpaya obtained residence certificates a few days before Exhibit "F" was executed. Celso Gimpaya's residence certificate No. A-5114942 was issued at Navotas, Rizal on April 13, 1961 while Maria Gimpaya's residence certificate No. A-5114974 was issued also at Navotas, Rizal on April 14, 1961. The respondent Court correctly observed that there was nothing surprising in these facts and that the securing of these residence certificates two days and one day, respectively, before the execution of the will on April 15, 1961, far from showing an amazing coincidence, reveals that the spouses were earlier notified that they would be witnesses to the execution of Isabel Gabriel's will. LLphil We also agree with the respondent Court's conclusion that the excursion to the office of Atty. Paraiso was planned by the deceased, which conclusion was correctly drawn from the testimony of the Gimpaya spouses that they started from the Navotas residence of the deceased with a photographer and Isabel Gabriel herself, then they proceeded by car to Matilde Orobia's house in Philamlife, Quezon City to fetch her and from there, all the three

witnesses (the Gimpayas and Orobia) passed by a place where Isabel Gabriel stayed for about ten to fifteen minutes at the clinic of Dr. Chikiamco before they proceeded to Atty. Cipriano Paraiso's office. It is also evident from the records, as testified to by Atty. Paraiso, that previous to the day that the will was executed on April 15, 1961, Isabel Gabriel had requested him to help her in the execution of her will and that he told her that if she really wanted to execute her will, she should bring with her at least the Mayor of Navotas, Rizal and a Councilor to be her witnesses and that he (Atty. Paraiso) wanted a medical certificate from a physician notwithstanding the fact that he believed her to be of sound and disposition mind. From this evidence, the appellate court rightly concluded, thus: "It is, therefore, clear that the presence of Isabel Gabriel and her witnesses Matilde Orobia, Celso Gimpaya and Maria Gimpaya including the photographer in the law office of Atty. Paraiso was not coincidental as their gathering was pre-arranged by Isabel Gabriel herself." As to the appellate court's finding that Atty. Paraiso was not previously furnished with the names and residence certificates of the witnesses as to enable him to type such data into the document Exhibit "F", which the petitioner assails as contradictory and irreconcilable with the statement of the Court that Atty. Paraiso was handed a list (containing the names of the witnesses and their respective residence certificates) immediately upon their arrival in the law office by Isabel Gabriel and this was corroborated by Atty. Paraiso himself who testified that it was only on said occasion that he received such list from Isabel Gabriel, We cannot agree with petitioner's contention. We find no contradiction for the respondent Court held that on the occasion of the will-making on April 15, 1961, the list was given immediately to Atty. Paraiso and that no such list was given the lawyer in any previous occasion or date prior to April 15, 1961. But whether Atty. Paraiso was previously furnished with the names and residence certificates of the witnesses on a prior occasion or on the very occasion and date in April 15, 1961 when the will was executed, is of no moment for such data appear in the notarial acknowledgment of Notary Public Cipriano Paraiso, subscribed and sworn to by the witnesses on April 15, 1961 following the attestation clause duly executed and signed on the same occasion, April 15, 1961. And since Exhibit "F" is a notarial will duly acknowledged by the testatrix and the witnesses before a notary public, the same is a public document executed and attested through the intervention of the notary public and as such public document is evidence of the facts in clear, unequivocal manner therein expressed. It has in its favor the presumption of regularity. To contradict all these, there must be evidence that is clear, convincing and more than merely preponderant. (Yturalde vs. Azurin, 28 SCRA 407). We find no such evidence pointed by petitioner in the case at bar.

Likewise, the conclusion of the Court of Appeals in holding that the fact that the three typewritten lines under the typewritten words "pangalan" and "tinitirahan" were left blank shows beyond cavil that the three attesting witnesses were all present in the same occasion merits Our approval because this conclusion is supported and borne out by the evidence found by the appellate court, thus: "On page 5 of Exhibit "F", beneath the typewritten words "names", "Res. Tax Cert.", "date issued" and "place issued" the only name of Isabel Gabriel with Residence Tax Certificate No. A-5113274 issued on February 24, 1961 at Navotas, Rizal appears to be in typewritten form while the names, residence tax certificate numbers, dates and places of issuance of said certificates pertaining to the three (3) witnesses were personally handwritten by Atty. Paraiso. Again, this coincides with Atty. Paraiso's even the sale must be made to close relatives; and the seventh was the appointment of the appellant Santiago as executrix of the will without bond. The technical description of the properties in paragraph 5 of Exhibit F was not given and the numbers of the certificates of title were only supplied by Atty. Paraiso." It is true that in one disposition, the numbers of the Torrens titles of the properties disposed and the docket number of a special proceeding are indicated which Atty. Paraiso candidly admitted were supplied by him, whereupon petitioner contends that it was incredible that Isabel Gabriel could have dictated the will Exhibit "F" without any note or document to Atty. Paraiso, considering that Isabel Gabriel was an old and sickly woman more than eighty-one years old and had been suffering from a brain injury caused by two severe blows at her head and died of terminal cancer a few weeks after the execution of Exhibit "F". While we can rule that this is a finding of fact which is within the competency of the respondent appellate court in determining the testamentary capacity of the testatrix and is, therefore, beyond Our power to revise and review, We nevertheless hold that the conclusion reached by the Court of Appeals that the testatrix dictated her will without any note or memorandum appears to be fully supported by the following facts or evidence appearing on record. Thus, Isabel Gabriel, despite her age, was particularly active in her business affairs as she actively managed the affairs of the movie business Isabelita Theater, paying the aparatistas herself until June 4, 1961, 3 days before her death. She was the widow of the late Eligio Naval, former Governor of Rizal Province and acted as co-administratrix in the Intestate Estate of her deceased husband Eligio Naval. The text of the will was in Tagalog, a dialect known and understood by her and in the light of all the circumstances, We agree with the respondent Court that the testatrix dictated her will without any note or memorandum, a fact unanimously testified to by the three attesting witnesses and the notary public himself. Petitioner's sixth assignment of error is also benefit of merit. The evidence, both testimonial and documentary is, according to the respondent court, overwhelming that Matilde Orobia was physically present when the will was signed on April 15, 1961 by the testatrix and the other two witnesses, Celso

Gimpaya and Maria Gimpaya. Such factual finding of the appellate court is very clear, thus: "On the contrary, the record is replete with proof that Matilde Orobia was physically present when the will was signed by Isabel Gabriel on April 15, 1961 along with her co-witnesses Celso Gimpaya and Maria Gimpaya. The trial court's conclusion that Orobia's admission that she gave piano lessons to the child of the appellant on Wednesdays and Saturdays and that April 15, 1961 happened to be a Saturday for which reason Orobia could not have been present to witness the will on that day is purely conjectural. Witness Orobia did not admit having given piano lessons to the appellant's child every Wednesday and Saturday without fail. It is highly probable that even if April 15, 1961 were a Saturday, she gave no piano lessons on that day for which reason she could have witnessed the execution of the will. Orobia spoke of occasions when she missed giving piano lessons and had to make up for the same. Anyway, her presence at the law office of Atty. Paraiso was in the morning of April 15, 1961 and there was nothing to preclude her from giving piano lessons on the afternoon of the same day in Navotas, Rizal." In addition to the testimony of Matilde Orobia, Celso Gimpaya and Maria Gimpaya that Matilde was present on April 15, 1961 and that she signed the attestation clause to the will and on the left-hand margin of each of the pages of the will, the documentary evidence which is the will itself, the attestation clause and the notarial acknowledgment overwhelmingly and convincingly prove such fact that Matilde Orobia was present on that day of April 15, 1961 and that she witnessed the will by signing her name thereon and acknowledged the same before the notary public, Atty. Cipriano P. Paraiso. The attestation clause which Matilde Orobia signed is the best evidence as to the date of signing because it preserves in permanent form a recital of all the material facts attending the execution of the will. This is the very purpose of the attestation clause which is made for the purpose of preserving in permanent form, a record of the facts attending the execution of the will, so that in case of failure in the memory of the subscribing witnesses, or other casualty they may still be proved.(Thompson on Wills, 2nd ed., Sec. 132; Leynez vs. Leynez, 68 Phil. 745). LLpr As to the seventh error assigned by petitioner faulting the Court of Appeals in holding that the trial court gave undue importance to the picture-takings as proof that the will was improperly executed, We agree with the reasoning of the respondent court that: "Matilde Orobia's identification of the photographer as "Cesar Mendoza", contrary to what the other two witnesses (Celso and Maria Gimpaya) and Atty. Paraiso said that the photographer was Benjamin Cifra, Jr., is at worst a minor mistake attributable to lapse of time. The law does not require a photographer for the execution and attestation of the will. The fact that Miss Orobia mistakenly identified the photographer as Cesar Mendoza scarcely detracts from her testimony that she was present when the will was signed because what matters here is not the photographer but the photograph taken which clearly portrays Matilde Orobia herself, her co-witnesses Celso Gimpaya."

Further, the respondent Court correctly held: "The trial court gave undue importance to the picture-takings, jumping therefrom to the conclusion that the will was improperly executed. The evidence however, heavily points to only one occasion of the execution of the will on April 15, 1961 which was witnessed by Matilde Orobia, Celso Gimpaya and Maria Gimpaya. These witnesses were quite emphatic and positive when they spoke of this occasion. Hence, their identification of some photographs wherein they all appeared along with Isabel Gabriel and Atty. Paraiso was superfluous." Continuing, the respondent Court declared: "It is true that the second picture-taking was disclosed at the cross examination of Celso Gimpaya. But this was explained by Atty. Paraiso as a reenactment of the first incident upon the insistence of Isabel Gabriel. Such reenactment where Matilde Orobia was admittedly no longer present was wholly unnecessary if not pointless. What was important was that the will was duly executed and witnessed on the first occasion on April 15, 1961," and We agree with the Court's rationalization in conformity with logic, law and jurisprudence which do not require picture-taking as one of the legal requisites for the execution or probate of a will. Petitioner points to alleged grave contradictions, evasions and misrepresentations of witnesses in their respective testimonies before the trial court. On the other hand, the respondent Court of Appeals held that said contradictions, evasions and misrepresentations had been explained away. Such discrepancies as in the description of the typewriter used by Atty. Paraiso which he described as "elite" which to him meant big letters which are of the type in which the will was typewritten but which was identified by witness Jolly Bugarin of the N.B.I as "pica", the mistake in mentioning the name of the photographer by Matilde Orobia to be Cesar Mendoza when actually it was Benjamin Cifra, Jr. these are indeed unimportant details which could have been affected by the lapse of time and the treachery of human memory such that by themselves would not alter the probative value of their testimonies on the true execution of the will, (Pascual vs. dela Cruz, 28 SCRA 421, 424) for it cannot be expected that the testimony of every person will be identical and coinciding with each other with regard to details of an incident and that witnesses are not expected to remember all details. Human experience teach us "that contradictions of witnesses generally occur in the details of certain incidents, after a long series of questionings, and far from being an evidence of falsehood constitute a demonstration of good faith. Inasmuch as not all those who witness an incident are impressed in like manner, it is but natural that in relating their impressions, they should not agree in the minor details; hence the contradiction in their testimony." (Lopez vs. Liboro, 81 Phil. 429). It is urged of Us by the petitioner that the findings of the trial court should not have been disturbed by the respondent appellate court because the trial court was in a better position to weigh and evaluate the evidence

presented in the course of the trial. As a general rule, petitioner is correct but it is subject to well-established exceptions. The right of the Court of Appeals to review, alter and reverse the findings of the trial court where the appellate court, in reviewing the evidence has found that facts and circumstances of weight and influence have been ignored and overlooked and the significance of which have been misinterpreted by the trial court, cannot be disputed. Findings of facts made by trial courts particularly when they are based on conflicting evidence whose evaluation hinges on questions of credibility of contending witnesses lies peculiarly within the province of trial courts and generally, the appellate court should not interfere with the same. In the instant case, however, the Court of Appeals found that the trial court had overlooked and misinterpreted the facts and circumstances established in the record. Whereas the appellate court said that "Nothing in the record supports the trial court's unbelief that Isabel Gabriel dictated her will without any note or document to Atty. Paraiso;" that the trial court's conclusion that Matilde Orobia could not have witnessed anybody signing the alleged will or that she could not have witnessed Celso Gimpaya and Maria Gimpaya sign the same or that she witnessed only the deceased signing it, is a conclusion based not on facts but on inferences; that the trial court gave undue importance to the picture-takings, jumping therefrom to the conclusion that the will was improperly executed and that there is nothing in the entire record to support the conclusion of the court a quo that the will-signing occasion was a mere coincidence and that Isabel Gabriel made an appointment only with Matilde Orobia to witness the signing of her will, then it becomes the duty of the appellate court to reverse findings of fact of the trial court in the exercise of its appellate jurisdiction over the lower courts. LLpr

then typed the will and after finishing the document, he read it to her and she told him that it was alright; that thereafter, Isabel Gabriel signed her name at the end of the will in the presence of the three witnesses Matilde Orobia, Celso Gimpaya and Maria Gimpaya and also at the left-hand margin of each and every page of the document in the presence also of the said three witnesses; that thereafter Matilde Orobia attested the will by signing her name at the end of the attestation clause and at the left-hand margin of pages 1, 2, 3 and 5 of the document in the presence of Isabel Gabriel and the other two witnesses, Celso Gimpaya and Maria Gimpaya; then, Celso Gimpaya signed also the will at the bottom of the attestation clause and at the left-hand margin of the other pages of the document in the presence of Isabel Gabriel, Matilde Orobia and Maria Gimpaya; that Maria Gimpaya followed suit, signing her name at the foot of the attestation clause and at the left-hand margin of every page in the presence of Isabel Gabriel, Matilde Orobia and Celso Gimpaya; that thereafter, Atty. Paraiso notarized the will as Page No. 94, Book No. IV, Series of 1961, in his Notarial Register. On the occasion of the execution and attestation of the will, a photographer took pictures, one Exhibit "G", depicting Matilde Orobia, the testatrix Isabel Gabriel, Celso Gimpaya, Maria Gimpaya and Atty. Paraiso, taken on said occasion of the signing of the will, and another, Exhibit "H", showing Matilde Orobia signing testimony that he had earlier advised Isabel Gabriel to bring with her at least the Mayor and a Councilor of Navotas, Rizal to be her witnesses for he did not know beforehand the identities of the three attesting witnesses until the latter showed up at his law office with Isabel Gabriel on April 15, 1961. Atty. Paraiso's claim-which was not controverted that he wrote down in his own hand the date appearing on page 5 of Exhibit "F" dissipates any lingering doubt that he prepared and ratified the will on the date in question." It is also a factual finding of the Court of Appeals in holding that it was credible that Isabel Gabriel could have dictated the will, Exhibit "F", without any note or document to Atty. Paraiso as against the contention of petitioner that it was incredible. This ruling of the respondent court is fully supported by the evidence on record as stated in the decision under review, thus: "Nothing in the record supports the trial court's unbelief that Isabel Gabriel dictated her will without any note or document to Atty. Paraiso. On the contrary, all the three attesting witnesses uniformly testified that Isabel Gabriel dictated her will to Atty. Paraiso and that other than the piece of paper that she handed to said lawyer she had no note or document. This fact jibes with the evidence which the trial court itself believed was unshaken that Isabel Gabriel was of sound disposing memory when she executed her will. Exhibit "F" reveals only seven (7) dispositions which are not complicated but quite simple. The first was Isabel Gabriel's wish to be interred according to Catholic rites; the second was a general directive to pay her debts if any; the third provided for P1,000.00 for her sister Praxides Gabriel Vda. de Santiago and P2,000.00 for her brother Santiago Gabriel; the fourth was a listing of

her 13 nephews and nieces including oppositor-appellee Rizalina Gabriel and the amount for each legatee; the fifth was the institution of the petitioner-appellant, Lutgarda Santiago as the principal heir mentioning in general terms seven (7) types of properties; the sixth disposed of the remainder of her estate which she willed in favor of appellant Lutgarda Santiago but prohibiting the sale of such properties to anyone except in extreme situations in which judgment is based on a misapprehension of facts; (5) when the findings of fact are conflicting; (6) when the Court of Appeals, in making its findings, went beyond the issues of the case and the same is contrary to the admissions of both appellant and appellee. (Roque vs. Buan, et al., G.R. No. L-22459, Oct. 31, 1967; Ramos vs. Pepsi Cola Bottling Co., G.R. No. L-22533, Feb. 9, 1967; Hilario, Jr. vs. City of Manila, G.R. No. L-19570; Sept. 14, 1967). Petitioner's insistence is without merit. We hold that the case at bar does not fall within any of the exceptions enumerated above. We likewise hold that the findings of fact of the respondent appellate court are fully supported by the evidence on record. The conclusions are fully sustained by substantial evidence. We find no abuse of discretion and We discern no misapprehension of facts. The respondent Court's findings of fact are not conflicting. Hence, the well-established rule that the decision of the Court of Appeals and its findings of fact are binding and conclusive and should not be disturbed by this Tribunal and it must be applied in the case at bar in its full force and effect, without qualification or reservation. The above holding simply synthesizes the resolutions we have heretofore made in respect to petitioner's previous assignments of error and to which We have disagreed and, therefore, rejected. The last assignments of error of petitioner must necessarily be rejected by Us as We find the respondent Court acted properly and correctly and has not departed from the accepted and usual course of judicial proceedings as to call for the exercise of the power of supervision by the Supreme Court, and as We find that the Court of Appeals did not err in reversing the decision of the trial court and admitting to probate Exhibit "F", the last will and testament of the deceased Isabel Gabriel. We rule that the respondent Court's factual findings upon its summation and evaluation of the evidence on record is unassailable that: "From the welter of evidence presented, we are convinced that the will in question was executed on April 15, 1961 in the presence of Matilde Orobia, Celso Gimpaya and Maria Gimpaya signing and witnessing the same in the will on a table with Isabel Gabriel, Celso Gimpaya and Maria Gimpaya sitting around the table. Atty. Paraiso, after finishing the notarial act, then delivered the original to Isabel Gabriel and retained the other copies for his file and notarial register. A few days following the signing of the will, Isabel Gabriel, Celso Gimpaya and another photographer arrived at the office of Atty. Paraiso and told the lawyer that she wanted another picture taken because the first picture did not turn out good. The lawyer told her that this

Still the petitioner insists that the case at bar is an exception to the rule that the judgment of the Court of Appeals is conclusive as to the facts and cannot be reviewed by the Supreme Court. Again We agree with the petitioner that among the exceptions are: (1) when the conclusion is a finding grounded entirely on speculations, surmises or conjectures; (2) when the inference is manifestly mistaken, absurd or impossible; (3) when there is a grave abuse of discretion; (4) when the presence of each other as required by law. " Specifically, We affirm that on April 15, 1961 the testatrix Isabel Gabriel, together with Matilde Orobia, Celso Gimpaya and his wife Maria Gimpaya, and a photographer proceeded in a car to the office of Atty. Cipriano Paraiso at the Bank of P.I. Building, Manila in the morning of that day; that on the way, Isabel Gabriel obtained a medical certificate from one Dr. Chikiamko which she gave to Atty. Paraiso upon arriving at the latter's office and told the lawyer that she wanted her will to be made; that Atty. Paraiso asked Isabel Gabriel to dictate what she wanted to be written in the will and the attorney wrote down the dictation of Isabel Gabriel in Tagalog, a language known to and spoken by her; that Atty. Paraiso read back to her what he wrote as dictated and she affirmed their correctness; the lawyer

cannot be done because the will was already signed but Isabel Gabriel insisted that a picture be taken, so a simulated signing was performed during which incident Matilde Orobia was not present." Cdpr Petitioner's exacerbation centers on the supposed incredibility of the testimonies of the witnesses for the proponent of the will, their alleged evasions, inconsistencies and contradictions. But in the case at bar, the three instrumental witnesses who constitute the best evidence of the willmaking have testified in favor of the probate of the will. So has the lawyer who prepared it, one learned in the law and long in the practice thereof, who thereafter notarized it. All of them are disinterested witnesses who stand to receive no benefit from the testament. The signatures of the witnesses and the testatrix have been identified on the will and there is no claim whatsoever and by anyone, much less the petitioner, that they were not genuine. In the last and final analysis, the herein conflict is factual and we go back to the rule that the Supreme Court cannot review and revise the findings of facts of the respondent Court of Appeals. WHEREFORE, IN VIEW OF THE FOREGOING, the judgment appealed from is hereby AFFIRMED, with costs against the petitioner. SO ORDERED. Teehankee, Makasiar, De Castro and Herrera, JJ., concur. [G.R. No. 76464. February 29, 1988.] TESTATE ESTATE OF THE LATE ADRIANA MALOTO, ALDINA MALOTO CASIANO, CONSTANCIO MALOTO, PURIFICACION MIRAFLOR, ROMAN CATHOLIC CHURCH OF MOLO, AND ASILO DE MOLO, petitioners, vs. COURT OF APPEALS, PANFILO MALOTO AND FELINO MALOTO, respondents. SYLLABUS 1.CIVIL LAW; SUCCESSION; WILLS; REVOCATION THEREOF; PHYSICAL ACT OF DESTRUCTION; ANIMUS REVOCANDI, A NECESSARY ELEMENT. The physical act of destruction of a will, like burning in this case, does not per se constitute an effective revocation, unless the destruction is coupled with animus revocandi on the part of the testator. It is not imperative that the physical destruction be done by the testator himself. It may be performed by another person but under the express direction and in the presence of the testator. Of course, it goes without saying that the document destroyed must be the will itself. In this case, while animus revocandi, or the intention to revoke, may be conceded, for that is a state of mind, yet that requisite alone would not suffice. "Animus revocandi is only one of the necessary

elements for the effective revocation of a last will and testament. The intention to revoke must be accompanied by the overt physical act of burning, tearing, obliterating, or cancelling the will carried out by the testator or by another person in his presence and under his express direction. 2.REMEDIAL LAW; CIVIL ACTIONS; RES JUDICATA; ELEMENTS. For a judgment to be a bar to a subsequent case, the following requisites must concur: (1) the presence of a final former judgment; (2) the former judgment was rendered by a court having jurisdiction over the subject matter and the parties; (3) the former judgment is a judgment on the merits; and (4) there is, between the first and the second action, identity of parties, of subject matter, and of cause of action. We do not find here the presence of all the enumerated requisites. 3.ID.; ID.; ID.; DOCTRINE NOT APPLICABLE IN CASE AT BAR. There is yet, strictly speaking, no final judgment rendered insofar as the probate of Adriana Maloto's will is concerned. The decision of the trial court in Special Proceeding No. 1736, although final, involved only the intestate settlement of the estate of Adriana. As such, that judgment could not in any manner be construed to be final with respect to the probate of the subsequently discovered will of the decedent. Neither is it a judgment on the merits of the action for probate. This is understandably so because the trial court, in the intestate proceeding, was without jurisdiction to rule on the probate of the contested will. After all, an action for probate, as it implies, is founded on the presence of a will and with the objective of proving its due execution and validity, something which can not be properly done in an intestate settlement of estate proceeding which is predicated on the assumption that the decedent left no will. Thus, there is likewise no identity between the cause of action in intestate proceeding and that in an action for probate. Be that as it may, it would be remembered that it was precisely because of our ruling in G.R. No. L-30479 that the petitioners instituted this separate action for the probate of the late Adriana Maloto's will. Hence, on these grounds alone, the position of the private respondents on this score can not be sustained. DECISION SARMIENTO, J p: This is not the first time that the parties to this case come to us. In fact, two other cases directly related to the present one and involving the same parties had already been decided by us in the past. In G.R. No. L-30479, 1 which was a petition for certiorari and mandamus instituted by the petitioners herein, we dismissed the petition ruling that the more appropriate remedy of the petitioners is a separate proceeding for the probate of the will in question. Pursuant to the said ruling, the petitioners

commenced in the then Court of First Instance of Iloilo, Special Proceeding No. 2176, for the probate of the disputed will, which was opposed by the private respondents presently, Panfilo and Felino, both surnamed Maloto. The trial court dismissed the petition on April 30, 1970. Complaining against the dismissal, again, the petitioners came to this Court on a petition for review by certiorari. 2 Acting on the said petition, we set aside the trial court's order and directed it to proceed to hear the case on the merits. The trial court, after hearing, found the will to have already been revoked by the testatrix. Adriana Maloto, and thus, denied the petition. The petitioners appealed the trial court's decision to the Intermediate Appellate Court which, on June 7, 1985, affirmed the order. The petitioners' motion for reconsideration of the adverse decision proved to be of no avail, hence, this petition. For a better understanding of the controversy, a factual account would be a great help. On October 20, 1963, Adriana Maloto died leaving as heirs her niece and nephews, the petitioners Aldina Maloto-Casiano and Constancio Maloto, and the private respondents Panfilo Maloto and Felino Maloto. Believing that the deceased did not leave behind a last will and testament, these four heirs commenced on November 4, 1963 an intestate proceeding for the settlement of their aunt's estate. The case was instituted in the then Court of First Instance of Iloilo and was docketed as Special Proceeding No. 1736. However, while the case was still in progress, or to be exact on February 1, 1964, the parties Aldina, Constancio, Panfilo, and Felino executed an agreement of extrajudicial settlement of Adriana's estate. The agreement provided for the division of the estate into four equal parts among the parties. The Malotos then presented the extrajudicial settlement agreement to the trial court for approval which the court did on March 21, 1964. That should have signalled the end of the controversy, but, unfortunately, it had not. Three years later, or sometime in March 1967, Atty. Sulpicio Palma, a former associate of Adriana's counsel, the late Atty. Eliseo Hervas, discovered a document entitled "KATAPUSAN NGA PAGBULUT-AN (Testamento)," dated January 3, 1940, and purporting to be the last will and testament of Adriana. Atty. Palma claimed to have found the testament, the original copy, while he was going through some materials inside the cabinet drawer formerly used by Atty. Hervas. The document was submitted to the office of the clerk of the Court of First Instance of Iloilo on April 1, 1967. Incidentally, while Panfilo and Felino are still named as heirs in the said will, Aldina and Constancio are bequeathed much bigger and more valuable shares in the estate of Adriana than what they received by virtue of the agreement of extrajudicial settlement they had earlier signed. The will likewise gives devises and legacies to other parties, among them being the petitioners Asilo de Molo, the Roman Catholic Church of Molo, and Purificacion Miraflor.

Thus, on May 24, 1967, Aldina and Constancio, joined by the other devisees and legatees named in the will, filed in Special Proceeding No. 1736 a motion for reconsideration and annulment of the proceedings therein and for the allowance of the will. When the trial court denied their motion, the petitioner came to us by way of a petition for certiorari and mandamus assailing the orders of the trial court. 3 As we stated earlier, we dismissed that petition and advised that a separate proceeding for the probate of the alleged will would be the appropriate vehicle to thresh out the matters raised by the petitioners. Significantly, the appellate court while finding as inconclusive the matter on whether or not the document or papers allegedly burned by the househelp of Adriana, Guadalupe Maloto Vda. de Coral, upon instructions of the testatrix, was indeed the will, contradicted itself and found that the will had been revoked. The respondent court stated that the presence of animus revocandi in the destruction of the will had, nevertheless, been sufficiently proven. The appellate court based its finding on the facts that the document was not in the two safes in Adriana's residence, by the testatrix going to the residence of Atty. Hervas to retrieve a copy of the will left in the latter's possession, and, her seeking the services of Atty. Palma in order to have a new will drawn up. For reasons shortly to be explained, we do not view such facts, even considered collectively, as sufficient bases for the conclusion that Adriana Maloto's will had been effectively revoked. There is no doubt as to the testamentary capacity of the testatrix and the due execution of the will. The heart of the case lies on the issue as to whether or not the will was revoked by Adriana. The provisions of the new Civil Code pertinent to the issue can be found in Article 830. Art. 830.No will shall be revoked except in the following cases: (1)By implication of law; or (2)By some will, codicil, or other writing executed as provided in case of wills: or (3)By burning, tearing, cancelling, or obliterating the will with the intention of revoking it, by the testator himself, or by some other person in his presence, and by his express direction. If burned, torn, cancelled, or obliterated by some other person, without the express direction of the testator, the will may still be established, and the estate distributed in accordance therewith, if its contents, and due execution, and the fact of its unauthorized destruction, cancellation, or obliteration are established according to the Rules of Court. (Emphasis Supplied.)

It is clear that the physical act of destruction of a will, like burning in this case, does not per se constitute an effective revocation, unless the destruction is coupled with animus revocandi on the part of the testator. It is not imperative that the physical destruction be done by the testator himself. It may be performed by another person but under the express direction and in the presence of the testator. Of course, it goes without saying that the document destroyed must be the will itself.

petitioners' failure to appeal timely from the order dated November 16, 1968 of the trial court in the intestate proceeding (Special Proceeding No. 1736) denying their (petitioners') motion to reopen the case, and their prayer to annul the previous proceedings therein and to allow the last will and testament of the late Adriana Maloto. This is untenable. The doctrine of res adjudicata finds no application in the present controversy. For a judgment to be a bar to a subsequent case, the following requisites must concur: (1) the presence of a final former judgment; (2) the former judgment was rendered by a court having jurisdiction over the subject matter and the parties; (3) the former judgment is a judgment on the merits; and (4) there is, between the first and the second action, identity of parties, of subject matter, and of cause of action. 5 We do not find here the presence of all the enumerated requisites. For one, there is yet, strictly speaking, no final judgment rendered insofar as the probate of Adriana Maloto's will is concerned. The decision of the trial court in Special Proceeding No. 1736, although final, involved only the intestate settlement of the estate of Adriana. As such, that judgment could not in any manner be construed to be final with respect to the probate of the subsequently discovered will of the decedent. Neither is it a judgment on the merits of the action for probate. This is understandably so because the trial court, in the intestate proceeding, was without jurisdiction to rule on the probate of the contested will. 6 After all, an action for probate, as it implies, is founded on the presence of a will and with the objective of proving its due execution and validity, something which can not be properly done in an intestate settlement of estate proceeding which is predicated on the assumption that the decedent left no will. Thus, there is likewise no identity between the cause of action in intestate proceeding and that in an action for probate. Be that as it may, it would be remembered that it was precisely because of our ruling in G.R. No. L-30479 that the petitioners instituted this separate action for the probate of the late Adriana Maloto's will. Hence, on these grounds alone, the position of the private respondents on this score can not be sustained. One last note. The private respondents point out that revocation could be inferred from the fact that "(a) major and substantial bulk of the properties mentioned in the will had been disposed of; while an insignificant portion of the properties remained at the time of death (of the testatrix); and, furthermore, more valuable properties have been acquired after the execution of the will on January 3, 1940." 7 Suffice it to state here that as these additional matters raised by the private respondents are extraneous to this special proceeding, they could only be appropriately taken up after the will has been duly probated and a certificate of its allowance issued. WHEREFORE, judgment is hereby rendered REVERSING and SETTING ASIDE the Decision dated June 7, 1985 and the Resolution dated October 22, 1986, of the respondent Court of Appeals, and a new one ENTERED for the

In this case, while animus revocandi, or the intention to revoke, may be conceded, for that is a state of mind, yet that requisite alone would not suffice. "Animus revocandi is only one of the necessary elements for the effective revocation of a last will and testament. The intention to revoke must be accompanied by the overt physical act of burning, tearing, obliterating, or cancelling the will carried out by the testator or by another person in his presence and under his express direction. There is paucity of evidence to show compliance with these requirements. For one, the document or papers burned by Adriana's maid, Guadalupe, was not satisfactorily established to be a will at all, much less the will of Adriana Maloto. For another, the burning was not proven to have been done under the express direction of Adriana. And then, the burning was not in her presence. Both witnesses, Guadalupe and Eladio, were one in stating that they were the only ones present at the place where the stove (presumably in the kitchen) was located in which the papers proffered as a will were burned. The respondent appellate court in assessing the evidence presented by the private respondents as oppositors in the trial court, concluded that the testimony of the two witnesses who testified in favor of the will's revocation appear "inconclusive." We share the same view. Nowhere in the records before us does it appear that the two witnesses, Guadalupe Vda. de Corral and Eladio Itchon, both illiterates, were unequivocably positive that the document burned was indeed Adriana's will. Guadalupe, we think, believed that the papers she destroyed was the will only because, according to her, Adriana told her so. Eladio, on the other hand, obtained his information that the burned document was the will because Guadalupe told him so, thus, his testimony on this point is double hearsay. At this juncture, we reiterate that "(it) is an important matter of public interest that a purported will is not denied legalization on dubious grounds. Otherwise, the very institution of testamentary succession will be shaken to its very foundations . . . " 4 The private respondents in their bid for the dismissal of the present action for probate instituted by the petitioners argue that the same is already barred by res adjudicata. They claim that this bar was brought about by the

allowance of Adriana Maloto's last will and testament. Costs against the private respondents. This Decision is IMMEDIATELY EXECUTORY. SO ORDERED. Yap, Melencio-Herrera and Paras JJ., concur. Padilla, J., took no part in the deliberation. [G.R. No. L-12190. August 30, 1958.] TESTATE ESTATE OF FELICIDAD ESGUERRA ALTO-YAP deceased. FAUSTO E. GAN, petitioner-appellant, vs. ILDEFONSO YAP, oppositor-appellee. Benedicto C. Balderrama, Crispn D. Baizas and Roberto H. Benitez for appellant. Arturo M. Tolentino for appellee. SYLLABUS 1.HOLOGRAPHIC WILLS; PROBATE OF; EXECUTION AND CONTENTS OF WILL, HOW PROVED. The execution and the contents of a lost or destroyed holographic will may not be proved by the bare testimony of witnesses who have seen and/or read such will. The will itself must be presented; otherwise, it shall produce no effect. The law regards the document itself as material proof of authenticity. DECISION BENGZON, J p: On November 20, 1951, Felicidad Esguerra Alto Yap died of heart failure in the University of Santo Tomas Hospital, leaving properties in Pulilan, Bulacan, and in the City of Manila. On March 17, 1952, Fausto E. Gan initiated these proceedings in the Manila court of first instance with a petition for the probate of a holographic will allegedly executed by the deceased, substantially in these words: "Nobyembre 5, 1951

Ako, si Felicidad E. Alto-Yap, may asawa, at ganap na pagiisip, ay nagsasalaysay na ang aking kayamanan sa bayan ng Pulilan, Bulacan ay aking ipinamamana sa aking mga kamaganakang sumusunod: Vicente Esguerra, Sr.5 Bahagi Fausto E. Gan2 Bahagi Rosario E. Gan2 Bahagi Filomena Alto1 Bahagi Beatriz Alto1 Bahagi 'At ang aking lahat ng ibang kayamanan sa Maynila at iba pang lugar ay aking ipinamamana sa aking asawang si Ildefonso D. Yap sa kondisyong siya'y magpapagawa ng isang Health Center na nagkakahalaga ng di kukulangin sa halagang P60,000.00 sa bayan ng Pulilan, Bulacan, na nakaukit ang aking pagalang Felicidad Esguerra-Alto. At kung ito ay may kakulagan man ay bahala na ang aking asawa ang magpuno upang matupad ang aking kagustuhan.' (Lagda) Felicidad E. Alto-Yap" Opposing the petition, her surviving husband Ildefonso Yap asserted that the deceased had not left any will, nor executed any testament during her lifetime. After hearing the parties and considering their evidence, the Hon. Ramon R. San Jose, Judge, 1 refused to probate the alleged will. A seventy-page motion for reconsideration failed. Hence this appeal. The will itself was not presented. Petitioner tried to establish its contents and due execution by the statements in open court of Felina Esguerra, Primitivo Reyes, Socorro Olarte and Rosario Gan Jimenez, whose testimonies may be summarized as follows: Sometime in 1950 after her last trip abroad, Felicidad Esguerra mentioned to her first cousin, Vicente Esguerra, her desire to make a will. She confided however that it would be useless if her husband discovered or knew about it. Vicente consulted with Fausto E. Gan, nephew of Felicidad, who was then preparing for the bar examinations. The latter replied it could be done without any witness, provided the document was entirely in her handwriting, signed and dated by her. Vicente Esguerra lost no time in transmitting the information, and on the strength of it, in the morning of November 5, 1951, in her residence at Juan Luna Street, Manila, Felicidad wrote, signed and dated a holographic will substantially of the tenor above transcribed, in the presence of her niece, Felina Esguerra (daughter of Vicente), who was invited to read it. In the afternoon of that day, Felicidad was visited by a distant relative, Primitivo Reyes, and she allowed him to read the will in the presence of Felina Esguerra, who again read it.

Nine days later, he had other visitors: Socorro Olarte a cousin, and Rosario Gan Jimenez, a niece. To these she showed the will, again in the presence of Felina Esguerra, who read it for the third time. When on November 19, 1951, Felicidad was confined at the U.S.T. Hospital for her last illness, she entrusted the said will, which was contained in a purse, to Felina Esguerra. But a few hours later, Ildefonso Yap, her husband, asked Felina for the purse; and being afraid of him by reason of his wellknown violent temper, she- delivered it to him. Thereafter, in the same day, Ildefonso Yap returned the purse to Felina, only to demand it the next day shortly before the death of Felicidad. Again, Felina handed it to him but not before she had taken the purse to the toilet, opened it and read the will for the last time. 2 From the oppositor's proof it appears that Felicidad Esguerra had been suffering from heart disease for several years before her death; that she had been treated by prominent physicians, Dr. Agerico Sison, Dr. Agustin Liboro and others; that in May 1950 husband and wife journeyed to the United States wherein for several weeks she was treated for the disease; that thereafter she felt well and after visiting interesting places, the couple returned to this country in August 1950. However, her ailment recurred, she suffered several attacks, the most serious of which happened in the early morning of the first Monday of November 1951 (Nov. 5). The whole household was surprised and alarmed, even the teachers of the Harvardian Colleges occupying the lower floors and owned by the Yap spouses. Physician's help was hurriedly called, and Dr. Tanjuaquio arrived at about 8:00 a.m., found the patient hardly breathing, lying in bed, her head held high by her husband. Injections and oxygen were administered. Following the doctor's advice the patient stayed in bed, and did nothing the whole day, her husband and her personal attendant, Mrs. Bantique, constantly at her side. These two persons swore that Mrs. Felicidad Esguerra Yap made no will, and could have made no will on that day. The trial judge refused to credit the petitioner's evidence for several reasons, the most important of which were these: (a) if according to his evidence, the decedent wanted to keep her will a secret, so that her husband would not know it, it is strange she executed it in the presence of Felina Esguerra, knowing as she did that witnesses were unnecessary; (b) in the absence of a showing that Felina was a confidant of the decedent it is hard to believe that the latter would have allowed the former to see and read the will several times; (c) it is improbable that the decedent would have permitted Primitivo Reyes, Rosario Gan Jimenez and Socorro Olarte to read her will, when she precisely wanted its contents to remain a secret during her lifetime; (d) it is also improbable that her purpose being to conceal the will from her husband she would carry it around, even to the hospital, in her purse which could for one reason or another be opened by her husband; (e) if it is true that the husband demanded the purse from Felina in the U.S.T. Hospital and that the will was there, it is hard to believe

that he returned it without destroying the will, the theory of the petitioner being precisely that the will was executed behind his back for fear he will destroy it. In the face of these improbabilities, the trial judge had to accept the oppositor's evidence that Felicidad did not and could not have executed such holographic will. In this appeal, the major portion of appellant's brief discussed the testimony of the oppositor and of his witnesses in a vigorous effort to discredit them. It appears that the same arguments, or most of them, were presented in the motion to reconsider; but they failed to induce the court a quo to change its mind. The oppositor's brief, on the other hand, aptly answers the criticisms. We deem it unnecessary to go over the same matters, because in our opinion the case should be decided not on the weakness of the opposition but on the strength of the evidence of the petitioner, who has the burden of proof. The Spanish Civil Code permited the execution of holographic wills along with other forms. The Code of Civil Procedure (Act 190) approved August 7, 1901, adopted only one form, thereby repealing the other forms, including holographic wills. The New Civil Code effective in 1950 revived holographic wills in its arts. 810-814. "A person may execute a holographic will which must be entirely written, dated, and signed by the hand of the testator himself. It is subject to no other form and may be made in or out of the Philippines, and need not be witnessed." This is indeed a radical departure from the form and solemnities provided for wills under Act 190, which for fifty years (from 1901 to 1950) required wills to be subscribed by the testator and three credible witnesses in each and every page; such witnesses to attest to the number of sheets used and to the fact that the testator signed in their presence and that they signed in the presence of the testator and of each other. The object of such requirements it has been said, is to close the door against bad faith and fraud, to prevent substitution of wills, to guarantee their truth and authenticity (Abangan vs. Abangan, 40 Phil., 476) and to avoid that those who have no right to succeed the testator would succeed him and be benefited with the probate of same. (Mendoza vs. Pilapil, 40 off. Gaz., 1855). However, formal imperfections may be brushed aside when authenticity of the instrument is duly proved. (Rodriguez vs. Yap, 40 Off. Gaz. Ist Supp. No. 3 p. 194.). Authenticity and due execution is the dominant requirement to be fulfilled when such will is submitted to the courts for allowance. For that purpose

the testimony of one of the subscribing witnesses would be sufficient, if there is no opposition (Sec. 5, Rule 77). If there is, the three must testify, if available. (Cabang vs. Delfinado 34 Phil., 291; Tolentino vs. Francisco, 57 Phil., 742). From the testimony of such witnesses (and of other additional witnesses) the court may form its opinion as to the genuineness and authenticity of the testament, and the circumstances of its due execution. Now, in the matter of holographic wills, no such guaranties of truth and veracity are demanded, since as stated, they need no witnesses; provided however, that they are "entirely written, dated, and signed by the hand of the testator himself." The law, it is reasonable to suppose, regards the document itself as material proof of authenticity, and as its own safeguard, since it could at any time, be demonstrated to be or not to be in the hands of the testator himself. "In the probate of a holographic will" says the New Civil Code, "it shall be necessary that at least one witness who knows the handwriting and signature of the testator explicitly declare that the will and the signature are in the handwriting of the testator. If the will is contested, at least three such witnesses shall be required. In the absence of any such witnesses, (familiar with decedent's handwriting) and if the court deem it necessary, expert testimony may be resorted to."

inability to prove its falsity. Again the proponent's witnesses may be honest and truthful; but they may have been shown a faked document, and having no interest to check the authenticity thereof have taken no pains to examine and compare. Or they may be perjurers boldly testifying, in the knowledge that none could convict them of perjury, because no one could prove that they have not "been shown" a document which they believed was in the handwriting of the deceased. Of course, the competency of such perjured witnesses to testify as to the handwriting could be tested by exhibiting to them other writings sufficiently similar to those written by the deceased; but what witness or lawyer would not foresee such a move and prepare for it? His knowledge of the handwriting established, the witness (or witnesses) could simply stick to his statement: he has seen and read a document which he believed was in the deceased's handwriting. And the court and the oppositor would practically be at the mercy of such witness (or witnesses) not only as to the execution, but also as to the contents of the will. Does the law permit such a situation? The Rules of Court, (Rule 77) approved in 1940, allow proof (and probate) of a lost or destroyed will by secondary evidence the testimony of witnesses, in lieu of the original document. Yet such Rules could not have contemplated holographic wills which could not then be validly made here. (See also Sec. 46, Rule 123; Art. 830-New Civil Code.). Could Rule 77 be extended, by analogy, to holographic wills? Spanish commentators agree that one of the greatest objections to the holographic will is that it may be lost or stolen 4 an implied admission that such loss or theft renders it useless. This must be so, because the Civil Code requires it to be protocoled and presented to the judge, (Art. 689) who shall subscribe it and require its identity to be established by the three witnesses who depose that they have no reasonable doubt that the will was written by the testator (Art. 691). And if the judge considers that the identity of the will has been proven he shall order that it be filed (Art. 693). All these, imply presentation of the will itself. Art. 692 bears the same implication, to a greater degree. It requires that the surviving spouse and the legitimate ascendants and descendants be summoned so that they may make "any statement they may desire to submit with respect to the authenticity of the will." As it is universally admitted that the holographic will is usually done by the testator and by himself alone, to prevent others from knowing either its execution or its contents, the above article 692 could not have the idea of simply permitting such relatives to state whether they know of the will, but whether in the face of the document itself they think the testator wrote it. Obviously, this they can't do unless the will itself is presented to the Court and to them.

The witnesses so presented do not need to have seen the execution of the holographic will. They may be mistaken in their opinion of the handwriting, or they may deliberately lie in affirming it is in the testator's hand. However, the oppositor may present other witnesses who also know the testator's handwriting, or some expert witnesses, who after comparing the will with other writings or letters of the deceased, have come to the conclusion that such will has not been written by the hand of the deceased. (Sec. 50, Rule 123). And the court, in view of such contradictory testimony may use its own visual sense, and decide in the face of the document, whether the will submitted to it has indeed been written by the testator. Obviously, when the will itself is not submitted, these means of opposition, and of assessing the evidence are not available. And then the only guaranty of authenticity 3 the testator's handwriting has disappeared. Therefore, the question presents itself, may a holographic will be probated upon the testimony of witnesses who have allegedly seen it and who declare that it was in the handwriting of the testator? How can the oppositor prove that such document was not in the testator's handwriting? His witnesses who know testator's handwriting have not examined it. His experts can not testify, because there is no way to compare the alleged testament with other documents admittedly, or proven to be, in the testator's hand. The oppositor will, therefore, be caught between the upper millstone of his lack of knowledge of the will or the form thereof, and the nether millstone of his

Undoubtedly, the intention of the law is to give the near relatives the choice of either complying with the will if they think it authentic, or to oppose it, if they think it spurious. 5 Such purpose is frustrated when the document is not presented for their examination. If it be argued that such choice is not essential, because anyway the relatives may oppose, the answer is that their opposition will be at a distinct disadvantage, and they have the right and privilege to comply with the will, if genuine, a right which they should not be denied by withholding inspection thereof from them. We find confirmation of these ideas about exhibition of the document itself in the decision of the Supreme Court of Spain of June 5, 1925, which denied protocolization or probate to a document containing testamentary dispositions in the handwriting of the deceased, but apparently mutilated, the signature and some words having been torn from it. Even in the face of allegations and testimonial evidence (which was controverted), ascribing the mutilation to the opponents of the will. The aforesaid tribunal declared that, in accordance with the provision of the Civil Code (Spanish) the will itself, whole and unmutilated, must be presented; otherwise, it shall produce no effect. "Considerando que sentado lo anterior, y estableciendose en el parrafo segundo del articulo 688 del Codigo civil, que para que sea valido el testamento olografo debera estar escrito todo el y firmado por testador, con expression del ao, mes y dia en que se otorque, resulta evidente que para la validez y eficacia de esos testamentos, no basta la demostracion mas o menos cumplida de que cuando se otorgaron se llenaron todos esos requisitos, sino que de la expresada redaccion el precepto legal, y por el tiempo en que el verbo se emplea, se desprende la necesidad de que el documento se encuentre en dichas condiciones en el momento de ser presentado a la Autoridad competente, para su adveracion y protocolizacion; y como consecuencia ineludible de ello, forzoso es affirmar que el de autos carece de validez y aficacia, por no estar firmado por el testador, cualquiera que sea la causa de la falta de firma, y sin perjuicio de las acciones que puedan ejercitar los perjudicados, bien para pedir indemnizacion por el perjuicio a la persona culpable, si la hubiere, o su castigo en via criminal si procediere, por constituir dicha omision un defecto insubsanable . . . ." This holding aligns with the ideas on holographic wills in the Fuero Juzgo, admittedly the basis of the Spanish Civil Code provisions on the matter. 6 "PRECEDENTES LEGALES Fuero Juzgo, libro segundo, titulo V, ley 15 E depues que los herederos e sus fijos ovieren esta manda, fasta . . . annos muestrenla al obispo de la tierra, o al juez fasta Vl meses y el obispo o el juez tomen otros tales tres escritos, que fuesen fechos por su mano daquel que fizo la manda; e por aquellos escriptos, si semjara la letra de la manda, sea confirmada la manda. E depues que todo esto fuere connoscido, el

obispo o el juez, o otras testimonios confirmen el escripto de la manda otra vez, y en esta manera vala la manda." (Art. 689, Scaevola - Codigo Civil.) (According to the Fuero above, the will itself must be compared with specimens of the testators handwriting.) All of which can only mean: the courts will not distribute the property of the deceased in accordance with his holographic will, unless they are shown his handwriting and signature. 7 Parenthetically, it may be added that even the French Civil Law considers the loss of the holographic will to be fatal. (Planiol y Ripert, Derecho Civil Frances, traduccion por Diaz Cruz, 1946, Tomo V, page 555). Taking all the above circumstances together, we reach the conclusion that the execution and the contents of a lost or destroyed holographic will may not be proved by the bare testimony of witnesses who have seen and/or read such will. 8 Under the provisions of Art. 838 of the New Civil Code, we are empowered to adopt this opinion as a Rule of Court for the allowance of such holographic wills. We hesitate, however, to make this Rule decisive of this controversy, simultaneously with its promulgation. Anyway, decision of the appeal may rest on the sufficiency, rather the insufficiency, of the evidence presented by petitioner Fausto E. Gan. At this point, before proceeding further, it might be convenient to explain why, unlike holographic wills, ordinary wills may be proved by testimonial evidence when lost or destroyed. The difference lies in the nature of the wills. In the first, the only guarantee of authenticity is the handwriting itself; in the second, the testimony of the subscribing or instrumental witnesses (and of the notary, now). The loss of the holographic will entails the loss of the only medium of proof; if the ordinary will is lost, the subscribing witnesses are available to authenticate. In the case of ordinary wills, it is quite hard to convince three witnesses (four with the notary) deliberately to lie. And then their lies could be checked and exposed, their whereabouts and acts on the particular day, the likelihood that they would be called by the testator, their intimacy with the testator, etc. And if they were intimates or trusted friends of the testator they are not likely to lend themselves to any fraudulent scheme to distort his wishes. Last but not least, they can not receive anything on account of the will.

Whereas in the case of holographic wills, if oral testimony were admissible 9 only one man could engineer the whole fraud this way: after making a clever or passable imitation of the handwriting and signature of the deceased, he may contrive to let three honest and credible witnesses see and read the forgery; and the latter, having no interest, could easily fall for it, and in court they would in all good faith affirm its genuineness and authenticity. The will having been lost the forger may have purposely destroyed it in an "accident" the oppositors have no way to expose the trick and the error, because the document itself is not at hand. And considering that the holographic will may consist of two or three pages, and only one of them need be signed, the substitution of the unsigned pages, which may be the most important ones, may go undetected. If testimonial evidence of holographic wills be permitted, one more objectionable feature feasibility of forgery would be added to the several objections to this kind of wills listed by Castan, Sanchez Roman and Valverde and other well-known Spanish Commentators and teachers of Civil Law. 10 One more fundamental difference: in the case of a lost will, the three subscribing witnesses would be testifying to a fact which they saw, namely the act of the testator of subscribing the will; whereas in the case of a lost holographic will, the witnesses would testify as to their opinion of the handwriting which they allegedly saw, an opinion which can not be tested in court, nor directly contradicted by the oppositors, because the handwriting itself is not at hand. Turning now to the evidence presented by the petitioner, we find ourselves sharing the trial judge's disbelief. In addition to the dubious circumstances described in the appealed decision, we find it hard to believe that the deceased should show her will precisely to relatives who had received nothing from it: Socorro Olarte and Primitivo Reyes. These could pester her into amending her will to give them a share, or threaten to reveal its execution to her husband Ildefonso Yap. And this leads to another point: if she wanted so much to conceal the will from her husband, why did she not entrust it to her beneficiaries? Opportunity to do so was not lacking: for instance, her husband's trip to Davao, a few days after the alleged execution of the will. In fine, even if oral testimony were admissible to establish and probate a lost holographic will, we think the evidence submitted by herein petitioner is so tainted with improbabilities and inconsistencies that it fails to measure up to that "clear and distinct" proof required by Rule 77, sec. 6. 11 Wherefore, the rejection of the alleged will must be sustained. Judgment affirmed, with costs against petitioner.

Paras, C.J., Padilla, Montemayor, Reyes, A., Bautista Angelo, Concepcion, Reyes, J.B.L., Endencia and Felix, JJ., concur. [G.R. No. L-58509. December 7, 1982.] IN THE MATTER OF THE PETITION TO APPROVE THE WILL OF RICARDO B. BONILLA, deceased, MARCELA RODELAS, petitioner-appellant, vs. AMPARO ARANZA, ET AL., oppositors-appellees, ATTY. LORENZO SUMULONG, intervenor. Luciano A. Joson for petitioner-appellant. Cesar C. Paralejo for oppositor-appellee. SYNOPSIS The probate court ordered the dismissal of appellant's petition for the allowance of the holographic will of deceased Ricardo B. Bonilla on the ground that the alleged photostatic copy of the will which was presented for probate, cannot stand in lieu of the lost original, for the law regards the document itself as the material proof of the authenticity of the said will, citing the case of Gan vs. Yap, 104 Phil. 509, 522. On appeal, the only question is whether a holographic will which was lost or cannot be found can be proved by means of a photostatic copy. The Supreme Court, in setting aside the lower court's order of dismissal, held that a photostatic or xerox copy of a lost or destroyed holographic will may be admitted because the authenticity of the handwriting of the deceased can he determined by the probate court, as comparison can be made with the standard writings of the testator. Assailed order of dismissal, set aside. SYLLABUS 1.CIVIL LAW; SUCCESSION; HOLOGRAPHIC WILLS; PROBATE THEREOF; DEFINITION. Pursuant to Article 811 of the Civil Code, probate of holographic wills is the allowance of the will by the Court after its due execution has been proved. 2.ID.; ID.; ID.; ID.; NUMBER OF WITNESSES REQUIRED. The probate of holographic wills may be uncontested or not. If uncontested, at least one identifying witness is required and, if no witness is available, experts may be resorted to. If contested, at least three identifying witnesses are required.

3.ID.; ID.; ID.; ID.; NOT POSSIBLE WHERE ORIGINAL WILL HAS BEEN LOST OR DESTROYED AND NO OTHER COPY IS AVAILABLE; REASON. If the holographic will has been lost or destroyed and no other copy is available, the will cannot be probated because the best and only evidence is the handwriting of the testator in said will. It is necessary that there be a comparison between sample handwritten statements of the testator and the handwritten will. 4.ID.; ID.; ID.; ID.; ID.; PHOTOSTATIC COPY OR XEROX COPY MAY BE ALLOWED; CASE AT BAR. A photostatic copy or xerox copy of the holographic will may be allowed because comparison can be made with the standard writings of the testator. In the case of Gan vs. Yap, 104 Phil. 509, the Court ruled that "the execution and the contents of a lost or destroyed holographic will may not be proved by the bare testimony of witnesses who have seen and/or read such will. The will itself must be presented; otherwise, it shall produce no effect. The law regards the document itself as material proof of authenticity." But, in Footnote 8 of said decision, it says that "Perhaps it may be proved by a photographic or photostatic copy. Even a mimeographed or carbon copy; or by other similar means, if any, whereby the authenticity of the handwriting of the deceased may be exhibited and tested before the probate court." Evidently, the photostatic or xerox copy of the lost or destroyed holographic will may be admitted because then the authenticity of the handwriting of the deceased can be determined by the probate court. DECISION RELOVA, J p: This case was certified to this Tribunal by the Court of Appeals for final determination pursuant to Section 3, Rule 50 of the Rules of Court. As found by the Court of Appeals: ". . . On January 11, 1977, appellant filed a petition with the Court of First Instance of Rizal for the probate of the holographic will of Ricardo B. Bonilla and the issuance of letters testamentary in her favor. The petition, docketed as Sp. Proc. No. 8432, was opposed by the appellees Amparo Aranza Bonilla, Wilferine Bonilla Treyes, Expedita Bonilla Frias and Ephraim Bonilla on the following grounds: "(1)Appellant was estopped from claiming that the deceased left a will by failing to produce the will within twenty days of the death of the testator as required by Rule 75, section 2 of the Rules of Court:

"(2)The alleged copy of the alleged holographic will did not contain a disposition of property after death and was not intended to take effect after death, and therefore it was not a will; "(3)The alleged holographic will itself, and not an alleged copy thereof, must be produced, otherwise it would produce no effect, as held in Gan v. Yap, 104 Phil. 509; and "(4)The deceased did not leave any will, holographic or otherwise, executed and attested as required by law. "The appellees likewise moved for the consolidation of the case with another case (Sp. Proc. No. 8275). Their motion was granted by the court in an order dated April 4, 1977. "On November 13, 1978, following the consolidation of the cases, the appellees moved again to dismiss the petition for the probate of the will. They argued that: "(1)The alleged holographic was not a last will but merely an instruction as to the management and improvement of the schools and colleges founded by decedent Ricardo B. Bonilla; and "(2)Lost or destroyed holographic wills cannot be proved by secondary evidence unlike ordinary wills. "Upon opposition of the appellant, the motion to dismiss was denied by the court in its order of February 23, 1979. "The appellees then filed a motion for reconsideration on the ground that the order was contrary to law and settled pronouncements and rulings of the Supreme Court, to which the appellant in turn filed an opposition. On July 23, 1979, the court set aside its order of February 23, 1979 and dismissed the petition for the probate of the will of Ricardo B. Bonilla. The court said: '. . . It is our considered opinion that once the original copy of the holographic will is lost, a copy thereof cannot stand in lieu of the original. 'In the case of Gan vs. Yap, 104 Phil. 509, 522, the Supreme Court held that 'in the matter of holographic wills the law, it is reasonable to suppose, regards the document itself as the material proof of authenticity of said wills. 'MOREOVER, this Court notes that the alleged holographic will was executed on January 25, 1962 while Ricardo B. Bonilla died on May 13,

1976. In view of the lapse of more than 14 years from the time of the execution of the will to the death of the decedent, the fact that the original of the will could not be located shows to our mind that the decedent had discarded before his death his allegedly missing Holographic Will. Appellant's motion for reconsideration was denied. Hence, an appeal to the Court of Appeals in which it is contended that the dismissal of appellant's petition is contrary to law and well-settled jurisprudence. On July 7, 1980, appellees moved to forward the case to this Court on the ground that the appeal does not involve question of fact and alleged that the trial court committed the following assigned errors: "I.THE LOWER COURT ERRED IN HOLDING THAT A LOST HOLOGRAPHIC WILL MAY NOT BE PROVED BY A COPY THEREOF; "II.THE LOWER COURT ERRED IN HOLDING THAT THE DECEDENT HAS DISCARDED BEFORE HIS DEATH THE MISSING HOLOGRAPHIC WILL; "III.THE LOWER COURT ERRED IN DISMISSING APPELLANT'S WILL." The only question here is whether a holographic will which was lost or can not be found can be proved by means of a photostatic copy. Pursuant to Article 811 of the Civil Code, probate of holographic wills is the allowance of the will by the court after its due execution has been proved. The probate may be uncontested or not. If uncontested, at least one identifying witness is required and, if no witness is available, experts may be resorted to. If contested, at least three identifying witnesses are required. However, if the holographic will has been lost or destroyed and no other copy is available, the will can not be probated because the best and only evidence is the handwriting of the testator in said will. It is necessary that there be a comparison between sample handwritten statements of the testator and the handwritten will. But, a photostatic copy or xerox copy of the holographic will may be allowed because comparison can be made with the standard writings of the testator. In the case of Gan vs. Yap, 104 Phil. 509, the Court ruled that "the execution and the contents of a lost or destroyed holographic will may not be proved by the bare testimony of witnesses who have seen and/or read such will. The will itself must be presented; otherwise, it shall produce no effect. The law regards the document itself as material proof of authenticity." But, in Footnote 8 of said decision, it says that "Perhaps it may be proved by a photographic or photostatic copy. Even a mimeographed or carbon copy; or by other similar means, if any, whereby the authenticity of the handwriting of the deceased may be exhibited and tested before the probate court." Evidently, the photostatic or xerox copy of the lost or destroyed holographic will may be admitted because then the authenticity of the handwriting of the deceased can be determined by the probate court.

WHEREFORE, the order of the lower court dated October 3, 1979, denying appellant's motion for reconsideration dated August 9, 1979, of the Order dated July 23, 1979, dismissing her petition to approve the will of the late Ricardo B. Bonilla, is hereby SET ASIDE. SO ORDERED. Teehankee, Actg. C.J., Melencio-Herrera, Plana, Vasquez and Gutierrez, Jr., JJ., concur. [G.R. No. 26317. January 29, 1927.] Estate of Miguel Mamuyac, deceased. FRANCISCO GAGO, petitionerappellant, vs. CORNELIO MAMUYAC, AMBROSIO LARIOSA, FELICIANA BAUZON, and CATALINA MAMUYAC, opponents-appellees. Nicanor Tavora for appellant. Jose Rivera for appellees. SYLLABUS 1.WILLS, CANCELLATION OF; PRESUMPTION. The law does not require any evidence of the revocation or cancellation of the will to be preserved. It therefore becomes difficult at times to prove the cancellation or revocation of wills. The fact that such cancellation or revocation has taken place must either remain unproved or be inferred from evidence showing that after due search the original will cannot be found. Where a will which cannot be found is shown to have been in the possession of the testator, when last seen, the presumption is in the absence of other competent evidence, that the same was cancelled or destroyed. The same presumption arises where it is shown that the testator had ready access to the will and it cannot be found after his death. It will not be presumed that such will has been destroyed by any other person without the knowledge or authority of the testator. DECISION JOHNSON, J p: The purpose of this action was to obtain the probation of a last will and testament of Miguel Mamuyac, who died on the 2d day of January, 1922, in the municipality of Agoo of the Province of La Union. It appears from the record that on or about the 27th day of July, 1918, the said Miguel Mamuyac executed a last will and testament (Exhibit A). In the month of

January, 1922, the said Francisco Gago presented a petition in the Court of First Instance of the Province of La Union for the probation of that will. The probation of the same was opposed by Cornelio Mamuyac, Ambrosio Lariosa, Feliciana Bauzon, and Catalina Mamuyac (civil cause No. 1144, Province of La Union). After hearing all of the parties the petition for the probation of said will was denied by the Honorable C. M. Villareal on the 2d day of November, 1923, upon the ground that the deceased had on the 16th day of April, 1919, executed a new will and testament. On the 21st day of February, 1925, the present action was commenced. Its purpose was to secure the probation of the said will of the 16th day of April, 1919 (Exhibit 1). To said petition Cornelio Mamuyac, Ambrosio Lariosa, Feliciana Bauzon, and Catalina Mamuyac presented their oppositions, alleging (a) that the said will is a copy of the second will and testament executed by the said Miguel Mamuyac; (b) that the same had been cancelled and revoked during the lifetime of Miguel Mamuyac and (c) that the said will was not the last will and testament of the deceased Miguel Mamuyac. Upon the issue thus presented, the Honorable Anastasio R. Teodoro, judge, after hearing the respective parties, denied the probation of said will of April 16, 1919, upon the ground that the same had been cancelled and revoked in the year 1920. Judge Teodoro, after examining the evidence adduced, found that the following facts had been satisfactorily proved: "That Exhibit A is a mere carbon copy of its original which remained in the possession of the deceased testator Miguel Mamuyac, who revoked it before his death as per testimony of witnesses Jose Fenoy, who typed the will of the testator on April 16, 1919, and Carlos Bejar, who saw on December 30, 1920, the original of Exhibit A (will of 1919) actually cancelled by the testator Miguel Mamuyac, who assured Carlos Bejar that inasmuch as he had sold him a house and the land where the house was built, he had to cancel it the will of 1919), executing thereby a new testament. Narcisa Gago in a way corroborates the testimony of Jose Fenoy, admitting that the will executed by the deceased (Miguel Mamuyac) in 1919 was found in the possession of father Miguel Mamuyac. The opponents have successfully established the fact that father Miguel Mamuyac had executed in 1920 another will. The same Narcisa Gago, the sister of the deceased, who was living in the house with him, when cross-examined by attorney for the opponents, testified that the original of Exhibit A could not be found. For the foregoing consideration and for the reason that the original of Exhibit A has been cancelled by the deceased father Miguel Mamuyac, the court disallows the probate of Exhibit A for the applicant." From that order the petitioner appealed. The appellant contends that the lower court committed an error in not finding from the evidence that the will in question had been executed with all the formalities required by the law; that the same had been revoked and

cancelled in 1920 before his death; that the said will was a mere carbon copy and that the oppositors were not estopped from alleging that fact. With reference to the said cancellation, it may be stated that there is positive proof, not denied, which was accepted by the lower court, that the will in question had been cancelled in 1920. The law does not require any evidence of the revocation or cancellation of a will to. be preserved. It therefore becomes difficult at times to prove the revocation or cancellation of wills. The fact that such cancellation or revocation has taken place must either remain unproved or be inferred from evidence showing that after due search the original will cannot be found. Where a will which cannot be found is shown to have been in the possession of the testator, when last seen, the presumption is, in the absence of other competent evidence, that the same was cancelled or destroyed. The same presumption arises where it is shown that the testator had ready access to the will and it cannot be found after his death. It will not be presumed that such will has been destroyed by any other person without the knowledge or authority of the testator. The force of the presumption of cancellation or revocation by the testator, while varying greatly, being weak or strong according to the circumstances, is never conclusive, but may be overcome by proof that the will was not destroyed by the testator with intent to revoke it. In view of the fact that the original will of 1919 could not be found after the death of the testator Miguel Mamuyac and in view of the positive proof that the same had been cancelled, we are forced to the conclusion that the conclusions of the lower court are in accordance with the weight of the evidence. In a proceeding to probate a will the burden of proof is upon the proponent clearly to establish not only its execution but its existence. Having proved its execution by the proponents, the burden is on the contestant to show that it has been revoked. In a great majority of instances in which wills are destroyed for the purpose of revoking them there is no witness to the act of cancellation or destruction and all evidence of its cancellation perishes with the testator. Copies of wills should be admitted by the courts with great caution. When it is proven, however, by proper testimony that a will was executed in duplicate and each copy was executed with all the formalities and requirements of the law, the duplicate may be admitted in evidence when it is made to appear that the original has been lost and was not cancelled or destroyed by the testator. (Borromeo vs. Casquijo, G.R. No. 26063.) 1 After a careful examination of the entire record, we are fully persuaded that the will presented for probate had been cancelled by the testator in 1920. Therefore the judgment appealed from is hereby affirmed. And without any finding as to costs, it is so ordered. Street, Malcolm, Villamor, Ostrand, Romualdez and Villa-Real, JJ., concur.

[G.R. No. L-18788. January 31, 1964.] ROMULO LOPEZ, ET AL., plaintiffs-appellants, vs. LUIS GONZAGA, ET AL., defendants. LUIS GONZAGA and ASUNCION GONZAGA, defendantsappellants. Lakandola G. Lopez and Romulo Lopez for plaintiffs-appellants. Amalia K. del Rosario for defendants-appellants. SYLLABUS 1.WILLS; PROBATE; ORDER OF ADJUDICATION BY COURT DISTINGUISHED FROM TESTAMENTARY INSTITUTION OF HEIR; CASE AT BAR. The order of adjudication is the judicial recognition that in appointing a person as her only heir the testatrix did not contravene the law, and that the heir was in no way disqualified to inherit; just as a final order admitting a will to probate concludes all and sundry from thereafter contending that statutory formal requirements have not been observed in executing the testament. In the case at bar, instead of contradicting the testamentary institution of heir, the order of adjudication confirms it. 2.ID.; ID.; NOTICE TO INTERESTED PARTIES; RECORDING OF JUDICIAL ORDER SUFFICIENT. The failure of the defendant heir, in the case at bar, to file with the Register of Deeds a certified copy of his letters of administration and the will, as provided in Sec. 90 of Act 496, and to record the attested copies of the will and of the allowance thereof by the court under Section 624 of Act 190, does not negate the validity of the judgment or decree of probate nor the rights of the devises under the will, because said Section 90 refers to the dealings with registered lands by an administrator, and defendant heir in the case at bar sought and obtained the change in the certificates of title in his own behalf and capacity, and the recording of the judicial orders sufficed as notice to interested parties, and was a substantial compliance with the required recording of the will itself. 3.ID.; ID.; ADMINISTRATOR AS TRUSTEE; TERMINATION OF TRUSTS; BY APPROVAL OF FINAL ACCOUNT AND BY TRANSFER OF TITLE TO FORMER TRUSTEE THRU REPUDIATION AND PRESCRIPTION. The contention that defendant-appellee in the case at bar, having been appointed administrator, must be deemed a trustee up to the present is infantile, because first, no administration could continue to exist after the order of the court had approved the final account, adjudicated the property to the only heir, cancelled the bond of the administrator, and ordered the case "archivado el mismo por terminado," and no proof exists that the proceedings were ever reopened; and secondly, the transfer of the certificates of title to the defendant's own name in 1936 would constitute an open and clear repudiation of any trust, and the lapse of more than

twenty years' open and adverse possession as owner would certainly suffice to vest title by prescription in the defendant-appellee, since appellants, who knew of the death of the testatrix in 1935, never made any move to require the defendant to reconvey the property. 4.ID.; ID.; DUE PROCESS; DAY IN COURT NOT DENIED TO PARTIES REPRESENTED BY COUNSEL. Where the authority of their counsel to appear for them was never questioned by appellants until the adverse decision was rendered by the court below, their contention that they were denied their day in court is incredible, and appears to be but a last minute attempt to escape the adverse effect of the appealed decision. DECISION REYES, J.B.L., J p: Joint and direct appeal by both parties-plaintiffs and parties-defendants from the decision of the Court of First Instance of Negros Occidental (in its Civil Case No. 5033) to this Supreme Court, because the properties involved are valued at more than P200,000.00. The appealed decision dismissed the petition of plaintiffs (appellants) for partition and cancellation of titles of registered lands, and ordered them to pay defendants (appellees) P1,000.00. by way of attorney's fees, but refused to award moral damages in favor of the defendants. The original petition was filed with the court a quo on 6 October 1958, alleging among other things, that one Soledad Gonzaga Vda. de Ferrer died intestate on 11 April 1935 without any issue and leaving real and personal properties worth P400,000.00; that she was survived by the plaintiffs, who are her nearest of kin, being her brothers, sisters, nephews, and nieces; that during the lifetime of the deceased, she expressed the wish that as long as her brother, Luis Gonzaga, the principal defendant, was engaged in his coconut oil experimentation he could use the products and rentals of her properties in furtherance of his experiments; that the said scientific venture by the said defendant was discontinued when be became totally blind in October, 1955, in view of which the plaintiffs now ask a partition of the estate and the cancellation of titles of lands allegedly fraudulently transferred by, and in the name of, the defendant. The defendant filed a motion to dismiss on the grounds of res judicata and non-inclusion of indispensable parties. The plaintiffs amended their petition to include the omitted parties. After hearing on the motion to dismiss, the court denied the said motion. Thereupon, the defendants filed their answer repleading a denial as to the intestacy of the deceased, and alleging, among others, that a will of Soledad Gonzaga Vda. de Ferrer instituted Luis Gonzaga as the sole heir to her entire estate, and that the will was duly allowed and probated.

After trial, the court a quo rendered judgment, and both parties appealed, as aforesaid. The genuineness of the following documents, and the jurisdiction of the court, with respect to them, are not disputed: "REPUBLIC OF THE PHILIPPINES COURT OF FIRST INSTANCE OF ILOILO 11th Judicial District December 11, 1958. TO WHOM IT MAY CONCERN: This is to certify that according to the records of this office there is no Expediente No. 2163 entitled Estate of Doa Soledad Gonzaga Vda. de Ferrer, as all pre-war records were burned, lost or destroyed during the World War II. (Sgd) CIPRIANO CABALUNA Clerk of Court"

Luis Gonzaga y Jesena through the undersigned attorney, to the Honorable Court respectfully follows: That Soledad Gonzaga Vda. de Ferrer is the registered owner of Lots Nos. 414 and 424, Cadastral Survey of Manapla, which parcel of land are described in Transfer Certificate of Title Nos. 11460 and 13855, respectively. That Soledad Gonzaga Vda. de Ferrer died on April 11, 1935, and she left all her properties in favor of Luis Gonzaga y Jesena in her will, which will was probated on May 17, 1935, in the Court of First Instance of Iloilo (Exp. No. 2163, Iloilo). That the project of partition dated February 3, 1936, (Exp. No. 2163, Iloilo) a copy of which is hereto attached in which the petitioner Luis Gonzaga y Jesena is the only heir, was approved by the Honorable Court of Iloilo in its order dated February 8, 1936, a copy of the said order is hereto attached. WHEREFORE, in view of the foregoing, the petitioner respectfully prays the Honorable Court to order the cancellation of Transfer Certificate of Title Nos. 11460 and 13855, Office of the Register of Deeds of Occidental Negros, wherein Lots Nos. 414 and 424 are described, and in lieu thereof to issue Transfer Certificate of Titles for Lots 414 and 424, Cadastral Survey of Manapla, Occidental Negros, in favor of Luis Gonzaga y Jesena, single, of legal age, Filipino and a resident of Manila, P. I. Iloilo, Iloilo, for Bacolod, Occ. Neg. P. I. March 11, 1936.

NOTARY PUBLIC Until Dec. 31, 1937 Doc. No. 49 Page No. 60 Book No. 1 Series of 1936 The Register of Deeds Bacolod City, Occ. Negros Sir: Please take notice that on Saturday, March 21, 1936, at 8:00 a.m. or soon thereafter as the undersigned may be heard, he will submit the foregoing petition to this Honorable Court for approval. (Sgd) FRANCISCO S. HORTILLAS I hereby certify that I have sent a copy of the foregoing petition to the Register of Deeds of Occidental Negros evidenced by the registry receipt hereto attached. (Sgd) FRANCISCO S. HORTILLAS "UNITED STATES OF AMERICA COMMONWEALTH OF THE PHILIPPINES COURT OF FIRST INSTANCE OF ILOILO 17th Judicial District TESTATE PROCEEDINGS OF THE DECEASED SOLEDAD GONZAGA VDA. DE FERRER,CIVIL CASE NO. 2163.

"UNITED STATES OF AMERICA (Sgd.) FRANCISCO S. HORTILLAS COMMONWEALTH OF THE PHILIPPINES Attorney for the petitioner COURT OF FIRST INSTANCE 2 General Luna, Iloilo. OF OCCIDENTAL NEGROS 18th Judicial District. G.L.R.O. CAD. RECORD No. 214 LOTS NOS. 414 and 424 CAD. SURVEY OF MANAPLA PETITION (Sgd) ILLEGIBLE I, Francisco S. Hortillas, of legal age, after having been duly sworn, depose and say: That I am the attorney for the petitioner in the above case, and that all the allegations contained in the foregoing petition are true to the best of my information and belief. (Sgd) FRANCISCO HORTILLAS Subscribed and Sworn to before me this 11th day of March 1936. He exhibited to me his cedula No. E-1250120, issued at Jaro, Iloilo, P.I., on January 16, 1936.

LUIS GONZAGA Y JESENA, Petitioner. PETITION FOR ADJUDICATION

complaint in case this expediente will be closed before the trial of the Civil Case No. 10321, Iloilo.

TESTAMENTARIA GONZAGA Expediente No. 2163. AUTO

Iloilo, P.I., February 3, 1936. The undersigned administrator to the Honorable Court respectfully states: (Sgd.) FRANCISCO S. HORTILLAS That the undersigned administrator, Luis Gonzaga y Jesena is the only heir mentioned in the probated will of the late Sra. Soledad G. Vda. de Ferrer. TOWNTITLE NO.PROVINCEVALUE ManaplaTrans. Cert. 8433Occ. Neg.P25,230.00 ManaplaTrans. Cert. 11460Occ. Neg.5,210.00 ManaplaTrans. Cert. 13855Occ. Neg.7,310.00 JaroTrans. Cert. 13051Iloilo510.00 JaroTrans. Cert. 13054Iloilo500.00 (Sgd.) FRANCISCO S. HORTILLAS A TRUE COPY: P38,760.00 (Sgd) TELESFORO GEDANG ACCOUNTS COLLECTIBLE AND CASH Deputy Clerk of Court Roman SopenaP1,100.00 17th Judicial District Juan Sornito330.00 Iloilo, P. I." Quintin Mejorada and others2,800.00 "ESTADOS UNIDOS DE AMERICA Maria Ledesma and others600.00 COMMONWEALTH DE FILIPINAS and Cash1,018.54. JUZGADO DE PRIMERA INSTANCIA DE That there is a pending civil complaint against the administrator by Consolacion G. de Lopez, et al., Civil Case No. 10321, Court of First Instance of Iloilo, demanding payment of the sum of P833.40. The undersigned administrator is willing to file a cash bond for the sum object of the ILOILO 17.0 Distrito Judicial Attorney for the Administrator 2 General Luna, Iloilo The Clerk of Court Iloilo, Iloilo Sir: Please include the foregoing petition for adjudication in the calendar for Saturday, February 8, 1936. Previa prestacion por Luis Gonzaga y Jesena de una fianza por valor de P1,000.00 que tendra por objecto responder al resultado de la causa civil No. 10321 de este Juzgado, titulada 'Consolacion G. de Lopez, et al., demandantes, contra Luis Gonzaga', se aprueba la cuenta final de fecha enero 29, 1936, asi como el proyecto de particion de fecha 3 del actual. Queda cancelada la fianza prestada por el administrador en este expediente, y archivado el mismo por terminado. Asi se ordena. Iloilo, Iloilo, febrero 8, 1936. M. BUYSON LAMPA Juez. A TRUE COPY: (Sgd) TELESFORO GEDANG Deputy Clerk of Court 17th Judicial District Iloilo, P. I." "ESTADOS UNIDOS DE AMERICA MANCOMUNIDAD DE FILIPINAS JUZGADO DE PRIMERA INSTANCIA DE NEGROS OCCIDENTAL 18.0 Distrito Judicial Expediente Cadastral No. 26G.L.R.O. Cad. Rec.

ELGOBIERNO DE LAS ISLASNo. 214 FILIPINASLotes Nos. 414 y 424 Solicitante.CATASTRO DE MANAPLA AUTO Vista la peticion del solicitante Sr. Luis Gonzaga y Jesena, de fecha 11 de marzo de 1936, el Juzgado, hallando de misma bien fundada; Por el presente, ordena la cancelacion de los certificados de transferencia de titulo Nos. 11460 y 13855, sobre los lotes Nos. 414 y 424, respectivamente, del Catastro de Manapla, Negros Occidental, y la expedicion de otros a favor de Luis Gozaga y Jesena, filipino, mayor de edad, soltero y vecino de la ciudad de Manila, I. F, haciendose constar en los certificados que se han de expedir todos los gravamenes que existen el los certificados de transferencia Nos. 11460 y 13855. Asi se ordena. Bacolod, Occ. Negros, 21 de marzo, 1936, (FDO.) BRAULIO BAJASA Juez. "ESTADOS UNIDOS DE AMERICA

Mocionante. AUTO Vista y considerada la mocion del solicitante Luis Gozaga y Jesena, de Fecha 11 de marzo de 1936, el Juzgado, hallando la misma bien fundada; Por el presente, ordena la cancelacion del certificado de transferencia de titulo No, 8422 sobre el Lote No. 313 del catastro de Manapla, Negros Occidental, y la expedicion de otro a favor de Luis Gonzaga y Jesena, filipino, mayor de edad; soltero y vecino de la ciudad de Manila, I.F., haciendose constar en la certificado que se ha de expedir todos los gravamente que existen en el certificado de transferencia candelado, se tuviere alguno. Asi se ordena. Bacolod, Occidental Negros, 21 de marzo, 1936. (Sgd.) BRAULIO BEJASA Juez.

ILOILO 17.0 Distrito Judicial G.L.R.O. RECORD NO. 9959 ZOTES NOS. 1129-B y 1129-C SITUADO EN EL MUNICIPIO DE JARO AUTO Vista la peticion de Luis Gonzaga y Jesena cancelacion de los Certificados de Transferencia de titulo numeros 10051 y 13054, por las razones expuestas en la misma, y encontrando el Juzgado la misma bien fundada, por la presente ordena el Registrado de Titulos de la Provincial del Iloilo cancela los Certificados de Transferencia de Titulos numeros 10051 y 13054 y expiden otros en su lugar a nombre de Luis Gonzaga y Jesena, soltero, mayor de edad, filipino y vecino de Manila, P.I. Asi se ordena.

BB/spm. Iloilo, Iloilo, Marzo 25, 1936.M. BUYSON LAMPA Received the foregoing document at 9:00 A.M. on May 7, 1936, and registered under Act 496 as follows: Day Book, Vol. 6, Entry No. 49684. Juez As a witness, the defendant's counsel, Atty. Amelia K. del Rosario, testified that the aforequoted records of the probate court of Iloilo were discovered by her among the records of the cadastral court in Negros Occidental. Due to the destruction of the court and property records of Iloilo as a result of the last war, as attested by the Clerk of Court, no will or probate order was produced, and neither were attested copies registered with the Office of the Register of Deeds other than those previously copied in this opinion; but the testimony of appellee and the copies of judicial pleadings and orders obtained by him from the Registry of Deeds of Negros Occidental leave little room for doubt that Doa Soledad Gonzaga died leaving a will instituting her nephew, the appellee Luis Gonzaga y Jesena, as her sole testamentary heir, in default of forced heirs; that said will was duly probated in 1935 or 1936 by the Court of First Instance of Iloilo in its Special Proceeding No. 2163; that the net residue of the estate was adjudicated by the court to said appellee, subject only to a claim of Consolacion G. de Lopez for P1,000.00 (Exh. 2); and that, thereafter, upon sworn petition of

MANCOMUNIDAD DE FILIPINAS JUZGADO DE PRIMERA INSTANCIA DE NEGROS OCCIDENTAL 18.0 Distrito Judicial EL GOBIERNO DE LASExp. de Reg. No. 72 ISLAS FILIPINAS,G.L.R.O. Rec, No. 10822 SolicitanteLote No, 313 LUIS GONZAGA Y JESENA,MANAPLA Inscribed on page 101 of Book Vol. 87 of Transfer Certificate of Title as Certificate No. 21151. Bacolod, Occ. Negros, May 7, 1936. (Sgd.) MARIANO COREOVA Register of Deeds" "ESTADOS UNIDOS DE AMERICA MANCOMUNIDAD DE FILIPINAS JUZGADO DE PRIMERA INSTANCIA DE

appellee, through his counsel, Francisco S. Hortillas, the Courts of First Instance of Iloilo (Exhibit 12) and Occidental Negros (Exhibit 3) ordered the respective Provincial Registers of Deeds to cancel the Certificates of Title standing then in the name of the deceased Soledad Gonzaga, and in lieu thereof to issue new certificates in the name of appellee Luis Gonzaga y Jesena, as admittedly was done. In the course of the years prior to the institution of this case in 1958, appellee held the properties and dealt with them as sole owner, leasing, encumbering, and selling some of them. We can not fail to be impressed by the statements of attorney Francisco Hortillas, averring under oath in clear and unmistakable terms, not only once but twice, before the Courts of First Instance of Iloilo and Negros (Exhibits 1 and 9), that the deceased Doa Soledad, in her probated will, made Luis Gonzaga y Jesena the sole heir to her properties. These manifestations are nigh conclusive, for the reason that attorney Hortillas was himself married to Monserrat Gonzaga, a sister of Soledad, who would have been one of the latter's heirs intestate had it not been for the testament in favor of the appellee. It taxes credulity beyond all reason to imply (as appellants do) that attorney Hortillas, violating family ties and affection, conspired with appellee to deprive his own wife and children (now some of present appellants) of their lawful share by intestacy in the properties left by Doa Soledad, if it were untrue that the latter had duly and properly bequeathed all her estate to appellee Luis Gonzaga. The authenticity of the sworn petitions of the late attorney Hortillas (Exhibits a and 1) are not impugned, and they were actually acted upon and granted by the two courts of first instance to which he addressed his petitions. Coupled with his undoubted possession as owner and with his own dominical acts exercised over the former properties of Doa Soledad Gonzaga for twenty-two years (1936-1958), the exhibits aforementioned constitute practically conclusive proof of the truth of appellee's defenses, as found by the court below, despite the destruction of the original will and decree of probate. Plaintiffs-appellants, however, assail the trial court's admission of the said court records on the ground that defendant-appellee failed to lay proper basis, or predicate, for their admission. Granting that the original will was destroyed with the court records in the last war, it is averred that appellee was duty-bound to produce the copy that, according to appellee's deposition, was in the custody of Encarnacion Gonzaga, as well as that left with attorney Hortillas. The argument is misleading. There is no proof that copies of the will ever existed other than the one burned while in appellee's possession (Dep. p. 23), Page 24 of the appellee's deposition is to the effect that "My sister Encarnacion had the custody of the will because she was the one who was at the bedside of my sister (referring to the testatrix Doa Soledad);

but by "the will" was obviously meant the one signed by the testatrix and the witnesses, not a copy. Similarly, the witness was asked, "When you filed this petition through your lawyer for the probate of the will, am I correct that you also presented a copy of the will?" to which question the witness answered. "The original was the one submitted". From this answer, it certainly can not be inferred that Attorney Hortillas kept a copy of the original submitted to the court. Neither do we see that appellee was bound to call, or account, for the witnesses to the testament. He was not trying to show that the will complied with the statutory requirements, but that the will had been admitted to probate; and of course, the probate decree conclusively established the due execution. Appellants contend that if it were true that the will constituted Luis Gonzaga as sole heir, he had no need to ask the court for an order of adjudication. There is no merit to this contention. The order of adjudication is the judicial recognition that in appointing Luis as her only heir the testatrix did not contravene the law, and that the heir was in no way disqualified to inherit; just as a final order admitting a will to probate concludes all and sundry from thereafter contending that statutory formal requirements have not been observed in executing the testament. Instead of contradicting the testamentary institution of heir, the order of adjudication confirms it in this case. It may well be noted, in passing, that the order of February 8, 1936 (Exhibit 1 or B) speaks of approval of a "project of partition", while the petition of January 29, 1936 referred to therein spoke of an order of adjudication to a single heir. Since the order made evident reference to the petition of January 29, we agree with the court below that the difference in terminology was an inadvertent mistake. Anyway, appellants do not claim under the will or the partition; their theory is that Doa Soledad Gonzaga died intestate.

rights of the devisee under the will. Section 90 of Act 496 refers to the dealings with registered lands by an executor or administrator; and while Luis Gonzaga was an administrator, this is beside the point, because his dealings with the lands, if any, during his tenure as an administrator are not here in question. That the defendant sought judicial orders to effect the transfers to his name of the certificates of title after the will was probated, and succeeded in having them so transferred, are not "dealings" with the property as administrator under section 90 of the Registration Act. The defendant sought and obtained the change in title in his own behalf and capacity. Although the step taken is not exactly what Section 624 of Act 190 directs, the same purpose was achieved that of notice to all strangers of the cause and nature of the transfers; and it does not appear that anyone was prejudiced by the defect in registration complained of. At any rate, the recording of the judicial orders sufficed as notice to interested parties, and was substantial compliance with the required recording of the will itself. No one faced by the recorded documents could ignore the reference therein to the probated testament; and the rule is that knowledge of what might have been revealed by proper inquiry is imputable to the inquirer (cf. Emas vs. De Zuzuarregui, 53 Phil. 197, 204). As to the fact that Luis Gonzaga paid the inheritance taxes as "executor or administrator", the same is of no importance. It is usual for an Administrator to pay these taxes, since by law no delivery of properties can be made to the heirs until and unless the inheritance taxes are paid [Internal Revenue Code, Section 95(c)]. The contention that defendant-appellee, having been appointed Administrator, must be deemed a trustee up to the present is infantile. In the first place, no administration could continue to exist after the order of February 8, 1936 had approved the final account, adjudicated the property to the only heir, cancelled the bond of the administrator, and ordered the case "archivado el mismo por terminado". No proof exists that the proceedings were ever reopened. Secondly, the transfer of the certificates of title to Luis Gonzaga's own name in 1936 would constitute an open and clear repudiation of any trust, and the lapse of more than twenty years' open and adverse possession as owner would certainly suffice to vest title by prescription in the appellee, since appellants, who knew of the death of Doa Soledad in 1935, never made any move to require Luis to reconvey the property, or any part thereof. The lame explanation that Doa Soledad Gonzaga had expressed the wish that all the income should go to Luis while he conducted experimental studies on coconut products is wholly unconvincing as an excuse for the laches; his right to the income could not have blocked a partition of the capital assets among appellants, if they had been at all entitled to them. That some of the plaintiffs were denied their day in court is incredible, since all the plaintiffs were represented by counsel Vicente Delfin, who claimed, and is presumed, to have been authorized to appear in their behalf, and

The failure of the defendant, Luis Gonzaga, to file with the Register of Deeds a certified copy of his letters of administration and the will, as provided in Section 90 of Act 496, and to record the attested copies of the will and of the allowance thereof by the court under Section 624 of Act 190, does not negate the validity of the judgment or decree of probate nor the

who did appear for them from the inception of the case until after the lower court's decision was rendered. The authority of said counsel was never questioned until the adverse decision was rendered by the court below; and the complainant's failure to appear by themselves, or by other counsel, prior to the judgment is mute but eloquent proof that their allegation that Delfin was not their attorney is but a last minute attempt to escape the adverse effect of the appealed decision, a maneuver that deserves no consideration. Coming to the defendants' appeal: It is grounded on the disallowance of attorney's fees, expenses, and moral damages. The lower court granted only P1,000.00 for attorney's fees, but the defendants urge that the amount should be P41,000.00, based on an agreement of P1,000.00 plus 10% of the value of the properties if the case is decided in their favor. The other expenses refer to transportation, board and lodging, stenographic notes, photostatic copies of exhibits, securing documents, and taking of deposition in the sum of P1,205.00. Moral damages asked is P100,000.00. The award of attorney's fees against the adverse party is essentially discretionary with the trial court (Francisco vs. GSIS, L-18287, 30 March 1963), and, in the absence of an abuse of discretion, the same should not be disturbed. The other expenses, unless recoverable as judicial costs, cannot be allowed because the complaint, although unmeritorious, is not clearly unfounded; moral damages, likewise, are not allowable because the suit is not a malicious prosecution under No. 8 of Article 2219 of the Civil Code. The issue is one primarily addressed to the discretion of the court below, which we are not inclined to disturb. FOR THE FOREGOING REASONS, the appealed decision is hereby affirmed, with costs against the plaintiffs-appellants. Bengzon, C . J ., Padilla, Bautista Angelo, Labrador, Concepcion, Barrera, Paredes, Dizon, Regala and Makalintal, JJ ., concur. [G.R. No. 110427. February 24, 1997.] The Incompetent, CARMEN CAIZA, represented by her legal guardian, AMPARO EVANGELISTA, petitioner, vs. COURT OF APPEALS (SPECIAL FIRST DIVISION), PEDRO ESTRADA and his wife, LEONORA ESTRADA, respondents. Priscilla A. Villacorta for petitioner. Montilla Law Office for private respondents. SYLLABUS

1.REMEDIAL LAW; JURISDICTION; DETERMINED BY THE ALLEGATIONS IN THE COMPLAINT. It is axiomatic that what determines the nature of an action as well as which court has jurisdiction over it, are the allegations of the complaint and the character of the relief sought. An inquiry into the averments of the amended complaint in the Court of origin is thus in order. 2.ID.; PROVISIONAL REMEDIES; ACTION FOR UNLAWFUL DETAINER; IT IS SUFFICIENT TO ALLEGE THAT THE DEFENDANT IS UNLAWFULLY WITHHOLDING POSSESSION FROM THE PLAINTIFF. It is settled that in an action for unlawful detainer, to allege that the defendant is unlawfully withholding possession from the plaintiff is deemed sufficient, and a complaint for unlawful detainer is sufficient if it alleges that the withholding of possession or the refusal to vacate is unlawful without necessarily employing the terminology of the law. 3.ID.; ID.; ID.; PROPER WHEN A PERSON WHO OCCUPIES, OUT OF GENEROSITY, THE LAND OF ANOTHER AND FAILS TO VACATE THE SAME UPON DEMAND BY THE OWNER; CASE AT BAR. More than once has this Court adjudged that a person who occupies the land of another at the latter's tolerance or permission without any contract between them is necessarily bound by an implied promise that he will vacate upon demand, failing which a summary action for ejectment is the proper remedy against him, The situation is not much different from that of a tenant whose lease expires but who continues in occupancy by tolerance of the owner, in which case there is deemed to be an unlawful deprivation or withholding of possession as of the date of the demand to vacate. In other words, one whose stay is merely tolerated becomes a deforciant illegally occupying the land or property the moment he is required to leave. Thus, in Asset Privatization Trust vs. Court of Appeals, 229 SCRA 627, 636 [1994] where a company, having lawfully obtained possession of a plant upon its undertaking to buy the same, refused to return it after failing to fulfill its promise of payment despite demands this Court held that "(a)fter demand and its repudiation, . . . (its) continuing possession . . . became illegal and the complaint for unlawful detainer filed by the . . . (plant's owner) was its proper remedy." It may not be amiss to point out in this connection that where there had been more than one demand to vacate, the one-year period for filing the complaint for unlawful detainer must be reckoned from the date of the last demand the reason being that the lessor has the option to waive his right of action based on previous demands and let the lessee remain meanwhile in the premises. 4.CIVIL LAW; SUCCESSION; A WILL HAS NO EFFECT WHATEVER AND NO RIGHT CAN BE CLAIMED THEREUNDER UNTIL IT IS ADMITTED TO PROBATE. A will is essentially ambulatory; at any time prior to the testator's death, it may be changed or revoked; and until admitted to probate, it has no effect whatever and no right can be claimed thereunder, the law being quite explicit: "No will shall pass either real or personal property unless it is proved and allowed in accordance with the Rules of Court" (ART. 838, CIVIL

CODE). An owner's intention to confer title on the future to persons possessing property by his tolerance, is not inconsistent with the former's taking back possession in the meantime for any reason deemed sufficient. And that in this case there was sufficient cause for the owner's resumption of possession is apparent: she needed to generate income from the house on account of the physical infirmities afflicting her, arising from her extreme age. 5.REMEDIAL LAW; SPECIAL PROCEEDINGS; GUARDIANSHIP; DUTIES OF THE GUARDIAN; CASE AT BAR. Amparo Evangelista was appointed by a competent court the general guardian of both the person and the estate of her aunt, Carmen Caiza. Her Letters of Guardianship dated December 19, 1989 clearly installed her as the "guardian over the person and properties of the incompetent CARMEN CAIZA with full authority to take possession of the property of said incompetent in any province or provinces in which it may be situated and to perform all other acts necessary for the management of her properties . . ." By that appointment, it became Evangelista's duty to care for her aunt's person, to attend to her physical and spiritual needs, to assure her well-being, with right to custody of her person in preference to relatives and friends. It also became her right and duty to get possession of, and exercise control over, Caiza's property, both real and personal, it being recognized principle that the ward has no right to possession or control of his property during his incompetency. That right to manage the ward's estate carried with it right to take possession thereof and recover it from anyone who retains it and bring and defend such actions as may be needful for this purpose. Actually, in bringing the action of desahucio, Evangelista was merely discharging the duty to attend to "the comfortable and suitable maintenance of the ward" explicitly imposed on her by Section 4, Rule 96 of the Rules of Court. 6.ID.; PROVISIONAL REMEDIES; EJECTMENT CASE; EFFECT OF THE DEATH OF A PARTY; CASE AT BAR. While it is indeed well-established rule that the relationship of guardian and ward is necessarily terminated by the death of either the guardian or the ward, the rule affords no advantage to the Estradas. Amparo Evangelista, as niece of Carmen Caiza, is one of the latter's only two (2) surviving heirs, the other being Caiza's nephew, Ramon C. Nevado. On their motion and by resolution of this Court of June 20, 1994, they were in fact substituted as parties in the appeal at bar in place of the deceased, in accordance with Section 17, Rule 3 of the Rules of Court. To be sure, an EJECTMENT case survives the death of a party. Caiza's demise did not extinguish the desahucio suit instituted by her through her guardian. That action, not being a purely personal one, survived her death; her heirs have taken her place and now represent her interests in the appeal at bar. DECISION NARVASA, C .J p:

On November 20, 1989, being then ninety-four (94) years of age, Carmen Caiza, a spinster, a retired pharmacist, and former professor of the College of Chemistry and Pharmacy of the University of the Philippines, was declared incompetent by judgment 1 of the Regional Trial Court of Quezon City, Branch 107, 2 in a guardianship proceeding instituted by her niece, Amparo A. Evangelista. 3 She was so adjudged because of her advanced age and physical infirmities which included cataracts in both eyes and senile dementia. Amparo A. Evangelista was appointed legal guardian of her person and estate. Caiza was the owner of a house and lot at No. 61 Tobias St., Quezon City. On September 17, 1990, her guardian Amparo Evangelista commenced a suit in the Metropolitan Trial Court (MetroTC) of Quezon City (Branch 35) to eject the spouses Pedro and Leonora Estrada from said premises. 4 The complaint was later amended to identify the incompetent Caiza as plaintiff, suing through her legal guardian, Amparo Evangelista. The amended Complaint 5 pertinently alleged that plaintiff Caiza was the absolute owner of the property in question, covered by TCT No. 27147; that out of kindness, she had allowed the Estrada Spouses, their children, grandchildren and sons-in-law to temporarily reside in her house, rent-free; that Caiza already had urgent need of the house on account of her advanced age and failing health, "so funds could be raised to meet her expenses for support, maintenance and medical treatment.;" that through her guardian, Caiza had asked the Estradas verbally and in writing to vacate the house but they had refused to do so; and that "by the defendants' act of unlawfully depriving plaintiff of the possession of the house in question, they . . . (were) enriching themselves at the expense of the incompetent, because, while they . . . (were) saving money by not paying any rent for the house, the incompetent . . . (was) losing much money as her house could not be rented by others." Also alleged was that the complaint was "filed within one (1) year from the date of first letter of demand dated February 3, 1990." In their Answer with Counterclaim, the defendants declared that they had been living in Caiza's house since the 1960's; that in consideration of their faithful service they had been considered by Caiza as her own family, and the latter had in fact executed a holographic will on September 4, 1988 by which she "bequeathed" to the Estradas the house and lot in question. Judgment was rendered by the MetroTC on April 13, 1992 in Caiza's favor, 6 the Estradas being ordered to vacate the premises and pay Caiza P5,000.00 by way of attorney's fees. But on appeal, 7 the decision was reversed by the Quezon City Regional Trial Court, Branch 96. 8 By judgment rendered on October 21, 1992, 9 the RTC held that the "action by which the issue of defendants' possession

should be resolved is accion publiciana, the obtaining factual and legal situation . . . demanding adjudication by such plenary action for recovery of possession cognizable in the first instance by the Regional Trial Court." cdphil Caiza sought to have the Court of Appeals reverse the decision of October 21, 1992, but failed in that attempt. In a decision 10 promulgated on June 2, 1993, the Appellate Court 11 affirmed the RTC's judgment in toto . It ruled that (a) the proper remedy for Caiza was indeed an accion publiciana in the RTC, not an accion interdictal in the MetroTC, since the "defendants have not been in the subject premises as mere tenants or occupants by tolerance, they have been there as a sort of adopted family of Carmen Caiza," as evidenced by what purports to be the holographic will of the plaintiff; and (b) while "said will, unless and until it has passed probate by the proper court, could not be the basis of defendants' claim to the property, . . . it is indicative of intent and desire on the part of Carmen Caiza that defendants are to remain and are to continue in their occupancy and possession, so much so that Caiza's supervening incompetency can not be said to have vested in her guardian the right or authority to drive the defendants out." 12

niece and nephew, respectively were by this Court's leave, substituted for her. 16 Three issues have to be resolved: (a) whether or not an ejectment action is the appropriate judicial remedy for recovery of possession of the property in dispute; (b) assuming desahucio to be proper, whether or not Evangelista, as Caiza's legal guardian had authority to bring said action; and (c) assuming an affirmative answer to both questions, whether or not Evangelista may continue to represent Caiza after the latter's death. I It is axiomatic that what determines the nature of an action as well as which court has jurisdiction over it, are the allegations of the complaint and the character of the relief sought. 17 An inquiry into the averments of the amended complaint in the Court of origin is thus in order. 18 The amended Complaint alleges:19 "6.That the plaintiff, Carmen Caiza, is the sole and absolute owner of a house and lot at No. 61 Scout Tobias, Quezon City, which property is now the subject of this complaint;

Through her guardian, Caiza came to this Court praying for reversal of the Appellate Court's judgment. She contends in the main that the latter erred in (a) holding that she should have pursued an accion publiciana, and not an accion interdictal; and in (b) giving much weight to "a xerox copy of an alleged holographic will, which is irrelevant to this case." 13 In the responsive pleading filed by them on this Court's requirement, 14 the Estradas insist that the case against them was really not one of unlawful detainer; they argue that since possession of the house had not been obtained by them by any "contract, express or implied," as contemplated by Section 1, Rule 70 of the Rules of Court, their occupancy of the premises could not be deemed one "terminable upon mere demand (and hence never became unlawful) within the context of the law." Neither could the suit against them be deemed one of forcible entry, they add, because they had been occupying the property with the prior consent of the "real owner," Carmen Caiza, which "occupancy can even ripen into full ownership once the holographic will of petitioner Carmen Caiza is admitted to probate." They conclude, on those postulates, that it is beyond the power of Caiza's legal guardian to oust them from the disputed premises. Carmen Caiza died on March 19, 1994, 15 and her heirs the aforementioned guardian, Amparo Evangelista, and Ramon C. Nevado, her

xxx xxx xxx 9.That the defendants, their children, grandchildren and sons-in-law, were allowed to live temporarily in the house of plaintiff, Carmen Caiza, for free, out of her kindness; 10.That the plaintiff, through her legal guardian, has duly notified the defendants, for them to vacate the said house, but the two (2) letters of demand were ignored and the defendants refused to vacate the same. . . 11.That the plaintiff, represented by her legal guardian, Amparo Evangelista, made another demand on the defendants for them to vacate the premises, before Barangay Captain Angelina A. Diaz of Barangay Laging Handa, Quezon City, but after two (2) conferences, the result was negative and no settlement was reached. A photocopy of the Certification to File Action dated July 4, 1990; issued by said Barangay Captain is attached, marked Annex "D" and made an integral part hereof; 12.That the plaintiff has given the defendants more than thirty (30) days to vacate the house, but they still refused to vacate the premises, and they are up to this time residing in the said place;

13.That this complaint is filed within one (1) year from the date of first letter of demand dated February 3, 1990 (Annex "B") sent by the plaintiff to the defendants, by her legal guardian Amparo Evangelista; 14.By the defendants' act of unlawfully depriving the plaintiff of the possession of the house in question, they are enriching themselves at the expense of the incompetent plaintiff, because, while they are saving money by not paying any rent for the house, the plaintiff is losing much money as her house could not be rented by others; 15.That the plaintiff's health is failing and she needs the house urgently, so that funds could be raised to meet her expenses for her support, maintenance and medical treatment; 16.That because of defendants' refusal to vacate the house at No. 61 Scout Tobias, Quezon City, the plaintiff, through her legal guardian, was compelled to go to court for justice, and she has to spend P10,000.00 as attorney's fees." Its prayer 20 is quoted below: "WHEREFORE, in the interest of justice and the rule of law, plaintiff, Carmen Caiza, represented by her legal guardian. Amparo Evangelista, respectfully prays to this Honorable Court, to render judgment in favor of plaintiff and against the defendants as follows: 1.To order the defendants, their children, grandchildren, sons-in-law and other persons claiming under them, to vacate the house and premises at No. 61 Scout Tobias, Quezon City, so that its possession can be restored to the plaintiff, Carmen Caiza: and 2.To pay attorney's fees in the amount of P10,000.00; 3.To pay the costs of the suit." In essence, the amended complaint states: 1)that the Estradas were occupying Caiza's house by tolerance having been "allowed to live temporarily . . . (therein) for free, out of . . . (Caiza's) kindness;" 2)that Caiza needed the house "urgently" because her "health . . . (was) failing and she . . . (needed) funds . . . to meet her expenses for her support, maintenance and medical treatment;"

3)that through her general guardian, Caiza requested the Estradas several times, orally and in writing, to give back possession of the house; 4)that the Estradas refused and continue to refuse to give back the house to Caiza, to her continuing prejudice; and 5)that the action was filed within one (1) year from the last demand to vacate. Undoubtedly, a cause of action for desahucio has been adequately set out. It is settled that in an action for unlawful detainer, it suffices to allege that the defendant is unlawfully withholding possession from the plaintiff is deemed sufficient, 21 and a complaint for unlawful detainer is sufficient if it alleges that the withholding of possession or the refusal to vacate is unlawful without necessarily employing the terminology of the law. 22 The Estradas' first proffered defense derives from a literal construction of Section 1, Rule 70 of the Rules of Court which inter alia authorizes the institution of an unlawful detainer suit when "the possession of any land or building is unlawfully withheld after the expiration or termination of the right to hold possession, by virtue of any contract, express or implied." They contend that since they did not acquire possession of the property in question "by virtue of any contract, express or implied" they having been, to repeat, "allowed to live temporarily . . . (therein) for free, out of . . . (Caiza's) kindness" in no sense could there be an "expiration or termination of . . . (their) right to hold possession, by virtue of any contract, express or implied." Nor would an action for forcible entry lie against them, since there is no claim that they had "deprived (Caiza) of the possession of . . . (her property) by force, intimidation, threat, strategy, or stealth." The argument is arrant sophistry. Caiza's act of allowing the Estradas to occupy her house, rent-free, did not create a permanent and indefeasible right of possession in the latter's favor. Common sense, and the most rudimentary sense of fairness clearly require that act of liberality be implicitly, but no less certainly, accompanied by the necessary burden on the Estradas of returning the house to Caiza upon her demand. More than once has this Court adjudged that a person who occupies the land of another at the latter's tolerance or permission without any contract between them is necessarily bound by an implied promise that he will vacate upon demand, failing which a summary action for ejectment is the proper remedy against him. 23 The situation is not much different from that of a tenant whose lease expires but who continues in occupancy by tolerance of the owner, in which case there is deemed to be an unlawful deprivation or withholding of possession as of the date of the demand to vacate. 24 In other words, one whose stay is merely tolerated becomes a deforciant illegally occupying the land or property the moment he is required to leave. 25 Thus, in Asset Privatization Trust vs. Court of Appeals,

26 where a company, having lawfully obtained possession of a plant upon its undertaking to buy the same, refused to return it after failing to fulfill its promise of payment despite demands, this Court held that "(a)fter demand and its repudiation, . . . (its) continuing possession . . . became illegal and the complaint for unlawful detainer filed by the . . . (plant's owner) was its proper remedy." It may not be amiss to point out in this connection that where there had been more than one demand to vacate, the one-year period for filing the complaint for unlawful detainer must be reckoned from the date of the last demand, 27 the reason being that the lessor has the option to waive his right of action based on previous demands and let the lessee remain meanwhile in the premises. 28 Now, the complaint filed by Caiza's guardian alleges that the same was "filed within one (1) year from the date of the first letter of demand dated February 3, 1990." Although this averment is not in accord with law because there is in fact a second letter of demand to vacate, dated February 27, 1990, the mistake is inconsequential, since the complaint was actually filed on September 17, 1990, well within one year from the second (last) written demand to vacate. The Estradas' possession of the house stemmed from the owner's express permission. That permission was subsequently withdrawn by the owner, as was her right; and it is immaterial that the withdrawal was made through her judicial guardian, the latter being indisputably clothed with authority to do so. Nor is it of any consequence that Carmen Caiza had executed a will bequeathing the disputed property to the Estradas; that circumstance did not give them the right to stay in the premises after demand to vacate on the theory that they might in future become owners thereof, that right of ownership being at best inchoate, no transfer of ownership being possible unless and until the will is duly probated.

