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G.R. No.

L-770 April 27, 1948


80 Phil 353
ANGEL T. LIMJOCO, petitioner,
vs.
INTESTATE ESTATE OF PEDRO O. FRAGRANTE, deceased, respondent.
Angel Limjoco, Jr. and Delfin L. Gonzales for petitioner.
Bienvenido A. Tan for respondent.
HILADO, J .:
Under date of May 21, 1946, the Public Service Commission, through Deputy Commissioner Fidel
Ibaez, rendered its decision in case No. 4572 of Pedro O. Fragante, as applicant for a certificate of
public convenience to install, maintain and operate an ice plant in San Juan, Rizal, whereby said
commission held that the evidence therein showed that the public interest and convenience will be
promoted in a proper and suitable manner "by authorizing the operation and maintenance of another
ice plant of two and one-half (2-) tons in the municipality of San Juan; that the original applicant
Pedro O. Fragante was a Filipino Citizen at the time of his death; and that his intestate estate is
financially capable of maintaining the proposed service". The commission, therefore, overruled the
opposition filed in the case and ordered "that under the provisions of section 15 of Commonwealth
Act No. 146, as amended a certificate of public convenience be issued to the Intestate Estate of the
deceased Pedro Fragante, authorizing said Intestate Estate through its Special or Judicial
Administrator, appointed by the proper court of competent jurisdiction, to maintain and operate an
ice plant with a daily productive capacity of two and one-half (2-1/2) tons in the Municipality of San
Juan and to sell the ice produced from said plant in the said Municipality of San Juan and in the
Municipality of Mandaluyong, Rizal, and in Quezon City", subject to the conditions therein set forth in
detail (petitioner's brief, pp. 33-34).
Petitioner makes four assignments of error in his brief as follows:
1. The decision of the Public Service Commission is not in accordance with law.
2. The decision of the Public Service Commission is not reasonably supported by evidence.
3. The Public Service Commission erred in not giving petitioner and the Ice and Cold Storage
Industries of the Philippines, Inc., as existing operators, a reasonable opportunity to meet the
increased demand.
4. The decision of the Public Service Commission is an unwarranted departure from its
announced policy with respect to the establishment and operation of ice plant. (Pp. 1-2,
petitioner's brief.)
In his argument petitioner contends that it was error on the part of the commission to allow the
substitution of the legal representative of the estate of Pedro O. Fragante for the latter as party
applicant in the case then pending before the commission, and in subsequently granting to said
estate the certificate applied for, which is said to be in contravention of law.
If Pedro O. Fragante had not died, there can be no question that he would have had the right to
prosecute his application before the commission to its final conclusion. No one would have denied
him that right. As declared by the commission in its decision, he had invested in the ice plant in
question P 35,000, and from what the commission said regarding his other properties and business,
he would certainly have been financially able to maintain and operate said plant had he not died. His
transportation business alone was netting him about P1,440 a month. He was a Filipino citizen and
continued to be such till his demise. The commission declared in its decision, in view of the evidence
before it, that his estate was financially able to maintain and operate the ice plant. The aforesaid
right of Pedro O. Fragante to prosecute said application to its conclusion was one which by its nature
did not lapse through his death. Hence, it constitutes a part of the assets of his estate, for which a
right was property despite the possibility that in the end the commission might have denied
application, although under the facts of the case, the commission granted the application in view of
the financial ability of the estate to maintain and operate the ice plant. Petitioner, in his memorandum
of March 19, 1947, admits (page 3) that the certificate of public convenience once granted "as a rule,
should descend to his estate as an asset". Such certificate would certainly be property, and the right
to acquire such a certificate, by complying with the requisites of the law, belonged to the decedent in
his lifetime, and survived to his estate and judicial administrator after his death.
If Pedro O. Fragrante had in his lifetime secured an option to buy a piece of land and during the life
of the option he died, if the option had been given him in the ordinary course of business and not out
of special consideration for his person, there would be no doubt that said option and the right to
exercise it would have survived to his estate and legal representatives. In such a case there would
also be the possibility of failure to acquire the property should he or his estate or legal representative
fail to comply with the conditions of the option. In the case at bar Pedro O. Fragrante's undoubted
right to apply for and acquire the desired certificate of public convenience the evidence
established that the public needed the ice plant was under the law conditioned only upon the
requisite citizenship and economic ability to maintain and operate the service. Of course, such right
to acquire or obtain such certificate of public convenience was subject to failure to secure its
objective through nonfulfillment of the legal conditions, but the situation here is no different from the
legal standpoint from that of the option in the illustration just given.
Rule 88, section 2, provides that the executor or administrator may bring or defend actions, among
other cases, for the protection of the property or rights of the deceased which survive, and it says
that such actions may be brought or defended "in the right of the deceased".
Rule 82, section 1, paragraph (a), mentions among the duties of the executor or administrator, the
making of an inventory of all goods, chattels, rights, credits, and estate of the deceased which shall
come to his possession or knowledge, or to the possession of any other person for him.
In his commentaries on the Rules of Court (Volume II, 2nd ed., pages 366, 367) the present chief
Justice of this Court draws the following conclusion from the decisions cited by him:
Therefore, unless otherwise expressly provided by law, any action affecting the property
or rights (emphasis supplied) of a deceased person which may be brought by or against him
if he were alive, may likewise be instituted and prosecuted by or against the administrator,
unless the action is for recovery of money, debt or interest thereon, or unless, by its very
nature, it cannot survive, because death extinguishes the right . . . .
It is true that a proceeding upon the application for a certificate of public convenience before the
Public Service Commission is not an "action". But the foregoing provisions and citations go to prove
that the decedent's rights which by their nature are not extinguished by death go to make up a part
and