Thus, at the time of the institution of the action of desahucio, the Estradas had no legal right to the property, whether as possessors by tolerance or sufferance, or as owners. They could not claim the right of possession by sufferance, that had been legally ended. They could not assert any right of possession flowing from their ownership of the house; their status as owners is dependent on the probate of the holographic will by which the property had allegedly been bequeathed to them an event which still has to take place; in other words; prior to the probate of the will, any assertion of possession by them would be premature and inefficacious. In any case, the only issue that could legitimately be raised under the circumstances was that involving the Estradas' possession by tolerance, i.e., possession de facto, not de jure. It is therefore incorrect to postulate that the proper remedy for Caiza is not ejectment but accion publiciana, a

plenary action in the RTC or an action that is one for recovery of the right to possession de jure. II The Estradas insist that the devise of the house to them by Caiza clearly denotes her intention that they remain in possession thereof, and legally incapacitated her judicial guardian, Amparo Evangelista, from evicting them therefrom, since their ouster would be inconsistent with the ward's will. A will is essentially ambulatory; at any time prior to the testator's death, it may be changed or revoked; 29 and until admitted to probate, it has no effect whatever and no right can be claimed thereunder, the law being quite explicit: "No will shall pass either real or personal property unless it is proved and allowed in accordance with the Rules of Court" (ART. 838, Id.). 30 An owner's intention to confer title in the future to persons possessing property by his tolerance, is not inconsistent with the former's taking back possession in the meantime for any reason deemed sufficient. And that in this case there was sufficient cause for the owner's resumption of possession is apparent: she needed to generate income from the house on account of the physical infirmities afflicting her, arising from her extreme age. Amparo Evangelista was appointed by a competent court the general guardian of both the person and the estate of her aunt, Carmen Caiza. Her Letters of Guardianship 31 dated December 19, 1989 clearly installed her as the "guardian over the person and properties of the incompetent CARMEN CAIZA with full authority to take possession of the property of said incompetent in any province or provinces in which it may be situated and to perform all other acts necessary for the management of her properties . . ." 32 By that appointment, it became Evangelista's duty to care for her aunt's person, to attend to her physical and spiritual needs, to assure her wellbeing, with right to custody of her person in preference to relatives and friends. 33 It also became her right and duty to get possession of, and exercise control over, Caiza's property, both real and personal, it being recognized principle that the ward has no right to possession or control of his property during her incompetency. 34 That right to manage the ward's estate carries with it the right to take possession thereof and recover it from anyone who retains it, 35 and bring and defend such actions as may be needful for this purpose. 36 Actually, in bringing the action of desahucio, Evangelista was merely discharging the duty to attend to "the comfortable and suitable maintenance of the ward" explicitly imposed on her by Section 4, Rule 96 of the Rules of Court, viz.:

"SEC. 4.Estate to be managed frugally, and proceeds applied to maintenance of ward. A guardian must manage the estate of his ward frugally and without waste, and apply the income and profits thereof, so far as maybe necessary, to the comfortable and suitable maintenance of the ward and his family, if there be any; and if such income and profits be insufficient for that purpose, the guardian may sell or encumber the real estate, upon being authorized by order to do so, and apply to such of the proceeds as may be necessary to such maintenance." Finally, it may be pointed out in relation to the Estradas' defenses in the ejectment action, that as the law now stands, even when, in forcible entry and unlawful detainer cases, the defendant raises the question of ownership in his pleadings and the question of possession cannot be resolved without deciding the issue of ownership, the Metropolitan Trial Courts, Municipal Trial Courts, and Municipal Circuit Trial Courts nevertheless have the undoubted competence to resolve. "the issue of ownership . . . only to determine the issue of possession." 37 III As already stated, Carmen Caiza passed away during the pendency of this appeal. The Estradas thereupon moved to dismiss the petition, arguing that Caiza's death automatically terminated the guardianship, Amparo Evangelista lost all authority as her judicial guardian, and ceased to have legal personality to represent her in the present appeal. The motion is without merit. While it is indeed well-established rule that the relationship of guardian and ward is necessarily terminated by the death of either the guardian or the ward, 38 the rule affords no advantage to the Estradas. Amparo Evangelista, as niece of Carmen Caiza, is one of the latter's only two (2) surviving heirs, the other being Caiza's nephew, Ramon C. Nevado. On their motion and by Resolution of this Court 39 of June 20, 1994, they were in fact substituted as parties in the appeal at bar in place of the deceased, in accordance with Section 17, Rule 3 of the Rules of Court, viz.: 40 "SEC. 17.Death of a party. After a party dies and the claim is not thereby extinguished, the court shall order, upon proper notice, the legal representative of the deceased to appear and be substituted for the deceased within a period of thirty (30) days, or within such time as may be granted. If the legal representative fails to appear within said time, the court may order the opposing party to procure the appointment of a legal representative of the deceased within a time to be specified by the court, and the representative shall immediately appear for and on behalf of the interest of the deceased. The court charges involved in procuring such appointment, if defrayed by the opposing party, may be recovered as costs. The heirs of the deceased may be allowed to be substituted for the

deceased, without requiring the appointment of an executor or administrator and the court may appoint guardian ad litem for the minor heirs. To be sure, an ejectment case survives the death of a party. Caiza's demise did not extinguish the desahucio suit instituted by her through her guardian. 41 That action, not being a purely personal one, survived her death; her heirs have taken her place and now represent her interests in the appeal at bar. WHEREFORE, the petition is GRANTED. The Decision of the Court of Appeals promulgated on June 2, 1993 affirming the Regional Trial Court's judgment and dismissing petitioner's petition for certiorari is REVERSED and SET ASIDE, and the Decision dated April 13, 1992 of the Metropolitan Trial Court of Quezon City, Branch 35, in Civil Case No. 3410 is REINSTATED and AFFIRMED. Costs against private respondents. cda SO ORDERED. Davide, Jr., Melo, Francisco and Panganiban, JJ., concur. [G.R. No. 115925. August 15, 2003.] SPOUSES RICARDO PASCUAL and CONSOLACION SIOSON, petitioners, vs. COURT OF APPEALS and REMEDIOS S. EUGENIO-GINO, respondents. Delos Santos Delos Santos & Delos Santos for petitioners. Virgilio C. Manguera & Associates for private respondent. SYNOPSIS Petitioner Consolacion Sioson and respondent Remedios S. Eugenio-Gino are the niece and granddaughter, respectively, of the late Canuto Sioson. Canuto and 11 other individuals, including his sister Catalina Sioson and his brother Victoriano Sioson, were co-owners of a parcel of land in Tanza, Navotas, Metro Manila known as Lot 2 of Plan Psu 13245, which had an area of 9,347 square meters and was covered by Original Certificate of Title No. 4207 issued by the Register of Deeds of Rizal. Catalina, Canuto, and Victoriano each owned an aliquot 10/70 share or 1,335 square meters of Lot 2. On September 26, 1956, Canuto and Consolacion allegedly executed a Kasulatan ng Bilihang Tuluyan wherein Canuto sold his 10/70 share in Lot 2 in favor of Consolacion. Consolacion immediately took possession of Lot Nos. 2-A and 2-E. She later declared the land for taxation purposes and paid the corresponding real estate taxes. On February 4, 1988, respondent Remedios S. Eugenio-Gino filed a complaint against Consolacion and her

spouse Ricardo Pascual in the Regional Trial Court of Malabon, Branch 165, for "Annulment or Cancellation of Transfer Certificate of Title and Damages." Remedios claimed that she is the owner of Lot Nos. 2-A and 2-E because her aunt Catalina Sioson devised the lots to her in her last will and testament. Consolation and her spouse sought to dismiss the complaint on the ground of prescription. Petitioners claimed that the basis of the action is fraud, and Remedios should have filed the action within four years from the registration of Consolacion's title on 28 October 1968, and not some 19 years later on February 4, 1988. The trial court denied the motion to dismiss. Eventually, the trial court rendered judgment dismissing the case. On appeal, the appellate court reversed the decision of the trial court. Petitioners filed a petition before the Court questioning the Court of Appeals' ruling. The Supreme Court ruled in favor of petitioners and granted the petition. According to the Court, the prescriptive period to recover property obtained by fraud or mistake, giving rise to an implied trust under Article 1144. Remedios' action is based on an implied trust under Article 1456 since she claims that the inclusion of the additional 1,335 square meters in TCT No. (232252) 1321 was without basis. In effect, she asserts that Consolacion acquired the additional 1,335 square meters through mistake or fraud and thus Consolacion should be considered a trustee of an implied trust for the benefit of the rightful owner of the property. Clearly, the applicable prescriptive period is ten years under Article 1144 and not four years under Articles 1389 and 1391. The ten-year prescriptive period begins to run from the date the adverse party repudiates the implied trust, which repudiation takes place when the adverse party registers the land. Remedios filed her complaint on February 4, 1988 or more than 19 years after Consolacion registered her title over Lot Nos. 2-A and 2-E on 28 October 1968. Unquestionably, Remedios filed the complaint late warranting its dismissal. SYLLABUS 1.CIVIL LAW; PRESCRIPTION OF ACTIONS; PRESENT ACTION IS BARRED BY PRESCRIPTION; THE PRESCRIPTIVE PERIOD TO RECOVER PROPERTY OBTAINED BY FRAUD OR MISTAKE GIVING RISE TO AN IMPLIED TRUST UNDER ARTICLE 1456 OF THE CIVIL CODE IS TEN YEARS. REMEDIOS' action is based on an implied trust under Article 1456 since she claims that the inclusion of the additional 1,335 square meters in TCT No. (232252) 1321 was without basis. In effect, REMEDIOS asserts that CONSOLACION acquired the additional 1,335 square meters through mistake or fraud and thus CONSOLACION should be considered a trustee of an implied trust for the benefit of the rightful owner of the property. Clearly, the applicable prescriptive period is ten years under Article 1144 and not four years under Articles 1389 and 1391. It is now well-settled that the prescriptive period to recover property obtained by fraud or mistake, giving rise to an implied trust under Article 1456 of the Civil Code, is ten years pursuant to Article 1144. This ten-year prescriptive period begins to run from the date the

adverse party repudiates the implied trust, which repudiation takes place when the adverse party registers the land. REMEDIOS filed her complaint on 4 February 1988 or more than 19 years after CONSOLACION registered her title over Lot Nos. 2-A and 2-E on 28 October 1968. Unquestionably, REMEDIOS filed the complaint late thus warranting its dismissal. As the Court recently declared in Spouses Alfredo v. Spouses Borras, Following Caro, we have consistently held that an action for reconveyance based on an implied trust prescribes in ten years. We went further by specifying the reference point of the ten-year prescriptive period as the date of the registration of the deed or the issuance of the title. 2.ID.; ID.; ID.; ID.; THE COURT'S RULING IN ADDILLE VS. COURT OF APPEALS WHICH IS ANCHORED ON FRAUD IS NOT APPLICABLE IN CASE AT BAR. In holding that the action filed by REMEDIOS has not prescribed, the Court of Appeals invoked this Court's ruling in Adille v. Court of Appeals. In Adille, the Court reckoned the ten-year prescriptive period for enforcing implied trusts not from registration of the adverse title but from actual notice of the adverse title by the cestui que trust. However, the. Court, in justifying its deviation from the general rule, explained: [W]hile actions to enforce a constructive trust prescribes (sic) in ten years, reckoned from the date of the registration of the property, we . . . are not prepared to count the period from such date in this case. We note the petitioner's sub rosa efforts to get hold of the property exclusively for himself beginning with his fraudulent misrepresentation in his unilateral affidavit of extrajudicial settlement that he is "the only heir and child of his mother Feliza["] with the consequence that he was able to secure title in his name also. Such commission of specific fraudulent conduct is absent in the present case. Other than asserting that petitioners are guilty of fraud because they secured title to Lot Nos, 2-A and 2-E with an area twice bigger than what CANUTO allegedly sold to CONSOLACION, REMEDIOS did not present any other proof of petitioners' fraudulent conduct akin to Adille. REMEDIOS does not assail the KASULATAN or the JOINT AFFIDAVIT as fictitious or forged. REMEDIOS even admits the authenticity of Subdivision Plan Psd 34713 as certified by the Assistant Director of Lands. Moreover, REMEDIOS has not contested petitioners' claim that CANUTO doubled his share in Lot 2 by acquiring VICTORIANO's share. Plainly, the increase in the area sold from 1,335 square meters. to 2,670 square meters is a glaring mistake. There is, however, no proof whatsoever that this increase in area was the result of fraud. Allegations of fraud in actions to enforce implied trusts must be proved by clear and convincing evidence. Adille, which is anchored on fraud, cannot apply to the present case. 3.ID.; ID.; ID.; ID.; ASSUMING THAT THE TEN-YEAR PRESCRIPTIVE PERIOD BEGINS TO RUN ONLY UPON ACTUAL NOTICE OF TILE ADVERSE TITLE APPLYING THE RULING IN ADILLE VS. COURT OF APPEALS, STILL RESPONDENT'S RIGHT TO FILE THE SUIT IS BARRED BY PRESCRIPTION. Even if we apply Adille to this case, prescription still bars REMEDIOS' complaint. As executrix of CATALINA's LAST WILL, REMEDIOS submitted to

the then Court of First Instance of Caloocan in Special Proceedings Case No. C-208 the inventory of all the property comprising CATALINA's estate, which included Lot Nos. 2-A and 2-E. In a motion dated 7 November 1977, CONSOLACION sought the exclusion of these lots from the inventory, invoking her title over them. REMEDIOS was served a copy of the motion on 8 November 1977 against which she filed an opposition. Nevertheless, the trial court overruled REMEDIOS' objection. In its order of 3 January 1978, the trial court granted CONSOLACION's motion and ordered the exclusion of Lot Nos. 2-A and 2-E from the estate of CATALINA. REMEDIOS did not appeal from this ruling. REMEDIOS thus had actual notice of petitioners' adverse title on 8 November 1977. Even if, for the sake of argument, the ten-year prescriptive period begins to run upon actual notice of the adverse title, still REMEDIOS' right to file this suit has prescribed. REMEDIOS had until 11 November 1987 within which to file her complaint. When she did so on 4 February 1988, the prescriptive period had already lapsed. 4.REMEDIAL LAW; CIVIL PROCEDURE; PARTIES TO CIVIL ACTION; RESPONDENT IS NOT A REAL PARTY-IN-INTEREST. Not only does prescription bar REMEDIOS' complaint. REMEDIOS is also not a real party-ininterest who can file the complaint, as the trial court correctly ruled. The 1997 Rules of Civil Procedure require that every action must be prosecuted or defended in the name of the real party-in-interest who is the party who stands to benefit or suffer from the judgment in the suit. If one who is not a real party-in-interest brings the action, the suit is dismissible for lack of cause of action. REMEDIOS anchored her claim over Lot Nos. 2-A and 2 E (or over its one-half portion on the devise of these lots to her under CATALINA's LAST WILL. However, the trial court found that the probate court did not issue any order admitting the LAST WILL to probate. REMEDIOS does not contest this finding. Indeed, during the trial, REMEDIOS admitted that Special Proceedings Case No. C-208 is still pending. Article 838 of the Civil Code states that "[N]o will shall pass either real or personal property unless it is proved and allowed in accordance with the Rules of Court." This Court has interpreted this provision to mean, "until admitted to probate, [a will] has no effect whatever and no right can be claimed thereunder." REMEDIOS anchors her right in filing this suit on her being a devisee of CATALINA's LAST WILL. However, since the probate court has not admitted CATALINA's LAST WILL, REMEDIOS has not acquired any right under the LAST WILL. REMEDIOS is thus without any cause of action either to seek reconveyance of Lot Nos. 2-A and 2-E or to enforce an implied trust over these lots.

DECISION CARPIO, J p:

The Case This is a petition for review of the Decision 1 dated 31 January 1994 of the Court of Appeals ordering the Register of Deeds of Metro Manila, District III, to place TCT No. (232252) 1321 in the name of respondent Remedios S. Eugenio-Gino. The Decision ordered the Register of Deeds to cancel the names of petitioners Ricardo Pascual and Consolacion Sioson ("petitioners") in TCT No. (232252) 1321. The Decision also directed petitioners to pay respondent moral and exemplary damages and attorney's fees. HASTCa The Facts Petitioner Consolacion Sioson ("CONSOLACION") and respondent Remedios S. Eugenio-Gino ("REMEDIOS") are the niece and granddaughter, respectively, of the late Canuto Sioson ("CANUTO"). CANUTO and 11 other individuals, including his sister Catalina Sioson ("CATALINA") and his brother Victoriano Sioson ("VICTORIANO"), were co-owners of a parcel of land in Tanza, Navotas, Metro Manila. The property, known as Lot 2 of Plan Psu 13245, had an area of 9,347 square meters and was covered by Original Certificate of Title No. 4207 issued by the Register of Deeds of Rizal. CATALINA, CANUTO, and VICTORIANO each owned an aliquot 10/70 share or 1,335 square meters of Lot 2. 2 On 20 November 1951, CANUTO had Lot 2 surveyed and subdivided into eight lots (Lot Nos. 2-A to 2-H) through Subdivision Plan Psd 34713 which the Director of Lands approved on 30 May 1952. Lot No. 2-A, with an area of 670 square meters, and Lot No. 2-E, with an area of 2,000 square meters, were placed under CANUTO's name. Three other individuals took the remaining lots. 3 On 26 September 1956, CANUTO and CONSOLACION executed a Kasulatan ng Bilihang Tuluyan 4 ("KASULATAN"). Under the KASULATAN, CANUTO sold his 10/70 share in Lot 2 in favor of CONSOLACION for P2,250.00. The KASULATAN, notarized by Notary Public Jose T. de los Santos of Navotas, provides: Na ako, CANUTO SIOSON, mamamayang Pilipino, may katampatang gulang, kasal kay Raymunda San Diego, at naninirahan sa Tanza, Navotas, Rizal, sa bisa at pamamagitan ng kasulatang ito ay nagpapatunay at nagpapatibay: 1.Na ako ang lubos at tunay na may-ari ng 10/70 bahaging hindi hati (10/70 porcion pro-indiviso) ng isang lagay na lupa (Lote No. 2, Plano Psu-13245), na nasa sa nayon ng Tanza, Municipio ng Navotas, Provincia ng Rizal, at ang descripcion o pagkakakilanlan ng nasabing lote ay nakasaad sa Certificado Original, de Titulo No. 4207 ng Oficina ng Registrador de Titulos ng Rizal, gaya ng sumusunod:

xxx xxx xxx 2.Na dahil at alang-alang sa halagang Dalawang Libo Dalawang Daan at Limampung Piso (P2,250.00), salaping Pilipino, na sa akin ay ibinayad ni CONSOLACION SIOSON, kasal kay Ricardo S. Pascual, may sapat na gulang, mamamayang Pilipino, at naninirahan sa Dampalit, Malabon, Rizal at ang pagkakatanggap ng nasabing halaga ay aking inaamin at pinatutunayan, ay aking ipinagbili, inilipat at isinalin, sa pamamagitan ng bilihang tuluyan at walang pasubali a favor [sic] sa nasabing si CONSOLACION SIOSON, sa kanyang tagapagmana at mapaglilipatan ang lahat ng akin titulo, karapatan at kaparti na binubuo ng 10/70 bahaging hindi hati (10/70 porcion pro-indiviso) ng loteng descrito or tinutukoy sa itaas nito. (Italics supplied) CONSOLACION immediately took possession of Lot Nos. 2-A and 2-E. She later declared the land for taxation purposes and paid the corresponding real estate taxes. 5 On 23 October 1968, the surviving children of CANUTO, namely, Felicidad and Beatriz, executed a joint affidavit 6 ("JOINT AFFIDAVIT") affirming the KASULATAN in favor of CONSOLACION. They also attested that the lots their father had sold to CONSOLACION were Lot Nos. 2-A and 2-E of Subdivision Plan Psd 34713. The JOINT AFFIDAVIT reads: KAMING sina FELICIDAD SIOSON at BEATRIZ SIOSON, pawang mga Pilipino, kapuwa may sapat na gulang at naninirahan, ang una sa Tanza, Navotas at ang ikalawa sa Concepcion, Malabon, lalawigan ng Rizal, sa ilalim ng isang ganap na panunumpa alinsunod sa batas, ay malayang nagsasalaysay ng mga sumusunod: Na kami ang mga buhay na anak na naiwan ni CANUTO SIOSON na nagmamay-ari ng 10/70 bahaging hindi hati (10/70 porcion pro-indiviso) ng isang lagay na lupa (Lote No. 2, plano Psu-13245), na nasa Nayon ng Tanza, Navotas, Rizal, at ang mga palatandaan nito ay nasasaad sa Certificado Original de Titulo No. 4207 ng Tanggapan ng Registrador de Titulos ng Rizal; Na sa lubos naming kaalaman, ay ipinagbili ng aming Ama na si Canuto Sioson ang kaniyang buong bahagi na 10/70 sa nasabing Lote No. 2, kay CONSOLACION SIOSON, may-bahay ni Ricardo S. Pascual, na taga Dampalit, Malabon, Rizal, sa halagang P2,250.00, salaping pilipino, noong ika 16 [sic] ng Septiembre, 1956, sa pamamagitan ng isang KASULATAN NG BILIHANG TULUYAN na pinagtibay sa harap ng Notario Publico Jose T. de los Santos nang pechang nabanggit, sa Navotas, Rizal, (Doc. No. 194, Page No. 84; Book No. IV; Series of 1956); Na ang nasabing lupa na ipinagbili ng aming Ama kay Consolacion Sioson ni Pascual, ay nakikilala ngayong mga Lote No. 2-A at Lote 2-E ng Plano de

Subdivision Psd-34713; na pinagtibay ng Assistant Director of Lands noong Mayo 30, 1952; Na aming ngayong pinatitibayan ang pagka-pagbili ng bahagi ng aming Ama kay Consolacion Sioson ni Pascual ng ngayo'y nakikilalang Lote No. 2-A at Lote No. 2-E ng Plano de Subdivision Psd-34713. (Italics supplied) On 28 October 1968, CONSOLACION registered the KASULATAN and the JOINT AFFIDAVIT with the Office of the Register of Deeds of Rizal ("Register of Deeds"). Based on these documents, the Register of Deeds issued to CONSOLACION Transfer Certificate of Title No. (232252) 1321 covering Lot Nos. 2-A and 2-E of Subdivision Plan Psd 34713 with a total area of 2,670 square meters. On 4 February 1988, REMEDIOS filed a complaint against CONSOLACION and her spouse Ricardo Pascual in the Regional Trial Court of Malabon, Branch 165, for "Annulment or Cancellation of Transfer Certificate [of Title] and Damages." REMEDIOS claimed that she is the owner of Lot Nos. 2-A and 2-E because CATALINA devised these lots to her in CATALINA's last will and testament 7 ("LAST WILL") dated 29 May 1964. REMEDIOS added that CONSOLACION obtained title to these lots through fraudulent means since the area covered by TCT (232252) 1321 is twice the size of CANUTO's share in Lot 2. REMEDIOS prayed for the cancellation of CONSOLACION's title, the issuance of another title in her name, and the payment to her of damages. Petitioners sought to dismiss the complaint on the ground of prescription. Petitioners claimed that the basis of the action is fraud, and REMEDIOS should have filed the action within four years from the registration of CONSOLACION's title on 28 October 1968 and not some 19 years later on 4 February 1988. REMEDIOS opposed the motion, claiming that she became aware of CONSOLACION's adverse title only in February 1987. CONSOLACION maintained that she had timely filed her complaint within the four-year prescriptive on 4 February 1988. In its order of 28 April 1988, the trial court denied petitioners' motion to dismiss. The trial court held that the reckoning of the prescriptive period for filing REMEDIOS' complaint is evidentiary in nature and must await the presentation of the parties' evidence during the trial. During the pre-trial stage, REMEDIOS clarified that she was claiming only CATALINA's 10/70 share in Lot 2, or 1,335 square meters, which constitute of the area of Lot Nos. 2-A and 2-E. 8 The trial of the case then ensued. The Ruling of the Trial Court On 26 November 1990, the trial court rendered judgment dismissing the case and ordering REMEDIOS to pay petitioners P10,000 as attorney's fees and the cost of suit. The trial court held that the action filed by REMEDIOS is

based on fraud, covered by the four-year prescriptive period. The trial court also held that REMEDIOS knew of petitioners' adverse title on 19 November 1982 when REMEDIOS testified against petitioners in an ejectment suit petitioners had filed against their tenants in Lot Nos. 2-A and 2-E. Thus, the complaint of REMEDIOS had already prescribed when she filed it on 4 February 1988. The trial court further ruled that REMEDIOS has no right of action against petitioners because CATALINA's LAST WILL from which REMEDIOS claims to derive her title has not been admitted to probate. Under Article 838 of the Civil Code, no will passes real or personal property unless it is allowed in probate in accordance with the Rules of Court. The dispositive portion of the trial court's decision provides: WHEREFORE, judgment is hereby rendered in favor of the defendants and against plaintiff, ordering: 1.The dismissal of this case; 2.The plaintiff to pay the defendants the sum of Ten Thousand (P10,000.00) Pesos as and for attorney's fees; and 3.The plaintiff to pay the costs of suit. 9 REMEDIOS appealed to the Court of Appeals. The Ruling of the Court of Appeals On 31 January 1994, the Court of Appeals rendered judgment reversing the decision of the trial court. The appellate court held that what REMEDIOS filed was a suit to enforce an implied trust allegedly created in her favor when CONSOLACION fraudulently registered her title over Lot Nos. 2-A and 2-E. Consequently, the prescriptive period for filing the complaint is ten years, not four. The Court of Appeals counted this ten-year period from 19 November 1982. Thus, when REMEDIOS filed her complaint on 4 February 1988, the ten-year prescriptive period had not yet expired. The appellate court held that CATALINA's unprobated LAST WILL does not preclude REMEDIOS from seeking reconveyance of Lot Nos. 2-A and 2-E as the LAST WILL may subsequently be admitted to probate. The dispositive portion of the appellate court's ruling provides: WHEREFORE, the decision appealed from is REVERSED and SET ASIDE. The Registry of Deeds of Rizal or Metro Manila, District III, is ordered to place Transfer Certificate of Title No. (232252) 1321 under the name of Remedios S. Eugenio-Gino as executor of the will of Catalina Sioson and cancel the

names of the Spouses Ricardo Pascual and Consolacion Sioson inscribed over said title as owners of the covered lot. Defendants-appellees spouses Ricardo Pascual and Consolacion Sioson are ordered to pay plaintiffappellant Remedios S. Eugenio-Gino moral damages in the amount of P50,000.00, exemplary damages of P20,000[.00] and attorney's fees of P20,000.00 and P500.00 per appearance. 10

The Ruling of the Court The petition has merit. The Action is Barred by Prescription The trial court held that the action filed by REMEDIOS is one based on fraud. REMEDIOS' action seeks to recover real property that petitioners allegedly acquired through fraud. Consequently, the trial court held that the action prescribes in four years counted from REMEDIOS' actual discovery of petitioners' adverse title. The trial court concluded that REMEDIOS belatedly filed her suit on 4 February 1988 because she actually knew of petitioners' adverse title since 19 November 1982. On the other hand, the Court of Appeals held that what REMEDIOS filed was a suit to enforce an implied trust. REMEDIOS had ten years counted from actual notice of the breach of trust, that is, the assertion of adverse title, within which to bring her action. The appellate court held that REMEDIOS seasonably filed her complaint on 4 February 1988 because she allegedly discovered petitioners' adverse title only on 19 November 1982. What REMEDIOS filed was an action to enforce an implied trust but the same is already barred by prescription. Prescriptive Period is 10 Years Counted From Registration of Adverse Title The four-year prescriptive period relied upon by the trial court applies only if the fraud does not give rise to an implied trust, and the action is to annul a voidable contract under Article 1390 12 of the Civil Code. In such a case, the four-year prescriptive period under Article 1391 13 begins to run from the time of discovery of the mistake, violence, intimidation, undue influence or fraud. In the present case, REMEDIOS does not seek to annul the KASULATAN. REMEDIOS does not assail the KASULATAN as a voidable contract. In fact, REMEDIOS admits the validity of the sale of 1,335 square meters of land under the KASULATAN. However, REMEDIOS alleges that the excess area of 1,335 meters is not part of the sale under the KASULATAN. REMEDIOS seeks the removal of this excess area from TCT No. (232252) 1321 that was issued to CONSOLACION. Consequently, REMEDIOS' action is for "Annulment or Cancellation of Transfer Certificate [of Title] and Damages." 14 REMEDIOS' action is based on an implied trust under Article 1456 since she claims that the inclusion of the additional 1,335 square meters in TCT No. (232252) 1321 was without basis. In effect, REMEDIOS asserts that

Petitioners sought reconsideration of the ruling. However, the Court of Appeals denied their motion in its order dated 15 June 1994. Hence, this petition. The Issues Petitioners allege the following assignment of errors: I.THE COURT OF APPEALS ERRED IN HOLDING THAT PRIVATE RESPONDENT'S CAUSE OF ACTION IS NOT BARRED BY PRESCRIPTION WHICH FINDING IS MANIFESTLY CONTRARY TO LAW AND THE APPLICABLE DECISIONS OF THIS HONORABLE COURT. II.THE COURT OF APPEALS ERRED IN NOT HOLDING THAT PRIVATE RESPONDENT DOES NOT HAVE ANY TITLE AND HAS UTTERLY FAILED TO PROVE ANY TITLE TO THE LOTS INVOLVED IN THIS CASE, AND IN ORDERING THE CANCELLATION OF THE CERTIFICATE OF TITLE OF PETITIONERS. III.THE COURT OF APPEALS ACTED WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OF JURISDICTION AND IN GROSS VIOLATION OF THE RULES OF COURT IN ORDERING THE ENTIRE PROPERTY COVERED BY TRANSFER CERTIFICATE OF TITLE NO. (232252) 1321 TO BE PLACED IN THE NAME OF PRIVATE RESPONDENT, BECAUSE THE CLAIM OF PRIVATE RESPONDENT IS LIMITED ONLY TO ONE-HALF () PORTION OF THE PROPERTY, AND THE OTHER HALF THEREOF UNQUESTIONABLY BELONGS TO PETITIONERS. IV.THE COURT OF APPEALS ERRED IN HOLDING THAT PETITIONERS ACTED FRAUDULENTLY AND IN BAD FAITH IN SECURING THEIR CERTIFICATE OF TITLE TO THE PROPERTY INVOLVED IN THIS CASE, AND IN ORDERING PETITIONERS TO PAY PRIVATE RESPONDENTS MORAL DAMAGES, EXEMPLARY DAMAGES AND ATTORNEY'S FEES. 11 The pivotal questions are: (1) whether prescription bars the action filed by REMEDIOS, and (2) whether REMEDIOS is a real party-in-interest.

CONSOLACION acquired the additional 1,335 square meters through mistake or fraud and thus CONSOLACION should be considered a trustee of an implied trust for the benefit of the rightful owner of the property. Clearly, the applicable prescriptive period is ten years under Article 1144 and not four years under Articles 1389 and 1391. It is now well-settled that the prescriptive period to recover property obtained by fraud or mistake, giving rise to an implied trust under Article 1456 15 of the Civil Code, is ten years pursuant to Article 1144. 16 This tenyear prescriptive period begins to run from the date the adverse party repudiates the implied trust, which repudiation takes place when the adverse party registers the land. 17 REMEDIOS filed her complaint on 4 February 1988 or more than 19 years after CONSOLACION registered her title over Lot Nos. 2-A and 2-E on 28 October 1968. Unquestionably, REMEDIOS filed the complaint late thus warranting its dismissal. As the Court recently declared in Spouses Alfredo v. Spouses Borras, 18 Following Caro, 19 we have consistently held that an action for reconveyance based on an implied trust prescribes in ten years. We went further by specifying the reference point of the ten-year prescriptive period as the date of the registration of the deed or the issuance of the title. The Court of Appeals' Reckoning of Prescriptive Period from Actual Notice of Adverse Title Not Justified In holding that the action filed by REMEDIOS has not prescribed, the Court of Appeals invoked this Court's ruling in Adille v. Court of Appeals. 20 In Adille, the Court reckoned the ten-year prescriptive period for enforcing implied trusts not from registration of the adverse title but from actual notice of the adverse title by the cestui que trust. However, the Court, in justifying its deviation from the general rule, explained: [W]hile actions to enforce a constructive trust prescribes (sic) in ten years, reckoned from the date of the registration of the property, we . . . are not prepared to count the period from such date in this case. We note the petitioner's sub rosa efforts to get hold of the property exclusively for himself beginning with his fraudulent misrepresentation in his unilateral affidavit of extrajudicial settlement that he is "the only heir and child of his mother Feliza["] with the consequence that he was able to secure title in his name also. (Italics supplied) Such commission of specific fraudulent conduct is absent in the present case. Other than asserting that petitioners are guilty of fraud because they secured title to Lot Nos. 2-A and 2-E with an area twice bigger than what

CANUTO allegedly sold to CONSOLACION, REMEDIOS did not present any other proof of petitioners' fraudulent conduct akin to Adille. CONSOLACION obtained title to Lot Nos. 2-A and 2-E through the KASULATAN executed by CANUTO and the JOINT AFFIDAVIT executed by his surviving children, one of whom, Felicidad, is the mother of REMEDIOS. The KASULATAN referred to the sale of CANUTO's 10/70 share in Lot 2 without specifying the area of the lot sold. The JOINT AFFIDAVIT referred to the "Plano de Subdivision Psd-34713" without also specifying the area of the lot sold. However, Subdivision Plan Psd 34713, as certified by the Assistant Director of Lands on 30 May 1952, showed an area of 2,670 square meters in the name of CANUTO. Based on these documents, the Register of Deeds issued TCT No. (232252) 1321 to CONSOLACION covering an area of 2,670 square meters. REMEDIOS does not assail the KASULATAN or the JOINT AFFIDAVIT as fictitious or forged. REMEDIOS even admits the authenticity of Subdivision Plan Psd 34713 as certified by the Assistant Director of Lands. 21 Moreover, REMEDIOS has not contested petitioners' claim that CANUTO doubled his share in Lot 2 by acquiring VICTORIANO's share. 22 Plainly, the increase in the area sold from 1,335 square meters to 2,670 square meters is a glaring mistake. There is, however, no proof whatsoever that this increase in area was the result of fraud. Allegations of fraud in actions to enforce implied trusts must be proved by clear and convincing evidence. 23 Adille, which is anchored on fraud, 24 cannot apply to the present case. At any rate, even if we apply Adille to this case, prescription still bars REMEDIOS' complaint. As executrix of CATALINA's LAST WILL, REMEDIOS submitted to the then Court of First Instance of Caloocan in Special Proceedings Case No. C-208 the inventory of all the property comprising CATALINA's estate, which included Lot Nos. 2-A and 2-E. In a motion dated 7 November 1977, CONSOLACION sought the exclusion of these lots from the inventory, invoking her title over them. REMEDIOS was served a copy of the motion on 8 November 1977 against which she filed an opposition. Nevertheless, the trial court overruled REMEDIOS' objection. In its order of 3 January 1978, the trial court granted CONSOLACION's motion and ordered the exclusion of Lot Nos. 2-A and 2-E from the estate of CATALINA. REMEDIOS did not appeal from this ruling. REMEDIOS thus had actual notice of petitioners' adverse title on 8 November 1977. Even if, for the sake of argument, the ten-year prescriptive period begins to run upon actual notice of the adverse title, still REMEDIOS' right to file this suit has prescribed. REMEDIOS had until 11 November 1987 within which to file her complaint. When she did so on 4 February 1988, the prescriptive period had already lapsed.

Respondent is Not a Real Party-in-Interest Not only does prescription bar REMEDIOS' complaint. REMEDIOS is also not a real party-in-interest who can file the complaint, as the trial court correctly ruled. The 1997 Rules of Civil Procedure require that every action must be prosecuted or defended in the name of the real party-in-interest who is the party who stands to benefit or suffer from the judgment in the suit. 25 If one who is not a real party-in-interest brings the action, the suit is dismissible for lack of cause of action. 26

REMEDIOS anchored her claim over Lot Nos. 2-A and 2-E (or over its onehalf portion) on the devise of these lots to her under CATALINA's LAST WILL. However, the trial court found that the probate court did not issue any order admitting the LAST WILL to probate. REMEDIOS does not contest this finding. Indeed, during the trial, REMEDIOS admitted that Special Proceedings Case No. C-208 is still pending. 27 Article 838 of the Civil Code states that "[N]o will shall pass either real or personal property unless it is proved and allowed in accordance with the Rules of Court." This Court has interpreted this provision to mean, "until admitted to probate, [a will] has no effect whatever and no right can be claimed thereunder." 28 REMEDIOS anchors her right in filing this suit on her being a devisee of CATALINA's LAST WILL. However, since the probate court has not admitted CATALINA's LAST WILL, REMEDIOS has not acquired any right under the LAST WILL. REMEDIOS is thus without any cause of action either to seek reconveyance of Lot Nos. 2-A and 2-E or to enforce an implied trust over these lots. The appellate court tried to go around this deficiency by ordering the reconveyance of Lot Nos. 2-A and 2-E to REMEDIOS in her capacity as executrix of CATALINA's LAST WILL. This is inappropriate because REMEDIOS sued petitioners not in such capacity but as the alleged owner of the disputed lots. Thus, REMEDIOS alleged in her complaint: 3.The plaintiff is a niece and compulsory heir of the late CATALINA SIOSON who died single and without any child of her own and who, during her lifetime, was the owner of those two (2) parcels of land located at Tanza, Navotas, Rizal (now Metro Manila), formerly covered by Original Certificate of Title No. 4207 of the Registry of Deeds for the Province of Rizal, . . . 4.The plaintiff, aside from being the compulsory heir of the deceased CATALINA SIOSON, has sole and exclusive claim of ownership over the

above-mentioned two (2) parcels of land by virtue of a will or "Huling Habilin at Pagpapasiya" executed by Catalina Sioson on May 19, 1964 before Notary Public Efren Y. Angeles at Navotas, Rizal, in which document the deceased Catalina Sioson specifically and exclusively bequeathed to the plaintiff the above-mentioned Lots 2-A and 2-E of Psd-34713 approved by the Bureau of Lands on May 30, 1952. Copy of the "Huling Habilin at Pagpapasiya" consisting of four (4) pages is hereto attached and forms an integral part hereof as Annex "A"; 5.Sometime on or about February, 1987, plaintiff discovered that the above-mentioned Lots 2-A and 2-E of subdivision plan Psd-34713 are now registered or titled in the name of the defendants under Transfer Certificate of Title No. (232252) 1321 of the Registry of Deeds of Rizal, now MetroManila District III. Copy of the title is hereto attached and forms an integral part hereof as Annex "B"; 6.Upon further inquiry and investigation, plaintiff discovered that the defendants were able to obtain title in their name of the said parcels of land by virtue of a "Kasulatan ng Bilihang Tuluyan" allegedly executed by Canuto Sioson on September 26, 1956 before Notary Public Jose [T.] de los Santos of Navotas, Metro-Manila. Copy of the said document is hereto attached and forms an integral part hereof as Annex "C"; 7.The plaintiff also discovered that although . . . the original sale did not specify the parcels of land sold by Canuto Sioson, the defendants submitted an alleged Affidavit executed by Felicidad Sioson and Beatriz Sioson identifying the lots sold by Canuto Sioson to the defendants as Lots 2-A and 2-E of subdivision plan Psd-34713. Copy of the Affidavit dated October 3, 1968 on the basis of which the present Transfer Certificate of Title No. (232252) 1321 was issued to the defendants is hereto attached and forms an integral part hereof as Annex "D"; 8.The defendants are clearly guilty of fraud in presenting the aforementioned Affidavit (Annex "D") to the Register of Deeds as the basis of their claim to Lots 2-A and 2-E in view of the fact that the parcels sold to them by Canuto Sioson, assuming there was such a sale, were different parcels of land, Lots 2-A and 2-E being the properties of the late Catalina Sioson who bequeathed the same to the plaintiff. xxx xxx xxx 12.Because of the defendants' fraudulent actuations on this matter, plaintiff suffered and continious [sic] to suffer moral damages arising from anxiety, shock and wounded feelings. Defendants should also be assessed exemplary damages by way of a lesson to deter them from again committing the fraudulent acts, or acts of similar nature, by virtue of which they were able

to obtain title to the parcels of land involved in this case . . . 29 (Italics supplied) Indeed, all throughout the proceedings below and even in her Comment to this petition, REMEDIOS continued to pursue her claim as the alleged owner of one-half of the disputed lots. Other Matters Raised in the Petition The Court deems it unnecessary to pass upon the other errors petitioners assigned concerning the award of damages and attorneys fees to REMEDIOS. Such award assumes that REMEDIOS is a real party-in-interest and that she timely filed her complaint. As earlier shown, this is not the case. WHEREFORE, we GRANT the petition. The Decision of the Court of Appeals dated 31 January 1994 and its Resolution dated 15 June 1994 are SET ASIDE. The complaint filed by respondent Remedios Eugenio-Gino, dated 2 February 1988 is DISMISSED. SO ORDERED. Davide, Jr., C .J ., Vitug, Ynares-Santiago, and Azcuna, JJ ., concur. [G.R. No. L-56340. June 24, 1983.] SPOUSES ALVARO PASTOR, JR. and MA. ELENA ACHAVAL DE PASTOR, petitioners, vs. THE COURT OF APPEALS, JUAN Y. REYES, JUDGE OF BRANCH I, COURT OF APPEALS, JUAN Y. REYES, JUDGE OF BRANCH I, COURT OF FIRST INSTANCE OF CEBU and LEWELLYN BARLITO QUEMADA, respondents. Pelaez, Pelaez, & Pelaez Law Office for petitioners. Ceniza, Rama & Associates for private respondents. SYLLABUS 1.REMEDIAL LAW; SPECIAL PROCEEDINGS; PROBATE OF WILL; ISSUE CONFINED TO THE EXTRINSIC VALIDITY OF WILLS. In a special proceeding for the probate of a will, the issue by and large is restricted to the extrinsic validity of a will, i.e., whether the testator, being of sound mind, freely executed the will in accordance with the formalities prescribed by law (Rules of Court, Rule 75, Section 1; Rule 76, Section 9).

2.ID.; ID.; ID.; ID.; QUESTION OF OWNERSHIP NOT RESOLVED WITH FINALITY. As a rule, the question of ownership is an extraneous matter which the Probate Court can not resolve with finality. Thus, for the purpose of determining whether a certain property should be included in the inventory of estate properties, the Probate Court may pass upon the title thereto, but such determination is provisional, not conclusive, and is subject to the final decision in a separate action to resolve title (Valero Vda. de Rodriguez vs. Court of Appeals. 91 SCRA 540). 3.ID.; CIVIL ACTION; JUDGMENT; EXECUTION MUST CONFORM WITH THE DISPOSITIVE PART OF THE DECISION. The rule is that execution of judgment must conform to that decreed in the dispositive part of the decision (Philippine-American Insurance Co. vs. Honorable Flores, 97 SCRA 811). However, in case of ambiguity or uncertainty, the body of the decision may be scanned for guidance in construing the judgment (Heirs of Presto vs. Galang, 78 SCRA 534; Fabular vs. Court of Appeals. 119 SCRA 329, Robles vs. Timario, 107 Phil. 809). 4.ID.; SPECIAL CIVIL ACTIONS; CERTIORARI; REMEDY PROPER IN CASE OF GRAVE ABUSE OF DISCRETION IN THE ISSUANCE OF THE ORDER OF EXECUTION. Private respondent challenges the propriety of certiorari as a means to assail the validity of the disputed Order of Execution. He contends that the error, if any, is one of judgment. not jurisdiction. and properly correctible only on appeal. not certiorari. Under the circumstances of the case at bar, the challenge must be rejected. It is within a court's competence to order the execution of a final judgment; but to order the execution of a final order (which is not even meant to be executed) by reading into it terms that are not there and in utter disregard of existing rules and law, is manifest grave abuse of discretion tantamount to lack of jurisdiction. Consequently, the rule that certiorari may not be invoked to defeat the right of a prevailing party to the execution of a valid and final judgment. is inapplicable. For when an order of execution is issued with grave abuse of discretion or is at variance with the judgment sought to be enforced (PVTA vs. Honorable Gonzales, 92 SCRA 172), certiorari will lie to abate the order of execution. 5.CIVIL LAW; WILLS AND SUCCESSION; LEGACY; ORDERED PAYMENT VIOLATIVE OF THE RULE REQUIRING PRIOR LIQUIDATION OF THE ESTATE. The ordered payment of legacy would be violative of the rule requiring prior liquidation of the estate of the deceased, i.e., the determination of the assets of the estate and payment of all debts and expenses, before apportionment and distribution of the residue among the heirs and legatees (Bernardo vs. Court of Appeals, 7 SCRA 367). 6.TAXATION; NATIONAL INTERNAL REVENUE CODE; ESTATE TAX; PAYMENT THEREOF REQUIRED BEFORE DELIVERY OF INHERITED PROPERTY. Neither has the estate tax been paid on the estate of Pastor, Sr. Payment therefore of the legacy to Quemada would collide with the provision of the National

Internal Revenue Code requiring payment of the estate tax before delivery to any beneficiary of his distributive share of the estate (Section 107 [c]). 7.CIVIL LAW; WILLS AND SUCCESSION; LEGACY, NOT A DEBT. A legacy is not a debt of the estate; indeed, legatees are among those against whom execution is authorized to be issued. DECISION PLANA, J p: I.FACTS: This is a case of hereditary succession. Alvaro Pastor, Sr. (PASTOR, SR.), a Spanish subject, died in Cebu City on June 5, 1966, survived by his Spanish wife Sofia Bossio (who also died on October 21, 1966), their two legitimate children Alvaro Pastor, Jr. (PASTOR, JR.) and Sofia Pastor de Midgely (SOFIA), and an illegitimate child, not natural, by the name of Lewellyn Barlito Quemada (QUEMADA). PASTOR, JR. is a Philippine citizen, having been naturalized in 1936. SOFIA is a Spanish subject. QUEMADA is a Filipino by his mother's citizenship. On November 13, 1970, QUEMADA filed a petition for the probate and allowance of an alleged holographic will of PASTOR, SR. with the Court of First Instance of Cebu, Branch I (PROBATE COURT), docketed as SP No. 3128-R. The will contained only one testamentary disposition: a legacy in favor of QUEMADA consisting of 30% of PASTOR, SR.'s 42% share in the operation by Atlas Consolidated Mining and Development Corporation (ATLAS) of some mining claims in Pia-Barot, Cebu. On November 21, 1970, the PROBATE COURT, upon motion of QUEMADA and after an ex parte hearing, appointed him special administrator of the entire estate of PASTOR, SR., whether or not covered or affected by the holographic will. He assumed office as such on December 4, 1970 after filing a bond of P5,000.00. On December 7, 1970, QUEMADA as special administrator, instituted against PASTOR, JR. and his wife an action for reconveyance of alleged properties of the estate, which included the properties subject of the legacy and which were in the names of the spouses PASTOR, JR. and his wife, Maria Elena Achaval de Pastor, who claimed to be the owners thereof in their own rights, and not by inheritance. The action, docketed as Civil Case No. 274-R, was filed with the Court of First Instance of Cebu, Branch IX. LLjur

On February 2, 1971, PASTOR, JR. and his sister SOFIA filed their opposition to the petition for probate and the order appointing QUEMADA as special administrator. On December 5, 1972, the PROBATE COURT issued an order allowing the will to probate. Appealed to the Court of Appeals in CA-G.R. No. 52961-R, the order was affirmed in a decision dated May 9, 1977. On petition for review, the Supreme Court in G.R. No. L-46645 dismissed the petition in a minute resolution dated November 1, 1977 and remanded the same to the PROBATE COURT after denying reconsideration on January 11, 1978. For two years after remand of the case to the PROBATE COURT, QUEMADA filed pleading after pleading asking for payment of his legacy and seizure of the properties subject of said legacy. PASTOR, JR. and SOFIA opposed these pleadings on the ground of pendency of the reconveyance suit with another branch of the Cebu Court of First Instance. All pleadings remained unacted upon by the PROBATE COURT. On March 5, 1980, the PROBATE COURT set the hearing on the intrinsic validity of the will for March 25, 1980, but upon objection of PASTOR, JR. and SOFIA on the same ground of pendency of the reconveyance suit, no hearing was held on March 25. Instead, the PROBATE COURT required the parties to submit their respective position papers as to how much inheritance QUEMADA was entitled to receive under the will. Pursuant thereto, PASTOR, JR. and SOFIA submitted their Memorandum of authorities dated April 10, which in effect showed that determination of how much QUEMADA should receive was still premature. QUEMADA submitted his Position paper dated April 20, 1980. ATLAS, upon order of the Court, submitted a sworn statement of royalties paid to the Pastor Group of claimants from June 1966 (when Pastor, Sr. died) to February 1980. The statement revealed that of the mining claims being operated by ATLAS, 60% pertained to the Pastor Group distributed as follows: 1.A. Pastor, Jr.40.5% 2.E. Pelaez, Sr.15.0% 3.B. Quemada4.5% On August 20, 1980, while the reconveyance suit was still being litigated in Branch IX of the Court of First Instance of Cebu, the PROBATE COURT issued the now assailed Order of Execution and Garnishment, resolving the question of ownership of the royalties payable by ATLAS and ruling in effect that the legacy to QUEMADA was not inofficious. [There was absolutely no statement or claim in the Order that the Probate Order of December 5, 1972 had previously resolved the issue of ownership of the mining rights of royalties thereon, nor the intrinsic validity of the holographic will.]

The order of August 20, 1980 found that as per the holographic will and a written acknowledgment of PASTOR, JR. dated June 17, 1962, of the above 60% interest in the mining claims belonging to the Pastor Group, 42% belonged to PASTOR, SR. and only 33% belonged to PASTOR, JR. The remaining 25% belonged to E. Pelaez, also of the Pastor Group. The PROBATE COURT thus directed ATLAS to remit directly to QUEMADA the 42% royalties due decedent's estate, of which QUEMADA was authorized to retain 75% for himself as legatee and to deposit 25% with a reputable banking institution for payment of the estate taxes and other obligations of the estate. The 33% share of PASTOR, JR. and/or his assignees was ordered garnished to answer for the accumulated legacy of QUEMADA from the time of PASTOR, SR.'s death, which amounted to over two million pesos. cdphil The order being "immediately executory", QUEMADA succeeded in obtaining a Writ of Execution and Garnishment on September 4, 1980, and in serving the same on ATLAS on the same day. Notified of the Order on September 6, 1980, the oppositors sought reconsideration thereof on the same date primarily on the ground that the PROBATE COURT gravely abused its discretion when it resolved the question of ownership of the royalties and ordered the payment of QUEMADA's legacy after prematurely passing upon the intrinsic validity of the will. In the meantime, the PROBATE COURT ordered suspension of payment of all royalties due PASTOR, JR. and/or his assignees until after resolution of oppositors' motion for reconsideration.

Before the Motion for Reconsideration could be resolved, however, PASTOR, JR., this time joined by his wife Ma. ELENA ACHAVAL DE PASTOR, filed with the Court of Appeals a Petition for Certiorari and Prohibition with a prayer for writ of preliminary injunction (CA-G.R. No. SP-11373-R). They assailed the Order dated August 20, 1980 and the writ of execution and garnishment issued pursuant thereto. The petition was denied on November 18, 1980 on the grounds (1) that its filing was premature because the Motion for Reconsideration of the questioned Order was still pending determination by the PROBATE COURT; and (2) that although "the rule that a motion for reconsideration is prerequisite for an action for certiorari is never an absolute rule," the Order assailed is "legally valid." On December 9, 1980, PASTOR, JR. and his wife moved for reconsideration of the Court of Appeal's decision of November 18, 1980, calling the attention of the appellate court to another order of the Probate Court dated November 11, 1980 (i.e., while their petition for certiorari was pending decision in the appellate court), by which the oppositors' motion for reconsideration of the Probate Court's Order of August 20, 1980 was denied. [The November 11 Order declared that the questions of intrinsic validity of the will and of ownership over the mining claims (not the

royalties alone) had been finally adjudicated by the final and executory Order of December 5, 1972, as affirmed by the Court of Appeals and the Supreme Court, thereby rendering moot and academic the suit for reconveyance then pending in the Court of First Instance of Cebu, Branch IX. It clarified that only the 33% share of PASTOR, JR. in the royalties (less than 7.5% share which he had assigned to QUEMADA before PASTOR, SR. died) was to be garnished and that as regards PASTOR, SR.'s 42% share, what was ordered was just the transfer of its possession to the custody of the PROBATE COURT through the special administrator. Further, the Order granted QUEMADA 6% interest on his unpaid legacy from August 1980 until fully paid.] Nonetheless, the Court of Appeals denied reconsideration. prcd Hence, this Petition for Review by certiorari with prayer for a writ of preliminary injunction, assailing the decision of the Court of Appeals dated November 18, 1980 as well as the orders of the Probate Court dated August 20, 1980, November 11, 1980 and December 17, 1980, filed by petitioners on March 26, 1981, followed by a Supplemental Petition with Urgent Prayer for Restraining Order. In April 1981, the Court (First Division) issued a writ of preliminary injunction, the lifting of which was denied in the Resolution of the same Division dated October 18, 1982, although the bond of petitioners was increased from P50.000.00 to P100,000.00. Between December 21, 1981 and October 12, 1982, private respondent filed seven successive motions for early resolution. Five of these motions expressly prayed for the resolution of the question as to whether or not the petition should be given due course. On October 18, 1982, the Court (First Division) adopted a resolution stating that "the petition in fact and in effect was given due course when this case was heard on the merits on September 7, (should be October 21, 1981) and concise memoranda in amplification of their oral arguments on the merits of the case were filed by the parties pursuant to the resolution of October 21, 1981 . . ." and denied in a resolution dated December 13, 1982, private respondent's "Omnibus motion to set aside resolution dated October 18, 1982 and to submit the matter of due course to the present membership of the Division; and to reassign the case to another ponente." Upon Motion for Reconsideration of the October 18, 1982 and December 13, 1982 Resolutions, the Court en banc resolved to CONFIRM the questioned resolutions insofar as they resolved that the petition in fact and in effect had been given due course. II.ISSUES:

Assailed by the petitioners in these proceedings is the validity of the Order of execution and garnishment dated August 20, 1980 as well as the Orders subsequently issued allegedly to implement the Probate Order of December 5, 1972, to wit: the Order of November 11, 1980 declaring that the Probate Order of 1972 indeed resolved the issues of ownership and intrinsic validity of the will, and reiterating the Order of Execution dated August 20, 1980; and the Order of December 17, 1980 reducing to P2,251,516.74 the amount payable to QUEMADA representing the royalties he should have received from the death of PASTOR, SR. in 1966 up to February 1980. LLjur The Probate Order itself, insofar as it merely allowed the holographic will in probate, is not questioned. But petitioners denounce the Probate Court for having acted beyond its jurisdiction or with grave abuse of discretion when it issued the assailed Orders. Their argument runs this way: Before the provisions of the holographic will can be implemented, the questions of ownership of the mining properties and the intrinsic validity of the holographic will must first be resolved with finality. Now, contrary to the position taken by the Probate Court in 1980 i.e., almost eight years after the probate of the will in 1972 the Probate Order did not resolve the two said issues. Therefore, the Probate Order could not have resolved and actually did not decide QUEMADA's entitlement to the legacy. This being so, the Orders for the payment of the legacy in alleged implementation of the Probate Order of 1972 are unwarranted for lack of basis. Closely related to the foregoing is the issue raised by QUEMADA: The Probate Order of 1972 having become final and executory, how can its implementation (payment of legacy) be restrained? Of course, the question assumes that QUEMADA's entitlement to the legacy was finally adjudged in the Probate Order. On the merits, therefore, the basic issue is whether the Probate Order of December 5, 1972 resolved with finality the questions of ownership and intrinsic validity. A negative finding will necessarily render moot and academic the other issues raised by the parties, such as the jurisdiction of the Probate Court to conclusively resolve title to property, and the constitutionality and repercussions of a ruling that the mining properties in dispute, although in the name of PASTOR, JR. and his wife, really belonged to the decedent despite the latter's constitutional disqualification as an alien. On the procedural aspect, placed in issue is the propriety of certiorari as a means to assail the validity of the order of execution and the implementing writ. III.DISCUSSION: 1.Issue of Ownership

(a)In a special proceeding for the probate of a will, the issue by and large is restricted to the extrinsic validity of the will, i.e., whether the testator, being of sound mind, freely executed the will in accordance with the formalities prescribed by law. (Rules of Court, Rule 75, Section 1; Rule 76, Section 9.) As a rule, the question of ownership is an extraneous matter which the Probate Court cannot resolve with finality. Thus, for the purpose of determining whether a certain property should or should not be included in the inventory of estate properties, the Probate Court may pass upon the title thereto, but such determination is provisional, not conclusive, and is subject to the final decision in a separate action to resolve title. [3 Moran, Comments on the Rules of Court (1980 ed.), p. 458; Valero Vda. de Rodriguez vs. Court of Appeals, 91 SCRA 540.] LLjur (b)The rule is that execution of a judgment must conform to that decreed in the dispositive part of the decision. (Philippine-American Insurance Co. vs. Honorable Flores, 97 SCRA 811.) However, in case of ambiguity or uncertainty, the body of the decision may be scanned for guidance in construing the judgment. (Heirs of Presto vs. Galang, 78 SCRA 534; Fabular vs. Court of Appeals, 119 SCRA 329; Robles vs. Timario, 107 Phil. 809.) The Order sought to be executed by the assailed Order of execution is the Probate Order of December 5, 1972 which allegedly resolved the question of ownership of the disputed mining properties. The said Probate Order enumerated the issues before the Probate Court, thus: "Unmistakably, there are three aspects in these proceedings: (1) the probate of the holographic will; (2) the intestate estate aspect; and (3) the administration proceedings for the purported estate of the decedent in the Philippines. "In its broad and total perspective the whole proceedings are being impugned by the oppositors on jurisdictional grounds, i.e., that the fact of the decedent's residence and existence of properties in the Philippines have not been established. "Specifically placed in issue with respect to the probate proceedings are: (a) whether or not the holographic will (Exhibit "J") has lost its efficacy as the last will and testament upon the death of Alvaro Pastor, Sr. on June 5, 1966, in Cebu City, Philippines; (b) Whether or not the said will has been executed with all the formalities required by law; and (c) Did the late presentation of the holographic will affect the validity of the same? "Issues In the Administration Proceedings are as follows: (1) Was the exparte appointment of the petitioner as special administrator valid and proper? (2) Is there any indispensable necessity for the estate of the decedent to be placed under administration? (3) Whether or not petition is qualified to be a special administrator of the estate; and (4) Whether or not

the properties listed in the inventory (submitted by the special administrator but not approved by the Probate Court) are to be excluded." Then came what purports to be the dispositive portion: "Upon the foregoing premises, this Court rules on and resolves some of the problems and issues presented in these proceedings, as follows: "(a)The Court has acquired jurisdiction over the probate proceedings As it hereby allows and approves the so-called holographic will of testator Alvaro Pastor, Sr., executed on July 31, 1961 with respect to its extrinsic validity, the same having been duly authenticated pursuant to the requisites or solemnities prescribed by law. Let, therefore, a certificate of its allowance be prepared by the Branch Clerk of this Court to be signed by this Presiding Judge, and attested by the seal of the Court, and thereafter attached to the will, and the will and certificate filed and recorded by the clerk. Let attested copies of the will and of the certificate of allowance thereof be sent to Atlas Consolidated Mining & Development Corporation, Goodrich Bldg., Cebu City, and the Register of Deeds of Cebu or of Toledo City, as the case may be, for recording.

prepare them for delivery to the heirs in good order after partition and when directed by the Court, but only after the payment of estate and inheritance taxes; "(d)Subject to the outcome of the suit for reconveyance of ownership and possession of real and personal properties in Civil Case No. 274-T before Branch IX of the Court of First Instance of Cebu, the intestate estate administration aspect must proceed, unless, however, it is duly proven by the oppositors that debts of the decedent have already been paid, that there had been an extrajudicial partition or summary one between the forced heirs, that the legacy to be given and delivered to the petitioner does not exceed the free portion of the estate of the testator, that the respective shares of the forced heirs have been fairly apportioned, distributed and delivered to the two forced heirs of Alvaro Pastor, Sr., after deducting the property willed to the petitioner, and the estate and inheritance taxes have already been paid to the Government thru the Bureau of Internal Revenue. "The suitability and propriety of allowing petitioner to remain as special administrator or administrator of the other properties of the estate of the decedent, which properties are not directly or indirectly affected by the provisions of the holographic will (such as bank deposits, land in Mactan, etc.), will be resolved in another order as separate incident, considering that this order should have been properly issued solely as a resolution on the issue of whether or not to allow and approve the aforestated will." (Emphasis supplied.) Nowhere in the dispositive portion is there a declaration of ownership of specific properties. On the contrary, it is manifest therein that ownership was not resolved. For it confined itself to the question of extrinsic validity of the will, and the need for and propriety of appointing a special administrator. Thus it allowed and approved the holographic will "with respect to its extrinsic validity, the same having been duly authenticated pursuant to the requisites or solemnities prescribed by law." It declared that the intestate estate administration aspect must proceed "subject to the outcome of the suit for reconveyance of ownership and possession of reel and personal properties in Civil Case 274-T before Branch IX of the CFI of Cebu." [Parenthetically, although the statement refers only to the "intestate" aspect, it defies understanding how ownership by the estate of some properties could be deemed finally resolved for purposes of testate administration, but not so for intestate purposes. Can the estate be the owner of a property for testate but not for intestate purposes?] Then again, the Probate Order (while indeed it does not direct the implementation of the legacy) conditionally stated that the intestate administration aspect must proceed "unless . . . it is proven . . . that the legacy to be given and delivered to the petitioner does not exceed the free portion of the estate of the testator," which clearly implies that the issue of impairment of legitime (an aspect of intrinsic validity) was in fact not resolved. Finally, the Probate Order did not rule on the propriety of allowing QUEMADA to remain as

special administrator of estate properties not covered by the holographic will, "considering that this (Probate) Order should have been properly issued solely as a resolution on the issue of whether or not to allow and approve the aforestated will." prLL (c)That the Probate Order did not resolve the question of ownership of the properties listed in the estate inventory was appropriate, considering that the issue of ownership was the very subject of controversy in the reconveyance suit that was still pending in Branch IX of the Court of First Instance of Cebu. (d)What, therefore, the Court of Appeals and, in effect, the Supreme Court affirmed en toto when they reviewed the Probate Order were only the matters properly adjudged in the said Order. (e)In an attempt to justify the issuance of the order of execution dated August 20, 1980, the Probate Court in its Order of November 11, 1980 explained that the basis for its conclusion that the question of ownership had been formally resolved by the Probate Order of 1972 are the findings in the latter Order that (1) during the lifetime of the decedent, he was receiving royalties from ATLAS; (2) he had resided in the Philippines since pre-war days and was engaged in the mine prospecting business since 1937 particularly in the City of Toledo; and (3) PASTOR, JR. was only acting as dummy for his father because the latter was a Spaniard. Based on the premises laid, the conclusion is obviously farfetched. (f)It was, therefore, error for the assailed implementing Orders to conclude that the Probate Order adjudged with finality the question of ownership of the mining properties and royalties, and that, premised on this conclusion, the dispositive portion of the said Probate Order directed the special administrator to pay the legacy in dispute. 2.Issue of Intrinsic Validity of the Holographic Will (a)When PASTOR, SR. died in 1966, he was survived by his wife, aside from his two legitimate children and one illegitimate son. There is therefore a need to liquidate the conjugal partnership and set apart the share of PASTOR, SR.'s wife in the conjugal partnership preparatory to the administration and liquidation of the estate of PASTOR, SR. which will include, among others, the determination of the extent of the statutory usufructuary right of his wife until her death. ** When the disputed Probate order was issued on December 5, 1972, there had been no liquidation of the community properties of PASTOR, SR. and his wife.

"(b)There was a delay in the granting of the letters testamentary or of administration for as a matter of fact, no regular executor and/or administrator has been appointed up to this time and the appointment of a special administrator was, and still is, justified under the circumstances to take possession and charge of the estate of the deceased in the Philippines (particularly in Cebu) until the problems causing the delay are decided and the regular executor and/or administrator appointed. "(c)There is a necessity and propriety of a special administrator and later on an executor and/or administrator in these proceedings, in spite of this Court's declaration that the oppositors are the forced heirs and the petitioner is merely vested with the character of a voluntary heir to the extent of the bounty given to him (under) the will insofar as the same will not prejudice the legitimes of the oppositors, for the following reasons: 1.To submit a complete inventory of the estate of the decedent-testator Alvaro Pastor, Sr.; 2.To administer and to continue to put to prolific utilization of the properties of the decedent; 3.To keep and maintain the houses and other structures and fences belonging to the estate, since the forced heirs are residing in Spain, and

(b)So, also, as of the same date, there has been no prior definitive determination of the assets of the estate of PASTOR, SR. There was an inventory of his properties presumably prepared by the special administrator, but it does not appear that it was ever the subject of a hearing or that it was judiciary approved. The reconveyance or recovery of properties allegedly owned but not in the name of PASTOR, SR. was still being litigated in another court. (c)There was no appropriate determination, much less payment, of the debts of the decedent and his estate. Indeed, it was only in the Probate Order of December 5, 1972 where the Probate Court ordered that ". . . a notice be issued and published pursuant to the provisions of Rule 86 of the Rules of Court, requiring all persons having money claims against the decedent to file them in the office of the Branch Clerk of this Court." (d)Nor had the estate tax been determined and paid, or at least provided for, as of December 5, 1972. (e)The net assets of the estate not having been determined, the legitime of the forced heirs in concrete figures could not be ascertained. (f)All the foregoing deficiencies considered, it was not possible to determine whether the legacy of QUEMADA a fixed share in a specific property rather than an aliquot part of the entire net estate of the deceased would produce an impairment of the legitime of the compulsory heirs. (g)Finally, there actually was no determination of the intrinsic validity of the will in other respects. It was obviously for this reason that as late as March 5, 1980 more than 7 years after the Probate Order was issued the Probate Court scheduled on March 25, 1980 a hearing on the intrinsic validity of the will. 3.Propriety of Certiorari Private respondent challenges the propriety of certiorari as a means to assail the validity of the disputed Order of execution. He contends that the error, if any, is one of judgment, not jurisdiction, and properly correctible only by appeal, not certiorari. llcd Under the circumstances of the case at bar, the challenge must be rejected. Grave abuse of discretion amounting to lack of jurisdiction is much too evident in the actuations of the probate court to be overlooked or condoned.

(a)Without a final, authoritative adjudication of the issue as to what properties compose the estate of PASTOR, SR. in the face of conflicting claims made by heirs and a non-heir (MA. ELENA ACHAVAL DE PASTOR) involving properties not in the name of the decedent, and in the absence of a resolution on the intrinsic validity of the will here in question, there was no basis for the Probate Court to hold in its Probate Order of 1972, which it did not, that private respondent is entitled to the payment of the questioned legacy. Therefore, the Order of Execution of August 20, 1980 and the subsequent implementing orders for the payment of QUEMADA's legacy, in alleged implementation of the dispositive part of the Probate Order of December 5, 1972, must fall for lack of basis.

the necessity of resorting to a writ of execution. The probate court, as such, does not render any judgment enforceable by execution. "The circumstances that the Rules of Court expressly specifies that the probate court may issue execution (a) to satisfy (debts of the estate out of) the contributive shares of devisees, legatees and heirs in possession of the decedent's assets (Sec. 6, Rule 88), (b) to enforce payment of the expenses of partition (Sec. 3, Rule 90), and (c) to satisfy the costs when a person is cited for examination in probate proceedings (Sec. 13, Rule 142) may mean, under the rule of inclusion unius est exclusion alterius, that those are the only instances when it can issue a writ of execution. (Vda. de Valera vs. Ofilada, 59 SCRA 96, 108.) (d)It is within a court's competence to order the execution of a final judgment; but to order the execution of a final order (which is not even meant to be executed) by reading into it terms that are not there and in utter disregard of existing rules and law, is manifest grave abuse of discretion tantamount to lack of jurisdiction. Consequently, the rule that certiorari may not be invoked to defeat the right of a prevailing party to the execution of a valid and final judgment, is inapplicable. For when an order of execution is issued with grave abuse of discretion or is at variance with the judgment sought to be enforced (PVTA vs. Honorable Gonzales, 92 SCRA 172), certiorari will lie to abate the order of execution. (e)Aside from the propriety of resorting to certiorari to assail an order of execution which varies the terms of the judgment sought to be executed or does not find support in the dispositive part of the latter, there are circumstances in the instant case which justify the remedy applied for. Petitioner MA. ELENA ACHAVAL DE PASTOR, wife of PASTOR, JR., is the holder in her own right of three mining claims which are one of the objects of conflicting claims of ownership. She is not an heir of PASTOR, SR. and was not a party to the probate proceedings. Therefore, she could not appeal from the Order of execution issued by the Probate Court. On the other hand, after the issuance of the execution order, the urgency of the relief she and her co-petitioner husband seek in the petition for certiorari militates against requiring her to go through the cumbersome procedure of asking for leave to intervene in the probate proceedings to enable her, if leave is granted, to appeal from the challenged order of execution which has ordered the immediate transfer and/or garnishment of the royalties derived from mineral properties of which she is the duly registered owner and/or grantee together with her husband. She could not have intervened before the issuance of the assailed orders because she had no valid ground to intervene. The matter of ownership over the properties subject of the execution was then still being litigated in another court in a reconveyance suit filed by the special administrator of the estate of PASTOR, SR. llcd

(b)The ordered payment of legacy would be violative of the rule requiring prior liquidation of the estate of the deceased, i.e., the determination of the assets of the estate and payment of all debts and expenses, before apportionment and distribution of the residue among the heirs and legatees. (Bernardo vs. Court of Appeals, 7 SCRA 367.) (c)Neither has the estate tax been paid on the estate of PASTOR, SR. Payment therefore of the legacy to QUEMADA would collide with the provision of the National Internal Revenue Code requiring payment of estate tax before delivery to any beneficiary of his distributive share of the estate (Section 107 [c]). (d)The assailed order of execution was unauthorized, having been issued purportedly under Rule 88, Section 6 of the Rules of Court which reads: "Sec. 6.Court to fix contributive shares where devisees, legatees, or heirs have been in possession. Where devisees, legatees, or heirs have entered into possession of portions of the estate before the debts and expenses have been settled and paid and have become liable to contribute for the payment of such debts and expenses, the court having jurisdiction of the estate may, by order for that purpose, after hearing, settle the amount of their several liabilities, and order how much and in what manner each person shall contribute, and may issue execution as circumstances require." The above provision clearly authorizes execution to enforce payment of debts of estate. A legacy is not a debt of the estate; indeed, legatees are among those against whom execution is authorized to be issued. ". . . there is merit in the petitioners' contention that the probate court generally cannot issue a writ of execution. It is not supposed to issue a writ of execution because its orders usually refer to the adjudication of claims against the estate which the executor or administrator may satisfy without

Likewise, at the time petitioner PASTOR, JR. filed the petition for certiorari with the Court of Appeals, appeal was not available to him since his motion for reconsideration of the execution order was still pending resolution by the Probate Court. But in the face of actual garnishment of their major source of income, petitioners could no longer wait for the resolution of their motion for reconsideration. They needed prompt relief from the injurious effects of the execution order. Under the circumstances, recourse to certiorari was the feasible remedy. WHEREFORE, the decision of the Court of Appeals in CA-G.R. No. SP-11373R is reversed. The Order of execution issued by the probate Court dated August 20, 1980, as well as all the Orders issued subsequent thereto in alleged implementation of the Probate Order dated December 5, 1972, particularly the Orders dated November 11, 1980 and December 17, 1980, are hereby set aside; and this case is remanded to the appropriate Regional Trial Court for proper proceedings, subject to the judgment to be rendered in Civil Case No. 274-R. SO ORDERED. Teehankee, Melencio-Herrera, Vasquez and Relova JJ., concur. Gutierrez, J., took no part.

1.ADMINISTRATORS & EXECUTORS; APPOINTMENT; ORDER OF PREFERENCE; DETERMINATION OF RELATIONSHIPS OF PARTIES BY COURT. What the court is enjoined by Sec. 1, Rule 91 of the Rules of Court from doing is the distribution of the residue of the estate before its obligations are first paid, but the court is not enjoined from making a declaration of heirs prior to the satisfaction of these obligations. In case at bar the court did not purport to make a declaration of heirs, but only sought to determine the relationship of the parties to be able to appoint an administrator in accordance with the order of preference established in Sec. 5, Rule 79 of the Rules of Court. The issue of heirship is one to be determined in the decree of distribution; the findings of the court in the case at bar on the relationship of the parties is not a determination of such relationships as a basis of distribution. 2.ID.; INTERVENTION BY INTERESTED PARTY; CASE AT BAR. It is well settled that for a person to be able to intervene in an administration proceeding concerning the estate of a deceased, he must have an interest in such estate. An interested party has been defined as one who would be benefited by the estate, such as an heir, or one who has a certain claim against the estate, such as a creditor. As appellant in the case at bar does not claim to be a creditor nor is he an heir in accordance with the law of the country of the deceased, he has no legal interest in the decedent's estate and cannot he appointed as co- administrator thereof. DECISION

On January 13, 1957, Chung Kiat Kang, claiming to be a nephew of the deceased, filed his opposition to the appointment of either Ngo The Hua or Chung Kiat Hua, on the ground that to be appointed, they must first prove their respective relationship to the deceased Chung Liu, and prayed that he be appointed administrator. The petition was heard and evidence presented by both petitioner Ngo The Hua and the oppositors Chung Kiat Hua, et al. When Chung Kiat Kang's turn to present his evidence came, he manifested, through his counsel, that he was waiving his right to present evidence in so far as the appointment of administrator of the estate is concerned. (t.s.n. pp. 3-6, hearing of July 3, 1958). On December 2, 1959, after a lengthy hearing, the lower court found that Ngo The Hua and the deceased were validly divorced by the aforementioned Taipei District Court, and that Chung Kiat Hua, Lily Chung Cho, Bonifacio Chung Siong Pek and Chung Kiat Bio are children of the deceased. So it issued the order appointing Chung Kiat Hua as administrator of the estate of Chung Liu. From this order, both the petitioner and Chung Kiat Kang appealed. On May 30, 1961, however, petitioner Ngo The Hua filed a petition to withdraw her appeal stating that she had entered into an amicable settlement with the oppositors-appellees. Her petition was granted by this Court in a resolution dated June 26, 1961. Hence only the appeal of oppositor Chung Kiat Kang remains for the consideration of this Court. Appellant now contends that the lower court erred in passing upon the validity of the divorce obtained by the petitioner and the deceased and upon the filiation of the oppositors-appellees, such being a prejudgment "since it is well-settled that the declaration of heirs shall only take place after all debts, expenses and taxes have been paid" in accordance with Sec. 1, Rule 91 of the Rules of Court. The pertinent portion of the section cited by appellant is as follows: "Section 1.When order for distribution of residue made. . . . When the debts, funeral charges, and expenses of administration, the allowances to the widow, and inheritance tax, if any, chargeable to the estate in accordance with law, have been paid, the court . . . shall assign the residue of the estate of the persons entitled to the same . . . "No distribution shall be allowed until the payment of the obligations abovementioned has been made or provided for . . ." (Italics supplied)

Footnotes LABRADOR, J p: Suntay [G.R. No. L-17091. September 30, 1963.] IN THE MATTER OF THE ESTATE OF THE DECEASED CHUNG LIU, NGO THE HUA, petitioner-appellant, vs. CHUNG KIAT HUA, LILY CHUNG CHO, BONIFACIO CHUNG SIONG PEK and CHUNG KA BIO, oppositors-appellees, CHUNG KIAT KANG, oppositor-appellant, PHILIPPINE TRUST COMPANY, special administrator. Lorenzo Sumulong for petitioner-appellant. Zosimo Rivas for oppositor-appellant Chung Kiat Kang. Bienvenido A. Tan, Jr. for oppositor-appellee Bonifacio Chung Siong Pek. Crispin D. Baizas for other oppositors-appellees. SYLLABUS This is an appeal from an order of the Court of First Instance of Rizal, Pasay City Branch, Hon. Jesus Perez, presiding, appointing Chung Kiat Hua as administrator of the estate of the deceased Chung Liu in Special Proceeding No. 1552-P of said court. On December 7, 1957, Ngo The Hua, claiming to be the surviving spouse of the deceased Chung Liu, filed a petition to be appointed administratrix of the estate of the aforementioned deceased. Her petition was opposed by Chung Kiat Hua, Lily Chung Cho, Bonifacio Chung Siong Pek and Chung Ka Bio, all claiming to be children of the deceased Chung Liu by his first wife, Tan Hua. They claim that Ngo The Hua is morally and physically unfit to execute the duties of the trust as administratrix, and that she and the deceased have secured an absolute divorce in Taiwan, both being Chinese citizens, confirmed and legalized by the Taipei District Court, Taipei, Taiwan on August 25, 1955. In this same opposition they prayed that Chung Kiat Hua, allegedly the eldest child of the deceased, be appointed administrator instead. These oppositors' prayer was in turn opposed by Ngo The Hua who claimed that the oppositors are not children of Chung Liu.

A cursory reading of the above-quoted section discloses that what the court is enjoined from doing is the assignment or distribution of the residue of the deceased's estate before the above-mentioned obligations chargeable to the estate are first paid Nowhere from said section may it be inferred that the court cannot make a declaration of heirs prior to the satisfaction of these obligations. It is to be noted, however, that the court in making the appointment of the administrator did not purport to make a declaration of heirs. On the other hand, it is clear from the facts of this case that it was deemed necessary by the lower court to determine the relationship of the parties, as advanced by the petitioner and the oppositors-appellees, to be able to appoint an administrator in accordance with the order of preference established in Section 5, Rule 79 of the Rules of Court. Said section provides that letters of administration shall be granted to the surviving spouse, the next of kin, or to any principal creditor, in this order. Oppositors-appellees denied petitioner Ngo The Hua's claim that she is the surviving spouse of Chung Liu, and the petitioner likewise denied the oppositors- appellees' claim that they are children of the deceased. Since these applicants were asking for the letter of administration on the theory that they are preferred according to Section 5 of Rule 79 because of their relationship to the deceased Chung Liu, the lower court necessarily had to pass first on the truth of their respective claims of relationship to be able to appoint an administrator in accordance with the aforementioned order of preference. Let it be made clear that what the lower court actually decided and what we also decide is the relationship between the deceased and the parties claiming the right to be appointed his administrator, to determine who among them is entitled to the administration, not who are his heirs who are entitled to share in his estate. This issue of heirship is one to be determined in the decree of distribution, and the findings of the court in the case at bar on the relationship of the parties is not a final determination of such relationships as a basis of distribution. Having resolved the issue raised, it is unnecessary to rule on the other questions raised by the appellant Chung Kiat Kang. It is well-settled that for a person to be able to intervene in an administration proceeding concerning the estate of a deceased, it is necessary for him to have interest in such estate (Sec. 4, Rule 80, Rules of Court; Moran, Comments on the Rules of Court, Vol. II, 1957 ed. p. 382). An interested party has been defined in this connection as one who would be benefited by the estate, such as an heir, or one who has a certain claim against the estate, such as a creditor (Saguinsin vs. Lindayag, et al., G.R. No. L-17759, Dec. 17, 1962; Intestate Estate of Julio Magbanwa, 40 O.G., 1171; Williams vs. Williams, 113 Ga. 1006, cited in Francisco, Rules of Court, Vol. 1955 ed., p. 411). Appellant Chung Kiat Kang does not claim to be a creditor of Chung Liu's estate. Neither is he an heir in accordance with the Civil Code of the Republic of China (Exh. 28 of Chung Kiat Hua), the law that applies in this case, Chung Liu being a Chinese citizen

(Art. 16, New Civil Code). The appellant not having any interest in Chung Liu's estate, either as heir or creditor, he cannot be appointed as coadministrator of the estate, as he now prays. WHEREFORE, the order appealed from is hereby affirmed, with costs against appellants. So ordered. Bengzon, C.J., Padilla, Bautista Angelo, Barrera Paredes, Dizon, Regala and Makalintal, JJ., concur. Concepcion and Reyes, J.B.L., JJ., took no part. [G.R. No. 168156. December 6, 2006.] HEIRS OF ROSENDO LASAM, Represented by Rogelio Lasam and Atty. Edward P. Llonillo, petitioners, vs. VICENTA UMENGAN,respondent. DECISION CALLEJO, SR., J p: Before the Court is the petition for review on certiorari filed by the Heirs of Rosendo Lasam, represented by Rogelio M. Lasam and Atty. Edward P. Llonillo, seeking the reversal of the Decision 1 dated February 16, 2005 of the Court of Appeals (CA) in CA-G.R. SP No. 80032. The assailed decision reversed and set aside the decision of the Regional Trial Court (RTC) of Tuguegarao City, Cagayan and dismissed, for lack of merit, the complaint for unlawful detainer file by the said heirs against respondent Vicenta Umengan. The RTC decision affirmed that of the Municipal Trial Court in Cities (MTCC) of the same city, Branch III, which had rendered judgment in favor of the heirs of Rosendo Lasam and directed the ejectment of respondent Vicenta Umengan from the lot subject of litigation. The present petition likewise seeks the reversal of the CA Resolution dated May 17, 2005 denying the motion for reconsideration filed by the heirs of Rosendo Lasam. As culled from the records, the backdrop of the present case is as follows The lot subject of the unlawful detainer case is situated in Tuguegarao City, Cagayan. It is the eastern half portion of Lot No. 5427 and Lot No. 990. The first lot, Lot No. 5427 containing an area of 1,037 square meters, is covered by Original Certificate of Title (OCT) No. 196. The second lot, Lot No. 990

containing an area of 118 sq m, is covered by OCT No. 1032. These lots are registered in the names of the original owners, spouses Pedro Cuntapay and Leona Bunagan. In an instrument denominated as Deed of Confirmation and acknowledged before a notary public on June 14, 1979, the heirs of the said spouses conveyed the ownership of Lots Nos. 990 and 5427 in favor of their two children, Irene Cuntapay and Isabel Cuntapay. In another instrument entitled Partition Agreement and acknowledged before a notary public on December 28, 1979, it was agreed that the eastern half portion (subject lot) of Lots Nos. 990 and 5427 shall belong to the heirs of Isabel Cuntapay. On the other hand, the remaining portion thereof (the west portion) shall belong to the heirs of Irene Cuntapay. The subject lot (eastern half portion) has an area of 554 sq m. cSATEH Isabel Cuntapay had four children by her first husband, Domingo Turingan, namely: Abdon, Sado (deceased), Rufo and Maria. When Domingo Turingan passed away, Isabel Cuntapay remarried Mariano Lasam. She had two other children by him, namely: Trinidad and Rosendo. Sometime in January 2001, the heirs of Rosendo Lasam (son of Isabel Cuntapay by her second husband) filed with the MTCC a complaint for unlawful detainer against Vicenta Umengan, who was then occupying the subject lot. Vicenta Umengan is the daughter of Abdon Turingan (son of Isabel Cuntapay by her first husband). In their complaint, the heirs of Rosendo Lasam alleged that they are the owners of the subject lot, having inherited it from their father. Rosendo Lasam was allegedly the sole heir of the deceased Pedro Cuntapay through Isabel Cuntapay. During his lifetime, Rosendo Lasam allegedly temporarily allowed Vicenta Umengan to occupy the subject lot sometime in 1955. The latter and her husband allegedly promised that they would vacate the subject lot upon demand. However, despite written notice and demand by the heirs of Rosendo Lasam, Vicenta Umengan allegedly unlawfully refused to vacate the subject lot and continued to possess the same. Accordingly, the heirs of Rosendo Lasam were constrained to institute the action for ejectment. In her Answer with Counterclaim, Vicenta Umengan specifically denied the material allegations in the complaint. She countered that when Isabel Cuntapay passed away, the subject lot was inherited by her six children by her first and second marriages through intestate succession. Each of the six children allegedly had a pro indiviso share of 1/6 of the subject lot. It was further alleged by Vicenta Umengan that her father, Abdon Turingan, purchased the respective 1/6 shares in the subject lot of his siblings Maria and Sado. These conveyances were allegedly evidenced by the Deed of Sale

dated March 3, 1975, appearing as Doc. No. 88, Page No. 36, Book No. XIV, series of 1975 of the notarial book of Atty. Pedro Lagui. Prior thereto, Rufo already sold his 1/6 share in the subject lot to Vicenta Umengan and her husband as evidenced by the Deed of Sale dated June 14, 1961, appearing as Doc. No. 539, Page No. 41, Book No. V, series of 1961 of the notarial book of Atty. Pedro Lagui. Also on June 14, 1961, Abdon donated his 1/6 share in the subject lot to her daughter Vicenta Umengan as evidenced by the Deed of Donation appearing as Doc. No. 538, Page No. 41, Book No. V, series of 1961 of the notarial book of the same notary public. According to Vicenta Umengan, the children of Isabel Cuntapay by her second husband (Rosendo and Trinidad Lasam) own only 2/6 portion of the subject lot. She thus prayed that the complaint for ejectment be dismissed and that the heirs of Rosendo Lasam be ordered to pay her damages. The MTCC rendered judgment in favor of the heirs of Rosendo Lasam and directed the ejectment of Vicenta Umengan. In so ruling, the MTCC gave credence to the newly discovered last will and testament (entitled Testamento Abierto) purportedly executed by Isabel Cuntapay where she bequeathed the subject lot to her son, Rosendo Lasam, thus: . . . my share 1/5th (one-fifth) of the Cuntapay heirs, bordered on the North by Sr. Elia Canapi; to the South, by Calle Aguinaldo; to the East, by Calle P. Burgos and the West, by the late Don Luis Alonso; on the property which is my share stands a house of light materials where I presently reside; this 1/5th (one-fifth) share of my inheritance from the Cuntapays I leave to my son Rosendo Lasam and also the aforementioned house of light material . . . 2 The MTCC reasoned that the heirs of Rosendo Lasam anchored their claim over the subject lot on the last will and testament of Isabel Cuntapay while Vicenta Umengan hinged hers on intestate succession and legal conveyances. Citing jurisprudence 3 and Article 1080 4 of the Civil Code, the MTCC opined that testacy was favored and that intestacy should be avoided and the wishes of the testator should prevail. It observed that the last will and testament of Isabel Cuntapay was not yet probated as required by law; nonetheless, the institution of a probate proceeding was not barred by prescription. IDScTE With the finding that the subject lot was already bequeathed by Isabel Cuntapay to Rosendo Lasam, the MTCC held that the siblings Abdon, Sado, Rufo and Maria Turingan no longer had any share therein. Consequently, they could not convey to Vicenta Umengan what they did not own. On the issue then of who was entitled to possession of the subject lot, the MTCC ruled in favor of the heirs of Rosendo Lasam as it found that Vicenta

Umengan's possession thereof was by mere tolerance. The dispositive portion of the MTCC decision reads: WHEREFORE, in the light of the foregoing considerations, this Court Resolve[d] to order the EJECTMENT of VICENTA T. UMENGAN and in her place INSTITUTE THE HEIRS OF ROSENDO LASAM. It is further ordered the defendant shall pay the Heirs of Rosendo Lasam the sum of P500.00 pesos representing the monthly rental of the land from August 2000 to the time this case shall have been terminated. Ordering the defendant to pay the plaintiffs the amount of P20,000.00 attorney's fees plus cost of this litigation. So Ordered. 5 On appeal, the RTC affirmed in toto the decision of the MTCC. The RTC echoed the reasoning of the MTCC that the testamentary disposition of the property of Isabel Cuntapay should be respected, and that the heirs of Rosendo Lasam have a better right to possess the subject lot. Undaunted, Vicenta Umengan filed an appeal with the CA. She argued that the MTCC had no jurisdiction over the case as it involved the recovery of ownership of the subject lot, not merely recovery of possession or unlawful detainer. She also assailed the RTC's and the MTCC's holding that the purported Testamento Abierto of Isabel Cuntapay prevails over Vicenta Umengan's muniments of title and, consequently, the heirs of Rosendo Lasam have a better right to the subject lot than Vicenta Umengan. In the assailed Decision dated February 16, 2005, the CA reversed and set aside the decision of the RTC. The appellate court preliminarily upheld the jurisdiction of the MTCC over the subject matter as it found that the allegations in the complaint made out a case for unlawful detainer. The heirs of Rosendo Lasam in their complaint, according to the CA, only sought for Vicenta Umengan to vacate and surrender possession of the subject lot. The CA also rejected the contention of the heirs of Rosendo Lasam that the issue of ownership of the subject lot had already been settled in another case, Civil Case No. 4917, before RTC (Branch 3) of Tuguegarao City. The CA stated that the trial court's order dismissing the said case was not a "judgment on the merits" as to constitute res judicata. However, the CA declared that the RTC, as well as the MTCC, erred in ruling that, by virtue of the purported last will and testament of Isabel Cuntapay, the heirs of Rosendo Lasam have a better right to the subject lot over Vicenta Umengan. The CA explained that the said last will and testament did not comply with the formal requirements of the law on wills. 6

Specifically, the CA found that the pages of the purported last will and testament were not numbered in accordance with the law. Neither did it contain the requisite attestation clause. Isabel Cuntapay as testator and the witnesses to the will did not affix their respective signatures on the second page thereof. The said instrument was likewise not acknowledged before a notary public by the testator and the witnesses. The CA even raised doubts as to its authenticity, noting that while Isabel Cuntapay died in 1947 and the heirs of Rosendo Lasam claimed that they discovered the same only in 1997, a date May 19, 1956 appears on the last page of the purported will. The CA opined that if this was the date of execution, then the will was obviously spurious. On the other hand, if this was the date of its discovery, then the CA expressed bafflement as to why the heirs of Rosendo Lasam, through their mother, declared in the Partition Agreement dated December 28, 1979 that Isabel Cuntapay died intestate. DCTHaS

It was observed by the CA that as against these infirmities in the claim of the heirs of Rosendo Lasam, Vicenta Umengan presented a Deed of Sale and a Deed of Donation to justify her possession of the subject lot. The CA noted that she has also possessed the subject property since 1955. Such prior possession, the CA held, gave Vicente Umengan the right to remain in the subject lot until a person with a better right lawfully ejects her. The heirs of Rosendo Lasam do not have such a better right. The CA stressed that the ruling on the issue of physical possession does not affect the title to the subject lot nor constitute a binding and conclusive adjudication on the merits on the issue of ownership. The parties are not precluded from filing the appropriate action to directly contest the ownership of or the title to the subject lot. The decretal portion of the assailed decision of the CA reads: WHEREFORE, premises considered, the appeal is GRANTED. The August 29, 2003 decision of the RTC, Branch 1, Tuguegarao City, Cagayan in Civil Case No. 5924 is hereby REVERSED and SET ASIDE. Private respondents' complaint for unlawful detainer against petitioner is dismissed for lack of merit. SO ORDERED. 7 The heirs of Rosendo Lasam sought the reconsideration thereof but their motion was denied by the CA in its Resolution dated May 17, 2005. The heirs of Rosendo Lasam (petitioners) now come to the Court alleging that the CA committed reversible error in setting aside the decision of the RTC, which had affirmed that of the MTCC, and dismissing their complaint for unlawful detainer against respondent Vicenta Umengan.

Petitioners argue that the CA erred when it held, on one hand, that the MTCC had jurisdiction over the subject matter of the complaint as the allegations therein make out a case for unlawful detainer but, on the other hand, proceeded to discuss the validity of the last will and testament of Isabel Cuntapay. Petitioners insist that respondent is holding the subject lot by mere tolerance and that they, as the heirs of Rosendo Lasam who was the rightful owner of the subject lot, have a better right thereto. It was allegedly error for the CA to declare the last will and testament of Isabel Cuntapay as null and void for its non-compliance with the formal requisites of the law on wills. The said matter cannot be resolved in an unlawful detainer case, which only involves the issue of material or physical possession of the disputed property. In any case, they maintain that the said will complied with the formal requirements of the law. It was allegedly also erroneous for the CA to consider in respondent's favor the deed of sale and deed of donation covering portions of the subject lot, when these documents had already been passed upon by the RTC (Branch 3) of Tuguegarao City in Civil Case No. 4917 when it dismissed the respondent's complaint for partition of the subject lot. The said order allegedly constituted res judicata and may no longer be reviewed by the CA. Petitioners emphasize that in an unlawful detainer case, the only issue to be resolved is who among the parties is entitled to the physical or material possession of the property in dispute. On this point, the MTCC held (and the same was affirmed by the RTC) that petitioners have a better right since the "merely tolerated" possession of the respondent had already expired upon the petitioners' formal demand on her to vacate. In support of this claim, they point to the affidavit of Heliodoro Turingan, full brother of the respondent, attesting that the latter's possession of the subject lot was by mere tolerance of Rosendo Lasam who inherited the same from Isabel Cuntapay. According to petitioners, respondent's predecessors-in-interest from whom she derived her claim over the subject lot by donation and sale could not have conveyed portions thereof to her, as she had claimed, because until the present, it is still covered by OCT Nos. 196 and 1032 under the names of Pedro and Leona Cuntapay. Their respective estates have not been settled up to now. HTAIcD It is also the contention of petitioners that the CA should have dismissed outright respondent's petition filed therewith for failure to comply with the technical requirements of the Rules of Court. Specifically, the petition was not allegedly properly verified, lacked statement of material dates and written explanation on why personal service was not made.

This last contention of petitioners deserves scant consideration. The technical requirements for filing an appeal are not sacrosanct. It has been held that while the requirements for perfecting an appeal must be strictly followed as they are considered indispensable interdictions against needless delays and for orderly discharge of judicial business, the law does admit of exceptions when warranted by circumstances. 8 In the present case, the CA cannot be faulted in choosing to overlook the technical defects of respondent's appeal. After all, technicality should not be allowed to stand in the way of equitably and completely resolving the rights and obligations of the parties. 9 The Court shall now resolve the substantive issues raised by petitioners. It is well settled that in ejectment suits, the only issue for resolution is the physical or material possession of the property involved, independent of any claim of ownership by any of the party litigants. However, the issue of ownership may be provisionally ruled upon for the sole purpose of determining who is entitled to possession de facto. 10 In the present case, petitioners base their claim of right to possession on the theory that their father, Rosendo Lasam, was the sole owner of the subject lot by virtue of the newly discovered last will and testament of Isabel Cuntapay bequeathing the same to him. Respondent is allegedly holding the subject lot by mere tolerance of Rosendo Lasam and, upon the petitioners' formal demand on her to vacate the same, respondent's right to possess it has expired. On the other hand, respondent hinges her claim of possession on the legal conveyances made to her by the children of Isabel Cuntapay by her first husband, namely, Maria, Rufo, Sado and Abdon. These conveyances were made through the sale and donation by the said siblings of their respective portions in the subject lot to respondent as evidenced by the pertinent deeds. The CA correctly held that, as between the respective claims of petitioners and respondent, the latter has a better right to possess the subject lot. As earlier stated, petitioners rely on the last will and testament of Isabel Cuntapay that they had allegedly newly discovered. On the basis of this instrument, the MTCC and RTC ruled that petitioners have a better right to the possession of the subject lot because, following the law on succession, it should be respected and should prevail over intestate succession. However, contrary to the ruling of the MTCC and RTC, the purported last will and testament of Isabel Cuntapay could not properly be relied upon to establish petitioners' right to possess the subject lot because, without

having been probated, the said last will and testament could not be the source of any right. Article 838 of the Civil Code is instructive: Art. 838.No will shall pass either real or personal property unless it is proved and allowed in accordance with the Rules of Court. The testator himself may, during his lifetime, petition the court having jurisdiction for the allowance of his will. In such case, the pertinent provisions of the Rules of Court for the allowance of wills after the testator's death shall govern. ICHcTD The Supreme Court shall formulate such additional Rules of Court as may be necessary for the allowance of wills on petition of the testator. Subject to the right of appeal, the allowance of the will, either during the lifetime of the testator or after his death, shall be conclusive as to its due execution. In Caiza v. Court of Appeals, 11 the Court ruled that: "[a] will is essentially ambulatory; at any time prior to the testator's death, it may be changed or revoked; and until admitted to probate, it has no effect whatever and no right can be claimed thereunder, the law being quite explicit: 'No will shall pass either real or personal property unless it is proved and allowed in accordance with the Rules of Court.'" 12 Dr. Tolentino, an eminent authority on civil law, also explained that "[b]efore any will can have force or validity it must be probated. To probate a will means to prove before some officer or tribunal, vested by law with authority for that purpose, that the instrument offered to be proved is the last will and testament of the deceased person whose testamentary act it is alleged to be, and that it has been executed, attested and published as required by law, and that the testator was of sound and disposing mind. It is a proceeding to establish the validity of the will." 13 Moreover, the presentation of the will for probate is mandatory and is a matter of public policy. 14 Following the above truisms, the MTCC and RTC, therefore, erroneously ruled that petitioners have a better right to possess the subject lot on the basis of the purported last will and testament of Isabel Cuntapay, which, to date, has not been probated. Stated in another manner, Isabel Cuntapay's last will and testament, which has not been probated, has no effect whatever and petitioners cannot claim any right thereunder.

Hence, the CA correctly held that, as against petitioners' claim, respondent has shown a better right of possession over the subject lot as evidenced by the deeds of conveyances executed in her favor by the children of Isabel Cuntapay by her first marriage. Contrary to the claim of petitioners, the dismissal of respondent's action for partition in Civil Case No. 4917 before the RTC (Branch 3) of Tuguegarao City does not constitute res judicata on the matter of the validity of the said conveyances or even as to the issue of the ownership of the subject lot. The order dismissing respondent's action for partition in Civil Case No. 4917 stated thus:

the merits, is not present between the action for partition and the complaint a quo for unlawful detainer. As aptly observed by the CA: Our reading of the Orders (dated June 16, 1997 and October 13, 1997) in Civil Case No. 4917 reveals that the RTC, Branch 3, Tuguegarao, Cagayan, dismissed the complaint for partition because of the discovery of the alleged last will and testament of Isabel Cuntapay. The court did not declare respondents [referring to the petitioners herein] the owners of the disputed property. It simply ordered them to petition the court for the allowance of the will to determine the proper legitimes of the heirs prior to any partition. Instead of filing the appropriate petition for the probate of Isabel Cuntapay's will, the respondents filed the present complaint for unlawful detainer. Viewed from this perspective, we have no doubt that the court's Orders cited by the respondents are not "judgments on the merits" that would result in the application of the principle of res judicata. Where the trial court merely refrained from proceeding with the case and granted the motion to dismiss with some clarification without conducting a trial on the merits, there is no res judicata. 17 Further, it is not quite correct for petitioners to contend that the children of Isabel Cuntapay by her first marriage could not have conveyed portions of the subject lot to respondent, as she had claimed, because until the present, it is still covered by OCT Nos. 196 and 1032 under the names of Pedro and Leona Cuntapay. To recall, it was already agreed by the heirs of the said spouses in a Partition Agreement dated December 28, 1979 that the subject lot would belong to Isabel Cuntapay. The latter died leaving her six children by both marriages as heirs. Considering that her purported last will and testament has, as yet, no force and effect for not having been probated, her six children are deemed to be co-owners of the subject lot having their respective pro indiviso shares. The conveyances made by the children of Isabel Cuntapay by her first marriage of their respective pro indiviso shares in the subject lot to respondent are valid because the law recognizes the substantive right of heirs to dispose of their ideal share in the co-heirship and/co-ownership among the heirs. The Court had expounded the principle in this wise: This Court had the occasion to rule that there is no doubt that an heir can sell whatever right, interest, or participation he may have in the property under administration. This is a matter which comes under the jurisdiction of the probate court. The right of an heir to dispose of the decedent's property, even if the same is under administration, is based on the Civil Code provision stating that the possession of hereditary property is deemed transmitted to the heir without interruption and from the moment of the death of the decedent, in case the inheritance is accepted. Where there are however, two or more heirs, the whole estate of the decedent is, before its partition, owned in common by such heirs.

The Civil Code, under the provisions of co-ownership, further qualifies this right. Although it is mandated that each co-owner shall have the full ownership of his part and of the fruits and benefits pertaining thereto, and thus may alienate, assign or mortgage it, and even substitute another person in its enjoyment, the effect of the alienation or the mortgage, with respect to the co-owners, shall be limited to the portion which may be allotted to him in the division upon the termination of the co-ownership. In other words, the law does not prohibit a co-owner from selling, alienating or mortgaging his ideal share in the property held in common. As early as 1942, this Court has recognized said right of an heir to dispose of property under administration. In the case of Teves de Jakosalem vs. Rafols, et al., it was said that the sale made by an heir of his share in an inheritance, subject to the result of the pending administration, in no wise, stands in the way of such administration. The Court then relied on the provision of the old Civil Code, Article 440 and Article 399 which are still in force as Article 533 and Article 493, respectively, in the new Civil Code. The Court also cited the words of a noted civilist, Manresa: "Upon the death of a person, each of his heirs becomes the undivided owner of the whole estate left with respect to the part or portion which might be adjudicated to him, a community of ownership being thus formed among the co-owners of the estate which remains undivided.'" 18 Contrary to the assertion of petitioners, therefore, the conveyances made by the children of Isabel Cuntapay by her first marriage to respondent are valid insofar as their pro indiviso shares are concerned. Moreover, the CA justifiably held that these conveyances, as evidenced by the deed of donation and deed of sale presented by respondent, coupled with the fact that she has been in possession of the subject lot since 1955, establish that respondent has a better right to possess the same as against petitioners whose claim is largely based on Isabel Cuntapay's last will and testament which, to date, has not been probated; hence, has no force and effect and under which no right can be claimed by petitioners. Significantly, the probative value of the other evidence relied upon by petitioners to support their claim, which was the affidavit of Heliodoro Turingan, was not passed upon by the MTCC and the RTC. Their respective decisions did not even mention the same. SHTEaA In conclusion, it is well to stress the CA's admonition that . . . our ruling on the issue of physical possession does not affect title to the property nor constitute a binding and conclusive adjudication on the merits on the issue of ownership. The parties are not precluded from filing the appropriate action directly contesting the ownership of or the title to the property. 19

For resolution is a motion to dismiss based on defendants' [referring to the petitioners herein] affirmative defenses consisting inter alia in the discovery of a last will and testament of Isabel Cuntapay, the original owner of the land in dispute. xxx xxx xxx It appears, however, that the last will and testament of the late Isabel Cuntapay has not yet been allowed in probate, hence, there is an imperative need to petition the court for the allowance of said will to determine once and for all the proper legitimes of legatees and devisees before any partition of the property may be judicially adjudicated. It is an elementary rule in law that testate proceedings take precedence over any other action especially where the will evinces the intent of the testator to dispose of his whole estate. With the discovery of the will of the late Isabel Cuntapay in favor of the defendants, the Court can order the filing of a petition for the probate of the same by the interested party. WHEREFORE, in light of the foregoing considerations, let the above-entitled case be as it is hereby DISMISSED. aSDCIE SO ORDERED. 15 For there to be res judicata, the following elements must be present: (1) finality of the former judgment; (2) the court which rendered it had jurisdiction over the subject matter and the parties; (3) it must be a judgment on the merits; and (4) there must be, between the first and second actions, identity of parties, subject matter and causes of action. 16 The third requisite, i.e., that the former judgment must be a judgment on

Likewise, it is therefore in this context that the CA's finding on the validity of Isabel Cuntapay's last will and testament must be considered. Such is merely a provisional ruling thereon for the sole purpose of determining who is entitled to possession de facto. WHEREFORE, premises considered, the petition is DENIED. The assailed Decision dated February 16, 2005 and the Resolution dated May 17, 2005 of the Court of Appeals in CA-G.R. SP No. 80032 are AFFIRMED. SO ORDERED. [G.R. Nos. 140371-72. November 27, 2006.] DY YIENG SEANGIO, BARBARA D. SEANGIO and VIRGINIA D. SEANGIO, petitioners, vs. HON. AMOR A. REYES, in her capacity as Presiding Judge, Regional Trial Court, National Capital Judicial Region, Branch 21, Manila, ALFREDO D. SEANGIO, ALBERTO D. SEANGIO, ELISA D. SEANGIO-SANTOS, VICTOR D. SEANGIO, ALFONSO D. SEANGIO, SHIRLEY D. SEANGIO-LIM, BETTY D. SEANGIO-OBAS and JAMES D. SEANGIO, respondents. DECISION AZCUNA, J p: This is a petition for certiorari 1 with application for the issuance of a writ of preliminary injunction and/or temporary restraining order seeking the nullification of the orders, dated August 10, 1999 and October 14, 1999, of the Regional Trial Court of Manila, Branch 21 (the RTC), dismissing the petition for probate on the ground of preterition, in the consolidated cases, docketed as SP. Proc. No. 98-90870 and SP. Proc. No. 99-93396, and entitled, "In the Matter of the Intestate Estate of Segundo C. Seangio v. Alfredo D. Seangio, et al." and "In the Matter of the Probate of the Will of Segundo C. Seangio v. Dy Yieng Seangio, Barbara D. Seangio and Virginia Seangio." The facts of the cases are as follows: On September 21, 1988, private respondents filed a petition for the settlement of the intestate estate of the late Segundo Seangio, docketed as Sp. Proc. No. 98-90870 of the RTC, and praying for the appointment of private respondent Elisa D. Seangio-Santos as special administrator and guardian ad litem of petitioner Dy Yieng Seangio. Petitioners Dy Yieng, Barbara and Virginia, all surnamed Seangio, opposed the petition. They contended that: 1) Dy Yieng is still very healthy and in full command of her faculties; 2) the deceased Segundo executed a general

power of attorney in favor of Virginia giving her the power to manage and exercise control and supervision over his business in the Philippines; 3) Virginia is the most competent and qualified to serve as the administrator of the estate of Segundo because she is a certified public accountant; and, 4) Segundo left a holographic will, dated September 20, 1995, disinheriting one of the private respondents, Alfredo Seangio, for cause. In view of the purported holographic will, petitioners averred that in the event the decedent is found to have left a will, the intestate proceedings are to be automatically suspended and replaced by the proceedings for the probate of the will. On April 7, 1999, a petition for the probate of the holographic will of Segundo, docketed as SP. Proc. No. 99-93396, was filed by petitioners before the RTC. They likewise reiterated that the probate proceedings should take precedence over SP. Proc. No. 98-90870 because testate proceedings take precedence and enjoy priority over intestate proceedings. 2 The document that petitioners refer to as Segundo's holographic will is quoted, as follows: Kasulatan sa pag-aalis ng mana Tantunin ng sinuman Ako si Segundo Seangio Filipino may asawa naninirahan sa 465-A Flores St., Ermita, Manila at nagtatalay ng maiwanag na pag-iisip at disposisyon ay tahasan at hayagang inaalisan ko ng lahat at anumang mana ang paganay kong anak na si Alfredo Seangio dahil siya ay naging lapastangan sa akin at isan beses siya ng sasalita ng masama harapan ko at mga kapatid niya na si Virginia Seangio labis kong kinasama ng loob ko at sasabe rin ni Alfredo sa akin na ako nasa ibabaw gayon gunit daratin ang araw na ako nasa ilalim siya at siya nasa ibabaw. IaEScC Labis kong ikinasama ng loob ko ang gamit ni Alfredo ng akin pagalan para makapagutang na kuarta siya at kanya asawa na si Merna de los Reyes sa China Bangking Corporation na millon pesos at hindi ng babayad at hindi ng babayad ito ay nagdulot sa aking ng malaking kahihiya sa mga may-ari at stockholders ng China Banking. At ikinagalit ko pa rin ang pagkuha ni Alfredo at ng kanyang asawa na mga custome[r] ng Travel Center of the Philippines na pinagasiwaan ko at ng anak ko si Virginia.

Dito ako nagalit din kaya gayon ayoko na bilanin si Alfredo ng anak ko at hayanan kong inaalisan ng lahat at anoman mana na si Alfredo at si Alfredo Seangio ay hindi ko siya anak at hindi siya makoha mana. Nila[g]daan ko ngayon ika 20 ng Setyembre 1995 sa longsod ng Manila sa harap ng tatlong saksi. 3 (signed) Segundo Seangio Nilagdaan sa harap namin (signed) Dy Yieng Seangio(signed) Unang Saksiikalawang saksi (signed) ikatlong saksi On May 29, 1999, upon petitioners' motion, SP. Proc. No. 98-90870 and SP. Proc. No. 99-93396 were consolidated. 4 On July 1, 1999, private respondents moved for the dismissal of the probate proceedings 5 primarily on the ground that the document purporting to be the holographic will of Segundo does not contain any disposition of the estate of the deceased and thus does not meet the definition of a will under Article 783 of the Civil Code. According to private respondents, the will only shows an alleged act of disinheritance by the decedent of his eldest son, Alfredo, and nothing else; that all other compulsory heirs were not named nor instituted as heir, devisee or legatee, hence, there is preterition which would result to intestacy. Such being the case, private respondents maintained that while procedurally the court is called upon to rule only on the extrinsic validity of the will, it is not barred from delving into the intrinsic validity of the same, and ordering the dismissal of the petition for probate when on the face of the will it is clear that it contains no testamentary disposition of the property of the decedent. Petitioners filed their opposition to the motion to dismiss contending that: 1) generally, the authority of the probate court is limited only to a determination of the extrinsic validity of the will; 2) private respondents question the intrinsic and not the extrinsic validity of the will; 3)

disinheritance constitutes a disposition of the estate of a decedent; and, 4) the rule on preterition does not apply because Segundo's will does not constitute a universal heir or heirs to the exclusion of one or more compulsory heirs. 6 On August 10, 1999, the RTC issued its assailed order, dismissing the petition for probate proceedings: A perusal of the document termed as "will" by oppositors/petitioners Dy Yieng Seangio, et al., clearly shows that there is preterition, as the only heirs mentioned thereat are Alfredo and Virginia. [T]he other heirs being omitted, Article 854 of the New Civil Code thus applies. However, insofar as the widow Dy Yieng Seangio is concerned, Article 854 does not apply, she not being a compulsory heir in the direct line. As such, this Court is bound to dismiss this petition, for to do otherwise would amount to an abuse of discretion. The Supreme Court in the case of Acain v. Intermediate Appellate Court [155 SCRA 100 (1987)] has made its position clear: "for . . . respondents to have tolerated the probate of the will and allowed the case to progress when, on its face, the will appears to be intrinsically void . . . would have been an exercise in futility. It would have meant a waste of time, effort, expense, plus added futility. The trial court could have denied its probate outright or could have passed upon the intrinsic validity of the testamentary provisions before the extrinsic validity of the will was resolved (underscoring supplied). WHEREFORE, premises considered, the Motion to Suspend Proceedings is hereby DENIED for lack of merit. Special Proceedings No. 99-93396 is hereby DISMISSED without pronouncement as to costs. aDHCEA SO ORDERED. 7 Petitioners' motion for reconsideration was denied by the RTC in its order dated October 14, 1999. Petitioners contend that: THE RESPONDENT JUDGE ACTED IN EXCESS OF HER JURISDICTION OR WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION AND DECIDED A QUESTION OF LAW NOT IN ACCORD WITH LAW AND JURISPRUDENCE IN ISSUING THE QUESTIONED ORDERS, DATED 10 AUGUST 1999 AND 14 OCTOBER 1999 (ATTACHMENTS "A" AND "B" HEREOF) CONSIDERING THAT: I

THE RESPONDENT JUDGE, WITHOUT EVEN COMPLYING WITH SECTIONS 3 AND 4 OF RULE 76 OF THE RULES OF COURT ON THE PROPER PROCEDURE FOR SETTING THE CASE FOR INITIAL HEARING FOR THE ESTABLISHMENT OF THE JURISDICTIONAL FACTS, DISMISSED THE TESTATE CASE ON THE ALLEGED GROUND THAT THE TESTATOR'S WILL IS VOID ALLEGEDLY BECAUSE OF THE EXISTENCE OF PRETERITION, WHICH GOES INTO THE INTRINSIC VALIDITY OF THE WILL, DESPITE THE FACT THAT IT IS A SETTLED RULE THAT THE AUTHORITY OF PROBATE COURTS IS LIMITED ONLY TO A DETERMINATION OF THE EXTRINSIC VALIDITY OF THE WILL, I.E., THE DUE EXECUTION THEREOF, THE TESTATOR'S TESTAMENTARY CAPACITY AND THE COMPLIANCE WITH THE REQUISITES OR SOLEMNITIES PRESCRIBED BY LAW; II EVEN ASSUMING ARGUENDO THAT THE RESPONDENT JUDGE HAS THE AUTHORITY TO RULE UPON THE INTRINSIC VALIDITY OF THE WILL OF THE TESTATOR, IT IS INDUBITABLE FROM THE FACE OF THE TESTATOR'S WILL THAT NO PRETERITON EXISTS AND THAT THE WILL IS BOTH INTRINSICALLY AND EXTRINSICALLY VALID; AND, III RESPONDENT JUDGE WAS DUTY BOUND TO SUSPEND THE PROCEEDINGS IN THE INTESTATE CASE CONSIDERING THAT IT IS A SETTLED RULE THAT TESTATE PROCEEDINGS TAKE PRECEDENCE OVER INTESTATE PROCEEDINGS. Petitioners argue, as follows: First, respondent judge did not comply with Sections 3 and 4 of Rule 76 of the Rules of Court which respectively mandate the court to: a) fix the time and place for proving the will when all concerned may appear to contest the allowance thereof, and cause notice of such time and place to be published three weeks successively previous to the appointed time in a newspaper of general circulation; and, b) cause the mailing of said notice to the heirs, legatees and devisees of the testator Segundo; Second, the holographic will does not contain any institution of an heir, but rather, as its title clearly states, Kasulatan ng Pag-Aalis ng Mana, simply contains a disinheritance of a compulsory heir. Thus, there is no preterition in the decedent's will and the holographic will on its face is not intrinsically void;

None of the compulsory heirs in the direct line of Segundo were preterited in the holographic will since there was no institution of an heir; Fourth, inasmuch as it clearly appears from the face of the holographic will that it is both intrinsically and extrinsically valid, respondent judge was mandated to proceed with the hearing of the testate case; and, Lastly, the continuation of the proceedings in the intestate case will work injustice to petitioners, and will render nugatory the disinheritance of Alfredo. CDAHaE The purported holographic will of Segundo that was presented by petitioners was dated, signed and written by him in his own handwriting. Except on the ground of preterition, private respondents did not raise any issue as regards the authenticity of the document. The document, entitled Kasulatan ng Pag-Aalis ng Mana, unmistakably showed Segundo's intention of excluding his eldest son, Alfredo, as an heir to his estate for the reasons that he cited therein. In effect, Alfredo was disinherited by Segundo. For disinheritance to be valid, Article 916 of the Civil Code requires that the same must be effected through a will wherein the legal cause therefor shall be specified. With regard to the reasons for the disinheritance that were stated by Segundo in his document, the Court believes that the incidents, taken as a whole, can be considered a form of maltreatment of Segundo by his son, Alfredo, and that the matter presents a sufficient cause for the disinheritance of a child or descendant under Article 919 of the Civil Code: Article 919.The following shall be sufficient causes for the disinheritance of children and descendants, legitimate as well as illegitimate: (1)When a child or descendant has been found guilty of an attempt against the life of the testator, his or her spouse, descendants, or ascendants; (2)When a child or descendant has accused the testator of a crime for which the law prescribes imprisonment for six years or more, if the accusation has been found groundless; (3)When a child or descendant has been convicted of adultery or concubinage with the spouse of the testator; (4)When a child or descendant by fraud, violence, intimidation, or undue influence causes the testator to make a will or to change one already made;

Third, the testator intended all his compulsory heirs, petitioners and private respondents alike, with the sole exception of Alfredo, to inherit his estate.

(5)A refusal without justifiable cause to support the parents or ascendant who disinherit such child or descendant; (6)Maltreatment of the testator by word or deed, by the child or descendant; 8 (7)When a child or descendant leads a dishonorable or disgraceful life; (8)Conviction of a crime which carries with it the penalty of civil interdiction. Now, the critical issue to be determined is whether the document executed by Segundo can be considered as a holographic will. A holographic will, as provided under Article 810 of the Civil Code, must be entirely written, dated, and signed by the hand of the testator himself. It is subject to no other form, and may be made in or out of the Philippines, and need not be witnessed. Segundo's document, although it may initially come across as a mere disinheritance instrument, conforms to the formalities of a holographic will prescribed by law. It is written, dated and signed by the hand of Segundo himself. An intent to dispose mortis causa 9 can be clearly deduced from the terms of the instrument, and while it does not make an affirmative disposition of the latter's property, the disinheritance of Alfredo, nonetheless, is an act of disposition in itself. In other words, the disinheritance results in the disposition of the property of the testator Segundo in favor of those who would succeed in the absence of Alfredo. 10 Moreover, it is a fundamental principle that the intent or the will of the testator, expressed in the form and within the limits prescribed by law, must be recognized as the supreme law in succession. All rules of construction are designed to ascertain and give effect to that intention. It is only when the intention of the testator is contrary to law, morals, or public policy that it cannot be given effect. 11 Holographic wills, therefore, being usually prepared by one who is not learned in the law, as illustrated in the present case, should be construed more liberally than the ones drawn by an expert, taking into account the circumstances surrounding the execution of the instrument and the intention of the testator. 12 In this regard, the Court is convinced that the document, even if captioned as Kasulatan ng Pag-Aalis ng Mana, was intended by Segundo to be his last testamentary act and was executed by him in accordance with law in the form of a holographic will. Unless the will is probated, 13 the disinheritance cannot be given effect. 14

With regard to the issue on preterition, 15 the Court believes that the compulsory heirs in the direct line were not preterited in the will. It was, in the Court's opinion, Segundo's last expression to bequeath his estate to all his compulsory heirs, with the sole exception of Alfredo. Also, Segundo did not institute an heir 16 to the exclusion of his other compulsory heirs. The mere mention of the name of one of the petitioners, Virginia, in the document did not operate to institute her as the universal heir. Her name was included plainly as a witness to the altercation between Segundo and his son, Alfredo. HSEIAT Considering that the questioned document is Segundo's holographic will, and that the law favors testacy over intestacy, the probate of the will cannot be dispensed with. Article 838 of the Civil Code provides that no will shall pass either real or personal property unless it is proved and allowed in accordance with the Rules of Court. Thus, unless the will is probated, the right of a person to dispose of his property may be rendered nugatory. 17 In view of the foregoing, the trial court, therefore, should have allowed the holographic will to be probated. It is settled that testate proceedings for the settlement of the estate of the decedent take precedence over intestate proceedings for the same purpose. 18 WHEREFORE, the petition is GRANTED. The Orders of the Regional Trial Court of Manila, Branch 21, dated August 10, 1999 and October 14, 1999, are set aside. Respondent judge is directed to reinstate and hear SP Proc. No. 99-93396 for the allowance of the holographic will of Segundo Seangio. The intestate case or SP. Proc. No. 98-90870 is hereby suspended until the termination of the aforesaid testate proceedings. No costs. SO ORDERED. Puno, Sandoval-Gutierrez, Corona and Garcia, JJ., concur. [G.R. No. 48840. December 29, 1943.] ERNESTO M. GUEVARA, petitioner-appellant, vs. ROSARIO GUEVARA and her husband PEDRO BUISON, respondents-appellees. Primicias, Abad, Mencias & Castillo for appellant. Pedro C. Quinto for appellees. SYLLABUS

1.WILLS; PRESENTATION OF WILL FOR PROBATE IS MANDATORY; SETTLEMENT OF ESTATE ON BASIS OF INTESTACY WHEN DECEDENT LEFT A WILL, AGAINST THE LAW. We hold that under section 1 of Rule 74, in relation to Rule 76, if the decedent left a will and no debts and the heirs and legatees desire to make an extrajudicial partition of the estate, they must first present that will to the court for probate and divide the estate in accordance with the will. They may not disregard the provisions of the will unless those provisions are contrary to law. Neither may they do away with the presentation of the will to the court for probate, because such suppression of the will is contrary to law and public policy. The law enjoins the probate of the will and public policy requires it, because unless the will is probated and notice thereof given to the whole world, the right of a person to dispose of his property by will may be rendered nugatory, as is attempted to be done in the instant case. Absent legatees and devisees, or such of them as may have no knowledge of the will, could be cheated of their inheritance thru the collusion of some of the heirs who might agree to the partition of the estate among themselves to the exclusion of others. 2.ID.; ID.; ID. Even if the decedent left no debts and nobody raises any question as to the authenticity and due execution of the will, none of the heirs may sue for the partition of the estate in accordance with that will without first securing its allowance or probate of the court: first, because the law expressly provides that "no will shall pass either real or personal estate unless it is proved and allowed in the proper court"; and, second, because the probate of a will, which is a proceeding in rem, cannot be dispensed with and substituted by any other proceeding, judicial or extrajudicial, without offending against public policy designed to effectuate the testator's right to dispose of his property by will in accordance with law and to protect the rights of the heirs and legatees under the will thru the means provided by law, among which are the publication and the personal notices to each and all of said heirs and legatees. Nor may the court approve and allow the will presented in evidence in such an action for partition, which is one in personam, any more than it could decree the registration under the Torrens system of the land involved in an ordinary action for reivindicacion or partition. 3.TORRENS REGISTRATION; REGISTRATION DOES NOT AFFECT RIGHTS OF PARTITION BETWEEN LEGATEES. It results that the interested parties consented to the registration of the land in question in the name of E. M. G. alone subject to the implied trust on account of which he is under obligation to deliver and convey to them their corresponding shares after all the debts of the original owner of said land had been paid. Such finding does not constitute a reversal of the decision and decree of registration, which merely confirmed the petitioner's title; and in the absence of any intervening innocent third party, the petitioner may be compelled to fulfill the promise by virtue of which he acquired his title. That is authorized by section 70 of the Land Registration Act, cited by the Court of Appeals, and

by the decision of this Court in Severino vs. Severino, 44 Phil., 343, and the cases therein cited. DECISION OZAETA, J p: Ernesto M. Guevara and Rosario Guevara, legitimate son and natural daughter, respectively, of the deceased Victorino L. Guevara, are litigating here over their inheritance from the latter. The action was commenced on November 12, 1937, by Rosario Guevara to recover from Ernesto Guevara what she claims to be her strict ligitime as an acknowledged natural daughter of the deceased to wit, a portion of 423,492 square meters of a large parcel of land described in original certificate of title No. 51691 of the province of Pangasinan, issued in the name of Ernesto M. Guevara and to order the latter to pay her P6,000 plus P2,000 a year as damages for withholding such legitime from her. The defendant answered the complaint contending that whatever right or rights the plaintiff might have had, had been barred by the operation of law. It appears that on August 26, 1931, Victorino L. Guevara executed a will (exhibit A), apparently with all the formalities of the law, wherein he made the following bequests: To his stepdaughter Candida Guevara, a pair of earrings worth P150 and a gold chain worth P40; to his son Ernesto M. Guevara, a gold ring worth P180 and all the furniture, pictures, statues, and other religious objects found in the residence of the testator in Poblacion Sur, Bayambang, Pangasinan; "a mi hija Rosario Guevara," a pair of earrings worth P120; to his stepson Pio Guevara, a ring worth P120; and to his wife by second marriage, Angustia Posadas, various pieces of jewelry worth P1,020. He also made the following devises: "A mis hijos Rosario Guevara y Ernesto M. Guevara y a mis hijastros, Vivencio, Eduviges, Dionisia, Candida y Pio, apellidados Guevara," a residential lot with its improvements situate in the town of Bayambang, Pangasinan, having an area of 960 square meters and assessed at P540; to his wife Angustia Posadas he confirmed the donation propter nuptias theretofore made by him to her of a portion of 25 hectares of the large parcel of land of 259-odd hectares described in plan Psu-66618. He also devised to her a portion of 5 hectares of the same parcel of land by way of complete settlement of her usufructuary right. He set aside 100 hectares of the same parcel of land to be disposed of either by him during his lifetime or by his attorney-in-fact Ernesto M. Guevara in order to pay all his pending debts and to defray his expenses and those of his family up to the time of his death. The remander of said parcel of land he disposed of in the following manner:

"(d). Toda la porcion restante de mi terreno arriba descrito, de la extension superficial aproximada de ciento veintinueve (129) hectareas setenta (70) areas, y veinticinco (25) centiareas, con todas sus mejoras existentes en la misma, dejo y distribuyo, pro-indiviso, a mis siguientes herederos como sigue: "A mi hijo legitimo, Ernesto M. Guevara, ciento ocho (108) hectareas, ocho (8) areas y cincuenta y cuatro (54) centiareas, hacia la parte que colinda al Oeste de las cien (100) hectareas referidas en el inciso (a) de este parrafo del testamento, como su propiedad absoluta y exclusiva, en la cual extension superficial estan incluidas cuarenta y tres (43) hectareas, veintitres (23) areas y cuarenta y dos (42) centiareas que le doy en concepto de mejora. "A mi hija natural reconocida, Rosario Guevara, veintiun (21) hectareas, sesenta y un (61) areas y setenta y un (71) centiareas, que es la parte restante. "Duodecimo. Nombro por la presente como Albacea Testamentario a mi hijo Ernesto M. Guevara, con relevacion de fianza. Y una vez legalizado este testamento, y en cuanto sea posible, es mi deseo, que los herederos y legatarios aqui nombrados se repartan extrajudicialmente mis bienes de conformidad con mis disposiciones arriba consignadas." Subsequently, and on July 12, 1933, Victorino L. Guevara executed a deed of sale (exhibit 2) in favor of Ernesto M. Guevara whereby he conveyed to him the southern half of the large parcel of land of which he had theretofore disposed by the will above mentioned, in consideration of the sum of P1 and other valuable considerations, among which were the payment of all his debts and obligations amounting to not less than P16,500, his maintenance up to his death, and the expenses of his last illness and funeral expenses. As to the northern half of the same parcel of land, he declared: "Hago constar tambien que reconozco a mi referido hijo Ernesto M. Guevara como dueo de la mitad norte de la totalidad y conjunto de los referidos terrenos por haberlos comprado de su propio peculio del Sr. Rafael T. Puzon a quien habia vendido con anterioridad." On September 27, 1933, final decree of registration was issued in land registration case No. 15174 of the Court of First Instance of Pangasinan, and pursuant thereto original certificate of title No. 51691 of the same province was issued on October 12 of the same year in favor of Ernesto M. Guevara over the whole parcel of land described in the deed of sale above referred to. The registration proceeding had been commenced on November 1, 1932, by Victorino L. Guevara and Ernesto M. Guevara as applicants, with Rosario, among others, as oppositor; but before the trial of the case Victorino L. Guevara withdrew as applicant and Rosario Guevara and her co-

oppositors also withdrew their opposition, thereby facilitating the issuance of the title in the name of Ernesto M. Guevara alone. On September 27, 1933, Victorino L. Guevara died. His last will and testament, however, was never presented to the court for probate, nor has any administration proceeding ever been instituted for the settlement of his estate. Whether the various legatees mentioned in the will have received their respective legacies or have even been given due notice of the execution of said will and of the dispositions therein made in their favor, does not affirmatively appear from the record of this case. Ever since the death of Victorino L. Guevara, his only legitimate son Ernesto M. Guevara appears to have possessed the land adjudicated to him in the registration proceeding and to have disposed of various portions thereof for the purpose of paying the debts left by his father. In the meantime Rosario Guevara, who appears to have had her father's last will and testament in her custody, did nothing judicially to invoke the testamentary dispositions made therein in her favor, whereby the testator acknowledged her as his natural daughter and, aside from certain legacies and bequests, devised to her a portion of 21.6171 hectares of the large parcel of land described in the will. But a little over four years after the testator's demise, she (assisted by her husband) commenced the present action against Ernesto M. Guevara alone for the purpose hereinbefore indicated; and it was only during the trial of this case that she presented the will to the court, not for the purpose of having it probated but only to prove that the deceased Victorino L. Guevara had acknowledged her as his natural daughter. Upon that proof of acknowledgment she claimed her share of the inheritance from him, but on the theory or assumption that he died intestate, because the will had not been probated, for which reason, she asserted, the betterment therein made by the testator in favor of his legitimate son Ernesto M. Guevara should be disregarded. Both the trial court and the Court of Appeals sustained that theory.

Two principal questions are before us for determination: (1) the legality of the procedure adopted by the plaintiff (respondent herein) Rosario Guevara; and (2) the efficacy of the deed of sale exhibit 2 and the effect of the certificate of title issued to the defendant (petitioner herein) Ernesto M. Guevara. I We cannot sanction the procedure adopted by the respondent Rosario Guevara, it being in our opinion in violation of procedural law and an attempt to circumvent and disregard the last will and testament of the decedent. The Code of Civil Procedure, which was in force up to the time

this case was decided by the trial court, contains the following pertinent provisions: "Sec. 625.Allowance Necessary, and Conclusive as to Execution. No will shall pass either the real or personal estate, unless it is proved and allowed in the Court of First Instance, or by appeal to the Supreme Court; and the allowance by the court of a will of real and personal estate shall be conclusive as to its due execution. "Sec. 626.Custodian of Will to Deliver. The person who has the custody of a will shall, within thirty days after he knows of the death of the testator, deliver the will into the court which has jurisdiction, or to the executor named in the will. "Sec. 627.Executor to Present Will and Accept or Refuse Trust. A person named as executor in a will, shall within thirty days after he knows of the death of the testator, or within thirty days after he knows that he is named executor, if he obtained such knowledge after knowing of the death of the testator, present such will to the court which has jurisdiction, unless the will has been otherwise returned to said court, and shall, within such period, signify to the court his acceptance of the trust, or make known in writing his refusal to accept it. "Sec. 628.Penalty. A person who neglects any of the duties required in the two preceding sections, unless he gives a satisfactory excuse to the court, shall be subject to a fine not exceeding one thousand dollars. "Sec. 629.Person Retaining Will may be Committed. If a person having custody of a will after the death of the testator neglects without reasonable cause to deliver the same to the court having jurisdiction, after notice by the court so to do, he may be committed to the prison of the province by a warrant issued by the court, and there kept in close confinement until he delivers the will." The foregoing provisions are now embodied in Rule 76 of the new Rules of Court, which took effect on July 1, 1940. The proceeding for the probate of a will is one in rem, with notice by publication to the whole world and with personal notice to each of the known heirs, legatees, and devisees of the testator (section 630, C. C. P., and sections 3 and 4, Rule 77). Altho not contested (section 5, Rule 77), the due execution of the will and the fact that the testator at the time of its execution was of sound and disposing mind and not acting under duress, menace, and undue influence or fraud, must be proved to the satisfaction of the court, and only then may the will be legalized and given effect by means of a certificate of its allowance, signed by the judge and attested by the seal of the court; and when the will devises real property, attested

copies thereof and of the certificate of allowance must be recorded in the register of deeds of the province in which the land lies. (Section 12, Rule 77, and section 624, C. C. P.) It will readily be seen from the above provisions of the law that the presentation of a will to the court for probate is mandatory and its allowance by the court is essential and indispensable to its efficacy. To assure and compel the probate of a will, the law punishes a person who neglects his duty to present it to the court with a fine not exceeding P2,000, and if he should persist in not presenting it, he may be committed to prison and kept there until he delivers the will. The Court of Appeals took express notice of these requirements of the law and held that a will, unless probated, is ineffective. Nevertheless it sanctioned the procedure adopted by the respondent for the following reasons: "The majority of the Court is of the opinion that if this case is dismissed ordering the filing of testate proceedings, it would cause injustice, inconvenience, delay, and much expense to the parties, and that therefore, it is preferable to leave them in the very status which they themselves have chosen, and to decide their controversy once and for all, since, in a similar case, the Supreme Court applied that same criterion ( Leao vs. Leao, supra), which is now sanctioned by section 1 of Rule 74 of the Rules of Court. Besides, section 6 of Rule 124 provides that, if the procedure which the court ought to follow in the exercise of its jurisdiction is not specifically pointed out by the Rules of Court, any suitable process or mode of procedure may be adopted which appears most consistent to the spirit of the said Rules. Hence, we declare the action instituted by the plaintiff to be in accordance with law." Let us look into the validity of these considerations. Section 1 of Rule 74 provides as follows: "Section 1.Extrajudicial settlement by agreement between heirs. If the decedent left no debts and the heirs and legatees are all of age, or the minors are represented by their judicial guardians, the parties may, without securing letters of administration, divide the estate among themselves as they see fit by means of a public instrument filed in the office of the register of deeds, and should they disagree, they may do so in an ordinary action of partition. If there is only one heir or one legatee, he may adjudicate to himself the entire estate by means of an affidavit filed in the office of the register of deeds. It shall be presumed that the decedent left no debts if no creditor files a petition for letters of administration within two years after the death of the decedent."

That is a modification of section 596 of the Code of Civil Procedure, which reads as follows: "Sec. 596.Settlement of Certain Intestates Without Legal Proceedings. Whenever all the heirs of a person who died intestate are of lawful age and legal capacity and there are no debts due from the estate, or all the debts have been paid the heirs may, by agreement duly executed in writing by all of them, and not otherwise, apportion and divide the estate among themselves, as they may see fit, without proceedings in court." The implication is that by the omission of the word "intestate" and the use of the word "legatees" in section 1 of Rule 74, a summary extrajudicial settlement of a deceased person's estate, whether he died testate or intestate, may be made under the conditions specified. Even if we give retroactive effect to section 1 of Rule 74 and apply it here, as the Court of Appeals did, we do not believe it sanctions the nonpresentation of a will for probate and much less the nullification of such will thru the failure of its custodian to present it to the court for probate; for such a result is precisely what Rule 76 sedulously provides against. Section 1 of Rule 74 merely authorizes the extrajudicial or judicial partition of the estate of a decedent "without securing letters of administration." It does not say that in case the decedent left a will the heirs and legatees may divide the estate among themselves without the necessity of presenting the will to the court for probate. The petition to probate a will and the petition to issue letters of administration are two different things, altho both may be made in the same case. The allowance of a will precedes the issuance of letters testamentary or of administration (section 4, Rule 78). One can have a will probated without necessarily securing letters testamentary or of administration. We hold that under section 1 of Rule 74, in relation to Rule 76, if the decedent left a will and no debts and the heirs and legatees desire to make an extrajudicial partition of the estate, they must first present that will to the court for probate and divide the estate in accordance with the will. They may not disregard the provisions of the will unless those provisions are contrary to law. Neither may they do away with the presentation of the will to the court for probate, because such suppression of the will is contrary to law and public policy. The law enjoins the probate of the will and public policy requires it, because unless the will is probated and notice thereof given to the whole world, the right of a person to dispose of his property by will may be rendered nugatory, as is attempted to be done in the instant case. Absent legatees and devisees, or such of them as may have no knowledge of the will, could be cheated of their inheritance thru the collusion of some of the heirs who might agree to the partition of the estate among themselves to the exclusion of others. In the instant case there is no showing that the various legatees other than the present litigants had received their respective legacies or that they had knowledge of the existence and of the provisions of the will. Their right under the will cannot be disregarded, nor may those rights be obliterated

on account of the failure or refusal of the custodian of the will to present it to the court for probate. Even if the decedent left no debts and nobody raises any question as to the authenticity and due execution of the will, none of the heirs may sue for the partition of the estate in accordance with that will without first securing its allowance or probate by the court, first, because the law expressly provides that "no will shall pass either real or personal estate unless it is proved and allowed in the proper court"; and, second, because the probate of a will, which is a proceeding in rem, cannot be dispensed with and substituted by any other proceeding, judicial or extrajudicial, without offending against public policy designed to effectuate the testator's right to dispose of his property by will in accordance with law and to protect the rights of the heirs and legatees under the will thru the means provided by law, among which are the publication and the personal notices to each and all of said heirs and legatees. Nor may the court approve and allow the will presented in evidence in such an action for partition, which is one in personam, any more than it could decree the registration under the Torrens system of the land involved in an ordinary action for reivindicacion or partition.

"In view of the positive finding of the judge of the lower court that there had been a voluntary partition of the estate among the heirs and legatees, and in the absence of positive proof to the contrary, we must conclude that the lower court had some evidence to support its conclusion." Thus it will be seen that as a matter of fact no question of law was raised and decided in that case. That decision cannot be relied upon as an authority for the unprecedented and unheard of procedure adopted by the respondent whereby she seeks to prove her status as an acknowledged natural child of the decedent by his will and attempts to nullify and circumvent the testamentary dispositions made by him by not presenting the will to the court for probate and by claiming her legitime as an acknowledged natural child on the basis of intestacy; and that in the face of express mandatory provisions of the law requiring her to present the will to the court for probate. In the subsequent case of Riosa vs. Rocha (1926), 48 Phil. 737, this Court departed from the procedure sanctioned by the trial court and impliedly approved by this Court in the Leao case, by holding that an extrajudicial partition is not proper in testate succession. In the Riosa case the Court, speaking thru Chief Justice Avancea, held: "1.EXTRAJUDICIAL PARTITION; NOT PROPER IN TESTATE SUCCESSION. Section 596 of the Code of Civil Procedure, authorizing the heirs of a person who died intestate to make extrajudicial partition of the property of the deceased, without going into any court of justice, makes express reference to intestate succession, and therefore excludes testate succession. "2.ID.; EFFECTS OF; TESTATE SUCCESSION. In the instant case, which is a testate succession, the heirs made an extrajudicial partition of the estate and at the same time instituted proceeding for the probate of the will and the administration of the estate. When the time came for making the partition, they submitted to the court the extrajudicial partition previously made by them, which the court approved. Held: That for the purposes of the reservation and the rights and obligations created thereby, in connection with the relatives benefited, the property must not be deemed transmitted to the heirs from the time the extrajudicial partition was made, but from the time said partition was approved by the court." (Syllabus.) The Court of Appeals also cites section 6 of Rule 124, which provides that if the procedure which the court ought to follow in the exercise of its jurisdiction is not specifically pointed out by the Rules of Court, any suitable process or mode of proceeding may be adopted which appears most conformable to the spirit of the said Rules. That provision is not applicable here for the simple reason that the procedure which the court ought to follow in the exercise of its jurisdiction is specifically pointed out and prescribed in detail by Rules 74, 76, and 77 of the Rules of Court.

The Court of Appeals also said "that if this case is dismissed, ordering the filing of testate proceedings, it would cause injustice, inconvenience, delay, and much expense to the parties." We see no injustice in requiring the plaintiff not to violate but to comply with the law. On the contrary, an injustice might be committed against the other heirs and legatees mentioned in the will if the attempt of the plaintiff to nullify said will by not presenting it to the court for probate should be sanctioned. As to the inconvenience, delay, and expense, the plaintiff herself is to blame because she was the custodian of the will and she violated the duty imposed upon her by sections 2, 4, and 5 of Rule 76, which command her to deliver said will to the court on pain of a fine not exceeding P2,000 and of imprisonment for contempt of court. As for the defendant, he is not complaining of inconvenience, delay, and expense, but on the contrary he is insisting that the procedure prescribed by law be followed by the plaintiff. Our conclusion is that the Court of Appeals erred in declaring the action instituted by the plaintiff to be in accordance with law. It also erred in awarding relief to the plaintiff in this action on the basis of intestacy of the decedent notwithstanding the proven existence of a will left by him and solely because said will has not been probated due to the failure of the plaintiff as custodian thereof to comply with the duty imposed upon her by the law. It is apparent that the defendant Ernesto M. Guevara, who was named executor in said will, did not take any step to have it presented to the court for probate and did not signify his acceptance of the trust or refusal to accept it as required by section 3 of Rule 76 (formerly section 627 of the Code of Civil Procedure), because his contention is that said will, insofar as the large parcel of land in litigation is concerned, has been superseded by the deed of sale exhibit 2 and by the subsequent issuance of the Torrens certificate of title in his favor. II This brings us to the consideration of the second question, referring to the efficacy of the deed of sale exhibit 2 and the effect of the certificate of title issued to the defendant Ernesto M. Guevara. So that the parties may not have litigated here in vain insofar as that question is concerned, we deem it proper to decide it now and obviate the necessity of a new action. The deed of sale exhibit 2 executed by and between Victorino L. Guevara and Ernesto M. Guevara before a notary public on July 12, 1933, may be divided into two parts: (a) insofar as it disposes of and conveys to Ernesto M. Guevara the southern half of Victorino L. Guevara's hacienda of 259-odd hectares in consideration of P1 and other valuable considerations therein mentioned; and (b) insofar as it declares that Ernesto M. Guevara became

We therefore believe and so hold that section 1 of Rule 74, relied upon by the Court of Appeals, does not sanction the procedure adopted by the respondent. The case of Leao vs. Leao (25 Phil., 180), cited by the Court of Appeals, like section 1 of Rule 74, sanctions the extrajudicial partition by the heirs of the properties left by a decedent, but not the nonpresentation of a will for probate. In that case one Paulina Ver executed a will on October 11, 1902, and died on November 1, 1902. Her will was presented for probate on November 10, 1902, and was approved and allowed by the Court on August 16, 1904. In the meantime, and on November 10, 1902, the heirs went ahead and divided the properties among themselves and some of them subsequently sold and disposed of their shares to third persons. It does not affirmatively appear in the decision in that case that the partition made by the heirs was not in accordance with the will or that they in any way disregarded the will. In closing the case by its order dated September 1, 1911, the trial court validated the partition, and one of the heirs, Cunegunda Leao, appealed. In deciding the appeal this Court said: "The principal assignment of error is that the lower court committed an error in deciding that the heirs and legatees of the estate of Da. Paulina Ver had voluntarily divided the estate among themselves." In resolving that question this Court said:

the owner of the northern half of the same hacienda by repurchasing it with his own money from Rafael T. Puzon. A. As to the conveyance of the southern half of the hacienda to Ernesto M. Guevara in consideration of the latter's assumption of the obligation to pay all the debts of the deceased, the Court of Appeals found it to be valid and efficacious because: "(a) it has not been proven that the charges imposed as a condition is [are] less than the value of the property; and (b) neither has it been proven that the defendant did not comply with the conditions imposed upon him in the deed of transfer." As a matter of fact the Court of Appeals found: "It appears that the defendant has been paying the debts left by his father. To accomplish this, he had to alienate considerable portions of the above-mentioned land. And we cannot brand such alienation as anomalous unless it is proven that they have exceeded the value of what he has acquired by virtue of the deed of July 12, 1933, and that of his corresponding share in the inheritance." The finding of the Court of Appeals on this aspect of the case is final and conclusive upon the respondent, who did not appeal therefrom. B.With regard to the northern half of the hacienda, the findings of fact and of law made by the Court of Appeals are as follows: "The defendant has tried to prove that with his own money, he bought from Rafael Puzon one-half of the land in question, but the Court a quo, after considering the evidence, found it not proven; we hold that such conclusion is well founded. The acknowledgment by the deceased, Victorino L. Guevara, of the said transactions, which was inserted incidentally in the document of July 12, 1933, is clearly belied by the fact that the money paid to Rafael Puzon came from Silvestre P. Coquia, to whom Victorino L. Guevara had sold a parcel of land with the right of repurchase. The defendant, acting for his father, received the money and delivered it to Rafael Puzon to redeem the land in question, and instead of executing a deed of redemption in favor of Victorino L. Guevara, the latter executed a deed of sale in favor of the defendant. "The plaintiff avers that she withdrew her opposition to the registration of the land in the name of the defendant, because of the latter's promise that after paying all the debts of their father, he would deliver to her and to the widow their corresponding shares. As their father then was still alive, there was no reason to require the delivery of her share and that was why she did not insist on her opposition, trusting on the reliability and sincerity of her brother's promise. The evidence shows that such promise was really made. The registration of land under the Torrens system does not have the effect of altering the laws of succession, or the rights of partition between coparceners, joint tenants, and other cotenants nor does it change or affect in any other way any other rights and liabilities created by law and applicable to unregistered land (sec. 70, Land Registration Law). The plaintiff is not, then, in estoppel, nor can the doctrine of res judicata be

invoked against her claim. Under these circumstances, she has the right to compel the defendant to deliver her corresponding share in the estate left by the deceased, Victorino L. Guevara."

In his tenth to fourteenth assignments of error the petitioner assails the foregoing findings of the Court of Appeals. But the findings of fact made by said court are final and not reviewable by us on certiorari. The Court of Appeals found that the money with which the petitioner repurchased the northern half of the land in question from Rafael Puzon was not his own but his father's, it being the proceeds of the sale of a parcel of land made by the latter to Silvestre P. Coquia. Said court also found that the respondent withdrew her opposition to the registration of the land in the name of the petitioner upon the latter's promise that after paying all the debts of their father he would deliver to her and to the widow their corresponding shares. From these facts, it results that the interested parties consented to the registration of the land in question in the name of Ernesto M. Guevara alone subject to the implied trust on account of which he is under obligation to deliver and convey to them their corresponding shares after all the debts of the original owner of said land had been paid. Such finding does not constitute a reversal of the decision and decree of registration, which merely confirmed the petitioner's title; and in the absence of any intervening innocent third party, the petitioner may be compelled to fulfill the promise by virtue of which he acquired his title. That is authorized by section 70 of the Land Registration Act, cited by the Court of Appeals, and by the decision of this Court in Severino vs. Severino, 44 Phil., 343, and the cases therein cited. Upon this phase of the litigation, we affirm the finding of the Court of Appeals that the northern half of the land described in the will exhibit A and in original certificate of title No. 51691 still belongs to the estate of the deceased Victorino L. Guevara. In the event the petitioner Ernesto M. Guevara has alienated any portion thereof, he is under obligation to compensate the estate with an equivalent portion from the southern half of said land that has not yet been sold. In other words, to the estate of Victorino L. Guevara still belongs one half of the total area of the land described in said original certificate of title, to be taken from such portions as have not yet been sold by the petitioner, the other half having been lawfully acquired by the latter in consideration of his assuming the obligation to pay all the debts of the deceased. Wherefore, that part of the decision of the Court of Appeals which declares in effect that notwithstanding exhibit 2 and the issuance of original certificate of title No. 51691 in the name of Ernesto M. Guevara, one half of the land described in said certificate of title belongs to the estate of Victorino L. Guevara and the other half to Ernesto M. Guevara in consideration of the latter's assumption of the obligation to pay all the

debts of the deceased, is hereby affirmed; but the judgment of said court insofar as it awards any relief to the respondent Rosario Guevara in this action is hereby reversed and set aside, and the parties herein are hereby ordered to present the document exhibit A to the proper court for probate in accordance with law, without prejudice to such action as the provincial fiscal of Pangasinan may take against the responsible party or parties under section 4 of Rule 76. After the said document is approved and allowed by the court as the last will and testament of the deceased Victorino L. Guevara, the heirs and legatees therein named may take such action, judicial or extrajudicial, as may be necessary to partition the estate of the testator, taking into consideration the pronouncements made in part II of this opinion. No finding as to costs in any of the three instances. Yulo, C.J., and Hontiveros, 1 J., concur. Separate Opinions BOCOBO, J., concurring: I concur in the result. Extrajudicial settlement by agreement among the heirs is authorized by section 1 of Rule 74 only "if the decedent left no debts." In this case, according to the findings of the Court of Appeals, Ernesto M. Guevara "has been paying the debts left by his father." It is true that said Ernesto M. Guevara, in consideration of the conveyance to him of the southern half of the hacienda, assumed all the debts of the deceased, but this agreement is binding only upon the parties to the contract but not upon the creditors who did not consent thereto. (Art. 1205, Civil Code.) There being debts when the father died, section 1 of Rule 74 is not applicable. MORAN, J., concurring in part and dissenting in part: I would be agreeable to the majority decision but for a statement therein made which in my view repeals by an erroneous interpretation the provisions of Rule 74, section 1, of the Rules of Court, which reads as follows: "EXTRAJUDICIAL SETTLEMENT BY AGREEMENT BETWEEN HEIRS. If the decedent left no debts and the heirs and legatees are all of age, or the minors are represented by their judicial guardians, the parties may, without securing letters of administration, divide the estate among themselves as they see fit by means of a public instrument filed in the office of the register of deeds, and should they disagree, they may do so in an ordinary action of partition. If there is only one heir or one legatee, he may adjudicate to himself the entire estate by means of an affidavit filed in the office of the register of deeds. It shall be presumed that the decedent left no debts if no

creditor files a petition for letters of administration within two years after the death of the decedent." The majority holds that under this provision, the heirs and legatees, even if all of them are of age, and there are no debts to be paid, cannot make an extrajudicial settlement of the estate left by the decedent without first submitting in court for probate the will left by the testator. This erroneous interpretation clearly overlooks not only the letter and the spirit but more specially the whole background of the provision. It is admitted that the provision has been taken from section 596 of Act No. 190 but with a modification consisting in that it is made to apply in testate succession. Said section 596 reads: "SETTLEMENT OF CERTAIN INTESTATE ESTATES WITHOUT LEGAL PROCEEDINGS. Whenever all the heirs of a person who died intestate are of lawful age and legal capacity, and there are no debts due from the estate, or all the debts have been paid the heirs may, by agreement duly executed in writing by all of them, and not otherwise, apportion and divide the estate among themselves, as they may see fit, without proceedings in court." It must be observed that the procedure contemplated in this legal provision is completely extrajudicial and the same procedure intended in section 1 of Rule 74 above quoted which is captioned "Extrajudicial Settlement by Agreement . . ." Justice Laurel, who was one of the members of this Court when the new Rules were promulgated, in commenting upon Rule 74, said: "RULE 74. SUMMARY SETTLEMENT OF ESTATES. The corresponding provisions in the Code of Civil Procedure are sections 596-598. There is substantial analogy between the provisions of the Code of Civil Procedure and those of Rule 74, save that: (1) Under section 1 of Rule 74, there may be extrajudicial settlement whether a person died testate or intestate, while under section 596 of the Code of Civil Procedure extrajudicial settlement can be had only when a person died intestate. (2) Under Rule 74, section 1, extrajudicial settlement may take place 'if the decedent left no debts,' while under section 596 of the Code of Civil Procedure it may take place 'when there are no debts due from the estate, or all the debts have been paid.' (3) Under section 596 of the Code of Civil Procedure, extrajudicial settlement may take place when all the heirs are of lawful age and legal capacity, while under section 1 of Rule 74 it may take place when 'the heirs and legatees are all of legal age, or the minors are represented by their judicial guardians'. (4) Unlike the Code of Civil Procedure, section 596, section 1 of Rule 74 requires the extrajudicial agreement to be filed in the office of the register of deeds; provides that should the heirs disagree, 'they may do so in an ordinary action of partition', and that 'if there is only one heir or one legatee, he may adjudicate to himself the entire estate by means of an

affidavit filed in the office of the register of deeds', and that 'it shall be presumed that the decedent left no debts if no creditor files a petition for letters of administration within two years after the death of the decedent.' " [(Italics mine); Laurel, Procedural Reform in the Philippines, pp. 137-138]. The phrase "extrajudicial settlement" unquestionably means liquidation and distribution of the estate without judicial proceeding. In other words, even in cases of testate succession, the heirs and legatees, when they are all of age or are represented by their judicial guardians, and there are no debts to be paid, are allowed by section 1 of Rule 74 of the Rules of Court to liquidate and distribute among themselves the estate left by the decedent and need not go to court even for the probate of the will. Unless legal terms mean nothing, this is clearly what is meant in said provision by the words "extrajudicial settlement" and by the clause ". . . the parties may, without securing letters of administration, divide the estate among themselves as they see fit" . . . When judicial administration is made unnecessary by the provision, the inevitable implication is that the probate of the will is also unnecessary, the probate having no other object than administration for purposes of distribution according to the provisions of the will. That is why section 4 of Rule 78 provides: "ESTATE, HOW ADMINISTERED. When a will is thus allowed, the court shall grant letters testamentary, or letters of administration with the will annexed, and such letters testamentary or of administration shall extend to all the estate of the testator in the Philippines. Such estate, after the payment of just debts and expenses of administration, shall be disposed of according to such will, so far as such will may operate upon it; and the residue, if any, shall be disposed of as is provided by law in cases of estates in the Philippines belonging to persons who are inhabitants of another state or country."

imperative reasons and then only so long as is necessary to make the rights which underlie those reasons effective. It is a principle of universal acceptance which declares that one has the instant right to occupy and use that which he owns, and it is only in the presence of reasons of the strongest and most urgent nature that that principle is prevented from accomplishing the purpose which underlies it. The force which gave birth to this stern and imperious principle is the same force which destroyed the feudal despotism and created the democracy of private owners. "These provisions should, therefore, be given the most liberal construction so that the intent of the framers may be fully carried out. They should not be straitened or narrowed but should rather be given that wideness and fullness of application without which they cannot produce their most beneficial effects. ". . . The purpose which underlies them, as we have already intimated, is to put into one's hands the property which belongs to him not only at the earliest possible moment but also with the least possible expense. By permitting the partition and division without proceedings in court no time is lost and substantially all expense and waste are saved. This is as it should be. The State fails wretchedly in its duty to its citizens if the machinery furnished by it for the division and distribution of the property of a decedent is so cumbersome, unwieldly and expensive that a considerable portion of the estate is absorbed in the process of such division." . . . (McMicking vs. Sy Conbieng, 21 Phil., 211; 219-220). Indeed, there can be no valid reason why the probate of a will may not be dispensed with by agreement of all the parties interested and the estate left by the decedent settled extrajudicially among all the heirs and legatees, as is now provided in section 1 of Rule 74. It is well recognized that the allowance of a will gives conclusiveness merely to its due execution, but not to the intrinsic validity of its provisions which are governed by the substantive law regarding descent and distribution. If so, why cannot all the parties interested agree, without going to court, that the will of the decedent is in form valid (this being the only point to be litigated in a probate proceeding), and that they will divide the inheritance in the manner acceptable to them? The procedure would not be against public policy or the law placing in the hands of the courts the probate of wills, because what the courts are enjoined to do for the benefit of the parties, the latter have already done. As long as the extrajudicial partition of the estate does not affect the rights of third parties and is not rendered invalid by any provision of the substantive law, no possible objection can be raised thereto. On practical considerations, it would be useless to force the parties, at their expense, to go thru the formality of probating a will and dividing the estate in accordance therewith, because as soon as the routine is over, they are of course free to make such transfers to one another as will be necessary to effect a partition which they would have made if they were allowed to settle the estate extrajudicially. It is true that there are provisions in the

If judicial administration and distribution is made unnecessary by section 1 of Rule 74, then, I repeat, the probate of the will being purposeless, becomes unnecessary. If the parties have already divided the estate in accordance with the will, the probate of the will is a useless ceremony. If they have divided the estate in a different manner, the probate of the will is worse than useless; it is ridiculous. The following words of this Court in a previous case may well be here reiterated: "These sections provide for the voluntary division of the whole property of the decedent without proceedings in court. The provisions which they contain are extremely important. The wisdom which underlies them is apparent. It is the undisputed policy of every people which maintains the principle of private ownership of property that he who owns a thing shall not be deprived of its possession or use except for the most urgent and

Rules of Court compelling the delivery of a will to the competent court and punishing omissions to do so, but said provisions are calculated to protect the interests of the persons entitled to share in the inheritance. The latter may waive such benefit. This waiver cannot be said to be a withdrawal or diminution of the jurisdiction of the court, since it only implies a desire of the parties not to litigate. The fear that "absent legatees and devisees, or such of them as may have no knowledge of the will, could be cheated of their inheritance thru the collusion of some of the heirs who might agree to the partition of the estate among themselves to the exclusion of others", is wisely provided against in the requirement of the Rule that all the parties interested and all the beneficiaries under the will should be parties to the extrajudicial settlement. The participation of all the interested parties excludes the probability of fraud or collusion and, even in that eventuality, the aggrieved beneficiaries are not without adequate remedy for the voidance of the partition under the Civil Code. And this is in accordance with the weight of authority in this and other jurisdictions. In Leao vs. Leao (25 Phil., 180), all the heirs and legatees have made an extrajudicial partition of the estate left by the decedent and then filed the will in court which was probated. Nine years of costly probate proceedings have followed after which the extrajudicial partition was made known to court. Such extrajudicial partition was objected to by one party upon the ground that it was not in conformity with the provisions of the will. But the trial Court held: "Naturally the partition made by the heirs voluntarily and spontaneously must produce and has produced a legal status, which cannot be annulled merely for the caprice of one person. And it cannot be said that, because the partition was not made in accordance with the will, if such be the case, the latter has to be annulled, for by voluntarily and spontaneously concurring therein they implicitly renounced the effects of said will, of which they were aware." (See p. 183). On appeal, this Court affirmed the ruling with the following pronouncement: "In view of the positive finding of the judge of the lower court that there had been a voluntary partition of the estate among the heirs and legatees and in the absence of positive proof to the contrary, we must conclude that the lower court had some evidence to support his conclusion. If the heirs and legatees had voluntarily divided the estate among themselves, then their division is conclusive, unless and until it is shown that there were debts existing against the estate which had not been paid. No claim is made whatever by third parties nor objections of any character are made by others than the heirs against said partition. We see no reason why the heirs and legatees should not be bound by their voluntary acts." (Pages 183-184).

This case furnishes precisely a valuable experience as to the practical wisdom underlying the procedure established in section 1 of Rule 74. After the will was probated and after nine years of costly administration proceedings, nothing absolutely nothing was accomplished by the court except to make the belated pronouncement that the extrajudicial partition made by the parties prior to the institution of the proceedings was proper and binding upon them. Thus, the whole proceedings for nine years have proved no more than a futile chronicle of wasted time and money for the parties and the court. This disgraceful experience could not and did not pass unnoticed to the members of this Court who drafted the new Rules of Court. The solemn admonition made by this Court in a previous case (McMicking vs. Sy Conbieng, supra) when it said that "the State fails wretchedly in its duty to its citizens if the machinery furnished by it for the division and distribution of the property of a decedent is so cumbersome, unwieldly and expensive that a considerable portion of the estate is absorbed in the process of such division", rang with re-echoing insistence and was heeded to when the new Rules of Court was drafted and promulgated. The fundamental policy pervading the whole system of procedure adopted in said Rules is speed, economy and justice. Thus, features of procedure were done away with when, without them, the same purpose may be achieved. The result is brevity and simplicity of procedure with such guarantees as are necessary to assure due process. And to remedy such evil as is disclosed in the Leao case, a completely extrajudicial settlement is allowed even in testate succession with the probate of the will dispensed with, when the heirs and legatees who are all of age or represented by their judicial guardians, so agree, and there are no debts to be paid. Thus, the scope of section 596 of Act No. 190 was amplified and with it the ruling of this Court in Riosa vs. Rocha (48 Phil. 737). The procedure is in consonance with the almost unanimous weight of authority in other jurisdictions: "The complaint, to which a demurrer was sustained, shows that all the persons interested in a decedent's estate, as widow, heirs, distributees, legatees, or devisees, including the person appointed executrix by the will, and the husbands of femes covert, (all being adults), by agreement divided among themselves all the property of the estate according to the direction of the will, paid off all debts against the estate, and delivered the note described to the plaintiff, as a part of her share; and all this was done without probate of the will, or administration of the estate. The effect of such a division was to invest the plaintiff with an equitable title to the note. In the absence of the will, the decisions of this court, heretofore made, would meet every argument in favor of an opposite conclusion. (Anderson vs. Anderson, 37 Ala., 683; Marshall vs. Crow, 29 Ala., 278; Vanderveer vs. Alston, 16 Ala., 494; Miller vs. Eatman, 11 Ala., 609). Does the presence of an unprobated will, as a feature of this case, take it out of the principle of those decisions? We can perceive no sufficient reason why it should. All the parties interested, or to be affected, may as well by agreement divide property, where there is a will, without employing the agency of courts, as

in case of intestacy. Parties, competent to act, ought to do that, without the agency of courts, which the courts would ultimately accomplish. To deny them the privilege of so doing, would manifest a judicial abhorrence of harmony. By the probate of the will, the claims of heirs and distributees, and of the widow, would have been subordinated to the directions of the will. This has been accomplished by agreement. There being no debts, the executrix would have had no other duty to perform, than to divide the property according to the will. This, too, has been done by agreement of competent parties. All the ends and objects of judicial proceedings have been accomplished, by agreement of the parties; and that agreement must be effective." (Carter vs. Owens, 41 Ala., 215; 216-217).

"The absence of sound objection on this ground to a contract having for its sole purpose the disposition of property in a manner different from that proposed by a testator, even where the contract contemplates the rejection of the will when offered for probate or its setting aside when admitted to probate, when it is entirely free from fraud, and is made by all the parties in interest, may be freely conceded. As has often been substantially said, the public generally has no interest in the matter of the probate of a will; and only those interested in the estate under the will or otherwise are affected by such a contract. If they all agree upon some course to be followed, and their contract is otherwise free from contemplated fraud or violation of any law, no one else has any such interest as warrants complaint. Such was the character of contract involved in Spangenberg vs. Spangenberg (App.), 126 Pac., 379, especially relied on by plaintiff here, where the contract purported to affect only such property of the deceased as should in fact be received by the parties thereto. In Estate of Garcelon, 104 Cal., 570; 38 Pac., 414; 32 L. R. A., 595; 43 Am. St. Rep., 134, another case much relied on by plaintiff, a contract by an heir to refrain from contesting a will was involved. It was said that the contract was one that concerned the parties alone, and one that did not appear to be against public policy." (Gugolz vs. Gehrkens, 130 Pac. Rep., 8, 10; 164 Cal., 596). "The question of public policy is introduced. The disposition of one's property after death is controlled by statute. One of the next of kin has no vested interest in such property. In cases of intestacy, a next of kin has such interest as the statute declares. In case there is a will, he has an interest which gives him a standing and right to contest the will. This right is his alone; in it the public has no interest; he may refrain from exercising it, or he may dispose of it as he wishes, by release or assignment or settlement, and the law of public policy is not of offended." (In re Cook's Will, 217 N. Y. S., 176, 180-181). "Agreement. 'It has been definitely decided by the courts of this state, and of many other states, that the beneficiaries under a will have a right to agree among themselves upon any distribution they see proper of the

property bequeathed to them . . . That holding is based upon the proposition that the property is theirs. No one else is interested in its disposition, and they may, with propriety, make any distribution of it that suits them, so long as they do not invade the rights of other parties or infringe some rule of public policy'." (Fore vs. McFadden, 276 N. W., 327; 329). "The first assignment of error presented by appellants complains of the action of the court in sustaining exceptions to averments asking the enforcement of the agreement that the will should not be probated, and that the estate should be divided among the parties as they would be entitled as heirs at law of the deceased, the proponent of the will surrendering thereby his rights as principal legatee. This assignment must be sustained. It cannot be seen that the agreement is contrary to public policy. Parties may make any contract with reference to their property rights that is not illegal, may adjust by compromise their differences and disputes concerning the same and, as they bind themselves, so shall they be bound. It is difficult to understand why this cannot be effected by an agreement not to probate a will, or how it interferes with public policy. The power to litigate and to establish a right by appeal to the courts is as much the subject of contract as any other right in property. Such adjustments by contract are favored by the law and the courts, and are not deemed to be an unwarranted interference with the jurisdiction of the courts, or against public policy. On the contrary, public policy favors them. "Appellants have cited a case in point, the case of Phillips v. Phillips, 8 Watts, 197, in which it is held competent for devisees and legatees to bind themselves by a written or parol agreement to destroy a will before probate, and that a party to the agreement would be estopped from claiming any interest under the will. The court says: 'It cannot admit of doubt that before probate the parties in interest under a will would have the right to set aside a will, and such an act would be favored, when the object was to avert a family controversy'. The agreement that the will should not be probated, and that the parties would take the property as heirs at law of the deceased, destroyed the legal effect of the will; and it could not thereafter have legal existence in conferring rights upon the legatees." (Stringfellow vs. Early, 40 SW. 871, 873-874; 15 Tex. Civ. App., 597). "The contention that the complaint does not state a cause of action, because the contract sued on is against public policy, and therefore void, is made here for the first time. It is to the interest of the public generally that the right to make contract should not be unduly restricted, and no agreement will be pronounced void, as being against public policy, unless it clearly contravenes that which has been declared by statutory enactment or by judicial decisions to be public policy, or unless the agreement manifestly tends in some way to injure the public. Whether or not a contract in any given case is contrary to public policy is a question of law, to be determined

from the circumstances of each particular case. Smith vs. Du Bose, 78 Ga., 413; 3 SE., 309-316; 6 Am. St. Rep., 260; Weber vs. Shay, 56 Ohio St., 116; 46 NE., 377; 37 L. R. A., 230; 60 Am. St. Rep., 743; Pierce vs. Randolph, 12 Tex., 290; Printing Numerical Registering Co. vs. Sampson, 19 L. R. Eq. Cas., 465. "The contract in controversy is in effect but an agreement whereby the parties thereto, 'because of their love and affection for one another' and 'being desirous of avoiding litigation over the estate' of their father 'in case of his death,' agreed to ignore his will in the event that he made one, and then share his estate equally as if he had died intestate. In other words, the contract was but an agreement of heirs apparent not to contest the will of an ancestor. There is nothing to be found in our code or statutory law prohibiting the making and enforcement of such a contract, and it has been held in this state that a contract, made after the death of the deceased, not to contest his will, is purely personal to the parties making it, that it is not against public policy, and that, when fairly made, it will be enforced." (Spangenberg vs. Spangenberg, 126 Pac. Rep., 379, 382; 19 Cal. App., 439). "Probate Dispensed With. Probate of a will may be dispened with by an agreement between the persons interested; or it may be dispensed with where the testator, before his death, conveyed to the devisees all the property which he had devised to them, or where the will makes no other disposition of the testator's property than the law would have done had he died intestate, and the rights sought to be established are admitted by all concerned. But where the language of the will expressly invokes the jurisdiction of the probate court the fact that no administration is necessary does not affect the power of the court to probate the will." (68 C. J., pp. 877-878). "Agreement between Persons Interested: a. Requisites and Validity. (1) In General. It has been held that, since the nature of a probate proceeding is one in rem, the parties cannot submit a controversy arising therein to arbitration. The law, however, favors the settlement, in good faith, of will contests, by a so-called 'family settlement', although it changes the mode of disposition of the estate; and, therefore, subject to the limitation that a contestant cannot compromise anything beyond his own personal interest in the contest, persons, such as devisees, legatee, heirs, or next of kin, having interests in the will or estate, sufficient to entitle them to oppose probate or contest the will, may enter into an agreement which, in the absence of fraud or misrepresentation, is valid and binding on all the parties thereto, whereby they waive probate of the will and bind themselves to abide by its provisions, or whereby they agree that the will is not to be probated or is to be superseded or destroyed; or whereby any controversy relative to the probate or contest of the will is compromised or settled, and a contest is avoided, whether or not there were, in fact, valid grounds for the contest. Such an agreement, in order to be valid, must not exclude anyone entitled under the will, must be entered into by all the persons

affected thereby, and all the parties thereto must be competent to make the agreement, and either they or their representative must fully execute it, and, under some statutes, it must be properly approved by the court." ([Italics supplied] 68 C. J., pp. 909-910). "As to Probate. The operation and effect of the agreement may be not to supersede the provisions of the will, but to carry out its provisions without a probate, and under such an agreement the parties are precluded from denying the probate, or insisting on the invalidating of the will for want of probate. So, also, a person who agrees not to contest the will is precluded from opposing probate; or the probate of a will may be dispensed with, and the persons interested in the estate under the will given at least an equitable interest in the property, where they, being under no disability, divide the estate, pursuant to an agreement among themselves. Where the effect of the agreement of all interested parties is to repudiate or renounce the will, it will not be probated, especially where the agreement expressly so provides; but it has been held that, where the executor, defending a torn will, agrees, for a consideration, not to probate it, the court should not refuse probate without notifying other beneficiaries and requiring testimony as to the tearing of the will by the testator. Probate, however, is not prevented by an agreement executed by a part only of the beneficiaries, and the parties to such agreement are not prevented thereby from taking under the will which is probated by another interested person." ([Italics supplied] 68 C. J., pp. 914-915).

"Thus, where the parties, being in doubt as to the instrument being construed as a will, and for the purpose of saving a family controversy and for the purpose of dividing the estate, enter into a compromise and settlement agreement, under the terms of which the entire estate is to be, and has in part been, divided, and agree that the instrument shall not be offered for probate, it is sufficient to prevent a probate." (Brown vs. Burk, 26 NW [2d ed.], 415). "Validity of Agreements to Dispense with Probate or to Modify or Set Aside Will. Though in some jurisdictions an agreement to dispense with the probate of a will has been declared to be against public policy and void, in a majority of the decisions on the point it has been held that all the persons interested in a decedent's estate may by agreement divide the estate among themselves, without probating such decedent's will or administering the estate, and the validity of a contract having for its sole purpose the disposition of property in a manner different from that proposed by a testator, even where the contract contemplates the rejection of the will when offered for probate or its setting aside when admitted to probate, when it is entirely free from fraud, and is made by all the parties in interest, would seem to be freely conceded. Thus it has been held that all the parties in interest may agree to eliminate from a will a clause providing for

survivorship among them. But an agreement to resist the probate of a will and procure it to be set aside so as to cut off the interest of one who is not a party to such agreement is against public policy. Nor does the right of all the parties in interest to set aside or disregard a will extend to the case of an active trust, for a definite term, created by a testator as he deems proper for the protection of his beneficiaries. A contract between the next of kin of a decedent, that they will each have a certain portion of the estate, does not amount to an agreement to divide the estate without probating the will." (28 R. C. L., pp. 357-358). The minority decision pointed out in the last quotation from the Ruling Case Law (Vol. 28, pp. 357-358) is from the Supreme Court of only one State that of Wisconsin, in re Will of Dardis (135 Wis., 457; 115 NW., 332). All the other States held the contrary doctrine that is now embodied in section 1 of Rule 74. Commenting upon the Wisconsin rule, the Editor of the L. R. A. says the following: "No case has been found other than Re Dardis wherein any court passed upon the validity of a stipulation to secure the denial to probate of a will theretofore offered for probate, on the ground that the testator was mentally incompetent to make a will at the time of its execution. The decision of the court is based upon the doctrine therein enunciated, that proceedings to probate a will are proceedings in rem, which public interest demands should be pursued to a final adjudication, regardless of the wishes of the interested parties. In this connection and with reference to this broader question, it is of interest to note that courts of other jurisdictions, although generally recognizing that proceedings to probate a will are proceedings in rem, hold that the proceeding is inter partes to the extent that all the parties in interest may control the probate proceedings, even to the extent of doing away with the probate." (23 L. R. A. [N.S.], p. 783). For the sake of fixity in judicial policy, this Court in the exercise of its constitutional powers, has solemnly given a form of a rule section 1, Rule 74 to what was merely the consensus of judicial opinion. We cannot now repudiate the procedure outlined in said provision unless we amend it by another rule. The majority, however, expresses fear that abuses may easily be committed under the Rules. Such fears have always been the bugbear set up against all task of procedural reforms. To be sure, there has never been any provision of law that is not liable to abuses. If by a mere possibility of abuse we are to disregard clear provisions of a procedural law, the result would be not only the abrogation of all laws but also the abolition of all courts. When a procedural law is calculated to remedy an evil under a specific situation therein contemplated, it must be deemed good even if other situations may be simulated or falsified and placed within its purview. And when that law is duly enacted, it is no concern of the courts to pass upon its wisdom, their duty being to apply its provisions in a manner which shall not defeat the

intention underlying it. Laws are promulgated to be obeyed and when they are abused there are the courts to check up the abuse. Courts must deal with the specific circumstances of each case and construe the provisions in such a manner as to make it impregnable if possible to further abuses. This is constructive, not destructive, jurisprudence. This explains why laws are more often worded so broadly as to lay merely general principles a skeleton the flesh to be supplied with judicial decisions. Judicial statemanship requires that courts in deciding judicial controversies should be careful not to advance opinions which are not necessary to a proper disposition of the case. Judicial experience has shown that such advanced opinions may not infrequently place the court in an embarrassing position when a proper case with the proper factual environment is properly presented with all its angles before the court. Jurisprudence must be carefully progressive and not impetuously aggressive. For instance, the majority, impressed by the awful circumstances of the present case, has found it dangerous to hold that the probate of the will may be dispensed with. While this conclusion is constructive under the peculiar facts of the case, to generalize it is to make destructive. If a proper case is presented to the court wherein all the heirs and legatees who are all of age have agreed to dispense with the probate of a will and have actually made an extrajudicial partition, and if it appears further that each of the recipients is in peaceful enjoyment of his share in the estate, I am sure that the majority, with the practical wisdom they have shown in other cases, would not dare disturb the peace enjoyed by such heirs and legatees and compel them to go into court and litigate. The majority, without the necessity of holding whether the probate of a will may or may not be dispensed with under Rule 74, section 1, could have decided this case by stating that said provision is not applicable, its requirements not being present. And I would be wholly agreeable to this conclusion because the beneficiaries under the will do not appear to have made an extrajudicial settlement of the estate left by the deceased Victorino L. Guevara, nor the action brought by the natural daughter, Rosario Guevara, is one for partition against all such beneficiaries founded either on an extrajudicial settlement or on the provisions of the will as accepted by all parties to be valid and binding. Upon the contrary, Rosario Guevara appears to be wishing to take advantage of the will in so far as it is favorable to her, and repudiate it in so far as it is favorable to others. Apparently, Rosario Guevara was in possession of the will and the other heirs and legatees were not aware of its contents. The situation not being the one contemplated by section 1 of Rule 74, plaintiff may not invoke its provisions. Footnotes

[G.R. No. 129505. January 31, 2000.] OCTAVIO S. MALOLES II, petitioner, vs. PACITA DE LOS REYES PHILLIPS, respondent. [G.R. No. 133359. January 31, 2000.] OCTAVIO S. MALOLES II, petitioner, vs. COURT OF APPEALS, HON. FERNANDO V. GOROSPE, JR., in his Official Capacity as Presiding Judge of RTC-Makati, Branch 61, and PACITA PHILLIPS as the alleged executrix of the alleged will of the late Dr. Arturo de Santos, respondents. Dollete Blanco Ejercito and Associates for petitioner. Rodrigo Berenguer & Guno for private respondent. SYNOPSIS Dr. Arturo de Santos, Filipino, and a resident of Makati City, filed a petition for probate of his will in the Regional Trial Court, Branch 61, Makati, docketed as Sp. Proc. No. M-4223. Dr. De Santos alleged that he had no compulsory heirs; that he had named in his will as sole legatee and devisee the Arturo de Santos Foundation, Inc.; that he had disposed by his will his properties with an approximate value of not less than P2,000,000.00; and that copies of said will were in the custody of the named executrix, private respondent Pacita delos Reyes Phillips of RTC-Makati, issued an order granting the petition and allowing the will. Petitioner Octavio S. Maloles II filed a motion for intervention claiming that as the only child of Alicia de Santos (testator's sister) and Octavio L. Maloles, Sr., he was the sole full bloodied nephew and nearest of kin of Dr. De Santos. He also prayed for reconsideration of the order allowing the will and for the issuance of letters of administration in his name. Private respondent refiled a petition for the issuance of letters testamentary with the Regional Trial Court, Makati, Branch 65, docketed as Sp. Proc. No. M-4343. Upon private respondent's motion, Branch 65 issued an order appointing her as special administrator of Dr. De Santos' estate. Petitioner sought to intervene in Sp. Proc. No. M4343 and to set aside the appointment of private respondent as special administrator. Branch 65 ordered the transfer of Sp. Proc. No. M-4343 to Branch 61 on the ground that it is related to the case before said Branch 61 and later issued another order returning the records of the case of Sp. Proc. No. M-4343 on the ground that there was a pending case involving the Estate of decedent Arturo de Santos before said court. Branch 65 eventually granted petitioner's motion for intervention. On petition for certiorari by private respondent, the Court of Appeals rendered a decision setting aside the order of Branch 65 on the ground that petitioner had not shown any right or interest to intervene in Sp. Proc. No. M-4343. Hence, the present petition. Petitioner contended that the probate proceedings in Branch 61

did not terminate upon the issuance of the order allowing the will of Dr. De Santos. He argued that the proceedings must continue until the estate is fully distributed pursuant to Section l, Rule 73, Rules of Court, and for such reason Branch 65 could not lawfully act upon private respondent's petition for issuance of letters testamentary; that as the next of kin and creditor of the testator, he has the right to intervene in the probate proceedings. Petitioner also contended that private respondent committed forum shopping when she filed the petition for issuance of letters testamentary, while the probate proceedings were still pending. The Supreme Court ruled that Branch 65 had jurisdiction over Sp. Proc. No. M-4343 and there was no basis for the ruling of Branch 65 that the probate proceedings did not cease upon the allowance or disallowance of a will but continues up to such time that the entire estate of the testator had been partitioned and distributed. The Court also ruled that even if petitioner is the next of kin of Dr. De Santos, he cannot be considered as an "heir" because Dr. De Santos has no compulsory or forced heirs so he may legally dispose his entire estate by will. Petitioner's contention that private respondent committed forum shopping was also found by the Court unmeritorious. There was no identity between the two petitions nor was the petition for probate filed during the pendency of the petition for issuance of letters testamentary. The petition for probate filed by Dr. De Santos, the testator, was solely for the purpose of authenticating his will and upon allowance thereof, the proceeding was considered terminated. However, the petition for issuance of letters testamentary was filed by private respondent for the purpose of securing authority from the court to administer the estate and put into effect the will of the testator. Said proceeding, on the other hand, terminated upon the distribution and delivery of the legacies and devises named in the will. SYLLABUS 1.REMEDIAL LAW; SPECIAL PROCEEDINGS; SETTLEMENT OF ESTATES OF DECEASED PERSONS; VENUE; INSOFAR AS THE VENUE OF PETITIONS FOR PROBATE OF WILLS IS CONCERNED, IT DOES NOT BAR OTHER BRANCHES OF THE SAME COURT FROM TAKING COGNIZANCE OF THE SETTLEMENT OF THE ESTATE OF THE TESTATOR AFTER HIS DEATH. The jurisdiction over probate proceedings and settlement of estates with approximate value of over P100,000.00 (outside Metro Manila) or P200,000.00 (in Metro Manila) belongs to the regional trial courts under B.P. Blg. 129, as amended. The different branches comprising each court in one judicial region do not possess jurisdictions independent of and incompatible with each other. It is noteworthy that, although Rule 73, 1 applies insofar as the venue of the petition for probate of the will of Dr. De Santos is concerned, it does not bar other branches of the same court from taking cognizance of the settlement of the estate of the testator after his death. As held in the leading case of Bacalso v. Ramolote: The various branches of the Court of First Instance of Cebu under the Fourteenth Judicial District, are a coordinate and co-equal

courts, and the totality of which is only one Court of First Instance. The jurisdiction is vested in the court, not in the judges. And when a case is filed in one branch, jurisdiction over the case does not attach to the branch or judge alone, to the exclusion of the other branches. Trial may be held or proceedings continue by and before another branch or judge. It is for this reason that Section 57 of the Judiciary Act expressly grants to the Secretary of Justice, the administrative right or power to apportion the cases among the different branches, both for the convenience of the parties and for the coordination of the work by the different branches of the same court. The apportionment and distribution of cases does not involve a grant or limitation of jurisdiction, the jurisdiction attaches and continues to be vested in the Court of First Instance of the province, and the trials may be held by any branch or judge of the court. Necessarily, therefore, Branch 65 of the RTC of Makati City has jurisdiction over Sp. Proc. No. M-4343. 2.ID.; ID.; PETITIONER HAS NO RIGHT TO INTERVENE AND OPPOSE PETITION FOR ISSUANCE OF LETTERS TESTAMENTARY BASED ON HIS ALLEGATION THAT HE IS A CREDITOR OF DECEASED, SINCE TESTATOR INSTITUTED OR NAMED AN EXECUTOR IN HIS WILL AND IT IS INCUMBENT UPON COURT TO RESPECT DESIRES OF TESTATOR. Under Rule 79, Section 1, it has been held that an "interested person" is one who would be benefited by the estate, such as an heir, or one who has a claim against the estate, such as a creditor, and whose interest is material and direct, not merely incidental or contingent. Even if petitioner is the nearest next of kin of Dr. De Santos, he cannot be considered an "heir" of the testator. It is a fundamental rule of testamentary succession that one who has no compulsory or forced heirs may dispose of his entire estate by will. Thus, Art. 842 of the Civil Code provides: One who has no compulsory heirs may dispose by will of all his estate or any part of it in favor of any person having capacity to succeed. One who has compulsory heirs may dispose of his estate provided he does not contravene the provisions of this Code with regard to the legitimate of said heirs. Compulsory heirs are limited to the testator's (1) Legitimate children and descendants, with respect to their legitimate parents and ascendants; (2) In default of the foregoing, legitimate parents and ascendants, with respect to their legitimate children and descendants; (3) The widow or widower; (4) Acknowledged natural children, and natural children by legal fiction; (5) Other illegitimate children referred to in Article 287 of the Civil Code. Petitioner, as nephew of the testator, is not a compulsory heir who may have been preterited in the testator's will. Nor does he have any right to intervene in the settlement proceedings based on his allegation that he is a creditor of the deceased. Since the testator instituted or named an executor in his will, it is incumbent upon the Court to respect the desires of the testator. As we stated in Ozaeta v. Pecson: The choice of his executor is a precious prerogative of a testator, a necessary concomitant of his right to dispose of his property in the manner he wishes. It is natural that the testator should desire to appoint one of his confidence, one who can be trusted to carry out his wishes in the disposal of his estate. The curtailment of this right may be considered a curtailment of the right to

dispose. Only if the appointed executor is incompetent, refuses the trust, or fails to give bond may the court appoint other persons to administer the estate. None of these circumstances is present in this case. HaSEcA 3.ID.; CIVIL PROCEDURE; FORUM SHOPPING; NOT COMMITTED BY PRIVATE RESPONDENT'S ACT OF FILING THE PETITION FOR THE ISSUANCE OF LETTERS TESTAMENTARY WHILE THE PROBATE PROCEEDINGS WERE STILL PENDING IN ANOTHER COURT; THERE IS NO IDENTITY BETWEEN THE TWO PETITIONS, NOR WAS THE LATTER FILED DURING THE PENDENCY OF THE FORMER. Petitioner contends that private respondent is guilty of forum shopping when she filed the petition for issuance of letters testamentary (Sp. Proc. No. M-4343) while the probate proceedings (Sp. Proc. No. M4223) were still pending. According to petitioner, there is identity of parties, rights asserted, and reliefs prayed for in the two actions which are founded on the same facts, and a judgment in either will result in res judicata in the other. This contention has no merit. As stated earlier, the petition for probate was filed by Dr. De Santos, the testator, solely for the purpose of authenticating his will. Upon the allowance of his will, the proceedings were terminated. On the other hand, the petition for issuance of letters testamentary was filed by private respondent, as executor of the estate of Dr. De Santos, for the purpose of securing authority from the Court to administer the estate and put into effect the will of the testator. The estate settlement proceedings commenced by the filing of the petition terminates upon the distribution and delivery of the legacies and devises to the persons named in the will. Clearly, there is no identity between the two petitions, nor was the latter filed during the pendency of the former. There was, consequently, no forum shopping.

DECISION MENDOZA, J p: These are petitions for review on certiorari of the decisions of the Thirteenth and the Special Eight Divisions of the Court of Appeals which ruled that petitioner has no right to intervene in the settlement of the estate of Dr. Arturo de Santos. The cases were consolidated considering that they involve the same parties and some of the issues raised are the same. LibLex The facts which gave rise to these two petitions are as follows: On July 20, 1995, Dr. Arturo de Santos, Filipino and a resident of Makati City, filed a petition for probate of his will 1 in the Regional Trial Court, Branch 61, Makati, docketed as Sp. Proc. No. M-4223. In his petition, Dr. De Santos alleged that he had no compulsory heirs; that he had named in his

will as sole legatee and devisee the Arturo de Santos Foundation, Inc.; that he disposed by his will his properties with an approximate value of not less than P2,000,000.00; and that copies of said will were in the custody of the named executrix, private respondent Pacita de los Reyes Phillips. A copy of the will 2 was annexed to the petition for probate. On February 16, 1996, Judge Fernando V. Gorospe, Jr. of RTC-Makati, Branch 61 issued an order granting the petition and allowing the will. The order reads: On 03 August 1995, the Court issued an Order setting the hearing of the petition on 12 September 1995, at 8:30 o'clock in the morning, copies of which were served to Arturo de Santos Foundation, Inc. and Ms. Pacita de los Reyes Phillips (Officer's Return, dated 04 September 1995 attached to the records). When the case was called for hearing on the date set, no oppositor appeared nor any written opposition was ever filed and on motion of petitioner, he was allowed to adduce his evidence in support of the petition. Petitioner personally appeared before this Court and was placed on the witness stand and was directly examined by the Court through "free wheeling" questions and answers to give this Court a basis to determine the state of mind of the petitioner when he executed the subject will. After the examination, the Court is convinced that petitioner is of sound and disposing mind and not acting on duress, menace and undue influence or fraud, and that petitioner signed his Last Will and Testament on his own free and voluntary will and that he was neither forced nor influenced by any other person in signing it. Furthermore, it appears from the petition and the evidence adduced that petitioner in his lifetime, executed his Last Will and Testament (Exhs. "A", "A-1", "A-2", "A-4", "A-5") at his residence situated at 9 Bauhinia corner Intsia Streets, Forbes Park, Makati City; said Last Will and Testament was signed in the presence of his three (3) witnesses, namely, to wit: Dr. Elpidio Valencia (Exhs. "A-6", "A-7", "A-8", "A-16", "A-16-A"), Atty. Edward J. Berenguer (Exhs. "A-3", "A-3-A", "A-9", "A-10", & "A-11"), and Atty. Victoria C. delos Reyes (Exhs. "A-12", "A-13", "A-14", "A-17", & "A-18"), who in turn, in the presence of the testator and in the presence of each and all of the witnesses signed the said Last Will and Testament and duly notarized before Notary Public Anna Melissa L. Rosario (Exh. "A-15"); on the actual execution of the Last Will and Testament, pictures were taken (Exhs. "B" to "B-3"). Petitioner has no compulsory heirs and Arturo de Santos Foundation, Inc., with address at No. 9 Bauhinia corner Intsia Streets, Forbes Park, Makati City has been named as sole legatee and devisee of petitioner's properties, real and personal, approximately valued at not less than P2 million, Ms.

Pacita de los Reyes Phillips was designated as executor and to serve as such without a bond. From the foregoing facts, the Court finds that the petitioner has substantially established the material allegations contained in his petition. The Last Will and Testament having been executed and attested as required by law; that testator at the time of the execution of the will was of sane mind and/or not mentally incapable to make a Will; nor was it executed under duress or under the influence of fear or threats; that it was in writing and executed in the language known and understood by the testator duly subscribed thereof and attested and subscribed by three (3) credible witnesses in the presence of the testator and of another; that the testator and all the attesting witnesses signed the Last Will and Testament freely and voluntarily and that the testator has intended that the instrument should be his Will at the time of affixing his signature thereto. WHEREFORE, as prayed for by the petitioner (testator himself) the petition for the allowance of the Last Will and Testament of Arturo de Santos is hereby APPROVED and ALLOWED. Shortly after the probate of his will, Dr. De Santos died on February 26, 1996. On April 3, 1996, petitioner Octavio S. Maloles II filed a motion for intervention claiming that, as the only child of Alicia de Santos (testator's sister) and Octavio L. Maloles, Sr., he was the sole full-blooded nephew and nearest of kin of Dr. De Santos. He likewise alleged that he was a creditor of the testator. Petitioner thus prayed for the reconsideration of the order allowing the will and the issuance of letters of administration in his name. On the other hand, private respondent Pacita de los Reyes Phillips, the designated executrix of the will, filed a motion for the issuance of letters testamentary with Branch 61. Later, however, private respondent moved to withdraw her motion. This was granted, while petitioner was required to file a memorandum of authorities in support of his claim that said court (Branch 61) still had jurisdiction to allow his intervention. 3 Petitioner filed his memorandum of authorities on May 13, 1996. On the other hand, private respondent, who earlier withdrew her motion for the issuance of letters testamentary in Branch 61, refiled a petition for the same purpose with the Regional Trial Court, Makati, which was docketed as Sp. Proc. No. M-4343 and assigned to Branch 65. Upon private respondent's motion, Judge Salvador Abad Santos of Branch 65 issued an order, dated June 28, 1996, appointing her as special administrator of Dr. De Santos's estate. cda

On July 29, 1996, petitioner sought to intervene in Sp. Proc. No. M-4343 and to set aside the appointment of private respondent as special administrator. He reiterated that he was the sole and full-blooded nephew and nearest of kin of the testator; that he came to know of the existence of Sp. Proc. No. M-4343 only by accident; that the probate proceedings in Sp. Proc. No. M4223 before Branch 61 of the same court was still pending; that private respondent misdeclared the true worth of the testator's estate; that private respondent was not fit to be the special administrator of the estate; and that petitioner should be given letters of administration for the estate of Dr. De Santos. On August 28, 1996, Judge Abad Santos ordered the transfer of Sp. Proc. No. M-4343 to Branch 61, on the ground that "[it] is related to the case before Judge Gorospe of RTC Branch 61 . . ." It appears, however, that in Sp. Proc. No. M-4223, Judge Gorospe had denied on August 26, 1996 petitioner's motion for intervention. Petitioner brought this matter to the Court of Appeals which, in a decision 4 promulgated on February 13, 1998, upheld the denial of petitioner's motion for intervention. Meanwhile, Judge Gorospe issued an order, dated September 4, 1996, returning the records of Sp. Proc. No. M-4343 to Branch 65 on the ground that there was a pending case involving the Estate of Decedent Arturo de Santos pending before said court. The order reads: Acting on the ORDER dated 28 August 1996 of Branch 65, this Court, transferring this case to this Branch 61 on the ground that this case is related with a case before this Court, let this case be returned to Branch 65 with the information that there is no related case involving the ESTATE OF DECEDENT ARTURO DE SANTOS pending before this Branch. There is, however, a case filed by ARTURO DE SANTOS, as petitioner under Rule 76 of the Rules of Court for the Allowance of his will during his lifetime docketed as SP. PROC. NO. M-4223 which was already decided on 16 February 1996 and has become final. It is noted on records of Case No. M-4223 that after it became final, herein Petitioner Pacita de los Reyes Phillips filed a MOTION FOR THE ISSUANCE OF LETTERS TESTAMENTARY, which was subsequently withdrawn after this Court, during the hearing, already ruled that the motion could not be admitted as the subject matter involves a separate case under Rule 78 of the Rules of Court, and movant withdrew her motion and filed this case (No. 4343). Octavio de Santos Maloles [II] filed a MOTION FOR INTERVENTION before Case No. M-4223 and this motion was already DENIED in the order (Branch

61) of 26 August 1996 likewise for the same grounds that the matter is for a separate case to be filed under Rule 78 of the Rules of Court and cannot be included in this case filed under Rule 76 of the Rules of Court. It is further noted that it is a matter of policy that consolidation of cases must be approved by the Presiding Judges of the affected Branches. Initially, in his decision dated September 23, 1996, 5 Judge Abad Santos appeared firm in his position that " . . . it would be improper for (Branch 65) to hear and resolve the petition (Sp. Proc. No. M-4343)," considering that the probate proceedings were commenced with Branch 61. He thus ordered the transfer of the records back to the latter branch. However, he later recalled his decision and took cognizance of the case "to expedite the proceedings." Thus, in his Order, dated October 21, 1996, he stated: Considering the refusal of the Hon. Fernando V. Gorospe Jr. of Branch 61 to continue hearing this case notwithstanding the fact that said branch began the probate proceedings of the estate of the deceased and must therefore continue to exercise its jurisdiction to the exclusion of all others, until the entire estate of the testator had been partitioned and distributed as per Order dated 23 September 1996, this branch (Regional Trial Court Branch 65) shall take cognizance of the petition if only to expedite the proceedings, and under the concept that the Regional Trial Court of Makati City is but one court.

2.Whether or not the Honorable (Regional Trial Court Makati, Branch 65) acquired jurisdiction over the petition for issuance of letters testamentary filed by (private) respondent. 3.Whether or not the petitioner, being a creditor of the late Dr. Arturo de Santos, has a right to intervene and oppose the petition for issuance of letters testamentary filed by the respondent. 4.Whether or not (private) respondent is guilty of forum shopping in filing her petition for issuance of letters testamentary with the Regional Trial Court Makati, Branch 65 knowing fully well that the probate proceedings involving the same testate estate of the decedent is still pending with the Regional Trial Court Makati, Branch 61. prLL First. Petitioner contends that the probate proceedings in Branch 61 of RTCMakati did not terminate upon the issuance of the order allowing the will of Dr. De Santos. Citing the cases of Santiesteban v. Santiesteban 7 and Tagle v. Manalo, 8 he argues that the proceedings must continue until the estate is fully distributed to the lawful heirs, devisees, and legatees of the testator, pursuant to Rule 73, 1 of the Rules of Court. Consequently, petitioner contends that Branch 65 could not lawfully act upon private respondent's petition for issuance of letters testamentary. The contention has no merit. In cases for the probate of wills, it is well-settled that the authority of the court is limited to ascertaining the extrinsic validity of the will, i.e., whether the testator, being of sound mind, freely executed the will in accordance with the formalities prescribed by law. 9 Ordinarily, probate proceedings are instituted only after the death of the testator, so much so that, after approving and allowing the will, the court proceeds to issue letters testamentary and settle the estate of the testator. The cases cited by petitioner are of such nature. In fact, in most jurisdictions, courts cannot entertain a petition for probate of the will of a living testator under the principle of ambulatory nature of wills. 10 However, Art. 838 of the Civil Code authorizes the filing of a petition for probate of the will filed by the testator himself. It provides: CIVIL CODE, ART. 838. No will shall pass either real or personal property unless it is proved and allowed in accordance with the Rules of Court. The testator himself may, during his lifetime, petition the court having jurisdiction for the allowance of his will. In such case, the pertinent

provisions of the Rules of Court for the allowance of wills after the testator's death shall govern. The Supreme Court shall formulate such additional Rules of Court as may be necessary for the allowance of wills on petition of the testator. Subject to the right of appeal, the allowance of the will, either during the lifetime of the testator or after his death, shall be conclusive as to its due execution. Rule 76, 1 likewise provides: SEC. 1. Who may petition for the allowance of will. Any executor, devisee, or legatee named in a will, or any other person interested in the estate, may, at any time after the death of the testator, petition the court having jurisdiction to have the will allowed, whether the same be in his possession or not, or is lost or destroyed. The testator himself may, during his lifetime, petition in the court for the allowance of his will. The rationale for allowing the probate of wills during the lifetime of testator has been explained by the Code Commission thus: Most of the cases that reach the courts involve either the testamentary capacity of the testator or the formalities adopted in the execution of wills. There are relatively few cases concerning the intrinsic validity of testamentary dispositions. It is far easier for the courts to determine the mental condition of a testator during his lifetime than after his death. Fraud, intimidation and undue influence are minimized. Furthermore, if a will does not comply with the requirements prescribed by law, the same may be corrected at once. The probate during the testator's life, therefore, will lessen the number of contest upon wills. Once a will is probated during the lifetime of the testator, the only questions that may remain for the courts to decide after the testator's death will refer to the intrinsic validity of the testamentary dispositions. It is possible, of course, that even when the testator himself asks for the allowance of the will, he may be acting under duress or undue influence, but these are rare cases. After a will has been probated during the lifetime of the testator, it does not necessarily mean that he cannot alter or revoke the same before his death. Should he make a new will, it would also be allowable on his petition, and if he should die before he has had a chance to present such petition, the ordinary probate proceeding after the testator's death would be in order. 11

Furnish a copy of this order to the Office of the Chief justice and the Office of the Court Administrator, of the Supreme Court; the Hon. Fernando V. Gorospe, Jr.; Pacita De Los Reyes Phillips, Petitioner; and Octavio de Santos Maloles, Intervenor. On November 4, 1996, Judge Abad Santos granted petitioner's motion for intervention. Private respondent moved for a reconsideration but her motion was denied by the trial court. She then filed a petition for certiorari in the Court of Appeals which, on February 26, 1997, rendered a decision 6 setting aside the trial court's order on the ground that petitioner had not shown any right or interest to intervene in Sp. Proc. No. M-4343. Hence, these petitions which raise the following issues: 1.Whether or not the Honorable Regional Trial Court Makati, Branch 61 has lost jurisdiction to proceed with the probate proceedings upon its issuance of an order allowing the will of Dr. Arturo de Santos.

Thus, after the allowance of the will of Dr. De Santos on February 16, 1996, there was nothing else for Branch 61 to do except to issue a certificate of allowance of the will pursuant to Rule 73, 12 of the Rules of Court. There is, therefore, no basis for the ruling of Judge Abad Santos of Branch 65 of RTC-Makati that Branch 61 of the Regional Trial Court of Makati having begun the probate proceedings of the estate of the deceased, it continues and shall continue to exercise said jurisdiction to the exclusion of all others. It should be noted that probate proceedings do not cease upon the allowance or disallowance of a will but continues up to such time that the entire estate of the testator had been partitioned and distributed. The fact that the will was allowed during the lifetime of the testator meant merely that the partition and distribution of the estate was to be suspended until the latter's death. In other words, the petitioner, instead of filing a new petition for the issuance of letters testamentary, should have simply filed a manifestation for the same purpose in the probate court. 12 Petitioner, who defends the order of Branch 65 allowing him to intervene, cites Rule 73, 1 which states: llcd Where estate of deceased persons settled. If the decedent is an inhabitant of the Philippines at the time of his death, whether a citizen or an alien, his will shall be proved, or letters of administration granted, and his estate settled, in the Court of First Instance in the province in which he resides at the time of his death, and if he is an inhabitant of a foreign country, the Court of First Instance of any province in which he had estate. The court first taking cognizance of the settlement of the estate of a decedent, shall exercise jurisdiction to the exclusion of all other courts. The jurisdiction assumed by a court, so far as it depends on the place of residence of the decedent, or of the location of his estate, shall not be contested in a suit or proceeding, except in an appeal from that court, in the original case, or when the want of jurisdiction appears on the record. The above rule, however, actually provides for the venue of actions for the settlement of the estate of deceased persons. In Garcia Fule v. Court of Appeals, it was held: 13 The aforequoted Section 1, Rule 73 (formerly Rule 75, Section 1), specifically the clause "so far as it depends on the place of residence of the decedent, or of the location of the state," is in reality a matter of venue, as the caption of the Rule indicates: "Settlement of Estate of Deceased Persons. Venue and Processes." It could not have been intended to define the jurisdiction over the subject matter, because such legal provision is contained in a law of procedure dealing merely with procedural matters. Procedure is one thing, jurisdiction over the subject matter is another. The power or authority of

the court over the subject matter "existed was fixed before procedure in a given cause began." That power or authority is not altered or changed by procedure, which simply directs the manner in which the power or authority shall be fully and justly exercised. There are cases though that if the power is not exercised conformably with the provisions of the procedural law, purely, the court attempting to exercise it loses the power to exercise it legally. However, this does not amount to a loss of jurisdiction over the subject matter. Rather, it means that the court may thereby lose jurisdiction over the person or that the judgment may thereby be rendered defective for lack of something essential to sustain it. The appearance of this provision in the procedural law at once raises a strong presumption that it has nothing to do with the jurisdiction of the court over the subject matter. In plain words, it is just a matter of method, of convenience to the parties. Indeed, the jurisdiction over probate proceedings and settlement of estates with approximate value of over P100,000.00 (outside Metro Manila) or P200,000.00 (in Metro Manila) belongs to the regional trial courts under B.P. Blg. 129, as amended. The different branches comprising each court in one judicial region do not possess jurisdictions independent of and incompatible with each other. 14

Necessarily, therefore, Branch 65 of the RTC of Makati City has jurisdiction over Sp. Proc. No. M-4343. Second. Petitioner claims the right to intervene in and oppose the petition for issuance of letters testamentary filed by private respondent. He argues that, as the nearest next of kin and creditor of the testator, his interest in the matter is material and direct. In ruling that petitioner has no right to intervene in the proceedings before Branch 65 of RTC-Makati City, the Court of Appeals held: The private respondent herein is not an heir or legatee under the will of the decedent Arturo de Santos. Neither is he a compulsory heir of the latter. As the only and nearest collateral relative of the decedent, he can inherit from the latter only in case of intestacy. Since the decedent has left a will which has already been probated and disposes of all his properties the private respondent can inherit only if the said will is annulled. His interest in the decedent's estate is, therefore, not direct or immediate. His claim to being a creditor of the estate is a belated one, having been raised for the first time only in his reply to the opposition to his motion to intervene, and, as far as the records show, not supported by evidence. . . . [T]he opposition must come from one with a direct interest in the estate or the will, and the private respondent has none. Moreover, the ground cited in the private respondent's opposition, that the petitioner has deliberately misdeclared the truth worth and value of the estate, is not relevant to the question of her competency to act as executor. Section 2, Rule 76 of the Rules of Court requires only an allegation of the probable value and character of the property of the estate. The true value can be determined later on in the course of the settlement of the estate. 16 Rule 79, 1 provides: Opposition to issuance of letters testamentary. Simultaneous petition for administration. Any person interested in a will may state in writing the grounds why letters testamentary should not issue to the persons named therein as executors, or any of them, and the court, after hearing upon notice, shall pass upon the sufficiency of such grounds. A petition may, at the same time, be filed for letters of administration with the will annexed. LibLex Under this provision, it has been held that an "interested person" is one who would be benefited by the estate, such as an heir, or one who has a claim against the estate, such as a creditor, and whose interest is material and direct, not merely incidental or contingent. 17

It is noteworthy that, although Rule 73, 1 applies insofar as the venue of the petition for probate of the will of Dr. De Santos is concerned, it does not bar other branches of the same court from taking cognizance of the settlement of the estate of the testator after his death. As held in the leading case of Bacalso v. Ramolote: 15 The various branches of the Court of First Instance of Cebu under the Fourteenth Judicial District, are a coordinate and co-equal courts, and the totality of which is only one Court of First Instance. The jurisdiction is vested in the court, not in the judges. And when a case is filed in one branch, jurisdiction over the case does not attach to the branch or judge alone, to the exclusion of the other branches. Trial may be held or proceedings continue by and before another branch or judge. It is for this reason that Section 57 of the Judiciary Act expressly grants to the Secretary of Justice, the administrative right or power to apportion the cases among the different branches, both for the convenience of the parties and for the coordination of the work by the different branches of the same court. The apportionment and distribution of cases does not involve a grant or limitation of jurisdiction, the jurisdiction attaches and continues to be vested in the Court of First Instance of the province, and the trials may be held by any branch or judge of the court.

Even if petitioner is the nearest next of kin of Dr. De Santos, he cannot be considered an "heir" of the testator. It is a fundamental rule of testamentary succession that one who has no compulsory or forced heirs may dispose of his entire estate by will. Thus, Art. 842 of the Civil Code provides: One who has no compulsory heirs may dispose by will of all his estate or any part of it in favor of any person having capacity to succeed. One who has compulsory heirs may dispose of his estate provided he does not contravene the provisions of this Code with regard to the legitimate of said heirs. Compulsory heirs are limited to the testator's (1)Legitimate children and descendants, with respect to their legitimate parents and ascendants; (2)In default of the foregoing, legitimate parents and ascendants, with respect to their legitimate children and descendants; (3)The widow or widower; (4)Acknowledged natural children, and natural children by legal fiction; (5)Other illegitimate children referred to in Article 287 of the Civil Code. 18 Petitioner, as nephew of the testator, is not a compulsory heir who may have been preterited in the testator's will. Nor does he have any right to intervene in the settlement proceedings based on his allegation that he is a creditor of the deceased. Since the testator instituted or named an executor in his will, it is incumbent upon the Court to respect the desires of the testator. As we stated in Ozaeta v. Pecson: 19 The choice of his executor is a precious prerogative of a testator, a necessary concomitant of his right to dispose of his property in the manner he wishes. It is natural that the testator should desire to appoint one of his confidence, one who can be trusted to carry out his wishes in the disposal of his estate. The curtailment of this right may be considered a curtailment of the right to dispose.

Only if the appointed executor is incompetent, refuses the trust, or fails to give bond may the court appoint other persons to administer the estate. 20 None of these circumstances is present in this case. Third. Petitioner contends that private respondent is guilty of forum shopping when she filed the petition for issuance of letters testamentary (Sp. Proc. No. M-4343) while the probate proceedings (Sp. Proc. No. M4223) were still pending. According to petitioner, there is identity of parties, rights asserted, and reliefs prayed for in the two actions which are founded on the same facts, and a judgment in either will result in res judicata in the other. This contention has no merit. As stated earlier, the petition for probate was filed by Dr. De Santos, the testator, solely for the purpose of authenticating his will. Upon the allowance of his will, the proceedings were terminated. On the other hand, the petition for issuance of letters testamentary was filed by private respondent, as executor of the estate of Dr. De Santos, for the purpose of securing authority from the Court to administer the estate and put into effect the will of the testator. The estate settlement proceedings commenced by the filing of the petition terminates upon the distribution and delivery of the legacies and devises to the persons named in the will. Clearly, there is no identity between the two petitions, nor was the latter filed during the pendency of the former. There was, consequently, no forum shopping. WHEREFORE, the petition is DENIED and the decisions of the Court of Appeals are hereby AFFIRMED. llcd SO ORDERED. Bellosillo, Quisumbing, Buena and De Leon, Jr., JJ., concur. [G.R. No. 106720. September 15, 1994.] SPOUSES ROBERTO AND THELMA AJERO, petitioners, vs. THE COURT OF APPEALS AND CLEMENTE SAND, respondents. DECISION PUNO, J p: This is an appeal by certiorari from the Decision of the Court of Appeals 1 in CA-G.R. CV No. 22840, dated March 30, 1992, the dispositive portion of which reads:

"PREMISES CONSIDERED, the questioned decision of November 19, 1988 of the trial court is hereby REVERSED and SET ASIDE, and the petition for probate is hereby DISMISSED. No costs." The earlier Decision was rendered by the RTC of Quezon City, Branch 94, 2 in Sp. Proc. No. Q-37171, and the instrument submitted for probate is the holographic will of the late Annie Sand, who died on November 25, 1982. In the will, decedent named as devisees, the following: petitioners Roberto and Thelma Ajero, private respondent Clemente Sand, Meriam S. Arong, Leah Sand, Lilia Sand, Edgar Sand, Fe Sand, Lisa S. Sand, and Dr. Jose Ajero, Sr., and their children. prLL On January 20, 1983, petitioners instituted Sp. Proc. No. Q-37171, for allowance of decedent's holographic will. They alleged that at the time of its execution, she was of sound and disposing mind, not acting under duress, fraud or undue influence, and was in every respect capacitated to dispose of her estate by will. Private respondent opposed the petition on the grounds that: neither the testament's body nor the signature therein was in decedent's handwriting; it contained alterations and corrections which were not duly signed by decedent; and, the will was procured by petitioners through improper pressure and undue influence. The petition was likewise opposed by Dr. Jose Ajero. He contested the disposition in the will of a house and lot located in Cabadbaran, Agusan Del Norte. He claimed that said property could not be conveyed by decedent in its entirety, as she was not its sole owner. Notwithstanding the oppositions, the trial court admitted the decedent's holographic will to probate. It found, inter alia: "Considering then that the probate proceedings herein must decide only the question of identity of the will, its due execution and the testamentary capacity of the testatrix, this probate court finds no reason at all for the disallowance of the will for its failure to comply with the formalities prescribed by law nor for lack of testamentary capacity of the testatrix. "For one, no evidence was presented to show that the will in question is different from the will actually executed by the testatrix. The only objections raised by the oppositors . . . are that the will was not written in the handwriting of the testatrix which properly refers to the question of its due execution, and not to the question of identity of will. No other will was alleged to have been executed by the testatrix other than the will herein presented. Hence, in the light of the evidence adduced, the identity of the will presented for probate must be accepted, i.e., the will submitted in Court must be deemed to be the will actually executed by the testatrix.

"xxx xxx xxx "While the fact that it was entirely written, dated and signed in the handwriting of the testatrix has been disputed, the petitioners, however, have satisfactorily shown in Court that the holographic will in question was indeed written entirely, dated and signed in the handwriting of the testatrix. Three (3) witnesses who have convincingly shown knowledge of the handwriting of the testatrix have been presented and have explicitly and categorically identified the handwriting with which the holographic will in question was written to be the genuine handwriting and signature of the testatrix. Given then the aforesaid evidence, the requirement of the law that the holographic will be entirely written, dated and signed in the handwriting of the testatrix has been complied with. "xxx xxx xxx "As to the question of the testamentary capacity of the testatrix, (private respondent) Clemente Sand himself has testified in Court that the testatrix was completely in her sound mind when he visited her during her birthday celebration in 1981, at or around which time the holographic will in question was executed by the testatrix. To be of sound mind, it is sufficient that the testatrix, at the time of making the will, knew the value of the estate to be disposed of, the proper object of her bounty, and the character of the testamentary act . . . The will itself shows that the testatrix even had detailed knowledge of the nature of her estate. She even identified the lot number and square meters of the lots she had conveyed by will. The objects of her bounty were likewise identified explicitly. And considering that she had even written a nursing book which contained the law and jurisprudence on will and succession, there is more than sufficient showing that she knows the character of the testamentary act. "In this wise, the question of identity of the will, its due execution and the testamentary capacity of the testatrix has to be resolved in favor of the allowance of probate of the will submitted herein. "Likewise, no evidence was presented to show sufficient reason for the disallowance of herein holographic will. While it was alleged that the said will was procured by undue and improper pressure and influence on the part of the beneficiary or of some other person, the evidence adduced have not shown any instance where improper pressure or influence was exerted on the testatrix. (Private respondent) Clemente Sand has testified that the testatrix was still alert at the time of the execution of the will, i.e., at or around the time of her birth anniversary celebration in 1981. It was also established that she is a very intelligent person and has a mind of her own. Her independence of character and to some extent, her sense of superiority, which has been testified to in Court, all show the unlikelihood of her being unduly influenced or improperly pressured to make the

aforesaid will. It must be noted that the undue influence or improper pressure in question herein only refer to the making of a will and not as to the specific testamentary provisions therein which is the proper subject of another proceeding. Hence, under the circumstances, this Court cannot find convincing reason for the disallowance of the will herein. "Considering then that it is a well-established doctrine in the law on succession that in case of doubt, testate succession should be preferred over intestate succession, and the fact that no convincing grounds were presented and proven for the disallowance of the holographic will of the late Annie Sand, the aforesaid will submitted herein must be admitted to probate." 3 (Emphasis omitted.) On appeal, said Decision was reversed, and the petition for probate of decedent's will was dismissed. The Court of Appeals found that, "the holographic will fails to meet the requirements for its validity." 4 It held that the decedent did not comply with Articles 813 and 814 of the New Civil Code, which read, as follows: "Article 813: When a number of dispositions appearing in a holographic will are signed without being dated, and the last disposition has a signature and date, such date validates the dispositions preceding it, whatever be the time of prior dispositions." "Article 814: In case of insertion, cancellation, erasure or alteration in a holographic will, the testator must authenticate the same by his full signature." It alluded to certain dispositions in the will which were either unsigned and undated, or signed but not dated. It also found that the erasures, alterations and cancellations made thereon had not been authenticated by decedent. llcd Thus, this appeal which is impressed with merit. Section 9, Rule 76 of the Rules of Court provides that wills shall be disallowed in any of the following cases: "(a)If not executed and attested as required by law; (b)If the testator was insane, or otherwise mentally incapable to make a will, at the time of its execution; (c)If it was executed under duress, or the influence of fear, or threats;

(d)If it was procured by undue and improper pressure and influence, on the part of the beneficiary, or of some other person for his benefit; (e)If the signature of the testator was procured by fraud or trick, and he did not intend that the instrument should be his will at the time of fixing his signature thereto." In the same vein, Article 839 of the New Civil Code reads: "Article 839: The will shall be disallowed in any of the following cases: (1)If the formalities required by law have not been complied with; (2If the testator was insane, or otherwise mentally incapable of making a will, at the time of its execution; (3)If it was executed through force or under duress, or the influence of fear, or threats; (4)If it was procured by undue and improper pressure and influence, on the part of the beneficiary or of some other person; (5)If the signature of the testator was procured by fraud; (6) If the testator acted by mistake or did not intend that the instrument he signed should be his will at the time of affixing his signature thereto." These lists are exclusive; no other grounds can serve to disallow a will. 5 Thus, in a petition to admit a holographic will to probate, the only issues to be resolved are: (1) whether the instrument submitted is, indeed, the decedent's last will and testament; (2) whether said will was executed in accordance with the formalities prescribed by law; (3) whether the decedent had the necessary testamentary capacity at the time the will was executed; and, (4) whether the execution of the will and its signing were the voluntary acts of the decedents. 6 In the case at bench, respondent court held that the holographic will of Anne Sand was not executed in accordance with the formalities prescribed by law. It held that Articles 813 and 814 of the New Civil Code, ante, were not complied with, hence, it disallowed the probate of said will. This is erroneous. cdrep

We reiterate what we held in Abangan vs. Abangan, 40 Phil. 476, 479 (1919), that: "The object of the solemnities surrounding the execution of wills is to close the door against bad faith and fraud, to avoid substitution of wills and testaments and to guaranty their truth and authenticity. Therefore, the laws on this subject should be interpreted in such a way as to attain these primordial ends. But, on the other hand, also one must not lose sight of the fact that it is not the object of the law to restrain and curtail the exercise of the right to make a will. So when an interpretation already given assures such ends, any other interpretation whatsoever, that adds nothing but demands more requisites entirely unnecessary, useless and frustrative of the testator's last will, must be disregarded." For purposes of probating non-holographic wills, these formal solemnities include the subscription, attestation, and acknowledgment requirements under Articles 805 and 806 of the New Civil Code. In the case of holographic wills, on the other hand, what assures authenticity is the requirement that they be totally autographic or handwritten by the testator himself, 7 as provided under Article 810 of the New Civil Code, thus: "A person may execute a holographic will which must be entirely written, dated, and signed by the hand of the testator himself. It is subject to no other form, and may be made in or out of the Philippines, and need not be witnessed." (Emphasis supplied.) Failure to strictly observe other formalities will not result in the disallowance of a holographic will that is unquestionably handwritten by the testator. A reading of Article 813 of the New Civil Code shows that its requirement affects the validity of the dispositions contained in the holographic will, but not its probate. If the testator fails to sign and date some of the dispositions, the result is that these dispositions cannot be effectuated. Such failure, however, does not render the whole testament void. Likewise, a holographic will can still be admitted to probate, notwithstanding non-compliance with the provisions of Article 814. In the case of Kalaw vs. Relova, 132 SCRA 237, 242 (1984), this Court held: cdrep "Ordinarily, when a number of erasures, corrections, and interlineations made by the testator in a holographic Will have not been noted under his signature, . . . the Will is not thereby invalidated as a whole, but at most only as respects the particular words erased, corrected or interlined.

Manresa gave an identical commentary when he said 'la omision de la salvedad no anula el testamento, segun la regla de jurisprudencia establecida en la sentencia de 4 de Abril de 1895.'" 8 (Emphasis omitted.) Thus, unless the unauthenticated alterations, cancellations or insertions were made on the date of the holographic will or on testator's signature, 9 their presence does not invalidate the will itself. 10 The lack of authentication will only result in disallowance of such changes. It is also proper to note that the requirements of authentication of changes and signing and dating of dispositions appear in provisions (Articles 813 and 814) separate from that which provides for the necessary conditions for the validity of the holographic will (Article 810). The distinction can be traced to Articles 678 and 688 of the Spanish Civil Code, from which the present provisions covering holographic wills are taken. They read as follows: "Article 678: A will is called holographic when the testator writes it himself in the form and with the requisites required in Article 688. "Article 688: Holographic wills may be executed only by persons of full age. "In order that the will be valid it must be drawn on stamped paper corresponding to the year of its execution, written in its entirety by the testator and signed by him, and must contain a statement of the year, month and day of its execution. "If it should contain any erased, corrected, or interlined words, the testator must identify them over his signature. "Foreigners may execute holographic wills in their own language." This separation and distinction adds support to the interpretation that only the requirements of Article 810 of the New Civil Code and not those found in Articles 813 and 814 of the same Code are essential to the probate of a holographic will. The Court of Appeals further held that decedent Annie Sand could not validly dispose of the house and lot located in Cabadbaran, Agusan del Norte, in its entirety. This is correct and must be affirmed. LexLib As a general rule, courts in probate proceedings are limited to pass only upon the extrinsic validity of the will sought to be probated. However, in exceptional instances, courts are not powerless to do what the situation constrains them to do, and pass upon certain provisions of the will. 11 In the case at bench, decedent herself indubitably stated in her holographic will that the Cabadbaran property is in the name of her late father, John H.

Sand (which led oppositor Dr. Jose Ajero to question her conveyance of the same in its entirety.). Thus, as correctly held by respondent court, she cannot validly dispose of the whole property, which she shares with her father's other heirs. IN VIEW WHEREOF, the instant petition is GRANTED. The Decision of the Court of Appeals in CA-G.R. CV No. 22840, dated March 30, 1992, is REVERSED and SET ASIDE, except with respect to the invalidity of the disposition of the entire house and lot in Cabadbaran, Agusan del Norte. The Decision of the Regional Trial Court of Quezon City, Branch 94 in Sp. Proc. No. Q-37171, dated November 19, 1988, admitting to probate the holographic will of decedent Annie Sand, is hereby REINSTATED, with the above qualification as regards the Cabadbaran property. No costs. LexLib SO ORDERED. Narvasa, C.J., Padilla, Regalado and Mendoza, JJ., concur. [G.R. No. L-23079. February 27, 1970.] RUBEN AUSTRIA, CONSUELO AUSTRIA-BENTA and LAURO AUSTRIA MOZO,petitioners, vs. HON. ANDRES REYES, Judge, Court of First Instance of Rizal, PERFECTO CRUZ, BENITA CRUZ-MENEZ ISAGANI CRUZ, ALBERTO CRUZ and LUZ CRUZ-SALONGA respondents. Salonga, Ordoez, Yap, Sicat & Associates for petitioners. Ruben Austria for himself and co-petitioners. De los Santos, De los Santos & De los Santos for respondent Perfecto Cruz. Villareal, Almacen, Navarra & Amores for other respondents. SYLLABUS 1.CIVIL LAW; TESTATE SUCCESSION; REQUISITES TO ANNUL INSTITUTION OF HEIRS. Before the institution of heirs may be annulled under article 850 of the Civil Code, the following requisites must concur: First, the cause for the institution of heirs must be stated in the will; second, the cause must be shown to be false; and third, it must appear from the face of the will that the testator would not have made such institution if he had known the falsity of the cause. 2.ID.; ID.; CAUSE FOR ANNULMENT OF INSTITUTION OF HEIRS MUST BE CLEAR; CASE AT BAR. If the impelling reason or cause for the institution

of the respondents as her heirs was the testatrix's belief that under the law she could not do otherwise, she did not make it known in her will. Surely if she was aware that succession to the legitime takes place by operation of law, independent of her own wishes, she would not have found it convenient to name her supposed compulsory heirs to their legitimes. Her express adoption of the rules on legitimes should very well indicate her complete agreement with that statutory scheme. But even this, like the petitioners' own proposition, is highly speculative of what was in the mind of the testatrix when she executed her will. One fact prevails, however, and it is the decedent's will does not state in a specific or unequivocal manner the cause for such institution of heirs. We cannot annul the same on the basis of guesswork or uncertain implications. 3.ID.; ID.; TESTACY FAVORED AND WISHES OF TESTATOR MUST PREVAIL. Testacy is favored and doubts are resolved on its side, especially where the will evinces an intention on the part of the testator to dispose of practically his whole estate, as was done in this case. Moreover, so compelling is the principle that intestacy should be avoided and the wishes of the testator allowed to prevail, that we could even vary the language of the will for the purpose of giving it effect. As in one case where the probate court has found, by final judgment, that the testator was possessed of testamentary capacity and her last will executed free from falsification, fraud, trickery or undue influence this Court held, it is its duty to give full expression to her will. 4.ID.; ID.; LEGALITY OF ADOPTION APART FROM CASE OF TESTATE SUCCESSION, ADOPTION NOT SUBJECT TO COLLATERAL ATTACK. The legality of the adoption of the respondents by the testatrix can be assailed only in a separate action brought for that purpose, and cannot be the subject of a collateral attack. 5.REMEDIAL LAW; COURTS; INHERENT POWER OF COURT. Every court has the inherent power to amend and control its processes and orders so as to make them conformable to law and justice. That the court a quo has limited the extent of the petitioners' intervention is also within its powers as articulated by the Rules of Court. DECISION CASTRO, J p: On July 7, 1956 Basilia Austria vda. de Cruz filed with the Court of First Instance of Rizal (Special Proceedings 2457) a petition for probate, ante mortem, of her last will and testament. The probate was opposed by the present petitioners Ruben Austria, Consuelo Austria-Benta and Lauro Austria Mozo, and still others who, like the petitioner, are nephews and

nieces of Basilia. This opposition was, however, dismissed and the probate of the will allowed after due hearing. The bulk of the estate of Basilia, admittedly, was destined under the will to pass on to the respondents Perfecto Cruz, Benita Cruz-Meez, Isagani Cruz, Alberto Cruz, and Luz Cruz-Salonga, all of whom had been assumed and declared by Basilia as her own legally adopted children. On April 23, 1969, more than two years after her will was allowed to probate, Basilia died. The respondent Perfecto Cruz was appointed executor without bond by the same court in accordance with the provisions of the decedent's will, notwithstanding the blocking attempt pursued by the petitioner Ruben Austria. Finally, on November 5, 1959, the present petitioners filed in the same proceedings a petition in intervention for partition alleging in substance that they are the nearest of kin of Basilia, and that the five respondents Perfecto Cruz, et al., had not in fact been adopted by the decedent in accordance with law, in effect rendering these respondents mere strangers to the decedent and without any right to succeed as heirs. Notwithstanding opposition by the respondent Perfecto Cruz, as executor of the estate, the court a quo allowed the petitioners' intervention by its order of December 22, 1959, couched in broad terms, as follows: "The Petition in Intervention for Partition filed by the above-named oppositors [Ruben Austria, et al.,] dated November 5, 1969 is hereby granted." In the meantime, the contending sides debated the matter of authenticity or lack of it of the several adoption papers produced and presented by the respondents. On motion of the petitioners Ruben Austria, et al., these documents were referred to the National Bureau of Investigation for examination and advice. N.B.I. report seems to bear out the genuineness of the documents, but the petitioners, evidently dissatisfied with the results, managed to obtain a preliminary opinion from a Constabulary questioneddocument examiner whose views undermine the authenticity of the said documents. The petitioners Ruben Austria, et al., thus moved the lower court to refer the adoption papers to the Philippine Constabulary for further study. The petitioners likewise located former personnel of the court which appeared to have granted the questioned adoption, and obtained written depositions from two of them denying any knowledge of the pertinent adoption proceedings. On February 6, 1963, more than three years after they were allowed to intervene, the petitioners Ruben Austria, et al., moved the lower court to set for hearing the matter of the genuineness of the adoption of the respondents Perfecto Cruz, et al., by the late Basilia. Before the date set by the court for hearing arrived, however, the respondent Benita Cruz-Meez,

who entered an appearance separately from that of her brother Perfecto Cruz, filed on February 28, 1963 a motion asking the lower court, by way of alternative relief, to confine the petitioners' intervention, should it be permitted, to properties not disposed of in the will of the decedent. On March 4, 1963, the lower court heard the respondent Benita's motion. Both sides subsequently submitted their respective memoranda, and finally, the lower court issued an order on June 4, 1963, delimiting the petitioners' intervention to the properties of the deceased which were not disposed of in the will. The petitioners moved the lower court to reconsider this latest order, eliciting thereby an opposition from the respondents. On October 25, 1963 the same court denied the petitioners' motion for reconsideration. A second motion for reconsideration which set off a long exchange of memoranda from both sides, was summarily denied on April 21, 1964. Hence this petition for certiorari, praying this Court to annul the orders of June 4 and October 25, 1963 and the order of April 21, 1964, all restricting petitioners' intervention to properties that were not included in the decedent's testamentary dispositions. The uncontested premises are clear. Two interests are locked in dispute over the bulk of the estate of the deceased. Arrayed on one side are the petitioners Ruben Austria, Consuelo Austria-Benta and Lauro Austria Mozo, three of a number of nephews and nieces who are concededly the nearest surviving blood relatives of the decedent. On the other side are the respondents brothers and sisters, Perfecto Cruz, Benita Cruz-Meez, Isagani Cruz, Alberto Cruz and Luz Cruz-Salonga, all of whom heirs in the will of the deceased Basilia, and all of whom claim kinship with the decedent by virtue of legal adoption. At the heart of the controversy is Basilia's last will immaculate in its extrinsic validity since it bears the imprimatur of duly conducted probate proceedings. The complaint in intervention filed in the lower court assails the legality of the tie which the respondent Perfecto Cruz and his brothers and sisters claim to have with the decedent. The lower court had, however, assumed, by its orders in question, that the validity or invalidity of the adoption is not material nor decisive on the efficacy of the institution of heirs; for, even if the adoption in question were spurious, the respondents Perfecto Cruz, et al., will nevertheless succeed not as compulsory heirs but as testamentary heirs instituted in Basilia's will. This ruling apparently finds support in article 842 of the Civil Code which reads: "One who has no compulsory heirs may dispose of by will all his estate or any part of it in favor of any person having capacity to succeed.

"One who has compulsory heirs may dispose of his estate provided he does not contravene the provisions of this Code with regard to the legitime of said heirs." The lower court must have assumed that since the petitioners nephews and niece are not compulsory heirs, they do not possess that interest which can be prejudiced by a free-wheeling testamentary disposition. The petitioners' interest is confined to properties, if any, that have not been disposed of in the will, for to that extent intestate succession can take place and the question of the veracity of the adoption acquires relevance. The petitioners nephews and niece, upon the other hand, insist that the entire estate should descend to them by intestacy by reason of the intrinsic nullity of the institution of heirs embodied in the decedent's will. They have thus raised squarely the issue of whether or not such institution of heirs would retain efficacy in the event there exists proof that the adoption of the same heirs by the decedent is false.

"A. Aking ipinamamana sa aking nabanggit na limang anak na sina Perfecto, Alberto, Luz, Benita at Isagani, na pawang may apelyidong Cruz, na parepareho ang kaparti ng bawa't isa at walang lamangan (en partes iguales), bilang kanilang sapilitang mana (legiti[ma]), ang kalahati (1/2) ng aking kaparti sa lahat ng aming ari-ariang gananciales ng aking yumaong asawang Pedro Cruz na napapaloob sa Actuacion Especial No. 640 ng Hukumang Unang Dulugan ng Rizal at itinutukoy sa No. 1 ng parafo IV ng testamentong ito, ang kalahati (1/2) ng mga lagay na lupa at palaisdaan na nasa Obando at Polo, Bulacan, na namana ko sa aking yumaong ama na si Calixto Austria, at ang kalahati (1/2) ng ilang lagay na lupa na nasa Tinejeros, Malabon, Rizal, na aking namana sa yumao kong kapatid na si Fausto Austria." The tenor of the language used, the petitioners argue, gives rise to the inference that the late Basilia was deceived into believing that she was legally bound to bequeath one-half of her entire estate to the respondents Perfecto Cruz, et al. as the latter's legitime. The petitioners further contend that had the deceased known the adoption to be spurious, she would not have instituted the respondents at all the basis of the institution being solely her belief that they were compulsory heirs. Proof therefore of the falsity of the adoption would cause a nullity of the institution of heirs and the opening of the estate wide to intestacy. Did the lower court then abuse its discretion or act in violation of the rights of the parties in barring the petitioners nephews and niece from registering their claim even to properties adjudicated by the decedent in her will? Before the institution of heirs may be annulled under article 850 of the Civil Code, the following requisites must concur: First, the cause for the institution of heirs must be stated in the will; second, the cause must be shown to be false; and third, it must appear from the face of the will that the testator would not have made such institution if he had known the falsity of the cause. The petitioners would have us imply, from the use of the terms, "sapilitang tagapagmana" (compulsory heirs) and "sapilitang mana" (legitime), that the impelling reason or cause for the institution of the respondents was the testatrix's belief that under the law she could not do otherwise. If this were indeed what prompted the testatrix in instituting the respondents, she did not make it known in her will. Surely if she was aware that succession to the legitime takes place by operation of law, independent of her own wishes, she would not have found it convenient to name her supposed compulsory heirs to their legitimes. Her express adoption of the rules on legitimes should very well indicate her complete agreement with that statutory scheme. But even this, like the petitioners' own proposition, is highly speculative of what was in the mind of the testatrix when she executed her will. One fact prevails, however, and it is that the decedent's will does not state in a specific or unequivocal manner the cause for such institution of

heirs. We cannot annul the same on the basis of guesswork or uncertain implications. And even if we should accept the petitioners' theory that the decedent instituted the respondents perfecto Cruz, et al. solely because she believed that the law commanded her to do so, on the false assumption that her adoption of these respondents was valid, still such institution must stand. Article 850 of the Civil Code, quoted above, is a positive injunction to ignore whatever false cause the testator may have written in his will for the institution of heirs. Such institution may be annulled only when one is satisfied, after an examination of the will, that the testator clearly would not have made the institution if he had known the cause for it to be false. Now, would the late Basilia have caused the revocation of the institution of heirs if she had known that she was mistaken in treating these heirs as her legally adopted children? Or would she have instituted them nonetheless? The decedent's will, which alone should provide the answer, is mute on this point or at best is vague and uncertain. The phrases, "mga sapilitang tagapagmana" and "sapilitang mana," were borrowed from the language of the law on succession and were used, respectively, to de scribe the class of heirs instituted and the abstract object of the inheritance. They offer no absolute indication that the decedent would have willed her estate other than the way she did if she had known that she was not bound by law to make allowance for legitimes. Her disposition of the free portion of her estate (libre disposicion) which largely favored the respondent Perfecto Cruz, the latter's children, and the children of the respondent Benita Cruz, shows a perceptible inclination on her part to give to the respondents more than what she thought the law enjoined her to give to them. Compare this with the relatively small devise of land which the decedent had left for her blood relatives, including the petitioners Consuelo Austria-Benta and Lauro Mozo and the children of the petitioner Ruben Austria. Were we to exclude the respondents Perfecto Cruz, et al, from the inheritance, then the petitioners and the other nephews and nieces would succeed to the bulk of the estate by intestacy a result which would subvert the clear wishes of the decedent. Whatever doubts one entertains in his mind should be swept away by these explicit injunctions in the Civil Code: "The words of a will are to receive an interpretation which will give to every expression some effect, rather than one which will render any of the expressions inoperative; and of two modes of interpreting a will, that is to be preferred which will prevent intestacy." 1 Testacy is favored and doubts are resolved on its side, especially where the will evinces an intention on the part of the testator to dispose of practically his whole estate, 2 as was done in this case. Moreover, so compelling is the principle that intestacy should be avoided and the wishes of the testator

The petitioners cite, as the controlling rule, article 850 of the Civil Code which reads: "The statement of a false cause for the institution of an heir shall be considered as not written, unless it appears from the will that the testator would not have made such institution if he had known the falsity of such cause." Coming closer to the center of the controversy, the petitioners have called the attention of the lower court and this Court to the following pertinent portions of the will of the deceased which recite: "III "Ang aking mga sapilitang tagapagmana (herederos forzosos) ay ang aking itinuturing na mga anak na tunay (Hijos legalmente adoptados) na sina Perfecto, Alberto, Luz, Benita at Isagani, na pawang may apelyidong Cruz. xxx xxx xxx "V "Kung ako ay bawian ng Dios ng buhay, ay aking ipinamamana ang aking mga ari-ariang maiiwan, sa kaparaanang sumusunod:

allowed to prevail, that we could even vary the language of the will for the purpose of giving it effect. 3 A probate court has found, by final judgment, that the late Basilia Austria Vda. de Cruz was possessed of testamentary capacity and her last will executed free from falsification, fraud, trickery or undue influence. In this situation, it becomes our duty to give full expression to her will. 4 At all events, the legality of the adoption of the respondents by the testatrix can be assailed only in a separate action brought for that purpose, and cannot be the subject of a collateral attack. 5 To the petitioners' charge that the lower court had no power to reverse its order of December 22, 1969, suffice it to state that, as borne by the records, the subsequent orders complained of served merely to clarify the first an act which the court could legally do. Every court has the inherent power to amend and control its processes and orders so as to make them conformable to law and justice. 6 That the court a quo has limited the extent of the petitioners' intervention is also within its powers as articulated by the Rules of Court. 7 ACCORDINGLY, the present petition is denied, at petitioners cost. Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Fernando, Teehankee, Barredo and Villamor, JJ., concur. [G.R. No. 141882. March 11, 2005.] J.L.T. AGRO, INC., represented by its Manager, JULIAN L. TEVES, petitioner, vs. ANTONIO BALANSAG and HILARIA CADAYDAY, respondents. DECISION TINGA, J p: Once again, the Court is faced with the perennial conflict of property claims between two sets of heirs, a conflict ironically made grievous by the fact that the decedent in this case had resorted to great lengths to allocate which properties should go to which set of heirs. This is a Rule 45 petition assailing the Decision 1 dated 30 September 1999 of the Court of Appeals which reversed the Decision 2 dated 7 May 1993 of the Regional Trial Court (RTC), Branch 45, of Bais City, Negros Oriental. The factual antecedents follow.

Don Julian L. Teves (Don Julian) contracted two marriages, first with Antonia Baena (Antonia), and after her death, with Milagros Donio Teves (Milagros Donio). Don Julian had two children with Antonia, namely: Josefa Teves Escao (Josefa) and Emilio Teves (Emilio). He had also four (4) children with Milagros Donio, namely: Maria Evelyn Donio Teves (Maria Evelyn), Jose Catalino Donio Teves (Jose Catalino), Milagros Reyes Teves (Milagros Reyes) and Pedro Reyes Teves (Pedro). 3 The present controversy involves a parcel of land covering nine hundred and fifty-four (954) square meters, known as Lot No. 63 of the Bais Cadastre, which was originally registered in the name of the conjugal partnership of Don Julian and Antonia under Original Certificate of Title (OCT) No. 5203 of the Registry of Deeds of Bais City. When Antonia died, the land was among the properties involved in an action for partition and damages docketed as Civil Case No. 3443 entitled "Josefa Teves Escao v. Julian Teves, Emilio B. Teves, et al." 4 Milagros Donio, the second wife of Don Julian, participated as an intervenor. Thereafter, the parties to the case entered into a Compromise Agreement 5 which embodied the partition of all the properties of Don Julian. On the basis of the compromise agreement and approving the same, the Court of First Instance (CFI) of Negros Oriental, 12th Judicial District, rendered a Decision 6 dated 31 January 1964. The CFI decision declared a tract of land known as Hacienda Medalla Milagrosa as property owned in common by Don Julian and his two (2) children of the first marriage. The property was to remain undivided during the lifetime of Don Julian. 7 Josefa and Emilio likewise were given other properties at Bais, including the electric plant, the "movie property," the commercial areas, and the house where Don Julian was living. The remainder of the properties was retained by Don Julian, including Lot No. 63. acCITS Paragraph 13 of the Compromise Agreement, at the heart of the present dispute, lays down the effect of the eventual death of Don Julian vis--vis his heirs: 13.That in the event of death of Julian L. Teves, the properties hereinafter adjudicated to Josefa Teves Escao and Emilio B. Teves, (excluding the properties comprised as Hacienda Medalla Milagrosa together with all its accessories and accessions) shall be understood as including not only their one-half share which they inherited from their mother but also the legitimes and other successional rights which would correspond to them of the other half belonging to their father, Julian L. Teves. In other words, the properties now selected and adjudicated to Julian L. Teves (not including his share in the Hacienda Medalla Milagrosa) shall exclusively be adjudicated to the wife in second marriage of Julian L. Teves and his four minor children, namely, Milagros Donio Teves, his two acknowledged natural children Milagros Reyes Teves and Pedro Reyes Teves and his two legitimated

children Maria Evelyn Donio Teves and Jose Catalino Donio Teves. (Emphasis supplied) On 16 November 1972, Don Julian, Emilio and Josefa executed a Deed of Assignment of Assets with Assumption of Liabilities 8 in favor of J.L.T. Agro, Inc. (petitioner). Less than a year later, Don Julian, Josefa and Emilio also executed an instrument entitled Supplemental to the Deed of Assignment of Assets with the Assumption of Liabilities (Supplemental Deed) 9 dated 31 July 1973. This instrument which constitutes a supplement to the earlier deed of assignment transferred ownership over Lot No. 63, among other properties, in favor of petitioner. 10 On 14 April 1974, Don Julian died intestate. On the strength of the Supplemental Deed in its favor, petitioner sought the registration of the subject lot in its name. A court, so it appeared, issued an order 11 cancelling OCT No. 5203 in the name of spouses Don Julian and Antonia on 12 November 1979, and on the same date TCT No. T-375 was issued in the name of petitioner. 12 Since then, petitioner has been paying taxes assessed on the subject lot. 13 Meanwhile, Milagros Donio and her children had immediately taken possession over the subject lot after the execution of the Compromise Agreement. In 1974, they entered into a yearly lease agreement with spouses Antonio Balansag and Hilaria Cadayday, respondents herein. 14 On Lot No. 63, respondents temporarily established their home and constructed a lumber yard. Subsequently, Milagros Donio and her children executed a Deed of Extrajudicial Partition of Real Estate 15 dated 18 March 1980. In the deed of partition, Lot No. 63 was allotted to Milagros Donio and her two (2) children, Maria Evelyn and Jose Catalino. Unaware that the subject lot was already registered in the name of petitioner in 1979, respondents bought Lot No. 63 from Milagros Donio as evidenced by the Deed of Absolute Sale of Real Estate 16 dated 9 November 1983. jur2005cda At the Register of Deeds while trying to register the deed of absolute sale, respondents discovered that the lot was already titled in the name of petitioner. Thus, they failed to register the deed. 17 Respondents, as vendees of Lot No. 63, filed a complaint before the RTC Branch 45 of Bais City, seeking the declaration of nullity and cancellation of TCT No. T-375 in the name of petitioner and the transfer of the title to Lot No. 63 in their names, plus damages. 18 After hearing, the trial court dismissed the complaint filed by respondents. The dispositive portion of the decision reads:

WHEREFORE, premises considered, by preponderance of evidence, this Court finds judgment in favor of the defendant and against the plaintiff, and thus hereby orders: (1)That complaint be dismissed; ASHaTc (2)That plaintiffs vacate the subject land, particularly identified as Lot No. 63 registered under Transfer Certificate of Title No. T-375; (3)That plaintiffs pay costs. Finding no basis on the counterclaim by defendant, the same is hereby ordered dismissed. 19 The trial court ruled that the resolution of the case specifically hinged on the interpretation of paragraph 13 of the Compromise Agreement. 20 It added that the direct adjudication of the properties listed in the Compromise Agreement was only in favor of Don Julian and his two children by the first marriage, Josefa and Emilio. 21 Paragraph 13 served only as an amplification of the terms of the adjudication in favor of Don Julian and his two children by the first marriage. According to the trial court, the properties adjudicated in favor of Josefa and Emilio comprised their shares in the estate of their deceased mother Antonia, as well as their potential share in the estate of Don Julian upon the latter's death. Thus, upon Don Julian's death, Josefa and Emilio could not claim any share in his estate, except their proper share in the Hacienda Medalla Milagrosa which was adjudicated in favor of Don Julian in the Compromise Agreement. As such, the properties adjudicated in favor of Don Julian, except Hacienda Medalla Milagrosa, were free from the forced legitimary rights of Josefa and Emilio, and Don Julian was under no impediment to allocate the subject lot, among his other properties, to Milagros Donio and her four (4) children. 22 The trial court further stressed that with the use of the words "shall be," the adjudication in favor of Milagros Donio and her four (4) children was not final and operative, as the lot was still subject to future disposition by Don Julian during his lifetime. 23 It cited paragraph 14 24 of the Compromise Agreement in support of his conclusion. 25 With Lot No. 63 being the conjugal property of Don Julian and Antonia, the trial court also declared that Milagros Donio and her children had no hereditary rights thereto except as to the conjugal share of Don Julian, which they could claim only upon the death of the latter. 26 The trial court ruled that at the time of Don Julian's death on 14 April 1974, Lot No. 63 was no longer a part of his estate since he had earlier assigned it

to petitioner on 31 July 1973. Consequently, the lot could not be a proper subject of extrajudicial partition by Milagros Donio and her children, and not being the owners they could not have sold it. Had respondents exercised prudence before buying the subject lot by investigating the registration of the same with the Registry of Deeds, they would have discovered that five (5) years earlier, OCT No. 5203 had already been cancelled and replaced by TCT No. T-375 in the name of petitioner, the trial court added. 27 The Court of Appeals, however, reversed the trial court's decision. The decretal part of the appellate decision reads: WHEREFORE, premises considered, the decision appealed from is hereby REVERSED and SET ASIDE and a new one is entered declaring the Transfer Certificate of Title No. T-375 registered in the name of J.L.T. Agro, Inc. as null and void. With costs against defendant J.L.T. Agro, Inc. represented by its Manager, Julian L. Teves. SO ORDERED. 28 Per the appellate court, the Compromise Agreement incorporated in CFI decision dated 31 January 1964, particularly paragraph 13 thereof, determined, adjudicated and reserved to Don Julian's two sets of heirs their future legitimes in his estate except as regards his (Don Julian's) share in Hacienda Medalla Milagrosa. 29 The two sets of heirs acquired full ownership and possession of the properties respectively adjudicated to them in the CFI decision and Don Julian himself could no longer dispose of the same, including Lot No. 63. The disposition in the CFI decision constitutes res judicata. 30 Don Julian could have disposed of only his conjugal share in the Hacienda Medalla Milagrosa. 31

Aggrieved by the appellate court's decision, petitioner elevated it to this Court via a petition for review on certiorari, raising pure questions of law. DcaSIH Before this Court, petitioner assigns as errors the following rulings of the appellate court, to wit: (a) that future legitime can be determined, adjudicated and reserved prior to the death of Don Julian; (b) that Don Julian had no right to dispose of or assign Lot No. 63 to petitioner because he reserved the same for his heirs from the second marriage pursuant to the Compromise Agreement; (c) that the Supplemental Deed was tantamount to a preterition of his heirs from the second marriage; and (d) that TCT No. T-375 in the name of petitioner is spurious for not containing entries on the Book No. and Page No. 33 While most of petitioner's legal arguments have merit, the application of the appropriate provisions of law to the facts borne out by the evidence on record nonetheless warrants the affirmance of the result reached by the Court of Appeals in favor of respondents. Being the key adjudicative provision, paragraph 13 of the Compromise Agreement has to be quoted again: 13.That in the event of death of Julian L. Teves, the properties herein adjudicated to Josefa Teves Escao and Emilio B. Teves, (excluding the properties comprised as Hacienda Medalla Milagrosa together with all its accessories and accessions) shall be understood as including not only their one-half share which they inherited from their mother but also the legitimes and other successional rights which would correspond to them of the other half belonging to their father, Julian L. Teves. In other words, the properties now selected and adjudicated to Julian L. Teves (not including his share in the Hacienda Medalla Milagrosa) shall exclusively be adjudicated to the wife in second marriage of Julian L. Teves and his four minor children, namely, Milagros Donio Teves, his two acknowledged natural children Milagros Reyes Teves and Pedro Reyes Teves and his two legitimated children Maria Evelyn Donio Teves and Jose Catalino Donio Teves." (Emphasis supplied) With the quoted paragraph as basis, the Court of Appeals ruled that the adjudication in favor of the heirs of Don Julian from the second marriage became automatically operative upon the approval of the Compromise Agreement, thereby vesting on them the right to validly dispose of Lot No. 63 in favor of respondents. Petitioner argues that the appellate court erred in holding that future legitime can be determined, adjudicated and reserved prior to the death of Don Julian. The Court agrees. Our declaration in Blas v. Santos 34 is relevant, where we defined future inheritance as any property or right not

The appellate court likewise emphasized that nobody in his right judgment would preterit his legal heirs by simply executing a document like the Supplemental Deed which practically covers all properties which Don Julian had reserved in favor of his heirs from the second marriage. It also found out that the blanks reserved for the Book No. and Page No. at the upper right corner of TCT No. T-375, "to identify the exact location where the said title was registered or transferred," were not filled up, thereby indicating that the TCT is "spurious and of dubious origin." 32

in existence or capable of determination at the time of the contract, that a person may in the future acquire by succession. Article 1347 of the New Civil Code explicitly provides: ART. 1347.All things which are not outside the commerce of men, including future things, may be the object of a contract. All rights which are not intransmissible may also be the object of contracts. No contract may be entered into upon future inheritance except in cases expressly authorized by law. All services which are not contrary to law, morals, good customs, public order or public policy may likewise be the object of a contract. Well-entrenched is the rule that all things, even future ones, which are not outside the commerce of man may be the object of a contract. The exception is that no contract may be entered into with respect to future inheritance, and the exception to the exception is the partition inter vivos referred to in Article 1080. 35 For the inheritance to be considered "future," the succession must not have been opened at the time of the contract. 36 A contract may be classified as a contract upon future inheritance, prohibited under the second paragraph of Article 1347, where the following requisites concur: (1)That the succession has not yet been opened; HEcaIC (2)That the object of the contract forms part of the inheritance; and (3)That the promissor has, with respect to the object, an expectancy of a right which is purely hereditary in nature. 37 The first paragraph of Article 1080, which provides the exception to the exception and therefore aligns with the general rule on future things, reads: ART. 1080.Should a person make a partition of his estate by an act inter vivos, or by will, such partition shall be respected, insofar as it does not prejudice the legitime of the compulsory heirs. xxx xxx xxx In interpreting this provision, Justice Edgardo Paras advanced the opinion that if the partition is made by an act inter vivos, no formalities are prescribed by the Article. 38 The partition will of course be effective only after death. It does not necessarily require the formalities of a will for after

all it is not the partition that is the mode of acquiring ownership. Neither will the formalities of a donation be required since donation will not be the mode of acquiring the ownership here after death; since no will has been made it follows that the mode will be succession (intestate succession). Besides, the partition here is merely the physical determination of the part to be given to each heir. 39 The historical antecedent of Article 1080 of the New Civil Code is Article 1056 40 of the old Civil Code. The only change in the provision is that Article 1080 now permits any person (not a testator, as under the old law) to partition his estate by act inter vivos. This was intended to abrogate the then prevailing doctrine that for a testator to partition his estate by an act inter vivos, he must first make a will with all the formalities provided by law. 41 Article 1056 of the old Civil Code (now Article 1080) authorizes a testator to partition inter vivos his property, and distribute them among his heirs, and this partition is neither a donation nor a testament, but an instrument of a special character, sui generis, which is revocable at any time by the causante during his lifetime, and does not operate as a conveyance of title until his death. It derives its binding force on the heirs from the respect due to the will of the owner of the property, limited only by his creditors and the intangibility of the legitime of the forced heirs. 42 The partition inter vivos of the properties of Don Julian is undoubtedly valid pursuant to Article 1347. However, considering that it would become legally operative only upon the death of Don Julian, the right of his heirs from the second marriage to the properties adjudicated to him under the compromise agreement was but a mere expectancy. It was a bare hope of succession to the property of their father. Being the prospect of a future acquisition, the interest by its nature was inchoate. It had no attribute of property, and the interest to which it related was at the time nonexistent and might never exist. 43 Evidently, at the time of the execution of the deed of assignment covering Lot No. 63 in favor of petitioner, Don Julian remained the owner of the property since ownership over the subject lot would only pass to his heirs from the second marriage at the time of his death. Thus, as the owner of the subject lot, Don Julian retained the absolute right to dispose of it during his lifetime. His right cannot be challenged by Milagros Donio and her children on the ground that it had already been adjudicated to them by virtue of the compromise agreement. Emerging as the crucial question in this case is whether Don Julian had validly transferred ownership of the subject lot during his lifetime. The lower court ruled that he had done so through the Supplemental Deed. The appellate court disagreed, holding that the Supplemental Deed is not valid,

containing as it does a prohibited preterition of Don Julian's heirs from the second marriage. Petitioner contends that the ruling of the Court of Appeals is erroneous. The contention is well-founded. Article 854 provides that the preterition or omission of one, some, or all of the compulsory heirs in the direct line, whether living at the time of the execution of the will or born after the death of the testator, shall annul the institution of heir; but the devises and legacies shall be valid insofar as they are not inofficious. Manresa defines preterition as the omission of the heir in the will, either by not naming him at all or, while mentioning him as father, son, etc., by not instituting him as heir without disinheriting him expressly, nor assigning to him some part of the properties. 44 It is the total omission of a compulsory heir in the direct line from inheritance. 45 It consists in the silence of the testator with regard to a compulsory heir, omitting him in the testament, either by not mentioning him at all, or by not giving him anything in the hereditary property but without expressly disinheriting him, even if he is mentioned in the will in the latter case. 46 But there is no preterition where the testator allotted to a descendant a share less than the legitime, since there was no total omission of a forced heir. 47 In the case at bar, Don Julian did not execute a will since what he resorted to was a partition inter vivos of his properties, as evidenced by the court approved Compromise Agreement. Thus, it is premature if not irrelevant to speak of preterition prior to the death of Don Julian in the absence of a will depriving a legal heir of his legitime. Besides, there are other properties which the heirs from the second marriage could inherit from Don Julian upon his death. A couple of provisions in the Compromise Agreement are indicative of Don Julian's desire along this line. 48 Hence, the total omission from inheritance of Don Julian's heirs from the second marriage, a requirement for preterition to exist, is hardly imaginable as it is unfounded. IcESaA

Despite the debunking of respondents' argument on preterition, still the petition would ultimately rise or fall on whether there was a valid transfer effected by Don Julian to petitioner. Notably, Don Julian was also the president and director of petitioner, and his daughter from the first marriage, Josefa, was the treasurer thereof. There is of course no legal prohibition against such a transfer to a family corporation. Yet close scrutiny is in order, especially considering that such transfer would remove Lot No. 63 from the estate from which Milagros and her children could inherit. Both the alleged transfer deed and the title which necessarily must have emanated from it have to be subjected to incisive and detailed examination.

Well-settled, of course, is the rule that a certificate of title serves as evidence of an indefeasible title to the property in favor of the person whose name appears therein. 49 A certificate of title accumulates in one document a precise and correct statement of the exact status of the fee held by its owner. The certificate, in the absence of fraud, is the evidence of title and shows exactly the real interest of its owner. 50 To successfully assail the juristic value of what a Torrens title establishes, a sufficient and convincing quantum of evidence on the defect of the title must be adduced to overcome the predisposition in law in favor of a holder of a Torrens title. Thus, contrary to the appellate court's ruling, the appearance of a mere thumbmark of Don Julian instead of his signature in the Supplemental Deed would not affect the validity of petitioner's title for this Court has ruled that a thumbmark is a recognized mode of signature. 51 The truth, however, is that the replacement of OCT No. 5203 in the name of Julian by T.C.T. No. T-375 is marred by a grave irregularity which is also an illegality, as it contravenes the orthodox, conventional and normal process established by law. And, worse still, the illegality is reflected on the face of both titles. Where, as in this case, the transferee relies on a voluntary instrument to secure the issuance of a new title in his name such instrument has to be presented to the Registry of Deeds. This is evident from Sections 53 and 57 of Presidential Decree (P.D.) No. 1529 or the Property Registration Decree. The sections read, thus: SEC. 53.Presentation of owner's duplicate upon entry of new certificate. No voluntary instrument shall be registered by the Register of Deeds unless the owner's duplicate certificate is presented with such instrument, except in cases expressly provided for in this Decree or upon order of the court, for cause shown. (Emphasis supplied) xxx xxx xxx SEC. 57.Procedure in registration of conveyances. An owner desiring to convey his registered land in fee simple shall execute and register a deed of conveyance in a form sufficient in law. The Register of Deeds shall thereafter make out in the registration book a new certificate of title to the grantee and shall prepare and deliver to him an owner's duplicate certificate. The Register of Deeds shall note upon the original and duplicate certificate the date of transfer, the volume and page of the registration book in which the new certificate is registered and a reference by number to the last preceding certificate. The original and the owner's duplicate of the grantor's certificate shall be stamped "cancelled." The deed of conveyance shall be filed and endorsed with the number and the place of registration of the certificate of title of the land conveyed. (Emphasis supplied)

As petitioner bases its right to the subject lot on the Supplemental Deed, it should have presented it to the Register of Deeds to secure the transfer of the title in its name. Apparently, it had not done so. There is nothing on OCT No. 5203 or on the succeeding TCT No. T-375 either which shows that it had presented the Supplemental Deed. In fact, there is absolutely no mention of a reference to said document in the original and transfer certificates of title. It is in this regard that the finding of the Court of Appeals concerning the absence of entries on the blanks intended for the Book No. and Page No. gains significant relevance. Indeed, this aspect fortifies the conclusion that the cancellation of OCT No. 5203 and the consequent issuance of TCT No. T375 in its place are not predicated on a valid transaction. What appears instead on OCT No. 5203 is the following pertinent entry: Entry No. 1374: Kind: Order: Executed in favor of J.L.T. AGRO, INC. CONDITIONS: Lost owner's duplicate is hereby cancelled, and null and void and a new Certificate of Title No. 375 is issued per Order of the Court of First Instance on file in this office. CIaHDc Date of Instrument: November 12, 1979 Date of Inscription: Nov. 12, 19794:00 P.M. (SGD) MANUEL C. MONTESA Acting Deputy Register of Deeds II (Emphasis supplied) 52 What the entry indicates is that the owner's duplicate of OCT No. 5203 was lost, a petition for the reconstitution of the said owner's duplicate was filed in court, and the court issued an order for the reconstitution of the owner's duplicate and its replacement with a new one. But if the entry is to be believed, the court concerned (CFI, according to the entry) issued an order for the issuance of a new title which is TCT No. T-375 although the original of OCT No. 5203 on file with the Registry of Deeds had not been lost. Going by the legal, accepted and normal process, the reconstitution court may order the reconstitution and replacement of the lost title only, nothing else. Since what was lost is the owner's copy of OCT No. 5203, only that owner's copy could be ordered replaced. Thus, the Register of Deeds exceeded his authority in issuing not just a reconstituted owner's copy of the original certificate of title but a new transfer certificate of title in place of the original certificate of title. But if the court order, as the entry intimates, directed the issuance of a new transfer certificate of title even designating the very number of the new transfer certificate of title itself

the order would be patently unlawful. A court cannot legally order the cancellation and replacement of the original of the O.C.T. which has not been lost, 53 as the petition for reconstitution is premised on the loss merely of the owner's duplicate of the OCT. Apparently, petitioner had resorted to the court order as a convenient contrivance to effect the transfer of title to the subject lot in its name, instead of the Supplemental Deed which should be its proper course of action. It was so constrained to do because the Supplemental Deed does not constitute a deed of conveyance of the "registered land in fee simple" "in a form sufficient in law," as required by Section 57 of P.D. No. 1529. A plain reading of the pertinent provisions of the Supplemental Deed discloses that the assignment is not supported by any consideration. The provision reads: xxx xxx xxx WHEREAS, in the Deed of Assignment of Assets with the Assumption of Liabilities executed by Julian L. Teves, Emilio B. Teves and Josefa T. Escao at Dumaguete City on 16th day of November 1972 and ratified in the City of Dumaguete before Notary Public Lenin Victoriano, and entered in the latter's notarial register as Doc. No. 367; Page No. 17; Book No. V; series of 1972, Julian L. Teves, Emilio B. Teves and Josefa T. Escao, transferred, conveyed and assigned unto J.L.T. AGRO, INC., all its assets and liabilities as reflected in the Balance Sheet of the former as of December 31, 1971. WHEREAS, on the compromise agreement, as mentioned in the Decision made in the Court of First Instance of Negros Oriental, 12th Judicial District Branch II, on Dec. 31, 1964 pertaining to Civil Case No. 3443 the following properties were adjudicated to Don Julian L. Teves. We quote. HCacDE From the properties at Bais Adjudicated to Don Julian L. Teves xxx xxx xxx Lot No. 63, Tax Dec. No. 33, Certificate of Title No. 5203, together with all improvements. Assessed value P2,720.00 xxx xxx xxx WHEREAS, this Deed of Assignment is executed by the parties herein in order to effect the registration of the transfer of the above corporation.

NOW, THEREFORE, for and in consideration of the above premises the ASSIGNOR hereby transfers, conveys, and assigns unto J.L.T. AGRO, INC., the above described parcel of land[s] with a fair market value of EIGHTY-FOUR THOUSAND PESOS (P84,000.00), Philippine Currency, and which transfer, conveyance and assignment shall become absolute upon signing. 54 (Emphasis supplied) The amount of P84,000.00 adverted to in the dispositive portion of the instrument does not represent the consideration for the assignment made by Don Julian. Rather, it is a mere statement of the fair market value of all the nineteen (19) properties enumerated in the instrument, of which Lot No. 63 is just one, that were transferred by Don Julian in favor of petitioner. Consequently, the testimony 55 of petitioner's accountant that the assignment is supported by consideration cannot prevail over the clear provision to the contrary in the Supplemental Deed. The Court of Appeals, on the other hand, apparently considered the 1948 mortgage which is annotated on the back of the TCT No. T-375 as the consideration for the assignment. 56 However, the said annotation 57 shows that the mortgage was actually executed in favor of Rehabilitation Finance Corporation, not of petitioner. 58 Clearly, said mortgage, executed as it was in favor of the Rehabilitation Finance Corporation and there being no showing that petitioner itself paid off the mortgage obligation, could not have been the consideration for the assignment to petitioner. Article 1318 of the New Civil Code enumerates the requisites of a valid contract, namely: (1) consent of the contracting parties; (2) object certain which is the subject matter of the contract; and (3) Cause of the obligation which is established.

Art. 749.In order that the donation of the immovable may be valid, it must be made in a public document, specifying therein the property donated and the value of the charges which the donee must satisfy. The acceptance may be made in the same deed of donation or in a separate public document, but it shall not take effect unless it is done during the lifetime of the donor. If the acceptance is made in a separate instrument, the donor shall be notified thereof in an authentic form, and this step shall be noted in both instruments. AcHCED In Sumipat, et al v. Banga, et al., 61 this Court declared that title to immovable property does not pass from the donor to the donee by virtue of a deed of donation until and unless it has been accepted in a public instrument and the donor duly notified thereof. The acceptance may be made in the very same instrument of donation. If the acceptance does not appear in the same document, it must be made in another. Where the deed of donation fails to show the acceptance, or where the formal notice of the acceptance, made in a separate instrument, is either not given to the donor or else not noted in the deed of donation and in the separate acceptance, the donation is null and void. In the case at bar, although the Supplemental Deed appears in a public document, 62 the absence of acceptance by the donee in the same deed or even in a separate document is a glaring violation of the requirement. One final note. From the substantive and procedural standpoints, the cardinal objectives to write finis to a protracted litigation and avoid multiplicity of suits are worth pursuing at all times. 63 Thus, this Court has ruled that appellate courts have ample authority to rule on specific matters not assigned as errors or otherwise not raised in an appeal, if these are indispensable or necessary to the just resolution of the pleaded issues. 64 Specifically, matters not assigned as errors on appeal but consideration of which are necessary in arriving at a just decision and complete resolution of the case, or to serve the interest of justice or to avoid dispensing piecemeal justice. 65 In the instant case, the correct characterization of the Supplemental Deed, i.e., whether it is valid or void, is unmistakably determinative of the underlying controversy. In other words, the issue of validity or nullity of the instrument which is at the core of the controversy is interwoven with the issues adopted by the parties and the rulings of the trial court and the appellate court. 66 Thus, this Court is also resolute in striking down the alleged deed in this case, especially as it appears on its face to be a blatant nullity.

WHEREFORE, foregoing premises considered, the Decision dated 30 September 1999 of the Court of Appeals is hereby AFFIRMED. Costs against petitioner J.L.T. Agro, Inc. SO ORDERED. Puno, Austria-Martinez, Callejo, Sr. and Chico-Nazario, JJ., concur. [G.R. No. L-23445. June 23, 1966.] REMEDIOS NUGUID, petitioner-appellant, vs. FELIX NUGUID and PAZ SALONGA NUGUID, oppositors-appellees. Custodio O. Partade for petitioner-appellant. Beltran, Beltran & Beltran for oppositors-appellees. SYLLABUS 1.PROBATE OF WILL; COURT'S AREA OF INQUIRY LIMITED TO EXTRINSIC VALIDITY OF WILL; WHEN COURT MAY RULE ON INTRINSIC VALIDITY; CASE AT BAR. In a proceeding for the probate of a will, the court's area of inquiry is limited to an examination of, and resolution on, the extrinsic validity of the will; the due execution thereof; the testatrix's testamentary capacity; and the compliance with the requisites or solemnities prescribed the by law. In the case at bar, however, a peculiar situation exists. The parties shunted aside the question of whether or not the will should be allowed probate. They questioned the intrinsic validity of the will. Normally, this comes only after the court has declared that the will has been duly authenticated. But if the case were to be remanded for probate of the will, nothing will be gained. In the event of probate or if the court rejects the will, probability exists that the case will come up once again before this Court on the same issue of the intrinsic validity or nullity of the will. The result would be waste of time, effort, expense, plus added anxiety. These practical considerations induce this Court to meet head-on the issue of the nullity of the provisions of the will in question, there being a justiciable controversy awaiting solution. 2.SUCCESSION; PRETERITION; OMISSION OF NAMES OF FORCED HEIRS. The deceased left no descendants, legitimate or illegitimate. But she left forced heirs in the direct ascending time her parents. Her will does not explicitly disinherit them but simply omits their names altogether. Said will rather than he labelled ineffective disinheritance is clearly one in which the said forced heirs suffer from preterition.

Thus, Article 1352 declares that contracts without cause, or with unlawful cause produce no effect whatsoever. Those contracts lack an essential element and they are not only voidable but void or inexistent pursuant to Article 1409, paragraph (2). 59 The absence of the usual recital of consideration in a transaction which normally should be supported by a consideration such as the assignment made by Don Julian of all nineteen (19) lots he still had at the time, coupled with the fact that the assignee is a corporation of which Don Julian himself was also the President and Director, forecloses the application of the presumption of existence of consideration established by law. 60 Neither could the Supplemental Deed validly operate as a donation. Article 749 of the New Civil Code is clear on the point, thus:

3.ID.; ID.; PRETERITION DISTINGUISHED FROM DISINHERITANCE. Preterition "consists in the omission in the testator's will of the forced heirs or anyone of them, either because the are not mentioned therein, or, though mentioned, they are neither instituted as heirs nor are expressly disinherited." (Neri, et al. vs. Akutin, at al., 72 Phil., p. 325.) Disinheritance; in turn, "is a testamentary disposition depriving any compulsory heir of heir share in the legitime for a cause authorized by law." (Justice J.B.L. Reyes and R.C. Puno, "An Outline of Philippine Civil Law," 1956 ed., Vol. III, p. 8, citing cases.) Disinheritance is always "voluntary"; preterition upon the other hand, is presumed to be "involuntary." (Sanchez Roman, Estudios de Derecho Civil, 2nd edition, Volume 20, p. 1131.) 4.ID.; ID.; ID.; EFFECTS FLOWING FROM PRETERITION AND DISINHERITANCE. The effects flowing from preterition are totally different from those of disinheritance. Preterition under Article 854 of the Civil Code "shall annul the institution of heir. "This annulment is in toto, unless in the will there are, in addition, testamentary dispositions in the form of devises or legacies. In ineffective disinheritance under Article 918 of the same Code, such disinheritance shall also "annul the institution of heirs," but only "insofar as it may prejudice the person disinherited," which last phrase was omitted in the case of preterition. (III Tolentino, Civil Code of the Philippines, 1961. Edition, p. 172.) Better stated yet, in disinheritance the nullity is limited to that portion of the estate of which the disinherited heirs have been illegally deprived. 6.ID.; ID.; WHEN LEGACIES AND DEVISES MERIT CONSIDERATION. Legacies and devises merit consideration only when they are so expressly given as such in a will. Nothing in Article 854 of the Civil Code suggests that the mere institution of a universal heir in a will void because of preterition would give the heir so instituted a share in the inheritance. As to him, the will is inexistent. There must he, in addition to such institution, a testamentary disposition granting him bequests or legacies apart and separate from the nullified institution of heir. 7.ID.; ID.; ID.; INSTITUTION OF HEIRS CANNOT BE CONSIDERED LEGACY. Petitioner insists that the compulsory heirs ineffectively disinherited are entitled to receive their legitimes, but that the institution of heir "is not invalidated," although the inheritance of the heir so instituted is reduced to the extent of said legitimes. This theory, if adopted, will result in a complete abrogation of Articles 814 and 851 of the Civil Code. If every case of institution of heirs may be made to fall into the concept of legacies and betterments reducing the bequest accordingly, then the provisions of Articles 814 and 851 regarding total or partial nullity of the institution, would be absolutely meaningless and will never have any application at all. And the remaining provisions contained in said articles concerning the reduction of inofficious legacies or betterments would be a surplusage because they would be absorbed by Article 817 of the same code.

DECISION SANCHEZ, J p: Rosario Nuguid, a resident of Quezon City, died on December 30, 1962, single, without descendants, legitimate or illegitimate. Surviving her were her legitimate parents, Felix Nuguid and Paz Salonga Nuguid, and 6 brothers and sisters namely: Alfredo, Federico, Remedios, Conrado, Lourdes and Alberto, all surnamed Nuguid. On May 18, 1963, petitioner Remedios Nuguid filed in the Court of First Instance of Rizal a holographic will allegedly executed by Rosario Nuguid on November 17, 1951, some 11 years before her demise. Petitioner prayed that said will be admitted to probate and that letters of administration with the will annexed be issued to her. On June 25, 1963, Felix Nuguid and Paz Salonga Nuguid, concededly the legitimate father and mother of the deceased Rosario Nuguid, entered their opposition to the probate of her will. Ground therefor, inter alia, is that by the institution of petitioner Remedios Nuguid as universal heir of the deceased, oppositors who are compulsory heirs of the deceased in the direct ascending line were illegally preterited and that in consequence the institution is void. On August 29, 1963, before a hearing was had on the petition for probate and objection thereto, oppositors moved to dismiss on the ground of absolute preterition. On September 6, 1963, petitioner registered her opposition to the motion to dismiss. The court's order of November 8, 1963, held that "the will in question is a complete nullity and will perforce create intestacy of the estate of the deceased Rosario Nuguid" and dismissed the petition without costs. A motion to reconsider having been thwarted below, petitioner came to this Court on appeal. 1.Right at the outset, a procedural aspect has engaged our attention. The case is for the probate of a will. The court's area of inquiry is limited to an examination of, and resolution on, the extrinsic validity of the will. The due execution thereof, the testatrix's testamentary capacity, and the compliance with the requisites or solemnities by law prescribed, are the questions solely to be represented, and to be acted upon, by the court. Said court at this stage of the proceedings is not called upon to rule on the

intrinsic validity or efficacy of the provisions of the will, the legality of any devise or legacy therein. 1 A peculiar situation is here thrust upon us. The parties shunted aside the question of whether or not the will should he allowed probate. For them, the meat of the case is the intrinsic validity of the will. Normally, this comes only after the court has declared that the will been duly authenticated. 2 But petitioner and oppositors, in the court below and here on appeal, travelled on the issue of law, to wit: Is the will intrinsically a nullity? We pause to reflect. If the case were to be remanded for probate of the will, nothing will be gained. On the contrary, this litigation will be protracted. And for aught that appears in the record, in the event of probate or if the court rejects the will, probability exists that the case will come once again before us on the same issue of the intrinsic validity or nullity of the will. Result: waste of time, effort, expense, plus added anxiety. These are the practical considerations that induce us to a belief that we might as well meet head-on the issue of the nullity of the provisions of the will in question. 3 After all, there exists a justiciable controversy crying for solution. 2.Petitioner's sole assignment of error challenges the correctness of the conclusion below that the will is a complete nullity. This exacts from us a study of the disputed will and the applicable statute. Reproduced hereunder is the will: "Nov. 17, 1951. I, ROSARIO NUGUID, being of sound and disposing mind and memory, having amassed a certain amount of property, do hereby give, devise, and bequeath all of the property which I may have when I die to my beloved sister Remedios Nuguid, age 34, residing with me at 38-B Iriga, Q.C. In witness whereof, I have signed my name this seventh day of November, nineteen hundred and fifty-one. (Sgd.) Illegible T/ ROSARIO NUGUID" The statute we are called upon to apply is Article 854 of the Civil Code which, in part, provides: "Art. 854.The preterition or omission of one, some, or all of the compulsory heirs in the direct line, whether living at the time of the execution of the will or born after the death of the testator. shall annul the institution of heir; the devises and legacies shall be valid insofar as they are not inofficious . . ."

Except for inconsequential variation in terms, the foregoing is a reproduction of Article 814 of the Civil Code of Spain of 1889, which is similarly herein copied, thus "Art. 814.The preterition of one or all of the forced heirs in the direct line, whether living at the time of the execution of the will or born after the death of the testator, shall void the institution of heir; but the legacies and betterments 4 shall be valid, in so far as they are not inofficious. . ."

A comprehensive understanding of the term preterition employed in the law becomes a necessity. On this point Manresa comments: "La pretericion consiste en omitir al heredero en el testamento. O no se le nombra siquiera, o aun nombrandole como padre, hijo, etc., no se leinstituye heredero ni se le deshereda expresamente, ni se le asigna parte alguna de los bienes, resultando privado de un modo tacito de su derecho a legitima. Para que exista pretericion, con arreglo al articulo 814, basta que en el testamento omita el testador a uno cualquiera de aquelloa a quienes por su muerte corresponda la herencia forzosa. Se necesita, pues, a) Que la omision se refiera a un heredero forzoso.) b) Que la omision sea completa; que el heredero forzoso nada reciba en el testamento. 5 It may now appear trite but nonetheless helpful in giving us a clear perspective of the problem before us, to have on hand a clear-cut definition of the word annul: "To 'annul' means to abrogate, to make void;. . .In re Morrow's Estate, 54 A. 342, 343, 204 Pa. 484." 6 "The word 'annul' as used in the statute requiring court to annul alimony provisions of divorce decree upon wife's remarriage means to reduce to nothing; to annihilate; obliterate; blot out; to make void or of no effect; to nullify; to abolish. N.J.S.A. 2:50 38 (now N.J.S.2A:34-25). Madden vs. Madden, 40 A.2d 611, 614, 136 N.J. Eq. 132." 7 "ANNUL. To reduce to nothing; annihilate; obliterate; to make void or of no effect; to nullify; to abolish; to do away with. Ex parte Mitchell, 123 W. Va. 283, S.E. 2d. 771, 774." 8

And now, back to the facts and the law. The deceased Rosario Nuguid left no descendants, legitimate or illegitimate. But she left forced heirs in the direct ascending line her parents, now oppositors Felix Nuguid and Paz Salonga Nuguid. And, the will completely omits both of them: They thus received nothing by the testament; tacitly, they were deprived of their legitime; neither were they expressly disinherited. This is a clear case of preterition. Such preterition in the words of Manresa "anular siempre la institucin de heredero, dando carcter absoluto a este ordenamiento," referring to the mandate of Article 814, now 854 of the Civil Code. 9 The one- sentence will here institutes petitioner as the sole, universal heir nothing more. No specific legacies or bequests are therein provided for. It is in this posture that we say that the nullity is complete. Perforce, Rosario Nuguid died intestate. Says Manresa: "En cuanto a la institucion de heredero, se anula. Lo que se anula deja de existir, en todo o en parte? No se aade limitacion alguna, como en el articulo 851, en el que se expresa que se anulara la institucion de heredero en cuanto perjudique a la legitima del desheredado. Debe, pues, entenderse que la anulacion es completa o total, y que este articulo como especial en el caso que le motiva, rige con preferencia al 817." 10 The same view is expressed by Snches Roman: "La consequencia de la anulacion o nulidad de la institucion de heredero por pretericion de uno, varios o todos los forzosos en linea recta, es la apertura de la sucesion intestada, total o parcial. Sera total, cuando el testador que comete la pretericion, hubiere dispuesto de todos los bienes por titulo universal de herencia en favor de los herederos instituidos, cuya institucion se anula, porque asi lo exige la generalidad del precepto legal del art. 814, al determinar, como efecto de la pretericion el de que 'anulara la institucion de heredero'. . ." 11 Really, as we analyze the word annul employed in the statute, there is no escaping the conclusion that the universal institution of petitioner to the entire inheritance results in totally abrogating the will. Because, the nullification of such institution of universal heir without any other testamentary disposition in the will amounts to a declaration that nothing at all was written. Carefully worded and in clear terms, Article 854 offers no leeway for inferential interpretation. Giving it an expansive meaning will tear up by the roots the fabric of the statute. On this point, Snchez Romn cites the "Memoria annual del Tribunal Supremo, correspondiente a 1908," which in our opinion expresses the rule of interpretation, viz: " . . . El art. 814, que preceptua en tales casos de pretericion la nulidad de la institucion de heredero no consiente interpretacion alguno favorable a lo persona instituida en el sentido antes expuesto, aun cuando parezca, y en

algun caso pudiera ser, mas o menos equitativa, porque una nulidad no significa en Derecho sino la suposicion de que el hecho o el acto no se ha realizado debiendo; por lo tanto, procederse sobre tal base o supuesto, y consiguientemente, en un testamento donde falte la institucion, es obligado llamar a los herederos forzosos en todo caso, como habria que llamar a los de otra clase, cuando el testador no hubiese distribuido todos sus bienes en legados, siendo tanto mas obligada esta consecuencia legal cuanto que, en materia de testamentos, sabido es, segun tiene declarado la jurisprudencia, con repeticion, que no basta que seo conocida la voluntad de quien testa si esta voluntad no aparece en la forma y en las condiciones que la ley ha exigido para que sea valido y eficaz, por lo que constituiria una interpretacion arbitraria, dentro del derecho positivo, reputar como legatario a un heredero cuya institucion fuese anulada con pretexto de que esto se acomodaba mejor a la voluntad del testador, pues aun cuando asi fuese, sera esto razon para modificar la ley, pero que no outoriza a una interpretacion contraria a sus terminos y a los principios que informan la testamentifaccion, pues no porque parezca mejor una cosa en el terreno del Derecho constituyente, hay razon para convertir este juicio en regla de interpretacin, desvirtuando y anulando por este procedimiento lo que el legislador quiere establecer." 12 3.We should not be led astray by the statement in Article 854 that, annulment notwithstanding, "the devises and legacies shall be valid insofar as they are not inofficious." Legacies and devises merit consideration only when they are so expressly given as such in a will. Nothing in Article 854 suggests that the mere institution of a universal heir in a will void because of preterition would give the heir so instituted a share in the inheritance. As to him, the will is inexistent. There must be, in addition to such institution, a testamentary disposition granting him bequests or legacies apart and separate from the nullified institution of heir. Snchez Romn, speaking of the two component parts of Article 814, now 854, states that preterition annuls the institution of the heir "totalmente por la pretericin"; but added (in reference to legacies and bequests), "pero subsistiendo, . . . todas aquellas otras disposiciones que no se refieren a la institucin de heredero . . . " 13 As Manresa puts it, annulment throws open to intestate succession the entire inheritance including la porcin libre (que) no hubiese dispuesto en virtud de legado, mejora o donacin." 14 As aforesaid, there is no other provision in the will before us except the institution of petitioner as universal heir. That institution, by itself, is null and void. And, intestate succession ensues. 4.Petitioner's mainstay is that the present is "a case of ineffective disinheritance rather than one of preterition." 15 From this, petitioner draws the conclusion that Article 854 "does not apply to the case at bar." This argument fails to appreciate the distinction between preterition and disinheritance.

Preterition "consists in the omission in the testator's will of the forced heirs or anyone of them, either because they are not mentioned therein, or, though mentioned, they are neither instituted as heirs nor are expressly disinherited." 16 Disinheritance, in turn, "is a testamentary disposition depriving any compulsory heir of his share in the legitime for a cause authorized by law." 17 In Manresa's own words: "La privacin expresa de la legitima constituye le desheredacin. La privacin tcita de la misma se denomina pretericin. 18 Snchez Romn emphasizes the distinction by stating that disinheritance "es siempre voluntaria"; preterition, upon the other hand, is presumed to be "involuntaria." 19 Express as disinheritance should be, the same must be supported by a legal cause specified in the will itself. 20 The will here does not explicitly disinherit the testatrix's parents, the forced heirs. It simply omits their names altogether. Said will rather than be labeled ineffective disinheritance is clearly one in which the said forced heirs suffer from preterition. On top of this the fact that the effects flowing from preterition are totally different from those of disinheritance. Preterition under Article 854 of the Civil Code, we repeat, "shall annul the institution of heir." This annulment is in toto, unless in the will there are, in addition, testamentary dispositions in the form of devises or legacies. In ineffective disinheritance under Article 918 of the same Code, such disinheritance shall also "annul the institution of heirs," but only "insofar as it may prejudice the person disinherited," which last phrase was omitted in the case of preterition. 21 Better stated yet, in disinheritance the nullity is limited to that portion of the estate of which the disinherited heirs have been illegally deprived. Manresa's expressive language, in commenting on the rights of the preterited heirs in the case of preterition on the one hand and legal disinheritance on the other, runs thus: "Preteridos, adquieren el derecho a todo; deshereda dos, solo les corresponde un tercio o dos tercios, 22 segn el caso." 23 5.Petitioner insists that the compulsory heirs ineffectively disinherited are entitled to receive their legitimes, but that the institution of heir "is not invalidated," although the inheritance of the heir so instituted is reduced to the extent of said legitimes. 24

articles 814 and 851 of the Civil Code. If every case of institution of heirs may be made to fall into the concept of legacies and betterments reducing the bequest accordingly, then the provisions of articles 814 and 851 regarding total or partial nullity of the institution, would be absolutely meaningless and will]l never have application at all. And the remaining provisions contained in said articles concerning the reduction of inofficious legacies or betterments would be a surplusage because they would be absorbed by article 817. Thus, instead of construing, we would be destroying integral provisions of the Civil Code. The destructive effect of the theory thus advanced is due mainly to a failure to distinguish institution of heirs from legacies and betterments, and a general from a special provision. With reference to Article 814, which is the only provision material to the disposition of this case, it must be observed that the institution of heirs is therein dealt with a thing separate and distinct from legacies or betterment. And they are separate and distinct not only because they are distinctly and separately treated in said article but because they are in themselves different. Institution of heirs is a bequest by universal title of property that is undetermined. Legacy refers to specific property bequeathed by a particular or special title. . . But again an institution of heirs cannot be taken as a legacy," 25 The disputed order, we observe, declares the will in question "a complete nullity". Article 854 of the Civil Code in turn merely nullifies "the institution of heir." Considering, however, that the will before us solely provides for the institution of petitioner as universal heir, and nothing more, the result is the same. The entire will is null. Upon the view we take of this case, the order of November 8, 1963 under review is hereby affirmed. No costs allowed. So ordered. Concepcion, C.J., J.B.L. Reyes, Barrera, Dizon, Regala, Makalintal, J. P. Bengzon and Zaldivar, JJ., concur. Footnotes [G.R. No. 31703. February 13, 1930.] CARMEN G. DE PEREZ, trustee of the estate of Ana Maria Alcantara, plaintiff-appellee, vs. MARIANO GARCHITORENA, and JOSE CASIMIRO, Sheriff of the Court of First Instance of Manila, defendants-appellants. L.D. Lockwood and Jose M. Casal, for appellants. Eduardo Gutierrez Repide and Leoncio B. Monzon, for appellee.

SYLLABUS 1.WILLS; INSTITUTION OF HEIRS; FIDEICOMMISSARY HEIR. The institution of heirs made in the will in question is in the nature of a fideicommissum: there is an heiress primarily called to enjoy the estate; an obligation clearly imposed upon her to preserve and transmit the whole of the estate to certain third persons; and there are secondary heirs. 2.ID.; ID.; ID.; DISTINCTION BETWEEN FIDEICOMMISSUM AND TRUST. The heir instituted, or fideicommissioner, as article 783 of the Civil Code has it, is entitled to the enjoyment of the estate. The fideicommissum thus arising from a fideicommissary substitution, which is of Roman origin, is not exactly equivalent to, and should not be confused with, the English "trust." DECISION ROMUALDEZ, J p: The amount of P21,428.58 is on deposit in the plaintiff's name with the association known as La Urbana in Manila, as the final payment of the liquidated credit of Ana Maria Alcantara, deceased, whose heiress is said plaintiff, against Andres Garchitorena, also deceased, represented by his son, the defendant Mariano Garchitorena. And as said Mariano Garchitorena held a judgment for P7,872.23 against Joaquin Perez Alcantara, husband of the plaintiff, Carmen G. de Perez, the sheriff pursuant to the writ of execution issued in said judgment, levied an attachment on said amount deposited with La Urbana. The plaintiff, alleging that said deposit belongs to the fideicommissary heirs of the decedent Ana Maria Alcantara, secured a preliminary injunction restraining the execution of said judgment on the sum so attached. The defendants contend that the plaintiff is the decedent's universal heiress, and pray for the dissolution of the injunction. The court below held that said La Urbana deposit belongs to the plaintiff's children as fideicommissary heirs of Ana Maria Alcantara, and granted a final writ of injunction. The defendants insist in their contentions, and, in their appeal from the decision of the trial court, assign the following errors: "1.The lower court erred in holding that a trust was created by the will of Doa Ana Maria Alcantara.

This is best answered by a reference to the opinion of Mr. Justice Moran in the Neri case heretofore cited, viz: "But the theory is advanced that the bequest made by universal title in favor of the children by the second marriage should be treated as legado and mejora and, accordingly, it must not be entirely annulled but merely reduced. This theory, if adopted, will result in a complete abrogation of

"2.The lower court erred in concluding and declaring that the amount of P21,428.58 deposited with La Urbana is the property of the children of the plaintiff as 'herederos fidei-comisarios.' "3.The lower court erred in making the injunction permanent and condemning defendant to pay the costs." The question here raised is confined to the scope and meaning of the institution of heirs made in the will of the late Ana Maria Alcantara already admitted to probate, and whose legal force and effect is not in dispute. The clauses of said will relevant to the points in dispute, between the parties are the ninth, tenth, and eleventh, quoted below: "Ninth. Being single and without any forced heir, to show my gratitude to my niece-in-law, Carmen Garchitorena, of age, married to my nephew, Joaquin Perez Alcantara, and living in this same house with me, I institute her as my sole and universal heiress to the remainder of my estate after the payment of my debts and legacies, so that upon my death and after probate of this will, and after the report of the committee on claims and appraisal has been rendered and approved, she will receive from my executrix the properties composing my hereditary estate, that she may enjoy them with God's blessing and my own. "Tenth. Should my heiress Carmen Garchitorena die, I order that my whole estate shall pass unimpaired to her surviving children; and should any of these die, his share shall serve to increase the portions of his surviving brothers (and sisters) by accretion, in such wise that my estate shall never pass out of the hands of my heiress or her children in so far as it is legally possible. "Eleventh. Should my aforesaid heiress, Carmen Garchitorena, die after me while her children are still in their minority, I order that my estate be administered by my executrix, Mrs. Josefa Laplana, and in her default, by Attorney Ramon Salinas and in his default, by his son Ramon Salinas; but the direction herein given must not be considered as an indication of lack of confidence in my nephew Joaquin Perez Alcantara, whom I relieve front he duties of administering my estate, because I recognize that his character is not adapted to management and administration." The appellants contend that in these clauses the testatrix has ordered a simple substitution, while the appellee contends that it is a fideicommissary substitution. This will certainly provides for a substitution of heirs, and of the three cases that might give rise to a simple substitution (art. 774, Civil Code), only the

death of the instituted heiress before the testatrix would in the instant case give place to such substitution, inasmuch as nothing is said of the waiver of inheritance, or incapacity to accept it. As a matter of fact, however, clause XI provides for the administration of the estate in case the heiress instituted should die after the testatrix and while the substitute heirs are still under age. And it is evident that, considering the nature of simple substitution by the heir's death before the testator, and the fact by clause XI in connection with clause X, the substitution is ordered where the heiress instituted dies after the testatrix, this cannot be a case of simple substitution. The existence of a substitution in the will is not and cannot be denied, and since it cannot be a simple substitution in the light of the considerations above stated, let us now see whether the instant case is a fideicommissary substitution. In clause IX, the testatrix institutes the plaintiff herein her sole and universal heiress, and provides that upon her death (the testatrix's) and after probate of the will and approval of the report of the committee on claims and appraisal, said heiress shall receive and enjoy the whole hereditary estate. Although this clause provides nothing explicit about substitution, it does not contain anything in conflict with the idea of fideicommissary substitution. The fact that the plaintiff was instituted the sole and universal heiress does not prevent her children from receiving, upon her death and in conformity with the express desire of the testatrix, the latter's hereditary estate, as provided in the following (above quoted) clauses, which cannot be disregarded if we are to give a correct interpretation of the will. The word sole does not necessarily exclude the idea of substitute heirs; and taking these three clauses together, such word means that the plaintiff if the sole heiress instituted in the first instance. The disposition contained in clause IX, that said heiress shall receive and enjoy the estate, is not incompatible with a fideicommissary substitution (it certainly is incompatible with the idea of simple substitution, where the heiress instituted does not receive the inheritance). In fact the enjoyment of the inheritance is in conformity with the idea of fideicommissary substitution, by virtue of which the heir instituted receives the inheritance and enjoys it, although at the same time he preserves it in order to pass it on to the second heir. On this point the illustrious Manresa, in his Civil Code (Vol. 6, pp. 142 and 143, 5th ed.), says: "Or, what amounts to the same thing, the fideicommissary substitution, as held in the Resolutions of June 25, 1895, February 10, 1899, and July 19, 1909, requires three things: "1.A first heir called primarily to the enjoyment of the estate.

"2.An obligation clearly imposed upon him to preserve and transmit to a third person the whole or a part of the estate. "3.A second heir. "To these requisites, the decision of November 18, 1918 adds another, namely that the fideicommissarius be entitled to the estate from the time the testator dies, since he is to inherit from the latter and not from the fiduciary." (Emphasis ours.) It appears from this quotation that the heir instituted or the fiduciary to enjoy the inheritance. And it might here be observed, as a timely remark, that the fideicommissum arising from a fideicommissary substitution, which is of Roman origin, is not exactly equivalent to, nor may it be confused with, the English "trust." It should also be noted that said clause IX vests in the heiress only the right to enjoy but not the right to dispose of the estate. It says, she may enjoy it, but does not say she may dispose of it. This is an indication of the usufruct inherent in fideicommissary substitution. Clause X expressly provides for the substitution. It is true that it does not say whether the death of the heiress herein referred to is before or after that of the testatrix; but from the whole context it appears that in making the provisions contained in this clause X, the testatrix had in mind a fideicommissary substitution, since she limits the transmission of her estate to the children of the heiress by this provision, "in such wise that my estate shall never pass out of the hands of my heiress or her children in so far as it is legally possible." Here it clearly appears that the testatrix tried to avoid the possibility that the substitution might later be legally declared null for transcending the limits fixed by article 781 of the Civil Code which prescribes that fideicommissary substitutions shall be valid "provided they do not go beyond the second degree." Another clear and outstanding indication of fideicommissary substitution in clause X is the provision that the whole estate shall pass unimpaired to the heiress's children, that is to say the heiress is required to preserve the whole estate, without diminution, in order to pass it on in due time to the fideicommissary heirs. This provision complies with another of the requisites of fideicommissary substitution according to our quotation from Manresa inserted above.

Lastly, clause XI clearly indicates the idea of fideicommissary substitution, when a provision is therein made in the event the heiress should die after

the testatrix. That is, said clause anticipates the case-where the instituted heiress should die after the testatrix and after receiving and enjoying the inheritance. The foregoing leads us to the conclusion that all the requisites of a fideicommissary substitution, according to the quotation from Manresa above inserted, are present in the case of substitution now under consideration, to wit: 1.A first heir primarily called to the enjoyment of the estate. In this case the plaintiff was instituted an heiress, called to the enjoyment of the estate, according to clause IX of the will. 2.An obligation clearly imposed upon the heir to preserve and transmit to a third person the whole or a part of the estate. Such an obligation is imposed in clause X which provides that the "whole estate shall pass unimpaired to her (heiress's) surviving children;" thus, instead of leaving the heiress at liberty to dispose of the estate by will, or of leaving the law to take its course in case she dies intestate, said clause not only disposes of the estate in favor of the heiress instituted, but also provides for the disposition thereof in case she could die after the testatrix. 3.A second heir. Such are the children of the heiress instituted, who are referred to as such second heirs both in clause X and in clause XI. Finally, the requisite added by the decision of November 18, 1918, to wit, that the fideicommissarius or second heir should be entitled to the estate from the time of the testator's death, which in the instant case, is, rather than a requisite, a necessary consequence derived from the nature of the fideicommissary substitution, in which the second heir does not inherit from the heir first instituted, but from the testator. By virtue of this consequence, the inheritance in question does not belong to the heiress instituted, the plaintiff herein, as her absolute property, but to her children, from the moment of the death of the testatrix, Ana Maria Alcantara. Therefore, said inheritance, of which the amount referred to at the beginning, which is on deposit with the association known as La Urbana in the plaintiff's name, is a part, does not belong to her nor can it be subject to the execution of the judgment against Joaquin Perez, who is not one of the fideicommissary heirs. The judgment appealed from is affirmed, with costs against the appellant, Mariano Garchitorena. So ordered.

Johnson, Malcolm, Villamor, Ostrand, Johns and Villa-Real, JJ., concur. Street, J., I reserve my vote.

respondent court was likewise directed to expedite proceedings and to close the same upon the payment of the corresponding taxes due within three months from notice. SYLLABUS 1.JUDGMENT MOTION FOR RECONSIDERATION OR MODIFICATION THEREOF; DENIAL OF THE SAME WHERE NO NEW MATTERS ARE PRESENTED SUFFICIENT TO CHANGE THE PREVIOUS DECISION OF THE COURT. Where the Court, upon consideration of the motions filed in regard to a previously decided case, had not found any new matter therein sufficiently persuasive to induce a modification of its judgment, the previous decision is reaffirmed and the motions for reconsideration and for modification of its judgment are denied. TEEHANKEE, J., concurring: 1.JUDGMENTS; MOTION FOR RECONSIDERATION OR MODIFICATION THEREOF; DENIAL OF THE SAME WHERE NO NEW MATTERS ARE PRESENTED SUFFICIENT TO CHANGE THE PREVIOUS DECISION OF THE COURT; DIRECTIVE TO RESPONDENT COURT TO EXPEDITE AND TERMINATE PROCEEDINGS WITHIN THREE MONTHS SUPERSEDES PRO TANTO THE DISPOSITION IN THE ORIGINAL DECISION. The resolution's directive to respondent court to expedite and terminate the protracted proceedings within three months supersedes pro tanto the disposition in the original decision of March 29, 1974 for the segregation of the minimum one-fourth of the community properties adjudged to be the estate of Linnie Jane Hodges for delivery and to exclusive administration by respondent as her estate's administrator, with the other one-fourth to remain under the joint administration of said respondent and petitioner and Charles Newton Hodges' one-half share to be administered by petitioner exclusively as his estate's administrator, since such physical segregation and separate administration could not possibly be accomplished before the more pressing and indispensable matters of submittal of the two estates' inventories and determination by respondent court within the limited three-month period given in the Court's resolution. RESOLUTION BARREDO, J p:

[G.R. Nos. L-27860 & L-27896. September 30, 1975.] PHILIPPINE COMMERCIAL AND INDUSTRIAL BANK, Administrator of the Testate Estate of Charles Newton Hodges (Sp. Proc. No. 1672 of the Court of First Instance of Iloilo), petitioner, vs. THE HONORABLE VENICIO ESCOLIN, presiding Judge of the Court of First Instance of Iloilo, Branch II, and AVELINA A. MAGNO, respondents. [G.R. Nos. L-27936 & L-27937. September 30, 1975.] TESTATE ESTATE OF THE LATE LINNIE JANE HODGES (Sp. Proc. No. 1307). TESTATE ESTATE OF THE LATE CHARLES NEWTON HODGES (Sp. Proc. No. 1672) PHILIPPINE COMMERCIAL AND INDUSTRIAL BANK, administratorappellant, vs. LORENZO CARLES, JOSE PABLICO, ALFREDO CATEDRAL, SALVADOR GUZMAN, BELCESAR CAUSING, FLORENIA BARRIDO, PURIFICACION CORONADO, GRACIANO LUCERO, ARITEO THOMAS JAMIR, MELQUIADES BATISANAN, PEPITO IYULORES, ESPERIDION PARTISALA, WINIFREDO ESPADA, ROSARIO ALINGASA, ADELFA PREMAYLON, SANTIAGO PACAONSIS, and AVELINA MAGNO, the last as Administratrix in Sp. Proc. No. 1307, appellees, WESTERN INSTITUTE OF TECHNOLOGY, INC., movant-appellee. SYNOPSIS In regard to a decision decided by the Supreme Court on March 29, 1974 the following pleadings were filed before the Court: a motion for reconsideration of the decision of the petitioner-appellant, a motion for modification of the judgment by the heirs of the testator, and a motion for the assessment of damages suffered by reason of the lifting of the preliminary injunction filed by respondent-appellee Magno. The Supreme Court, not finding any new matter in the said motions sufficient to induce a modification of its judgment, reaffirmed its previous opinion, denied the first two motion, and authorized the trial court to make the assessment to the damages prayed for. Because of the length of time that the subject estates have been pending judicial settlement, the parties were enjoined to exert all efforts to have the inventories of said estates finalized and to extrajudicially settle their remaining differences. The

Motion for reconsideration followed by a supplemental motion for reconsideration filed by petitioner-appellant Philippine Commercial and Industrial Bank and motion for modification filed by Joe Hodges and "the other heirs of Charles Newton Hodges" in regard to the decision of this Court of March 29, 1974.

Upon consideration of said motions, the Court has not found any new matter therein sufficiently persuasive to induce a modification of its judgment, for which reason, the Court, with its members reaffirming their previous opinions and vote resolved unanimously to DENY as it hereby DENIES the motions for reconsideration and modification above referred to. Anent the motion of respondent-appellee Avelina Magno 1 the assessment of the damages she claims she and the Estate Linnie Jane Hodges have suffered by reason of the preliminary injunction in this case which was lifted per resolution of 1 Court of September 8, 1972, the Court resolved to authorize trial court to make the assessment prayed for, subject to appeal, to this Court, if necessary. Considering the substantial value of the subject estates the length of time they have already been pending judicial settlement and for the reason that the payment of the corresponding taxes thereon are being unduly delayed, and because the properties of said estates have to be disposed favor of Filipinos before May 27, 1976, the Court enjoins the parties to exert all efforts to have the inventories of said states finalized without further delay, and if possible to extrajudicially settle their remaining differences to further complications, expenses and unnecessary loss time. The respondent court is directed to expedite processing by giving due priority thereto, requiring the parties to submit the inventories within thirty days from notice hereof, and to resolve the remaining issues as delineated in the Court's decision and to close the proceedings upon payment of the corresponding taxes within three months from notice hereof. Respondent judge is further directed to report to this Court from time to time the action taken by him hereon. Castro, Acting C.J., Ferrando, Muoz Palma, Aquino and Martin, JJ., concur. Makalintal, C.J, Esguerra and Concepcion, Jr., JJ., are on leave. Separate Opinions TEEHANKEE, J., concurring: I join in the resolution denying the motions f reconsideration for the reasons and considerations already indicated in my separate concurring and dissenting opinion of March 29, 1974. I specially welcome the resolution's directive to respondent court to expedite and terminate these long-drawn proceedings (for over 18 years now since Linnie Jane Hodges' death on May 23, 1957) and to "resolve the remaining issues as delineated in the Court's decision" and to cause the payment in the estate and inheritance taxes long overdue to the

Government "within three months from notice hereof." (See pp. 19-20, writer's separate opinion). [G.R. No. 22595. November 1, 1924.] I take it that the resolution's directive to respondent court to expedite and terminate the protracted proceedings three months supersedes pro tanto the disposition original decision of March 29, 1974 for the segregation minimum one-fourth of the community properties adjudged to be the estate of Linnie Jane Hodges for delivery to and exclusive administration by respondent as her estate's administrator, with the other one-fourth to remain under the joint administration of said respondent and petitioner and Charles Newton Hodges' one-half share to be administered by petitioner exclusively as his estate's administrator, since such physical segregation and separate administration could not possibly be accomplished before the more pressing and indispensable matters of submittal of the two estates' inventories and determination by respondent court of the remaining issues are attended to by respondent court within the limited three-month period given in the Court's resolution. (See pages 7-8, writer's separate opinion). The remaining issues to be resolved by respondent court revolve on the two questions of renvoi and renunciation. In his separate opinion (at page 7 et seq.), as concurred in by the Chief Justice and Justice Makasiar and Antonio, the writer urged that these two questions should be resolved "preferentially and expeditiously" by respondent court, since aside from the time problem, these proceedings have "apparently degenerated into running battle between the administrators of the two estates to the common prejudice of all the heirs." (at page 20). Since respondent court is now again presided by still another judge in a long line of judges who have come and gone with even terminating the proceedings, and since as is clear from the decision itself, no consensus on the best means of expediting the closing of the estates was reached by a majority of the Court (see pages 8 and 10, separate opinion), I trust that those who did not concur with the "suggested guidelines" in the writer's separate opinion (at pages 8-20) either because they were not ready to express their definite opinion thereon or because they felt that respondent court should be given a free hand, will understand that the writer now commends anew to the new judge presiding respondent court the careful reading the said suggested guidelines in the hope that they may lighten his work and help find the appropriate measures and solutions to "expedite the closing of the protracted estate proceedings below to the mutual satisfaction of the heirs and without need of a dissatisfied party elevating his resolution of this only remaining issue once more to this Court and dragging out indefinitely the proceedings." (page 10, separate opinion), and thus enable him to comply timely with the Court's directive to close out the estates within three months from notice. Makasiar and Antonio, JJ., concur. "Testate Estate of Joseph G. Brimo. JUAN MICIANO, administrator, petitioner-appellee, vs. ANDRE BRIMO, opponent-appellant. Ross, Lawrence & Selph for appellant. Camus & Delgado for appellee. SYLLABUS 1.FOREIGN LAWS; PRESUMPTION. In the absence of evidence to the contrary foreign laws on a particular subject are presumed to be the same as those of the Philippines. (Lim and Lim vs. Collector of Customs, 36 Phil., 472.) 2.POSTPONEMENT OF PROCEEDING; DISCRETION. It is discretionary on the part of the court to postpone or not to postpone a particular proceeding in a case, and when the person applying for it has already been given ample opportunity to present the evidence that he wishes to introduce, the court commits no abuse of discretion in denying it. 3.SUCCESSIONS; CONDITIONAL LEGACY; CONDITION CONTRARY TO LAW; NULLITY OF. If the condition imposed upon the legatee is that he respect the testator's order that his property be distributed in accordance with the laws of the Philippines and not in accordance with the laws of his nation, said condition is illegal, because, according to article 10 of the Civil Code, said laws govern his testamentary disposition, and, being illegal, shall be considered unwritten, thus making the institution unconditional. DECISION ROMUALDEZ, J p: The partition of the estate left by the deceased Joseph G. Brimo is in question in this case. The judicial administrator of this estate filed a scheme of partition. Andre Brimo, one of the brothers of the deceased, opposed it. The court, however, approved it. The errors which the oppositor-appellant assigns are: (1) The approval of said scheme of partition; (2) the denial of his participation in the

inheritance; (3) the denial of the motion for reconsideration of the order approving the partition; (4) the approval of the purchase made by Pietro Lanza of the deceased's business and the deed of transfer of said business; and (5) the declaration that the Turkish laws are impertinent to this cause, and the failure not to postpone the approval of the scheme of partition and the delivery of the deceased's business to Pietro Lanza until the receipt of the depositions requested in reference to the Turkish laws. The appellant's opposition is based on the fact that the partition in question puts into effect the provisions of Joseph G. Brimo's will which are not in accordance with the laws of his Turkish nationality, for which reason they are void as being in violation of article 10 of the Civil Code which, among other things, provides the following: "Nevertheless, legal and testamentary successions, in respect to the order of succession as well as to the amount of the successional rights and the intrinsic validity of their provisions, shall be regulated by the national law of the person whose succession is in question, whatever may be the nature of the property or the country in which it may be situated." But the fact is that the oppositor did not prove that said testamentary dispositions are not in accordance with the Turkish laws, inasmuch as he did not present any evidence showing what the Turkish laws are on the matter, and in the absence of evidence on such laws, they are presumed to be the same as those of the Philippines. (Lim and Lim vs. Collector of Customs, 36 Phil., 472.) It has not been proved in these proceedings what the Turkish laws are. He, himself, acknowledges it when he desires to be given an opportunity to present evidence on this point; so much so that he assigns as an error of the court in not having deferred the approval of the scheme of partition until the receipt of certain testimony requested regarding the Turkish laws on the matter. The refusal to give the oppositor another opportunity to prove such laws does not constitute an error. It is discretionary with the trial court, and, taking into consideration that the oppositor was granted ample opportunity to introduce competent evidence, we find no abuse of discretion on the part of the court in this particular. There is, therefore, no evidence in the record that the national law of the testator Joseph G. Brimo was violated in the testamentary dispositions in question which, not being contrary to our laws in force, must be complied with and executed. Therefore, the approval of the scheme of partition in this respect was not erroneous.

In regard to the first assignment of error which deals with the exclusion of the herein appellant as a legatee, inasmuch as he is one of the persons designated as such in the will, it must be taken into consideration that such exclusion is based on the last part of the second clause of the will, which says: "Second. I likewise desire to state that although, by law, I am a Turkish citizen, this citizenship having been conferred upon me by conquest and not by free choice, nor by nationality and, on the other hand, having resided for a considerable length of time in the Philippine Islands where I succeeded in acquiring all of the property that I now possess, it is my wish that the distribution of my property and everything in connection with this, my will, be made and disposed of in accordance with the laws in force in the Philippine Islands, requesting all of my relatives to respect this wish, otherwise, I annul and cancel beforehand whatever disposition found in this will favorable to the person or persons who fail to comply with this request." The institution of legatees in this will is conditional, and the condition is that the instituted legatees must respect the testator's will to distribute his property, not in accordance with the laws of his nationality, but in accordance with the laws of the Philippines. If this condition as it is expressed were legal and valid, any legatee who fails to comply with it, as the herein oppositor who, by his attitude in these proceedings has not respected the will of the testator, as expressed, is prevented from receiving his legacy. The fact is, however, that the said condition is void, being contrary to law, for article 792 of the Civil Code provides the following: "Impossible conditions and those contrary to law or good morals shall be considered as not imposed and shall not prejudice the heir or legatee in any manner whatsoever, even should the testator otherwise provide." And said condition is contrary to law because it expressly ignores the testator's national law when, according to article 10 of the Civil Code above quoted, such national law of the testator is the one to govern his testamentary dispositions. Said condition then, in the light of the legal provisions above cited, is considered unwritten, and the institution of legatees in said will is unconditional and consequently valid and effective even as to the herein oppositor.

It results from all this that the second clause of the will regarding the law which shall govern it, and to the condition imposed upon the legatees, is null and void, being contrary to law. All of the remaining clauses of said will with all their dispositions and requests are perfectly valid and effective it not appearing that said clauses are contrary to the testator's national laws. Therefore, the orders appealed from are modified and it is directed that the distribution of this estate be made in such a manner as to include the herein appellant Andre Brimo as one of the legatees, and the scheme of partition submitted by the judicial administrator is approved in all other respects, without any pronouncement as to costs. So ordered. Street, Malcolm, Avancea, Villamor, and Ostrand, JJ., concur. Johnson, J., dissents.

[G.R. No. 113725. June 29, 2000.] JOHNNY S. RABADILLA, 1 petitioner, vs. COURT OF APPEALS AND MARIA MARLENA 2 COSCOLLUELA Y BELLEZA VILLACARLOS, respondents. Romeo S. Perez for petitioner. Benjamin Santos & Ofelia Calcetas-Santos Law Offices collaborating counsel for respondent Marlene C. Villacarlos. Garcia Ines Villacarlos Garcia and Recina Law Offices for private respondents. SYNOPSIS Dr. Jorge Rabadilla, in a codicil of Aleja Belleza, was instituted devisee of Lot No. 1392 with an area of 511,855 square meters with the obligation to deliver 100 piculs of sugar to herein private respondent every year during the latter's lifetime. The codicil provides that the obligation is imposed not only on the instituted heir but also to his successors-in-interest and that in case of failure to deliver, private respondent shall seize the property and turn it over to the testatrix's "near descendants." Dr. Rabadilla died and was survived by his wife and children, one of whom is herein petitioner. Private respondent, alleging failure of the heirs to comply with their obligation, filed a complaint with the RTC praying for the reconveyance of the subject

property to the surviving heirs of the testatrix. During the pre-trial, a compromise agreement was concluded between the parties wherein the lessee of the property assumed the delivery of 100 piculs of sugar to private respondent. However, only partial delivery was made. Thereafter, the trial court dismissed the complaint for lack of cause of action. The Court of Appeals, on appeal, reversed the decision and held that the institution of Dr. Rabadilla is in the nature of a modal institution and a cause of action in favor of private respondent arose when petitioner failed to comply with their obligation under the codicil, and in ordering the reversion of Lot 1392 to the estate of testatrix. Aggrieved, petitioner availed of this recourse. Successional rights are transmitted from the moment of death and compulsory heirs succeed the decedent not only to all the property but also to his rights and obligations. Hence, the heirs of Dr. Rabadilla is also obliged under the codicil to deliver 100 piculs of sugar to private respondent every year. There is no substitution of heir where no substitute was provided by the testatrix in case the instituted heir predecease her or in case of the latter's incapacity or renunciation nor was the instituted heir mandated to preserve the property and to transmit it to the second heir. SYLLABUS 1.CIVIL LAW; WILLS AND SUCCESSION; SUCCESSIONAL RIGHTS TRANSMITTED FROM MOMENT OF DEATH OF DECEDENT. It is a general rule under the law on succession that successional rights are transmitted from the moment of death of the decedent and compulsory heirs are called to succeed by operation of law. The legitimate children and descendants, in relation to their legitimate parents, and the widow or widower, are compulsory heirs. Thus, the petitioner, his mother and sisters, as compulsory heirs of the instituted heir, Dr. Jorge Rabadilla, succeeded the latter by operation of law, without need of further proceedings, and the successional rights were transmitted to them from the moment of death of the decedent, Dr. Jorge Rabadilla. 2.ID.; ID.; INHERITANCE INCLUDES ALL PROPERTY, RIGHTS AND OBLIGATIONS NOT EXTINGUISHED BY DEATH. Under Article 776 of the New Civil Code, inheritance includes all the property, rights and obligations of a person, not extinguished by his death. Conformably, whatever rights Dr. Jorge Rabadilla had by virtue of subject Codicil were transmitted to his forced heirs, at the time of his death. And since obligations not extinguished by death also form part of the estate of the decedent; corollarily, the obligations imposed by the Codicil on the deceased Dr. Jorge Rabadilla, were likewise transmitted to his compulsory heirs upon his death.

3.ID.; ID.; SUBSTITUTION, DEFINED. Substitution is the designation by the testator of a person or persons to take the place of the heir or heirs first instituted. Under substitutions in general, the testator may either (1) provide for the designation of another heir to whom the property shall pass in case the original heir should die before him/her, renounce the inheritance or be incapacitated to inherit, as in a simple substitution, or (2) leave his/her property to one person with the express charge that it be transmitted subsequently to another or others, as in a fideicommissary substitution. dctai 4.ID.; ID.; SIMPLE SUBSTITUTIONS DIFFERENT FROM CODICIL; CASE AT BAR. In simple substitutions, the second heir takes the inheritance in default of the first heir by reason of incapacity, predecease or renunciation. In the case under consideration, the provisions of subject Codicil do not provide that should Dr. Jorge Rabadilla default due to predecease, incapacity or renunciation, the testatrix's near descendants would substitute him. What the Codicil provides is that, should Dr. Jorge Rabadilla or his heirs not fulfill the conditions imposed in the Codicil, the property referred to shall be seized and turned over the testatrix's near descendants. 5.ID.; ID.; FIDEICOMMISSARY SUBSTITUTION DIFFERENT FROM CODICIL; CASE AT BAR. Neither is there a fideicommissary substitution here and on this point, petitioner is correct. In a fideicommissary substitution, the first heir is strictly mandated to preserve the property and to transmit the same later to the second heir. In the case under consideration, the instituted heir is in fact allowed under the Codicil to alienate the property provided the negotiation is with the near descendants or the sister of the testatrix. Thus, a very important element of a fideicommissary substitution is lacking; the obligation clearly imposing upon the first heir the preservation of the property and its transmission to the second heir. "Without this obligation to preserve clearly imposed by the testator in his will, there is no fideicommissary substitution." Also, the near descendants' right to inherit from the testatrix is not definite. The property will only pass to them should Dr. Jorge Rabadilla or his heirs not fulfill the obligation to deliver part of the usufruct to private respondent. Another important element of a fideicommissary substitution is also missing here. Under Article 863, the second heir or the fideicommissary to whom the property is transmitted must not be beyond one degree from the first heir or the fiduciary. A fideicommissary substitution is therefore, void if the first heir is not related by first degree to the second heir. In the case under scrutiny, the near descendants are not at all related to the instituted heir, Dr. Jorge Rabadilla. 6.ID.; ID.; MODAL INSTITUTION DISTINGUISHED FROM CONDITIONAL TESTAMENTARY DISPOSITION. The institution of an heir in the manner prescribed in Article 882 is what is known in the law of succession as an institucion sub modo or a modal institution. In a modal institution, the testator states (1) the object of the institution, (2) the purpose or application of the property left by the testator, or (3) the charge imposed by

the testator upon the heir. A "mode" imposes an obligation upon the heir or legatee but it does not affect the efficacy of his rights to the succession. On the other hand, in a conditional testamentary disposition, the condition must happen or be fulfilled in order for the heir to be entitled to succeed the testator. The condition suspends but does not obligate; and the mode obligates but does not suspend. To some extend, it is similar to a resolutory condition. 7.ID.; ID.; OBLIGATION IMPOSED ON HEIRS SHOULD NOT BE CONSIDERED A CONDITION UNLESS IT CLEARLY APPEARS FROM THE WILL ITSELF THAT SUCH WAS THE INTENTION OF THE TESTATOR. Since testamentary dispositions are generally acts of liberality, an obligation imposed upon the heir should not be considered a condition unless it clearly appears from the Will itself that such was the intention of the testator. In case of doubt, the institution should be considered as modal and not conditional. 8.ID.; ID.; UNCERTAINTY ON APPLICATION OF ANY PROVISION, INTERPRETED ACCORDING TO TESTATOR'S INTENTION. In the interpretation of Wills, when an uncertainty arises on the face of the Will, as to the application of any of its provisions, the testator's intention is to be ascertained from the words of the Will, taking into consideration the circumstances under which it was made. Such construction as will sustain and uphold the Will in all its parts must be adopted. 9.ID.; ID.; CANNOT BE THE SUBJECT OF COMPROMISE. A Will is a personal, solemn, revocable and free act by which a person disposes of his property, to take effect after his death. Since the Will expresses the manner in which a person intends how his properties be disposed, the wishes and desires of the testator must be strictly followed. Thus, a Will cannot be the subject of a compromise agreement which would thereby defeat the very purpose of making a Will. VITUG, J., separate opinion: 1.CIVIL LAW; WILLS AND SUCCESSION; SUBSTITUTION; KINDS. Substitution is the appointment of another heir so that he may enter into the inheritance in default of the heir originally instituted. Substitution is simple when the testator designates one or more persons to substitute the heir or heirs instituted in case the latter should die before him, or should not wish, or should be incapacitated to accept the inheritance, and a substitution without a statement of the cases to which it refers shall comprise all said three cases. There is no simple substitution that takes place where the heir originally instituted is able to succeed. Fideicommissary substitution, on the other hand, occurs when the fiduciary or first heir instituted is entrusted with the obligation to preserve and to transmit to a second heir the whole or part of the inheritance. Every fideicommissary substitution should be expressly made in order that it may be valid. The

term "fideicommissary substitution" need not, however, be used in the will; it is enough that there is a clear and unequivocal statement that one shall enjoy usufructuary or other rights, short of naked ownership or title, over certain property of the testator with the obligation to preserve the property and to transmit it to a second heir. It is essential for the validity of a fideicommissary substitution that both heirs are living and qualified to succeed at the time of death by the testator and that the substitute does not go beyond one degree from the heir originally instituted.

In a Codicil appended to the Last Will and Testament of testatrix Aleja Belleza, Dr. Jorge Rabadilla, predecessor-in-interest of the herein petitioner, Johnny S. Rabadilla, was instituted as a devisee of 511,855 square meters of that parcel of land surveyed as Lot No. 1392 of the Bacolod Cadastre. The said Codicil, which was duly probated and admitted in Special Proceedings No. 4046 before the then Court of First Instance of Negros Occidental, contained the following provisions: "FIRST I give, leave and bequeath the following property owned by me to Dr. Jorge Rabadilla resident of 141 P. Villanueva, Pasay City: (a) Lot No. 1392 of the Bacolod Cadastre, covered by Transfer Certificate of Title No. RT-4002 (10942), which is registered in my name according to the records of the Register of Deeds of Negros Occidental. (b) That should Jorge Rabadilla die ahead of me, the aforementioned property and the rights which I shall set forth hereinbelow, shall be inherited and acknowledged by the children and spouse of Jorge Rabadilla. xxx xxx xxx FOURTH (a) It is also my command, in this my addition (Codicil), that should I die and Jorge Rabadilla shall have already received the ownership of the said Lot No. 1392 of the Bacolod Cadastre, covered by Transfer Certificate of Title No. RT-4002 (10942), and also at the time that the lease of Balbinito G. Guanzon of the said lot shall expire, Jorge Rabadilla shall have the obligation until he dies, every year to give Maria Marlina Coscolluela y Belleza, Seventy (75) (sic) piculs of Export sugar and Twenty Five (25) piculs of Domestic sugar, until the said Maria Marlina Coscolluela y Belleza dies. Cdpr FIFTH (a) Should Jorge Rabadilla die, his heir to whom he shall give Lot No. 1392 of the Bacolod Cadastre, covered by Transfer Certificate of Title No. RT-4002 (10492), shall have the obligation to still give yearly, the sugar as specified in the Fourth paragraph of his testament, to Maria Marlina Coscolluela y Belleza on the month of December of each year. SIXTH I command, in this my addition (Codicil) that the Lot No. 1392, in the event that the one to whom I have left and bequeathed, and his heir shall later

2.ID.; ID.; MODE DISTINGUISHED FROM CONDITION. A mode is distinguished from a condition contemplated in the rules on succession in that the latter dictates the efficacy, either in a suspensive or resolutory manner, of a testamentary disposition while the former obligates the instituted heir to comply with the mandate made by the testator but does not prevent the heir from at once claiming the inheritance provided he gives a security to ensure compliance with the will of the testator and the return of the thing received together with its fruits and interests, "should (the heir) disregard the obligation." The obligation imposed upon the heir or legatee is deemed not to be a condition for his entry forthwith into the inheritance unless a contrary intention of the testator is evident. In case of doubt, the institution is considered modal, rather than conditional. Much of the variance in the legal effects of the two classes, however, is now practically theoretical and merely conceptual. Under the old Civil Code an institucion sub modo could be said to be more akin to an institution sub demonstratione, or an expression of a wish or suggestion of the testator that did not have any real obligatory force, that matter being left instead to the discretion of the heir, i.e., whether to abide by it or not. The amendatory provisions of the new Civil Code now hardly differentiates between the principal effect of the non-compliance with the mode and that of the occurrence of a resolutory condition expressed in the will. In both instances, the property must be returned to the estate of the decedent to then pass on under the rules on intestacy. DECISION PURISIMA, J p: This is a petition for review of the decision of the Court of Appeals, 3 dated December 23, 1993, in CA-G.R. No. CV-35555, which set aside the decision of Branch 52 of the Regional Trial Court in Bacolod City, and ordered the defendants-appellees (including herein petitioner), as heirs of Dr. Jorge Rabadilla, to reconvey title over Lot No. 1392, together with its fruits and interests, to the estate of Aleja Belleza. The antecedent facts are as follows:

sell, lease, mortgage this said Lot, the buyer, lessee, mortgagee, shall have also the obligation to respect and deliver yearly ONE HUNDRED (100) piculs of sugar to Maria Marlina Coscolluela y Belleza, on each month of December, SEVENTY FIVE (75) piculs of Export and TWENTY FIVE (25) piculs of Domestic, until Maria Marlina shall die, lastly should the buyer, lessee or the mortgagee of this lot, not have respected my command in this my addition (Codicil), Maria Marlina Coscolluela y Belleza, shall immediately seize this Lot No. 1392 from my heir and the latter's heirs, and shall turn it over to my near desendants, (sic) and the latter shall then have the obligation to give the ONE HUNDRED (100) piculs of sugar until Maria Marlina shall die. I further command in this my addition (Codicil) that my heir and his heirs of this Lot No. 1392, that they will obey and follow that should they decide to sell, lease, mortgage, they cannot negotiate with others than my near descendants and my sister." 4 Pursuant to the same Codicil, Lot No. 1392 was transferred to the deceased, Dr. Jorge Rabadilla, and Transfer Certificate of Title No. 44498 thereto issued in his name. Dr. Jorge Rabadilla died in 1983 and was survived by his wife Rufina and children Johnny (petitioner), Aurora, Ofelia and Zenaida, all surnamed Rabadilla. On August 21, 1989, Maria Marlena Coscolluela y Belleza Villacarlos brought a complaint, docketed as Civil Case No. 5588, before Branch 52 of the Regional Trial Court in Bacolod City, against the above-mentioned heirs of Dr. Jorge Rabadilla, to enforce the provisions of subject Codicil. The Complaint alleged that the defendant-heirs violated the conditions of the Codicil, in that: 1.Lot No. 1392 was mortgaged to the Philippine National Bank and the Republic Planters Bank in disregard of the testatrix's specific instruction to sell, lease, or mortgage only to the near descendants and sister of the testatrix. 2.Defendant-heirs failed to comply with their obligation to deliver one hundred (100) piculs of sugar (75 piculs export sugar and 25 piculs domestic sugar) to plaintiff Maria Marlena Coscolluela y Belleza from sugar crop years 1985 up to the filing of the complaint as mandated by the Codicil, despite repeated demands for compliance. 3.The banks failed to comply with the 6th paragraph of the Codicil which provided that in case of the sale, lease, or mortgage of the property, the buyer, lessee, or mortgagee shall likewise have the obligation to deliver 100 piculs of sugar per crop year to herein private respondent.

The plaintiff then prayed that judgment be rendered ordering defendantheirs to reconvey/return Lot No. 1392 to the surviving heirs of the late Aleja Belleza, the cancellation of TCT No. 44498 in the name of the deceased, Dr. Jorge Rabadilla, and the issuance of a new certificate of title in the names of the surviving heirs of the late Aleja Belleza. On February 26, 1990, the defendant-heirs were declared in default but on March 28, 1990 the Order of Default was lifted, with respect to defendant Johnny S. Rabadilla, who filed his Answer, accordingly. During the pre-trial, the parties admitted that: On November 15, 1998, the plaintiff (private respondent) and a certain Alan Azurin, son-in-law of the herein petitioner who was lessee of the property and acting as attorney-in-fact of defendant heirs, arrived at an amicable settlement and entered into a Memorandum of Agreement on the obligation to deliver one hundred piculs of sugar, to the following effect: "That for crop year 1988-89, the annuity mentioned in Entry No. 49074 of TCT No. 44489 will be delivered not later than January of 1989, more specifically, to wit: 75 piculs of 'A' sugar, and 25 piculs of 'B' sugar, or then existing in any of our names, Mary Rose Rabadilla y Azurin or Alan Azurin, during December of each sugar crop year; in Azucar Sugar Central; and, this is considered compliance of the annuity as mentioned, and in the same manner will compliance of the annuity be in the next succeeding crop years. That the annuity above stated for crop year 1985-86, 1986-87, and 1987-88, will be complied in cash equivalent of the number of piculs as mentioned therein and which is as herein agreed upon, taking into consideration the composite price of sugar during each sugar crop year, which is in the total amount of ONE HUNDRED FIVE THOUSAND PESOS (P105,000.00). That the above-mentioned amount will be paid or delivered on a staggered cash installment, payable on or before the end of December of every sugar crop year, to wit: For 1985-86, TWENTY SIX THOUSAND TWO HUNDRED FIFTY (P26,250.00) Pesos, payable on or before December of crop year 1988-89; For 1986-87, TWENTY SIX THOUSAND TWO HUNDRED FIFTY (P26,250.00) Pesos, payable on or before December of crop year 1989-90; For 1987-88, TWENTY SIX THOUSAND TWO HUNDRED FIFTY (P26,250.00) Pesos, payable on or before December of crop year 1990-91; and

For 1988-89, TWENTY SIX THOUSAND TWO HUNDRED FIFTY (P26,250.00) Pesos, payable on or before December of crop year 1991-92." 5 However, there was no compliance with the aforesaid Memorandum of Agreement except for a partial delivery of 50.80 piculs of sugar corresponding to sugar crop year 1988-1989. On July 22, 1991, the Regional Trial Court came out with a decision, dismissing the complaint and disposing as follows: "WHEREFORE, in the light of the aforegoing findings, the Court finds that the action is prematurely filed as no cause of action against the defendants has as yet arose in favor of plaintiff. While there may be the nonperformance of the command as mandated exaction from them simply because they are the children of Jorge Rabadilla, the title holder/owner of the lot in question, does not warrant the filing of the present complaint. The remedy at bar must fall. Incidentally, being in the category as creditor of the left estate, it is opined that plaintiff may initiate the intestate proceedings, if only to establish the heirs of Jorge Rabadilla and in order to give full meaning and semblance to her claim under the Codicil.

Accordingly, the decision appealed from is SET ASIDE and another one entered ordering defendants-appellees, as heirs of Jorge Rabadilla, to reconvey title over Lot No. 1392, together with its fruits and interests, to the estate of Aleja Belleza. SO ORDERED." 7 Dissatisfied with the aforesaid disposition by the Court of Appeals, petitioner found his way to this Court via the present petition, contending that the Court of Appeals erred in ordering the reversion of Lot 1392 to the estate of the testatrix Aleja Belleza on the basis of paragraph 6 of the Codicil, and in ruling that the testamentary institution of Dr. Jorge Rabadilla is a modal institution within the purview of Article 882 of the New Civil Code. The petition is not impressed with merit. Petitioner contends that the Court of Appeals erred in resolving the appeal in accordance with Article 882 of the New Civil Code on modal institutions and in deviating from the sole issue raised which is the absence or prematurity of the cause of action. Petitioner maintains that Article 882 does not find application as there was no modal institution and the testatrix intended a mere simple substitution i.e., the instituted heir, Dr. Jorge Rabadilla, was to be substituted by the testatrix's "near descendants" should the obligation to deliver the fruits to herein private respondent be not complied with. And since the testatrix died single and without issue, there can be no valid substitution and such testamentary provision cannot be given any effect. The petitioner theorizes further that there can be no valid substitution for the reason that the substituted heirs are not definite, as the substituted heirs are merely referred to as "near descendants" without a definite identity or reference as to who are the "near descendants" and therefore, under Articles 843 8 and 845 9 of the New Civil Code, the substitution should be deemed as not written. The contentions of petitioner are untenable. Contrary to his supposition that the Court of Appeals deviated from the issue posed before it, which was the propriety of the dismissal of the complaint on the ground of prematurity of cause of action, there was no such deviation. The Court of Appeals found that the private respondent had a cause of action against the petitioner. The disquisition made on modal institution was, precisely, to stress that the private respondent had a legally demandable right against the petitioner pursuant to subject Codicil; on which issue the Court of Appeals ruled in accordance with law.

In the light of the aforegoing findings, the Complaint being prematurely filed is DISMISSED without prejudice. LexLib SO ORDERED." 6 On appeal by plaintiff, the First Division of the Court of Appeals reversed the decision of the trial court; ratiocinating and ordering thus: "Therefore, the evidence on record having established plaintiff-appellant's right to receive 100 piculs of sugar annually out of the produce of Lot No. 1392; defendants-appellee's obligation under Aleja Belleza's codicil, as heirs of the modal heir, Jorge Rabadilla, to deliver such amount of sugar to plaintiff-appellant; defendants-appellee's admitted non-compliance with said obligation since 1985; and, the punitive consequences enjoined by both the codicil and the Civil Code, of seizure of Lot No. 1392 and its reversion to the estate of Aleja Belleza in case of such non-compliance, this Court deems it proper to order the reconveyance of title over Lot No. 1392 from the estates of Jorge Rabadilla to the estate of Aleja Belleza. However, plaintiffappellant must institute separate proceedings to re-open Aleja Belleza's estate, secure the appointment of an administrator, and distribute Lot No. 1392 to Aleja Belleza's legal heirs in order to enforce her right, reserved to her by the codicil, to receive her legacy of 100 piculs of sugar per year out of the produce of Lot No. 1392 until she dies.

It is a general rule under the law on succession that successional rights are transmitted from the moment of death of the decedent 10 and compulsory heirs are called to succeed by operation of law. The legitimate children and descendants, in relation to their legitimate parents, and the widow or widower, are compulsory heirs. 11 Thus, the petitioner, his mother and sisters, as compulsory heirs of the instituted heir, Dr. Jorge Rabadilla, succeeded the latter by operation of law, without need of further proceedings, and the successional rights were transmitted to them from the moment of death of the decedent, Dr. Jorge Rabadilla. dctai Under Article 776 of the New Civil Code, inheritance includes all the property, rights and obligations of a person, not extinguished by his death. Conformably, whatever rights Dr. Jorge Rabadilla had by virtue of subject Codicil were transmitted to his forced heirs, at the time of his death. And since obligations not extinguished by death also form part of the estate of the decedent; corollarily, the obligations imposed by the Codicil on the deceased Dr. Jorge Rabadilla, were likewise transmitted to his compulsory heirs upon his death. In the said Codicil, testatrix Aleja Belleza devised Lot No. 1392 to Dr. Jorge Rabadilla, subject to the condition that the usufruct thereof would be delivered to the herein private respondent every year. Upon the death of Dr. Jorge Rabadilla, his compulsory heirs succeeded to his rights and title over said property, and they also assumed his (decedent's) obligation to deliver the fruits of the lot involved to herein private respondent. Such obligation of the instituted heir reciprocally corresponds to the right of private respondent over the usufruct, the fulfillment or performance of which is now being demanded by the latter through the institution of the case at bar. Therefore, private respondent has a cause of action against petitioner and the trial court erred in dismissing the complaint below. Petitioner also theorizes that Article 882 of the New Civil Code on modal institutions is not applicable because what the testatrix intended was a substitution Dr. Jorge Rabadilla was to be substituted by the testatrix's near descendants should there be non-compliance with the obligation to deliver the piculs of sugar to private respondent. Again, the contention is without merit. Substitution is the designation by the testator of a person or persons to take the place of the heir or heirs first instituted. Under substitutions in general, the testator may either (1) provide for the designation of another heir to whom the property shall pass in case the original heir should die before him/her, renounce the inheritance or be incapacitated to inherit, as in a simple substitution, 12 or (2) leave his/her property to one person with the express charge that it be transmitted subsequently to another or

others, as in a fideicommissary substitution. 13 The Codicil sued upon contemplates neither of the two. In simple substitutions, the second heir takes the inheritance in default of the first heir by reason of incapacity, predecease or renunciation. 14 In the case under consideration, the provisions of subject Codicil do not provide that should Dr. Jorge Rabadilla default due to predecease, incapacity or renunciation, the testatrix's near descendants would substitute him. What the Codicil provides is that, should Dr. Jorge Rabadilla or his heirs not fulfill the conditions imposed in the Codicil, the property referred to shall be seized and turned over to the testatrix's near descendants. Neither is there a fideicommissary substitution here and on this point, petitioner is correct. In a fideicommissary substitution, the first heir is strictly mandated to preserve the property and to transmit the same later to the second heir. 15 In the case under consideration, the instituted heir is in fact allowed under the Codicil to alienate the property provided the negotiation is with the near descendants or the sister of the testatrix. Thus, a very important element of a fideicommissary substitution is lacking; the obligation clearly imposing upon the first heir the preservation of the property and its transmission to the second heir. "Without this obligation to preserve clearly imposed by the testator in his will, there is no fideicommissary substitution." 16 Also, the near descendants' right to inherit from the testatrix is not definite. The property will only pass to them should Dr. Jorge Rabadilla or his heirs not fulfill the obligation to deliver part of the usufruct to private respondent. Another important element of a fideicommissary substitution is also missing here. Under Article 863, the second heir or the fideicommissary to whom the property is transmitted must not be beyond one degree from the first heir or the fiduciary. A fideicommissary substitution is therefore, void if the first heir is not related by first degree to the-second heir. 17 In the case under scrutiny, the near descendants are not at all related to the instituted heir, Dr. Jorge Rabadilla. The Court of Appeals erred not in ruling that the institution of Dr. Jorge Rabadilla under subject Codicil is in the nature of a modal institution and therefore, Article 882 of the New Civil Code is the provision of law in point. Articles 882 and 883 of the New Civil Code provide: ARTICLE 882.The statement of the object of the institution or the application of the property left by the testator, or the charge imposed on him, shall not be considered as a condition unless it appears that such was his intention. That which has been left in this manner may be claimed at once provided that the instituted heir or his heirs give security for compliance with the

wishes of the testator and for the return of anything he or they may receive, together with its fruits and interests, if he or they should disregard this obligation. ARTICLE 883.When without the fault of the heir, an institution referred to in the preceding article cannot take effect in the exact manner stated by the testator, it shall be complied with in a manner most analogous to and in conformity with his wishes.

The institution of an heir in the manner prescribed in Article 882 is what is known in the law of succession as an institucion sub modo or a modal institution. In a modal institution, the testator states (1) the object of the institution, (2) the purpose or application of the property left by the testator, or (3) the charge imposed by the testator upon the heir. 18 A "mode" imposes an obligation upon the heir or legatee but it does not affect the efficacy of his rights to the succession. 19 On the other hand, in a conditional testamentary disposition, the condition must happen or be fulfilled in order for the heir to be entitled to succeed the testator. The condition suspends but does not obligate; and the mode obligates but does not suspend. 20 To some extent, it is similar to a resolutory condition. 21 From the provisions of the Codicil litigated upon, it can be gleaned unerringly that the testatrix intended that the subject property be inherited by Dr. Jorge Rabadilla. It is likewise clearly worded that the testatrix imposed an obligation on the said instituted heir and his successors-ininterest to deliver one hundred piculs of sugar to the herein private respondent, Marlena Coscolluela Belleza, during the lifetime of the latter. However, the testatrix did not make Dr. Jorge Rabadilla's inheritance and the effectivity of his institution as a devisee, dependent on the performance of the said obligation. It is clear, though, that should the obligation be not complied with, the property shall be turned over to the testatrix's near descendants. The manner of institution of Dr. Jorge Rabadilla under subject Codicil is evidently modal in nature because it imposes a charge upon the instituted heir without, however, affecting the efficacy of such institution. Then too, since testamentary dispositions are generally acts of liberality, an obligation imposed upon the heir should not be considered a condition unless it clearly appears from the Will itself that such was the intention of the testator. In case of doubt, the institution should be considered as modal and not conditional. 22 Neither is there tenability in the other contention of petitioner that the private respondent has only a right of usufruct but not the right to seize the property itself from the instituted heir because the right to seize was expressly limited to violations by the buyer, lessee or mortgagee.

In the interpretation of Wills, when an uncertainty arises on the face of the Will, as to the application of any of its provisions, the testator's intention is to be ascertained from the words of the Will, taking into consideration the circumstances under which it was made. 23 Such construction as will sustain and uphold the Will in all its parts must be adopted. 24 Subject Codicil provides that the instituted heir is under obligation to deliver One Hundred (100) piculs of sugar yearly to Marlena Belleza Coscuella. Such obligation is imposed on the instituted heir, Dr. Jorge Rabadilla, his heirs, and their buyer, lessee, or mortgagee should they sell, lease, mortgage or otherwise negotiate the property involved. The Codicil further provides that in the event that the obligation to deliver the sugar is not respected, Marlena Belleza Coscuella shall seize the property and turn it over to the testatrix's near descendants. The non-performance of the said obligation is thus with the sanction of seizure of the property and reversion thereof to the testatrix's near descendants. Since the said obligation is clearly imposed by the testatrix, not only on the instituted heir but also on his successors-in-interest, the sanction imposed by the testatrix in case of non-fulfillment of said obligation should equally apply to the instituted heir and his successors-in-interest. Similarly unsustainable is petitioner's submission that by virtue of the amicable settlement, the said obligation imposed by the Codicil has been assumed by the lessee, and whatever obligation petitioner had become the obligation of the lessee; that petitioner is deemed to have made a substantial and constructive compliance of his obligation through the consummated settlement between the lessee and the private respondent, and having consummated a settlement with the petitioner, the recourse of the private respondent is the fulfillment of the obligation under the amicable settlement and not the seizure of subject property. Suffice it to state that a Will is a personal, solemn, revocable and free act by which a person disposes of his property, to take effect after his death. 25 Since the Will expresses the manner in which a person intends how his properties be disposed, the wishes and desires of the testator must be strictly followed. Thus, a Will cannot be the subject of a compromise agreement which would thereby defeat the very purpose of making a Will. WHEREFORE, the petition is hereby DISMISSED and the decision of the Court of Appeals, dated December 23, 1993, in CA-G.R. No. CV-35555 AFFIRMED. No Pronouncement as to costs. prcd SO ORDERED. Melo, J., I concur as well in the separate opinion of Justice Vitug. Vitug, J., see separate opininon (concurring in result).

Panganiban, J., I join the separate opinion of Justice Vitug. Gonzaga-Reyes, J., took no part. Separate Opinions VITUG, J., concurring: By virtue of a codicil appended to her will, Aleja Belleza devised a 511,856square meter parcel of land in Bacolod City, denominated Lot No. 1392 of the Bacolod Cadastral Survey, to Jorge Ravadilla (predecessor-in-interest of petitioner), 1 carrying with it an obligation to deliver to private respondent, Maria Marlena Coscolluela y Belleza, one hundred piculs of sugar per crop year during her lifetime. The portions of the codicil, pertinent to the instant controversy, read: "FIRST "I give, leave and bequeath the following property owned by me to Dr. Jorge Rabadilla, resident of 141 P. Villanueva, Pasay City: "(a)Lot No. 1392 of the Bacolod Cadastre, covered by Transfer Certificate of Title No. RT-4002(10942), which is registered in my name according to the records of the Register of Deeds of Negros Occidental. "b)That should Jorge Rabadilla die ahead of me, the aforementioned property and the rights which I shall set forth hereinbelow, shall be inherited and acknowledged by the children and spouse of Jorge Rabadilla. xxx xxx xxx FOURTH "(a)It is also my command, in this my addition (codicil), that should I die and Jorge Rabadilla shall have already received the ownership of the said Lot No. 1392 of the Bacolod Cadastre, covered by Transfer Certificate of Title No. RT-4002(10942), and also at the time that the lease of Balbinito Guanzon of the said lot shall expire, Jorge Rabadilla shall have the obligation until he dies, every year to give to Maria Marlina Coscolluela y Belleza, Seventy (75) (sic) piculs of Export sugar and Twenty Five (25) piculs of Domestic sugar, until the said Maria Marlina Coscolluela y Belleza dies. "FIFTH

"(a)Should Jorge Rabadilla die, his heir to whom he shall give Lot No. 1392 of the Bacolod Cadastre, covered by Transfer Certificate of Title No. RT4002 (10942), shall have the obligation to still give yearly, the sugar as specified in the Fourth paragraph of this testament, to Maria Marlina Coscolluela y Belleza on the month of December of each year. "SIXTH "I command, in this my addition (Codicil) that the Lot No. 1392, in the event that the one to whom I have left and bequeathed, and his heir shall later sell, lease, mortgage this said Lot, the buyer, lessee, mortgagee, shall have also the obligation to respect and deliver yearly ONE HUNDRED (100) piculs of sugar to Maria Marlina Coscolluela y Belleza, on each month of December, SEVENTY FIVE (75) piculs of Export and TWENTY FIVE (25) piculs of Domestic, until Maria Marlina shall die, lastly should the buyer, lessee, or the mortgagee of this lot, not have respected my command in this my addition (Codicil), Maria Marlina Coscolluela y Belleza, shall immediately seize this Lot No. 1392 from my heir and the latter's heirs, and shall turn it over to my near descendants, 2 and the latter shall then have the obligation to give the ONE HUNDRED (100) piculs of sugar until Maria Marlina shall die. I further command in this my addition (Codicil) that my heir and his heirs of this Lot No. 1392, that they will obey and follow that should they decide to sell, lease, mortgage, they cannot negotiate with others than my near descendants and my sister." 3 Pursuant to the above provisions of the codicil, ownership of Lot No. 1392 was transferred to Jorge Rabadilla and Transfer Certificate of Title No. T44498 was issued in his name. LexLib Sometime in 1983, Jorge Rabadilla died, survived by his wife, Rufina, and their children Johnny, Aurora, Ofelia and Zenaida. On 21 August 1989, on account of the failure of the heirs of Jorge Rabadilla to comply with the obligation under the codicil, private respondent filed an action, docketed Civil Case No. 5588, against the Rabadilla heirs before the Regional Trial Court, Branch 52, of Bacolod City for the reconveyance of Lot 1392 to the heirs of Aleja Belleza and the cancellation of Transfer Certificate of Title No. 44498 covering the property in the name of Jorge Rabadilla. The trial court dismissed the complaint "without prejudice." 4 On appeal taken by private respondent to the Court of Appeals, the appellate court set aside the appealed decision and held: "Therefore, the evidence on record having established plaintiff-appellant's right to receive 100 piculs of sugar annually out of the produce of Lot No. 1392; defendants-appellees' obligation under Aleja Belleza's codicil, as heirs of the modal heir, Jorge Rabadilla, to deliver such amount of sugar to

plaintiff-appellant; defendants-appellees' admitted non-compliance with said obligation since 1985; and, the punitive consequences enjoined by both the codicil and the Civil Code, of seizure of Lot No. 1392 and its reversion to the estate of Aleja Belleza in case of such non-compliance, this Court deems it proper to order the reconveyance of title over Lot No. 1392 from the estate of Jorge Rabadilla to the estate of Aleja Belleza. However, plaintiffappellant must institute separate proceedings to re-open Aleja Belleza's estate, secure the appointment of an administrator, and distribute Lot No. 1392 to Aleja Belleza's legal heirs in order to enforce her right, reserved to her by the codicil, to receive her legacy of 100 piculs of sugar per year out of the produce of Lot No. 1392 until she dies.

"Accordingly, the decision appealed from is SET ASIDE and another one entered ordering defendants-appellees, as heirs of Jorge Rabadilla, to reconvey title over Lot No. 1392, together with its fruits and interests, to the estate of Aleja Belleza. SO ORDERED." 5 Petitioner, in the instant petition for review, submits that the appellate court has erred in: (1) ordering the reversion of Lot 1392 to the estate of Aleja Belleza on the basis of paragraph six of the codicil, and (2) in ruling that the testamentary institution of Dr. Jorge Rabadilla is a modal institution within the purview of Article 882 of the Civil Code. Additionally, he avers that respondent court has improvidently deviated from the sole issue raised which is the prematurity of the action before the court a quo. Upon the other hand, respondent would have this Court sustain the assailed decision of the Court of Appeals contending that the appellate court is completely justified in delving into the nature of the institution in the codicil, the same having a direct significance on the issue of whether or not the complaint before the trial court has been prematurely filed. Private respondent adds that the institution in question is modal within the context of Article 882 of the Civil Code which gives her the right to seize the subject property. I agree with my colleagues that "substitution" is not here apropos. Substitution is the appointment of another heir so that he may enter into the inheritance in default of the heir originally instituted. 6 Substitution is simple when the testator designates one or more persons to substitute the heir or heirs instituted in case the latter should die before him, or should not wish, or should be incapacitated to accept the inheritance, and a substitution without a statement of the cases to which it refers shall comprise all said three cases. 7 There is no simple substitution that takes place where the heir originally instituted is able to succeed. 8 Fideicommissary substitution, on the other hand, occurs when the fiduciary or first heir instituted is entrusted with the obligation to preserve and to

transmit to a second heir the whole or part of the inheritance. 9 Every fideicommissary substitution should be expressly made in order that it may be valid. 10 The term "fideicommissary substitution" need not, however, be used in the will; It is enough that there is a clear and unequivocal statement that one shall enjoy usufructuary or other rights, short of naked ownership or title, over certain property of the testator with the obligation to preserve the property and to transmit it to a second heir. 11 It is essential for the validity of a fideicommissary substitution that both heirs are living and qualified to succeed at the time of death by the testator and that the substitute does not go beyond one degree from the heir originally instituted. The term "one degree" has been the subject of varied interpretation. One view is to the effect that the term means one transfer, citing the Supreme Tribunal of Spain and as advocated by eminent civilists as Justices J.B.L. Reyes, R. Puno, E. Caguioa, and D. Jurado. In Ramirez vs. Ramirez, 12 decided on 15 February 1982, the Court, however, adopted the literal view that "one decree" means relationship or generation as so advanced by equally eminent writers Dr. A. Padilla, Justice E. Paras and Dr. A. Tolentino. In the subsequent case of the Testate Estate case of Fr. Aranas, 13 however, the Court upheld the usufructuary right of the Roman Catholic Church under a legacy that now renders doubtful the continued validity of the Ramirez doctrine. dctai The institution of Jorge Rabadilla in the Belleza codicil partook the nature of an institution sub modo, rather than one of substitution, governed by the provisions of Article 882 of the Civil Code. This law provides: "ARTICLE 882.The statement of the object of the institution, or the application of the property left by the testator, or the charge imposed by him, shall not be considered as a condition unless it appears that such was his intention. "That which has been left in this manner may be claimed at once provided that the instituted heir or his heirs give security for compliance with the wishes of the testator and for the return of anything he or they may receive, together with its fruits and interests, if he or they should disregard this obligation." (Italics supplied) A mode is distinguished from a condition contemplated in the rules on succession in that the latter dictates the efficacy, either in a suspensive or resolutory manner, of a testamentary disposition while the former obligates the instituted heir to comply with the mandate made by the testator but does not prevent the heir from at once claiming the inheritance provided he gives security to ensure compliance with the will of the testator and the return of the thing received together with its fruits and interests, "should (the heir) disregard this obligation." The obligation imposed upon the heir or legatee is deemed not to be a condition for his entry forthwith into the inheritance unless a contrary intention of the testator is evident. In case of doubt, the institution is considered modal, rather than conditional. Much of

the variance in the legal effects of the two classes, 14 however, is now practically theoretical and merely conceptual. Under the Old Civil Code 15 an institucion sub modo could be said to be more akin to an institution sub demonstratione, or an expression of a wish or suggestion of the testator that did not have any real obligatory force, that matter being left instead to the discretion of the heir, i.e., whether to abide by it or not. The amendatory provisions of the New Civil Code now hardly differentiates between the principal effect of the non-compliance with the mode and that of the occurrence of a resolutory condition expressed in the will. In both instances, the property must be returned to the estate of the decedent to then pass on under the rules of intestacy. ACCORDINGLY, I also vote for the dismissal of the instant petition. Panganiban, J., concurs. [G.R. Nos. L-3087 & L-3088. July 31, 1954.] In re: Testate Estate of the deceased JOSE B. SUNTAY. SILVINO SUNTAY, petitioner-appellant, vs. FEDERICO C. SUNTAY, administrator-appellee. Claro M. Recto for appellant. Sison & Aruego for appellee. SYLLABUS 1.WILLS PROBATIVE OF WILLS; ASSIGNMENT OF INTEREST IN THE WILL ESTATE, NOT A BAR TO PROBATE OF A LOST OF FOREIGN WILL. In an intestate proceeding that had already been instituted in the Philippines, the widow and child of the testator are not estopped from asking for the probate of a lost will or of a foreign will just because of a lost will or of a foreign will just because of the transfer of assignment of their share, right, title and interest in the estate of the deceased, The validity and legality of such assignments can not be threshed out in the probate proceeding which is concerned only with the probate of the will. 2.ID.; ID.; PROOF OF LOST WILL; PROVISION OF WILL MUST BE PROVED BY AT LEAST TWO CREDIBLE WITNESSES; WHO ARE CREDIBLE WITNESSES. Granting that a will was duly executed and that it was in existence at the time of, and not revoked before, the death of the testator, still the provisions of the lost will must be clearly and distinctly p[roved by at least two credible witnesses. "Credible witnesses" mean competent witnesses and not those who testify to facts from or upon hearsay.

3.ID.; PROBATE OF WILL IS A PROCEEDING IN REM; NOTICE TO ALL PARTIES ESSENTIAL FOR ITS VALIDITY. In the absence of proof that the municipal district court of Amoy is a probate court and on the Chinese law of procedure in probate matters, it may be presumed that the proceedings in the matter of probating or allowing a will in the Chinese courts are the same as those provided for in our laws on the subject. It is a proceeding in re, and for the validity of such proceedings personal notice or by publication or both to all interested parties must be made. 4.ID.; ID.; PROCEEDINGS LIKENED TO A DEPOSITION OR TO A PERPETUATION OF TESTIMONY. The proceedings had in the municipal district court of Amoy, China, may be likened to a deposition or to as perpetuation of testimony, and even if it were so, notice all interested parties was necessary for the validity of such proceedings. 5.ID.; WILLS PROVED IN A FOREIGN COUNTRY; PROBATE SHOULD BE IN ACCORDANCE WITH ACCEPTED BASIC AND FUNDAMENTAL CONCEPTS AND PRINCIPLES. Where it appears that the proceedings in the court of a foreign country were held for the purpose of taking the testimony of two attesting witnesses to the will and the order of the probate court did not purport to allow the will, the proceedings cannot be deemed to be for the probate of a will, as it was not done in accordance with the basic fundamental concepts and principles followed in the probate and allowance of wills. Consequently, the will referred to therein cannot be allowed , filed and recorded by a competent court of this country. 6.WILL PROBATE OF; LACK OF OBJECTION TO PROBATE OF LOST OF WILL DOES EXECUTION. The lack of objection to the probate of a lost will does not relieve the proponent thereof or the party interested in its probate from establishing its due execution and proving clearly and distinctly the provisions thereof by at least two credible witnesses, as provided for in section 6, Rule 77 of the Rules of Court. 7.ID., APPEALS; JURISDICTION OF SUPREME COURT TO REVIEW FINDINGS OF FACT AND LEGAL PRONOUNCEMENTS IN CASES INVOLVING MORE THAN P50,000. In appeal from a judgment of the probate court, the Supreme Court, in the exercise of its appellate jurisdiction, has the power to review and correct erroneous findings of fact and legal pronouncements of the probate court, where the amount involved is more than P50,000. DECISION PADILLA, J p: This is an appeal from a decree of the Court of First Instance of Bulacan disallowing the alleged will and testament executed in Manila on November 1929, and the alleged last will and testament executed in Kulangsu, Amoy,

China, on 4 January 1931, by Jose B. Suntay. The value of the estate left by the deceased is more than P50,000. On 14 May 1934 Jose B. Suntay, a Filipino citizen and resident of the Philippines, died in the city of Amoy, Fookien province, Republic of China, leaving real and personal properties in the Philippines and a house in Amoy, Fookien province, China, and children by the first marriage had with the late Manuela T. Cruz namely, Apolonio, Concepcion, Angel, Manuel, Federico, Ana, Aurora, Emiliano and Jose, Jr. and a child named Silvino by the second marriage had with Maria Natividad Lim Billian who survived him. Intestate proceedings were instituted in the Court of First Instance of Bulacan (special proceedings No. 4892) and after hearing letters of administration were issued to Apolonio Suntay. After the latter's death Federico C. Suntay was appointed administrator of the estate. On 15 October 1934 the surviving widow filed a petition in the Court of First Instance of Bulacan for the probate of a last will and testament claimed to have been executed and signed in the Philippines on November 1929 by the late Jose B. Suntay. This petition was denied because of the loss of said will after the filing of the petition and before the hearing thereof and of the insufficiency of the evidence to establish the loss of the said will. An appeal was taken from said order denying the probate of the will and this Court held the evidence before the probate court sufficient to prove the loss of the will and remanded the case to the Court of First Instance of Bulacan for further proceedings (63 Phil., 793). In spite of the fact that a commission from the probate court was issued on 24 April 1937 for the taking of the deposition of Go Toh, an attesting witness to the will, on 7 February 1938 the probate court denied a motion for continuance of the hearing sent by cablegram from China by the surviving widow and dismissed the petition. In the meantime the Pacific War supervened. After liberation, claiming that he had found among the files, records and documents of his late father a will and testament in Chinese characters executed and signed by the deceased on 4 January 1931 and that the same was filed, recorded and probated in the Amoy district court, Province of Fookien, China, Silvino Suntay filed a petition in the intestate proceedings praying for the probate of the will executed in the Philippines on November 1929 (Exhibit B) or of the will executed in Amoy, Fookien, China, on 4 January 1931 (Exhibit N). There is no merit in the contention that the petitioner Silvino Suntay and his mother Maria Natividad Lim Billian are estopped from asking for the probate of the lost will or of the foreign will because of the transfer or assignment of their share right, title and interest in the estate of the late Jose B. Suntay to Jose G. Gutierrez and the spouses Ricardo Gutierrez and Victoria Goo and the subsequent assignment thereof by the assignees to Francisco Pascual and by the latter to Federico C. Suntay, for the validity and legality of such assignments cannot be threshed out in this proceedings which is concerned only with the probate of the will and testament executed in the Philippines on November 1929 or of the foreign will allegedly executed in Amoy on 4 January 1931 and claimed to have been

probated in the municipal district court of Amoy, Fookien province, Republic of China. As to prescription, the dismissal of the petition for probate of the will on 7 February 1938 was no bar to the filing of this petition on 18 June 1947, or before the expiration of ten years. As to the lost will, section 6, Rule 77, provides: No will shall be proved as a lost or destroyed will unless the execution and validity of the same be established, and the will is proved to have been in existence at the time of the death of the testator, or is shown to have been fraudulently or accidentally destroyed in the lifetime of the testator without his knowledge, nor unless its provisions are clearly and distinctly proved by at least two credible witnesses. When a lost will is proved, the provisions thereof must be distinctly stated and certified by the judge, under the seal of the court, and the certificate must be filed and recorded as other wills are filed and recorded. The witnesses who testified to the provisions of the lost will are Go Toh, an attesting witness, Anastacio Teodoro and Ana Suntay. Manuel Lopez, who was an attesting witness to the lost will, was dead at the time of the hearing of this alternative petition. In his deposition Go Toh testifies that he was one of the witnesses to the lost will consisting of twenty-three sheets signed by Jose B. Suntay at the bottom of the will and each and every page thereof in the presence of Alberto Barretto, Manuel Lopez and himself and underneath the testator's signature the attesting witnesses signed and each of them signed the attestation clause and each and every page of the will in the presence of the testator and of the other witnesses (answers to the 31st, 41st, 42nd, 49th, 50th, 55th and 63rd interrogatories, Exhibit D-1), but did not take part in the drafting thereof (answer to the 11th interrogatory, Id.); that he knew the contents of the will written in Spanish although he knew very little of that language (answers to the 22nd and 23rd interrogatories and to X-2 cross-interrogatory, Id.) and all he knows about the contents of the lost will was revealed to him by Jose B. Suntay at the time it was executed (answers to the 25th interrogatory and to X-4 and X-8 cross-interrogatories, Id.); that Jose B. Suntay told him that the contents thereof are the same as those of the draft (Exhibit B) (answers to the 33rd interrogatory and to X-8 cross-interrogatory, Id.) which he saw in the office of Alberto Barretto in November 1929 when the will was signed (answers to the 69th, 72nd, and 74th interrogatories, Id); that Alberto Barretto handed the draft and said to Jose B. Suntay: "You had better see if you want any correction" (answers to the 81st, 82nd and 83rd interrogatories, Id.); that "after checking Jose B. Suntay put the 'Exhibit B' in his pocket and had the original signed and executed" (answers to the 91st interrogatory, and to X18 cross-interrogatory, Id.); that Mrs. Suntay had the draft of the will (Exhibit B) translated into Chinese and he read the translation (answers to the 67th interrogatory, Id.); that he did not read the will and did not

compare it (check it up) with the draft (Exhibit B) (answers to X-6 and X-20 cross-interrogatories, Id.).

inconsistent with her testimony in chief that after Apolonio had read that part of the will he turned over or handed the document to Manuel who went away (p. 528, t. s. n., Id.). If it is true that Go Toh saw the draft Exhibit B in the office of Alberto Barretto in November 1929 when the will was signed, then the part of his testimony that Alberto Barretto handed the draft to Jose B. Suntay to whom he said: "You had better see if you want any correction" and that "after checking Jose B. Suntay put the 'Exhibit B' in his pocket and had the original signed and executed" cannot be true, for it was not the time for correcting the draft of the will, because it must have been corrected before and all corrections and additions written in lead pencil must have been inserted and copied in the final draft of the will which was signed on that occasion. The bringing in of the draft (Exhibit B) on that occasion is just to fit it within the framework of the appellant's theory. At any rate, all of Go Toh's testimony by deposition on the provisions of the alleged lost will is hearsay, because he came to know or he learned of them from information given him by Jose B. Suntay and from reading the translation of the draft (Exhibit B) into Chinese. Much stress is laid upon the testimony of Federico C. Suntay who testifies that he read the supposed will or the alleged will of his father and that the share of the surviving widow, according to the will, is two-thirds of the estate (p. 229, t. s. n., hearing of 24 October 1947). But this witness testified to oppose the appointment of a co-administrator of the estate, for the reason that he had acquired the interest of the surviving widow not only in the estate of her deceased husband but also in the conjugal property (pp. 148, 205, 228, 229, 231, t. s. n., Id.) Whether he read the original will or just the copy thereof (Exhibit B) is not clear. For him the important point was that he had acquired all the share, participation and interest of the surviving widow and of the only child by the second marriage in the estate of his deceased father. Be that as it may, his testimony that under the will the surviving widow would take two-thirds of the estate of the late Jose B Suntay is at variance with Exhibit B and the testimony of Anastacio Teodoro. According to the latter, the third for strict legitime is for the ten children; the third for betterment is for Silvino, Apolonio, Concepcion and Jose Jr.; and the third for free disposal is for the surviving widow and her child Silvino. Hence, granting that there was a will duly executed by Jose B. Suntay placed in the envelope (Exhibit A) and that it was in existence at the time of, and not revoked before, his death, still the testimony of Anastacio Teodoro alone falls short of the legal requirement that the provisions of the lost will must be "clearly and distinctly proved by at least two credible witnesses." Credible witnesses mean competent witnesses and those who testify to facts from or upon hearsay are neither competent nor credible witnesses.

Ana Suntay testifies that sometime in September 1934 in the house of her brother Apolonio Suntay she learned that her father left a will "because of the arrival of my brother Manuel Suntay, who was bringing along with him certain document and he told us or he was telling us that it was the will of our father Jose B. Suntay which was taken from Go Toh.." (p. 524, t. s. n., hearing of 24 February 1948); that she saw her brother Apolonio Suntay read the document in her presence and of Manuel and learned of the adjudication made in the will by her father of his estate, to wit: one-third to his children, one-third to Silvino and his mother and the other third to Silvino. Apolonio, Concepcion and Jose, Jr. (pp. 526-8, 530-1, 542, t. s. n. Id.); that "after Apolonio read that portion, then he turned over the document to Manuel, and he went away," (p. 528, t. s. n., Id.). On crossexamination, she testifies that she read the part of the will on adjudication to know what was the share of each heir (pp. 530, 544, t. s. n., Id.) and on redirect she testifies that she saw the signature of her father, Go Toh, Manuel Lopez and Alberto Barretto (p. 546, t. s. n., Id.). Anastacio Teodoro testifies that one day in November 1934 (p. 273, t. s. n., hearing of 19 January 1948), before the last postponement of the hearing granted by the Court, Go Toh arrived at his law office in the De los Reyes Building and left an envelope wrapped in red handkerchief [Exhibit C] (p. 32, t. s. n., hearing of 13 October 1947); that he checked up the signatures on the envelope Exhibit A with those on the will placed in the envelope (p. 33, t.s.n., Id.); that the will was exactly the same as the draft Exhibit B (pp. 32, 47, 50, t. s. n., Id.). If the will was snatched after the delivery thereof by Go Toh to Anastacio Teodoro and returned by the latter to the former because they could not agree on the amount of fees, the former coming to the latter's office straight from the boat (p. 315, t. s. n., hearing of 19 January 1948) that brought him to the Philippines from Amoy, and that delivery took place in November 1934 (p. 273, t. s. n., Id.), then the testimony of Ana Suntay that she saw and heard her brother Apolonio Suntay read the will sometime in September 1934 (p. 524, t. s. n., hearing of 24 February 1948), must not be true. Although Ana Suntay would be a good witness because she was testifying against her own interest, still the fact remains that she did not read the whole will but only the adjudication (pp. 526-8, 530- 1, 542, t. s. n., Id.) and saw only the signature, of her father and of the witnesses Go Toh, Manuel Lopez and Alberto Barretto (p. 546, t. s. n., Id.). But her testimony on crossexamination that she read the part of the will on adjudication is

On the other hand, Alberto Barretto testifies that in the early part of 1929 he prepared or drew up two wills for Jose B. Suntay at the latter's request, the rough draft of the first will was in his own handwriting, given to Manuel Lopez for the final draft or typing and returned to him; that after checking up the final with the rough draft he tore it and returned the final draft to Manuel Lopez; that this draft was in favor of all the children and the widow (pp. 392-4, 449, t. s. n., hearing of 21 February 1948); that two months later Jose B. Suntay and Manuel Lopez called on him and the former asked him to draw up another will favoring more his wife and child Silvino; that he had the rough draft of the second will typed (pp. 395. 449 t. s. n., Id.) and gave it to Manuel Lopez (p. 396. t. s. n., Id.); that he did not sign as witness the second will of Jose B. Suntay copied from the typewritten draft [Exhibit B] (p. 420, t. s. n., Id.); that the handwritten insertions or additions in lead pencil to Exhibit B are not his (pp. 415-7, 435-6, 457, t. s. n., Id.); that the final draft of the first will made up of four or five pages (p. 400, t. s. n., Id.) was signed and executed, two or three months after Suntay and Lopez had called on him (pp. 397-8, 403, 449, t. s. n., Id.) in his office at the Cebu Portland Cement in the China Banking Building on Dasmarias street by Jose B. Suntay, Manuel Lopez and a Chinaman who had all come from Hagonoy (p. 398, t. s. n., Id.); that on that occasion they brought an envelope (Exhibit A) where the following words were written: "Testamento de Jose B. Suntay" (pp. 399, 404, t, s. n., Id.); that after the signing of the will it was placed inside the envelope (Exhibit A) together with an inventory of the properties of Jose B. Suntay and the envelope was sealed by the signatures of the testator and the attesting witnesses (pp. 398, 401, 441, 443, 461, t. s. n., Id.); that he again saw the envelope (Exhibit A) in his house one Saturday in the later part of August 1934, brought by Go Toh and it was then in perfect condition (pp. 405-6, 411, 440-2, t. s. n., Id.); that on the following Monday Go Toh went to his law office bringing along with him the envelope (Exhibit A) in the same condition; that he told Go Toh that he would charge P25,000 as fee for probating the will (pp. 406, 440-2, Id.); that Go Toh did not leave the envelope (Exhibit A) either in his house or in his law office (p. 407, t. s. n., Id.); that Go Toh said he wanted to keep it and on no occasion did Go Toh leave it to him (pp. 409, 410, t. s. n., Id.). The testimony of Go Toh taken and heard by Assistant Fiscal F. B. Albert in connection with the complaint for estafa filed against Manuel Suntay for the alleged snatching of the envelope (Exhibit A), corroborates the testimony of Alberto Barretto to the effect that only one will was signed by Jose B. Suntay at his office in which he (Alberto Barretto), Manuel Lopez and Go Toh took part as attesting witnesses (p. 15, t. s. n., Exhibit 6). Go Toh testified before the same assistant fiscal that he did not leave the will in the hands of Anastacio Teodoro (p. 26, t. s. n., Exhibit 6). He said, quoting his own words, "Because I can not give him this envelope even though the contract (on fees) was signed. I have to bring that document to court or to anywhere else myself." (p. 27, t. s. n., Exhibit 6).

As to the will claimed to have been executed on 4 January 1931 in Amoy, China, the law on the point is Rule 78. Section 1 of the rule provides: Wills proved and allowed in a foreign country, according to the laws of such country, may be allowed, filed, and recorded by the proper Court of First Instance in the Philippines. Section 2 provides: When a copy of such will and the allowance thereof, duly authenticated, is filed with a petition for allowance in the Philippines, by the executor or other person interested, in the court having jurisdiction, such court shall fix a time and place for the hearing, and cause notice thereof to be given as in case of an original will presented for allowance. Section 3 provides: If it appears at the hearing that the will should be allowed in the Philippines, the court shall so allow it, and a certificate of its allowance, signed by the Judge, and attested by the seal of the court, to which shall be attached a copy of the will, shall be filed and recorded by the clerk, and the will shall have the same effect as if originally proved and allowed in such court.

made. The interested parties in the case were known to reside in the Philippines. The evidence shows that no such notice was received by the interested parties residing in the Philippines (pp. 474, 476, 481, 503-4, t. s. n., hearing of 24 February 1948). The proceedings had in the municipal district court of Amoy, China, may be likened to a deposition or to a perpetuation of testimony, and even if it were so it does not measure or come up to the standard of such proceedings in the Philippines for lack of notice to all interested parties and the proceedings were held at the back of such interested parties. The order of the municipal district court of Amoy, China, which reads, as follows: ORDER: SEE BELOW The above minutes were satisfactorily confirmed by the interrogated parties, who declare that there are no errors, after said minutes were loudly read and announced actually in the court. Done and subscribed on the Nineteenth day of the English month of the 35th year of the Republic of China in the Civil Section of the Municipal District Court of Amoy, China. HUANG KUANG CHENG Clerk of Court CHIANG TENG HWA Judge (Exhibit N-13, p. 89 Folder of Exhibits.) does not purport to probate or allow the will which was the subject of the proceedings. In view thereof, the will and the alleged probate thereof cannot be said to have been done in accordance with the accepted basic and fundamental concepts and principles followed in the probate and allowance of wills. Consequently, the authenticated transcript of proceedings held in the municipal district court of Amoy, China, cannot be deemed and accepted as proceedings leading to the probate or allowance of a will and, therefore, the will referred to therein cannot be allowed, filed and recorded by a competent court of this country.

The decree appealed from is affirmed, without pronouncement as to costs. Pablo, Bengzon, A. Reyes, Labrador and Concepcion, JJ., concur. Separate Opinions PARAS, C.J., dissenting: As a preliminary statement we may well refer to the case of Maria Natividad Lim Billian, petitioner and appellant, vs. Apolonio Suntay, Angel Suntay, Manuel Suntay, and Jose Suntay, oppositors and appellees, 63 Phil., 793-97, in which the following decision was rendered by this Court on November 25, 1936, holding that the will executed by Jose B. Suntay who died in the City of Amoy, China, on May 14, 1934, was lost under the circumstances pointed out therein, and ordering the return of the case to the Court of First Instance of Bulacan for further proceedings: "On May 14, 1934, Jose B. Suntay died in the City of Amoy, China. He married twice, the first time to Manuela T. Cruz with whom he had several children now residing in the Philippines, and the second time to Maria Natividad Lim Billian with whom he had a son. "On the same date, May 14, 1934, Apolonio Suntay, eldest son of the deceased by his first marriage, filed the latter's intestate in the Court of First Instance of Manila (civil case No. 4892). "On October 15, 1934, and in the same court, Maria Natividad Lim Billian also instituted the present proceedings for the probate of a will allegedly left by the deceased. "According to the petitioner, before the deceased died in China he left with her a sealed envelope (Exhibit A) containing his will and, also another document (Exhibit B of the petitioner) said to be a true copy of the original contained in the envelope. The will in the envelope was executed in the Philippines, with Messrs. Go Toh, Alberto Barreto and Manuel Lopez as attesting witnesses. On August 25, 1934, Go Toh, as attorney-in-fact of the petitioner, arrived in the Philippine with the will in the envelope and its copy Exhibit B. While Go Toh was showing this envelope to Apolonio Suntay and Angel Suntay, children by first marriage of the deceased, they snatched and opened it and, after getting its contents and throwing away the envelope, they fled. "Upon this allegation, the petitioner asks in this case that the brothers Apolonio, Angel, Manuel and Jose Suntay, children by the first marriage of the deceased, who allegedly have the document contained in the envelope which is the will of the deceased, be ordered to present it in court, that a

The fact that the municipal district court of Amoy, China, is a probate court must be proved. The law of China on procedure in the probate or allowance of wills must also be proved. The legal requirements for the execution of a valid will in China in 1931 should also be established by competent evidence. There is no proof on these points. The unverified answers to the questions propounded by counsel for the appellant to the Consul General of the Republic of China set forth in Exhibits R-1 and R-2, objected to by counsel for the appellee, are inadmissible, because apart from the fact that the office of Consul General does not qualify and make the person who holds it an expert on the Chinese law on procedure in probate matters, if the same be admitted, the adverse party would be deprived of his right to confront and cross-examine the witness. Consuls are appointed to attend to trade matters. Moreover, it appears that all the proceedings had in the municipal district court of Amoy were for the purpose of taking the testimony of two attesting witnesses to the will and that the order of the municipal district court of Amoy does not purport to probate the will. In the absence of proof that the municipal district court of Amoy is a probate court and on the Chinese law of procedure in probate matters, it may be presumed that the proceedings in the matter of probating or allowing a will in the Chinese courts are the same as those provided for in our laws on the subject. It is a proceedings in rem and for the validity of such proceedings personal notice or by publication or both to all interested parties must be

day be set for the reception of evidence on the will, and that the petitioner be appointed executrix pursuant to the designation made by the deceased in the will. "In answer to the court's order to present the alleged will, the brothers Apolonio, Angel, Manuel and Jose Suntay stated that they did not have the said will and denied having snatched it from Go Toh. "In view of the allegations of the petition and the answer of the brothers Apolonio, Angel, Manuel and Jose Suntay, the questions raised herein are: The loss of the alleged will of the deceased, whether Exhibit B accompanying the petition is an authentic copy thereof, and whether it has been executed with all the essential and necessary formalities required by law for its probate. "At the trial of the case on March 26, 1934, the petitioner put two witnesses upon the stand, Go Toh and Tan Boon Chong, who corroborated the allegation that the brothers Apolonio and Angel appropriated the envelope in the circumstances above-mentioned. The oppositors have not adduced any evidence counter to the testimony of these two witnesses. The court, while making no express finding on this fact, took it for granted in its decision; but it dismissed the petition believing that the evidence is insufficient to establish that the envelope seized from Go Toh contained the will of the deceased, and that the said will was executed with all the essential and necessary formalities required by law for its probate. "In our opinion, the evidence is sufficient to establish the loss of the document contained in the envelope. Oppositors' answer admits that, according to Barreto, he prepared a will of the deceased to which he later become a witness together with Go Toh and Manuel Lopez, an that this will was placed in an envelope which was signed by the deceased and by the instrumental witnesses. In court there was presented and attached to the case an open and empty envelope signed by Jose B. Suntay, Alberto Barretto, Go Toh and Manuel Lopez. It is thus undeniable that this envelope A is the same one that contained the will executed by the deceased drafted by Barretto and with the latter, Go Toh and Manuel Lopez as attesting witnesses. These tokens sufficiently point to the loss of the will of the deceased, a circumstance justifying the presentation of secondary evidence of its contents and of whether it was executed with all the essential and necessary legal formalities. "The trial of this case was limited to the proof of loss of the will, and from what has taken place we deduce that it was not petitioner's intention to raise, upon the evidence adduced by her, the other points involved herein, namely, as we have heretofore indicated, whether Exhibit B is a true copy of the will and whether the latter was executed with all the formalities

required by law for its probate. The testimony of Alberto Barreto bears importantly in this connection. "Wherefore, the loss of the will executed by the deceased having been sufficiently established, it is ordered that this case be remanded to the court of origin for further proceedings in obedience to this decision, without any pronouncement as to the costs. So ordered". On June 18, 1947, Silvino Suntay, the herein petitioner, filed a petition in the court of First Instance of Bulacan praying "that an order be issued (a) either directing the continuation of the proceedings in the case remanded by the Supreme Court by virtue of its decision in G. R. No. 44276 and fixing a date for the reception of evidence of the contents of the will declared lost, or the allowance, filing and recording of the will of the deceased which had been duly probated in China, upon the presentation of the certificates and authentications required by Section 41, Rule 123 (Yu Chengco vs. Tiaoqui supra), or both proceedings concurrently and simultaneously; (b) that letters of administration be issued to herein petitioner as co-administrator of the estate of the deceased together with Federico Suntay; and (c) that such other necessary and proper orders be issued which this Honorable Court deems appropriate in the premises." While this petition was opposed by Federico C. Suntay, son of the deceased Jose B. Suntay with his first wife, Manuela T. Cruz, the other children of the first marriage, namely, Ana Suntay, Aurora Suntay, Concepcion Suntay, Lourdes Guevara Vda. de Sunatay, Manuel Suntay and Emiliano Suntay, filed the following answer stating that they had no opposition thereto; "Come now the heirs Concepcion Suntay, Ana Suntay, Aurora Suntay, Lourdes Guevara Vda. de Suntay, Manuel Suntay, and Emiliano Suntay, through their undersigned attorney, and, in answer to the alternative petition filed in these proceedings by Silvino Suntay, through counsel, dated June 18, 1947, to this Honorable Court respectfully state that, since said alternative petition seeks only to put into effect the testamentary disposition and wishes of their late father, they have no opposition thereto."

"The decision of the Supreme Court (Exhibit O), in re will of the deceased Jose B. Suntay, 63 Phil., 793-797, is hereunder produced: (As quoted above) "The above quoted decision of the Supreme Court was promulgated on November 25, 1936 (Exhibit O). "The Clerk of the Court of Court of First Instance of Bulacan notified the parties of the decision on December 15, 1936; and the case was set for hearing on February 12, 1937, but it was transferred to March 29, 1937 (Exhibit C), on motion of the then petitioned until 'further setting' in the order of court dated March 18, 1937, upon motion of the petitioner (Exhibit H). "In the meantime, the deposition of Go Toh was being sought (Exhibit H). "The hearing of the case was again set for February 7, 1936, by order of the court dated January 5, 1938, upon motion of Emiliano Suntay and Jose Suntay, Jr. On the same day of the hearing which had been set, the petitioner, then, Maria Natividad Lim Bilian, set a telegram from Amoy, China, addressed to the Court of First Instance of Bulacan moving for the postponement of the hearing on the ground that Atty. Eriberto de Silva who was representing her died (Exhibit K). The court, instead of granting the telegraphic motion for postponement, dismissed the case in the order dated February 7, 1938 (Exhibit L). "On July 3, 1947, the petitioner Silvino Suntay filed a motion for the consolidation of the intestate Estate of the deceased Jose B. Suntay, Special Proceeding No. 4892 and the Testate Estate of Jose B. Suntay, Special Proceeding No. 4952, which latter case is the subject of the said alternative petition. The motion for the merger and consolidation of the two cases was granted on July 3, 1947. "The oppositor, Federico C. Suntay, in the Testate Proceeding filed a motion to dismiss the alternative petition on November 14, 1947, which was denied by the court in its resolution of November 22, 1947. The said oppositor not being satisfied with the ruling of this court denying the motion to dismiss, filed before the Supreme Court a petition for a writ of certiorari with preliminary injunction, which was dismissed for lack of merit on January 27, 1948. "In obedience to the decision of the Supreme Court (Exhibit O) and upon the alternative petition of Silvino Suntay, and, further, upon the dismissal of the petition for a writ of certiorari with preliminary injunction, the court was constrained to proceed with the hearing of the probate of the lost will,

After hearing, the Court of First Instance of Bulacan rendered on April 19, 1948, the following decision: "This action is for the legalization of the alleged will of Jose B. Suntay, deceased. "In order to have a comprehensive understanding of this case, it is necessary to state the background on which the alternative petition of the herein petitioner Silvino Suntay has been based.

the draft of which is Exhibit B, or the admission and recording of the will which had been probated in Amoy, China. "The evidence for the petitioner, Silvino Suntay, shows that Jose B. Suntay married twice; first to Manuela T. Cruz who died on June 15, 1920 and had begotten with her Apolonio, now deceased, Concepcion, Angel, Manuel, Federico, Ana, Aurora, Emiliano and Jose, Jr., all surnamed Suntay, and second, to Maria Natividad Lim Billian with whom he had as the only child Silvino Suntay, the petitioner herein. "Some time in November 1929, Jose B. Suntay executed his last will and testament in the office of Atty. Alberto Barretto in Manila, which was witnessed by Alberto Barretto, Manuel Lopez and Go Toh. The will was prepared by said Alberto Barretto upon the instance of Jose B. Suntay, and it was written in the Spanish language which was understood and spoken by said testator. After the due execution of the will, that is signing every page and the attestation clause by the testator and the witnesses in the presence of each other, the will was placed inside the envelope (Exhibit A), sealed and on the said envelope the testator and the three subscribing witnesses also signed, after which it was delivered to Jose B. Suntay. "A year or so after the execution of the will, Jose B. Suntay together with his second wife Maria Natividad Lim Billian and Silvino Suntay who was then of tender age went to reside in Amoy, Fookien, China, where he died on May 14, 1934. The will was entrusted to the widow, Maria Natividad Lim Billian. "Upon the death of Jose B. Suntay on May 14, 1934, Apolonio Suntay, the oldest son now deceased, instituted the Intestate Proceedings No. 4892, upon the presumption that no will existed. Maria Natividad Lim Billian who remained in Amoy, China, had with her the will and she engaged the services of the law firm of Barretto and Teodoro for the probate of the will. Upon the request of the said attorneys the will was brought to the Philippines by Go Toh who was one of the attesting witnesses, and it was taken to the law office of Barretto and Teodoro. The law firm of Barretto and Teodoro was composed of Atty. Alberto Barretto and Judge Anastacio Teodoro. The probate of the will was entrusted to the junior partner Judge Anastacio Teodoro; and, upon the presentation of the sealed envelope to him, he opened it and examined the said will preparatory to the filing of the petition for probate. There was a disagreement as to the fees to be paid by Maria Natividad Lim Billian, and as she (through Go Toh) could not agree to pay, P20,000 as fees, the will was returned to Go Toh by Judge Anastacio Teodoro after the latter had kept it in his safe, in his office, for three days. "Subsequently, the will inside the envelope was snatched from Go Toh by Manuel Suntay and Jose, Jr., which fact has been established in the decision of the Supreme Court at the beginning of this decision. Go Toh could

recover the envelope (Exhibit A) and the piece of cloth with which the envelope was wrapped (Exhibit C). "The Testate Proceeding was filed nevertheless and in lieu of the lost will a draft of the will (Exhibit B) was presented as secondary evidence for probate. It was disallowed by this court through Judge Buenaventura Ocampo, but on appeal the Supreme Court remanded the case to this court for further proceeding (Exhibit C ). "In the meantime, a Chinese will which was executed in Amoy Fookien, China, on January 4, 1931, by Jose B. Suntay, written in Chinese characters (Exhibit P) was discovered in Amoy, China, among the papers left by Jose B. Suntay, and said will had been allowed to probate in the Amoy District Court, China, which is being also presented by Silvino Suntay for allowance and recording in this court. "The said petition is opposed by Federico C. Suntay on the main ground that Maria Natividad Lim Billian and Silvino Suntay have no more interest in the properties left by Jose B. Suntay, because they have already sold their respective shares, interests and participations. But such a ground of opposition is not of moment in the instant case, because the proposition involved herein in the legalization of the lost will or the allowance and recording of the will which had been probated in Amoy, China. "It is now incumbent upon this court to delve into the evidence whether or not Jose B. Suntay, deceased, left a will (the draft of which is Exhibit B) and another will which was executed and another will which was executed and probated in Amoy, China. "There is no longer any doubt that Jose B. Suntay while he was still residing in the Philippines, had executed a will; such is the conclusion of the Supreme Court in its decision (Exhibit O). That the will was snatched and it has never been produced in court by those who snatched it, and consequently considered lost, is also an established fact. "The contention of the oppositor, Federico C. Suntay, is that the will that was executed by Jose B. Suntay in the Philippines contained provisions which provided for equal distribution of the properties among the heirs; hence, the draft (Exhibit B) cannot be considered as secondary evidence, because it does not provide for equal distribution, but it favors Maria Natividad Lim Billian and Silvino Suntay. He relies on the testimony of Atty. Alberto Barretto who declared that the first will which he drafted and reduced into a plain copy was the will that was executed by Jose B. Suntay and placed inside the envelope (Exhibit A). "Granting that the first will which Atty. Alberto Barretto had drafted became the will of Jose B. Suntay and it was snatched by, and, therefore, it

had fallen into the hands of, Manuel Suntay and the brothers of the first marriage, it stands to reason that said Manuel Suntay and brothers would have been primarily interested in the production of said will in court, for obvious reasons, namely, that they would have been favored. But it was suppressed and 'evidence willfully suppressed would be adverse if produced' (Section 69 (e), Rule 123 of the Rules of Court). The contention, therefore, that the first will which was drafted by Atty. Barretto was the one placed inside the envelope (Exhibit A) is untenable. "It might be said in this connection that the draft of the will (Exhibit B) has been admitted by Atty. Alberto Barretto as identical in substance and form to the second draft which he prepared in typewriting; it differs only, according to him, in style. He denied that the insertions in long hand in the said draft are in his own handwriting; however, Judge Anastacio Teodoro averred that the said insertions are the handwriting of Atty. Alberto Barretto. But when Atty. Alberto Barretto was asked to show any manuscript of his for purposes of comparison, he declined to do so alleging that he did not have any document in his possession showing his handwriting notwithstanding the fact that he was testifying in his own house at 188 Sta. Mesa Boulevard, Manila. Be further testified that the first will he drafted contained four or five pages, but the second draft contained twenty-three pages; that he declared in one breath that he did not read the will any more when it was signed by the testator and the attesting witnesses because it would take up much time, and in the same breath he declared that he checked it before it was signed; and that he destroyed the draft of the first will which was in his own handwriting, but he delivered the draft of the second will which he prepared to Jose B. Suntay in the presence of Manuel Lopez, now deceased.

"Whether or not the final plain copy of the draft of the will (Exhibit B) was executed by the testator, Jose B. Suntay, and attested by the subscribing witnesses, Atty. Alberto Barretto, Manuel Lopez and Go Toh, is the pivotal point in this instant case. Judge Anastacio Teodoro testified that he opened the sealed envelope when it was given to him by Go Toh preparatory to the presentation of the petition for the probate of the said will. As the lawyer entrusted with that task, he had to examine the will and have it copied to be reproduced or appended to the petition. He could not do otherwise if he is worth his salt as a good lawyer; he could not perform the stunt of 'blind flying' in the judicial firmament. Every step must be taken with certainty and precision under any circumstances. Be could not have talked about the attorney's fees with Go Toh, unless he has not examined the will beforehand. And, declaring that it was the exact draft of the will that was inside the envelope (Exhibit A), the testimony of Atty. Alberto Barretto to the contrary notwithstanding.

"The testimony of Judge Anastacio Teodoro is corroborated by Go Toh, one of the attesting witnesses, in his deposition (Exhibit D-1). "Ana Suntay, one of the heirs and who would be affected adversely by the legalization of the will in question, also testified on rebuttal that she saw the original will in the possession of Manuel Suntay, immediately after the snatching. She read it and she particularly remembers the manner in which the properties were to be distributed. Exhibit B was shown to her on the witness stand and she declared that the provision regarding the distribution of the properties in said Exhibit B is the same as that contained in the original will. Said testimony of Ana Suntay, therefore, belies the testimony of Atty. Alberto Barretto. "With respect to the proof of lost or destroyed will, Section 6 of Rule 77 provides as follows: 'No will shall be proved as a lost or destroyed will unless the execution and validity of the same be established, and the will is proved to have been in existence at the time of the death of the testator, or it is shown to have been fraudulently or accidentally destroyed in the lifetime of the testator without his knowledge, nor unless its provisions are clearly and distinctly proved by at least two credible witnesses. When a lost will is proved, the provisions thereof must be distinctly stated and certified by the judge, under the seal of the court, and the certificate must be filed and recorded as other wills are filed and recorded.' "Section 8 of the same Rule provides as follows: 'If it appears at the time fixed for the hearing that the subscribing witnesses are dead or insane, or that none of them resides in the Philippines the court may admit the testimony of other witnesses to prove the sanity of the testator, and the due execution of the will; and as evidence of the due execution of the will, it may admit proof of the handwriting of the testator and of the subscribing witnesses, or any of them.' "Manuel Lopez as one of the subscribing witnesses is dead. Atty. Alberto Barretto and Go Toh are still living. The former testified during the hearing, while Go Toh's deposition was introduced in evidence which was admitted. In the absence of the testimony of Manuel Lopez, deceased, the testimony of Judge Anastacio Teodoro and Ana Suntay was received. "It is an established fact that the will, draft of which is Exhibit B, was lost or destroyed; that it was executed and valid and that it existed at the time of the death of Jose B. Suntay. These circumstances also apply to the will (Exhibit P) which was executed in Amoy, China.

"The contents of the Chinese will is substantially the same as the draft (Exhibit B). Granting that the will executed in the Philippines is non-existent as contended by the oppositor, although the findings of this court is otherwise, the will executed and probated in China should be allowed and recorded in this court. All the formalities of the law in China had been followed in its execution, on account of which it was duly probated in the Amoy District Court. There is no cogent reason, therefore, why it should not be admitted and recorded in this jurisdiction. "The said will (Exhibit P) in Chinese characters is presented as an alternate in case the will executed in the Philippines would not be allowed to probate, or as a corroborative evidence that the will, the draft of which is Exhibit B, has been duly executed in the Philippines by Jose B. Suntay. "Rule 78 of the Rules of Court covers the allowance of will proved outside of the Philippines and administration of estate thereunder. "Section 1 of said rule provides: 'Wills proved and allowed in the United States, or any state or territory thereof, or in foreign country, according to the laws of such state, territory, or country, may be allowed, filed, and recorded by the proper Court of First Instance in the Philippines.' "Section 2 of the same rule provides: 'When a copy of such will and the allowance thereof, duly authenticated, is filed with a petition for allowance in the Philippines, by the executor or other person interested, in the court having jurisdiction, such court shall fix a time and place for the hearing, and cause notice thereof to be given as in case of an original will presented for allowance.' "This court has delved deep into the evidence adduced during the hearing with that penetrating scrutiny in order to discover the real facts; it has used unsparingly the judicial scapel; and it has winnowed the evidenced to separate the grain from the chaff. All the facts lead to the inevitable conclusion that Jose B. Suntay, in his sound and disposing mind and not acting under duress or undue influence, executed the will which is lost, the draft of which is Exhibit B, with all the necessary formalities prescribed by law. He, likewise, executed the second will (Exhibit P) in Amoy, China, which has been duly probated in Amoy District Court, a corroborative evidence that the testator really executed the will. Copies of the said wills duly certified and under the seal of the court are appended hereto, marked Exhibits B and P, and they form part of this decision.

"In view of the foregoing considerations, the court is of the opinion and so declares that the draft of the will (Exhibit B) is, to all legal intents and purposes, and testament of the deceased Jose B. Suntay. With costs against the oppositor, Federico C. Suntay." Oppositor Federico C. Suntay filed on May 20, 1948, a motion for new trial and to set aside the decision rendered on April 19, 1948, to which the petitioner filed an opposition, followed by a reply filed by the oppositor and an answer on the part of the petitioner. Without reopening the case and receiving any new or additional evidence, the Court of First Instance of Bulacan, on September 29, 1948, promulgated the following resolution setting aside his first decision and disallowing the wills sought to be probated by the petitioner in his alterative petition filed on June 18, 1947: "This is a motion for new trial and to set aside the decision legalizing the will of Jose B. Suntay and allowing and recording another will executed by him in Amoy, China. "By virtue of this motion, this court is constrained to go over the evidence and the law applicable thereto with the view of ascertaining whether or not the motion is well founded. Both parties have presented extensive memoranda in support of their respective contentions. "This court has gone over the evidence conscientiously, and it reiterates its findings of the same facts in this resolution, whether or not the facts established by the petitioner, Silvino Suntay, warrant the legalization of the lost will and the allowance and recording of the will that was executed in Amoy, China, is therefore, the subject of this instant motion. "A.As to the legalization of the Lost Will. There is no question in the mind of this court that the original will which Jose B. Suntay, deceased executed in the Philippines in the year 1929 was lost (Exhibit O, Decision of the Supreme Court). The evidence adduced by the petitioner during the hearing has established through the testimony of Judge Anastacio Teodoro and that of Go Toh (an attesting witness) that the will was executed by Jose B. Suntay, deceased, with all the formalities required by law. For the purpose of legalizing an original and existing will, the evidence on record is sufficient as to the execution and attesting in the manner required by law. "Section 8 of Pule 77 provides as follows: 'SEC. 8.Proof when witnesses dead or insane or do not reside in the Philippines. If it appears at the time fixed for the hearing that the subscribing witnesses are dead or insane, or that none of them resides in the Philippines, the court may admit the testimony of other witnesses to prove the sanity of the testator, and the due execution of the will; and as

evidence of the execution of the will, may admit proof of the handwriting of the testator and of the subscribing witnesses, or any of them.' "Section 11 of said rule also provides as follows: 'SEC. 11.Subscribing witnesses produced or accounted for where contest. If the will is contested, all the subscribing witnesses present in the Philippines and not insane, must be produced and examined, and the death, absence, or insanity of any of them must be satisfactorily shown to the court. If all or some of the subscribing witnesses are present in the Philippines, but outside the province where the will has been filed, their deposition must be taken. If all or some of the subscribing witnesses produced and examined testify against the due execution of the will, or do not remember having attested to it, or are otherwise of doubtful credibility, the will may be allowed if the court is satisfied from the testimony of other witnesses and from all the evidence presented that the will was executed and attested in the manner required by law."

"Section 6 of Rule 77 provides as follows: 'SEC. 6.Proof of lost or destroyed will Certificate thereupon. No will shall be proved as a lost will or destroyed will unless the execution and validity of the same be established, and the will is proved to have been in existence at the time of the death of the testator, or is shown to have been fraudulently or accidentally destroyed in the lifetime of the testator without his knowledge, nor unless its provisions are clearly and distinctly proved by at least two credible witnesses. When a lost will is proved, the provisions thereof must be distinctly stated and certified by the Judge, under the seal of the court and the certificate must be filed and recorded as other wills are filed and recorded.' (Emphasis Court's) "From the above quoted provision of the law, it is clear that the petitioner should not only establish the execution and validity of the will, its existence at the time of the death of the testator or its fraudulent and accidental destruction in the lifetime of the testator without his knowledge, but also must prove its provisions clearly and distinctly by at least two credible witnesses. The exact language of the clause in the above quoted provision of the law is 'nor unless its provisions are clearly and distinctly proved by at least two credible witnesses.' The legalization of a lost will is not so easy, therefore, as that of an original will. The question, therefore, is boiled down to, and projected on the screen, in a very sharp focus; namely, the execution and validity must be established and the provisions must be clearly and distinctly proved by at least credible witnesses. "Granting that the execution and validity of the lost will have been established through the testimony of Judge Anastacio Teodoro and Go Toh, and perhaps superficially by the rebuttal witness, Ana Suntay, does it follow that the provisions of the lost will have been clearly and distinctly proved by at least two credible witnesses? A careful review of the evidence has revealed that at most the only credible witness who testified as to the provisions of the will was Judge Anastacio Teodoro, and yet he testified on the provisions of the lost will with the draft (Exhibit B) in his hands while testifying. It may be granted, however, that with or without the draft of the will (Exhibit B) in his hands, he could have testified clearly and distinctly on the provisions of the said lost will, because he had kept the will in his safe, in his office, for three days, after opening it, and he is well versed in Spanish language in which the will as written. But did the attesting witness Go Toh, testify in his deposition and prove clearly and distinctly the provisions of the lost will? He did not, and he could not have done so even if he tried because the original will was not read to him nor by him before or at the signing of the same. It was written in Spanish and he did not and does not understand the Spanish language. Neither was there any occasion for him to have the contents of the said will, after its execution and sealing inside the envelope (Exhibit A), read to him because it was opened only when Judge Teodoro had examined it and then subsequently snatched from Go Toh. Ana Suntay on rebuttal did not, likewise, prove clearly and distinctly the provisions of

the said lost will because she has not had enough schooling and she does possess adequate knowledge of the Spanish language as shown by the fact that she had to testify in Tagalog on the witness stand. "It is evident, therefore, that although the petitioner has established the execution and validity of the lost will, yet he has not proved clearly and distinctly the provisions of the will by at least two credible witnesses. "B.As to the Allowance and Recording of the will Executed in Amoy, China. Jose B. Suntay, while he was residing in China during the remaining years of his life, executed also a will, written in Chinese characters, the translation of which is marked Exhibit P. It was allowed to probate in the District Court of Amoy, China. The question is whether or not the said will should be allowed and recorded in this jurisdiction. "Section 1 of Rule 78 provides as follows: 'SEC. 1.Will proved outside Philippines may be allowed here. Will proved and allowed in the United States, or any state or territory thereof, or in a foreign country, according to the laws of such state, territory, or country, may be allowed, filed, and recorded by the proper court of First Instance in the Philippines.' "Section 2 of the same Rule also provides: 'SEC. 2.Notice of Hearing for allowance. When a copy of such will and the allowance thereof, duly authenticated, is filed with a petition for allowance in the Philippines by the executor or other person interested, in the Court having jurisdiction, such court shall fix a time and place for the hearing, and cause notice thereof to be given as in case of an original will presented for allowance.' "Sections 41 and 42 of Rule 123 provides as follows: 'SEC. 41.Proof of Public or official record. An official record or an entry therein, when admissible for any purpose, may be evidenced by an official publication thereof or by a copy attested by the officer having the legal custody of the record, or by his deputy, and accompanied, if the record is not kept in the Philippines, with a certificate that such officer has the custody. If the office in which the record is kept is within the United States or its territory, the certificate may be made by a judge of a court of record of the district or political subdivision in which the record is kept, authenticated by the seal of the court, or may be made by any public officer having a seal of the office and having official duties in the district or political subdivision in which the record is kept, authenticated by the seal of his office. In the office in which the record is kept is in a foreign country, the

"The three attesting witnesses were Manuel Lopez, deceased Alberto Barretto and Go Toh. The last two witnesses are still living; the former testified against and the latter in favor. In other words, the attesting witness, Go Toh, only, testified in his deposition in favor of the due execution of the will. Hence, the petitioner presented another witness, Judge Anastacio Teodoro, to establish and prove the due execution of the said will. Ana Suntay was also presented as a witness in rebuttal evidence. The testimony of Go Toh in his deposition as an attesting witness, coupled with the testimony of Judge Anastacio Teodoro who was able to examine the original will that was executed by Jose B. Suntay, deceased, when it was given to him by Go Toh for the purpose of filing the petition in court for its legalization, and could recognize the signatures of the testator as well as of the three attesting witnesses on the said original will is sufficient to convince the court that the original will was executed by the deceased Jose B. Suntay with all the formalities required by law. The original will, therefore, if it was presented in court to probate would be allowed to all legal intents and purposes. But it was not the original will that was presented, because it was lost, but an alleged draft (Exhibit B) of the said original will which does not bear the signature of the testator and any of the attesting witness. The original will was duly executed with all the formalities required by law, but it was unfortunately lost; and the curtain falls for the next setting. "The Court is now confronted with the legalization of the lost will whether or not the draft (Exhibit B) should be admitted as secondary evidence in lieu of the lost will and allowed to probate.

certificate may be made by a secretary of embassy or legation, consul general, consul, vice consul, or consular agent or by any officer in the foreign service of the United States stationed in the foreign country in which the record is kept, and authenticated by the seal of his office.' 'SEC. 42.What attestation of copy must state. Whenever a copy of writing is attested for the purpose of evidence, the attestation must state, in substance, that the copy is a correct copy of the original, or a specific part thereof, as the case may be. The attestation must be under the official seal of the attesting officer, if there be any, or if he be the clerk of a court having a seal, under the seal of such court.' "In the case of Yu Changco vs. Tiaoqui, 11 Phil. 598, 599, 600, our Supreme Court said: 'Section 637 of the Code of Civil Procedure says that wills proved and allowed in a foreign country, according to the laws of such country, may be allowed, filed, and recorded in the Court of First Instance of the province in which the testator has real or personal estate on which such will may operate; but section 638 requires that the proof of the authenticity of a will executed in a foreign country must be duly "authenticated". Such authentication, considered as a foreign judicial record, is prescribed by section 304, which requires the attestation of the clerk or of the legal keeper of the records with the seal of the court annexed, if there be a seal, together with a certificate of the chief judge or presiding magistrate that the signature of either of the functionaries attesting the will is genuine, and, finally, the certification of the authenticity of the signature of such judge or presiding magistrate, by the ambassador, minister, consul, vice consul or consular agent of the United States in such foreign country. And, should the will be considered, from an administrative point of view, as a mere official document "of a foreign country", it may be proved, "by the original, or by a copy certified by the legal keeper thereof, with a certificate, under the seal of the country or sovereign, that the document is a valid and subsisting document of such country, and that the copy is duly certified by the officer having the legal custody of the original". (Sec. 313, par. 8).'

compliance with the law. The laws of a foreign jurisdiction do not prove themselves in our courts. The courts of the Philippine Islands are not authorized to take judicial notice of the laws of the various States of the American Union. Such laws must be proved as facts. (In re Estate of Johnson (1918), 39 Phil., 156.) Here the requirements of the law were not met. There was no showing that the book from which an extract was taken was printed or published under the authority of the State of West Virginia, as provided in section 300 of the Code of Civil Procedure. Nor was the extract from the law attested by the certificate of the officer having charge of the original under the seal of the State of West Virginia, as provided in section 301 of the Code of Civil Procedure. No evidence was introduced to show that the extract from the laws of West Virginia was in force at the time the alleged will was executed. 'It was also necessary for the petitioner to prove that the testator had his domicile in West Virginia and not in the Philippine Islands. The only evidence introduced to establish this fact consisted of the recitals in the alleged will and the testimony of the petitioner. 'While the appeal was pending submission in this court, the attorney for the appellant presented an unverified petition asking the court to accept as part of the evidence the documents attached to the petition. One of these documents discloses that a paper writing purporting to be the last will and testament of Edward Randolph Hix, deceased, was presented for probate on June 8, 1929, to the clerk of Randolph County, State of West Virginia, in vacation, and was duly proven by the oaths of Dana Vansley and Joseph L. Madden, the subscribing witnesses thereto, and ordered to be recorded and filed. It was shown by another document that in vacation, on June 8, 1929, the clerk of court of Randolph County, West Virginia, appointed Claude E. Maxwell as administrator, cum testamento annexo, of the estate of Edward Randolph Hix, deceased . . . However this may be no attempt has been made to comply with the provisions of sections 637, 638, and 639 of the Code of Civil Procedure, for no hearing on the question of the allowance of a will said to have been proved and allowed in West Virginia has been requested. . . ' "Granting that the will of Jose B. Suntay which was executed in Amoy, China, was validly done in accordance with the law of the Republic of China on the matter, is it necessary to prove in this jurisdiction the existence of such law in China as a prerequisite to the allowance and recording of said will? The answer is in the affirmative as enunciated in Fluemer vs. Hix, supra, and in Yaez de Barnuevo vs. Fuster, 29 Phil., 606. In the latter case, the Supreme Court said: 'A foreign law may be proved by the certificate of the officer having in charge of the original, under the seal of the state or country. It may also be proved by an official copy of the same published under the authority of the

particular state and purporting to contain such law. (Secs. 300 and 301, Act No. 190.), (Syllabus.) "The provisions of section 300 and 301 of the Code of Civil Procedure (Act No. 190) are as follows: 'SEC. 300.Printed laws of the State or Country. Books printed or published under the authority of the United States, or one of the States of the United States, or a foreign country, and purporting to contain statutes, codes, or other written law of such State or country or proved to be commonly admitted in the tribunals of such State or country an evidence of the written law thereof, are admissible in the Philippine Islands are evidence of such law.' 'SEC. 301.Attested copy of foreign laws. A copy of the written law or other public writing of any state or country, attested by the certificate of the officer having charge of the original, under the seal of the state or country, is admissible as evidence of such law or writing.' "The petitioner has presented in evidence the certification of the Chinese Consul General, Tsutseng T. Shen, of the existence of the law in China (Exhibit B-3), relative to the execution and probate of the will executed by Jose B. Suntay in Amoy, China (Exhibit P). Is that evidence admissible, in view of the provisions of Sections 41 and 42 of the Rules of the Rules of Court. Is the said certification of the Chinese Consul General in the Philippines a substantial compliance with the provisions of the above mentioned section 41 and 42 of our Rules of Court? "This court has its doubts as to the admissibility in evidence of the Chinese Consul General in the Philippines of the existence of the laws of Republic of China relative to the execution and probate of a will executed in China. Such law may exist in China, but 'An official record or an entry therein, when admissible for any purpose, may be evidence by an official publication thereof or by a copy attested by the officer having the legal custody of the record, or by his deputy, and accompanied, if the record is not kept in the Philippines, with a certificate that such officer has the custody. . . . If the office in which the record is kept is in a foreign country, the certificate may be made by a secretary of embassy or legation, consul general, consul, vice consul, or consular agent or by any officer in the foreign service of the United States stationed in the foreign country in which the record is kept, and authenticated by the seal of his office.' (Sec. 41 of Rule 123.) "The law of the Republic of China is a public or official record and it must be proved in this jurisdiction through the means prescribed by our Rules of Court. It is, therefore, obvious that the Chinese Consul General in the

"In the case of Fluemer vs. Hix, 54 Phil. 610, 611, 612, and 613, our Supreme Court said: 'It is the theory of the petitioner that the alleged will was executed in Elkins, West Virginia, on November 3, 1925, by Hix who had his residence in that jurisdiction, and that the laws of West Virginia govern. To this end, there was submitted a copy of section 3868 of Acts 1882, c. 84 as found in West Virginia Code, Annotated, by Hogg, Charles E., Vol. 2, 1914, p. 1690, and as certified to by the Director of the National Library. But this was far from

Philippines who certified as to the existence of such law is not the officer having the legal custody of the record, nor is he a deputy of such officer. And, if the office in which the record is kept is in a foreign country, the certificate may be made by a secretary of embassy or legation, consul general, consul, vice consul, or consular agent or by any officer in the foreign service of the United States stationed in the foreign country in which the record is kept, and authenticated by the seal of his office. It is clear, therefore, that the above provisions of the Rules of Court (Rule 123, sec 41) not having been complied with, the doubt of this court has been dissipated, and it is of the opinion and so holds that the certification of the Chinese Consul General alone is not admissible as evidence in the jurisdiction. "The evidence of record is not clear as to whether Jose B. Suntay, who was born in China, but resided in the Philippines for a long time, has become a Filipino citizen by naturalization, or he remained a citizen of the Republic of China. The record does not, likewise, show with certainty whether or not he had changed his permanent domicile from the Philippines to Amoy, China. His change of permanent domicile could only be inferred. But the question of his permanent domicile pales into insignificance in view of the overtowering fact that the law of China pertinent to the allowance and recording of the said will in this jurisdiction has been satisfactorily established by the petitioner. "Both the petitioner and the oppositor have extensively urged in their respective memorandum and in the oral argument in behalf of the oppositor the question of estoppel. The consideration of the points raised by them would open the door to the appreciation of the intrinsic validity of the provisions of the will which is not of moment at the present stage of the proceeding. While the probate of a will is conclusive as to the compliance with all formal requisites necessary to the lawful execution of the will, such probate does not affect the intrinsic validity of the provisions of the will. With respect to the latter the will is governed by the substantive law relative to descent and distribution. (In re Johnson, 39 Phil., 157). "IN VIEW OF THE FOREGOING, and upon reconsideration, the previous decision rendered in this case allowing the will (Exhibit B) and allowing and recording the foreign will (Exhibit P) is set aside; and this court is of the opinion and so holds that the said two wills should be, as they are hereby disallowed. Without special pronouncement as to costs." It is very significant that in the foregoing resolution, the Court of First Instance of Bulacan "reiterates its finding of the same facts in this resolution," and merely proceeds to pose the sole question "whether or not the facts established by the petitioner, Silvino Suntay, warrant the legalization of the lost will and allowance and recording of the will that was

executed in Amoy, China." The somersault executed by the trial court is premised on the ground that "although the petitioner has established the execution and validity of the lost will, yet he has not proved clearly and distinctly the provisions of the will by at least two credible witnesses"; and that, assuming that the will of Jose B. Suntay executed in Amoy, China, was in accordance with the law of the Republic of China, the certification of the Chinese Consul General in the Philippines as the existence of such law is not admissible evidence in this jurisdiction. In effect the resolution on the motion for reconsideration promulgated by the trial court, and the decision of the majority herein, adopt the position that the testimony of Judge Anastacio Teodoro as to the provisions of the lost will, while credible and perhaps sufficient in extent, is not corroborated by the witnesses Go Toh and Ana Suntay and, therefore, falls short of the requirement in section 6, Rule 77, of the Rules of Court that the provisions of the lost will must be "clearly and distinctly proved by at least two witnesses." That this requirement was obviously construed to mean that the exact provisions are to be established, may be deduced from the following dialogue between his Honor, Judge Potenciano Pecson, and Attorney Teofilo Sison, new counsel for oppositor Federico C. Suntay, who appeared for the first time at the ex parte hearing of oppositor's motion for new trial on September 1, 1949:

"Section 1865 of the Code requires that the provisions of a lost will must be clearly and distinctly proved by at least two credible witnesses before it can be admitted to probate; but this section must receive a liberal construction (Hook vs. Pratt, 8 Hun. 102-109) and its spirit is complied with by holding that it applies only to those provisions which affect the disposition of the testator's property and which are of the substance of the will." "The allegations of the contents of the will are general, and under ordinary circumstances, would be in sufficient; but the fact alleged, if proven as alleged, would certainly authorize the establishment of the will so far as its bequests are concerned. To require that a copy of the will or the language of the bequests, in detail, should be pleaded, where no copy has been preserved, and where the memory of the witnesses does not hold the exact words, would not only deny the substance for mere form, but would offer a premium upon the rascality of one whose interests might suggest the destruction of a will. As said in Anderson vs. Irwin, 101 Ill. 411: 'The instrument in controversy having been destroyed without the fault of the defendant in error . . . and there not appearing to be any copy of it in existence, it would be equivalent to denying the complainant relief altogether to require her to prove the very terms in which it was conceived. All that could reasonably be required of her under the circumstances could be to show in general terms the disposition which the testator made of his property by the instruments; that it purported to be his will and was duly attested by the requisite number of witnesses.' In Allison vs. Allison, 7 Dana 91, it was said in speaking of the character and extent of proof required in such a case:' nor is there any just ground to object to the proof because the witnesses have not given the language of the will or the substance thereof. They have given the substance of the different devises as to the property or interest devised, and to whom devised and we would not stop, in the case of a destroyed will, to scan with rigid scrutiny the form of the proof, provided we are satisfied of the substance of its provisions.' " (Joses vs. Casler 139 Ind. 392, 38 N. E. 812). "The evidence in the case falls short of establishing the existence of such a writing, except as it may be presumed, under the maxim Omnia presaumuntur in odium spoliateris." There was evidence tending to show that the second will of Anne Lambie was in the possession of Francis Lambie, and that it came to the hands of the proponents, warranting the inference that it has been suppressed or destroyed. If from this evidence the jury found such paper destroyed the law permits the presumption that it was legally drawn and executed, notwithstanding the terms of the statute, which requires the revoking instrument to be formally executed. If a will be lost, secondary evidence may be given of its contents; if suppressed or destroyed, the same is true; and, if necessary the law will prevent the perpetration of a fraud by permitting a presumption to supply the suppressed proof. We cannot assent to the proposition that the statute is so right as to be the wrong-doer's most effective weapon. The misconduct once established to the satisfaction of the jury, it is no hardship

"COURT:However, Rule 77, Section 6, provides in proving a lost will, the provisions of the lost will must be distinctly stated and certified by the Judge. "ATTY. TEOFILO SISON:Yes, Your Honor. "COURT:That presupposes that the judge could only certify to the exact provisions of the will from the evidence presented. "ATTY. TEOFILO SISON:That is our contention, provided that provision is clearly established by two credible witnesses so that the Court could state that in the decision, we agree, that is the very point. (t. s. n. 75, Session of Sept. 1, 1948)" The sound rule, however, as we have found it to be, as to the degree of proof required to establish the contents of a lost or destroyed will, is that there is sufficient compliance if two witnesses have substantiated the provisions affecting the disposition of the testator's properties; and this is especially necessary to prevent the "perpetration of fraud by permitting a presumption to supply the suppressed proof," to keep a wrong-doer from utilizing the rule as his "most effective weapon," or to avoid the enjoyment of a "premium from the rascality of one whose interests might suggest the destruction of a will."

to the wrongdoer to say. 'Produce the evidence in your possession, or we will presume that your opponent's contention is true.' When one deliberately destroys, or purposely induces another to destroy, a written instrument subsequently become a matter of judicial inquiry between the spoliator and an innocent party, the latter will not be required to make strict proof of the contents of such instrument in order to establish a right founded thereon. Brook, Leg. Max. 676, Preston vs. Preston, 132, Atl. 55, 61. (Re Lambie's Estate, 97 Mich. 55, 56 N. W. 225)" Judged from the standard set forth in the foregoing authorities, and bearing in mind that the circumstances of this case lead to the only conclusion that the loss of the will in question is of course imputable to those whose interests are adverse to the petitioner and the widow Lim Billian, we have no hesitancy in holding the view that the dispositions of the properties left by the deceased Jose B. Suntay as provided in his will which was lost or snatched in the manner recited in the decision of this Court in the case of Lim Billian vs. Suntay, 63 Phil., 798-797, had been more than sufficiently proved by the testimony of Judge Anastacio Teodoro, Go Toh, and Ana Suntay, supported conclusively by the draft of the lost will presented in evidence as Exhibit "B", and even by the testimony of oppositor Federico C. Suntay himself. It is to be recalled that the trial Judge, in his first decision of April 19, 1948, made the following express findings with respect to the testimony of Judge Teodoro: "Judge Anastacio Teodoro testified that he opened the sealed envelope when it was given to him by Go Toh preparatory to the presentation of the petition for the probate of the said will. As the lawyer entrusted with that task, he had to examine the will and have it copied to be reproduced or appended to the petition. He could not do otherwise if he is worth his salt as a good lawyer. He could not perform the stunt of 'blind flying' in the judicial firmament. Every step must be taken with certainty and precision under any circumstances. He could not have talked about the attorney's fees with Go Toh, unless he has not examined the will beforehand. And, when he was shown Exhibit B, he did not hesitate in declaring that it was the exact draft of the will that was inside the envelope (Exhibit A), the testimony of Atty. Alberto Barretto to the contrary notwithstanding." We should not forget, in this connection, that in the resolution on the motion for reconsideration the trial Judge reiterated the findings in his decision, although as regards the testimony of Judge Teodoro admittedly "the only credible witness who testified as to the provisions of the will," he observed that Judge Teodoro had the draft Exhibit "B" in his hands while testifying. We cannot see any justification for the observation, assuming that Judge Teodoro consulted the draft, since even the trial Judge granted that he "could have testified clearly and distinctly on the provisions of the said lost will, because he had kept the will in his safe, in his office, for three days, after opening it, and he is well versed in Spanish language in which the

will was written." As a matter of fact, however, it is not true that Judge Teodoro had the draft in question before him while testifying as may be seen from the following passages of the transcript: "Q.And, have you read that will which was inside this envelope, Exhibit A? "A. Yes. "Q.Do you remember more or less the contents of the will? "ATTY. FERRIN:With our objection, the best evidence is original will itself, Your Honor. "ATTY. RECTO:We are precisely proving by means of secondary evidence, the contents of the will, because according to the Supreme Court, and that is a fact already decided, that the will of Jose B. Suntay was lost and that is res judicata. "Court:Witness may answer. "WITNESS:I remember the main features of the will because as I said I was the one fighting for the postponement of the hearing of the intestate case because I was asked by Don Alberto Barretto to secure the postponement until the will that was executed by the deceased is sent here by the widow from China, with whom we communicated with several letters, and when the will arrived I had to check the facts as appearing in the will, and examined fully in connection with the facts alleged in the intestate, and there was a striking fact in the intestate that Apolonio Suntay has. "ATTY. FERRIN:(Interrupting) May we ask that the witness answer categorically the questions of Atty. Recto, it seems that the answers of the witness are kilometric . . . "ATTY. RECTO:Sometimes the question cannot be answered fully unless the witness would relate and give all the facts. "COURT:The Attorney for the Administrator may move for the striking out of any testimony that is not responsive to the question. "ATTY. FERRIN:That is why, our objection, the answer is out of the question. "COURT:Atty. Recto may propound another question. "ATTY. RECTO:I heard the witness was saying something and he has not finished the sentence, and I want to ask the Court just to allow the witness to finish his sentence.

"COURT:You may finish. "WITNESS:"A.There was a sentence, the point I was trying to check first was whether the value of the estate left by the deceased was SIXTY THOUSAND PESOS (P60,000.00) as Apolonio Suntay made it appear in his petition, and when I looked at the original will, I found out that it was several hundred thousand pesos, several thousands of pesos, hundreds of pesos, that was very striking fact to me because the petition for intestate was for SIXTY THOUSAND PESOS (P60,000.00), and I came to know that it was worth more than SEVEN HUNDRED THOUSAND (P700,000.00) PESOS.

"Q.Do you remember, Judge, the disposition of the will, the main disposition of the will? "A. Yes, because our client were the widow, Maria Natividad Lim Billian, and his son, Silvino, the only son in the second marriage, that was very important for me to know. "Q.How were the properties distributed according to that will? A. The properties were distributed into three (3) parts, one part which we call legitima corta, were equally distributed to the ten (10) children, nine (9) in the first marriage, and one (1) in the second marriage with Maria Natividad Lim Billian. The other third, the betterment was given to four (4) children, Concepcion, and Apolonio getting a quite substantial share in the betterment, around SIXTY THOUSAND (P60,000.00) for Concepcion, Apolonio the the amount of SEVENTY THOUSAND (70,000.00) PESOS or little over, and then about ONE HUNDRED THOUSAND (P100,000.00) PESOS of the betterment in favor of Silvino, the minor of the second marriage, and to Jose equal to Concepcion. "Q.So the betterment, as I understand from you went to four (4) children 7. "A. Yes. "Q.Silvino in the second marriage, Concepcion, Apolonio and Jose in the first marriage? "A. Yes. "Q.What about the free disposal? "A. The free disposal was disposed in favor of the widow, Maria Natividad Lim Billian and Silvino, his minor son in equal parts. "Q.What about if you remember, if there was something in the will in connection with that particular of the usufruct of the widow? "A. It was somewhat incorporated into the assets of the estate left by the deceased. "Q.Do you remember the number of pages of which that will consisted? "A. Twenty-three (23) pages.

"Q.Do you remember if the pages were signed by the testator? "A. Yes, sir, it was signed. "Q.And the foot of the testament or the end of the testament, was it signed by the testator? "A. Yes, sir, and the attestation clause was the last page signed by the three instrumental witnesses, Alberto Barretto, one Chinaman Go Toh, and Manuel Lopez, my former Justice of the Peace of Hagonoy. "Q.Do you remember if these witnesses signed on the different pages of the will? "A. Yes, sir, they signed with their name signatures." "Q.Showing you this document consisting of twenty-three (23) pages in Spanish and which document appears already attached to this same testamentary proceedings and already marked as EXHIBIT B, will you please tell the Court if and for instance on page eight (8) of this document, pagina octavo, it says, there are handwritings in pencil, some of which read as follows: 'Los cinco octavos (5/8) partes corresponds a mi hijo Emiliano', can you recognize whose handwriting is that? "A. From my best estimate it is the handwriting of Don Alberto Barretto. "Q.About the end of the same page eight (8) pagina octavo, of the same document Exhibit B, there is also the handwriting in pencil which reads: 'La otra sexta parte (6.a) corresponde a Bonifacio Lopez', can you recognize that handwriting? "A. Yes, sir, this is the handwriting of Don Alberto Barretto, and I wish to call the attention of the Court to compare letter "B" which is in capital letter with the signature of Don Alberto Barretto in the envelope, 'Alberto Barretto' and stroke identifies one hand as having written those words. "Q.Will you please go over cursorily this document, Exhibit B composed of twenty-three (23) pages and please tell the Court if this document had anything to do with the will which according to you was contained in the envelope, Exhibit A? "A. This is exactly the contents of the original will which I received and kept in my office inside the safe for three (3) days, and I precisely took special care in the credits left by the deceased, and I remember among them, were the De Leon family, and Sandiko, well known to me, and then the disposition of the estate, divided into three (3) equal parts, and I noticed that they are the contents of the will read." His Honor, Judge Pecson, was positive in his first decision that "the testimony of Judge Anastacio Teodoro is corroborated by Go Toh, one of the attesting witnesses, in his deposition (Exhibit D-1)." Yet in setting aside his first decision, he remarked that Go Toh's testimony did not prove clearly and distinctly the provision of the lost will, because: "He did not, and he could not have done so even if he tried because the original will was not read to him nor by him before or at the signing of the same. It was written

in Spanish and he did not and does not understand the Spanish language. Neither was there any occasion for him to have the contents of the said will, after its execution and sealing inside the envelope (Exhibit A), read to him, because it was opened only when Judge Teodoro had examined it and then subsequently snatched from Go Toh." The later position thus taken by Judge Pecson is palpably inconsistent with the following unequivocal statements of Go Toh contained in his desposition taken in Amoy, China, on April 17, 1938, and in opositor's Exhibit "6": "26.State what you know of the contents of that will. ". . . Regarding (1) expenditures (2) Philippine citizenship; (3) Distribution of estates among children (4) Taking care of grave lot; (5) guardianship of Silvino Suntay and (6) after paying his debts he will have approximately 720,000 pesos left. This amount will be divided into three equal parte of 240,000 parts each. The first part is to be divided equally among the ten children born by the first and second wives and the second part among the three sons Silvino Suntay, 75,000 approximately; Apolonio Suntay, 50,000 pesos approximately; Jose Suntay and Concepcion Suntay, 36,000 each approximately. The third part is to be divided between Maria Lim Billian and Silvino Suntay; each will get approximately 110,000 pesos. Silvino Suntay will get a total of 210,000 pesos approximately, Maria Natividad Lim Billian a total of 290,000 approximately, and Apolonio Suntay a total of 80,000 approximately, Concepcion Suntay and Jose Suntay will get 60,000 pesos each approximately. The rest of the children will get approximately 29,000 each. The way of distribution of the property of Jose B. Suntay, movable and immovable, and the outstanding debts to be collected was arranged by Jose B. Suntay." xxx xxx xxx "78.On the occasion of the execution of the testament of Jose B. Suntay, state whether or not you say Exhibit B . . . Yes. "79.In the affirmative case, state if you know who had the possession of Exhibit B and the testament the first time you saw them on that occasion. . . .Yes, I know who had possession of them. "80.Can you say whether or not Jose B. Suntay happened to get those documents later on, on that same occasion? . . . He got them after the execution. "81.Please name the person who gave those documents to Mr. Suntay. . . . Alberto Barretto gave the documents to Jose B. Suntay,

"82.Did the person who gave those documents to Suntay say anything to him (Suntay) at the time of giving them? . . . Yes. "83.If so what was it that he said, if he said any? . . . He said, 'You had better see if you went any correction.' "84.What did Mr. Suntay do after those documents were given to him? . . . Jose B. Suntay looked at them and then gave one copy to Manuel Lopez for checking. "85.State whether or not Mr. Suntay gave one of those documents to another man. . . . Yes. "86.In the affirmative case, can you say which of the two documents was given and who the men was? . . . Yes he gave Exhibit B to Manuel Lopez. "87.State whether or not Mr. Suntay said something to the man to whom he gave one of those documents. . . . Yes. "88.In the affirmative case can you repeat more or less what Mr. Suntay said to that man? . . .. Be told him to read it for checking. "89.State if you know what did the man do with one of those documents given to him. . . . He took it and read it for checking. "90.What did in turn Mr. Suntay do with the other one left with him? . . . Jose B. Suntay looked at the original and checked them. "91.What was done with those documents later on if there was anything done with them? . . . After checking, Jose B. Suntay put Exhibit B in his pocket and had the original signed and executed. "92.What was done with the testament of Jose B. Suntay after it was signed by the testator and its witnesses? . . . It was taken away by Jose B. Suntay." (Exhibit D, D-1.). "Q.Did you know the contents of this envelope? "A. I knew that it was a will. "Q.But did you know the provisions of the will? "A. It is about the distribution of the property to the heirs. "Q.Did you know how the property was distributed according to the will? "A. I know that more than P500,000 was for the widow and her son, more than P100,000 for the heirs that are in the family." (Exhibit "6", p. 28).

Q.You stated that you were one of the witnesses to the will and that the will was written in Spanish. Was it written in typewriting or in handwriting of somebody? "A. That will was written in typewriting. "Q.Did you read the contents of that will, or do you know the contents of that will? A. No, sir, because I do not know Spanish. "Q.How do you know that it was the will of Jose B. Suntay? "A. Because I was one of the signers and I saw it." (Exhibit "6", p. 19.) "22.Do you understand the language in which that will was written? . . . I know a little Spanish." "23.Do you talk or write that language? I can write and talk a little Spanish." (Exhibits D, D-1.) As to Ana Suntay's corroborating testimony, Judge Pecson aptly made the following findings: "Ana Suntay, one of the heirs and who would be affected adversely by the legalization of the will in question, also testified on rebuttal that she saw the original will in the possession of Manuel Suntay immediately after the snatching. She read it and she particularly remembers the manner in which the properties were to be distributed. Exhibit B was shown to her on the witness stand and she declared that the provision regarding the distribution of the properties in said Exhibit B is the same as that contained in the original will. Said testimony of Ana Suntay, therefore, belies the testimony of Atty. Alberto Barretto." And yet in the resolution on the motion for new trial, the trial Judge had to state that "Ana Suntay on rebuttal did not, likewise, prove clearly and distinctly the provisions of the said lost will, because she has not had enough schooling and she does not possess adequate knowledge of the Spanish language as shown by the fact that she had to testify in Tagalog on the witness stand." The potent error committed by Judge Pecson in reversing his views as regards Ana's testimony, is revealed readily in the following portions of the transcript:.

"P.Usted personalmente leyo el documento? "R. Yo leyo mi hermano en presencia mia. "P.La pregunta es, si usted personalmente ha leido el documento? "R. Si, lo he visto. "P.No solamente le pregunto a usted si Vd. ha visto el testamento sino si usted ha leido personalmente el testamento? "R. Si la parte de la adjudicacion lo he leido para asegurarme a que porcion corrasponder a cada uno de nosotros. "P.Puede usted repetir poco mas o menos esa porcion a que se hacia la distribucion del alegado testamento? "R. Como ya he declarado, que las propiedades de mi difunto padre se habian dividido en tres partes, una tercera parte se nos adjudica a nosotros diez (10) hijos en primeros nupcias y segunda nupcia, la segunda tercera parte los adjudica a la viuda y a Silvino, y la otra tercera parte se lo adjudica a sus hijos como mejora a Silvino, Apolonio, Concepcion y Jose. "P.Eso, tal como usted personalmente lo leyo en el documento? "R. Si Senor. "P.Quiere usted tener la bondad, seora, de repetir poco mas o menos las palabras en ese documento que se distribuia las propiedades del defundo padre usted como usted relata aqui? "ABOGADO RECTO: Objetamos a la pregunta por falta de base, porque elle solamente sa fijo en la parte como se distribuian las propiedades pero no ha dicho la testigo que ella lo ha puesto de memoria, ni Vd. ha preguntado en que lenguaja estaba escrito el testamento . . "JUZGADO:Se estima. "ABOGADO MEJIA: "P.Sabe usted en que lenguaje estaba redactado el documento que usted leyo personalmente? "R. En Castellano. "P.Puede usted repetirnos ahora en Castellano algunas frases o palabras como se hizo la distribucion en aquel supuesto testamento? "ABOGADO RECTO:Objecion, por falta de base, uno puede entender el espaol y sin embargo no podra repetir lo que ha leido, y no se sabe todavia si ha estudiado el espaol bastante hasta el punto de poder hablarlo. "JUZGADO:Se estima.

Abogado Mejia. "P.Usted dijo que estaba puesto en castellano el supuesto testamento que Vda. leyo, usted poso el castellano? "R. Yo entiendo el castellano, pero no puedo hablar bien. "P.Usted estudio el castellano en algun colegio? "R. Si, seor, en Sta. Catalina. "P.Cuantos aos? "R. Nuestros estudios no han sido continuous porque mi padre noe ingresaba en el colegio y despues nos sacaba para estar afuera, y no era continuo nuestro estudio. "P.Pero en total, como cuantos meses o aos estaba usted en el colegio aprendiendo el castellano? "R. Unos cuatro o cinco aos. "P.Entonces usted puede leer el castellano con facilidad, senora? "R. Si, castellano sencillo puedo entender y lo puedo leer. "P.Usted entiende las preguntas que se le dirigian aqui en castellano sin interpretacion o sin el interprete? "R. Si, Seor. "P.Puede usted contestar en castellano? "R. Bueno, pero como usted debe comprender quisiera asegurarme del significado antes de contestar, por eso quiero que la pregunta se me traduzca antes. asi puedo contestar debidamente." (t. s. n. pp. 533-534.) We are really at a loss to understand why, without any change whatsoever in the evidence, the trial Judge reversed his first decision, particularly when he announced therein that "it is now incumbent upon this court to delve into the evidence whether or not Jose B. Suntay, deceased, left a will (the draft of which is Exhibit B) and another will which was executed and probated in Amoy, China." His action is indeed surprising when we take into account the various circumstantial features presently to be stated, that clearly confirm the testimony of Judge Anastacio Teodoro, Go Toh and Ana Suntay, or otherwise constitute visible indicia of oppositor's desire to frustrate the wishes of his father, Jose B. Suntay. In our opinion the most important piece of evidence in favor of the petitioner's case is the draft of the lost will, Exhibit "B." Its authenticity cannot be seriously questioned, because according to the trial Judge himself, oppositor's own witness, Atty. Alberto Barretto, admitted it to be "identical in substance and form to the second draft which he prepared in typewriting." Indeed, all the "A's" and "B's" in the handwritten insertions on the draft are very similar to those in Barretto's admittedly genuine signature on the envelope, Exhibit "A." The finding of Judge Pecson on the

"P.Cuantas paginas tenia aquel documento a que usted se refiere? R. Probablemente seria mas de veinte (20) paginas. "P.No serian treinta (30) paginas? "ABOGADO RECTO: La testigo ha contestado ya que mas de veinte (20). "JUZGADO:Se estima. "ABOGADO MEJIA:

point in his first decision (reiterated expressly in the resolution on the motion for new trial), should control, not only because it is in accordance with the evidence but because the oppositor had failed and did not even attempt to have the trial Judge reconsider or reverse his factual conclusions. The draft, Exhibit "B," having been positively identified by the witnesses for the petitioner to be an exact copy of the lost will of Jose B. Suntay, is therefore conclusive. Oppositor's effort to show that said draft was never signed in final form, and was thought of merely to deceive petitioner's mother, Lim Billian, and that the will actually executed and put in the envelope, Exhibit "A", provided that the testator's estate would be divided equally among his heirs, as in the case of intestacy, was necessarily futile because, if this allegation is true, the will would not have been "snatched" from Go Toh and the loss certainly cannot be imputed to the widow Lim Billian or the petitioner; the snatched will would have been produced to put an end to petitioner's and his mother's claim for greater inheritance or participation under the lost will; and the envelope containing the first will providing for equal shares, would not have been entrusted to the care and custody of the widow Lim Billian. It is very noteworthy that out of the nine children of the first marriage, only Angel, Jose and Federico Suntay had opposed the probate of the will in question; the rest, namely, Ana, Aurora, Concepcion, Lourdes, Manuel and Emiliano Suntay, having expressly manifested in their answer that they had no opposition thereto, since the petitioner's alternative petition "seeks only to put into effect the testamentary disposition and wishes of their late father." This attitude is significantly an indication of the justness of petitioner's claim, because it would have been to their greater advantage if they had sided with oppositor Federico Suntay in his theory of equal inheritance for all the children of Jose B. Suntay. Under the lost will or its draft Exhibit "B", each of the Suntay children would receive only some P25,000.00, whereas in case of intestacy or under the alleged will providing for equal shares, each of them would receive some P100,000.00. And yet the Suntay children other than Angel, Jose and Federico had chosen to give their conformity to the alternative petition in this case. Another unequivocal confirmation of the lost will is the will which Jose B. Suntay executed in Amoy, Fookien, China, on January 4, 1931, and probated in Amoy District Court, China, containing virtually the same provisions as those in the draft Exhibit "B". What better evidence is there of an man's desire or insistence to express his last wishes than the execution of a will reiterating the same provisions contained in an earlier w ill. Assuming that the Chinese will cannot be probated in the jurisdiction, its probative value as corroborating evidence cannot be ignored. Oppositor himself had admitted having read the will in question under which the widow Lim Billian was favored; and this again in a way goes to corroborate the evidence for the petitioner as to the contents of the will sought to be probated.

"COURT: "Q.Have you read the supposed will or the alleged will of your father? "A.Yes, sir. "COURT: "Q.Can you tell the court the share or participation in the inheritance of Maria Natividad Lim Billian according to the will? "A.Yes sir, she will inherit, I think, two-thirds (2/3) of the estate, in other words she is the most favored in the will, so when they sold that, they sold everything, they are selling everything even the conjugal property." (t. s. n. 228-229.) The decision of the majority leans heavily on the testimony of Atty. Alberto Barretto, forgetful perhaps of the fact that the trial Judge gave no credence to said witness. It should be repeated that Judge Pecson reiterated in the resolution on the motion for new trial all his findings in the first decision. If as Atty. Barretto testified, Lim Billian was entitled under the will actually signed by Jose Suntay only to P10,000.00, in addition to properties in China valued at P15,000.00, the fees of P25,000.00 admittedly asked by him would absorb her entire inheritance; and this would normally not be done by any law practitioner. Upon the other hand, there is evidence to the effect that Atty. Barretto might have become hostile to the petitioner and his mother Lim Billian in view of the latter's refusal to agree to the amount of P25,000.00 and her offer to pay only P100.00. There is also evidence tending to show that as early as 1942, Atty. Barretto was paid by oppositor Federico Suntay the sum of P16,000.00 which, although allegedly for services in the testate proceedings, was paid out of the personal funds of said oppositors to supply Atty. Barretto's needs. This circumstances perhaps further explains why the latter had to support the side of Federico Suntay. We have quoted in full the decision of this court in the "snatching" case and the first decision of Judge Pecson in this case, both in the hope and in the belief (1) that the first would reveal the manner by which those adversely affected had planned to prevent the last wishes of the deceased Jose B. Suntay from being carried out, and (2) that the second, by the facts correctly recited therein and by the force and accuracy of its logic would amply show the weakness and utter lack of foundation of the resolution on the motion for reconsideration. We have set forth at length pertinent portions of the testimony of various witnesses to demonstrate more plainly the plausibility of the original decision of Judge Pecson, and the latter's consequent bad judgment in having forced himself to accomplish a somersault, a feat which the majority, in my opinion, have mistakenly commended. We have found this to be one of the cases of this court in

which we have had occasion to participate, where there can be absolutely no doubt as to the result - outright reversal - for which, with due respect to the majority opinion, we vote without hesitancy.

Montemayor and Jugo, JJ., concur. RESOLUTION November 5, 1954 PADILLA, J.: This is a motion for reconsideration of the decision promulgated on 31 July 1954, affirming the decree of the Court of First Instance of Bulacan which disallowed the alleged last will and testament executed in November 1929 and the alleged last will and testament executed in Kulangsu, Amoy, China, on 4 January 1931, by Jose B. Suntay, without pronouncement as to costs, on grounds that will presently be taken up and discussed. Appellant points to an alleged error in the decision where it states that . . . This petition was denied because of the loss of said will after the filing of the petition and before the hearing thereof, . . . because according to him the "will was lost before not after (the) filing of the petition." This slight error, if it is an error at all, does not, and cannot, after the conclusions and pronouncements made in the judgment rendered in the case. In his alternative petition the appellant alleges: 4.That on October 15, 1934, Maria Natividad Lim Billian, the mother of the herein petitioner filed a petition in this court for the allowance and probate of a last will and testament executed, and signed in the Philippines in the year 1929 by said deceased Jose B. Suntay. (P. 3, amended record on appeal.) If such last will and testament was already lost or destroyed at the time of the filing of the petition by Maria Natividad Lim Billian (15 October 1934), the appellant would have so stated and alleged. If Anastacio Teodoro, a witness for the appellant, is to be believed when he testified . . . that one day in November 1934 (p. 273, t. s. n., hearing of 19 January 1948), . . . Go Toh arrived at his law office in the De los Reyes Building and

left an envelope wrapped in red handkerchief [Exhibit C] (p. 32, t. s. n., hearing of 13 October 1947);. . . and If the will was snatched after the delivery thereof by Go Toh to Anastacio Teodoro and returned by the latter to the former because they could not agree on the amount of fees, . . . then on 15 October 1934, the date of the filing of the petition, the will was not yet lost. And if the facts alleged in paragraph 5 of the appellant's alternative petition which states: That this Honorable Court, after hearing, denied the aforesaid petition for probate filed by Maria Natividad Lim Billian in view of the loss and/or destruction of said will subsequent to the filing of said petition and prior to the hearing thereof, and the alleged insufficiency of the evidence adduced to established the loss and/or destruction of the said will, (Emphasis supplied. P. 3, amended record on appeal.) may be relied upon, then the alleged error pointed out by the appellant, if it is an error, is due to the allegation in said paragraph of his alternative petition. Did the appellant allege the facts in said paragraph with reckless abandon? Or, did the appellant make the allegation as erroneously as that which he made in paragraph 10 of the alternative petition that "his will which was lost and ordered probated by our Supreme Court in G. R. No. 44276, above referred to?" (P. 7, amended record on appeal.) This Court did not order the probate of the will in said case because if it did, there would have been no further and subsequent proceedings in the case after the decision of this Court referred to had been rendered and had become final. Be that as it may, whether the loss of the will was before or subsequent to the filing of the petition, as already stated, the fact would not affect in the slightest degree the conclusions and pronouncements made by this Court. The appellant advances the postulate that the decision of this Court in the case of Lim Billian vs. Suntay, G. R. No. 44276, 63 Phil., 793, constitues res judicata on these points: (a) that only one will was prepared by attorney Baretto, and (b) that the issue to be resolved by the trial court was whether the draft (Exhibit B) is a true copy or draft of the snatched will, and contends that these points already adjudged were overlooked in the majority opinion. The decision of this Court in the case referred to does not constitute res judicata on the points adverted to by the appellant. The only point decided in that case is that "the evidence is sufficient to establish the loss of the document contained in the envelope." In the opinion of this Court, this circumstance justified "the presentation of secondary evidence of its contents and of whether it was executed with all the essential and

necessary legal formalities." That is all that was decided. This Court further said: The trial of this case was limited to the proof of loss of the will, and from what has taken place we deduce that it was not petitioner's intention to raise, upon the evidence adduced by her, the other points involved herein, namely, as we have heretofore indicated, whether Exhibit B is a true copy of the will and whether the latter was executed with all the formalities required by law for its probate. the testimony of Alberto Barretto bears importantly in this connection. (P. 796, supra.) Appellant's contention that he question before the probate court was whether the draft (Exhibit B) is a true copy or draft of the snatched will is a mistaken interpretation and view of the decision of this Court in the case referred to, for if this Court did make that pronouncement, which, of course, it did not, such pronouncement would be contrary to law and would have been a grievous and irreparable mistake, because what the Court passed upon and decided in that case, as already stated, is that there was sufficient evidence to prove the loss of the will and that the next step was to prove by secondary evidence its due execution in accordance with the formalities of the law and its contents, clearly and distinctly, by the testimony of at least two credible witnesses. 1 The appellant invokes Rule 133 to argue that Rule 77 should not have been applied to the case by the provisions of section 623 of the Code and Civil Procedure (Act No. 190), for the reason that this case had been commenced before the Rules of Court took effect. But Rule 133 cited by the appellant provides: These rules shall take effect on July 1, 1940. They shall govern all cases brought after they take effect, and also all further proceedings in cases then pending, except to the extent that in the opinion of the court their application would not be feasible or would work injustice, in which event the former procedure shall apply. (Emphasis supplied.) So, Rule 77 applies to this case because it was a further proceedings in case then pending. But even if section 623 of the Code of Civil Procedure were to be applied, still the evidence to prove the contents and due execution of the will and the fact of its unauthorized destruction, cancellation, or obliteration must be established "by full evidence to the satisfaction of the Court." This requirement may even be more strict and exacting than the two - witness rule provided for in section 6, Rule 77. The underlying reason for the exacting provisions found in section 623 of Act No. 190 and section 6, Rule 77, the product of experience and wisdom, is to prevent imposters from foisting, or at least to make for them difficult to foist, upon probate courts alleged last wills or testaments that were never executed.

In commenting unfavorably upon the decree disallowing the lost will, both the appellant and the dissenting opinion suffer from an infirmity born of a mistaken premise that all the conclusions and pronouncements made by the probate court in the first decree which allowed the probate of the lost will of the late Jose B. Suntay must be accepted by this Court. This is an error. It must be borne in mind that this is not a petition for a writ of certiorari to review a judgment of the Court of Appeals on questions of law where the findings of fact by said Court are binding upon this Court. This is an appeal from the probate court, because the amount involved in the controversy exceeds P50,000, and this Court in the exercise of its appellate jurisdiction must review the evidence and the findings of fact and legal pronouncements made by the probate court. If such conclusions and pronouncements are unjustified and erroneous this Court is in duty bound to correct them. Not long after entering the first decree the probate court was convinced that it had committed a mistake, so it set aside the decree and entered another. This Court affirmed the last decree not precisely upon the facts found by the probate court but upon facts found by it after a careful review and scrutiny of the evidence, parole and documentary. After such review this Court has found that the provisions of the will had not been established clearly and distinctly by at least two credible witnesses and that conclusion is unassailable because it is solidly based on the established facts and in accordance with law. The appellant and the dissent try to make much out of a pleading filed by five (5) children and the widow of Apolonio Suntay, another child of the deceased by the first marriage, wherein they state that . . . in answer to the alternative petition filed in these proceedings by Silvino Suntay, through counsel, dated June 18, 1947, to this Honorable Court respectfully state that, since said alternative petition seeks only to put into effect the testamentary disposition and wishes of their late father, they have no opposition thereto. (Pp. 71-72, amended record on appeal.) Does that mean that they were consenting to the probate of the lost will? Of course not. If the lost will sought to be probated in the alternative petition was really the will of their late father, they, as good children, naturally had, could have, no objection to its probate. That is all that their answer implies and means. But such lack of objection to the probate of the lost will does not relieve the proponent thereof or the party interested in its probate from establishing its due execution and proving clearly and distinctly the provisions thereof by at least two credible witnesses. It does not mean that they accept the draft Exhibit B as an exact and true copy of the lost will and consent to its probate. Far from it. In the pleading copied in the dissent, which the appellant has owned and used as argument in the motion for reconsideration, there is nothing that may bolster up his contention. Even if all the children were agreeable to the probate of said lost will, still the due execution of the lost will must be established and the provisions thereof proved clearly and distinctly by at least two credible

witnesses, as provided for in section 6, Rule 77. The appellant's effort failed to prove what is required by the rule. Even if the children of the deceased by the first marriage, out of generosity, were willing to donate their shares in the estate of their deceased father or parts thereof to their step mother and her only child, the herein appellant, still the donation, if validly made, would not dispense with the proceedings for the probate of the will in accordance with section 6, Rule 77, because the former may convey by way of donation their shares in the state of their deceased father or parts thereof to the latter only after the decree disallowing the will shall have been rendered and shall have become final. If the lost will is allowed to probate there would be no room for such donation except of their respective shares in the probated will.

inference is that it was Apolonio and not Manuel who went away." This inference made by the appellant not only is not obvious but it is also illogical, if it be borne in mind that Manuel came to the house of Apolonio and it happened that Ana was there, according to her testimony. So the sentence "he went away" in Ana's testimony must logically and reasonably refer to Manuel, who was a caller or visitor in the house of his brother Apolonio and not to the latter who was in his house. If it was Apolonio who "went away," counsel for the appellant could have brought that out by a single question. As the evidence stands could it be said that the one who went away was Apolonio and not Manuel? The obvious answer is that it was Manuel. That inference is the result of a straight process of reasoning and clear thinking. There is a veiled insinuation in the dissent that Alberto Barretto testified as he did because he had been paid by Federico C. Suntay the sum of P16,000. Federico C. Suntay testifies on the point thus Q.You mentioned in your direct testimony that you paid certain amount to Atty. Alberto Baretto for services rendered, how much did you pay? A.Around SIXTEEN THOUSAND (P16,000.00). Q.When did you make the payment? A.During the Japanese time. Q.Did you state that fact in any accounts you presented to the Court? A.I do not quite remember that. . . . (P. 180, t. s. n., hearing of 24 October 1947.) Q.When you made that payment, was (it) your intention to charge it to the state or to collect it later from the estate? A.Yes, sir. Q.More or less when was such payment made, during the Japanese time, what particular month and year, do you remember? A.I think in 1942. Q.And you said you paid him because of services he rendered? A.Upon the order to the Court.

Q.And those services were precisely because he made a will and he made a will which was lost, the will of Jose B. Suntay? . . . (P. 181, t. s. n., supra.) A.I think I remember correctly according to ex-Representative Vera who is the administrator whom I followed at that time, that was paid according to the services rendered by Don Alberto Barretto with regard to our case in the testamentaria but he also rendered services to my father. Q.At least your Counsel said that there was an order of the Court ordering you to pay that, do you have that copy of the order? A.Yes, sir, I have, but I think that was burned. (P. 184, t. s. n., supra.) So the sum of P16,000 was paid upon recommendation of the former administrator and order of the probate court for services rendered by Alberto Baretto not only in the probate proceedings but also for services rendered to his father. But if this sum of P16,000 paid to Alberto Barretto upon recommendation of the previous administrator and order of the probate court for professional services rendered in the probate proceedings and to the deceased in his lifetime be taken against his truthfulness and veracity as to affect adversely his testimony, what about the professional services of Anastacio Teodoro who appeared in this case as one of the attorneys for the petitioner- appellant? (P. 2, t. s. n., hearing of 13 October 1947.) Would that not likewise or by the same token affect his credibility? Is not the latter's interest more compelling than the former's? For the foregoing reasons, the motion for reconsideration is denied. Pablo, Bengzon, Reyes, A. and Concepcion, JJ., concur. Separate Opinions PARAS, C.J., dissenting: For the same reasons and considerations set forth in detail in my dissent promulgated on July 31, 1954, I vote to grant the motion for reconsideration. Montemayor and Jugo, JJ., concur.

The part of the deposition of Go Toh quoted in the motion for reconsideration which appellant underscores does not refer to Go Toh but to Manuel Lopez. Even if Go Toh heard Manuel Lopez read the draft (Exhibit B) for the purpose of checking it up with the original held and read by Jose B. Suntay, Go Toh should not have understood the provisions of the will because he knew very little of the Spanish language in which the will was written (answer to 22nd and 23rd interrogatories and to X-2 crossinterrogatory). In fact, he testifies in his deposition that all he knows about the contents of the lost will was revealed to him by Jose B. Suntay at the time it was executed (answers to 25th interrogatory and to X-4 and X-8 cross-interrogatories); that Jose B. Suntay told him that the contents thereof are the same as those of the draft [Exhibit B] (answers to 33rd interrogatory and to X-8 cross-interrogatory); that Mrs. Suntay had the draft of the will (Exhibit B) translated into Chinese and he read the translation (answer to the 67th interrogatory); that he did not read the will and did not compare it (check it up) with the draft [Exhibit B] (answers to X-6 and X-20 cross-interrogatories). We repeat that . . . all of Go Toh's testimony by deposition on the provisions of the alleged lost will is hearsay, because he came to know or he learned of them from information given him by Jose B. Suntay and from reading the translation of the draft (Exhibit B) into Chinese. This finding cannot be contested and assailed. The appellant does not understand how the Court came to the conclusion that Ana Suntay, a witness for the appellant could not have read the part of the will on adjudication. According to her testimony "she did not read the whole will but only the adjudication," which, this Court found, "is inconsistent with her testimony in chief (to the effect) that 'after Apolonio read that portion, then he turned over the document to Manuel, and he went away.'" (P. 528, t. s. n., hearing of 24 February 1948.) And appellant asks the question: "Who went away? Was it Manuel or Apolonio?" In answer to his own question the appellant says: "The more obvious

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TESTATE ESTATE OF THE LATE LINNIE JANE HODGES (Sp. Proc. No. 1307). TESTATE ESTATE OF THE LATE CHARLES NEWTON HODGES (Sp. Proc. No. 1672). PHILIPPINE COMMERCIAL AND INDUSTRIAL BANK, administratorappellant, vs. LORENZO CARLES, JOSE PABLICO, ALFREDO CATEDRAL, SALVADOR GUZMAN, BELCESAR CAUSING, FLORENIA BARRIDO, PURIFICACION CORONADO, GRACIANO LUCERO, ARITEO THOMAS JAMIR, MELQUIADES BATISANAN, PEPITO IYULORES, ESPERIDION PARTISALA, WINIFREDO ESPADA, ROSARIO ALINGASA, ADELFA PREMAYLON, SANTIAGO PACAONSIS, and AVELINA A. MAGNO, the last as Administratrix in Sp. Proc. No. 1307, appellees, WESTERN INSTITUTE OF TECHNOLOGY, INC., movantappellee. San Juan, Africa, Gonzales & San Agustin for Philippine Commercial & Industrial Bank. Manglapus Law Office, Antonio Law Office and Rizal R. Quimpo for private respondents and appellees Avelina A. Magno, etc., et al. print DECISION

THE FACTS On May 23, 1957, Linnie Jane Hodges died in Iloilo City leaving a will executed on November 22, 1952 pertinently providing as follows: "FIRST: I direct that all my just debts and funeral expenses be first paid out of my estate. SECOND: I give, devise and bequeath all of the rest, residue and remainder of my estate, both personal and real, wherever situated, or located, to my beloved husband, Charles Newton Hodges, to have and to hold unto him, my said husband, during his natural lifetime. THIRD: I desire, direct and provide that my husband, Charles Newton Hodges, shall have the right to manage, control, use and enjoy said estate during his lifetime, and he is hereby given the right to make any changes in the physical properties of said estate, by sale or any part thereof which he may think best, and the purchase of any other or additional property as he may think best; to execute conveyances with or without general or special warranty, conveying in fee simple or for any other term or time, any property which he may deem proper to dispose of; to lease any of the real property for oil, gas and/or other minerals, and all such deeds or leases shall pass the absolute fee simple title to the interest so conveyed in such property as he may elect to sell. All rents, emoluments and income from said estate shall belong to him, and he is further authorized to use any part of the principal of said estate as he may need or desire. It is provided herein, however, that he shall not sell or otherwise dispose of any of the improved property now owned by us located at, in or near the City of Lubbock, Texas, but he shall have the full right to lease, manage and enjoy the same during his lifetime, above provided. He shall have the right to subdivide any farm land and sell lots therein, and may sell unimproved town lots. aisa dc FOURTH: At the death of my said husband, Charles Newton Hodges, I give, devise and bequeath all of the rest, residue and remainder of my estate, both real and personal, wherever situated or located, to be equally divided among my brothers and sisters, share and share alike, namely: Esta Higdon, Emma Howell, Leonard Higdon, Roy Higdon, Saddie Rascoe, Era Roman and Nimroy Higdon. FIFTH: In case of the death of any of my brothers and/or sisters named in item Fourth, above, prior to the death of my husband, Charles Newton Hodges, then it is my will and bequest that the heirs of such deceased brother or sister shall take jointly the share which would have gone to such brother or sister had she or he survived.

highlights off cross-reference on cited in add bookmark decision separate opinions footnotes EN BANC [G.R. Nos. L-27860 & L-27896. March 29, 1974.] PHILIPPINE COMMERCIAL AND INDUSTRIAL BANK, Administrator of the Testate Estate of Charles Newton Hodges (Sp. Proc. No. 1672 of the Court of First Instance of Iloilo), petitioner, vs. THE HONORABLE VENICIO ESCOLIN, Presiding Judge of the Court of First Instance of Iloilo, Branch II, and AVELINA A. MAGNO, respondents. [G.R. Nos. L-27936 & L-27937. March 29, 1974.]

BARREDO, J p: Certiorari and prohibition with preliminary injunction; certiorari to "declare all acts of the respondent court in the Testate Estate of Linnie Jane Hodges (Sp. Proc. No. 1307 of the Court of First Instance of Iloilo) subsequent to the order of December 14, 1957 as null and void for having been issued without jurisdiction"; prohibition to enjoin the respondent court from allowing, tolerating, sanctioning, or abetting private respondent Avelina A. Magno to perform or do any acts of administration, such as those enumerated in the petition, and from exercising any authority or power as Regular Administratrix of above-named Testate Estate, by entertaining manifestations, motion and pleadings filed by her and acting on them, and also to enjoin said court from allowing said private respondent to interfere, meddle or take part in any manner in the administration of the Testate Estate of Charles Newton Hodges (Sp. Proc. No. 1672 of the same court and branch); with prayer for preliminary injunction, which was issued by this Court on August 8, 1967 upon a bond of P5,000; the petition being particularly directed against the orders of the respondent court of October 12, 1966 denying petitioner's motion of April 22, 1966 and its order of July 18, 1967 denying the motion for reconsideration of said order. Related to and involving basically the same main issue as the foregoing petition, thirty-three (33) appeals from different orders of the same respondent court approving or otherwise sanctioning the acts of administration of the respondent Magno on behalf of the testate Estate of Mrs. Hodges.

SIXTH: I nominate and appoint my said husband, Charles Newton Hodges, to be executor of this, my last will and testament, and direct that no bond or other security be required of him as such executor. SEVENTH: It is my will and bequest that no action be had in the probate court, in the administration of my estate, other than that necessary to prove and record this will and to return an inventory and appraisement of my estate and list of claims." (Pp. 2-4, Petition.) This will was subsequently probated in aforementioned Special Proceedings No. 1307 of respondent court on June 28, 1957, with the widower Charles Newton Hodges being appointed as Executor, pursuant to the provisions thereof. Previously, on May 27, 1957, the said widower (hereafter to be referred to as Hodges) had been appointed Special Administrator, in which capacity he filed a motion on the same date as follows: "URGENT EX-PARTE MOTION TO ALLOW OR AUTHORIZE PETITIONER TO CONTINUE THE BUSINESS IN WHICH HE WAS ENGAGED AND TO PERFORM ACTS WHICH HE HAD BEEN DOING WHILE DECEASED WAS LIVING Come petitioner in the above-entitled special proceedings, thru his undersigned attorneys, to the Hon. Court, most respectfully states: 1.That Linnie Jane Hodges died leaving her last will and testament, a copy of which is attached to the petition for probate of the same. 2.That in said last will and testament herein petitioner Charles Newton Hodges is directed to have the right to manage, control use and enjoy the estate of deceased Linnie Jane Hodges, in the same way, a provision was placed in paragraph two, the following: 'I give, devise and bequeath all of the rest, residue and remainder of my estate, to my beloved husband, Charles Newton Hodges, to have and (to) hold unto him, my said husband, during his natural lifetime.' 3.That during the lifetime of Linnie Jane Hodges, herein petitioner was engaged in the business of buying and selling personal and real properties, and do such acts which petitioner may think best. 4.That deceased Linnie Jane Hodges died leaving no descendants or ascendants, except brothers and sisters and herein petitioner as the surviving spouse, to inherit the properties of the decedent. "5.That the present motion is submitted in order not to paralyze the business of petitioner and the deceased, especially in the purchase and sale

of properties. That proper accounting will be had also in all these transactions. WHEREFORE, it is most respectfully prayed that, petitioner C. N. Hodges (Charles Newton Hodges) be allowed or authorized to continue the business in which he was engaged and to perform acts which he had been doing while deceased Linnie Jane Hodges was living. City of Iloilo, May 27, 1957." (Annex "D", Petition.) which the respondent court immediately granted in the following order: "It appearing in the urgent ex-parte motion filed by petitioner C. N. Hodges, that the business in which said petitioner and the deceased were engaged will be paralyzed, unless and until the Executor is named and appointed by the Court, the said petitioner is allowed or authorized to continue the business in which he was engaged and to perform acts which he had been doing while the deceased was living. SO ORDERED. City of Iloilo, May 27, 1957." (Annex "E", Petition.) Under date of December 11, 1957, Hodges filed as such Executor another motion thus: "MOTION TO APPROVE ALL SALES, CONVEYANCES, LEASES, MORTGAGES THAT THE EXECUTOR HAD MADE FURTHER AND SUBSEQUENT TRANSACTIONS WHICH THE EXECUTOR MAY DO IN ACCORDANCE WITH THE LAST WISH OF THE DECEASED LINNIE JANE HODGES. "Comes the Executor in the above-entitled proceedings, thru his undersigned attorney, to the Hon. Court, most respectfully states: 1.That according to the last will and testament of the deceased Linnie Jane Hodges, the executor as the surviving spouse and legatee named in the will of the deceased; has the right to dispose of all the properties left by the deceased, portion of which is quoted as follows: Second: I give, devise and bequeath all of the rest, residue and remainder of my estate, both personal and real, wherever situated, or located, to my beloved husband, Charles Newton Hodges, to have and to hold unto him, my said husband, during his natural lifetime.

Third: I desire, direct and provide that my husband, Charles Newton Hodges, shall have the right to manage, control, use and enjoy said estate during his lifetime, and he is hereby given the right to make any changes in the physical properties of said estate, by sale or any part thereof which he may think best, and the purchase of any other or additional property as he may think best; to execute conveyances with or without general or special warranty, conveying in fee simple or for any other term or time, any property which he may deem proper to dispose of; to lease any of the real property for oil, gas and/or other minerals, and all such deeds or leases shall pass the absolute fee simple title to the interest so conveyed in such property as he may elect to sell. All rents, emoluments and income from said estate shall belong to him, and he is further authorized to use any part of the principal of said estate as he may need or desire. . . . .

2.That herein Executor, is not only part owner of the properties left as conjugal, but also, the successor to all the properties left by the deceased Linnie Jane Hodges. That during the lifetime of herein Executor, as Legatee, has the right to sell, convey, lease or dispose of the properties in the Philippines. That inasmuch as C. N. Hodges was and is engaged in the buy and sell of real and personal properties, even before the death of Linnie Jane Hodges, a motion to authorize said C. N. Hodges was filed in Court, to allow him to continue in the business of buy and sell, which motion was favorably granted by the Honorable Court. 3.That since the death of Linnie Jane Hodges, Mr. C. N. Hodges had been buying and selling real and personal properties, in accordance with the wishes of the late Linnie Jane Hodges. 4.That the Register of Deeds for Iloilo, had required of late the herein Executor to have all the sales, leases, conveyances or mortgages made by him, approved by the Hon. Court. 5.That it is respectfully requested, all the sales, conveyances leases and mortgages executed by the Executor, be approved by the Hon. Court and subsequent sales conveyances, leases and mortgages in compliances with the wishes of the late Linnie Jane Hodges, and within the scope of the terms of the last will and testament, also be approved; 6.That the Executor is under obligation to submit his yearly accounts, and the properties conveyed can also be accounted for, especially the amounts received. "WHEREFORE, it is most respectfully prayed that, all the sales, conveyances, leases, and mortgages executed by the Executor, be approved by the Hon. Court, and also the subsequent sales, conveyances, leases, and mortgages,

in consonance with the wishes of the deceased contained in her last will and testament, be with authorization and approval of the Hon. Court. City of Iloilo, December 11, 1967." (Annex "G", Petition.) which again was promptly granted by the respondent court on December 14, 1957 as follows: ORDER As prayed for by Attorney Gellada, counsel for the Executor for the reasons stated in his motion dated December 11, 1957, which the Court considers well taken all the sales, conveyances, leases and mortgages of all properties left by the deceased Linnie Jane Hodges executed by the Executor Charles N. Hodges are hereby APPROVED. The said Executor is further authorized to execute subsequent sales, conveyances, leases and mortgages of the properties left by the said deceased Linnie Jane Hodges in consonance with the wishes conveyed in the last will and testament of the latter. So ordered.

approved by the Honorable Court, as substantial compliance with the requirements of the Rules of Court. That no person interested in the Philippines of the time and place of examining the herein accounts be given notice, as herein executor is the only devisee or legatee of the deceased, in accordance with the last will and testament already probated by the Honorable Court. City of Iloilo April 14, 1959." (Annex "I", Petition.) The respondent court approved this statement of account on April 21, 1959 in its order worded thus: "Upon petition of Atty. Gellada, in representation of the Executor, the statement of net worth of the estate of Linnie Jane Hodges, the assets and liabilities, income and expenses as shown in the individual income tax return for the estate of the deceased and marked as Annex "A" is approved. SO ORDERED. cd City of Iloilo, April 21, 1959."

personal assets and that of the estate of Linnie Jane Hodges." (P 91, Appellee's Brief.). xxx xxx xxx "Under date of July 21, 1960, C. N. Hodges filed his second 'Annual Statement of Account by the Executor' of the estate of Linnie Jane Hodges. In the 'Statement of Networth of Mr. C. N. Hodges and the Estate of Linnie Jane Hodges' as of December 31, 1959 annexed thereto, C. N. Hodges reported that the combined conjugal estate earned a net income of P270,623.32, divided evenly between him and the estate of Linnie Jane Hodges. Pursuant to this, he filed an 'individual income tax return' for calendar year 1959 on the estate of Linnie Jane Hodges reporting, under oath, the said (state as having earned income of P135,311.66, exactly onehalf of the net income of his combined personal assets and that of the estate or Linnie Jane Hodges." (Pp. 91-92, Appellee's Brief.) xxx xxx xxx "Under date of April 20, 1961, C. N. Hodges filed his third 'Annual Statement of Account by the Executor for the Year 1960' of the estate of Linnie Jane Hodges. In the 'Statement of Net Worth of Mr. C. N. Hodges and the Estate of Linnie Jane Hodges' as of December 31, 1960 annexed thereto, C. N. Hodges reported that the combined conjugal estate earned a net income of P314,857.94, divided evenly between him and the estate of Linnie Jane Hodges. Pursuant to this, he filed an 'individual income tax return' for calendar year 1960 on the estate of Linnie Jane Hodges reporting, under oath, the aid estate as having earned income of P157,428.97, exactly onehalf of the net income of his combined personal assets and that of the estate of Linnie Jane Hodges." (Pp. 92-93, Appellee's Brief.) Likewise the following: "In the petition for probate that he (Hodges) filed, he listed the seven brothers and sisters of Linnie Jane as her 'heirs' (see p. 2, Green ROA). The order of the court admitting the will to probate unfortunately omitted one of the heirs, Roy Higdon (see p. 14, Green ROA). Immediately, C. N. Hodges filed a verified motion to have Roy Higdon's name included as an heir, stating that he wanted to straighten the records 'in order the heirs of deceased Roy Higdon may not think or believe they were omitted, and that they were really and are interested in the estate of deceased Linnie Jane Hodges. "As an executor, he was bound to file tax returns for the estate he was administering under American law. He did file such as estate tax return on August 8, 1958. In Schedule 'M' of such return, he answered 'Yes' to the question as to whether he was contemplating 'renouncing the will'. On the

Iloilo City, December 14,1957." (Annex "J", Petition.) (Annex "H", Petition.) On April 14, 1959, in submitting his first statement of account as Executor for approval, Hodges alleged: "Pursuant to the provisions of the Rules of Court, herein executor of the deceased, renders the following account of his administration covering the period from January 1, 1958 to December 31, 1958, which account may he found in detail in the individual income tax return filed for the estate of deceased Linnie Jane Hodges, to wit: That a certified public accountant has examined the statement of net worth of the estate of Linnie Jane Hodges, the assets and liabilities, as well as the income and expenses, copy of which is hereto attached and made integral part of this statement of account as Annex "A". IN VIEW OF THE FOREGOING, it is most respectfully prayed that the statement of net worth of the estate of Linnie Jane Hodges the assets and liabilities, income and expenses as shown in the individual income tax return for the estate of the deceased and marked as Annex "A", be His accounts for the periods January 1, 1959 to December 31, 1959 and January 1, 1960 to December 31, 1960 were submitted likewise accompanied by allegations identical mutatis mutandis to those of April 14, 1959, quoted above; and the respective orders approving the same, dated July 30, 1960 and May 2, 1961, were substantially identical to the abovequoted order of April 21, 1959. In connection with the statements of account just mentioned, the following assertions related thereto made by respondent-appellee Magno in her brief do not appear from all indications discernible in the record to be disputable: "Under date of April 14, 1959, C. N. Hodges filed his first 'Account by the Executor' of the estate of Linnie Jane Hodges. In the 'Statement of Networth of Mr. C. N. Hodges and the Estate of Linnie Jane Hodges' as of December 31, 1958 annexed thereto, C. N. Hodges reported that the combined conjugal estate earned a net income of P328,402.62, divided evenly between him and the estate of Linnie Jane Hodges. Pursuant to this, he filed an 'individual income tax return' for calendar year 1958 on the estate of Linnie Jane Hodges reporting, under oath, the said estate as having earned income of P164,201.31, exactly one-half of the net income of his combined

question as to what property interests passed to him as the surviving spouse, he answered: 'None, except for purposes of administering the Estate, paying debts, taxes and other legal charges. It is the intention of the surviving husband of deceased to distribute the remaining property and interests of the deceased in their Community estate to the devisees and legatees named in the will when the debts, liabilities, taxes and expenses of administration are finally determined and paid.' "Again, on August 9, 1962, barely four months before his death, he executed an 'affidavit' wherein he ratified and confirmed all that he stated in Schedule 'M' of his estate tax returns as to his having renounced what was given him by his wife's will. 1 "As appointed executor, C. N. Hodges filed an 'Inventory' dated May 12, 1958. He listed all the assets of his conjugal partnership with Linnie Jane Hodges on a separate balance sheet and then stated expressly that her estate which has come into his possession as executor was 'one-half of all the items' listed in said balance sheet." (Pp. 89-90, Appellee's Brief.) Parenthetically, it may be stated, at this juncture, that We are taking pains to quote wholly or at least, extensively from some of the pleadings and orders whenever We feel that it is necessary to do so for a more comprehensive and clearer view of the important and decisive issues raised by the parties and a more accurate appraisal of their respective positions in regard thereto.

1957, the said Charles Newton Hodges was appointed Executor and had performed the duties as such. 2.That last December 22, 1962, the said Charles Newton Hodges was stricken ill, and brought to the Iloilo Mission Hospital for treatment, but unfortunately, he died on December 25, 1962, as shown by a copy of the death certificate hereto attached and marked as Annex 'A'. 3.That in accordance with the provisions of the last will and testament of Linnie Jane Hodges, whatever real and personal properties that may remain at the death of her husband Charles Newton Hodges, the said properties shall be equally divided among their heirs. That there are real and personal properties left by Charles Newton Hodges, which need to be administered and taken care of. 4.That the estate of deceased Linnie Jane Hodges, as well as that of Charles Newton Hodges, have not as yet been determined or ascertained, and there is necessity for the appointment of a general administrator to liquidate and distribute the residue of the estate to the heirs and legatees of both spouses. That in accordance with the provisions of Section 2 of Rule 75 of the Rules of Court, the conjugal partnership of Linnie Jane Hodges and Charles Newton Hodges shall be liquidated in the testate proceedings of the wife. 5.That the undersigned counsel, has perfect personal knowledge of the existence of the last will and testament of Charles Newton Hodges, with similar provisions as that contained in the last will and testament of Linnie Jane Hodges. However, said last will and testament of Charles Newton Hodges is kept inside the vault or iron safe in his office, and will be presented in due time before this Honorable Court. 6.That in the meantime, it is imperative and indispensable that, an Administratrix be appointed for the estate of Linnie Jane Hodges and a Special Administratrix for the estate of Charles Newton Hodges, to perform the duties required by law, to administer, collect, and take charge of the goods, chattels, rights, credits, and estate of both spouses, Charles Newton Hodges and Linnie Jane Hodges, as provided for in Section 1 and 2, Rule 81 of the Rules of Court. 7.That there is delay in granting letters testamentary or of administration, because the last will and testament of deceased, Charles Newton Hodges, is still kept in his safe or vault, and in the meantime, unless an administratrix (and,) at the same time, a Special Administratrix is appointed, the estate of both spouses are in danger of being lost, damaged or go to waste. 8.That the most trusted employee of both spouses Linnie Jane Hodges and C. N. Hodges, who had been employed for around thirty (30) years, in the

person of Miss Avelina Magno, (should) be appointed Administratrix of the estate of Linnie Jane Hodges and at the same time Special Administratrix of the estate of Charles Newton Hodges. That the said Miss Avelina Magno is of legal age, a resident of the Philippines, the most fit, competent, trustworthy and well-qualified person to serve the duties of Administratrix and Special Administratrix and is willing to act as such. 9.That Miss Avelina Magno is also willing to file bond in such sum which the Hon. Court believes reasonable. WHEREFORE, in view of all the foregoing, it is most respectfully prayed that, Miss AVELINA A. MAGNO be immediately appointed Administratrix of the estate of Linnie Jane Hodges and as Special Administratrix of the estate of Charles Newton Hodges, with powers and duties provided for by law. That the Honorable Court fix the reasonable bond of P1,000.00 to be filed by Avelina A. Magno." (Annex "O", Petition.) which respondent court readily acted on in its order of even date thus: "For the reasons alleged in the Urgent Ex-Parte Motion filed by counsel for the Executor dated December 25, 1962, which the Court finds meritorious, Miss AVELINA A. MAGNO, is hereby appointed Administratrix of the estate of Linnie Jane Hodges and as Special Administratrix of the estate of Charles Newton Hodges, in the latter case, because the last will of said Charles Newton Hodges is still kept in his vault or iron safe and that the real and personal properties of both spouses may be lost, damaged or go to waste, unless a Special Administratrix is appointed. Miss Avelina A. Magno is required to file bond in the sum of FIVE THOUSAND PESOS (P5,000.00), and after having done so, let letters of Administration be issued to her." (Annex "P", Petition.) On December 29, 1962, however, upon urgent ex-parte petition of respondent Magno herself, thru Atty. Gellada, Harold, R. Davies, "a representative of the heirs of deceased Charles Newton Hodges (who had) arrived from the United States of America to help in the administration of the estate of said deceased" was appointed as Co-Special Administrator of the estate of Hodges, (pp. 29-33, Yellow Record on Appeal) only to be replaced as such co-special administrator on January 22, 1963 by Joe Hodges, who, according to the motion of the same attorney, is "the nephew of the deceased (who had) arrived from the United States with instructions from the other heirs of the deceased to administer the properties or estate of Charles Newton Hodges in the Philippines", (Pp. 47-50, id.) Meanwhile, under date of January 9, 1963, the same Atty. Gellada filed in Special Proceedings 1672 a petition for the probate of the will of Hodges, 2 with a prayer for the issuance of letters of administration to the same Joe

The records of these cases do not show that anything else was done in the above-mentioned Special Proceedings No. 1307 until December 26, 1962, when on account of the death of Hodges the day before, the same lawyer, Atty. Leon P. Gellada, who had been previously acting as counsel for Hodges in his capacity as Executor of his wife's estate, and as such had filed the aforequoted motions and manifestations, filed the following: "URGENT EX-PARTE MOTION FOR THE APPOINTMENT OF A SPECIAL ADMINISTRATRIX COMES the undersigned attorney for the Executor in the above-entitled proceedings, to the Honorable Court, most respectfully states: 1.That in accordance with the Last Will and Testament of Linnie Jane Hodges (deceased), her husband, Charles Newton Hodges was to act as Executor, and in fact, in an order issued by this Hon. Court dated June 28,

Hodges, albeit the motion was followed on February 22, 1963 by a separate one asking that Atty. Fernando Mirasol be appointed as his coadministrator. On the same date this latter motion was filed, the court issued the corresponding order of probate and letters of administration to Joe Hodges and Atty. Mirasol, as prayed for. At this juncture, again, it may also be explained that just as, in her will, Mrs. Hodges bequeathed her whole estate to her husband to have and to hold unto him, my said husband, during his natural lifetime", she, at the same time or in like manner, provided that "at the death of my said husband I give devise and bequeath all of the rest, residue and remainder of my estate, both real and personal, wherever situated or located, to be equally divided among my brothers and sisters, share and share alike ". Accordingly, it became incumbent upon Hodges, as executor of his wife's will, to duly liquidate the conjugal partnership, half of which constituted her estate, in order that upon the eventuality of his death, "the rest, residue and remainder" thereof could be determined and correspondingly distributed or divided among her brothers and sisters And it was precisely because no such liquidation was done, furthermore, there is the issue of whether the distribution of her estate should be governed by the laws of the Philippines or those of Texas, of which State she was a national, and, what is more, as already stated, Hodges made official and sworn statements or manifestations indicating that as far as he was concerned no "property interests passed to him as surviving spouse 'except for purposes of administering the estate, paying debts, taxes and other legal charges' and it was the intention of the surviving husband of the deceased to distribute the remaining property and interests of the deceased in their Community Estate to the devisees and legatees named in the will when the debts, liabilities, taxes and expenses of administration are finally determined and paid", that the incidents and controversies now before Us for resolution arose. As may be observed, the situation that ensued upon the death of Hodges became rather unusual and so, quite understandably, the lower court's actuations presently under review are apparently wanting in consistency and seemingly lack proper orientation. cdt Thus, We cannot discern clearly from the record before Us the precise perspective from which the trial court proceeded in issuing its questioned orders. And, regretably, none of the lengthy briefs submitted by the parties is of valuable assistance in clearing up the matter. To begin with, We gather from the two records on appeal filed by petitioner, as appellant in the appealed cases, one with green cover and the other with a yellow cover, that at the outset, a sort of modus operandi had been agreed upon by the parties under which the respective administrators of the two estates were supposed to act conjointly, but since no copy of the said agreement can be found in the record before Us, We have no way of knowing when exactly such agreement was entered into and under what specific terms. And while reference is made to said modus operandi in the

order of September 11, 1964, on pages 205-206 of the Green Record on Appeal, reading thus: "The present incident is to hear the side of administratrix, Miss Avelina A. Magno, in answer to the charges contained in the motion filed by Atty. Cesar Tirol on September 3, 1964. In answer to the said charges, Miss Avelina A. Magno, through her counsel, Atty. Rizal Quimpo, filed a written manifestation. "After reading the manifestation here of Atty. Quimpo, for and in behalf of the administratrix, Miss Avelina A. Magno, the Court finds that everything that happened before September 3, 1964, which was resolved on September 8, 1964, to the satisfaction of parties, was simply due to a misunderstanding between the representative of the Philippine Commercial and Industrial Bank and Miss Magno and in order to restore the harmonious relations between the parties, the Court ordered the parties to remain in status quo as to their modus operandi before September 1, 1964, until after the Court can have a meeting with all the parties and their counsels on October 3, as formerly agreed upon between counsels, Attys. Ozaeta, Gibbs and Ozaeta, Attys. Tirol and Tirol and Atty. Rizal Quimpo.

"A written opposition has been filed by Administratrix Magno of even date (Oct. 27) thru counsel Rizal Quimpo stating therein that she was compelled to close the office for the reason that the PCIB failed to comply with the order of this Court signed by Judge Anacleto I. Bellosillo dated September 11, 1964 to the effect that both estates should remain in status quo as to their modus operandi as of September 1, 1964. "To arrive at a happy solution of the dispute and in order not to interrupt the operation of the office of both estates, the Court aside from the reasons stated in the urgent motion and opposition heard the verbal arguments of Atty. Cesar Tirol for the PCIB and Atty. Rizal Quimpo for Administratrix Magno. "After due consideration, the Court hereby orders Magno to open all doors and locks in the Hodges Office at 206-208 Guanco Street, Iloilo city in the presence of the PCIB or its duly authorized representative and deputy clerk of court Albis of this branch not later than 7:30 tomorrow morning October 28, 1965 in order that the office of said estates could operate for business. "Pursuant to the order of this Court thru Judge Bellosillo dated September 11, 1964, it is hereby ordered: (a)That all cash collections should be deposited in the joint account of the estates of Linnie Jane Hodges and estate of C. N. Hodges; (b)That whatever cash collections that had been deposited in the account of either of the estates should be withdrawn and since then deposited in the joint account of the estate of Linnie Jane Hodges and the estate of C. N. Hodges; (c)That the PCIB should countersign the check in the amount of P250 in favor of Administratrix Avelina A, Magno as her compensation as administratrix of the Linnie Jane Hodges estate chargeable to the testate estate of Linnie Jane Hodges only; (d)That Administratrix Magno is hereby directed to allow the PCIB to inspect whatever records, documents and papers she may have in her possession in the same manner that Administrator PCIB is also directed to allow Administratrix Magno to inspect whatever records, documents and papers it may have in its possession; (e)That the accountant of the estate of Linnie Jane Hodges shall have access to all records of the transactions of both estates for the protection of the estate of Linnie Jane Hodges; and in like manner the accountant or any authorized representative of the estate of C. N. Hodges shall have access to

"In the meantime, the prayers of Atty. Quimpo as stated in his manifestation shall not be resolved by this Court until October 3, 1964. SO ORDERED." there is nothing in the record indicating whatever happened to it afterwards, except that again, reference thereto was made in the appealed order of October 27, 1965, on pages 292-295 of the Green Record on Appeal, as follows: "On record is an urgent motion to allow PCIB to open all doors and locks in the Hodges Office at 206-208 Guanco street, Iloilo city, to take immediate and exclusive possession thereof and to place its own locks and keys for security purposes of the PCIB dated October 27, 1965 thru Atty. Cesar Tirol. It is alleged in said urgent motion that Administratrix Magno of the testate estate of Linnie Jane Hodges refused to open the Hodges Office at 206-208 Guanco Street, Iloilo City where PCIB holds office and therefore PCIB is suffering great moral damage and prejudice as a result of said act. It is prayed that an order be issued authorizing it (PCIB) to open all doors and locks in the said office, to take immediate and exclusive possession thereof and place thereon its own locks and keys for security purposes; instructing the clerk of court or any available deputy to witness and supervise the opening of all doors and locks and taking possession of the PCIB.

the records of transactions of the Linnie Jane Hodges estate for the protection of the estate of C. N. Hodges. "Once the estates' office shall have been opened by Administratrix Magno in the presence of the PCIB or its duly authorized representative and deputy clerk Albis or his duly authorized representative, both estates or any of the estates should not close it without previous consent and authority from this court. SO ORDERED." As may be noted, in this order, the respondent court required that all collections from the properties in the name of Hodges should be deposited in a joint account of the two estates, which indicates that seemingly the socalled modus operandi was no longer operative, but again there is nothing to show when this situation started. Likewise, in paragraph 3 of the petitioner's motion of September 14, 1964, on pages 188-201 of the Green Record on Appeal, (also found on pp. 83-91 of the Yellow Record on Appeal) it is alleged that: "3.On January 24, 1964 virtually all of the heirs of C. N. Hodges, Joe Hodges and Fernando P. Mirasol acting as the two co-administrators of the estate of C. N. Hodges, Avelina A. Magno acting as the administratrix of the estate of Linnie Jane Hodges, and Messrs. William Brown and Ardell Young acting for all of the Higdon family who claim to be the sole beneficiaries of the estate of Linnie Jane Hodges and various legal counsel representing the aforementioned parties entered into an amicable agreement, which was approved by this Honorable Court, wherein the parties thereto agreed that certain sums of money were to be paid in settlement of different claims against the two estates and that the assets (to the extent they existed) of both estates would be administered jointly by the PCIB as administrator of the estate of C. N. Hodges and Avelina A. Magno as administratrix of the estate of Linnie Jane Hodges, subject, however, to the aforesaid October 5, 1963 Motion, namely, the PCIB's claim to exclusive possession and ownership of one hundred percent (100%) (or, in the alternative, seventyfive percent (75%) of all assets owned by C. N. Hodges or Linnie Jane Hodges situated in the Philippines. On February 1, 1964 (pp. 934-935, CFI Rec., S.P. No. 1672) this Honorable Court amended its order of January 24, 1964 but in no way changed its recognition of the aforedescribed basic demand by the PCIB as administrator of the estate of C. N. Hodges to one hundred percent (100%) of the assets claimed by both estates." but no copy of the mentioned agreement of joint administration of the two estates exists in the record, and so, We are not informed as to what exactly are the terms of the same which could be relevant in the resolution of the issues herein.

On the other hand, the appealed order of November 3, 1965, on pages 313320 of the Green Record on Appeal, authorized payment by respondent Magno of, inter alia, her own fees as administratrix, the attorney's fees of her lawyers, etc., as follows: "Administratrix Magno thru Attys. Raul S. Manglapus and Rizal R. Quimpo filed a Manifestation and Urgent Motion dated June 10, 1964 asking for the approval of the Agreement dated June 6, 1964 which Agreement is for the purpose of retaining their services to protect and defend the interest of the said Administratrix in these proceedings and the same has been signed by and bears the express conformity of the attorney-in-fact of the late Linnie Jane Hodges, Mr. James L. Sullivan. It is further prayed that the Administratrix of the Testate Estate of Linnie Jane Hodges be directed to pay the retainers fee of said lawyers, said fees made chargeable as expenses for the administration of the estate of Linnie Jane Hodges (pp. 1641-1642, Vol. V, Sp. 1307). "An opposition has been filed by the Administrator PCIB thru Atty. Herminio Ozaeta dated July 11, 1964, on the ground that payment of the retainers fee of Attys. Manglapus and Quimpo as prayed for in said Manifestation and Urgent Motion is prejudicial to the 100% claim of the estate of C. N. Hodges; employment of Attys. Manglapus and Quimpo is premature and/or unnecessary; Attys. Quimpo and Manglapus are representing conflicting interests and the estate of Linnie Jane Hodges should be closed and terminated (pp. 1679-1684, Vol. V, Sp. 1307). "Atty. Leon P. Gellada filed a memorandum dated July 28, 1964 asking that the Manifestation and Urgent Motion filed by Attys. Manglapus and Quimpo be denied because no evidence has been presented in support thereof. Atty. Manglapus filed a reply to the opposition of counsel for the Administrator of the C. N. Hodges estate wherein it is claimed that expenses of administration include reasonable counsel or attorney's fees for services to the executor or administrator. As a matter of fact the fee agreement dated February 27, 1964 between the PCIB and the law firm of Ozaeta, Gibbs & Ozaeta as its counsel (Pp. 1280-1284, Vol. V, Sp. 1307) which stipulates the fees for said law firm has been approved by the Court in its order dated March 31, 1964. If payment of the fees of the lawyers for the administratrix of the estate of Linnie Jane Hodges will cause prejudice to the estate of C. N. Hodges, in like manner the very agreement which provides for the payment of attorney's fees to the counsel for the PCIB will also be prejudicial to the estate of Linnie Jane Hodges (pp. 1801-1814, Vol. V, Sp. 1307). "Atty. Herminio Ozaeta filed a rejoinder dated August 10, 1964 to the reply to the opposition to the Manifestation and Urgent Motion alleging principally that the estates of Linnie Jane Hodges and C. N. Hodges are not similarly situated for the reason that C. N. Hodges is an heir of Linnie Jane Hodges whereas the latter is not an heir of the former for the reason that

Linnie Jane Hodges predeceased C. N. Hodges (pp. 1839-1848, Vol. V, Sp. 1307); that Attys. Manglapus and Quimpo formally entered their appearance in behalf of Administratrix of the estate of Linnie Jane Hodges on June 10, 1964 (pp. 1639-1640, Vol. V, Sp. 1307). "Atty. Manglapus filed a manifestation dated December 18, 1964 stating therein that Judge Bellosillo issued an order requiring the parties to submit memorandum in support of their respective contentions. It is prayed in this manifestation that the Manifestation and Urgent Motion dated June 10, 1964 be resolved (pp. 6435-6439, Vol. VII, Sp. 1307).

"Atty. Roman Mabanta, Jr. for the PCIB filed a counter manifestation dated January 5, 1965 asking that after the consideration by the court of all allegations and arguments and pleadings of the PCIB in connection therewith (1) said manifestation and urgent motion of Attys. Manglapus and Quimpo be denied (pp. 6442-6453, Vol. VII, Sp. 1307). Judge Querubin issued an order dated January 4, 1965 approving the motion dated June 10, 1964 of the attorneys for the administratrix of the estate of Linnie Jane Hodges and agreement annexed to said motion. The said order further states: "The Administratrix of the estate of Linnie Jane Hodges is authorized to issue or sign whatever check or checks may be necessary for the above purpose and the administrator of the estate of C. N. Hodges is ordered to countersign the same." (pp. 6518-6523, Vol. VII, Sp. 1307). "Atty. Roman Mabanta, Jr. for the PCIB filed a manifestation and motion dated January 13, 1965 asking that the order of January 4, 1965 which was issued by Judge Querubin be declared null and void and to enjoin the clerk of court and the administratrix and administrator in these special proceedings from all proceedings and action to enforce or comply with the provision of the aforesaid order of January 4, 1965. In support of said manifestation and motion it is alleged that the order of January 4, 1965 is null and void because the said order was never delivered to the deputy clerk Albis of Branch V (the sala of Judge Querubin) and the alleged order was found in the drawer of the late Judge Querubin in his office when said drawer was opened on January 13, 1965 after the death of Judge Querubin by Perfecto Querubin, Jr., the son of the judge and in the presence of Executive Judge Rovira and deputy clerk Albis (Sec. 1, Rule 36, New Civil Code) (Pp. 6600-6606, Vol. VIII, Sp. 1307). "Atty. Roman Mabanta, Jr. for the PCIB filed a motion for reconsideration dated February 23, 1965 asking that the order dated January 4, 1964 be reversed on the ground that: 1.Attorneys retained must render services to the estate not to the personal heir;

2.If services are rendered to both, fees should be pro-rated between them; 3.Attorneys retained should not represent conflicting interests to the prejudice of the other heirs not represented by said attorneys; 4.Fees must be commensurate to the actual services rendered to the estate; "5.There must be assets in the estate to pay for said fees (Pp. 6625-6636, Vol. VIII, Sp. 1307). "Atty. Quimpo for Administratrix Magno of the estate of Linnie Jane Hodges filed a motion to submit dated July 15, 1965 asking that the manifestation and urgent motion dated June 10, 1964 filed by Attys. Manglapus and Quimpo and other incidents directly appertaining thereto he considered submitted for consideration and approval (pp. 6759-6765, Vol. VIII, Sp. 1307). "Considering the arguments and reasons in support to the pleadings of both the Administratrix and the PCIB, and of Atty. Gellada, herein before mentioned, the Court believes that the order of January 4, 1965 is null and void for the reason that the said order has not been filed with deputy clerk Albis of this court (Branch V) during the lifetime of Judge Querubin who signed the said order. However, the said manifestation and urgent motion dated June 10, 1964 is being treated and considered in this instant order. It is worthy to note that in the motion dated January 24, 1964 (Pp. 1149-1163, Vol. V, Sp. 1307) which has been filed by Atty. Gellada and his associates and Atty. Gibbs and other lawyers in addition to the stipulated fees for actual services rendered. However, the fee agreement dated February 27, 1964, between the Administrator of the estate of C. N. Hodges and Atty. Gibbs which provides for retainer fee of P4,000 monthly in addition to specific fees for actual appearances, reimbursement for expenditures and contingent fees has also been approved by the Court and said lawyers have already been paid. (pp. 1273-1279, Vol. V, Sp. Proc. 1307 pp. 1372-1373, Vol. V, Sp. Proc. 1307). "WHEREFORE, the order dated January 4, 1965 is hereby declared null and void. "The manifestation and motion dated June 10, 1964 which was filed by the attorneys for the administratrix of the testate estate of Linnie Jane Hodges is granted and the agreement annexed thereto is hereby approved. "The administratrix of the estate of Linnie Jane Hodges is hereby directed to be needed to implement the approval of the agreement annexed to the

motion and the administrator of the estate of C. N. Hodges is directed to countersign the said check or checks as the case may be. SO ORDERED." thereby implying somehow that the court assumed the existence of independent but simultaneous administrations. Be that as it may, again, it appears that on August 6, 1965, the court, acting on a motion of petitioner for the approval of deeds of sale executed by it as administrator of the estate of Hodges, issued the following order, also on appeal herein: "Acting upon the motion for approval of deeds of sale for registered land of the PCIB, Administrator of the Testate Estate of C. N. Hodges in Sp. Proc. 1672 (Vol. VII, pp. 2244-2245), dated July 16, 1965, filed by Atty. Cesar T. Tirol in representation of the law firms of Ozaeta, Gibbs and Ozaeta and Tirol and Tirol and the opposition thereto of Atty. Rizal R. Quimpo (Vol. VIII, pp. 6811-6813) dated July 22, 1965 and considering the allegations and reasons therein stated, the court believes that the deeds of sale should be signed jointly by the PCIB, Administrator of the Testate Estate of C. N. Hodges and Avelina A. Magno, Administratrix of the Testate Estate of Linnie Jane Hodges and to this effect the PCIB should take the necessary steps so that Administratrix Avelina A. Magno could sign the deeds of sale. SO ORDERED." (P. 248, Green Record on Appeal.) Notably, this order required that even the deeds executed by petitioner, as administrator of the Estate of Hodges, involving properties registered in his name, should be co-signed by respondent Magno. 3 And this was not an isolated instance. In her brief as appellee, respondent Magno states: "After the lower court had authorized appellee Avelina A. Magno to execute final deeds of sale pursuant to contracts to sell executed by C. N. Hodges on February 20, 1963 (pp. 45-46, Green ROA), motions for the approval of final deeds of sale (signed by appellee Avelina A. Magno and the administrator of the estate of C. N. Hodges first Joe Hodges, then Atty. Fernando Mirasol and later the appellant) were approved by the lower court upon petition of appellee Magno's counsel, Atty. Leon P. Gellada, on the basis of section 8 of Rule 89 of the Revised Rules of Court. Subsequently, the appellant, after it had taken over the bulk of the assets of the two estates, started presenting these motions itself. The first such attempt was a 'Motion for Approval of Deeds of Sale for Registered Land and Cancellations of Mortgages' dated July 21, 1964 filed by Atty. Cesar T. Tirol, counsel for the appellant, thereto

annexing two (2) final deeds of sale and two (2) cancellations of mortgages signed by appellee Avelina A. Magno and D. R. Paulino, Assistant VicePresident and Manager of the appellant (CFI Record, Sp. Proc. No. 1307, Vol. V, pp. 1694-1701). This motion was approved by the lower court on July 27, 1964. It was followed by another motion dated August 4, 1964 for the approval of one final deed of sale again signed by appellee Avelina A. Magno and D. R. Paulino (CFI Record, Sp. Proc. No. 1307, Vol. V, pp. 18251828), which was again approved by the lower court on August 7, 1964. The gates having been opened, a flood ensued: the appellant subsequently filed similar motions for the approval of a multitude of deeds of sales and cancellations of mortgages signed by both the appellee Avelina A. Magno and the appellant. A random check of the records of Special Proceeding No. 1307 alone will show Atty. Cesar T. Tirol as having presented for court approval deeds of sale of real properties signed by both appellee Avelina A. Magno and D. R. Paulino in the following numbers: (a) motion dated September 21, 1964 6 deeds of sale; (b) motion dated November 4, 1964 1 deed of sale; (c) motion dated December 1, 1964 4 deeds of sale; (d) motion dated February 3, 1965 8 deeds of sale; (f) motion dated May 7, 1965 9 deeds of sale. In view of the very extensive landholdings of the Hodges spouses and the many motions filed concerning deeds of sale of real properties executed by C. N. Hodges the lower court has had to constitute special but separate expedientesin Special Proceedings Nos. 1307 and 1672 to include mere motions for the approval of deeds of sale of the conjugal properties of the Hodges spouses. As an example, from among the very many, under date of February 3, 1965, Atty. Cesar T. Tirol, as counsel for the appellant, filed a 'Motion for Approval of Deeds of Sale for Registered Land and Cancellations of Mortgages" (CFI Record, Sp. Proc. No. 1307, Vol. VIII, pp. 6570-6596) the allegations of which read: '1.In his lifetime, the late C. N. Hodges executed 'Contracts to Sell' real property, and the prospective buyers under said contracts have already paid the price and complied with the terms and conditions thereof; '2.In the course of administration of both estates, mortgage debtors have already paid the debts secured by chattel mortgages in favor of the late C. N. Hodges, and are now entitled to release therefrom; '3.There are attached hereto documents executed jointly by the Administratrix in Sp. Proc. No. 1307 and the Administrator in Sp. Proc. No. 1672, consisting of deeds of sale in favor Fernando Cano, Bacolod City, Occ. Negros

Fe Magbanua, Iloilo City Policarpio M. Pareno, La Paz, Iloilo city Rosario T. Libre, Jaro, Iloilo City Federico B. Torres, Iloilo City Reynaldo T. Lataquin, La Paz, Iloilo City Anatolio T. Viray, Iloilo City Benjamin Rolando, Jaro, Iloilo City

None of these assertions is denied in petitioner's reply brief. Further indicating lack of concrete perspective or orientation on the part of the respondent court and its hesitancy to clear up matters promptly, in its other appealed order of November 23, 1965, on pages 334-335 of the Green Record on Appeal, said respondent court allowed the movant Ricardo Salas, President of appellee Western Institute of Technology (successor of Panay Educational Institutions, Inc.), one of the parties with whom Hodges had contracts that are in question in the appeals herein, to pay petitioner, as Administrator of the estate of Hodges and/or respondent Magno, as Administrator of the estate of Mrs. Hodges, thus: "Considering that in both eases there is as yet no judicial declaration of heirs nor distribution of properties to whomsoever are entitled thereto, the Court believes that payment to both the administrator of the testate estate of C. N. Hodges and the administratrix of the testate estate of Linnie Jane Hodges or to either one of the two estates is proper and legal. WHEREFORE, movant Ricardo T. Salas can pay to both estates or either of them. SO ORDERED." (Pp. 334-335, Green Record on Appeal.) On the other hand, as stated earlier, there were instances when respondent Magno was given authority to act alone. For instance, in the other appealed order of December 19, 1964, on page 221 of the Green Record on Appeal, the respondent court approved payments made by her of overtime pay to some employees of the court who had helped in gathering and preparing copies of parts of the records in both estates as follows: "Considering that the expenses subject of the motion to approve payment of overtime pay dated December 10, 1964, are reasonable and are believed by this Court to be a proper charge of administration chargeable to the testate estate of the late Linnie Jane Hodges, the said expenses are hereby APPROVED and to be charged against the testate estate of the late Linnie Jane Hodges. The administrator of the testate estate of the late Charles Newton Hodges is hereby ordered to countersign the check or checks necessary to pay the said overtime pay as shown by the bills marked Annex 'A', 'B' and 'C' of the motion. SO ORDERED." (Pp. 221-222, Green Record on Appeal.)

covering properties in the name of Hodges, pursuant to "contracts to sell' executed by Hodges, irrespective of whether they were executed by him before or after the death of his wife. The orders of this nature which are also on appeal herein are the following: 1.Order of March 30, 1966, on p. 137 of the Green Record on Appeal, approving the deed of sale executed by respondent Magno in favor of appellee Lorenzo Carles on February 24, 1966, pursuant to a "contract to sell" signed by Hodges on June 17, 1958, after the death of his wife, which contract petitioner claims was cancelled by it for failure of Carles to pay the installments due on January 7, 1965. 2.Order of April 5, 1966, on pp. 139-140, id., approving the deed of sale executed by respondent Magno in favor of appellee Salvador Guzman on February 28, 1966 pursuant to a "contract to sell" signed by Hodges on September 13, 1960, after the death of his wife, which contract petitioner claims it cancelled on March 3, 1965 in view of failure of said appellee to pay the installments on time. 3.Order of April 20, 1966, on pp. 167-168, id., approving the deed of sale executed by respondent Magno in favor of appellee Purificacion Coronado on March 28, 1966 pursuant to a "contract to sell" signed by Hodges on August 14, 1961, after the death of his wife. 4.Order of April 20, 1966, on pp. 168-169, id., approving the deed of sale executed by respondent Magno in favor of appellee Florenia Barrido on March 28, 1966, pursuant to a "contract to sell" signed by Hodges on February 21, 1958, after the death of his wife. 5.Order of June 7, 1966, on pp. 184-185, id., approving the deed of sale executed by respondent Magno in favor of appellee Belcezar Causing on May 2, 1966, pursuant to a "contract to sell" signed by Hodges on February 10, 1959, after the death of his wife. 6.Order of June 21, 1966, on pp. 211-212, id., approving the deed of sale executed by respondent Magno in favor of appellee Artheo Thomas Jamir on June 3, 1966, pursuant to a "contract to sell" signed by Hodges on May 26, 1961, after the death of his wife. 7.Order of June 21, 1966, on pp. 212-213, id., approving the deed of sale executed by respondent Magno in favor of appellees Graciano Lucero and Melquiades Batisanan on June 6 and June 3, 1966, respectively, pursuant to "contracts to sell" signed by Hodges on June 9, 1959 and November 27, 1961, respectively, after the death of his wife.

and cancellations of mortgages in favor of Pablo Manzano, Oton, Iloilo Ricardo M. Diana, Dao, San Jose, Antique Simplicio Tingson, Iloilo City Amado Magbanua, Pototan, Iloilo Roselia M. Baes, Bolo, Roxas City William Bayani, Rizal Estanzuela, Iloilo City Elpidio Villarete, Molo, Iloilo City Norma T. Ruiz, Jaro, Iloilo City. '4.That the approval of the aforesaid documents will not reduce the assets of the estates so as to prevent any creditor from receiving his full debt or diminish his dividend.' And the prayer of this motion is indeed very revealing: 'WHEREFORE, it is respectfully prayed that, under Rule 89, Section 8 of the Rules of Court, this honorable court approve the aforesaid deeds of sale and cancellations of mortgages.'" (Pp. 113-117, Appellee's Brief.)

Likewise, the respondent court approved deeds of sale executed by respondent Magno alone, as Administratrix of the estate of Mrs. Hodges,

8.Order of December 2, 1966, on pp. 303-304, id., approving the deed of sale executed by respondent Magno in favor of appellees Espiridion Partisala, Winifredo Espada and Rosario Alingasa on September 6, 1966, August 17, 1966 and August 3, 1966, respectively, pursuant to "contracts to sell" signed by Hodges on April 20, 1960, April 18, 1960 and August 25, 1958, respectively, that is, after the death of his wife. 9.Order of April 5, 1966, on pp. 137-138, id., approving the deed of sale executed by respondent Magno in favor of appellee Alfredo Catedral on March 2, 1966, pursuant to a "contract to sell" signed by Hodges on May 29, 1954, before the death of his wife, which contract petitioner claims it had cancelled on February 16, 1966 for failure of appellee Catedral to pay the installments due on time. 10.Order of April 5, 1966, on pp. 138-139, id., approving the deed of sale executed by respondent Magno in favor of appellee Jose Pablico on March 7, 1966, pursuant to a "contract to sell" signed by Hodges on March 7, 1950, after the death of his wife, which contract petitioner claims it had cancelled on June 29, 1960, for failure of appellee Pablico to pay the installments due on time. 11.Order of December 2, 1966, on pp. 303-304, id., in so far as it approved the deed of sale executed by respondent Magno in favor of appellee Pepito Iyulores on September 6, 1966, pursuant to a "contract to sell" signed by Hodges on February 5, 1951, before the death of his wife. 12.Order of January 3, 1967, on pp. 335-336, id., approving three deeds of sale executed by respondent Magno, one in favor of appellees Santiago Pacaonsis and two in favor of appellee Adelfa Premaylon on December 5, 1966 and November 3, 1966, respectively, pursuant to separate "promises to sell" signed respectively by Hodges on May 26, 1955 and January 30, 1954, before the death of his wife, and October 31, 1959, after her death. In like manner, there were also instances when respondent court approved deeds of sale executed by petitioner alone and without the concurrence of respondent Magno, and such approvals have not been the subject of any appeal. No less than petitioner points this out on pages 149-150 of its brief as appellant thus: "The points of fact and law pertaining to the two abovecited assignments of error have already been discussed previously. In the first abovecited error, the order alluded to was general, and as already explained before, it was, as admitted by the lower court itself, superseded by the particular orders approving specific final deeds of sale executed by the appellee, Avelina A. Magno, which are subject of this appeal, as well as the particular orders approving specific final deeds of sale executed by the appellant, Philippine Commercial and Industrial Bank, which were never appealed by the

appellee, Avelina A. Magno, nor by any party for that matter, and which are now therefore final." Now, simultaneously with the foregoing incidents, others of more fundamental and all embracing significance developed. On October 5, 1963, over the signature of Atty. Allison J. Gibbs in representation of the law firm of Ozaeta, Gibbs & Ozaeta, as counsel for the co-administrators Joe Hodges and Fernando P. Mirasol, the following self-explanatory motion was filed: "URGENT MOTION FOR AN ACCOUNTING AND DELIVERY TO ADMINISTRATION OF THE ESTATE OF C . N . HODGES OF ALL OF THE ASSETS OF THE CONJUGAL PARTNERSHIP OF THE DECEASED LINNIE JANE HODGES AND C . N. HODGES EXISTING AS OF MAY 23, 1957 PLUS ALL THE RENTS, EMOLUMENTS AND INCOME THEREFROM COMES NOW the co-administrator of the estate of C. N. Hodges, Joe Hodges, through his undersigned attorneys in the above-entitled proceedings, and to this Honorable Court respectfully alleges: (1)On May 23, 1957 Linnie Jane Hodges died in Iloilo City. (2)On June 28, 1957 this Honorable Court admitted to probate the Last Will and Testament of the deceased Linnie Jane Hodges executed November 22, 1952 and appointed C. N. Hodges as Executor of the estate of Linnie Jane Hodges (pp. 24-25, Rec. Sp. Proc. 1307). (3)On July 1, 1957 this Honorable Court issued Letters Testamentary to C. N. Hodges in the Estate of Linnie Jane Hodges (p. 30, Rec. Sp. Proc. 1307). (4)On December 14, 1957 this Honorable Court, on the basis of the following allegations in a Motion dated December 11, 1957 filed by Leon P. Gellada as attorney for the executor C. N. Hodges:

conveyances, leases and mortgages of the properties lift by the said deceased Linnie Jane Hodges in consonance with the wishes contained in the last will and testament of the latter.' (p. 46, Rec. Sp. Proc. 1307; emphasis supplied.) (5)On April 21, 1959 this Honorable Court approved the inventory and accounting submitted by C. N. Hodges through his counsel Leon P. Gellada on April 14, 1959 wherein he alleged among other things. 'That no person interested in the Philippines of the time and place of examining the herein account, be given notice, as herein executor is the only devisee or legatee of the deceased, in accordance with the last will and testament already; probated by the Honorable Court.' (pp. 77-78. Rec. Sp. Proc. 1307; emphasis supplied.) (6)On July 30, 1960 this Honorable Court approved the 'Annual Statement of Account' submitted by C. N. Hodges through his counsel Leon P. Gellada on July 21, 1960 wherein he alleged among other things: 'That no person interested in the Philippines of the time and place of examining the herein account, be given notice as herein executor is the only devisee or legatee of the deceased Linnie Jane Hodges, in accordance with the last will and testament of the deceased, already probated by this Honorable Court.' (pp. 81-82, Rec. Sp. Proc. 1307; emphasis supplied.) (7)On May 2, 1961 this Honorable court approved the 'Annual Statement of Account By The Executor For the Year 1960' submitted through Leon P. Gellada on April 20, 1961 wherein he alleged: 'That no person interested in the Philippines be given notice, of the time and place of examining the herein account, as herein Executor is the only devisee or legatee of the deceased Linnie Jane Hodges, in accordance with the last will and testament of the deceased, already probated by this Honorable Court.' (pp. 90-91, Rec. Sp. Proc. 1307; emphasis supplied.) (8)On December 25, 1962, C. N. Hodges died. (9)On December 25, 1962, on the Urgent Ex-Parte Motion of Leon P. Gellada filed only in Special Proceeding No. 1307, this Honorable Court appointed Avelina A. Magno. 'Administratrix of the estate of Linnie Jane Hodges and as Special Administratrix of the estate of Charles Newton Hodges, in the latter case because the last will of said Charles Newton Hodges is still kept in his vault or iron safe and that the real and personal properties of both spouses may

'That herein Executor, (is) not only part owner of the properties left as conjugal, but also, the successor to all the properties left by the deceased Linnie Jane Hodges.' (p. 44, Rec. Sp. Proc. 1307; emphasis supplied.) issued the following order: 'As prayed for by Attorney Gellada, counsel for the Executor, for the reasons stated in his motion dated December 11, 1957 which the court considers well taken, all the sales, conveyances, leases and mortgages of all properties left by the deceased Linnie Jane Hodges are hereby APPROVED. The said executor is further authorized to execute subsequent sales,

be lost, damaged or go to waste, unless a Special Administratrix is appointed.'(p. 100. Rec. Sp. Proc. 1307) (10)On December 26, 1962 Letters of Administration were issued to Avelina Magno pursuant to this Honorable Court's aforesaid Order of December 25, 1962. 'With full authority to take possession of all the property of said deceased in any province or provinces in which it may be situated and to perform all other acts necessary for the preservation of said property, said Administratrix and/or Special Administratrix having filed a bond satisfactory to the Court.' (p. 102. Rec. Sp. Proc. 1307) (11)On January 22, 1963 this Honorable Court on petition of Leon P. Gellada of January 21, 1963 issued Letters of Administration to: (a)Avelina A. Magno as Administratrix of the estate of Linnie Jane Hodges; (b)Avelina A. Magno as Special Administratrix of the Estate of Charles Newton Hodges; and (c)Joe Hodges as Co-Special Administrator of the Estate of Charles Newton Hodges. (p. 43, Rec. Sp. Proc. 1307)

(13)On September 16, 1963 Leon P. Gellada, acting as attorney for Avelina A. Magno as Administratrix of the estate of Linnie Jane Hodges, alleges: '3.That since January, 1963, both estates of Linnie Jane Hodges and Charles Newton Hodges have been receiving in full, payments for those 'contracts to sell' entered into by C. N. Hodges during his lifetime, and the purchasers have been demanding the execution of definite deeds of sale in their favor. '4.That hereto attached are thirteen (13) copies deeds of sale executed by the Administrative and by the co-administrator (Fernando P. Mirasol) of the estate of Linnie Jane Hodges and Charles Newton Hodges respectively, in compliance with the terms and conditions of the respective 'contracts to sell' executed by the parties thereto.' (14)The properties involved in the aforesaid motion of September 16, 1963 are all registered in the name of the deceased C. N. Hodges. (15)Avelina A. Magno, it is alleged on information and belief, has been advertising in the newspaper in Iloilo thusly: 'For Sale Testate Estate of Linnie Jane Hodges and Charles Newton Hodges. All Real Estate or Personal Property will be sold on First Come First Served Basis. Avelina A. Magno

Special Administratrix of the estate of C. N. Hodges. However, from manifestations made by Avelina A. Magno and her legal counsel, Leon P. Gellada, there is no question she will claim that at least fifty per cent (50%) of the conjugal assets of the deceased spouses and the rents, emoluments and income therefrom belong to the Higdon family who are named in paragraphs Fourth and Fifth of the Will of Linnie Jane Hodges (p. 5, Rec. Sp. Proc. 1307). WHEREFORE, premises considered, movant respectfully prays that this Honorable Court, after due hearing, order: (1)Avelina A. Magno to submit an inventory and accounting of all of the funds, properties and assets of any character belonging to the deceased Linnie Jane Hodges and C. N. Hodges which have come into her possession, with full details of what she has done with them; (2)Avelina A. Magno to turn over and deliver to the Administrator of the estate of C. N. Hodges all of the funds, properties and assets of and character remaining in her possession; (3)Pending this Honorable Court's adjudication of the aforesaid issues, Avelina A. Magno to stop, unless she first secures the conformity of Joe Hodges (or his duly authorized representative, such as the undersigned attorneys) as the Co-administrator and attorney-in-fact of a majority of the beneficiaries of the estate of C. N. Hodges: (a)Advertising the sale and the sale of the properties of the estates: (b)Employing personnel and paying them any compensation. (4)Such other relief as this Honorable Court may deem just and equitable in the premises. (Annex "T", Petition.) Almost a year thereafter, or on September 14, 1964, after the coadministrators Joe Hodges and Fernando P. Mirasol were replaced by herein petitioner Philippine Commercial and Industrial Bank as sole administrator, pursuant to an agreement of all the heirs of Hodges approved by the court, and because the above motion of October 5, 1963 had not yet been heard due to the absence from the country of Atty. Gibbs, petitioner filed the following: "MANIFESTATION AND MOTION, INCLUDING MOTION TO SET FOR HEARING AND RESOLVE URGENT MOTION FOR AN ACCOUNTING AND DELIVERY TO ADMINISTRATORS OF THE ESTATE OF C. N. HODGES OF ALL THE ASSETS OF THE CONJUGAL PARTNERSHIP OF THE DECEASED LINNIE JANE HODGES AND

(12)On February 20, 1963 this Honorable Court on the basis of a motion filed by Leon P. Gellada as legal counsel on February 16, 1963 for Avelina A. Magno acting as Administratrix of the Estate of Charles Newton Hodges (pp. 114-116, Sp. Proc. 1307) issued the following order: '. . . se autoriza a aquella (Avelina A. Magno) a firmar escrituras de venta definitiva de propiedades cubiertas por contratos para vender, firmados, en vida, por el finado Charles Newton Hodges, cada vez que el precio estipulado en cada contrato este totalmente pagado. Se autoriza igualmente a la misma a firmar escrituras de cancelacion de hipoteca tanto de bienes reales como personales cada vez que la consideracion de cada hipoteca este totalmente pagada. 'Cada una de dichas escrituras que se otorguen debe ser sometida para la aprobacion de este Juzgado.'(p. 117, Sp. Proc. 1307). [Par. 1 (c), Reply to Motion For Removal of Joe Hodges]

Administratrix (16)Avelina A. Magno, it is alleged on information and belief, has paid and still is paying sums of money to sundry persons. (17)Joe Hodges through the undersigned attorneys manifested during the hearings before this Honorable Court on September 5 and 6, 1963 that the estate of C. N. Hodges was claiming all of the assets belonging to the deceased spouses Linnie Jane Hodges and C. N. Hodges situated in Philippines cause of the aforesaid election by C. N. Hodges wherein he claimed and took possession as sole owner of all of said assets during the administration of the estate of Linnie Jane Hodges on the ground that he was the sole devisee and legatee under her Last Will and Testament. (18)Avelina A. Magno has submitted no inventory and accounting of her administration as Administratrix of the estate of Linnie Jane Hodges and

C. N. HODGES EXISTING AS OF MAY 23, 1957 PLUS ALL OF THE RENTS, EMOLUMENTS AND INCOME THEREFROM OF OCTOBER 5, 1963. COMES NOW Philippine Commercial and Industrial Bank (hereinafter referred to as PCIB), the administrator of the estate of C. N. Hodges, deceased, in Special Proceedings No. 1672, through its undersigned counsel, and to this Honorable Court respectfully alleges that: 1.On October 5, 1963, Joe Hodges acting as the co-administrator of the estate of C. N. Hodges filed, through the undersigned attorneys, an 'Urgent Motion For An Accounting and Delivery To Administrator of the Estate of C. N. Hodges of all of The Assets of The Conjugal Partnership of The Deceased Linnie Jane Hodges and C. N. Hodges Existing as of May 23, 1957 Plus All of The Rents, Emoluments and Income Therefrom' (pp. 536-542, CFI Rec., S. P. No. 1672).

4.On February 15, 1964 the PCIB filed a 'Motion to Resolve' the aforesaid Motion of October 5, 1963. This Honorable Court set for hearing on June 11, 1964 the Motion of October 5, 1963. 5.On June 11, 1964, because the undersigned Allison J. Gibbs was absent in the United States, this Honorable Court ordered the indefinite postponement of the hearing of the Motion of October 5, 1963. 6.Since its appointment as administrator of the estate of C. N. Hodges the PCIB has not been able to properly carry out its duties and obligations as administrator of the estate of C. N. Hodges because of the following acts, among others, of Avelina A. Magno and those who claim to act for her as administratrix of the estate of Linnie Jane Hodges: (a)Avelina A. Magno illegally acts as if she is in exclusive control of all of the assets in the Philippines of both estates including those claimed by the estate of C. N. Hodges as evidenced in part by her locking the premises at 206-208 Guanco Street, Iloilo City on August 31, 1964 and refusing to reopen same until ordered to do so by this Honorable Court on September 7, 1964. (b)Avelina A. Magno illegally acts as though she alone may decide how the assets of the estate of C. N. Hodges should be administered, who the PCIB shall employ and how much they may be paid as evidenced in party by her refusal to sign checks issued by the PCIB payable to the undersigned counsel pursuant to their fee agreement approved by this Honorable Court in its order dated March 31, 1964. (c)Avelina A. Magno illegally gives access to and turns over possession of the records and assets of the estate of C. N. Hodges to the attorney-in-fact of the Higdon Family, Mr. James L. Sullivan, as evidenced in part by the cashing of his personal checks. (d)Avelina A. Magno illegally refuses to execute checks prepared by the PCIB drawn to pay expenses of the estate of C. N. Hodges as evidenced in part by the check drawn to reimburse the PCIB's advance of P48,445.50 to pay the 1964 income taxes reported due and payable by the estate of C.N. Hodges. 7.Under and pursuant to the orders of this Honorable Court, particularly those of January 24 and February 1, 1964, and the mandate contained in its Letters of Administration issued on January 24, 1964 to the PCIB, it has 'full authority to take possession of all the property of the deceased C. N. Hodges.

'and to perform all other acts necessary for the preservation of said property.' (p. 914, CFI Rec., S.P. No. 1672.) 8.As administrator of the estate of C. N. Hodges, the PCIB claims the right to the immediate exclusive possession and control of all of the properties, accounts receivables, court cases, bank accounts and other assets, including the documentary records evidencing same, which existed in the Philippines on the date of C. N. Hodges' death, December 25, 1962, and were in his possession and registered in his name alone. The PCIB knows of no assets in the Philippines registered in the name of Linnie Jane Hodges, the estate of Linnie Jane Hodges, or, C. N. Hodges, Executor of the Estate of Linnie Jane Hodges, on December 25, 1962. All of the assets of which the PCIB has knowledge are either registered in the name of C. N. Hodges, alone or were derived therefrom since his death on December 25, 1962. 9.The PCIB as the current administrator of the estate of C. N. Hodges, deceased, succeeded to all of the rights of the previously duly appointed administrators of the estate of C. N. Hodges, to wit: (a)On December 25, 1962, date of C. N. Hodges' death, this Honorable Court appointed Miss Avelina A. Magno simultaneously as: (i)Administratrix of the estate of Linnie Jane Hodges (p. 102, CFI Rec., S.P. No. 1307) to replace the deceased C. N. Hodges who on May 28, 1957 was appointed Special Administrator (p. 13, CFI Rec., S.P. No. 1307) and on July 1, 1957 Executor of the estate of Linnie Jane Hodges (p. 30, CFI Rec., S. P. No. 1307); (ii)Special Administration of the estate of C. N. Hodges (p. 102, CFI Rec. S.P. No. 1307). (b)On December 29, 1962 this Honorable Court appointed Harold K. Davies as co-special administrator of the estate of C.N. Hodges along with Avelina A. Magno (pp. 108-111, CFI Rec., S. P. No. 1307). (c)On January 22, 1963, with the conformity of Avelina A. Magno, Harold K. Davies resigned in favor of Joe Hodges (pp. 35-36, CFI Rec., S.P. No. 1672) who thereupon was appointed on January 22, 1963 by this Honorable Court as special co-administrator of the estate of C.N. Hodges (pp. 38-40 & 43, CFI Rec., S.P. No. 1672) along with Miss Magno who at that time was still acting as special co-administratrix of the estate of C. N. Hodges. (d)On February 22, 1963, without objection on the part of Avelina A. Magno, this Honorable Court appointed Joe Hodges and Fernando P. Mirasol as co-administrators of the estate of C.N. Hodges (pp. 76-78, 81 & 85, CFI Rec., S.P. No. 1672).

2.On January 24, 1964 this Honorable Court, on the basis of an amicable agreement entered into on January 23, 1964 by the two co-administrators of the estate of C. N. Hodges and virtually all of the heirs of C. N. Hodges (p. 912, CFI Rec., S. P. No. 1672), resolved the dispute over who should act as administrator of the estate of C. N. Hodges by appointing the PCIB as administrator of the estate of C. N. Hodges (pp. 905-906, CFI Rec., S. P. No. 1672) and issuing letters of administration to the PCIB. 3.On January 24, 1964 virtually all of the heirs of C. N. Hodges, Joe Hodges and Fernando P. Mirasol acting as the two co-administrators of the estate of C. N. Hodges, Avelina A. Magno acting as the administratrix of the estate of Linnie Jane Hodges, and Messrs. William Brown and Ardel Young Acting for all of the Higdon family who claim to be the sole beneficiaries of the estate of Linnie Jane Hodges and various legal counsel representing the aforenamed parties entered into an amicable agreement, which was approved by this Honorable Court, wherein the parties thereto agreed that certain sums of money were to be paid in settlement of different claims against the two estates and that the assets (to the extent they existed) of both estates would be administered jointly by the PCIB as administrator of the estate of C. N. Hodges and Avelina A. Magno as administratrix of the estate of Linnie Jane Hodges, subject, however, to the aforesaid October 5, 1963 Motion, namely, the PCIB's claim to exclusive possession and ownership of one-hundred percent (100%) (or, in the alternative, seventyfive percent [75%] of all assets owned by C. N. Hodges or Linnie Jane Hodges situated in the Philippines. On February 1, 1964 (pp. 934-935, CFI Rec., S. P. No. 1672) this Honorable Court amended its order of January 24, 1964 but in no way changes its recognition of the aforedescribed basic demand by the PCIB as administrator of the estate of C. N. Hodges to one hundred percent (100%) of the assets claimed by both estates.

10.Miss Avelina A. Magno, pursuant to the orders of this Honorable Court of December 25, 1962, took possession of all Philippine Assets now claimed by the two estates. Legally, Miss Magno could take possession of the assets registered in the name of C. N. Hodges alone only in her capacity as Special Administratrix of the Estate of C.N. Hodges. With the appointment by this Honorable Court on February 22, 1963 of Joe Hodges and Fernando P. Mirasol as the co-administrators of the estate of C.N. Hodges, they legally were entitled to take over from Miss Magno the full and exclusive possession of all of the assets of the estate of C.N. Hodges. With the appointment on January 24, 1964 of the PCIB as the sole administrator of the estate of C.N. Hodges in substitution of Joe Hodges and Fernando P. Mirasol, the PCIB legally became the only party entitled to the sole and exclusive possession of all of the assets of the estate of C. N. Hodges. 11.The PCIB's predecessors submitted their accounting and this Honorable Court approved same, to wit: (a)The accounting of Harold K. Davies dated January 18, 1963 (pp. 16-33, CFI Rec., S.P. No. 1672); which shows on its face the: (i)Conformity of Avelina A. Magno acting as 'Administratrix of the Estate of Linnie Jane Hodges and Special Administratrix of the Estate of C.N. Hodges'; (ii)Conformity of Leslie Echols, a Texas lawyer acting for the heirs of C. N. Hodges; and (iii)Conformity of William Brown, a Texas lawyer acting for the Higdon family who claim to be the only heirs of Linnie Jane Hodges (pp. 18, 25-33, CFI Rec., S.P. No. 1672). "Note: This accounting was approved by this Honorable Court on January 22, 1963 (p. 34, CFI Rec., S.P. No. 1672). (b)The accounting of Joe Hodges and Fernando P. Mirasol as of January 23, 1964, filed February 24, 1964 (pp. 990-1000, CFI Rec., S.P. No. 1672 and pp. 1806-1848, CFI Rec., S.P. No. 1307). Note: This accounting was approved by this Honorable Court on March 3, 1964. (c)The PCIB and its undersigned lawyers are aware of no report or accounting submitted by Avelina A. Magno of her acts as administratrix of the estate of Linnie Jane Hodges or special administratrix of the estate of C.N. Hodges, unless it is the accounting of Harold K. Davies as special coadministrator of the estate of C.N. Hodges dated January 18, 1963 to which Miss Magno manifested her conformity (supra).

12.In the aforesaid agreement of January 24, 1964, Miss Avelina A. Magno agreed to receive P10,000.00. 'for her services as administratrix of the estate of Linnie Jane Hodges' and in addition she agreed to be employed, starting February 1, 1964, at 'a monthly salary of P500.00 for her services as an employee of both estates.' 24 ems. 13.Under the aforesaid agreement of January 24, 1964 and the orders of this Honorable Court of same date, the PCIB as administrator of the estate of C. N. Hodges is entitled to the exclusive possession of all records, properties and assets in the name of C. N. Hodges as of the date of his death on December 25, 1962 which were in the possession of the deceased C. N. Hodges on that date and which then passed to the possession of Miss Magno in her capacity as Special Co-Administratrix of the estate of C. N. Hodges or the possession of Joe Hodges or Fernando P. Mirasol as coadministrators of the estate of C. N. Hodges.

16.The Philippine estate and inheritance taxes assessed the estate of Linnie Jane Hodges were assessed and paid on the basis that C. N. Hodges is the sole beneficiary of the assets of the estate of Linnie Jane Hodges situated in the Philippines. Avelina A. Magno and her legal counsel at no time have questioned the validity of the aforesaid assessment and the payment of the corresponding Philippine death taxes. 17.Nothing further remains to be done in the estate of Linnie Jane Hodges except to resolve the aforesaid Motion of October 5, 1963 and grant the PCIB the exclusive possession and control of all of the records, properties and assets of the estate of C. N. Hodges. 18.Such assets as may have existed of the estate of Linnie Jane Hodges were ordered by this Honorable Court in special Proceedings No. 1307 to be turned over and delivered to C. N. Hodges alone. He in fact took possession of them before his death and asserted and exercised the right of exclusive ownership over the said assets as the sole beneficiary of the estate of Linnie Jane Hodges. WHEREFORE, premises considered, the PCIB respectfully petitions that this Honorable court. (1)Set the Motion of October 5, 1963 for hearing at the earliest possible date with notice to all interested parties;

14.Because of Miss Magno's refusal to comply with the reasonable request of PCIB concerning the assets of the estate of C. N. Hodges, the PCIB dismissed Miss Magno as an employee of the estate of C. N. Hodges effective August 31, 1964. On September 1, 1964 Miss Magno locked the premises at 206-208 Guanco Street and denied the PCIB access thereto. Upon the Urgent Motion of the PCIB dated September 3, 1964, this Honorable Court on September 7, 1964 ordered Miss Magno to reopen the aforesaid premises at 206-208 Guanco Street and permit the PCIB access thereto no later than September 8, 1964. 15.the PCIB pursuant to the aforesaid orders of this Honorable Court is again in physical possession of all of the assets of the estate of C. N. Hodges. However, the PCIB is not in exclusive control of the aforesaid records, properties and assets because Miss Magno continues to assert the claims hereinabove outlined in paragraph 6, continues to use her own locks to the doors of the aforesaid premises at 206-208 Guanco Street, Iloilo City and continues to deny the PCIB its right to know the combinations to the doors of the vault and safes situated within the premises at 206-208 Guanco Street despite the fact that said combinations were known to only C. N. Hodges during his lifetime.

(2)Order Avelina A. Magno to submit an inventory and accounting as Administratrix of the Estate of Linnie Jane Hodges and Co-Administratrix of the Estate of C. N. Hodges of all of the funds, properties and assets of any character belonging to the deceased Linnie Jane Hodges and C. N. Hodges which have come into her possession, with full details of what she has done with them; (3)Order Avelina A. Magno to turn over and deliver to the PCIB as administrator of the estate of C. N. Hodges all of the funds, properties and assets of any character remaining in her possession; (4)Pending this Honorable Court's adjudication of the aforesaid issues, order Avelina A. Magno and her representatives to stop interfering with the administration of the estate of C. N. Hodges by the PCIB and its duly authorized representatives; (5)Enjoin Avelina A. Magno from working in the premises at 206-208 Guanco Street, Iloilo City as an employee of the estate of C. N. Hodges and approve her dismissal as such by the PCIB effective August 31, 1964;

(6)Enjoin James L. Sullivan, Attorneys Manglapus and Quimpo and others allegedly representing Miss Magno from entering the premises at 206-208 Guanco Street, Iloilo City or any other properties of C. N. Hodges without the express permission of the PCIB; (7)Order such other relief as this Honorable Court finds just and equitable in the premises."(Annex "U", Petition.) On January 8, 1965, petitioner also filed a motion for "Official Declaration of Heirs of Linnie Jane Hodges Estate" alleging: COMES NOW Philippine Commercial and Industrial Bank (hereinafter referred to as PCIB), as administrator of the estate of the late C. N. Hodges, through the undersigned counsel, and to this Honorable Court respectfully alleges that: '1.During their marriage, spouses Charles Newton Hodges and Linnie Jane Hodges, American citizens originally from the State of Texas, U.S.A., acquired and accumulated considerable assets and properties in the Philippines and in the States of Texas and Oklahoma, United States of America. All said properties constituted their conjugal estate. 2.Although Texas was the domicile of origin of the Hodges spouses, this Honorable Court, in its orders dated March 31 and December 12, 1964 (CFI Record, Sp. Proc. No. 1307, pp. ----; Sp. Proc. No. 1672, p. ----), conclusively found and categorically ruled that said spouses had lived and worked for more than 50 years in Iloilo City and had, therefore, acquired a domicile of choice in said city, which they retained until the time of their respective deaths. 3.On November 22, 1952, Linnie Jane Hodges executed in the City of Iloilo her Last Will and Testament, a copy of which is hereto attached as Annex "A". The bequests in said will pertinent to the present issue are the second, third, and fourth provisions, which we quote in full hereunder: "SECOND: I give, devise and bequeath all of the rest, residue and remainder of my estate, both personal and real, wherever situated, or located, to my husband, Charles Newton Hodges, to have and to hold unto him, my said husband during his natural lifetime. "THIRD: I desire, direct and provide that my husband, Charles Newton Hodges, shall have the right to manage, control, use and enjoy said estate during his lifetime, and he is hereby given the right to make and changes in the physical properties of said estate, by sale of any part thereof which he may think best, and the purchase of any other or additional property as he may think best; to execute conveyances with or without general or special

warranty, conveying in fee simple or for any other term or time, any property which he may deem proper to dispose of; to lease any of the real property for oil, gas and/or other minerals, and all such deeds or leases shall pass the absolute fee simple title to the interest so conveyed in such property as he may elect to sell. All rents, emoluments and income from said estate shall belong to him, and he is further authorized to use any part of the principal of said estate as he may need or desire. It is provided herein, however, that he shall not sell or otherwise dispose of any of the improved property now owned by us located at, in or near the City of Lubbock, Texas, but he shall have the full right to lease, manage and enjoy the same during his lifetime, as above provided. He shall have the right to sub-divide any farmland and sell lots therein, and may sell unimproved town lots. "FOURTH: At the death of my said husband, Charles Newton Hodges, I give, devise and bequeath all of the rest, residue and remainder of my estate both real and personal, wherever situated or located, to be equally divided among my brothers and sisters, share and share alike, namely: 'Esta Higdon, Emma Howell, Leonard Higdon, Roy Higdon, Sadie Rascoe, Era Boman and Nimray Higdon.' 4.On November 14, 1953, C. N. Hodges executed in the City of Iloilo his Last Will and Testament, a copy of which is hereto attached as Annex "B". In said Will, C. N. Hodges designated his wife, Linnie Jane Hodges, as his beneficiary using the identical language she used in the second and third provisos of her Will, supra. 5.On May 23, 1957 Linnie Jane Hodges died in Iloilo City, pre-deceasing her husband by more than five (5) years. At the time of her death, she had no forced or compulsory heir, except her husband, C. N. Hodges. She was survived also by various brothers and sisters mentioned in her Will (supra), which, for convenience, we shall refer to as the HIGDONS. 6.On June 28, 1957, this Honorable Court admitted to probate the Last Will and Testament of the deceased Linnie Jane Hodges (Annex "A"), and appointed C. N. Hodges as executor of her estate without bond. (CFI Record, Sp. Proc. No. 1307, pp. 24-25). On July 1, 1957, this Honorable Court issued letters testamentary to C. N. Hodges in the estate of Linnie Jane Hodges. (CFI Record, Sp. Proc. No. 1307, p. 30.) 7.The Will of Linnie Jane Hodges, with respect to the order of succession, the amount of successional rights, and the intrinsic validity of its testamentary provisions, should be governed by Philippine laws, because: (a)The testatrix, Linnie Jane Hodges, intended Philippine laws to govern her Will;

(b)Article 16 of the Civil Code provides that "the national law of the person whose succession is under consideration, whatever may be the nature of the property and regardless of the country wherein said property may be found", shall prevail. However, the Conflict of Law of Texas, which is the "national law" of the testatrix, Linnie Jane Hodges, provide that the domiciliary law (Philippine law see paragraph 2, supra) should govern the testamentary dispositions and successional rights over movables (personal properties), and the law of the situs of the property (also Philippine law as to properties located in the Philippines) with regards immovable (real properties). Thus applying the "Renvoi Doctrine", as approved and applied by our Supreme Court in the case of "In The Matter Of The Testate Estate of Eduard E. Christensen", G.R. No. L-16749, promulgated January 31, 1963, Philippine law should apply to the Will of Linnie Jane Hodges and to the successional rights to her estate insofar as her movable and immovable assets in the Philippines are concerned. We shall not, at this stage, discuss what law should govern the assets of Linnie Jane Hodges located in Oklahoma and Texas, because the only assets in issue in this motion are those within the jurisdiction of this Honorable Court in the two abovecaptioned Special Proceedings.

8.Under Philippine and Texas law, the conjugal or community estate of spouses shall, upon dissolution, be divided equally between them. Thus, upon the death of Linnie Jane Hodges on May 23, 1957, one-half (1/2) of the entirety of the assets of the Hodges spouses constituting their conjugal estate pertained automatically to Charles Newton Hodges, not by way of inheritance, but in his own right as partner in the conjugal partnership. The other one-half (1/2) portion of the conjugal estate constituted the estate of Linnie Jane Hodges. This is the only portion of the conjugal estate capable of inheritance by her heirs. 9.This one-half (1/2) portion of the conjugal assets pertaining to Linnie Jane Hodges cannot, under a clear and specific provision of her Will, be enhanced or increased by income, earnings, rents, or emoluments accruing after her death on May 23, 1957. Linnie Jane Hodges' Will provides that "all rents, emoluments and income from said estate shall belong to him (C. N. Hodges) and he is further authorized to use any part of the principal of said estate as he may need or desire." (Paragraph 3, Annex "A".) Thus, by specific provision of Linnie Jane Hodges' Will, "all rents, emoluments and income" must be credited to the one-half (1/2) portion of the conjugal estate pertaining to C. N. Hodges. Clearly, therefore the estate of Linnie Jane Hodges capable of inheritance by her heirs, consisted exclusively of no more than one-half (1/2) of the conjugal estate, computed as of the time of her death on May 23, 1957. 10.Articles 900, 995 and 1001 of the New Civil Code provide that the surviving spouse of a deceased leaving no ascendants or descendants is

entitled, as a matter of right and by way of irrevocable legitime, to at least one-half (1/2) of the estate of the deceased, and no testamentary disposition by the deceased can legally and validly affect this right of the surviving spouse. In fact, her husband is entitled to said one-half (1/2) portion of her estate by way of legitime. (Article 886, Civil Code.) Clearly, therefore, immediately upon the death of Linnie Jane Hodges, C. N. Hodges was the owner of at least three-fourths (3/4) or seventy-five (75%) percent of all of the conjugal assets of the spouses, (1/2 or 50% by way of conjugal partnership share and 1/4 or 25% by way of inheritance and legitime), plus all "rents, emoluments and income" accruing to said conjugal estate from the moment of Linnie Jane Hodges' death (see paragraph 9, supra). 11.The late Linnie Jane Hodges designated her husband C. N. Hodges as her sole and exclusive heir with full authority to do what he pleased, as exclusive heir and owner of all the assets constituting her estate, except only with regards certain properties "owned by us, located at, in or near the City of Lubbock, Texas". Thus, even without relying on our laws of succession and legitime, which we have cited above, C. N. Hodges, by specific testamentary designation of his wife, was entitled to the entirety to his wife's estate in the Philippines. 12.Article 777 of the New Civil Code provides that "the rights of the successor are transmitted from the death of the decedent". Thus, title to the estate of Linnie Jane Hodges was transmitted to C. N. Hodges immediately upon her death on May 23, 1957. For the convenience of this Honorable Court, we attached hereto as Annex "C" a graph of how the conjugal estate of the spouses Hodges should be divided in accordance with Philippine law and the Will of Linnie Jane Hodges. 13.In his capacity as sole heir and successor to the estate of Linnie Jane Hodges as above-stated, C. N. Hodges, shortly after the death of Linnie Jane Hodges, appropriated to himself the entirety of her estate. He operated all the assets, engaged in business and performed all acts in connection with the entirety of the conjugal estate, in his own name alone, just as he had been operating, engaging and doing while the late Linnie Jane Hodges was still alive. Upon his death on December 25, 1962, therefore, all said conjugal assets were in his sole possession and control, and registered in his name alone, not as executor, but as exclusive owner of all said assets. 14.All these acts of C. N. Hodges were authorized and sanctioned expressly and impliedly by various orders of this Honorable Court, as follows: (a)In an Order dated May 27, 1957, this Honorable Court ruled that C. N. Hodges "is allowed or authorized to continue the business in which he was engaged, and to perform acts which he had been doing while the deceased was living." (CFI Record, Sp. Proc. No. 1307, p. 11.)

(b)On December 14, 1957, this Honorable Court, on the basis of the following fact, alleged in the verified Motion dated December 11, 1957 filed by Leon P. Gellada as attorney for the executor C. N. Hodges: 'That herein Executor, (is) not only part owner of the properties left as conjugal, but also, the successor to all the properties left by the deceased Linnie Jane Hodges.' (CFI Record, Sp. Proc. No. 1307, p. 44; emphasis supplied.) issued the following order: 'As prayed for by Attorney Gellada, counsel for the Executor, for the reasons stated in his motion dated December 11, 1957, which the Court considers well taken, all the sales, conveyances, leases and mortgages of all the properties left by the deceased Linnie Jane Hodges executed by the Executor, Charles Newton Hodges are hereby APPROVED. The said Executor is further authorized to execute subsequent sales, conveyances, leases and mortgages of the properties left by the said deceased Linnie Jane Hodges in consonance with the wishes contained in the last will and testament of the latter." (CFI Record, Sp. Proc. No. 1307, p. 46; emphasis supplied.) 24 ems. (c)On April 21, 1959, this Honorable Court approved the verified inventory and accounting submitted by C. N. Hodges through his counsel Leon P. Gellada on April 14, 1959 wherein he alleged among other things, 'That no person interested in the Philippines of the time and place of examining the herein account, be given notice, as herein executor is the only devisee or legatee of the deceased, in accordance with the last will and testament already probated by the Honorable Court.' (CFI Record, Sp. Proc. No. 1307, pp 77-78; emphasis supplied.) (d)On July 20, 1960, this Honorable Court approved the verified "Annual Statement of Account" submitted by C. N. Hodges through his counsel Leon P. Gellada on July 21, 1960 wherein he alleged, among other things, 'That no person interested in the Philippines of the time and place of examining the herein account, be given notice as herein executor is the only devisee or legatee of the deceased Linnie Jane Hodges, in accordance with the last will and testament of the deceased, already probated by this Honorable Court.' (CFI Record, Sp. Proc. No 1307, pp. 81-82; emphasis supplied.)

(e)On May 2, 1961, this Honorable Court approved the verified "Annual Statement of Account By The Executor For the Year 1960' submitted through Leon P. Gellada on April 20, 1961 wherein he alleged: 'That no person interested in the Philippines be given notice, of the time and place of examining the herein account, as herein executor is the only devisee or legatee of the deceased Linnie Jane Hodges, in accordance with the last will and testament of the deceased, already probated by this Honorable Court.' (CFI Record, Sp. Proc. No. 1307, pp. 90-91; emphasis supplied.) 15.Since C. N. Hodges was the sole and exclusive heir of Linnie Jane Hodges, not only by law, but in accordance with the dispositions of her will, there was, in fact, no need to liquidate the conjugal estate of the spouses. The entirety of said conjugal estate pertained to him exclusively, therefore this Honorable Court sanctioned and authorized, as above-stated, C. N. Hodges to manage, operate and control all the conjugal assets as owner. 16.By expressly authorizing C. N. Hodges to act as he did in connection with the estate of his wife, this Honorable Court has (1) declared C. N. Hodges as the sole heir of the estate of Linnie Jane Hodges, and (2) delivered and distributed her estate to C. N. Hodges as sole heir in accordance with the terms and conditions of her Will. Thus, although the "estate of Linnie Jane Hodges" still exists as a legal and juridical personality, it had no assets or properties located in the Philippines registered in its name whatsoever at the time of the death of C. N. Hodges on December 25, 1962. 17.The Will of Linnie Jane Hodges (Annex "A"), fourth paragraph, provides as follows: 'At the death of my said husband, Charles Newton Hodges, I give, devise and bequeath all of the rest, residue and remainder of my estate both real and personal, wherever situated or located, to be equally divided among my brothers and sisters, share and share alike, namely: 'Esta Higdon, Emma Howell, Leonard Higdon, Roy Higdon, Sadie Rascoe, Era Boman and Nimray Higdon.' Because of the facts hereinabove set out there is no "rest, residue and remainder", at least to the extent of the Philippine assets, which remains to vest in the HIGDONS, assuming this proviso in Linnie Jane Hodges' Will is valid and binding against the estate of C. N. Hodges. 18.Any claims by the HIGDONS under the above-quoted provision of Linnie Jane Hodges' Will is without merit because said provision is void and invalid at least as to the Philippine assets. It should not, in anyway, affect the rights

of the estate of C. N. Hodges or his heirs to the properties, which C. N. Hodges acquired by way of inheritance from his wife Linnie Jane Hodges upon her death. (a)In spite of the above-mentioned provision in the Will of Linnie Jane Hodges, C. N. Hodges acquired, not merely a usufructuary right, but absolute title and ownership to her estate. In a recent case involving a very similar testamentary provision, the Supreme Court held that the heir first designated acquired full ownership of the property bequeathed by the will, not mere usufructuary rights. (Consolacion Florentino de Crisologo, et al., vs. Manuel Singson, G. R. No. L-13876, February 28, 1962.)

the first instituted heir dies before the testator, whether or not that was the true intention of said testator. Since C. N. Hodges did not die before Linnie Jane Hodges, the provision for substitution contained in Linnie Jane Hodges' Will is void. (d)In view of the invalidity of the provision for substitution in the Will, C. N. Hodges' inheritance to the entirety of the Linnie Jane Hodges estate is irrevocable and final. 19.Be that as it may, at the time of C. N. Hodges' death, the entirety of the conjugal estate appeared and was registered in him exclusively as owner. Thus, the presumption is that all said assets constituted his estate. Therefore (a)If the HIGDONS wish to enforce their dubious rights as substituted heirs to 1/4 of the conjugal estate (the other 1/4 is covered by the legitime of C. N. Hodges which can not be affected by any testamentary disposition), their remedy, if any, is to file their claim against the estate of C. N. Hodges, which should be entitled at the present time to full custody and control of all the conjugal estate of the spouses. (b)The present proceedings, in which two estates exist under separate administration, where the administratrix of the Linnie Jane Hodges estate exercises an officious right to object and intervene in matters affecting exclusively the C. N. Hodges estate, is anomalous. WHEREFORE, it is most respectfully prayed that after trial and reception of evidence, this Honorable Court declare: 1.That the estate of Linnie Jane Hodges was and is composed exclusively of one-half (1/2) share in the conjugal estate of the spouses Hodges, computed as of the date of her death on May 23, 1957; 2.That the other half of the conjugal estate pertained exclusively to C. N. Hodges as his share as partner in the conjugal partnership; 3.That all "rents, emoluments and income" of the conjugal estate accruing after Linnie Jane Hodges' death pertains to C. N. Hodges; 4.That C. N. Hodges was the sole and exclusive heir of the estate of Linnie Jane Hodges; 5.That, therefore, the entire conjugal estate of the spouses located in the Philippines, plus all the "rents, emoluments and income" above-mentioned, now constitutes the estate of C. N. Hodges, capable of distribution to his heirs upon termination of Special Proceedings No. 1672;

6.That PCIB, as administrator of the estate of C. N. Hodges, is entitled to full and exclusive custody, control and management of all said properties; and 7.That Avelina A. Magno, as administratrix of the estate of Linnie Jane Hodges, as well as the HIGDONS, has no right to intervene or participate in the administration of the C. N. Hodges estate. PCIB further prays for such and other relief as may be deemed just and equitable in the premises."(Record, pp. 265-277) Before all of these motions of petitioner could be resolved, however, on December 21, 1965, private respondent Magno filed her own "Motion for the Official Declaration of Heirs of the Estate of Linnie Jane Hodges" as follows: "COMES NOW the Administratrix of the Estate of Linnie Jane Hodges and, through undersigned counsel, unto this Honorable Court most respectfully states and manifests: 1.That the spouses Charles Newton Hodges and Linnie Jane Hodges were American citizens who died at the City of Iloilo after having amassed and accumulated extensive properties in the Philippines; 2.That on November 22, 1952, Linnie Jane Hodges executed a last will and testament (the original of this will now forms part of the records of these proceedings as Exhibit 'C' and appears as Sp. Proc. No. 1307, Folio I, pp. 1718); 3.That on May 23, 1957, Linnie Jane Hodges died at the City of Iloilo, at the time survived by her husband, Charles Newton Hodges, and several relatives named in her last will and testament; 4.That on June 28, 1957, a petition therefor having been priorly filed and duly heard, this Honorable Court issued an order admitting to probate the last will and testament of Linnie Jane Hodges (Sp. Proc. No. 1307, Folio I, pp. 24-25, 26-28); 5.That the required notice to creditors and to all others who may have any claims against the decedent, Linnie Jane Hodges, has already been printed, published and posted (Sp. Proc. No. 1307, Folio I, pp. 34-40) and the reglementary period for filing such claims has long ago lapsed and expired without any claims having been asserted against the estate of Linnie Jane Hodges, approved by the Administrator/Administratrix of the said estate, nor ratified by this Honorable Court;

(b)Article 864, 872 and 886 of the New Civil Code clearly provide that no charge, condition or substitution whatsoever upon the legitime can be imposed by a testator. Thus, under the provisions of Articles 900, 995 and 1001 of the New Civil Code, the legitime of a surviving spouse is 1/2 of the estate of the deceased spouse. Consequently, the above-mentioned provision in the Will of Linnie Jane Hodges is clearly invalid insofar as the legitime of C. N. Hodges was concerned, which consisted of 1/2 of the 1/2 portion of the conjugal estate, or 1/4 of the entire conjugal estate of the deceased. (c)There are generally only two kinds of substitution provided for and authorized by our Civil Code (Articles 857-870), namely, (1) simple or common substitution, sometimes referred to as vulgar substitution (Article 859), and (2) fideicommissary substitution (Article 863). All other substitutions are merely variations of these. The substitution provided for by paragraph four of the Will of Linnie Jane Hodges is not fideicommissary substitution, because there is clearly no obligation on the part of C. N. Hodges as the first heir designated, to preserve the properties for the substitute heirs. (Consolacion Florentino de Crisologo, et al. vs. Manuel Singson, G.R. No. L-13876.) At most, it is a vulgar or simple substitution. However, in order that a vulgar or simple substitution can be valid, three alternative conditions must be present, namely, that the first designated heir (1) should die before the testator; or (2) should not wish to accept the inheritance; or (3) should be incapacitated to do so. None of these conditions apply, to C. N. Hodges, and, therefore, the substitution provided for by the above-quoted provision of the Will is not authorized by the Code, and, therefore, it is void. Manresa, commenting on these kinds of substitution, meaningfully stated that: ". . . cuando el testador instituye un primer heredero, y por fallecimiento de este, nombra otro u otros, ha de entenderse que estas segundas designaciones solo han de llegar a tener efectividad en el caso de que el primer instituido muera antes que el testador, fuera o no esta su verdadera intencion. . . .". (6 Manresa, 7 a ed., pag. 175.) In other words, when another heir is designated to inherit upon the death of a first heir, the second designation can have effect only in case

6.That the last will and testament of Linnie Jane Hodges already admitted to probate contains an institution of heirs in the following words: "SECOND: I give, devise and bequeath all of the rest, residue and remainder of my estate, both personal and real, wherever situated or located, to my beloved husband, Charles Newton Hodges, to have and to hold unto him, my said husband, during his natural lifetime. THIRD: I desire, direct and provide that my husband, Charles Newton Hodges, shall have the right to manage, control, use and enjoy said estate during his lifetime, and he is hereby given the right to make any changes in the physical properties of said estate, by sale of any part thereof which he may think best, and the purchase of any other or additional property as he may think best; to execute conveyances with or without general or special warranty, conveying in fee simple or for any other term or time, any property which he may deem proper to dispose of; to lease any of the real property for oil, gas and/or other minerals, and all such deeds or leases shall pass the absolute fee simple title to the interest so conveyed in such property as he may elect to sell. All rents, emoluments and income from said estate shall belong to him, and he is further authorized to use any part of the principal of said estate as he may need or desire. It is provided herein, however, that he shall not sell or otherwise dispose of any of the improved property now owned by us located at, in or near the City of Lubbock, Texas, but he shall have the full right to lease, manage and enjoy the same during his lifetime, above provided. He shall have the right to subdivide any farm land and sell lots therein, and may sell unimproved town lots. FOURTH: At the death of my said husband, Charles Newton Hodges, I give, devise and bequeath all of the rest, residue and remainder of my estate, both real and personal, wherever situated or located, to be equally divided among my brothers and sisters, share and share alike, namely: Esta Higdon, Emma Howell, Leonard Higdon, Roy Higdon, Sadie Rascoe, Era Boman and Nimroy Higdon. FIFTH: In case of the death of any of my brothers and/or sisters named in item Fourth, above, prior to the death of my husband, Charles Newton Hodges, then it is my will and bequest that the heirs of such deceased brother or sister shall take jointly the share which would have gone to such brother or sister had she or he survived.' 7.That under the provisions of the last will and testament already abovequoted, Linnie Jane Hodges gave a life-estate or a usufruct over all her estate to her husband, Charles Newton Hodges, and a vested remainderestate or the naked title over the same estate to her relatives named therein;

8.That after the death of Linnie Jane Hodges and after the admission to probate of her last will and testament, but during the lifetime of Charles Newton Hodges, the said Charles Newton Hodges, with full and complete knowledge of the life-estate or usufruct conferred upon him by the will since he was then acting as Administrator of the estate and later as Executor of the will of Linnie Jane Hodges, unequivocably and clearly through oral and written declarations and sworn public statements, renounced, disclaimed and repudiated his life-estate and usufruct over the estate of Linnie Jane Hodges;

have earned exactly the same amount of 'rents, emoluments and Income' as that of the share pertaining to Linnie Jane Hodges, continued to be burdened by charges, expenditures, and other dispositions which are purely personal to him in nature, until the death of Charles Newton Hodges himself on December 25, 1962; 14.That of all the assets of the combined conjugal estate of Linnie Jane Hodges and Charles Newton Hodges as they exist today, the estate of Linnie Jane Hodges is clearly entitled to a portion more than fifty percent (50%) as compared to the portion to which the estate of Charles Newton Hodges may be entitled, which portions can be exactly determined by the following manner: a.An inventory must be made of the assets of the combined conjugal estate as they existed on the death of Linnie Jane Hodges on May 23, 1957 onehalf of these assets belong to the estate of Linnie Jane Hodges; b.An accounting must be made of the 'rents, emoluments and income' of all these assets again one-half of these belong to the estate of Linnie Jane Hodges; c.Adjustments must be made, after making a deduction of charges disbursements and other dispositions made by Charles Newton Hodges personally and for his own personal account from May 23, 1957 up to December 25, 1962, as well as other charges, disbursements and other dispositions made for him and in his behalf since December 25, 1962 up to the present; 15.That there remains no other matter for disposition now insofar as the estate of Linnie Jane Hodges is concerned but to complete the liquidation of her estate, segregate them from the conjugal estate, and distribute them to her heirs pursuant to her last will and testament. WHEREFORE, premises considered, it is most respectfully moved and prayed that this Honorable Court, after a hearing on the factual matters raised by this motion, issue an order: a.Declaring the following persons, to wit: Esta Higdon, Emma Howell, Leonard Higdon, Aline Higdon, David Higdon, Sadie Rascoe, Era Boman and Nimroy Higdon, as the sole heirs under the last will and testament of Linnie Jane Hodges and as the only persons entitled to her estate; b.Determining the exact value of the estate of Linnie Jane Hodges in accordance with the system enunciated in paragraph 14 of this motion;

9.That, accordingly, the only heirs left to receive the estate of Linnie Jane Hodges, pursuant to her last will and testament, are her named brothers and sisters, or their heirs, to wit: Esta Higdon, Emma Howell, Leonard Higdon, Aline Higdon and David Higdon, the latter two being the wife and son respectively of the deceased Roy Higdon, Sadie Rascoe, Era Boman and Nimroy Higdon, all of legal ages, American citizens, with residence at the State of Texas, United States of America; 10.That at the time of the death of Linnie Jane Hodges on May 23, 1957, she was the co-owner (together with her husband Charles Newton Hodges) of an undivided one-half interest in their conjugal properties existing as of that date, May 23, 1957, which properties are now being administered sometimes jointly and sometimes separately by the Administratrix of the estate of Linnie Jane Hodges and/or the Administrator of the estate of C. N. Hodges but all of which are under the control and supervision of this Honorable Court; 11.That because there was no separation or segregation of the interests of husband and wife in the combined conjugal estate, as there has been no such separation or segregation up to the present, both interests have continually earned exactly the same amount of 'rents, emoluments and income', the entire estate having been continually devoted to the business of the spouses as if they were alive; 12.That the one-half interest of Linnie Jane Hodges in the combined conjugal estate was earning 'rents, emoluments and income' until her death on May 23, 1957, when it ceased to be saddled with any more charges or expenditures which are purely personal to her in nature, and her estate kept on earning such 'rents, emoluments and income' by virtue of their having been expressly renounced, disclaimed and repudiated by Charles Newton Hodges to whom they were bequeathed for life under the last will and testament of Linnie Jane Hodges; 13.That, on the other hand, the one-half interest of Charles Newton Hodges in the combined conjugal estate existing as of May 23, 1957, while it may

c.After such determination ordering its segregation from the combined conjugal estate and its delivery to the Administratrix of the estate of Linnie Jane Hodges for distribution to the heirs to whom they properly belong and appertain." (Green Record on Appeal, pp. 382-391) whereupon, instead of further pressing on its motion of January 8, 1965 aforequoted, as it had been doing before, petitioner withdrew the said motion and in addition to opposing the above motion of respondent Magno, filed a motion on April 22, 1966 alleging in part that: "1.That it has received from the counsel for the administratrix of the supposed estate of Linnie Jane Hodges a notice to set her 'Motion for Official Declaration of Heirs of the Estate of Linnie Jane Hodges'; "2.That before the aforesaid motion could be heard, there are matters pending before this Honorable Court, such as: a.The examination already ordered by this Honorable Court of documents relating to the allegation of Avelina Magno that Charles Newton Hodges 'through . . . written declarations and sworn public statements, renounced, disclaimed and repudiated his life-estate and usufruct over the Estate of Linnie Jane Hodges'; b.That 'Urgent Motion for An Accounting and Delivery to the Estate of C. N. Hodges of All the Assets of the Conjugal Partnership of the Deceased Linnie Jane Hodges and C. N. Hodges Existing as of May 23, 1957 Plus All the Rents, Emoluments and Income Therefrom'; c.Various motions to resolve the aforesaid motion;

filed by Avelina Magno is grossly insufficient to answer for the funds and property which she has inofficiously collected and held, as well as those which she continues to inofficiously collect and hold; "5.That it is a matter of record that such state of affairs affects and inconveniences not only the estate but also third-parties dealing with it," (Annex "V", Petition.) and then, after further reminding the court, by quoting them, of the relevant allegations of its earlier motion of September 14, 1964, Annex U, prayed that: "1.Immediately order Avelina Magno to account for and deliver to the administrator of the Estate of C. N. Hodges all the assets of the conjugal partnership of the deceased Linnie Jane Hodges and C. N. Hodges, plus all the rents, emoluments and income therefrom; "2.Pending the consideration of this motion, immediately order Avelina Magno to turn over all her collections to the administrator Philippine Commercial & Industrial Bank; "3.Declare the Testate Estate of Linnie Jane Hodges (Sp. Proc. No. 1307) closed; "4.Defer the hearing and consideration of the motion for declaration of heirs in the Testate Estate of Linnie Jane Hodges until the matters hereinabove set forth are resolved."(Prayer, Annex "V" of Petition.) On October 12, 1966, as already indicated at the outset of this opinion, the respondent court denied the foregoing motion, holding thus: "O R D E R

This motion is predicated on the fact that there are matters pending before this court such as (a) the examination already ordered by this Honorable Court of documents relating to the allegation of Avelina Magno that Charles Newton Hodges thru written declaration and sworn public statements renounced, disclaimed and repudiated his life-estate and usufruct over the estate of Linnie Jane Hodges (b) the urgent motion for accounting and delivery to the estate of C. N. Hodges of all the assets of the conjugal partnership of the deceased Linnie Jane Hodges and C. N. Hodges existing as of May 23, 1957 plus all the rents, emoluments and income therefrom; (c) various motions to resolve the aforesaid motion; and (d) manifestation of September 14, 1964, detailing acts of interference of Avelina Magno under color of title as administratrix of the estate of Linnie Jane Hodges. These matters, according to the instant motion, are all prejudicial involving no issues of facts and only require the resolution of question of law; that in the motion of October 5, 1963 it is alleged that in a motion dated December 11, 1957 filed by Atty. Leon Gellada as attorney for the executor C. N. Hodges, the said executor C. N. Hodges is not only part owner of the properties left as conjugal but also the successor to all the properties left by the deceased Linnie Jane Hodges.

Said motion of December 11, 1957 was approved by the Court in consonance with the wishes contained in the last will and testament of Linnie Jane Hodges. That on April 21, 1959 this Court approved the inventory and accounting submitted by C. N. Hodges thru counsel Atty. Leon Gellada in a motion filed on April 14, 1959 stating therein that executor C. N. Hodges is the only devisee or legatee of Linnie Jane Hodges in accordance with the last will and testament already probated by the Court. That on July 13, 1960 the Court approved the annual statement of accounts submitted by the executor C. N. Hodges thru his counsel Atty. Gellada on July 21, 1960 wherein it is stated that the executor, C. N. Hodges is the only devisee or legatee of the deceased Linnie Jane Hodges; that on May 2, 1961 the Court approved the annual statement of accounts submitted by executor, C. N. Hodges for the year 1960 which was submitted by Atty. Gellada on April 20, 1961 wherein it is stated that executor Hodges is the only devisee or legatee of the deceased Linnie Jane Hodges; That during the hearing on September 5 and 6, 1963 the estate of C. N. Hodges claimed all the assets belonging to the deceased spouses Linnie Jane Hodges and C. N. Hodges situated in the Philippines; that administratrix Magno has executed illegal acts to the prejudice of the testate estate of C. N. Hodges.

d.Manifestation of September 14, 1964, detailing acts of interference of Avelina Magno under color of title as administratrix of the Estate of Linnie Jane Hodges; which are all prejudicial, and which involve no issues of fact, all facts involved therein being matters of record, and therefore require only the resolution of questions of law; "3.That whatever claims any alleged heirs or other persons may have could be very easily threshed out in the Testate Estate of Charles Newton Hodges; "4.That the maintenance of two separate estate proceedings and two administrators only results in confusion and is unduly burdensome upon the Testate Estate of Charles Newton Hodges, particularly because the bond

On record is a motion (Vol. X, Sp. 1672, pp. 4379-4390) dated April 22, 1966 of administrator PCIB praying that (1) Immediately order Avelina Magno to account for and deliver to the administrator of the estate of C. N. Hodges all assets of the conjugal partnership of the deceased Linnie Jane Hodges and C. N. Hodges, plus all the rents, emoluments and income therefrom; (2) Pending the consideration of this motion, immediately order Avelina Magno to turn over all her collections to the administrator PCIB; (3) Declare the Testate Estate of Linnie Jane Hodges (Sp. Proc. No. 1307) closed; and (4) Defer the hearing and consideration of the motion for declaration of heirs in the Testate Estate of Linnie Jane Hodges until the matters hereinabove set forth are resolved.

An opposition (Sp. 1672, Vol. X, pp. 4415-4421) dated April 27, 1966 of administratrix Magno has been filed asking that the motion be denied for lack of merit and that the motion for the official declaration of heirs of the estate of Linnie Jane Hodges be set for presentation and reception of evidence. It is alleged in the aforesaid opposition that the examination of documents which are in the possession of administratrix Magno can be made prior to the hearing of the motion for the official declaration of heirs of the estate of Linnie Jane Hodges, during said hearing. That the matters raised in the PCIB's motion of October 5, 1963 (as well as the other motion) dated September 14, 1964 have been consolidated for the purpose of presentation and reception of evidence with the hearing on the determination of the heirs of the estate of Linnie Jane Hodges. It is further alleged in the opposition that the motion for the official declaration of heirs of the estate of Linnie Jane Hodges is the one that constitutes a prejudicial question to the motions dated October 5 and September 14, 1964 because if said motion is found meritorious and granted by the Court, the PCIB's motions of October 5, 1963 and September 14, 1964 will become moot and academic since they are premised on the assumption and claim that the only heir of Linnie Jane Hodges was C. N. Hodges; That the PCIB and counsel are estopped from further questioning the determination of heirs in the estate of Linnie Jane Hodges at this stage since it was PCIB as early as January 8, 1965 which filed a motion for official declaration of heirs of Linnie Jane Hodges; that the claim of any heirs of Linnie Jane Hodges can be determined only in the administration proceedings over the estate of Linnie Jane Hodges and not that of C. N. Hodges, since the heirs of Linnie Jane Hodges are claiming her estate and not the estate of C. N. Hodges. A reply (Sp. 1612, Vol. X, pp. 4436-4444) dated May 11, 1966 of the PCIB has been filed alleging that the motion dated April 22, 1966 of the PCIB is not to seek deferment of the hearing and consideration of the motion for official declaration of heirs of Linnie Jane Hodges but to declare the testate estate of Linnie Jane Hodges closed and for administratrix Magno to account for and deliver to the PCIB all assets of the conjugal partnership of the deceased spouses which has come to her possession plus all rents and income. A rejoinder (Sp. 1672, Vol. X, pp. 4458-4462) of administratrix Magno dated May 19, 1966 has been filed alleging that the motion dated December 11, 1957 only sought the approval of all conveyances made by C. N. Hodges and requested the Court authority for all subsequent conveyances that will be executed by C. N. Hodges; that the order dated December 14, 1967 only approved the conveyances made by C. N. Hodges; that C. N. Hodges

represented by counsel never made any claim in the estate of Linnie Jane Hodges and never filed a motion to declare himself as the heir of the said Linnie Jane Hodges despite the lapse of more than five (5) years after the death of Linnie Jane Hodges; that it is further alleged in the rejoinder that there can be no order of adjudication of the estate unless there has been a prior express declaration of heirs and so far no declaration of heirs in the estate of Linnie Jane Hodges (Sp. 1307) has been made. Considering the allegations and arguments in the motion and reply of the PCIB as well as those in the opposition and rejoinder of administratrix Magno, the Court finds the opposition and rejoinder to be well taken for the reason that so far there has been no official declaration of heirs in the testate estate of Linnie Jane Hodges and therefore no disposition of her estate. WHEREFORE, the motion of the PCIB dated April 22, 1966 is hereby DENIED." (Annex "W", Petition) In its motion dated November 24, 1966 for the reconsideration of this order, petitioner alleged inter alia that: "It cannot be over-stressed that the motion of December 11, 1957 was based on the fact that. a.Under the last will and testament of the deceased, Linnie Jane Hodges, the late Charles Newton Hodges was the sole heir instituted insofar as her properties in the Philippines are concerned; b.Said last will and testament vested upon the said late Charles Newton Hodges rights over said properties which, in sum, spell ownership, absolute and in fee simple; c.Said late Charles Newton Hodges was, therefore, 'not only part owner of the properties left as conjugal, but also, the successor to all the properties left by the deceased Linnie Jane Hodges. "Likewise, it cannot be over-stressed that the aforesaid motion was granted by this Honorable Court 'for the reasons stated' therein. "Again, the motion of December 11, 1957 prayed that not only 'all the sales, conveyances, leases, and mortgages executed by' the late Charles Newton Hodges, but also all 'the subsequent sales, conveyances, leases, and mortgages . . .' be approved and authorized. This Honorable Court, in its order of December 14, 1957, 'for the reasons stated' in the aforesaid

motion, granted the same, and not only approved all the sales, conveyances, leases and mortgages of all properties left by the deceased Linnie Jane Hodges executed by the late Charles Newton Hodges, but also authorized 'all subsequent sales, conveyances, leases and mortgages of the properties left by the said deceased Linnie Jane Hodges." (Annex "X", Petition) and reiterated its fundamental pose that the Testate Estate of Linnie Jane Hodges had already been factually, although not legally, closed with the virtual declaration of Hodges and adjudication to him, as sole universal heir of all the properties of the estate of his wife, in the order of December 14, 1957, Annex G. Still unpersuaded, on July 18, 1967, respondent court denied said motion for reconsideration and held that "the court believes that there is no justification why the order of October 12, 1966 should be considered or modified", and, on July 19, 1967, the motion of respondent Magno "for official declaration of heirs of the estate of Linnie Jane Hodges", already referred to above, was set for hearing. In consequence of all these developments, the present petition was filed on August 1, 1967 (albeit petitioner had to pay another docketing fee on August 9, 1967, since the orders in question were issued in two separate testate estate proceedings, Nos. 1307 and 1672, in the court below). Together with such petition, there are now pending before Us for resolution herein, appeals from the following: 1.The order of December 19, 1964 authorizing payment by respondent Magno of overtime pay, (pp. 221, Green Record on Appeal) together with the subsequent orders of January 9, 1965, (pp. 231-232, id.) October 27, 1965, (pp. 227, id.) and February 15, 1966 pp. 455-456, id.) repeatedly denying motions for reconsideration thereof. 2.The order of August 6, 1965 (pp. 248, id.) requiring that deeds executed by petitioner to be co-signed by respondent Magno, as well as the order of October 27, 1965 (pp. 276-277) denying reconsideration. 3.The other of October 27, 1965 (pp. 292-295, id.) enjoining the deposit of all collections in a joint account and the same order of February 15, 1966 mentioned in No. 1 above which included the denial of the reconsideration of this order of October 27, 1965. 4.The order of November 3, 1965 (pp. 313-320, id.) directing the payment of attorney's fees, fees of the respondent administratrix, etc. and the order of February 16, 1966 denying reconsideration thereof.

5.The order of November 23, 1965 (pp. 334-335, id.) allowing appellee Western Institute of Technology to make payments to either one or both of the administrators of the two estates as well as the order of March 7, 1966 (p. 462, id.) denying reconsideration. 6.The various orders hereinabove earlier enumerated approving deeds of sale executed by respondent Magno in favor of appellees Carles, Catedral, Pablito, Guzman, Coronado, Barrido, Causing, Javier, Lucero and Batisanan, (see pp. 35 to 37 of this opinion), together with the two separate orders both dated December 2, 1966 (pp. 306-308, and pp. 308-309, Yellow Record on Appeal) denying reconsideration of said approval. 7.The order of January 3, 1967, on pp. 335-336, Yellow Record on Appeal, approving similar deeds of sale executed by respondent Magno, as those in No. 6, in favor of appellees Pacaonsis and Premaylon, as to which no motion for reconsideration was filed. 8.Lastly, the order of December 2, 1966, on pp. 305-306, Yellow Record on Appeal, directing petitioner to surrender to appellees Lucero, Batisanan, Javier, Pablito, Barrido, Catedral, Causing, Guzman, and Coronado, the certificates of title covering the lands involved in the approved sales, as to which no motion for reconsideration was filed either.

THE DECEASED, CHARLES NEWTON HODGES, AND THE CONTRACTS TO SELL COVERING WHICH WERE EXECUTED BY HIM DURING HIS LIFETIME. V to VIII THE LOWER COURT ERRED IN APPROVING THE DEEDS OF SALE IN FAVOR OF THE APPELLEES, PEPITO G. IYULORES, ESPIRIDION PARTISALA, WINIFREDO C. ESPADA AND ROSARIO ALINGASA, COVERING PARCELS OF LAND FOR WHICH THEY HAVE NEVER PAID IN FULL IN ACCORDANCE WITH THE ORIGINAL CONTRACTS TO SELL. IX to XII THE LOWER COURT ERRED IN DETERMINING THE RIGHTS OF OWNERSHIP OVER REAL PROPERTY OF THE APPELLEES, PEPITO G. IYULORES, ESPIRIDION PARTISALA, WINIFREDO C. ESPADA AND ROSARIO ALINGASA, WHILE ACTING AS A PROBATE COURT. XIII to XV THE LOWER COURT ERRED IN APPROVING THE FINAL DEEDS OF SALE IN FAVOR OF THE APPELLEES ADELFA PREMAYLON (LOT NO. 102), SANTIAGO PACAONSIS, AND ADELFA PREMAYLON (LOT NO. 104), EXECUTED BY THE APPELLEE, AVELINA A. MAGNO, COVERING PARCELS OF LAND OWNED BY THE DECEASED, CHARLES NEWTON HODGES, AND THE CONTRACTS TO SELL COVERING WHICH WERE EXECUTED BY HIM DURING HIS LIFETIME. XVI to XVIII THE LOWER COURT ERRED IN APPROVING THE DEEDS OF SALE IN FAVOR OF THE APPELLEES ADELFA PREMAYLON (LOT NO. 102), SANTIAGO PACAONSIS, AND ADELFA PREMAYLON (LOT NO. 104) COVERING PARCELS OF LAND FOR WHICH THEY HAVE NEVER PAID IN FULL IN ACCORDANCE WITH THE ORIGINAL CONTRACTS TO SELL. XIX to XXI THE LOWER COURT ERRED IN DETERMINING THE RIGHTS OF OWNERSHIP OVER REAL PROPERTY OF THE APPELLEES ADELFA PREMAYLON (LOT NO. 102), SANTIAGO PACAONSIS, AND ADELFA PREMAYLON (LOT NO. 104) WHILE ACTING AS A PROBATE COURT. XXII to XXV

THE LOWER COURT ERRED IN APPROVING THE FINAL DEEDS OF SALE IN FAVOR OF THE APPELLEES LORENZO CARLES, JOSE PABLICO, ALFREDO CATEDRAL AND SALVADOR S. GUZMAN, EXECUTED BY THE APPELLEE, AVELINA A. MAGNO, COVERING PARCELS OF LAND OWNED BY THE DECEASED, CHARLES NEWTON HODGES, AND THE CONTRACTS TO SELL COVERING WHICH WERE EXECUTED BY HIM DURING HIS LIFETIME. XXVI to XXIX THE LOWER COURT ERRED IN APPROVING THE FINAL DEED OF SALE EXECUTED IN FAVOR OF THE APPELLEES, LORENZO CARLES, JOSE PABLICO, ALFREDO CATEDRAL AND SALVADOR S. GUZMAN PURSUANT TO CONTRACTS TO SELL WHICH WERE CANCELLED AND RESCINDED. XXX to XXXIV THE LOWER COURT ERRED IN DETERMINING THE RIGHTS OF OWNERSHIP OVER REAL PROPERTY OF THE APPELLEES, LORENZO CARLES, JOSE PABLICO, ALFREDO CATEDRAL AND SALVADOR S. GUZMAN, WHILE ACTING AS A PROBATE COURT. XXXV to XXXVI THE LOWER COURT ERRED IN APPROVING THE FINAL DEEDS OF SALE IN FAVOR OF THE APPELLEES, FLORENIA BARRIDO AND PURIFICACION CORONADO, EXECUTED BY THE APPELLEE, AVELINA A. MAGNO, COVERING PARCELS OF LAND OWNED BY THE DECEASED, CHARLES NEWTON HODGES AND THE CONTRACTS TO SELL COVERING WHICH WERE EXECUTED BY HIM DURING HIS LIFETIME. XXXVII to XXXVIII THE LOWER COURT ERRED IN APPROVING THE DEEDS OF SALE IN FAVOR OF THE APPELLEES, FLORENIA BARRIDO AND PURIFICACION CORONADO, ALTHOUGH THEY WERE IN ARREARS IN THE PAYMENTS AGREED UPON IN THE ORIGINAL CONTRACT TO SELL WHICH THEY EXECUTED WITH THE DECEASED, CHARLES NEWTON HODGES, IN THE AMOUNT OF P10,680.00 and P4,428.90, RESPECTIVELY. XXXIX to XL THE LOWER COURT ERRED IN DEPRIVING THE DECEASED, CHARLES NEWTON HODGES, OF THE CONTRACTUAL RIGHT, EXERCISED THROUGH HIS ADMINISTRATOR, THE INSTANT APPELLANT, TO CANCEL THE CONTRACTS TO SELL OF THE APPELLEES, FLORENIA BARRIDO AND PURIFICACION CORONADO.

Strictly speaking, and considering that the above orders deal with different matters, just as they affect distinctly different individuals or persons, as outlined by petitioner in its brief as appellant on pp. 12-20 thereof, there are, therefore, thirty-three (33) appeals before Us, for which reason, petitioner has to pay also thirty-one (31) more docket fees. It is as well perhaps to state here as elsewhere in this opinion that in connection with these appeals, petitioner has assigned a total of seventyeight (LXXVIII) alleged errors, the respective discussions and arguments under all of them covering also the fundamental issues raised in respect to the petition for certiorari and prohibition, thus making it feasible and more practical for the Court to dispose of all these cases together. 4 The assignments of error read thus: "I to IV THE ORDER COURT ERRED IN APPROVING THE FINAL DEEDS OF SALE IN FAVOR OF THE APPELLEES, PEPITO G. IYULORES, ESPIRIDION PARTISALA, WINIFREDO C. ESPADA AND ROSARIO ALINGASA, EXECUTED BY THE APPELLEE, AVELINA A. MAGNO, COVERING PARCELS OF LAND OWNED BY

XLI to XLIII THE LOWER COURT ERRED IN APPROVING THE FINAL DEEDS OF SALE IN FAVOR OF THE APPELLEES, GRACIANO LUCERO, ARITEO THOMAS JAMIR AND MELQUIADES BATISANAN, EXECUTED BY THE APPELLEE, AVELINA A. MAGNO, COVERING PARCELS OF LAND OWNED BY THE DECEASED, CHARLES NEWTON HODGES, AND THE CONTRACTS TO SELL COVERING WHICH WERE EXECUTED BY HIM DURING HIS LIFETIME. XLIV to XLVI THE LOWER COURT ERRED IN APPROVING THE FINAL DEED OF SALE IN FAVOR OF THE APPELLEES, GRACIANO LUCERO, ARITEO THOMAS JAMIR AND MELQUIADES BATISANAN, PURSUANT TO CONTRACTS TO SELL EXECUTED BY THEM WITH THE DECEASED, CHARLES NEWTON HODGES, THE TERMS AND CONDITIONS OF WHICH THEY HAVE NEVER COMPLIED WITH. XLVII to XLIX THE LOWER COURT ERRED IN DEPRIVING THE DECEASED, CHARLES NEWTON HODGES, OF HIS RIGHT, EXERCISED THROUGH HIS ADMINISTRATION, THE INSTANT APPELLANT, TO CANCEL THE CONTRACTS TO SELL OF THE APPELLEES, GRACIANO LUCERO, ARITEO THOMAS JAMIR AND MELQUIADES BATISANAN, AND IN DETERMINING THE RIGHTS OF THE SAID APPELLEES OVER REAL PROPERTY WHILE ACTING AS A PROBATE COURT. L THE LOWER COURT ERRED IN APPROVING THE FINAL DEEDS OF SALE IN FAVOR OF THE APPELLEE, BELCESAR CAUSING EXECUTED BY THE APPELLEE, AVELINA A. MAGNO, COVERING PARCELS OF LAND OWNED BY THE DECEASED, CHARLES NEWTON HODGES, AND THE CONTRACTS TO SELL COVERING WHICH WERE EXECUTED BY HIM DURING HIS LIFETIME. LI

THE LOWER COURT ERRED IN APPROVING THE DEED OF SALE IN FAVOR OF THE APPELLEE, BELCESAR CAUSING, ALTHOUGH THE SAME WAS NOT EXECUTED IN ACCORDANCE WITH THE RULES OF COURT. LIII to LXI

THE LOWER COURT ERRED IN DETERMINING THE RIGHTS OF THE APPELLEE, WESTERN INSTITUTE OF TECHNOLOGY OVER THE REAL PROPERTY SUBJECT MATTER OF THE CONTRACT TO SELL IT EXECUTED WITH THE DECEASED, CHARLES NEWTON HODGES, WHILE ACTING AS A PROBATE COURT. LXVII

THE LOWER COURT ERRED IN ORDERING THE APPELLANT, PHILIPPINE COMMERCIAL AND INDUSTRIAL BANK TO SURRENDER THE OWNER'S DUPLICATE CERTIFICATES OF TITLE OVER THE RESPECTIVE LOTS COVERED BY THE DEEDS OF SALE EXECUTED BY THE APPELLEE, AVELINA A. MAGNO, IN FAVOR OF THE OTHER APPELLEES, JOSE PABLICO, ALFREDO CATEDRAL, SALVADOR S. GUZMAN, FLORENIA BARRIDO, PURIFICACION CORONADO, BELCESAR CAUSING, ARITEO THOMAS JAMIR, MAXIMA BATISANAN AND GRACIANO L. LUCERO. LXII THE LOWER COURT ERRED IN RESOLVING THE MOTION OF THE APPELLEE, WESTERN INSTITUTE OF TECHNOLOGY, DATED NOVEMBER 3, 1965, WITHOUT ANY COPY THEREOF HAVING BEEN SERVED UPON THE APPELLANT, PHILIPPINE COMMERCIAL & INDUSTRIAL BANK. LXIII THE LOWER COURT ERRED IN HEARING AND CONSIDERING THE MOTION OF THE APPELLEE, WESTERN INSTITUTE OF TECHNOLOGY, DATED NOVEMBER 3rd, 1965, ON NOVEMBER 23, 1965, WHEN THE NOTICE FOR THE HEARING THEREOF WAS FOR NOVEMBER 20, 1965. LXIV THE LOWER COURT ERRED IN GRANTING THE APPELLEE, WESTERN INSTITUTE OF TECHNOLOGY A RELIEF OTHER THAN THAT PRAYED FOR IN ITS MOTION, DATED NOVEMBER 3, 1965, IN THE ABSENCE OF A PRAYER FOR GENERAL RELIEF CONTAINED THEREIN. LXV

LOWER COURT ERRED IN ALLOWING THE CONTINUATION OF PAYMENTS BY THE APPELLEE, WESTERN INSTITUTE OF TECHNOLOGY, UPON A CONTRACT TO SELL EXECUTED BY IT AND THE DECEASED, CHARLES NEWTON HODGES, TO A PERSON OTHER THAN HIS LAWFULLY APPOINTED ADMINISTRATOR. LXVIII THE LOWER COURT ERRED IN ORDERING THE PAYMENT OF RETAINER'S FEES FROM THE SUPPOSED ESTATE OF THE DECEASED, LINNIE JANE HODGES, WHEN THERE IS NEITHER SUCH ESTATE NOR ASSETS THEREOF. LXIX THE LOWER COURT ERRED IN ORDERING THE PAYMENT OF RETAINER'S FEES OF LAWYERS OF ALLEGED HEIRS TO THE SUPPOSED ESTATE OF THE DECEASED, LINNIE JANE HODGES. LXX THE LOWER COURT ERRED IN IMPLEMENTING THE ALLEGED AGREEMENT BETWEEN THE HEIRS OF THE SUPPOSED ESTATE OF THE DECEASED, LINNIE JANE HODGES, AND THEIR LAWYERS. LXXI THE LOWER COURT ERRED IN ORDERING THE PREMATURE DISTRIBUTION OF ESTATE ASSETS TO ALLEGED HEIRS OR BENEFICIARIES THEREOF, BY WAY OF RETAINER'S FEES. LXXII THE LOWER COURT ERRED IN ORDERING THAT ALL FINAL DEEDS OF SALE EXECUTED PURSUANT TO CONTRACTS TO SELL ENTERED INTO BY THE DECEASED, CHARLES NEWTON HODGES, DURING HIS LIFETIME, BE SIGNED JOINTLY BY THE APPELLEE, AVELINA A. MAGNO, AND THE APPELLANT, PHILIPPINE COMMERCIAL AND INDUSTRIAL BANK, AND NOT BY THE LATTER ONLY AS THE LAWFULLY APPOINTED ADMINISTRATOR OF HIS ESTATE.

THE LOWER COURT ERRED IN APPROVING THE DEEDS OF SALE IN FAVOR OF THE APPELLEE, BELCESAR CAUSING, ALTHOUGH HE WAS IN ARREARS IN THE PAYMENTS AGREED UPON IN THE ORIGINAL CONTRACT TO SELL WHICH HE EXECUTED WITH THE DECEASED, CHARLES NEWTON HODGES, IN THE AMOUNT OF P2,337.50. LII

THE LOWER COURT ERRED IN ALLOWING THE APPELLEE, WESTERN INSTITUTE OF TECHNOLOGY, TO CONTINUE PAYMENTS UPON A CONTRACT TO SELL THE TERMS AND CONDITIONS OF WHICH IT HAS FAILED TO FULFILL. LXVI

LXXIII THE LOWER COURT ERRED IN ORDERING THE PAYMENT OF LEGAL EXPENSES FROM THE SUPPOSED ESTATE OF THE DECEASED, LINNIE JANE HODGES, WHEN THERE IS NEITHER SUCH ESTATE NOR ASSETS THEREOF. LXXIV THE LOWER COURT ERRED IN ORDERING THE PAYMENT OF LEGAL EXPENSES OF LAWYERS OF ALLEGED HEIRS TO THE SUPPOSED ESTATE OF THE DECEASED, LINNIE JANE HODGES. LXXV THE LOWER COURT ERRED IN ORDERING THE PREMATURE DISTRIBUTION OF ESTATE ASSETS TO ALLEGED HEIRS OR BENEFICIARIES THEREOF, BY WAY OF LEGAL EXPENSES. LXXVI THE LOWER COURT ERRED IN ORDERING THE PAYMENT OF COMPENSATION TO THE PURPORTED ADMINISTRATRIX OF THE SUPPOSED ESTATE OF THE DECEASED, LINNIE JANE HODGES, THE INSTANT APPELLEE, AVELINA A. MAGNO, WHEN THERE IS NEITHER SUCH ESTATE NOR ASSETS THEREOF. LXXVII

To complete this rather elaborate, and unavoidably extended narration of the factual setting of these cases, it may also be mentioned that an attempt was made by the heirs of Mrs. Hodges to have respondent Magno removed as administratrix, with the proposed appointment of Benito J. Lopez in her place, and that respondent court did actually order such proposed replacement, but the Court declared the said order of respondent court violative of its injunction of August 8, 1967, hence without force and effect (see Resolution of September 8, 1972 and February 1, 1973). Subsequently, Atty. Efrain B. Trenas, one of the lawyers of said heirs, appeared no longer for the proposed administrator Lopez but for the heirs themselves, and in a motion dated October 26, 1972 informed the Court that a motion had been filed with respondent court for the removal of petitioner PCIB as administrator of the estate of C. N. Hodges in Special Proceedings 1672, which removal motion alleged that 22.968149% of the share of C. N. Hodges had already been acquired by the heirs of Mrs. Hodges from certain heirs of her husband. Further, in this connection, in the answer of PCIB to the motion of respondent Magno to have it declared in contempt for disregarding the Court's resolution of September 8, 1972 modifying the injunction of August 8, 1967, said petitioner annexed thereto a joint manifestation and motion, appearing to have been filed with respondent court, informing said court that in addition to the fact that 22% of the share of C. N. Hodges had already been bought by the heirs of Mrs. Hodges, as already stated, certain other heirs of Hodges representing 17.343750% of his estate were joining cause with the heirs of Mrs. Hodges as against PCIB, thereby making somewhat precarious, if not possibly untenable, petitioners' continuation as administrator of the Hodges estate. RESOLUTION OF ISSUES IN THE CERTIORARI AND PROHIBITION CASES

II The Propriety Here of Certiorari and Prohibition instead of Appeal The other preliminary point of the same respondent is alleged impropriety of the special civil action of certiorari and prohibition in view of the existence of the remedy of appeal which it claims is proven by the very appeals now before Us. Such contention fails to take into account that there is a common thread among the basic issues involved in all these thirty-three appeals which, unless resolved in one single proceeding, will inevitably cause the proliferation of more or less similar or closely related incidents and consequent eventual appeals. If for this consideration alone, and without taking account anymore of the unnecessary additional effort, expense and time which would be involved in as many individual appeals as the number of such incidents, it is logical and proper to hold, as We do hold, that the remedy of appeal is not adequate in the present cases. In determining whether or not a special civil action of certiorari or prohibition may be resorted to in lieu of appeal, in instances wherein lack or excess of jurisdiction or grave abuse of discretion is alleged, it is not enough that the remedy of appeal exists or is possible. It is indispensable that taking all the relevant circumstances of the given case, appeal would better serve the interests of justice. Obviously, the longer delay, augmented expense and trouble and unnecessary repetition of the same work attendant to the present multiple appeals, which, after all, deal with practically the same basic issues that can be more expeditiously resolved or determined in a single special civil action, make the remedies of certiorari and prohibition, pursued by petitioner, preferable, for purposes of resolving the common basic issues raised in all of them, despite the conceded availability of appeal. Besides, the settling of such common fundamental issues would naturally minimize the areas of conflict between the parties and render more simple the determination of the secondary issues in each of them. Accordingly, respondent Magno's objection to the present remedy of certiorari and prohibition must be overruled. We come now to the errors assigned by petitioner-appellant, Philippine Commercial & Industrial Bank, (PCIB, for short) in the petition as well as in its main brief as appellant. III On Whether or Not There is Still Any Part of the Testate Estate of Mrs. Hodges that may be Adjudicated to her brothers

THE LOWER COURT ERRED IN ORDERING THAT THE FUNDS OF THE TESTATE ESTATE OF THE DECEASED, CHARLES NEWTON HODGES, BE PLACED IN A JOINT ACCOUNT OF THE APPELLANT, PHILIPPINE COMMERCIAL AND INDUSTRIAL BANK, AND THE APPELLEE, AVELINA A. MAGNO WHO IS A COMPLETE STRANGER TO THE AFORESAID ESTATE.

I As to the Alleged Tardiness of the Present Appeals

LXXVIII THE LOWER COURT ERRED IN ORDERING THAT THE APPELLEE, AVELINA A. MAGNO, BE GIVEN EQUAL ACCESS TO THE RECORDS OF THE TESTATE ESTATE OF THE DECEASED, CHARLES NEWTON HODGES, WHEN SHE IS A COMPLETE STRANGER TO THE AFORESAID ESTATE."(Pp. 73-83, Appellant's Brief.)

The priority question raised by respondent Magno relates to the alleged tardiness of all the aforementioned thirty-three appeals of PCIB. Considering, however, that these appeals revolve around practically the same main issues and that it is admitted that some of them have been timely taken, and, moreover, their final results herein below to be stated and explained make it of no consequence whether or not the orders concerned have become final by the lapsing of the respective periods to appeal them, We do not deem it necessary to pass upon the timeliness of any of said appeals.

and sisters as her estate, of which respondent Magno is the unquestioned Administratrix in special Proceedings 1307. In the petition, it is the position of PCIB that the respondent court exceeded its jurisdiction or gravely abused its discretion in further recognizing after December 14, 1957 the existence of the Testate Estate of Linnie Jane Hodges and in sanctioning purported acts of administration therein of respondent Magno. Main ground for such posture is that by the aforequoted order of respondent court of said date, Hodges was already allowed to assert and exercise all his rights as universal heir of his wife pursuant to the provisions of her will, quoted earlier, hence, nothing else remains to be done in Special Proceedings 1307 except to formally close it. In other words, the contention of PCIB is that in view of said order, nothing more than a formal declaration of Hodges as sole and exclusive heir of his wife and the consequent formal unqualified adjudication to him of all her estate remain to be done to completely close Special Proceedings 1307, hence respondent Magno should be considered as having ceased to be Administratrix of the Testate Estate of Mrs. Hodges since then. After carefully going over the record, We feel constrained to hold that such pose is patently untenable from whatever angle it is examined. To start with, We cannot find anywhere in respondent court's order of December 14, 1957 the sense being read into it by PCIB. The tenor of said order bears no suggestion at all to such effect. The declaration of heirs and distribution by the probate court of the estate of a decedent is its most important function, and this Court is not disposed to encourage judges of probate proceedings to be less than definite, plain and specific in making orders in such regard, if for no other reason than that all parties concerned, like the heirs, the creditors, and most of all the government, the devisees and legatees, should know with certainty what are and when their respective rights and obligations ensuing from the inheritance or in relation thereto would begin or cease, as the case may be, thereby avoiding precisely the legal complications and consequent litigations similar to those that have developed unnecessarily in the present cases. While it is true that in instances wherein all the parties interested in the estate of a deceased person have already actually distributed among themselves their respective shares therein to the satisfaction of everyone concerned and no rights of creditors or third parties are adversely affected, it would naturally be almost ministerial for the court to issue the final order of declaration and distribution, still it is inconceivable that the special proceeding instituted for the purpose may be considered terminated, the respective rights of all the parties concerned be deemed definitely settled, and the executor or administrator thereof be regarded as automatically discharged and relieved already of all functions and responsibilities without the corresponding definite orders of the probate court to such effect.

Indeed, the law on the matter is specific, categorical and unequivocal. Section 1 of Rule 90 provides: "SECTION 1.When order for distribution of residue made. When the debts, funeral charges, and expenses of administration, the allowance to the widow, and inheritance tax, if any, chargeable to the estate in accordance with law, have been paid, the court, on the application of the executor or administrator, or of a person interested in the estate, and after hearing upon notice, shall assign the residue of the estate to the persons entitled to the same, naming them and the proportions, or parts, to which each is entitled, and such persons may demand and recover their respective shares from the executor or administrator, or any other person having the same in his possession. If there is a controversy before the court as to who are the lawful heirs of the deceased person or as to the distributive shares to which each person is entitled under the law, the controversy shall be heard and decided as in ordinary cases. "No distribution shall be allowed until the payment of the obligations above mentioned has been made or provided for, unless the distributees, or any of them, give a bond, in a sum to be fixed by the court, conditioned for the payment of said obligations within such time as the court directs." These provisions cannot mean anything less than that in order that a proceeding for the settlement of the estate of a deceased may be deemed ready for final closure, (1) there should have been issued already an order of distribution or assignment of the estate of the decedent among or to those entitled thereto by will or by law, but (2) such order shall not be issued until after it is shown that the "debts, funeral expenses, expenses of administration, allowances, taxes, etc. chargeable to the estate" have been paid, which is but logical and proper. (3) Besides, such an order is usually issued upon proper and specific application for the purpose of the interested party or parties, and not of the court.

close is the order of distribution directing delivery of the residue to the persons entitled thereto after paying the indebtedness, if any, left by the deceased." (Santiesteban vs. Santiesteban, 68 Phil. 367, 370.) In the cases at bar, We cannot discern from the voluminous and varied facts, pleadings and orders before Us that the above indispensable prerequisites for the declaration of heirs and the adjudication of the estate of Mrs. Hodges had already been complied with when the order of December 14, 1957 was issued. As already stated, We are not persuaded that the proceedings leading to the issuance of said order, constituting barely of the motion of May 27, 1957, Annex D of the petition, the order of even date, Annex E, and the motion of December 11, 1957, Annex H, all aforequoted, are what the law contemplates. We cannot see in the order of December 14, 1957, so much relied upon by the petitioner, anything more than an explicit approval of "all the sales, conveyances, leases and mortgages of all the properties left by the deceased Linnie Jane Hodges executed by the Executor Charles N. Hodges" (after the death of his wife and prior to the date of the motion), plus a general advance authorization to enable said "Executor to execute subsequent sales, conveyances, leases and mortgages of the properties left the said deceased Linnie Jane Hodges in consonance with wishes conveyed in the last will and testament of the latter", which, certainly, cannot amount to the order of adjudication of the estate of the decedent to Hodges contemplated in the law. In fact, the motion of December 11, 1957 on which the court predicated the order in question did not pray for any such adjudication at all. What is more, although said motion did allege that "herein Executor (Hodges) is not only part owner of the properties left as conjugal, but also, the successor to all the properties left by the deceased Linnie Jane Hodges", it significantly added that "herein Executor, as Legatee (sic), has the right to sell, convey, lease or dispose of the properties in the Philippines during his lifetime", thereby indicating that what said motion contemplated was nothing more than either the enjoyment by Hodges of his rights under the particular portion of the dispositions of his wife's will which were to be operative only during his lifetime or the use of his own share of the conjugal estate, pending the termination of the proceedings. In other words, the authority referred to in said motions and orders is in the nature of that contemplated either in Section 2 of Rule 109 which permits, in appropriate cases, advance or partial implementation of the terms of a duly probated will before final adjudication or distribution when the rights of third parties would not be adversely affected thereby or in the established practice of allowing the surviving spouse to dispose of his own share of the conjugal estate, pending its final liquidation, when it appears that no creditors of the conjugal partnership would be prejudiced thereby, (see the Revised Rules of Court by Francisco, Vol. V-B, 1970 ed. p. 887) albeit, from the tenor of said motions, We are more inclined to believe that Hodges meant to refer to the former. In any event, We are fully persuaded that the quoted allegations of said motions read together cannot be construed as a repudiation of the rights

". . . it is only after, and not before, the payment of all debts, funeral charges, expenses of administration, allowance to the widow, and inheritance tax shall have been effected that the court should make a declaration of heirs or of such persons as are entitled by law to the residue. (Moran, Comments on the Rules of Court, 2nd ed., Vol. II, p. 397, citing Capistrano vs. Nadurata, 49 Phil., 726; Lopez vs. Lopez, 37 Off. Gaz., 3091.)" (JIMOGA-ON v. BELMONTE, 84 Phil. 545, 548) (p. 86, Appellee's Brief) xxx xxx xxx "Under Section 753 of the Code of Civil Procedure, (corresponding to Section 1, Rule 90) what brings an intestate (or testate) proceeding to a

unequivocally established in the will in favor of Mrs. Hodges' brothers and sisters to whatever have not been disposed of by him up to his death. Indeed, nowhere in the record does it appear that the trial court subsequently acted upon the premise suggested by petitioner. On the contrary, on November 23, 1965, when the court resolved the motion of appellee Western Institute of Technology by its order We have quoted earlier, it categorically held that as of said date, November 23, 1965, "in both cases (Special Proceedings 1307 and 1672) there is as yet no judicial declaration of heirs nor distribution of properties to whomsoever are entitled thereto." In this connection, it may be stated further against petitioner, by way of some kind of estoppel, that in its own motion of January 8, 1965, already quoted in full on pages 54-67 of this decision, it prayed inter alia that the court declare that "C. N. Hodges was the sole and exclusive heir of the estate of Linnie Jane Hodges", which it would not have done if it were really convinced that the order of December 14, 1957 was already the order of adjudication and distribution of her estate. That said motion was later withdrawn when Magno filed her own motion for determination and adjudication of what should correspond to the brothers and sisters of Mrs. Hodges does not alter the indubitable implication of the prayer of the withdrawn motion. It must be borne in mind that while it is true that Mrs. Hodges bequeathed her whole estate to her husband and gave him what amounts to full powers of dominion over the same during his lifetime, she imposed at the same time the condition that whatever should remain thereof upon his death should go to her brothers and sisters. In effect, therefore, what was absolutely given to Hodges was only so much of his wife's estate as he might possibly dispose of during his lifetime; hence, even assuming that by the allegations in his motion, he did intend to adjudicate the whole estate to himself, as suggested by petitioner, such unilateral act could not have affected or diminished in any degree or manner the right of his brothers and sisters-in-law over what would remain thereof upon his death, for surely, no one can rightly contend that the testamentary provision in question allowed him to so adjudicate any part of the estate to himself as to prejudice them. In other words, irrespective of whatever might have been Hodges' intention in his motions, as Executor, of May 27, 1957 and December 11, 1957, the trial court's orders granting said motions, even in the terms in which they have been worded, could not have had the effect of an absolute and unconditional adjudication unto Hodges of the whole estate of his wife None of them could have deprived his brothers and sisters-in-law of their rights under said will. And it may be added here that the fact that no one appeared to oppose the motions in question may only be attributed, firstly, to the failure of Hodges to send notices to any of them, as admitted in the motion itself, and, secondly, to the fact that even if they had been notified, they could not have taken said motions to be for the final distribution and adjudication of the estate, but merely for him to be able, pending such final distribution and adjudication, to either exercise

during his lifetime rights of dominion over his wife's estate in accordance with the bequest in his favor, which, as already observed, may be allowed under the broad terms of Section 2 of Rule 109, or make use of his own share of the conjugal estate. In any event, We do not believe that the trial court could have acted in the sense pretended by petitioner, not only because of the clear language of the will but also because none of the interested parties had been duly notified of the motion and hearing thereof. Stated differently, if the orders of May 21, 1957 and December 4, 1957 were really intended to be read in the sense contended by petitioner, We would have no hesitancy in declaring them null and void. Petitioner cites the case of Austria vs. Ventenilla, G. R. No. L-10018, September 19, 1956, (unreported but a partial digest thereof appears in 99 Phil. 1069) in support of its insistence that with the orders of May 27 and December 14, 1957, the closure of Mrs. Hodges' estate has become a mere formality, inasmuch as said orders amounted to the order of adjudication and distribution ordained by Section 1 of Rule 90. But the parallel attempted to be drawn between that case and the present one does not hold. There the trial court had in fact issued a clear, distinct and express order of adjudication and distribution more than twenty years before the other heirs of the deceased filed their motion asking that the administratrix be removed, etc. As quoted in that decision, the order of the lower court in that respect read as follows: "En orden a la mocion de la administradora, el juzgado la encuentra procedente bajo la condicion de que no se hara entrega ni adjudicacion de los bienes a los herederos antes de que estos presten la fianza correspondiente y de acuerdo con lo prescrito en el Art. 754 del Codigo de Procedimientos: pues, en autos no aparece que hayan sido nombrados comisionados de avaluo y reclamaciones. Dicha fianza podra ser por un valor igual al de los bienes que correspondan a cada heredero segun el testamento. Creo que no es obice para la terminacion del expediente el hecho de que la administradora no ha presentado hasta ahora el inventario de los bienes; pues, segun la ley, estan exentos de esta formalidad los administradores que son legatarios del residuo o remanente de los bienes y hayan prestado fianza para responder de las gestiones de su cargo, y aparece en el testamento que la administradora Alejandra Austria reune dicha condicion. "POR TODO LO EXPUESTO, el juzgado declara, 1.o: no haber lugar a la mocion de Ramon Ventenilla y otros; 2.o, declara asimismo que los unicos herederos del finado Antonio Ventenilla son su esposa Alejandra Austria, Maria Ventenilla, hermana del testador, y Ramon Ventenilla, Maria Ventenilla, Ramon Soriano, Eulalio Soriano, Jose Soriano, Gabriela Ventenilla, Lorenzo Ventenilla, Felicitas Ventenilla, Eugenio Ventenilla y Alejandra Ventenilla, en representacion de los difuntos Juan, Tomas, Catalino y Froilan, hermanos del testador, declarando, ademas, que la heredera Alejandra Austria tiene derecho al remanente de todos los bienes

dejados por el finado, despues de deducir de ellos la porcion que corresponde a cada uno de sus coherederos, conforme esta mandado en las clausulas 8.a, 9.a, 10.a, 11.a, 12.a y 13.a del testamento; 3.o, se aprueba el pago hecho por la administradora de los gastos de la ultima enfermedad y funerales del testador, de la donacion hecha por el testador a favor de la Escuela a Publica del Municipio de Mangatarem, y de las misas en sufragio del alma del finado; 4.o, que una vez prestada la fianza mencionada al principio de este auto, se haga la entrega y adjudicacion de los bienes, conforme se dispone en el testamento y se acaba de declarar en este auto; 5.o, y, finalmente, que verificada la adjudicacion, se dara por terminada la administracion, revelandole toda responsabilidad a la administradora, y cancelando su fianza.

ASI SE ORDENA." Undoubtedly, after the issuance of an order of such tenor, the closure of any proceedings for the settlement of the estate of a deceased person cannot be but perfunctory. In the case at bar, as already pointed out above, the two orders relied upon by petitioner do not appear ex-facie to be of the same tenor and nature as the order just quoted, and, what is more, the circumstances attendant to its issuance do not suggest that such was the intention of the court, for nothing could have been more violative of the will of Mrs. Hodges. Indeed, to infer from Hodges' said motions and from his statements of accounts for the years 1958, 1959 and 1960, Annexes I, K and M, respectively, wherein he repeatedly claimed that "herein executor (being) the only devisee or legatee of the deceased, in accordance with the last will and testament already probated," there is "no (other) person interested in the Philippines of the time and place of examining herein account to be given notice", an intent to adjudicate unto himself the whole of his wife's estate in an absolute manner and without regard to the contingent interests of her brothers and sisters, is to impute bad faith to him, an imputation which is not legally permissible, much less warranted by the facts of record herein. Hodges knew or ought to have known that, legally speaking, the terms of his wife's will did not give him such a right. Factually, there are enough circumstances extant in the records of these cases indicating that he had no such intention to ignore the rights of his co-heirs. In his very motions in question, Hodges alleged, thru counsel, that the "deceased Linnie Jane Hodges died leaving no descendants and ascendants, except brothers and sisters and herein petitioner, as surviving spouse, to inherit the properties of the decedent", and even promised that "proper accounting will be had in all these transactions" which he had submitted for approval and authorization by the court, thereby implying that he was

aware of his responsibilities vis-a-vis his co-heirs. As alleged by respondent Magno in her brief as appellee: cdtai "Under date of April 14, 1959, C. N. Hodges filed his first 'Account by the Executor' of the estate of Linnie Jane Hodges. In the 'Statement of Networth of Mr. C. N. Hodges and the Estate of Linnie Jane Hodges' as of December 31, 1958 annexed thereto, C. N. Hodges reported that the combined e tax return' for calendar year 1958 on the estate of Linnie Jane Hodges reporting, under oath, the said estate as having earned income of P164,201.31, exactly one-half of the net income of his combined personal assets and that of the estate of Linnie Jane Hodges." (p. 91, Appellee's Brief.) "Under date of July 21, 1960, C. N. Hodges filed his second 'Annual Statement of Account by the Executor' of the estate of Linnie Jane Hodges. In the 'Statement of Net worth of Mr. C. N Hodges and the Estate of Linnie Jane Hodges' as of December 31, 1959 annexed thereto. C. N. Hodges reported that the combined conjugal estate earned a net income of P270,623.32, divided evenly between him and the estate of Linnie Jane Hodges. Pursuant to this, he filed an 'individual income tax return' for calendar year 1959 on the estate of Linnie Jane Hodges reporting, under oath, the said estate as having earned income of P135,311.66, exactly onehalf of the net income of his combined personal assets and that of the estate of Linnie Jane Hodges. (pp. 91-92, Id.) "Under date of April 20, 1961, C. N. Hodges filed his third 'Annual Statement of Account by the Executor for the year 1960' of the estate of Linnie Jane Hodges. In the 'Statement of Net Worth of Mr. C. N. Hodges and the Estate of Linnie Jane Hodges' as of December 31, 1960 annexed thereto, C. N. Hodges reported that the combined conjugal estate earned a net income of P314,857.94, divided of Linnie Jane Hodges. Pursuant to this, he filed an 'individual evenly between him and the estate income tax return' for calendar year 1960 on the estate of Linnie Jane Hodges reporting, under oath, the said estate as having earned income of P157,428.97, exactly onehalf of the net income of his combined personal assets and that of the estate of Linnie Jane Hodges." (pp. 92-93, Id.) "In the petition for probate that he (Hodges) filed, he listed the seven brothers and sisters of Linnie Jane as her 'heirs' (see p. 2, Green ROA). The order of the court admitting the will to probate unfortunately omitted one of the heirs, Roy Higdon (see p. 14, Green ROA). Immediately, C. N. Hodges filed a verified motion to have Roy Higdon's name included as an heir, stating that he wanted to straighten the records 'in order (that) the heirs of deceased Roy Higdon may not think or believe they were omitted, and that they were really and are interested in the estate of deceased Linnie Jane Hodges'."

Thus, he recognized, if in his own way, the separate identity of his wife's estate from his own share of the conjugal partnership up to the time of his death, more than five years after that of his wife. He never considered the whole estate as a single one belonging exclusively to himself. The only conclusion one can gather from this is that he could have been preparing the basis for the eventual transmission of his wife's estate, or, at least, so much thereof as he would not have been able to dispose of during his lifetime, to her brothers and sisters in accordance with her expressed desire, as intimated in his tax return in the United States to be more extensively referred to anon. And assuming that he did pay the corresponding estate and inheritance taxes in the Philippines on the basis of his being sole heir, such payment is not necessarily inconsistent with his recognition of the rights of his co-heirs. Without purporting to rule definitely on the matter in these proceedings, We might say here that We are inclined to the view that under the peculiar provisions of his wife's will, and for purposes of the applicable inheritance tax laws, Hodges had to be considered as her sole heir, pending the actual transmission of the remaining portion of her estate to her other heirs, upon the eventuality of his death, and whatever adjustment might be warranted should there be any such remainder then is a matter that could well be taken care of by the internal revenue authorities in due time. It is to be noted that the lawyer, Atty. Leon P. Gellada, who signed the motions of May 27, 1957 and December 11, 1957 and the aforementioned statements of account was the very same one who also subsequently signed and filed the motion of December 26, 1962 for the appointment of respondent Magno as "Administratrix of the Estate of Mrs. Linnie Jane Hodges" wherein it was alleged that "in accordance with the provisions of the last will and testament of Linnie Jane Hodges, whatever real properties that may remain at the death of her husband, Charles Newton Hodges, the said properties shall be equally divided among their heirs." And it appearing that said attorney was Hodges' lawyer as Executor of the estate of his wife, it stands to reason that his understanding of the situation, implicit in his allegations just quoted, could somehow be reflective of Hodges' own understanding thereof. As a matter of fact, the allegations in the motion of the same Atty. Gellada dated July 1, 1957, a "Request for Inclusion of the Name of Roy Higdon in the Order of the Court dated July 19, 1957, etc.", reference to which is made in the above quotation from respondent Magno's brief, are over the oath of Hodges himself, who verified the motion. Said allegations read: "1.That the Hon. Court issued orders dated June 29, 1957, ordering the probate of the will. 2.That in said order of the Hon. Court, the relatives of the deceased Linnie Jane Hodges were enumerated. However, in the petition as well as in the testimony of Executor during the hearing, the name Roy Higdon was

mentioned, but deceased. It was unintentionally omitted the heirs of said Roy Higdon, who are his wife Aline Higdon and son David Higdon, all of age, and residents of Quinlan, Texas, U.S.A. 3.That to straighten the records, and in order the heirs of deceased Roy Higdon may not think or believe they were omitted, and that they were really and are interested in the estate of deceased Linnie Jane Hodges, it is requested of the Hon Court to insert the names of Aline Higdon and David Higdon, wife and son of deceased Roy Higdon, in the said order of the Hon. Court dated June 29, 1957." (pars. 1 to 3 Annex 2 of Magno's Answer Record, p. 260) As can be seen, these italicized allegations indicate, more or less, the real attitude of Hodges in regard to the testamentary dispositions of his wife. In connection with this point of Hodges' intent, We note that there are documents, copies of which are annexed to respondent Magno's answer, which purportedly contain Hodges' own solemn declarations recognizing the right of his co-heirs, such as the alleged tax return he filed with the United States Taxation authorities, identified as Schedule M, (Annex 4 of her answer) and his supposed affidavit of renunciation, Annex 5. In said Schedule M, Hodges appears to have answered the pertinent question thus: "2a.Had the surviving spouse the right to declare an election between (1) the provisions made in his or her favor by the will and (11) dower, courtesy, or a statutory interest? (X) Yes () No "2d.Does the surviving spouse contemplate renouncing the will and electing to take dower, courtesy, or a statutory interest? (X) Yes ( ) No. "3.According to the information and belief of the person or persons filing the return, is any action described under question 1 designed or contemplated? ( ) Yes (X) No" (Annex 4, Answer Record, p. 263) and to have further stated under the item, "Description of property interests passing to surviving spouse" the following: "None, except for purposes of administering the Estate, paying debts, taxes and other legal charges. It is the intention of the surviving husband of deceased to distribute the remaining property and interest of the deceased in their Community Estate to the devisees and legatees named in the will when the debts, liabilities, taxes and expenses of administration are finally determined and paid." (Annex 4, Answer Record, p. 263)

In addition, in the supposed affidavit of Hodges, Annex 5, it is stated: "I, C. N. Hodges, being duly sworn, on oath affirm that at the time the United States Estate Tax Return was filed in the Estate of Linnie Jane Hodges on August 8, 1958, I renounced and disclaimed any and all right to receive the rents, emoluments and income from said estate, as shown by the statement contained in Schedule M at page 29 of said return, a copy of which schedule is attached to this affidavit and made a part hereof. "The purpose of this affidavit is to ratify and confirm and I do hereby ratify and confirm the declaration made in Schedule M of said return and hereby formally disclaim and renounce any right on my part to receive any of the said rents, emoluments and income from the estate of my deceased wife, Linnie Jane Hodges. This affidavit is made to absolve me or my estate from any liability for the payment of income taxes on income which has accrued to the estate of Linnie Jane Hodges since the death of the said Linnie Jane Hodges on May 23, 1957." (Annex 5, Answer Record, p. 264) Although it appears that said documents were not duly presented as evidence in the court below, and We cannot, therefore, rely on them for the purpose of the present proceedings, still, We cannot close our eyes to their existence in the record nor fail to note that their tenor jibes with Our conclusion discussed above from the circumstances related to the orders of May 27 and December 14, 1957. 5 Somehow, these documents, considering they are supposed to be copies of their originals found in the official files of the governments of the United States and of the Philippines, serve to lessen any possible apprehension that Our conclusion from the other evidence of Hodges' manifest intent vis-a-vis the rights of his co-heirs is without basis in fact. Verily, with such eloquent manifestations of his good intentions towards the other heirs of his wife, We find it very hard to believe that Hodges did ask the court and that the latter agreed that he be declared her sole heir and that her whole estate be adjudicated to him without so much as just annotating the contingent interest of her brothers and sisters in what would remain thereof upon his demise. On the contrary, it seems to us more factual and fairer to assume that Hodges was well aware of his position as executor of the will of his wife and, as such, had in mind the following admonition made by the Court in Pamittan vs. Lasam, et al., 60 Phil. 908, at pp. 913-914: "Upon the death of Bernarda in September, 1908, said land continued to be conjugal property in the hands of the defendant Lasam. It is provided in article 1418 of the Civil Code that upon the dissolution of the conjugal partnership, an inventory shall immediately be made and this court in

construing this provision in connection with section, 685 of the Code of Civil Procedure (prior to its amendment by Act No. 3176 of November 24, 1924) has repeatedly held that in the event of the death of the wife, the law imposes upon the husband the duty of liquidating the affairs of the partnership without delay (desde luego). (Alfonso vs. Natividad, 6 Phil. 240; Prado vs. Lagera, 7 Phil., 395; De la Rama vs. De la Rama, 7 Phil., 745; Enriquez vs. Victoria, 10 Phil., 10; Amancio vs. Pardo, 13 Phil., 297; Rojas vs. Singson Tongson, 17 Phil., 476; Sochayseng vs. Trujillo, 31 Phil., 153; Molera vs. Molera, 40 Phil., 586; Nable Jose vs. Nable Jose, 41 Phil., 713.) "In the last mentioned case this court quoted with approval the case of Leatherwood vs. Arnold (66 Texas, 414, 416, 417), in which that court discussed the powers of the surviving spouse in the administration of the community property. Attention was called to the fact that the surviving husband, in the management of the conjugal property after the death of the wife, was a trustee of unique character who is liable for any fraud committed by him with relation to the property while he is charged with its administration. In the liquidation of the conjugal partnership, he had wide powers (as the law stood prior to Act No. 3176) and the high degree of trust reposed in him stands out more clearly in view of the fact that he was the owner of a half interest in his own right of the conjugal estate which he was charged to administer. He could therefore no more acquire a title by prescription against those for whom he was administering the conjugal estate than could a guardian against his ward or a judicial administrator against the heirs of estate. Section 38 of Chapter III of the Code of Civil Procedure, with relation to prescription, provides that 'this chapter shall not apply . . . in the case of a continuing and subsisting trust.' The surviving husband in the administration and liquidation of the conjugal estate occupies the position of a trustee of the highest order and is not permitted by the law to hold that estate or any portion thereof adversely to those for whose benefit the law imposes upon him the duty of administration and liquidation. No liquidation was ever made by Lasam hence, the conjugal property which came into his possession on the death of his wife in September, 1908, still remains conjugal property, a continuing and subsisting trust. He should have made a liquidation immediately (desde luego). He cannot now be permitted to take advantage of his own wrong. One of the conditions of title by prescription (section 41, Code of Civil Procedure) is possession 'under a claim of title exclusive of any other right'. For a trustee to make such a claim would be a manifest fraud." And knowing thus his responsibilities in the premises, We are not convinced that Hodges arrogated everything unto himself leaving nothing at all to be inherited by his wife's brothers and sisters. PCIB insists, however, that to read the orders of May 27 and December 14, 1957, not as adjudicatory, but merely as approving past and authorizing future dispositions made by Hodges in a wholesale and general manner, would necessarily render the said orders void for being violative of the

provisions of Rule 89 governing the manner in which such dispositions may be made and how the authority therefor and approval thereof by the probate court may be secured. If We sustained such a view, the result would only be that the said orders should be declared ineffective either way they are understood, considering We have already seen it is legally impossible to consider them as adjudicatory. As a matter of fact, however, what surges immediately to the surface, relative to PCIB's observations based on Rule 89, is that from such point of view, the supposed irregularity would involve no more than some non-jurisdictional technicalities of procedure, which have for their evident fundamental purpose the protection of parties interested in the estate, such as the heirs, its creditors, particularly the government on account of the taxes due it; and since it is apparent here that none of such parties are objecting to said orders or would be prejudiced by the unobservance by the trial court of the procedure pointed out by PCIB, We find no legal inconvenience in nor impediment to Our giving sanction to the blanket approval and authority contained in said orders. This solution is definitely preferable in law and in equity, for to view said orders in the sense suggested by PCIB would result in the deprivation of substantive rights to the brothers and sisters of Mrs. Hodges, whereas reading them the other way will not cause any prejudice to anyone, and, withal, will give peace of mind and stability of rights to the innocent parties who relied on them in good faith, in the light of the peculiar pertinent provisions of the will of said decedent. Now, the inventory submitted by Hodges on May 12, 1958 referred to the estate of his wife as consisting of "One-half of all the items designated in the balance sheet, copy of which is hereto attached and marked as 'Annex A'." Although, regrettably, no copy of said Annex A appears in the records before Us, We take judicial notice, on the basis of the undisputed facts in these cases, that the same consists of considerable real and other personal kinds of properties. And since, according to her will, her husband was to be the sole owner thereof during his lifetime, with full power and authority to dispose of any of them, provided that should there be any remainder upon his death, such remainder would go to her brothers and sisters, and furthermore, there is no pretension, much less any proof that Hodges had in fact disposed of all of them, and, on the contrary, the indications are rather to the effect that he had kept them more or less intact, it cannot truthfully be said that, upon the death of Hodges, there was no more estate of Mrs. Hodges to speak of it is Our conclusion, therefore, that properties do exist which constitute such estate, hence Special Proceedings 1307 should not yet be closed. Neither is there basis for holding that respondent Magno has ceased to be the Administratrix in said proceeding. There is no showing that she has ever been legally removed as such, the attempt to replace her with Mr. Benito Lopez without authority from the Court having been expressly held ineffective by Our resolution of September 8, 1972. Parenthetically, on this last point, PCIB itself is very emphatic in stressing that it is not questioning

said respondent's status as such administratrix. Indeed, it is not clear that PCIB has any standing to raise any objection thereto, considering it is a complete stranger insofar as the estate of Mrs. Hodges is concerned. It is the contention of PCIB, however, that as things actually stood at the time of Hodges' death, their conjugal partnership had not yet been liquidated and, inasmuch as the properties composing the same were thus commingled pro indiviso and, consequently, the properties pertaining to the estate of each of the spouses are not yet identifiable, it is PCIB alone, as administrator of the estate of Hodges, who should administer everything, and all that respondent Magno can do for the time being is to wait until the properties constituting the remaining estate of Mrs. Hodges have been duly segregated and delivered to her for her own administration. Seemingly, PCIB would liken the Testate Estate of Linnie Jane Hodges to a party having a claim of ownership to some properties included in the inventory of an administrator of the estate of a decedent, (here that of Hodges) and who normally has no right to take part in the proceedings pending the establishment of his right or title; for which as a rule it is required that an ordinary action should be filed, since the probate court is without jurisdiction to pass with finality on questions of title between the estate of the deceased, on the one hand, and a third party or even an heir claiming adversely against the estate, on the other.

failure of Hodges to secure, as executor of his wife's estate, from May, 1957 up to the time of his death in December, 1962, a period of more than five years, the final adjudication of her estate and the closure of the proceedings. The record is bare of any showing that he ever exerted any effort towards the early settlement of said estate. While, on the one hand, there are enough indications, as already discussed, that he had intentions of leaving intact her share of the conjugal properties so that it may pass wholly to his co-heirs upon his death, pursuant to her will, on the other hand, by not terminating the proceedings, his interests in his own half of the conjugal properties remained commingled pro-indiviso with those of his co-heirs in the other half. Obviously, such a situation could not be conducive to ready ascertainment of the portion of the inheritance that should appertain to his co-heirs upon his death. Having these considerations in mind, it would be giving a premium for such procrastination, and rather unfair to his co-heirs, if the administrator of his estate were to be given exclusive administration of all the properties in question, which would necessarily include the function of promptly liquidating the conjugal partnership, thereby identifying and segregating without unnecessary loss of time which properties should be considered as constituting the estate of Mrs. Hodges, the remainder of which her brothers and sisters are supposed to inherit equally among themselves. To be sure, an administrator is not supposed to represent the interests of any particular party and his acts are deemed to be objectively for the protection of the rights of everybody concerned with the estate of the decedent, and from this point of view, it maybe said that even if PCIB were to act alone, there should be no fear of undue disadvantage to anyone. On the other hand, however, it is evidently implicit in section 6 of Rule 78 fixing the priority among those to whom letters of administration should be granted that the criterion in the selection of the administrator is not his impartiality alone but, more importantly, the extent of his interest in the estate, so much so that the one assumed to have greater interest is preferred to another who has less. Taking both of these considerations into account, inasmuch as, according to Hodges' own inventory submitted by him as Executor of the estate of his wife, practically all their properties were conjugal which means that the spouses have equal shares therein, it is but logical that both estates should be administered jointly by the representatives of both, pending their segregation from each other. Particularly is such an arrangement warranted because the actuations so far of PCIB evince a determined, albeit groundless, intent to exclude the other heirs of Mrs. Hodges from their inheritance. Besides, to allow PCIB, the administrator of his estate, to perform now what Hodges was duty bound to do as executor is to violate the spirit, if not the letter, of Section 2 of Rule 78 which expressly provides that "The executor of an executor shall not, as such, administer the estate of the first testator." It goes without saying that this provision refers also to the administrator of an executor like PCIB here.

We are not unmindful of the fact that under Section 2 of Rule 73, "When the marriage is dissolved by the death of the husband or wife, the community property shall be inventoried, administered, and liquidated, and the debts thereof paid, in the testate or intestate proceedings of the deceased spouse. If both spouses have died, the conjugal partnership shall be liquidated in the testate or intestate proceedings of either." Indeed, it is true that the last sentence of this provision allows or permits the conjugal partnership of spouses who are both deceased to be settled or liquidated in the testate or intestate proceedings of either, but precisely because said sentence allows or permits that the liquidation be made in either proceeding, it is a matter of sound judicial discretion in which one it should be made. After all, the former rule referring to the administrator of the husband's estate in respect to such liquidation was done away with by Act 3176, the pertinent provisions of which are now embodied in the rule just cited. Thus, it can be seen that at the time of the death of Hodges, there was already the pending judicial settlement proceeding of the estate of Mrs. Hodges, and, more importantly, that the former was the executor of the latter's will who had, as such, failed for more than five years to see to it that the same was terminated earliest, which was not difficult to do, since from ought that appears in the record, there were no serious obstacles on the way, the estate not being indebted and there being no immediate heirs other than Hodges himself. Such dilatory or indifferent attitude could only spell possible prejudice of his co-heirs, whose rights to inheritance depend entirely on the existence of any remainder of Mrs. Hodges' share in the community properties, and who are now faced with the pose of PCIB that there is no such remainder. Had Hodges secured as early as possible the settlement of his wife's estate, this problem would not arisen. All things considered, We are fully convinced that the interests of justice will be better served by not permitting or allowing PCIB or any administrator of the estate of Hodges exclusive administration of all the properties in question. We are of the considered opinion and so hold that what would be just and proper is for both administrators of the two estates to act conjointly until after said estates have been segregated from each other. At this juncture, it may be stated that we are not overlooking the fact that it is PCIB's contention that, viewed as a substitution, the testamentary disposition in favor of Mrs. Hodges' brothers and sisters may not be given effect. To a certain extent, this contention is correct. Indeed, legally speaking, Mrs. Hodges' will provides neither for a simple or vulgar substitution under Article 859 of the Civil Code nor for a fideicommissary substitution under Article 863 thereof. There is no vulgar substitution therein because there is no provision for either (1) predecease of the testator by the designated heir or (2) refusal or (3) incapacity of the latter to accept the inheritance, as required by Article 859; and neither is there a fideicommissary substitution therein because no obligation is imposed thereby upon Hodges to preserve the estate or any part thereof for anyone

We do not find such contention sufficiently persuasive. As We see it, the situation obtaining herein cannot be compared with the claim of a third party the basis of which is alien to the pending probate proceedings. In the present cases, what gave rise to the claim of PCIB of exclusive ownership by the estate of Hodges over all the properties of the Hodges spouses, including the share of Mrs. Hodges in the community properties, were the orders of the trial court issued in the course of the very settlement proceedings themselves, more specifically, the orders of May 27 and December 14, 1957 so often mentioned above. In other words, the root of the issue of title between the parties is something that the court itself has done in the exercise of its probate jurisdiction. And since in the ultimate analysis, the question of whether or not all the properties herein involved pertain exclusively to the estate of Hodges depends on the legal meaning and effect of said orders, the claim that respondent court has no jurisdiction to take cognizance of and decide the said issue is incorrect. If it was within the competence of the court to issue the root orders, why should it not be within its authority to declare their true significance and intent, to the end that the parties may know whether or not the estate of Mrs. Hodges had already been adjudicated by the court, upon the initiative of Hodges, in his favor, to the exclusion of the other heirs of his wife instituted in her will? At this point, it bears emphasis again that the main cause of all the present problems confronting the courts and the parties in these cases was the

else. But from these premises, it is not correct to jump to the conclusion, as PCIB does, that the testamentary dispositions in question are therefore inoperative and invalid. The error in PCIB's position lies simply in the fact that it views the said disposition exclusively in the light of substitutions covered by the Civil Code section on that subject, (Section 3, Chapter 2, Title IV, Book III) when it is obvious that substitution occurs only when another heir is appointed in a will "so that he may enter into inheritance in default of the heir originally instituted," (Article 857, Id.) and, in the present case, no such possible default is contemplated. The brothers and sisters of Mrs. Hodges are not substitutes for Hodges because, under her will, they are not to inherit what Hodges cannot, would not or may not inherit, but what he would not dispose of from his inheritance; rather, therefore, they are also heirs instituted simultaneously with Hodges, subject, however, to certain conditions, partially resolutory insofar as Hodges was concerned and correspondingly suspensive with reference to his brothers and sisters-inlaw. It is partially resolutory, since it bequeaths unto Hodges the whole of her estate to be owned and enjoyed by him as universal and sole heir with absolute dominion over them 6 only during his lifetime, which means that while he could completely and absolutely dispose of any portion thereof inter vivos to anyone other than himself, he was not free to do so mortis causa, and all his rights to what might remain upon his death would cease entirely upon the occurrence of that contingency, inasmuch as the right of his brothers and sisters-in-law to the inheritance, although vested already upon the death of Mrs. Hodges, would automatically become operative upon the occurrence of the death of Hodges in the event of actual existence of any remainder of her estate then.

Contrary to the view of respondent Magno, however, it was not the usufruct alone of her estate, as contemplated in Article 869 of the Civil Code, that she bequeathed to Hodges during his lifetime, but the full ownership thereof, although the same was to last also during his lifetime only, even as there was no restriction whatsoever against his disposing or conveying the whole or any portion thereof to anybody other than himself. The Court sees no legal impediment to this kind of institution, in this jurisdiction or under Philippine law, except that it cannot apply to the lifetime of Hodges as the surviving spouse, consisting of one-half of the estate, considering that Mrs. Hodges had no surviving ascendants nor descendants. (Arts. 872, 900, and 904, New Civil Code.) But relative precisely to the question of how much of Mrs. Hodges' share of the conjugal partnership properties may be considered as her estate, the parties are in disagreement as to how Article 16 of the Civil Code 7 should be applied. On the one hand, petitioner claims that inasmuch as Mrs. Hodges was a resident of the Philippines at the time of her death, under

said Article 16, construed in relation to the pertinent laws of Texas and the principle of renvoi, what should be applied here should be the rules of succession under the Civil Code of the Philippines, and, therefore, her estate could consist of no more than one-fourth of the said conjugal properties, the other fourth being, as already explained, the legitime of her husband (Art. 900, Civil Code) which she could not have disposed of nor burdened with any condition (Art. 872, Civil Code). On the other hand, respondent Magno denies that Mrs. Hodges died a resident of the Philippines, since allegedly she never changed nor intended to change her original residence of birth in Texas, United States of America, and contends that, anyway, regardless of the question of her residence, she being indisputably a citizen of Texas, under said Article 16 of the Civil Code, the distribution of her estate is subject to the laws of said State which, according to her, do not provide for any legitime, hence, the brothers and sisters of Mrs. Hodges are entitled to the remainder of the whole of her share of the conjugal partnership properties consisting of one-half thereof. Respondent Magno further maintains that, in any event, Hodges had renounced his rights under the will in favor of his co-heirs, as allegedly proven by the documents touching on the point already mentioned earlier, the genuineness and legal significance of which petitioner seemingly questions. Besides, the parties are disagreed as to what the pertinent laws of Texas provide. In the interest of settling the estates herein involved soonest, it would be best, indeed, if these conflicting claims of the parties were determined in these proceedings. The Court regrets, however, that it cannot do so, for the simple reason that neither the evidence submitted by the parties in the court below nor their discussion, in their respective briefs and memoranda before Us, of their respective contentions on the pertinent legal issues, of grave importance as they are, appear to Us to be adequate enough to enable Us to render an intelligent, comprehensive and just resolution. For one thing, there is no clear and reliable proof of what in fact the possibly applicable laws of Texas are. 7* Then also, the genuineness of documents relied upon by respondent Magno is disputed. And there are a number of still other conceivable related issues which the parties may wish to raise but which it is not proper to mention here. In Justice, therefore, to all the parties concerned, these and all other relevant matters should first be threshed out fully in the trial court in the proceedings hereafter to be held therein for the purpose of ascertaining and adjudicating and/or distributing the estate of Mrs. Hodges to her heirs in accordance with her duly probated will. To be more explicit, all that We can and do decide in connection with the petition for certiorari and prohibition are: (1) that regardless of which corresponding laws are applied, whether of the Philippines or of Texas, and taking for granted either of the respective contentions of the parties as to provisions of the latter, 8 and regardless also of whether or not it can be proven by competent evidence that Hodges renounced his inheritance in any degree, it is easily and definitely discernible from the inventory submitted by Hodges himself, as Executor of his wife's estate, that there are

properties which should constitute the estate of Mrs. Hodges and ought to be disposed of or distributed among her heirs pursuant to her will in said Special Proceedings 1307; (2) that, more specifically, inasmuch as the question of what are the pertinent laws of Texas applicable to the situation herein is basically one of fact, and, considering that the sole difference in the positions of the parties as to the effect of said laws has reference to the supposed legitime of Hodges it being the stand of PCIB that Hodges had such a legitime whereas Magno claims the negative it is now beyond controversy for all future purposes of these proceedings that whatever be the provisions actually of the laws of Texas applicable hereto, the estate of Mrs. Hodges is at least, one-fourth of the conjugal estate of the spouses; the existence and effects of foreign laws being questions of fact, and it being the position now of PCIB that the estate of Mrs. Hodges, pursuant to the laws of Texas, should only be one-fourth of the conjugal estate, such contention constitutes an admission of fact, and consequently, it would be in estoppel in any further proceedings in these cases to claim that said estate could be less, irrespective of what might be proven later to be actually the provisions of the applicable laws of Texas; (3) that Special Proceedings 1307 for the settlement of the testate estate of Mrs. Hodges cannot be closed at this stage and should proceed to its logical conclusion, there having been no proper and legal adjudication or distribution yet of the estate therein involved; and (4) that respondent Magno remains and continues to be the Administratrix therein. Hence, nothing in the foregoing opinion is intended to resolve the issues which, as already stated, are not properly before the Court now, namely, (1) whether or not Hodges had in fact and in law waived or renounced his inheritance from Mrs. Hodges, in whole or in part, and (2) assuming there had been no such waiver, whether or not, by the application of Article 16 of the Civil Code, and in the light of what might be the applicable laws of Texas on the matter, the estate of Mrs. Hodges is more than the one-fourth declared above. As a matter of fact, even our finding above about the existence of properties constituting the estate of Mrs. Hodges rests largely on a general appraisal of the size and extent of the conjugal partnership gathered from reference made thereto by both parties in their briefs as well as in their pleadings included in the records on appeal, and it should accordingly yield, as to which exactly those properties are, to the more concrete and specific evidence which the parties are supposed to present in support of their respective positions in regard to the foregoing main legal and factual issues. In the interest of justice, the parties should be allowed to present such further evidence in relation to all these issues in a joint hearing of the two probate proceedings herein involved. After all, the court a quo has not yet passed squarely on these issues, and it is best for all concerned that it should do so in the first instance. Relative to Our holding above that the estate of Mrs. Hodges cannot be less than the remainder of one-fourth of the conjugal partnership properties, it may be mentioned here that during the deliberations, the point was raised as to whether or not said holding might be inconsistent with Our other

ruling here also that, since there is no reliable evidence as to what are the applicable laws of Texas, U.S.A. "with respect to the order of succession and to the amount of successional rights" that may be willed by a testator which, under Article 16 of the Civil Code, are controlling in the instant cases, in view of the undisputed Texan nationality of the deceased Mrs. Hodges, these cases should be returned to the court a quo, so that the parties may prove what said law provides, it is premature for Us to make any specific ruling now on either the validity of the testamentary dispositions herein involved or the amount of inheritance to which the brothers and sisters of Mrs. Hodges are entitled. After nature reflection, We are of the considered view that, at this stage and in the state of the records before Us, the feared inconsistency is more apparent than real. Withal, it no longer lies in the lips of petitioner PCIB to make any claim that under the laws of Texas, the estate of Mrs. Hodges could in any event be less than that We have fixed above. It should be borne in mind that as above-indicated, the question of what are the laws of Texas governing the matters herein issue is, in the first instance, one of fact, not of law. Elementary is the rule that foreign laws may not be taken judicial notice of and have to be proven like any other fact in dispute between the parties in any proceeding, with the rare exception in instances when the said laws are already within the actual knowledge of the court, such as when they are well and generally known or they have been actually ruled upon in other cases before it and none of the parties concerned do not claim otherwise. (5 Moran, Comments on the Rules of Court, p. 41, 1970 ed.) In Fluemer vs. Hix, 54 Phil. 610, it was held: "It is the theory of the petitioner that the alleged will was executed in Elkins, West Virginia, on November 3, 1985, by Hix who had his residence in that jurisdiction, and that the laws of West Virginia govern. To this end, there was submitted a copy of section 3868 of Acts 1882, c. 84 as found in West Virginia Code, Annotated, by Hogg, Charles E., vol. 2, 1914, p. 1960, and as certified to by the Director of the National Library. But this was far from a compliance with the law. The laws of a foreign jurisdiction do not prove themselves in our courts. The courts of the Philippine Islands are not authorized to take judicial notice of the laws of the various States of the American Union. Such laws must be proved as facts. (In re Estate of Johnson [1918], 39 Phil., 156.) Here the requirements of the law were not met. There was no showing that the book from which an extract was taken was printed or published under the authority of the State of West Virginia, as provided in section 300 of the Code of Civil Procedure. Nor was the extract from the law attested by the certificate of the officer having charge of the original, under the seal of the State of West Virginia, as provided in section 301 of the Code of Civil Procedure. No evidence was introduced to show that the extract from the laws of West Virginia was in force at the time the alleged will was executed."

No evidence of the nature thus suggested by the Court may be found in the records of the cases at bar. Quite to the contrary, the parties herein have presented opposing versions in their respective pleadings and memoranda regarding the matter. And even if We took into account that in Aznar vs. Garcia, the Court did make reference to certain provisions regarding succession in the laws of Texas, the disparity in the material dates of that case and the present ones would not permit Us to indulge in the hazardous conjecture that said provisions have not been amended or changed in the meantime. On the other hand, in In re Estate of Johnson, 39 Phil. 156, We held: "Upon to other point as to whether the will was executed in conformity with the statutes of the State of Illinois we note that it does not affirmatively appear from the transcription of the testimony adduced in the trial court that any witness was examined with reference to the law of Illinois on the subject of the execution of will. The trial judge no doubt was satisfied that the will was properly executed by examining section 1874 of the Revised Statutes of Illinois, as exhibited in volume 3 of Starr & Curtis's Annotated Illinois Statutes, 2nd ed., p. 426; and he may have assumed that he could take judicial notice of the laws of Illinois under section 275 of the Code of Civil Procedure. If so, he was in our opinion mistaken. That section authorizes the courts here to take judicial notice, among other things, of the acts of the legislative department of the United States. These words clearly have reference to Acts of the Congress of the United States; and we would hesitate to hold that our courts can, under this provision, take judicial notice of the multifarious laws of the various American States. Nor do we think that any such authority can be derived from the broader language, used in the same section, where it is said that our courts may take judicial notice of matters of public knowledge "similar" to those therein enumerated. The proper rule we think is to require proof of the statutes of the States of the American Union whenever their provisions are determinative of the issues in any action litigated in the Philippine courts. Nevertheless, even supposing that the trial court may have erred in taking judicial notice of the law of Illinois on the point in question, such error is not now available to the petitioner, first, because the petition does not state any fact from which it would appear that the law of Illinois is different from what the court found, and, secondly, because the assignment of error and argument for the appellant in this court raises no question based or such supposed error. Though the trial court may have acted upon pure conjecture as to the law prevailing in the State of Illinois, its judgment could not be set aside, even upon application made within six months under section 113 of the Code of Civil Procedure, unless it should be made to appear affirmatively that the conjecture was wrong. The petitioner, it is true, states in general terms that the will in question is invalid and inadequate to pass real and personal property in the State of Illinois, but this is merely a conclusion of law. The affidavits by which the petition is

accompanied contain no reference to the subject, and we are cited to no authority in the appellant's brief which might tend to raise a doubt as to the correctness of the conclusion of the trial court. It is very clear, therefore, that this point cannot be urged as of serious moment." It is implicit in the above ruling that when, with respect to certain aspects of the foreign laws concerned, the parties in a given case do not have any controversy or are more or less in agreement, the Court may take it for granted for the purposes of the particular case before it that the said laws are as such virtual agreement indicates, without the need of requiring the presentation of what otherwise would be the competent evidence on the point. Thus, in the instant cases wherein it results from the respective contentions of both parties that even if the pertinent laws of Texas were known and to be applied, the amount of the inheritance pertaining to the heirs of Mrs. Hodges is as We have fixed above, the absence of evidence to the effect that, actually and in fact, under said laws, it could be otherwise is of no longer of any consequence, unless the purpose is to show that it could be more. In other words, since PCIB, the petitioner-appellant, concedes that upon application of Article 16 of the Civil Code and the pertinent laws of Texas, the amount of the estate in controversy is just as We have determined it to be, and respondent-appellee is only claiming, on her part, that it could be more, PCIB may not now or later pretend differently. To be more concrete, on pages 20-21 of its petition herein, dated July 31, 1967, PCIB states categorically: "Inasmuch as Article 16 of the Civil Code provides that 'intestate and testamentary successions, both with respect to the order of succession and to the amount of successional rights and to the intrinsic validity of testamentary provisions, shall be regulated by the national law of the person whose succession is under consideration, whatever may be the nature of the property and regardless of the country wherein said property may be found', while the law of Texas (the Hodges spouses being nationals of U.S.A., State of Texas), in its conflicts of law rules, provides that the domiciliary law (in this case Philippine law) governs the testamentary dispositions and successional rights over movables or personal properties, while the law of the situs (in this case also Philippine law with respect to all Hodges properties located in the Philippines), governs with respect to immovable properties, and applying therefore the 'renvoi doctrine' as enunciated and applied by this Honorable Court in the case of In re Estate of Christensen (G.R. No. L-16749, Jan. 31, 1963), there can be no question that Philippine law governs the testamentary dispositions contained in the Last Will and Testament of the deceased Linnie Jane Hodges, as well as the successional rights to her estate, both with respect to movables, as well as to immovables situated in the Philippines." In its main brief dated February 26, 1968, PCIB asserts:

"The law governing successional rights. As recited above, there is no question that the deceased, Linnie Jane Hodges, was an American citizen. There is also no question that she was a national of the State of Texas, U.S.A. Again, there is likewise no question that she had her domicile of choice in the City of Iloilo, Philippines, as this has already been pronounced by the above cited orders of the lower court, pronouncements which are by now res adjudicata (par. [a], Sec. 49, Rule 39, Rules of Court; In re Estate of Johnson, 39 Phil. 156). "Article 16 of the Civil Code provides: 'Real property as well as personal property is subject to the law of the country where it is situated. However, intestate and testamentary successions, both with respect to the order of succession and to the amount of successional rights and to the intrinsic validity of testamentary provisions, shall be regulated by the national law of the person whose succession is under consideration, whatever may be the nature of the property and regardless of the country wherein said property may be found.' Thus the aforecited provision of the Civil Code points towards the national law of the deceased, Linnie Jane Hodges, which is the law of Texas, as governing succession 'both with respect to the order of succession and to the amount of successional rights and to the intrinsic validity of testamentary provisions . . .'. But the law of Texas, in its conflicts of law rules, provides that the domiciliary law governs the testamentary dispositions and successional rights over movables or personal property, while the law of the situs governs with respect to immovable property. Such that with respect to both movable property, as well as immovable property situated in the Philippines, the law of Texas points to the law of the Philippines. Applying, therefore, the so called "renvoi doctrine", as enunciated and applied by this Honorable Court in the case of "In re Christensen" (G.R. No. L-16749, Jan. 31, 1963), there can be no question that Philippine law governs the testamentary provisions in the Last Will and Testament of the deceased Linnie Jane Hodges, as well as the successional rights to her estate, both with respect to movables, as well as immovables situated in the Philippines. The subject of successional rights. Under Philippine law, as it is under the law of Texas, the conjugal or community property of the spouses, Charles Newton Hodges and Linnie

Jane Hodges, upon the death of the latter, is to be divided into two, onehalf pertaining to each of the spouses, as his or her own property. Thus, upon the death of Linnie Jane Hodges, one-half of the conjugal partnership property immediately pertained to Charles Newton Hodges as his own share, and not by virtue of any successional rights. There can be no question about this. Again, Philippine law, or more specifically, Article 900 of the Civil Code provides: "If the only survivor is the widow or widower, she or he shall be entitled to one-half of the hereditary estate of the deceased spouse, and the testator may freely dispose of the other half. If the marriage between the surviving spouse and the testator was solemnized in articulo mortis, and the testator died within three months from the time of the marriage, the legitime of the surviving spouse as the sole heir shall be one-third of the hereditary estate, except when they have been living as husband and wife for more than five years. In the latter case, the legitime of the surviving spouse shall be that specified in the preceding paragraph." This legitime of the surviving spouse cannot be burdened by an fideicommissary substitution (Art. 864, Civil code), nor by any charge, condition, or substitution (Art. 872, Civil code). It is clear, therefore, that in addition to one-half of the conjugal partnership property as his own conjugal share, Charles Newton Hodges was also immediately entitled to one-half of the half conjugal share of the deceased, Linnie Jane Hodges, or one-fourth of the entire conjugal property, as his legitime.

c.That under Philippine as well as Texas law, one-half of the Hodges properties pertains to the deceased, Charles Newton Hodges (p. 21, petition). This is not questioned by the respondents. d.That under Philippine law, the deceased, Charles Newton Hodges, automatically inherited one-half of the remaining one-half of the Hodges properties as his legitime (p. 21, petition). e.That the remaining 25% of the Hodges properties was inherited by the deceased, Charles Newton Hodges, under the will of his deceased spouse (pp. 22-23, petition). Upon the death of Charles Newton Hodges, the substitution provision of the will of the deceased, Linnie Jane Hodges, did not operate because the same is void (pp. 23-25, petition). f.That the deceased, Charles Newton Hodges, asserted his sole ownership of the Hodges properties and the probate court sanctioned such assertion (pp. 25-29, petition). He in fact assumed such ownership and such was the status of the properties as of the time of his death (pp. 29-34, petition)." Of similar tenor are the allegations of PCIB in some of its pleadings quoted in the earlier part of this option. On her part, it is respondent-appellee Magno's posture that under the laws of Texas, there is no system of legitime, hence the estate of Mrs. Hodges should be one-half of all the conjugal properties. It is thus unquestionable that as far as PCIB is concerned, the application to these cases of Article 16 of the Civil Code in relation to the corresponding laws of Texas would result in that the Philippine laws on succession should control. On that basis, as We have already explained above, the estate of Mrs. Hodges is the remainder of one-fourth of the conjugal partnership properties, considering that We have found that there is no legal impediment to the kind of disposition ordered by Mrs. Hodges in her will in favor of her brothers and sisters and, further, that the contention of PCIB that the same constitutes an inoperative testamentary substitution is untenable. As will be recalled, PCIB's position that there is no such estate of Mrs. Hodges is predicated exclusively on two propositions, namely (1) that the provision in question in Mrs. Hodges' testament violates the rules on substitution of heirs under the Civil Code and (2) that, in any event, by the orders of the trial court of May 27, and December 14, 1957, the trial court had already finally and irrevocably adjudicated to her husband the whole free portion of her estate to the exclusion of her brothers and sisters, both of which poses, We have overruled. Nowhere in its pleadings, briefs and memoranda does PCIB maintain that the application of the laws of Texas would result in the other heirs of Mrs. Hodges not inheriting anything under her will. And since PCIB's representations in regard to the laws of Texas virtually constitute admissions of fact which the other parties and the Court

One-fourth of the conjugal property therefore remains at issue." In the summary of its arguments in its memorandum dated April 30, 1968, the following appears: "Briefly, the position advanced by the petitioner is: a.That the Hodges spouses were domiciled legally in the Philippines (pp. 1920, petition). This is now a matter of res adjudicata (p. 20, petition). b.That under Philippine law, Texas law, and the renvoi doctrine, Philippine law governs the successional rights over the properties left by the deceased, Linnie Jane Hodges (pp. 20-21, petition).

are being made to rely and act upon, PCIB is "not permitted to contradict them or subsequently take a position contradictory to or inconsistent with them." (5 Moran, id, p. 65, citing Cunanan vs. Amparo, 80 Phil. 227; Sta. Ana vs. Maliwat, L-23023, Aug. 31, 1968, 24 SCRA 1018). Accordingly, the only question that remains to be settled in the further proceedings hereby ordered to be held in the court below is how much more than as fixed above is the estate of Mrs. Hodges, and this would depend on (1) whether or not the applicable laws of Texas do provide in effect for more, such as, when there is no legitime provided therein, and (2) whether or not Hodges has validly waived his whole inheritance from Mrs. Hodges. In the course of the deliberations, it was brought out by some members of the Court that to avoid or, at least, minimize further protracted legal controversies between the respective heirs of the Hodges spouses, it is imperative to elucidate on the possible consequences of dispositions made by Hodges after the death of his wife from the mass of the unpartitioned estates without any express indication in the pertinent documents as to whether his intention is to dispose of part of his inheritance from his wife or part of his own share of the conjugal estate as well as of those made by PCIB after the death of Hodges. After a long discussion, the consensus arrived at was as follows: (1) any such dispositions made gratuitously in favor of third parties, whether these be individuals, corporations or foundations, shall be considered as intended to be of properties constituting part of Hodges' inheritance from his wife, it appearing from the tenor of his motions of May 27 and December 11, 1957 that in asking for general authority to make sales or other disposals of properties under the jurisdiction of the court, which include his own share of the conjugal estate, he was not invoking particularly his right over his own share, but rather his right to dispose of any part of his inheritance pursuant to the will of his wife; (2) as regards sales, exchanges or other remunerative transfers, the proceeds of such sales or the properties taken in by virtue of such exchanges, shall be considered as merely the products of "physical changes" of the properties of her estate which the will expressly authorizes Hodges to make, provided that whatever of said products should remain with the estate at the time of the death of Hodges should go to her brothers and sisters; (3) the dispositions made by PCIB after the death of Hodges must naturally be deemed as covering only the properties belonging to his estate considering that being only the administrator of the estate of Hodges, PCIB could not have disposed of properties belonging to the estate of his wife. Neither could such dispositions be considered as involving conjugal properties, for the simple reason that the conjugal partnership automatically ceased when Mrs. Hodges died, and by the peculiar provision of her will, under discussion, the remainder of her share descended also automatically upon the death of Hodges to her brothers and sisters, thus outside of the scope of PCIB's administration. Accordingly, these construction of the will of Mrs. Hodges should be adhered to by the trial

court in its final order of adjudication and distribution and/or partition of the two estates in question. THE APPEALS A cursory examination of the seventy-eight assignments of error in appellant PCIB's brief would readily reveal that all of them are predicated mainly on the contention that inasmuch as Hodges had already adjudicated unto himself all the properties constituting his wife's share of the conjugal partnership, allegedly with the sanction of the trial court per its order of December 14, 1957, there has been, since said date, no longer any estate of Mrs. Hodges of which appellee Magno could be administratrix, hence the various assailed orders sanctioning her actuations as such are not in accordance with law. Such being the case, with the foregoing resolution holding such posture to be untenable in fact and in law and that it is in the best interest of justice that for the time being the two estates should be administered conjointly by the respective administrators of the two estates, it should follow that said assignments of error have lost their fundamental reasons for being. There are certain matters, however, relating peculiarly to the respective orders in question, if commonly among some of them, which need further clarification. For instance, some of them authorized respondent Magno to act alone or without concurrence of PCIB. And with respect to many of said orders, PCIB further claims that either the matters involved were not properly within the probate jurisdiction of the trial court or that the procedure followed was not in accordance with the rules. Hence, the necessity of dealing separately with the merits of each of the appeals. Indeed, inasmuch as the said two estates have until now remained commingled pro-indiviso, due to the failure of Hodges and the lower court to liquidate the conjugal partnership, to recognize appellee Magno as Administratrix of the Testate Estate of Mrs. Hodges which is still unsegregated from that of Hodges is not to say, without any qualification, that she was therefore authorized to do and perform all her acts complained of in these appeals, sanctioned though they might have been by the trial court. As a matter of fact, it is such commingling pro-indiviso of the two estates that should deprive appellee of freedom to act independently from PCIB, as administrator of the estate of Hodges, just as, for the same reason, the latter should not have authority to act independently from her. And considering that the lower court failed to adhere consistently to this basic point of view, by allowing the two administrators to act independently of each other, in the various instances already noted in the narration of facts above, the Court has to look into the attendant circumstances of each of the appealed orders to be able to determine whether any of them has to be set aside or they may all be legally maintained notwithstanding the failure of the court a quo to observe the pertinent procedural technicalities, to the end only that graver injury to the substantive rights of the parties concerned and unnecessary and undesirable proliferation of incidents in the subject proceedings may be forestalled. In other words, We have to

determine, whether or not, in the light of the unusual circumstances extant in the record, there is need to be more pragmatic and to adopt a rather unorthodox approach, so as to cause the least disturbance in rights already being exercised by numerous innocent third parties, even if to do so may not appear to be strictly in accordance with the letter of the applicable purely adjective rules.

Incidentally, it may be mentioned, at this point, that it was principally on account of the confusion that might result later from PCIB's continuing to administer all the community properties, notwithstanding the certainty of the existence of the separate estate of Mrs. Hodges, and to enable both estates to function in the meantime with a relative degree of regularity, that the Court ordered in the resolution of September 8, 1972 the modification of the injunction issued pursuant to the resolutions of August 8, October 4 and December 6, 1967, by virtue of which respondent Magno was completely barred from any participation in the administration of the properties herein involved. In the September 8 resolution, We ordered that, pending this decision, Special Proceedings 1307 and 1672 should proceed jointly and that the respective administrators therein "act conjointly - none of them to act singly and independently of each other for any purpose." Upon mature deliberation, We felt that to allow PCIB to continue managing or administering all the said properties to the exclusion of the administratrix of Mrs. Hodges' estate might place the heirs of Hodges at an unduly advantageous position which could result in considerable, if not irreparable, damage or injury to the other parties concerned. It is indeed to be regretted that apparently, up to this date, more than a year after said resolution, the same has not been given due regard, as may be gleaned from the fact that recently, respondent Magno has filed in these proceedings a motion to declare PCIB in contempt for alleged failure to abide therewith, notwithstanding that its repeated motions for reconsideration thereof have all been denied soon after they were filed. 9 Going back to the appeals, it is perhaps best to begin first with what appears to Our mind to be the simplest, and then proceed to the more complicated ones in that order, without regard to the numerical sequence of the assignments of error in appellant's brief or to the order of the discussion thereof by counsel. Assignments of error Numbers LXXII, LXXVII and LXXVIII. These assignments of error relate to (1) the order of the trial court of August 6, 1965 providing that "the deeds of sale (therein referred to involving properties in the name of Hodges) should be signed jointly by the

PCIB, as Administrator of Testate Estate of C.N. Hodges, and Avelina A. Magno, as Administratrix of the Testate Estate of Linnie Jane Hodges, and to this effect, the PCIB should take the necessary steps so that Administratrix Avelina A. Magno could sign the deeds of sale," (p. 248, Green Rec. on Appeal) (2) the order of October 27, 1965 denying the motion for reconsideration of the foregoing order, (pp. 276-277, id.) (3) the other order also dated October 27, 1965 enjoining inter alia, that "(a) all cash collections should be deposited in the joint account of the estate of Linnie Jane Hodges and estate of C. N. Hodges, (b) that whatever cash collections (that) had been deposited in the account of either of the estates should be withdrawn and since then (sic) deposited in the joint account of the estate of Linnie Jane Hodges and the estate of C. N. Hodges; . . . (d) (that) Administratrix Magno allow the PCIB to inspect whatever records, documents and papers she may have in her possession, in the same manner that Administrator PCIB is also directed to allow Administratrix Magno to inspect whatever records, documents and papers it may have in its possession" and "(e) that the accountant of the estate of Linnie Jane Hodges shall have access to all records of the transactions of both estates for the protection of the estate of Linnie Jane Hodges; and in like manner, the accountant or any authorized representative of the estate of C. N. Hodges shall have access to the records of transactions of the Linnie Jane Hodges estate for the protection of the estate of C. N. Hodges", (pp. 292-295, id.) and (4) the order of February 15, 1966, denying, among others, the notion for reconsideration of the order of October 27, 1965 last referred to. (pp. 455456, id.) As may be readily seen, the thrust of all these four impugned orders is in line with the Court's above-mentioned resolution of September 8, 1972 modifying the injunction previously issued on August 8, 1967, and, more importantly, with what We have said the trial court should have always done pending the liquidation of the conjugal partnership of the Hodges spouses. In fact, as already stated, that is the arrangement We are ordering, by this decision, to be followed. Stated differently, since the questioned orders provide for joint action by the two administrators, and that is precisely what We are holding out to have been done and should be done until the two estates are separated from each other, the said orders must be affirmed. Accordingly, the foregoing assignments of error must be, as they are hereby overruled. Assignments of error Numbers LXVIII to LXXI and LXXIII to LXXVI. The orders complained of under these assignments of error commonly deal with expenditures made by appellee Magno, as Administratrix of the Estate of Mrs. Hodges, in connection with her administration thereof, albeit additionally, assignments of error Numbers LXIX to LXXI put into question

the payment of attorneys fees provided for in the contract for the purpose, as constituting, in effect, premature advances to the heirs of Mrs. Hodges. More specifically, assignment Number LXXIII refers to reimbursement of overtime pay paid to six employees of the court and three other persons for services in copying the court records to enable the lawyers of the administration to be fully informed of all the incidents in the proceedings. The reimbursement was approved as proper legal expenses of administration per the order of December 19, 1964, (pp. 221-222, id.) and repeated motions for reconsideration thereof were denied by the orders of January 9, 1965, (pp. 231-232, id.) October 27, 1965, (p. 277, id.) and February 15, 1966, (pp. 455-456, id.) On the other hand, Assignments Numbers LXVIII to LXXI, LXXIV and LXXV question the trial court's order of November 3, 1965 approving the agreement of June 6, 1964 between Administratrix Magno and James L. Sullivan, attorney-in-fact of the heirs of Mrs. Hodges, as Parties of the First Part, and Attorneys Raul Manglapus and Rizal R. Quimpo, as Parties of the Second Part, regarding attorneys fees for said counsel who had agreed "to prosecute and defend their interests (of the Parties of the First Part) in certain cases now pending litigation in the Court of First Instance of Iloilo , more specifically in Special Proceedings 1307 and 1672 ", (pp. 126-129, id.) and directing Administratrix Magno "to issue and sign whatever check or checks maybe needed to implement the approval of the agreement annexed to the motion" as well as the "administrator of the estate of C. N. Hodges to countersign the said check or checks as the case maybe." (pp. 313-320, id.), reconsideration of which order of approval was denied in the order of February 16, 1966, (p. 456, id.) Assignment Number LXXVI imputes error to the lower court's order of October 27,1965, already referred to above, insofar as it orders that "PCIB should countersign the check in the amount of P250 in favor of Administratrix Avelina A. Magno as her compensation as administratrix of Linnie Jane Hodges estate chargeable to the Testate Estate of Linnie Jane Hodges only." (p. 294, id.) Main contention again of appellant PCIB in regard to these eight assigned errors is that there is no such estate as the estate of Mrs. Hodges for which the questioned expenditures were made, hence what were authorized were in effect expenditures from the estate of Hodges. As We have already demonstrated in Our resolution above of the petition for certiorari and prohibition, this posture is incorrect. Indeed, in whichever way the remaining issues between the parties in these cases are ultimately resolved, 10 the final result will surely be that there are properties constituting the estate of Mrs. Hodges of which Magno is the current administratrix. It follows, therefore, that said appellee had the right, as such administratrix, to hire the persons whom she paid overtime pay and to be paid for her own services as administratrix. That she has not yet collected and is not collecting amounts as substantial as that paid to or due appellant PCIB is to her credit.

Of course, she is also entitled to the services of counsel and to that end had the authority to enter into contracts for attorney's fees in the manner she had done in the agreement of June 6, 1964. And as regards to the reasonableness of the amount therein stipulated, We see no reason to disturb the discretion exercised by the probate court in determining the same. We have gone over the agreement, and considering the obvious size of the estate in question and the nature of the issues between the parties as well as the professional standing of counsel, We cannot say that the fees agreed upon require the exercise by the Court of its inherent power to reduce it. PCIB insists, however, that said agreement of June 6, 1964 is not for legal services to the estate but to the heirs of Mrs. Hodges, or, at most, to both of them, and such being the case, any payment under it, insofar as counsels' services would redound to the benefit of the heirs, would be in the nature of advances to such heirs and a premature distribution of the estate. Again, We hold that such posture cannot prevail. Upon the premise We have found plausible that there is an existing estate of Mrs. Hodges, it results that juridically and factually the interests involved in her estate are distinct and different from those involved in her estate of Hodges and vice versa. Insofar as the matters related exclusively to the estate of Mrs. Hodges, PCIB, as administrator of the estate of Hodges, is a complete stranger and it is without personality to question the actuations of the administratrix thereof regarding matters not affecting the estate of Hodges. Actually, considering the obviously considerable size of the estate of Mrs. Hodges, We see no possible cause for apprehension that when the two estates are segregated from each other, the amount of attorney's fees stipulated in the agreement in question will prejudice any portion that would correspond to Hodges' estate. And as regards the other heirs of Mrs. Hodges who ought to be the ones who should have a say on the attorney's fees and other expenses of administration assailed by PCIB, suffice it to say that they appear to have been duly represented in the agreement itself by their attorney-in-fact, James L. Sullivan and have not otherwise interposed any objection to any of the expenses incurred by Magno questioned by PCIB in these appeals. As a matter of fact, as ordered by the trial court, all the expenses in question, including the attorney's fees, amy be paid without awaiting the determination and segregation of the estate of Mrs. Hodges.

Withal, the weightiest consideration in connection with the point under discussion is that at this stage of the controversy among the parties herein the vital issue refers to the existence or non-existence of the estate of Mrs. Hodges. In this respect, the interest of respondent Magno, as the appointed administratrix of the said estate, is to maintain that it exists, which is naturally common and identical with and inseparable from the interest of the brothers and sisters of Mrs. Hodges, Thus it should not be wondered

why both Magno and these heirs have seemingly agreed to retain but one counsel. In fact, such an arrangement should be more convenient and economical to both. The possibility of conflict of interest between Magno and the heirs of Mrs. Hodges would be, at this stage, quite remote and, in any event, rather insubstantial. Besides should any substantial conflict of interest between them arise in the future, the same would be a matter that the probate court can very well take care of in the course of the independent proceedings in Case No. 1307 after the corresponding segregation of the two subject estates. We cannot perceive any cogent reason why, at this stage the estate and the heirs of Mrs. Hodges cannot be represented by a common counsel. Now, as to whether or not the portion of the fees in question that should correspond to the heirs constitutes premature partial distribution of the estate of Mrs. Hodges is also a matter in which neither PCIB nor the heirs of Hodges have any interest. In any event, since, as far as the records show, the estate has no creditors and the corresponding estate and inheritance taxes, except those of the brothers and sisters of Mrs. Hodges, have already been paid. 11 no prejudice can caused to anyone by the comparatively small amount of attorney's fees although strictly speaking, the attorney's fees of the counsel of an administrator is in the first instance his personal responsibility, reimbursable later on by the estate, in the final analysis, when, as in the situation on hand, the attorney-in-fact of the heirs has given his conformity thereto, it would be idle effort to inquire whether or not the sanction given to said fees by the probate court is proper. For the foregoing reasons, Assignments of Error LXVIII to LXXI and LXXVI should be as they are hereby overruled. Assignments of error I to IV, XIII to XV, XXII to XXV, XXXV to XXXVI, XLI to XLIII and L. These assignments of error deal with the approval by the trial court of various deeds of sale of real properties registered in the name of Hodges but executed by appellee Magno, as Administratrix of the Estate of Mrs. Hodges, purportedly in implementation of corresponding supposed written "Contracts to Sell" previously executed by Hodges during the interim between May 23, 1957, when his wife died, and December 25, 1962, the day he died. As stated on pp. 118-120 of appellant's main brief, "These are: the contract to sell between the deceased, Charles Newton Hodges, and the appellee, Pepito G. Iyulores, executed on February 5, 1961; the contract to sell between the deceased, Charles Newton Hodges, and the appellant Esperidion Partisala, executed on April 20, 1960; the contract to sell between the deceased, Charles Newton Hodges, and the appellee,

Winifredo C. Espada, executed on April 18, 1960; the contract to sell between the deceased, Charles Newton Hodges, and the appellee, Rosario Alingasa, executed on August 25, 1958; the contract to sell between the deceased, Charles Newton Hodges, and the appellee, Lorenzo Carles, executed on June 17, 1958; the contract to sell between the deceased, Charles Newton Hodges, and the appellee, Salvador S. Guzman, executed on September 13, 1960; the contract to sell between the deceased, Charles Newton Hodges, and the appellee, Florenia Barriod, executed on February 21, 1958; the contract to sell between the deceased, Charles Newton Hodges, and the appellee, Pruficacion Coronado, executed on August 14, 1961; the contract to sell between the deceased, Charles Newton Hodges, and the appellee, Graciano Lucero, executed on November 27, 1961; the contract to sell between the deceased, Charles Newton Hodges, and the appellee, Ariteo Thomas Jamir, executed on May 26, 1961; the contract to sell between the deceased, Charles Newton Hodges, and the appellee, Belcezar Causing, executed on February 10, 1959; and the contract to sell between the deceased, Charles Newton Hodges, and the appellee, Adelfa Premaylon, executed on October 31, 1959, re Title No. 13815." Relative to these sales, it is the position of appellant PCIB that, inasmuch as pursuant to the will of Mrs. Hodges, her husband was to have dominion over all her estate during his lifetime, it was as absolute owner of the properties respectively covered by said sales that he executed the aforementioned contracts to sell, and consequently, upon his death, the implementation of said contracts may be undertaken only by the administrator of his estate and not by the administratrix of the estate of Mrs. Hodges. Basically, the same theory is involked with particular reference to five other sales, in which the respective "contracts to sell" in favor of these appellees were executed by Hodges before the death of his wife, namely those in favor of appellee Santiago Pacaonsis, Alfredo Catedral, Jose Pablico, Western Institute of Technology and Adelfa Premaylon. Anent those deeds of sale based on promises or contracts to sell executed by Hodges after the death of his wife, those enumerated in the quotation in the immediately preceding paragraph, it is quite obvious that PCIB's contention cannot be sustained. As already explained earlier, 11* all proceeds of remunerative transfers or dispositions made by Hodges after the death of his wife should be deemed as continuing to be parts of her estate and, therefore, subject to the terms of her will in favor of her brothers and sisters, in the sense that should there be no showing that such proceeds, whether in cash or property, have been subsequently conveyed or assigned subsequently by Hodges to any third party by acts inter vivos, with the result that they could not thereby belong to him anymore at the time of his death, they automatically became part of the inheritance of said brothers and sisters. The deeds here in question involve transactions which are exactly which are exactly of this nature. Consequently, the payments to

the estate of Mrs. Hodges which is to be distributed and partitioned among her heirs specified in the will. The five deeds of sale predicated on contracts to sell executed by Hodges during the lifetime of his wife, present a different situation. At first blush, it would appear that as to them, PCIB's position has some degree of plausibility. Considering, however, that the adoption of PCIB's theory would necessarily have tremendous repurcussions and would bring about considerable disturbance of property rights that have somehow accrued already in favor of innocent third parties, the five purchasers aforenamed, the Court is inclined to take a pragmatic and practical view of the legal situation involving them by overlooking the possible technicalities in the way, the non-observance of which would not, after all, detract materially from what should substantially correspond to each and all of the parties concerned. To start with, these contracts can hardly be ignored. Bona fide third parties are involved; as much as possible, they should not be made to suffer any prejudice on account of judicial controversies not of their own making. What is more, the transactions they rely on were submitted by them to the probate court for approval, and from already known and recorded actuations of said court then, they had reason to believe that it had authority to act on their motions, since appellee Magno had, from time to time prior to their transactions with her, been allowed to act in her capacity as administratrix of one of the subject estates either alone or conjointly with PCIB. All the sales in question were executed by Magno in 1966 already, but before that, the court had previously authorized or otherwise sanctioned expressly many of her acts as administratrix involving expenditures from the estate made by her either conjoinly with or independently from PCIB, as Administrator of the Estate of Hodges. Thus, it may be said that said buyers-appellees merely followed precedents in previous orders of the court. Accordingly, unless the impugned orders approving those sales indubitably suffer from some clearly fatal infirmity the Court would rather affirm them. It is quite apparent from the record that the properties covered by said sales are equivalent only to a fraction of what should constitute the estate of Mrs. Hodges, even if it is assumed that the same would finally be held to be only one-fourth of the conjugal properties of the spouses as of the time of her death or, to be more exact, one-half of her estate as per the inventory submitted by Hodges as executor, on May 12, 1958. In none of its numerous, varied and voluminous pleadings, motions and manifestations has PCIB claimed any possibility otherwise. Such being the case, to avoid any conflict with the heirs of Hodges, the said properties covered by the questioned deeds of sale executed by appellee Magno may be treated as among those corresponding to the estate of Mrs. Hodges, which would have been actually under her control and administration had Hodges complied with his duty to liquidate the conjugal partnership. Viewing the

situation in that manner, the only ones who could stand to be prejudiced by the appealed orders referred to in the assignment of errors under discussion and who could, therefore, have the requisite interest to question them would be only the heirs of Mrs. Hodges, definitely not PCIB. It is of no moment in what capacity Hodges made the "contracts to sell' after the death of his wife. Even if he had acted as executor of the will of his wife, he did not have to submit those contracts to the court nor follow the provisions of the rules, (Sections 2, 4, 5, 6, 8 and 9 of Rule 89 quoted by appellant on pp. 125 to 127 of its brief) for the simple reason that by the very orders, much relied upon by appellant for other purposes, of May 27, 1957 and December 14, 1957, Hodges was "allowed or authorized" by the trial court "to continue the business in which he was engaged and to perform acts which he had been doing while the deceased was living", (Order of May 27) which according to the motion on which the court acted was "of buying and selling personal and real properties", and "to execute subsequent sales, conveyances, leases and mortgages of the properties left by the said deceased Linnie Jane Hodges in consonance with the wishes conveyed in the last will and testament of the latter." (Order of December 14) In other words, if Hodges acted then as executor, it can be said that he had authority to do so by virtue of these blanket orders, and PCIB does not question the legality of such grant of authority; on the contrary, it is relying on the terms of the order itself for its main contention in these cases. On the other hand, if, as PCIB contends, he acted as heir-adjudicatee, the authority given to him by the aforementioned orders would still suffice.

to XXXVIII, XLIV to XLVI and LI. All these assignments of error commonly deal with alleged non-fulfillment by the respective vendees, appellees herein, of the terms and conditions embodied in the deeds of sale referred to in the assignments of error just discussed. It is claimed that some of them never made full payments in accordance with the respective contracts to sell, while in the cases of the others, like Lorenzo Carles, Jose Pablico, Alfredo Catedral and Salvador S. Guzman, the contracts with them had already been unilaterally cancelled by PCIB pursuant to automatic rescission clauses contained in them, in view of the failure of said buyers to pay arrearages long overdue. But PCIB's posture is again premised on its assumption that the properties covered by the deeds in question could not pertain to the estate of Mrs. Hodges. We have already held above that, it being evident that a considerable portion of the conjugal properties, much more than the properties covered by said deeds, would inevitably constitute the estate of Mrs. Hodges, to avoid unnecessary legal complications, it can be assumed that said properties form part of such estate. From this point of view, it is apparent again that the questions, whether or not it was proper for appellee Magno to have disregarded the cancellations made by PCIB, thereby reviving the rights of the respective buyers-appellees, and, whether or not the rules governing new dispositions of properties of the estate were strictly followed, may not be raised by PCIB but only by the heirs of Mrs. Hodges as the persons designated to inherit the same, or perhaps the government because of the still unpaid inheritance taxes. But, again, since there is no pretense that any objections were raised by said parties or that they would necessarily be prejudiced, the contentions of PCIB under the instant assignments of error hardly merit any consideration. Assignments of error IX to XII, XIX to XXI, XXX to XXIV, XXXLX to XL, XLVII to XLLX, LII and LIII to LXI. PCIB raises under those assignments of error two issues which according to it are fundamental, namely: (1) that in approving the deeds executed by Magno pursuant to contracts to sell already cancelled by it in the performance of its functions as administrator of the estate of Hodges, the trial court deprived the said estate of the right to invoke such cancellations it (PCIB) had made and (2) that in so acting, the court "arrogated unto itself, while acting as a probate court, the power to determine the contending claims of third parties against the estate of Hodges over real property," since it has in effect determined whether or not all the terms and conditions of the respective contracts to sell executed by Hodges in favor of the buyers-appellees concerned were complied with by the latter. What is worse, in the view of PCIB, is that the court has taken the word of the

appellee Magno, "a total stranger to his estate as determinative of the issue". Actually, contrary to the stand of PCIB, it is this last point regarding appellee Magno's having agreed to ignore the cancellations made by PCIB and allowed the buyers-appellees to consummate the sales in their favor that is decisive. Since We have already held that the properties covered by the contracts in question should be deemed to be portions of the estate of Mrs. Hodges and not that of Hodges, it is PCIB that is a complete stranger in these incidents. Considering, therefore, that the estate of Mrs. Hodges and her heirs who are the real parties in interest having the right to oppose the consummation of the impugned sales are not objecting, and that they are the ones who are precisely urging that said sales be sanctioned, the assignments of error under discussion have no basis and must accordingly be as they are hereby overruled. With particular reference to assignments LIII to LXI, assailing the orders of the trial court requiring PCIB to surrender the respective owner's duplicate certificates of title over the properties covered by the sales in question and otherwise directing the Register of Deeds of Iloilo to cancel said certificates and to issue new transfer certificates of title in favor of the buyersappellees, suffice it to say that in the light of the above discussion, the trial court was within its rights to so require and direct, PCIB having refused to give way, by withholding said owners' duplicate certificates, of the corresponding registration of the transfers duly and legally approved by the court. Assignments of error LXII to LXVII. All these assignments of error commonly deal with the appeal against orders favoring appellee Western Institute of Technology. As will be recalled, said institute is one of the buyers of real property covered by a contract to sell executed by Hodges prior to the death of his wife. As of October, 1965, it was in arrears in the total amount of P92,691.00 in the payment of its installments on account of its purchase, hence it received under date of October 4, 1965 and October 20, 1965, letters of collection, separately and respectively, from PCIB and appellee Magno, in their respective capacities as administrators of the distinct estates of the Hodges spouses, albeit, while in the case of PCIB it made known that "no other arrangement can be accepted except by paying all your past due account", on the other hand, Magno merely said she would "appreciate very much if you can make some remittance to bring this account up-to-date and to reduce the amount of the obligation." (See pp. 295-311, Green R. on A.) On November 3, 1965, the Institute filed a motion which, after alleging that it was ready and willing to pay P20,000 on account of its overdue installments but uncertain whether it should pay PCIB or Magno, it prayed that it be "allowed to deposit the aforesaid amount with the court pending resolution of the conflicting claims of the administrators." Acting on this motion, on

As can be seen, therefore, it is of no moment whether the "contracts to sell" upon which the deeds in question were based were executed by Hodges before or after the death of his wife. In a word, We hold, for the reasons already stated, that the properties covered by the deeds being assailed pertain or should be deemed as pertaining to the estate of Mrs. Hodges; hence, any supposed irregularity attending the actuations of the trial court may be invoked only by her heirs, not by PCIB, and since the said heirs are not objecting, and the defects pointed out not being strictly jurisdictional in nature, all things considered, particularly the unnecessary disturbance of rights already created in favor of innocent third parties, it is best that the impugned orders are not disturbed. In view of these considerations, We do not find sufficient merit in the assignments of error under discussion. Assignments of error V to VIII, XVI to XVIII, XXVI to XXIX, XXXVII

November 23, 1965, the trial court issued an order, already quoted in the narration of facts in this opinion, holding that payment to both or either of the two administrators is "proper and legal", and so "movant can pay to both estates or either of them", considering that "in both cases (Special Proceedings 1307 and 1672) there is as yet no judicial declaration of heirs nor distribution of properties to whomsoever are entitled thereto." The arguments under the instant assignments of error revolve around said order. From the procedural standpoint, it is claimed that PCIB was not served with a copy of the Institute's motion, that said motion was heard, considered and resolved on November 23, 1965, whereas the date set for its hearing was November 20, 1965, and that what the order grants is different from what is prayed for in the motion. As to the substantive aspect, it is contended that the matter treated in the motion is beyond the jurisdiction of the probate court and that the order authorized payment to a person other than the administrator of the estate of Hodges with whom the Institute had contracted. The procedural points urged by appellant deserve scant consideration. We must assume, absent any clear proof to the contrary, that the lower court had acted regularly by seeing to it that appellant was duly notified. On the other hand, there is nothing irregular in the court's having resolved the motion three days after the date set for hearing the same. Moreover, the record reveals that appellants' motion for reconsideration wherein it raised the same points was denied by the trial court on March 7, 1966 (p. 462, Green R. on A.). Withal, We are not convinced that the relief granted is not within the general intent of the Institute's motion. Insofar as the substantive issues are concerned, all that need be said at this point is that they are mere reiterations of contentions WE have already resolved above adversely to appellants' position. Incidentally, We may add, perhaps, to erase all doubts as to the priority of not disturbing the lower court's orders sanctioning the sales questioned in all these appeals by PCIB, that it is only when one of the parties to a contract to convey property executed by a deceased person raises substantial objections to its being implemented by the executor or administrator of the decedent's estate that Section 8 of Rule 89 may not apply and, consequently, the matter has, to be taken up in a separate action outside of the probate court; but where, as in the cases of the sales herein involved, the interested parties are in agreement that the conveyance be made, it is properly within the jurisdiction of the probate court to give its sanction thereto pursuant to the provision of the rule just mentioned. And with respect to the supposed automatic rescission clauses contained in the contracts to sell executed by Hodges in favor of herein appellees, the effect of said clauses depend on the true nature of the said contracts, despite the nomenclature appearing therein, which is not controlling, for if they amount to actual contracts of sale instead of being mere unilateral accepted "promises to sell", (Art. 1479, Civil Code of the Philippines, 2nd paragraph) the pactum commissorium or

the automatic rescission provision would not operate, as a matter of public policy, unless there has been a previous notarial or judicial demand by the seller (10 Manres 263, 2nd ed.), neither of which have been shown to have been made in connection with the transactions herein involved.

hereby APPROVED. The said Executor is further authorized to execute subsequent sales, conveyances, leases and mortgages of the properties left by the said deceased Linnie Jane Hodges in consonance with the wishes contained in the last will and testament of the latter." Annually thereafter, Hodges submitted to the court the corresponding statements of account of his administration, with the particularity that in all his motions, he always made it a point to urge that "no person interested in the Philippines of the time and place of examining the herein accounts be given notice, as herein executor is the only devisee or legatee of the deceased, in accordance with the last will and testament already probated by the Honorable Court." All said accounts were invariably approved as prayed for. Nothing else appears to have been done either by the court a quo or by Hodges until December 25, 1962. Importantly to be noted, despite the provision in the will of Mrs. Hodges that her share of the conjugal partnership was to be inherited by her husband "to have and to hold unto him, my said husband, during his natural lifetime" and that "at the death of my said husband, I give, devise and bequeath all the rest, residue and remainder of my estate, both real and personal, wherever situated or located, to be equally divided among my brothers and sisters, share and share alike", which provision naturally made it imperative that the conjugal partnership be promptly liquidated, in order that the "rest, residue and remainder" of his wife's share thereof, as of the time of Hodges' own death, may be readily known and identified, no such liquidation was ever undertaken. The record gives no indication of the reason for such omission, although relatedly, it appears therein: 1.That in his annual statement submitted to the court of the net worth of C. N. Hodges and the Estate of Linnie Jane Hodges, Hodges repeatedly and consistently reported the combined income of the conjugal partnership and then merely divided the same equally between himself and the estate of the deceased wife, and, more importantly, he also, as consistently, filed corresponding separate income tax returns for each calendar year for each resulting half of such combined income, thus reporting that the estate of Mrs. Hodges had its own income distinct from his own. 2.That when the court a quo happened to inadvertently omit in its order probating the will of Mrs. Hodges, the name of one of her brothers, Roy Higdon, then already deceased, Hodges lost no time in asking for the proper correction "in order that the heirs of deceased Roy Higdon may not think or believe they were omitted, and that they were really interested in the estate of the deceased Linnie Jane Hodges". 3.That in his aforementioned motion of December 11, 1957, he expressly stated that "deceased Linnie Jane Hodges died leaving no descendants or

Consequently, We find no merit in the assignments of error Number LXII to LXVII. SUMMARY Considering the fact that this decision is unusually extensive and that the issues herein taken up and resolved are rather numerous and varied, what with appellant making seventy-eight assignments of error affecting no less than thirty separate orders of the court a quo, if only to facilitate proper understanding of the import and extent of our rulings herein contained, it is perhaps desirable that a brief restatement of the whole situation be made together with our conclusions in regard to its various factual and legal aspects. That instant cases refer to the estate left by the late Charles Newton Hodges as well as that of his wife, Linnie Jane Hodges, who predeceased him by about five years and a half. In their respective wills which were executed on different occasions, each one of them provided mutually as follows: "I give, devise and bequeath all of the rest, residue and remainder (after funeral and administration wherever situated or located, to my beloved (spouse) to have and to hold unto (him/her) during (his/her) natural lifetime", subject to the condition that upon the death of whoever of them survived the other, the remainder of what he or she would inherit from the other is "give(n), devise(d) and bequeath(ed)" to the brothers and sisters of the latter. Mrs. Hodges died first, on May 23, 1957. Four days later, on May 27, Hodges was appointed special administrator of her estate, and in a separate order of the same date, he was "allowed or authorized to continue the business in which he was engaged, (buying and selling personal and real properties) and to perform acts which he had been doing while the deceased was living." Subsequently, on December 14, 1957, after Mrs. Hodges' will had been probated and Hodges had been appointed and had qualified as Executor thereof, upon his motion in which he asserted that he was "not only part owner of the properties left as conjugal, but also, the successor to all the properties left by the deceased Linnie Jane Hodges", the trial court ordered that "for the reasons stated in his motion dated December 11, 1957, which the Court considers well taken, . . . all the sales, conveyances, leases and mortgages of all properties left by the deceased Linnie Jane Hodges executed by the Executor, Charles Newton Hodges are

ascendants except brothers and sisters and herein petitioner as the surviving spouse, to inherit the properties of the decedent", thereby indicating that he was not excluding his wife's brothers and sisters from the inheritance. 4.That Hodges allegedly made statements and manifestations to the United States inheritance tax authorities indicating that he had renounced his inheritance from his wife in favor of her other heirs, which attitude he is supposed to have reiterated or ratified in an alleged affidavit subscribed and sworn to here in the Philippines and in which he even purportedly stated that his reason for so disclaiming and renouncing his rights under his wife's will was to "absolve (him) or (his) estate from any liability for the payment of income taxes on income which has accrued to the estate of Linnie Jane Hodges", his wife, since her death. On said date, December 25, 1962, Hodges died. The very next day, upon motion of herein respondent and appellee, Avelina A. Magno, she was appointed by the trial court as Administratrix of the Testate Estate of Linnie Jane Hodges, in Special Proceedings No. 1307 and as Special Administratrix of the estate of Charles Newton Hodges, "in the latter case, because the last will of said Charles Newton Hodges is still kept in his vault or iron safe and that the real and personal properties of both spouses may be lost, damaged or go to waste, unless Special Administratrix is appointed," (Order of December 26, 1962, p. 27, Yellow R. on A.) although, soon enough, on December 29, 1962, a certain Harold K. Davies was appointed as her CoSpecial Administrator and when Special Proceedings No. 1672, Testate Estate of Charles Newton Hodges, was opened, Joe Hodges, as next of kin of the deceased, was in due time appointed as Co-Administrator of said estate together with Atty. Fernando P. Mirasol, to replace Magno and Davies, only to be in turn replaced eventually by petitioner PCIB alone. At the outset, the two probate proceedings appear to have been proceeding jointly, with each administrator acting together with the other, under a sort of modus operandi. PCIB used to secure at the beginning the conformity to and signature of Magno in transactions it wanted to enter into and submitted the same to the court for approval as their joint acts. So did Magno do likewise. Somehow, however, differences seem to have arisen, for which reason, each of them began acting later on separately and independently of each other, with apparent sanction of the trial court. Thus, PCIB had its own lawyers whom it contracted and paid handsomely, conducted the business of the estate independently of Magno and otherwise acted as if all the properties appearing in the name of Charles Newton Hodges belonged solely and only to his estate, to the exclusion of the brothers and sisters of Mrs. Hodges, without considering whether or not in fact any of said properties corresponded to the portion of the conjugal partnership pertaining to the estate of Mrs. Hodges. On the other hand, Magno made her own expenditures, hired her own lawyers, on the premise that there is such an estate of Mrs. Hodges, and dealt with some of

the properties, appearing in the name of Hodges, on the assumption that they actually correspond to the estate of Mrs. Hodges. All of these independent and separate actuations of the two administrators were invariably approved by the trial court upon submission. Eventually, the differences reached a point wherein Magno, who was more cognizant than anyone else about the ins and outs of the businesses and properties of the deceased spouses because of her long and intimate association with them, made it difficult for PCIB to perform normally its functions as administrator separately from her. Thus, legal complications arose and the present judicial controversies came about. Predicating its position on the tenor of the orders of May 27 and December 14, 1957 as well as the approval by the court a quo of the annual statements of account of Hodges, PCIB holds to the view that the estate of Mrs. Hodges has already been in effect closed with the virtual adjudication in the mentioned orders of her whole estate to Hodges, and that, therefore, Magno had already ceased since then to have any estate to administer and the brothers and sisters of Mrs. Hodges have no interests whatsoever in the estate left by Hodges. Mainly upon such theory, PCIB has come to this Court with a petition for certiorari and prohibition praying that the lower court's orders allowing respondent Magno to continue acting as administratrix of the estate of Mrs. Hodges in Special Proceedings 1307 in the manner she has been doing, as detailed earlier above, to set aside. Additionally, PCIB maintains that the provision in Mrs. Hodges' will instituting her brothers and sisters in the manner therein specified is in the nature of a testamentary substitution, but inasmuch as the purported substitution is not, in its view, in accordance with the pertinent provisions of the Civil Code, it is ineffective and may not be enforced. It is further contended that, in any event, inasmuch as the Hodges spouses were both residents of the Philippines, following the decision of this Court in Aznar vs. Garcia, or the case of Christensen, 7 SCRA 95, the estate left by Mrs. Hodges could not be more than one-half of her share of the conjugal partnership, notwithstanding the fact that she was a citizen of Texas, U.S.A., in accordance with Article 16 in relation to Articles 900 and 872 of the Civil Code. Initially, We issued a preliminary injunction against Magno and allowed PCIB to act alone.

the properties of the two estates belong already to the estate of Hodges exclusively. On the other hand, respondent-appellee Magno denies that the trial court's orders of May 27 and December 14, 1957 were meant to be finally adjudicatory of the hereditary rights of Hodges and contends that they were no more than the court's general sanction of past and future acts of Hodges as executor of the will of his wife in due course of administration. As to the point regarding substitution, her position is that what was given by Mrs. Hodges to her husband under the provision in question was a lifetime usufruct of her share of the conjugal partnership, with the naked ownership passing directly to her brothers and sisters. Anent the application of Article 16 of the Civil Code, she claims that the applicable law to the will of Mrs. Hodges is that of Texas under which, she alleges, there is no system of legitime, hence, the estate of Mrs. Hodges cannot be less than her share or one-half of the conjugal partnership properties. She further maintains that, in any event, Hodges had as a matter of fact and of law renounced his inheritance from his wife and, therefore, her whole estate passed directly to her brothers and sisters effective at the latest upon the death of Hodges. In this decision, for the reasons discussed above, and upon the issues just summarized, We overrule PCIB's contention that the orders of May 27, 1957 and December 14, 1957 amount to an adjudication to Hodges of the estate of his wife, and We recognize the present existence of the estate of Mrs. Hodges, as consisting of properties, which, while registered in the name of Hodges, do actually correspond to the remainder of the share of Mrs. Hodges in the conjugal partnership, it appearing that pursuant to the pertinent provisions of her will, any portion of said share still existing and undisposed of by her husband at the time of his death should go to her brothers and sisters share and share alike. Factually, We find that the proven circumstances relevant to the said orders do not warrant the conclusion that the court intended to make thereby such alleged final adjudication. Legally, We hold that the tenor of said orders furnish no basis for such a conclusion, and what is more, at the time said orders were issued, the proceedings had not yet reached the point when a final distribution and adjudication could be made. Moreover, the interested parties were not duly notified that such disposition of the estate would be done. At best, therefore, said orders merely allowed Hodges to dispose portions of his inheritance in advance of final adjudication, which is implicitly permitted under Section 2 of Rule 109, there being no possible prejudice to third parties, inasmuch as Mrs. Hodges had no creditors and all pertinent taxes have been paid. More specifically, We hold that, on the basis of circumstances presently extant in the record, and on the assumption that Hodges' purported renunciation should not be upheld, the estate of Mrs. Hodges inherited by her brothers and sisters consists of one-fourth of the community estate of the spouses at the time of her death, minus whatever Hodges had

At the same time, PCIB has appealed several separate orders of the trial court approving individual acts of appellee Magno in her capacity as administratrix of the estate of Mrs. Hodges, such as, hiring of lawyers for specified fees and incurring expenses of administration for different purposes and executing deeds of sale in favor of her co-appellees covering properties which are still registered in the name of Hodges, purportedly, pursuant to corresponding "contracts to sell" executed by Hodges. The said orders are being questioned on jurisdictional and procedural grounds directly or indirectly predicated on the principal theory of appellant that all

gratuitously disposed of therefrom during the period from, May 23, 1957, when she died, to December 25, 1962, when he died provided, that with regard to remunerative dispositions made by him during the same period, the proceeds thereof, whether in cash or property, should be deemed as continuing to be part of his wife's estate, unless it can be shown that he had subsequently disposed of them gratuitously. At this juncture, it may be reiterated that the question of what are the pertinent laws of Texas and what would be the estate of Mrs. Hodges under them is basically one of fact, and considering the respective positions of the parties in regard to said factual issue, it can already be deemed as settled for the purposes of these cases that, indeed, the free portion of said estate that could possibly descend to her brothers and sisters by virtue of her will may not be less than one-fourth of the conjugal estate, it appearing that the difference in the stands of the parties has reference solely to the legitime of Hodges, PCIB being of the view that under the laws of Texas, there is such a legitime of one-fourth of said conjugal estate and Magno contending, on the other hand, that there is none. In other words, hereafter, whatever might ultimately appear, at the subsequent proceedings, to be actually the laws of Texas on the matter would no longer be of any consequence, since PCIB would anyway be in estoppel already to claim that the estate of Mrs. Hodges should be less than as contended by it now, for admissions by a party related to the effects of foreign laws, which have to be proven in our courts like any other controverted fact, create estoppel. In the process, We overrule PCIB's contention that the provision in Mrs. Hodges' will in favor of her brothers and sisters constitutes ineffective hereditary substitutions. But neither are We sustaining, on the other hand, Magno's pose that it gave Hodges only a lifetime usufruct. We hold that by said provision, Mrs. Hodges simultaneously instituted her brothers and sisters as co-heirs with her husband, with the condition, however, that the latter would have complete rights of dominion over the whole estate during his lifetime and what would go to the former would be only the remainder thereof at the time of Hodges' death. In other words, whereas they are not to inherit only in case of default of Hodges, on the other hand, Hodges was not obliged to preserve anything for them. Clearly then, the essential elements of testamentary substitution are absent; the provision in question is a simple case of conditional simultaneous institution of heirs, whereby the institution of Hodges is subject to a partial resolutory condition the operative contingency of which is coincidental with that of the suspensive condition of the institution of his brothers and sisters-in-law, which manner of institution is not prohibited by law. We also hold, however, that the estate of Mrs. Hodges inherited by her brothers and sisters could be more than just stated, but this would depend on (1) whether upon the proper application of the principle of renvoi in relation to Article 16 of the Civil Code and the pertinent laws of Texas, it will appear that Hodges had no legitime as contended by Magno, and (2)

whether or not it can be held that Hodges had legally and effectively renounced his inheritance from his wife. Under the circumstances presently obtaining and in the state of the record of these cases, as of now, the Court is not in a position to make a final ruling, whether of fact or of law, on any of these two issues, and We, therefore, reserve said issues for further proceedings and resolution in the first instance by the court o quo, as hereinabove indicated. We reiterate, however, that pending such further proceedings, as matters stand at this stage, Our considered opinion is that it is beyond cavil that since, under the terms of the will of Mrs. Hodges, her husband could not have anyway legally adjudicated or caused to be adjudicated to himself her whole share of their conjugal partnership, albeit he could have disposed any part thereof during his lifetime, the resulting estate of Mrs. Hodges, of which Magno is the uncontested administratrix, cannot be less than one-fourth of the conjugal partnership properties, as of the time of her death, minus what, as explained earlier, have been gratuitously disposed of therefrom, by Hodges in favor of third persons since then, for even if it were assumed that, as contended by PCIB, under Article 16 of the Civil Code and applying renvoi the laws of the Philippines are the ones ultimately applicable, such one-fourth share would be her free disposable portion, taking into account already the legitime of her husband under Article 900 of the Civil Code. The foregoing considerations leave the Court with no alternative than to conclude that in predicating its orders on the assumption, albeit unexpressed therein, that there is an estate of Mrs. Hodges to be distributed among her brothers and sisters and that respondent Magno is the legal administratrix thereof, the trial court acted correctly and within its jurisdiction. Accordingly, the petition for certiorari and prohibition has to be denied. The Court feels, however, that pending the liquidation of the conjugal partnership and the determination of the specific properties constituting her estate, the two administrators should act conjointly as ordered in the Court's resolution of September 8, 1972 and as further clarified in the dispositive portion of this decision. Anent the appeals from the orders of the lower court sanctioning payment by appellee Magno, as administratrix, of expenses of administration and attorney's fees, it is obvious that, with our holding that there is such an estate of Mrs. Hodges, and for the reasons stated in the body of this opinion, the said orders should be affirmed. This We do on the assumption We find justified by the evidence of record, and seemingly agreed to by appellant PCIB, that the size and value of the properties that should correspond to the estate of Mrs. Hodges far exceed the total of the attorney's fees and administration expenses in question.

name of Hodges, the details of which are related earlier above, a distinction must be made between those predicated on contracts to sell executed by Hodges before the death of his wife, on the one hand, and those premised on contracts to sell entered into by him after her death. As regards the latter, We hold that inasmuch as the payments made by appellees constitute proceeds of sales of properties belonging to the estate of Mrs. Hodges, as may be implied from the tenor of the motions of May 27 and December 14, 1957, said payments continue to pertain to said estate, pursuant to her intent obviously reflected in the relevant provisions of her will, on the assumption that the size and value of the properties to correspond to the estate of Mrs. Hodges would exceed the total value of all the properties covered by the impugned deeds of sale, for which reason, said properties may be deemed as pertaining to the estate of Mrs. Hodges. And there being no showing that thus viewing the situation, there would be prejudice to anyone, including the government, the Court also holds that, disregarding procedural technicalities in favor of a pragmatic and practical approach as discussed above, the assailed orders should be affirmed. Being a stranger to the estate of Mrs. Hodges, PCIB has no personality to raise the procedural and jurisdictional issues raised by it. And inasmuch as it does not appear that any of the other heirs of Mrs. Hodges or the government has objected to any of the orders under appeal, even as to these parties, there exists no reason for said orders to be set aside. DISPOSITIVE PART IN VIEW OF ALL THE FOREGOING PREMISES, judgment is hereby rendered DISMISSING the petition in G. R. Nos. L-27860 and L-27896, and AFFIRMING, in G. R. Nos. L-27936-37 and the other thirty-one numbers hereunder ordered to be added after payment of the corresponding docket fees, all the orders of the trial court under appeal enumerated in detail on pages 35 to 37 and 80 to 82 of this decision; the existence of the Testate Estate of Linnie Jane Hodges, with respondent-appellee Avelina A. Magno, as administratrix thereof is recognized, and it is declared that, until final judgment is ultimately rendered regarding (1) the manner of applying Article 16 of the Civil Code of the Philippines to the situation obtaining in these cases and (2) the factual and legal issue of whether or not Charles Newton Hodges had effectively and legally renounced his inheritance under the will of Linnie Jane Hodges, the said estate consists of one-fourth of the community properties of the said spouses, as of the time of the death of the wife on May 23, 1957, minus whatever the husband had already gratuitously disposed of in favor of third persons from said date until his death, provided, first, that with respect to remunerative dispositions, the proceeds thereof shall continue to be part of the wife's estate, unless subsequently disposed of gratuitously to third parties by the husband, and second, that should the purported renunciation be declared legally effective, no deductions whatsoever are to be made from said estate; in consequence, the preliminary injunction of August 8, 1967, as amended on October 4 and December 6, 1967, is lifted, and the resolution of September

With respect to the appeals from the orders approving transactions made by appellee Magno, as administratrix, covering properties registered in the

8, 1972, directing that petitioner-appellant PCIB, as Administrator of the Testate Estate of Charles Newton Hodges, in Special Proceedings 1672, and respondent-appellee Avelina A. Magno, as Administratrix of the Testate Estate of Linnie Jane Hodges, in Special Proceedings 1307, should act thenceforth always conjointly, never independently from each other, as such administrators, is reiterated, and the same is made part of this judgment and shall continue in force, pending the liquidation of the conjugal partnership of the deceased spouses and the determination and segregation from each other of their respective estates, provided, that upon the finality of this judgment, the trial court should immediately proceed to the partition of the presently combined estates of the spouses, to the end that the one-half share thereof of Mrs. Hodges may be properly and clearly identified; thereafter, the trial court should forthwith segregate the remainder of the one-fourth herein adjudged to be her estate and cause the same to be turned over or delivered to respondent for her exclusive administration in Special Proceedings 1307, while the other one-fourth shall remain under the joint administration of said respondent and petitioner under a joint proceedings in Special Proceedings 1307 and 1672, whereas the half unquestionably pertaining to Hodges shall be administered by petitioner exclusively in Special Proceedings 1672, without prejudice to the resolution by the trial court of the pending motions for its removal as administrator 12 ; and this arrangement shall be maintained until the final resolution of the two issues of renvoi and renunciation hereby reserved for further hearing and determination, and the corresponding complete segregation and partition of the two estates in the proportions that may result from the said resolution. Generally and in all other respects, the parties and the court a quo are directed to adhere henceforth, in all their actuations in Special Proceedings 1307 and 1672, to the views passed and ruled upon by the Court in the foregoing opinion. Appellant PCIB is ordered to pay, within five (5) days from notice hereof, thirty-one additional appeal docket fees, but this decision shall nevertheless become final as to each of the parties herein after fifteen (15) days from the respective notices to them hereof in accordance with the rules. Costs against petitioner-appellant PCIB. Zaldivar, Castro, Esguerra and Fernandez, JJ ., concur. Fernando, J ., concurs on the basis of the procedural pronouncements in the opinion. Makasiar, Antonio, Muoz Palma and Aquino, JJ ., concur in the result. Separate Opinions

TEEHANKEE, J ., concurring: I concur in the result of dismissal of the petition for certiorari and prohibition in Cases L-27860 and L-27896 and with the affirmance of the appealed orders of the probate court in Cases L-27936-37. I also concur with the portion of the dispositive part of the judgment penned by Mr. Justice Barredo decreeing the lifting of the Court's writ of preliminary injunction of August 8, 1967 as amended on October 4, and December 6, 1967 1 and ordering in lieu thereof that the Court's resolution of September 8, 1972 2 which directed that petitioner-appellant PCIB as administrator of C. N. (Charles Newton) Hodges' estate (Sp. Proc. No. 1672 and respondent-appellee Avelina A. Magno as administratrix of Linnie Jane Hodges' estate (Sp. Proc. No. 1307) should act always conjointly, never independently from each other, as such administrators, is reiterated and shall continue in force and made part of the judgment. It is manifest from the record that petitioner-appellant PCIB's primal contention in the cases at bar belatedly filed by it with this Court on August 1, 1967 (over ten (10) years after Linnie Jane Hodges' death on May 23, 1957 and over five (5 years after her husband C.N. Hodges' death on December 25, 1962 during which time both estates have been pending settlement and distribution to the decedents' respective rightful heirs all this time up to now) that the probate court per its order of December 14, 1957 (supplementing an earlier order of May 25, 1957) 3 in granting C. N. Hodges' motion as Executor of his wife Linnie's estate to continue their "business of buying and selling personal and real properties" and approving "all sales, conveyances, leases and mortgages" made and to be made by him as such executor under his obligation to submit his yearly accounts in effect declared him as sole heir of his wife's estate and nothing remains to be done except to formally close her estate (Sp. Proc. No. 1307) as her estate was thereby merged with his own so that nothing remains of it that may be adjudicated to her brothers and sisters as her designated heirs after him, 4 is wholly untenable and deserves scant consideration. Aside from having been put forth as an obvious afterthought much too late in the day, this contention of PCIB that there no longer exists any separate estate of Linnie Jane Hodges after the probate court's order of December 14, 1957 goes against the very acts and judicial admissions of C.N. Hodges as her executor whereby he consistently recognized the separate existence and identity of his wife's estate apart from his own separate estate and from his own share of their conjugal partnership and estate and "never considered the whole estate as a single one belonging exclusively to himself" during the entire period that he survived her for over five (5) years up to the time of his own death on December 25, 1962 5 and against the identical acts and judicial admissions of PCIB as administrator of C.N. Hodges' estate until PCIB sought in 1966 to take over both estates as pertaining to its sole administration.

PCIB is now barred and estopped from contradicting or taking a belated position contradictory to or inconsistent with its previous admissions 6 (as well as those of C.N. Hodges himself in his lifetime and of whose estate PCIB is merely an administrator) recognizing the existence and identity of Linnie Jane Hodges' separate estate and the legal rights and interests therein of her brothers and sisters as her designated heirs in her will. PCIB's petition for certiorari and prohibition to declare all acts of the probate court in Linnie Jane Hodges' estate subsequent to its order of December 14, 1957 as "null and void for having been issued without jurisdiction" must therefore be dismissed with the rejection of its belated and untenable contention that there is no longer any estate of Mrs. Hodges of which respondent Avelina A. Magno is the duly appointed and acting administratrix.

PCIB's appeal 7 from the probate court's various orders recognizing respondent Magno as administratrix of Linnie's estate (Sp. Proc. No. 1307) and sanctioning her acts of administration of said estate and approving the sales contracts executed by her with the various individual appellees, which involve basically the same primal issue raised in the petition as to whether there still exists a separate estate of Linnie of which respondent-appellee Magno may continue to be the administratrix, must necessarily fail as a result of the Court's main opinion at bar that there does exist such an estate and that the two estates (husband's and wife's) must be administered conjointly by their respective administrators (PCIB and Magno). The dispositive portion of the main opinion The main opinion disposes that: "IN VIEW OF ALL THE FOREGOING PREMISES, judgment is hereby rendered DISMISSING the petition in G. R. Nos. L-27860 and L-27896, and AFFIRMING, in G. R. Nos. L-27936-37 and the other thirty-one numbers hereunder ordered to be added after payment of the corresponding docket fees, all the orders of the trial court under appeal enumerated in detail on pages 35 to 37 and 80 to 82 of this decision: "The existence of the Testate Estate of Linnie Jane Hodges, with respondent-appellee Avelina A. Magno, as administratrix thereof is recognized, and "It is declared that, until final judgment is ultimately rendered regarding (1) the manner of applying Article 16 of the Civil Code of the Philippines to the situation obtaining in these cases and (2) the factual and legal issues of

whether or not Charles Newton Hodges has effectively and legally renounced his inheritance under the will of Linnie Jane Hodges, the said estate consists of one-fourth of the community properties of the said spouses, as of the time of the death of the wife on May 23, 1957, minus whatever the husband had already gratuitously disposed of in favor of third persons from said date until his death, provided, first, that with respect to remunerative dispositions, the proceeds thereof shall continue to be part of the wife's estate, unless subsequently disposed of gratuitously to third parties by the husband, and second, that should the purported renunciation be declared legally effective, no deductions whatsoever are to be made from said estate; "In consequence, the preliminary injunction of August 8, 1967, as amended on October 4 and December 6, 1967, is lifted, and the resolution of September 8, 1972, directing that petitioner-appellant PCIB, as Administrator of the Testate Estate of Charles Newton Hodges, in Special Proceedings 1672, and respondent-appellee Avelina A. Magno, as Administratrix of the Testate Estate of Linnie Jane Hodges, in Special Proceedings 1307, should act thenceforth always conjointly never independently from each other, as such administrators, is reiterated and the same is made part of this judgment and shall continue in force, pending the liquidation of the conjugal partnership of the deceased spouses and the determination and segregation from each other of their respective estates; provided, that upon the finality of this judgment, the trial court should immediately proceed to the partition of the presently combined estates of the spouses, to the end that the one-half share thereof of Mrs. Hodges may be properly and clearly identified; "Thereafter, the trial court should forthwith segregate the remainder of the one-fourth herein adjudged to be her estate and cause the same to be turned over or delivered to respondent for her exclusive administration in Special Proceedings 1307, while the other one-fourth shall remain under the joint administration of said respondent and petitioner under a joint proceedings in Special Proceedings 1307 and 1672, whereas the half unquestionably pertaining to Hodges shall be administered by petitioner exclusively in Special Proceedings 1672, without prejudice to the resolution by the trial court of the pending motions for its removal as administrator. "And this arrangement shall be maintained until the final resolution of the two issues of renvoi and renunciation hereby reserved for further hearing and determination, and the corresponding complete segregation and partition of the two estates in the proportions that may result from the said resolution. "Generally and in all other respects, the parties and the court a quo are directed to adhere henceforth, in all their actuations in Special Proceedings 1307 and 1672, to the views passed and ruled upon by the Court in the foregoing opinion." 8

Minimum Estimate of Mrs. Hodges' estate: One-fourth of conjugal properties The main opinion in declaring the existence of a separate estate of Linnie Jane Hodges which shall pass to her brothers and sisters with right of representation (by their heirs) as her duly designated heirs declares that her estate consists as a minimum (i.e. assuming (1) that under Article 16 of the Philippine Civil Code C. N. Hodges as surviving husband was entitled to onehalf of her estate as legitime and (2) that he had not effectively and legally renounced his inheritance under her will) of "one-fourth of the community properties of the said spouses, as of the time of the death of the wife on May 23, 1957, minus whatever the husband had already gratuitously disposed of in favor of third persons from said date until his death," with the proviso that proceeds of remunerative dispositions or sales for valuable consideration made by C. N. Hodges after his wife Linnie's death shall continue to be part of her estate unless subsequently disposed of by him gratuitously to third parties subject to the condition, however, that if he is held to have validly and effectively renounced his inheritance under his wife's will, no deductions of any dispositions made by Hodges even if gratuitously are to be made from his wife Linnie's estate which shall pass intact to her brothers and sisters as her designated heirs called in her will to succeed to her estate upon the death of her husband C. N. Hodges. Differences with the main opinion I do not share the main opinion's view that Linnie Jane Hodges instituted her husband as her heir under her will "to have dominion over all her estate during his lifetime . . . as absolute owner of the properties . . . " 9 and that she bequeathed "the whole of her estate to be owned and enjoyed by him as universal and sole heir with absolute dominion over them only during his lifetime, which means that while he could completely and absolutely dispose of any portion thereof inter vivos to anyone other than himself, he was not free to do so mortis causa, and all his rights to what might remain upon his death would cease entirely upon the occurrence of that contingency, inasmuch as the right of his brothers-and sisters-in-law to the inheritance, although vested already upon the death of Mrs. Hodges, would automatically become operative upon the occurrence of the death of Hodges in the event of actual existence of any remainder of her estate then." 10 As will be amplified hereinafter, I do not subscribe to such a view that Linnie Jane Hodges willed "full and absolute ownership" and "absolute dominion" over her estate to her husband, but rather that she named her husband C. N. Hodges and her brothers and sisters as instituted heirs with a term under Article 885 of our Civil Code, to wit, Hodges as instituted heir with a resolutory term where-under his right to the succession ceased in diem

upon arrival of the resolutory term of his death on December 25, 1962 and her brothers and sisters as instituted heirs with a suspensive term whereunder their right to the succession commenced ex die upon arrival of the suspensive term of the death of C. N. Hodges on December 25, 1962. Hence, while agreeing with the main opinion that the proceeds of all remunerative dispositions made by C. N. Hodges after his wife's death remain an integral part of his wife's estate which she willed to her brothers and sisters, I submit that C. N. Hodges could not validly make gratuitous dispositions of any part or all of his wife's estate "completely and absolutely dispose of any portion thereof inter vivos to anyone other than himself" in the language of the main opinion, supra and thereby render ineffectual and nugatory her institution of her brothers and sisters as her designated heirs to succeed to her whole estate "at the death of (her) husband." If according to the main opinion, Hodges could not make such gratuitous "complete and absolute dispositions" of his wife Linnie's estate "mortis causa," it would seem that by the same token and rationale he was likewise proscribed by the will from making such dispositions of Linnie's estate inter vivos. I believe that the two questions of renvoi and renunciation should be resolved preferentially and expeditiously by the probate court ahead of the partition and segregation of the minimum one-fourth of the conjugal or community properties constituting Linnie Jane Hodges' separate estate, which task considering that it is now seventeen (17) years since Linnie Jane Hodges' death and her conjugal estate with C. N. Hodges has remained unliquidated up to now might take a similar number of years to unravel with the numerous items, transactions and details of the sizable estates involved. Such partition of the minimum one-fourth would not be final, since if the two prejudicial questions of renvoi and renunciation were resolved favorably to Linnie's estate meaning to say that if it should be held that C. N. Hodges is not entitled to any legitime of her estate and at any rate he had totally renounced his inheritance under the will), then Linnie's estate would consist not only of the minimum one-fourth but one-half of the conjugal or community properties of the Hodges spouses, which would require again the partition and segregation of still another one-fourth of said properties to complete Linnie's separate estate.

My differences with the main opinion involve further the legal concepts, effects and consequences of the testamentary dispositions of Linnie Jane Hodges in her will and the question of how best to reach a solution of the pressing question of expediting the closing of the estates which after all do not appear to involve any outstanding debts nor any dispute between the

heirs and should therefore be promptly settled now after all these years without any further undue complications and delays and distributed to the heirs for their full enjoyment and benefit. As no consensus appears to have been reached thereon by a majority of the Court, I propose to state these views as concisely as possible with the sole end in view that they may be of some assistance to the probate court and the parties in reaching an expeditious closing and settlement of the estates of the Hodges spouses. Two Assumptions As indicated above, the declaration of the minimum of Mrs. Hodges' estate as one-fourth of the conjugal properties is based on two assumptions most favorable to C. N. Hodges' estate and his heirs, namely (1) that the probate court must accept the renvoi or "reference back" 11 allegedly provided by the laws of the State of Texas (of which state the Hodges spouses were citizens) whereby the civil laws of the Philippines as the domicile of the Hodges spouses would govern their succession notwithstanding the provisions of Article 16 of our Civil Code (which provides that the national law of the decedents, in this case, of Texas, shall govern their succession) with the result that her estate would consist of no more than one-fourth of the conjugal properties since the legitime of her husband (the other onefourth of said conjugal properties or one-half of her estate, under Article 900 of our Civil Code) could not then be disposed of nor burdened with any condition by her and (2) that C.N. Hodges had not effectively and legally renounced his inheritance under his wife's will. These two assumptions are of course flatly disputed by respondentappellee Magno as Mrs. Hodges' administratrix, who avers that the law of the State of Texas governs her succession and does not provide for any legitime, hence, her brothers and sisters are entitled to succeed to the whole of her share of the conjugal properties which is one-half thereof and that in any event, Hodges had totally renounced all his rights under the will. The main opinion concedes that "(I)n the interest of settling the estates herein involved soonest, it would be best, indeed, if these conflicting claims of the parties were determined in these proceedings." It observes however that this cannot be done due to the inadequacy of the evidence submitted by the parties in the probate court and of the parties' discussion, viz, "there is no clear and reliable proof of what the possibly applicable laws of Texas are. Then also, the genuineness of the documents relied upon by respondent Magno [re Hodges' renunciation] is disputed." 12 Hence, the main opinion expressly reserves resolution and determination on these two conflicting claims sad issues which it deems "are not properly before the Court new," 13 and specifically holds that "(A)ccordingly, the only question that remains to be settled in the further proceedings hereby ordered to be held in the court below is how much more than as fixed

above is the estate of Mrs. Hodges, and this would depend on (1) whether or not the applicable laws of Texas do provide in effect for more, such as, when there is no legitime provided therein, and (2) whether or not Hodges has validly waived his whole inheritance from Mrs. Hodges." 14 Suggested guidelines Considering that the only unresolved issue has thus been narrowed down and in consonance with the ruling spirit of our probate law calling for the prompt settlement of the estates of deceased persons for the benefit of creditors and those entitled to the residue by way of inheritance considering that the estates have been long pending settlement since 1957 and 1962, respectively it was felt that the Court should lay down specific guidelines for the guidance of the probate court towards the end that it may expedite the closing of the protracted estates proceedings below to the mutual satisfaction of the heirs and without need of a dissatisfied party elevating its resolution of this only remaining issue once more to this Court and dragging out indefinitely the proceedings. After all, the only question that remains depends for its determination on the resolution of the two questions of renvoi and renunciation, i.e. as to whether C. N. Hodges can claim a legitime and whether he had renounced the inheritance. But as already indicated above, the Court without reaching a consensus which would, finally resolve the conflicting claims here and now in this case opted that "these and other relevant matters should first be threshed out fully in the trial court in the proceedings hereinafter to be held for the purpose of ascertaining and/or distributing the estate of Mrs. Hodges to her heirs in accordance with her duly probated will. 15 The writer thus feels that laying down the premises and principles governing the nature, effects and consequences of Linnie Jane Hodges' testamentary dispositions in relation to her conjugal partnership and coownership of properties with her husband C. N. Hodges and "thinking out" the end results, depending on whether the evidence directed to be formally received by the probate court would bear out that under renvoi C. N. Hodges was or was not entitled to claim a legitime of one-half of his wife Linnie's estate and/or that he had or had not effectively and validly renounced his inheritance should help clear the decks, as it were, and assist the probate court in resolving the only remaining question of how much more than the minimum one-fourth of the community properties of the Hodges spouses herein finally determined should be awarded as the separate estate of Linnie, particularly since the views expressed in the main opinion have not gained a consensus of the Court. Hence, the following suggested guidelines, which needless to state, represent the personal opinion and views of the writer:

1.To begin with, as pointed out in the main opinion, "according to Hodges' own inventory submitted by him as executor of the estate of his wife, practically all their properties were conjugal which means that the spouses have equal shares therein." 16 2.Upon the death of Mrs. Hodges on May 23, 1957, and the dissolution thereby of the marriage, the law imposed upon Hodges as surviving husband the duty of inventorying, administering and liquidating the conjugal or community property. 17 Hodges failed to discharge this duty of liquidating the conjugal partnership and estate. On the contrary, he sought and obtained authorization from the probate court to continue the conjugal partnership's business of buying and selling real and personal properties. In his annual accounts submitted to the probate court as executor of Mrs. Hodges estate, Hodges thus consistently reported the considerable combined income (in six figures) of the conjugal partnership or coownership and then divided the same equally between himself and Mrs. Hodges' estate and as consistently filed separate Income tax returns and paid the income taxes for each resulting half of such combined income corresponding to his own and to Mrs. Hodges' estate. 18 (Parenthetically he could not in law do this, had he adjudicated Linnie's entire estate to himself, thus supporting the view advanced even in the main opinion that "Hodges waived not only his rights to the fruits but to the properties themselves." 19 By operation of the law of trust 20 as well as by his own acknowledgment and acts, therefore, all transactions made by Hodges after his wife's death were deemed for and on behalf of their unliquidated conjugal partnership and community estate and were so reported and treated by him. 3.With this premise established that all transactions of Hodges after his wife's death were for and on behalf of their unliquidated conjugal partnership and community estate, share and share alike, it should be clear that no gratuitous dispositions, if any, made by C. N. Hodges from his wife Linnie's estate should be deducted from her separate estate as held in the main opinion. 21 On the contrary, any such gratuitous dispositions should be charged to his own share of the conjugal estate since he had no authority or right to make any gratuitous dispositions of Linnie's properties to the prejudice of her brothers and sisters whom she called to her succession upon his death, not to mention that the very authority obtained by him from the probate court per its orders of May 25, and December 14, 1957 was to continue the conjugal partnership's business of buying and selling real properties for the account of their unliquidated conjugal estate and co-ownership, share and share alike and not to make any free dispositions of Linnie's estate. 4.All transactions as well after the death on December 25, 1962 of Hodges himself appear perforce and necessarily to have been conducted, on the

same premise, for and on behalf of their unliquidated conjugal partnership and/or co-ownership, share and share alike since the conjugal partnership remained unliquidated which is another way of saying that such transactions, purchases and sales, mostly the latter, must be deemed in effect to have been made for the respective estates of C. N. Hodges and of his wife Linnie Jane Hodges, as both estates continued to have an equal stake and share in the conjugal partnership which was not only left unliquidated but continued as a co-ownership or joint business with the probate court's approval by Hodges during the five-year period that he survived his wife. This explains the probate court's action of requiring that deeds of sale executed by PCIB as Hodges' estate's administrator be "signed jointly" by respondent Magno as Mrs. Hodges' estate's administratrix, as well as its order authorizing payment by lot purchasers from the Hodges to either estate, since "there is as yet no judicial declaration of heirs nor distribution of properties to whomsoever are entitled thereto." 22

named in the will when the debts, liabilities, taxes and expenses of administration are finally determined and paid;" 27 and The affidavit of ratification of such renunciation (which places him in estoppel) allegedly executed on August 9, 1962 by C. N. Hodges in Iloilo City wherein he reaffirmed that ". . . on August 8, 1958, I renounced and disclaimed any and all right to receive the rents, emoluments and income from said estate" and further declared that "(T)he purpose of this affidavit is to ratify and confirm, and I do hereby ratify and confirm, the declaration made in schedule M of said return and hereby formally disclaim and renounce any right on my part to receive any of the said rents, emoluments and income from the estate of my deceased wife, Linnie Jane Hodges This affidavit is made to absolve me or my estate from any liability for the payment of income taxes on income which has accrued to the estate of Linnie Jane Hodges since the death of the said Linnie Jane Hodges on May 23, 1957." 28 (b)On the question of renvoi, all that remains for the probate court to do is to formally receive in evidence duly authenticated copies of the laws of the State of Texas governing the succession of Linnie Jane Hodges and her husband C. N. Hodges as citizens of said State at the time of their respective deaths on May 23, 1957 and December 25, 1962. 29 6.The text and tenor of the declarations by C. N. Hodges of renunciation of his inheritance from his wife in favor of her other named heirs in her will (her brothers and sisters and their respective heirs) as ratified and reiterated expressly in his affidavit of renunciation executed four years later for the avowed purpose of not being held liable for payment of income taxes on income which has accrued to his wife's estate since her death indicate a valid and effective renunciation. Once the evidence has been formally admitted and its genuineness and legal effectivity established by the probate court, the renunciation by C. N. Hodges must be given due effect with the result that C. N. Hodges therefore acquired no part of his wife's one-half share of the community properties since he removed himself as an heir by virtue of his renunciation. By simple substitution then under Articles 857 and 559 of our Civil Code 30 and by virtue of the will's institution of heirs, since "the heir originally instituted (C. N. Hodges) does not become an heir" 31 by force of his renunciation, Mrs. Hodges' brothers and sisters whom she designated as her heirs upon her husband's death are called immediately to her succession. Consequently, the said community and conjugal properties would then pertain pro indiviso share and share alike to their respective estates, with each estate, however, shouldering its own expenses of administration, estate and inheritance taxes, if any remain unpaid, attorneys' fees and other like expenses and the net remainder to be adjudicated directly to the

decedents' respective brothers and sisters (and their heirs) as the heirs duly designated in their respective wills. The question of renvoi becomes immaterial since most laws and our laws permit such renunciation of inheritance. 7.If there were no renunciation (or the same may somehow be declared to have not been valid and effective) by C. N. Hodges of his inheritance from his wife, however, what would be the consequence? (a)If the laws on succession of the State of Texas do provide for renvoi or "reference back" to Philippine law as the domiciliary law of the Hodges' spouses governing their succession, then petitioners' view that Mrs. Hodges' estate would consist only of the minimum of "one-fourth of the community properties of the said spouses, as of the time of (her) death on May 23,1957" would have to be sustained and C. N. Hodges' estate would consist of three-fourths of the community properties, comprising his own one-half (or two-fourths) share and the other fourth of Mrs. Hodges' estate as the legitime granted him as surviving spouse by Philippine law (Article 900 of the Civil Code) which could not be disposed of nor burdened with any condition by Mrs. Hodges as testatrix. (b)If the laws on succession of the State of Texas do not provide for such renvoi and respondent Magno's assertion is correct that the Texas law which would then prevail, provides for no legitime for C. N. Hodges as the surviving spouse, then respondent Magno's assertion that Mrs. Hodges' estate would consist of one-half of the community properties (with the other half pertaining to C. N. Hodges) would have to be sustained. The community and conjugal properties would then pertain share and share alike to their respective estates, with each estate shouldering its own expenses of administration in the same manner stated in the last paragraph of paragraph 6 hereof. 8.As to the nature of the institution of heirs made by Mrs. Hodges in her will, the main opinion holds that "(T)he brothers and sisters of Mrs. Hodges are not substitutes for Hodges; rather, they are also heirs instituted simultaneously with Hodges," but goes further and holds that "it was not the usufruct alone of her estate . . . that she bequeathed to Hodges during his lifetime, but the full ownership thereof, although the same was to last also during his lifetime only, even as there was no restriction against his disposing or conveying the whole or any portion thereof anybody other than himself " and describes Hodges "as universal and sole heir with absolute dominion" over Mrs. Hodges' estate (except over their Lubbock, Texas property), 32 adding that "Hodges was not obliged to preserve anything for them" (referring to Mrs. Hodges' brothers and sisters as instituted co-heirs). 33

And this equally furnishes the rationale of the main opinion for continued conjoint administration by the administrators of the two estates of the deceased spouses, "pending the liquidation of the conjugal partnership," 23 since "it is but logical that both estates should be administered jointly by the representatives of both, pending their segregation from each other. Particularly . . . because the actuations so far of PCIB evince a determined, albeit groundless, intent to exclude the other heirs of Mrs. Hodges from their inheritance." 24 5.As stressed in the main opinion, the determination of the only unresolved issue of how much more than the minimum of one-fourth. of the community or conjugal properties of the Hodges spouses pertains to Mrs. Hodges' estate depends on the twin questions of renunciation and renvoi. It directed consequently that "a joint hearing of the two probate proceedings herein involved" be held by the probate court for the reception of "further evidence" in order to finally resolved these twin questions. 25 (a)On the question of renunciation, it is believed that all that the probate court has to do is to receive formally in evidence the various documents annexed to respondent Magno's answer at bar, 26 namely: Copy of the U.S. Estate Tax Return filed on August 8, 1958 by C. N. Hodges for his wife Linnie's estate wherein he purportedly declared that he was renouncing his inheritance under his wife's will in favor of her brothers and sisters as coheirs designated with him and that it was his "intention (as) surviving husband of the deceased to distribute the remaining property and interests of the deceased in their community estate to the devisees and legatees

Contrary to this view of the main opinion, the writer submits that the provisions of Mrs. Hodges' will did not grant to C. N. Hodges "full ownership" nor "absolute dominion" over her estate, such that he could as "universal and sole heir" by the mere expedient of gratuitously disposing to third persons her whole estate during his lifetime nullify her institution of her brothers and sisters as his co-heirs to succeed to her whole estate "at the death of (her) husband," deprive them of any inheritance and make his own brothers and sisters in effect sole heirs not only of his own estate but of his wife's estate as well. Thus, while Linnie Jane Hodges did not expressly name her brothers and sisters as substitutes for Hodges because she willed that they would enter into the succession upon his death, still it cannot be gainsaid, as the main opinion concedes, "that they are also heirs instituted simultaneously with Hodges, subject however to certain conditions, partially resolutory insofar as Hodges was concerned and correspondingly suspensive with reference to his brothers-and sisters-in-law." 34 Hence, if Hodges is found to have validly renounced his inheritance, there would he a substitution of heirs in fact and in law since Linnie's brothers and sisters as the heirs "simultaneously instituted" with a suspensive term would be called immediately to her succession instead of waiting for the arrival of the suspensive term of Hodges' death, since as the heir originally instituted he does not become an heir by force of his renunciation and therefore they would "enter into the inheritance in default of the heir originally instituted" (Hodges) under the provisions of Articles 857 and 859 of our Civil Code, supra, 35 thus accelerating their succession to her estate as a consequence of Hodges' renunciation. Consequently, Linnie Jane Hodges willed that her husband C N. Hodges would "during his natural lifetime . . . manage, control, use and enjoy said estate" and that only "all rents, emoluments and income" alone shall belong to him. She further willed that while he could sell and purchase properties of her estate, and "use any part of the principal of said estate," such principal notwithstanding "any changes in the physical properties of said estate" (i.e. new properties acquired or exchanged) would still pertain to her estate, which at the time of his death would pass in full dominion to her brothers and sisters as the ultimate sole and universal heirs of her estate. 36

during his lifetime, . . . to make any changes in the physical properties of said estate, by sale . . . and the purchase of any other or additional property as he may think best . . . . All rents, emoluments and income from said estate shall belong to him and he is further authorized to use any part of the principal of said estate as he may need or desire, . . . he shall not sell or otherwise dispose of any of the improved property now owned by us, located at .. the City of Lubbock, Texas . . . . He shall have the right to subdivide any farm land and sell lots therein, and may sell unimproved town lots;" 38 that"(A)t the death of my said husband, Charles Newton, I give, devise and bequeath all of the rest, residue and remainder of my estate, both personal and real, . . . to be equally divided among my brothers and sisters, share and share alike, namely: Esta Higdon, Emma Howell, Leonard Higdon, Roy Higdon, Sadie Rascoe, Era Roman and Nimroy Higdon;" 39 and that "(I)n case of the death of any of my brothers and/or sisters . . . prior to the death of my husband .. the heirs of such deceased brother or sister shall take jointly the share which would have gone to such brother or sister had she or he survived." 40 Such provisions are wholly consistent with the view already fully expounded above that all transactions and sales made by Hodges after his wife Linnie's death were by operation of the law of trust as well as by his own acknowledgment and acts deemed for and on behalf of their unliquidated conjugal partnership and community estate, share and share alike, with the express authorization of the probate court per its orders of May 25, and December 14. 1957 granting Hodges' motion to continue the conjugal partnership business of buying and selling real estate even after her death. By the same token, Hodges could not conceivably be deemed to have had any authority or right to dispose gratuitously of any portion of her estate to whose succession she had called her brothers and sisters upon his death. 9.Such institutions of heirs with a term are expressly recognized and permitted under Book III, Chapter 2, section 4 of our Civil Code dealing with "conditional testamentary dispositions and testamentary dispositions with a term." 41 Thus, Article 885 of our Civil Code expressly provides that: "ART. 885.The designation of the day or time when the effects of the institution of an heir shall commence or cease shall be valid. "In both cases, the legal heir shall be considered as called to the succession until the arrival of the period or its expiration. But in the first case he shall not enter into possession of the property until after having given sufficient security, with the intervention of the instituted heir." Accordingly, under the terms of Mrs. Hodges' will, her husband's right to the succession as the instituted heir ceased in diem, i.e. upon the arrival of

the resolutory term of his death on December 25, 1962, while her brothers' and sisters' right to the succession also as instituted heirs commenced ex die, i.e. upon the expiration of the suspensive term (as far as they were concerned) of the death of C. N. Hodges on December 25,1962. 42 As stated in Padilla's treatise on the Civil Code, "A term is a period whose arrival is certain although the exact date thereof may be uncertain. A term may have either a suspensive or a resolutory effect. The designation of the day when the legacy 'shall commence' is ex die, or a term with a suspensive effect, from a certain day. The designation of the day when the legacy 'shall cease' is in diem or a term with a resolutory effect, until a certain day." lie adds that "A legacy based upon a certain age or upon the death of a person is not a condition but a term. If the arrival of the term would commence the right of the heir, it is suspensive. If the arrival of the term would terminate his right, it is resolutory" and that "upon the arrival of the period, in case of a suspensive term, the instituted heir is entitled to the succession, and in case of a resolutory term, his right terminates." 43 10.The sizable estates herein involved have now been pending settlement for a considerably protracted period (of seventeen years counted from Linnie's death in 1957), and all that is left to be done is to resolve the only remaining issue (involving the two questions of renunciation and renvoi) hereinabove discussed in order to close up the estates and finally effect distribution to the deceased spouses' respective brothers and sisters and their heirs as the heirs duly instituted in their wills long admitted to probate. Hence, it is advisable for said instituted heirs and their heirs in turn 44 to come to terms for the adjudication and distribution to them proindiviso of the up to now unliquidated community properties of the estates of the Hodges spouses (derived from their unliquidated conjugal partnership) rather than to get bogged down with the formidable task of physically segregating and partitioning the two estates with the numerous transactions, items and details and physical changes of properties involved. The estates proceedings would thus be closed and they could then name their respective attorneys-in-fact to work out the details of segregating, dividing or partitioning the unliquidated community properties or liquidating them which can be done then on their own without further need of intervention on the part of the probate court as well as allow them meanwhile to enjoy and make use of the income and cash and liquid assets of the estates in such manner as may be agreed upon between them. Such a settlement or modus vivendi between the heirs of the unliquidated two estates for the mutual benefit of all of them should not prove difficult, considering that it appears as stated in the main opinion that 22.968149% of the share or undivided estate of C. N. Hodges have already been acquired by the heirs of Linnie Jane Hodges from certain heirs of her husband, while certain other heirs representing 17.34375% of Hodges' estate were joining cause with Linnie's heirs in their pending and unresolved motion for the removal of petitioner PCIB as administrator of Hodges' estate, 45

The testatrix Linnie Jane Hodges in her will thus principally provided that "I give, devise and bequeath all of the rest, residue and remainder of my estate, both personal and real .. to my beloved husband, Charles Newton Hodges, to have and to hold with him .. during his natural lifetime;" 37 that "(he) shall have the right to manage, control, use and enjoy said estate

apparently impatient with the situation which has apparently degenerated into a running battle between the administrators of the two estates to the common prejudice of all the heirs. 11.As earlier stated, the writer has taken the pain of suggesting these guidelines which may serve to guide the probate court as well as the parties towards expediting the winding up and closing of the estates and the distribution of the net estates to the instituted heirs and their successors duly entitled thereto. The probate court should exert all effort towards this desired objective pursuant to the mandate of our probate law, bearing in mind the Court's admonition in previous cases that "courts of first instance should exert themselves to close up estate within twelve months from the time they are presented, and they may refuse to allow any compensation to executors and administrators who do not actively labor to that end, and they may even adopt harsher measures." 46 Timeliness of appeals and imposition of thirty-one (31) additional docket fees Two appeals were docketed with this Court, as per the two records on appeal submitted (one with a green cover and the other with a yellow cover). As stated at the outset, these appeals involve basically the same primal issue raised in the petition for certiorari as to whether there still exists a separate estate of Linnie Jane Hodges which has to continue to be administered by respondent Magno. Considering the main opinion's ruling in the affirmative and that her estate and that of her husband (since they jointly comprise unliquidated community properties) must be administered conjointly by their respective administrators (PCIB and Magno), the said appeals (involving thirty-three different orders of the probate court approving sales contracts and other acts of administration executed and performed by respondent Magno on behalf of Linnie's estate) have been necessarily overruled by the Court's decision at bar. (a)The "priority question" raised by respondent Magno as to the patent failure of the two records on appeal to show on their face and state the material data that the appeals were timely taken within the 30-day reglementary period as required by Rule 41, section 6 of the Rules of Court, has been brushed aside by the main opinion with the statement that it is "not necessary to pass upon the timeliness of any of said appeals" since they "revolve around practically the same main issues and . . . it is admitted that some of them have been timely taken." 47 The main opinion thus proceeded with the determination of the thirty-three appealed orders despite the grave defect of the appellant PCIB's records on appeal and their failure to state the required material data showing the timeliness of the appeals.

Such disposition of the question of timeliness deemed as "mandatory and jurisdictional" in a number of cases merits the writer's concurrence in that the question raised has been subordinated to the paramount considerations of substantial justice and a "liberal interpretation of the rules" applied so as not to derogate and detract from the primary intent and purpose of the rules, viz "the proper and just determination of a litigation" 48 which calls for "adherence to a liberal construction of the procedural rules in order to attain their objective of substantial justice and of avoiding denials of substantial justice due to procedural technicalities." 49

and L-27896 and affirms the appealed orders of the probate court in cases L-27936-37. However, I wish to make one brief observation for the sake of accuracy. Regardless of whether or not C. N. Hodges was entitled to a legitime in his deceased wife's estate which question, still to be decided by the said probate court, may depend upon what is the law of Texas and upon its applicability in the present case the said estate consists of one-half, not one-fourth, of the conjugal properties. There is neither a minimum of onefourth nor a maximum beyond that. It is important to bear this in mind because the estate of Linnie Hodges consists of her share in the conjugal properties, is still under administration and until now has not been distributed by order of the court. The reference in both the main and separate opinions to a one-fourth portion of the conjugal properties as Linnie Hodges' minimum share is a misnomer, and is evidently meant only to indicate that if her husband should eventually be declared entitled to a legitime, then the disposition made by Linnie Hodges in favor of her collateral relatives would be valid only as to one-half of her share, or one-fourth of the conjugal properties, since the remainder, which constitutes such legitime, would necessarily go to her husband in absolute ownership, unburdened by any substitution, term or condition, resolutory or otherwise. And until the estate is finally settled and adjudicated to the heirs who may be found entitled to it, the administration must continue to cover Linnie's entire conjugal share.

Thus, the main opinion in consonance with the same paramount considerations of substantial justice has likewise overruled respondents' objection to petitioner's taking the recourse of "the present remedy of certiorari and prohibition" "despite the conceded availability of appeal" on the ground that "there is a common thread among the basic issues involved in all these thirty-three appeals (which) deal with practically the same basic issues that can be more expeditiously resolved or determined in a single special civil action. . ." 50 (b)Since the basic issues have been in effect resolved in the special civil action at bar (as above stated) with the dismissal of the petition by virtue of the Court's judgment as to the continued existence of a separate estate of Linnie Jane Hodges and the affirmance as a necessary consequence of the appealed orders approving and sanctioning respondent Magno's sales contracts and acts of administration, some doubt would arise as to the propriety of the main opinion requiring the payment by PCIB of thirty-one (31) additional appeal docket fees. This doubt is further enhanced by the question of whether it would make the cost of appeal unduly expensive or prohibitive by requiring the payment of a separate appeal docket fee for each incidental order questioned when the resolution of all such incidental questioned orders involve basically one and the same main issue (in this case, the existence of a separate estate of Linnie Jane Hodges) and can be more expeditiously resolved or determined in a single special civil action" (for which a single docket fee is required) as stated in the main opinion. 51 Considering the importance of the basic issues and the magnitude of the estates involved, however, the writer has pro hac vice given his concurrence to the assessment of the said thirty-one (31) additional appeal docket fees. MAKALINTAL, C .J ., concurring: I concur in the separate opinion of Justice Teehankee, which in turn agrees with the dispositive portion of the main opinion of Justice Barredo insofar as it dismisses the petition for certiorari and prohibition in Cases L-27860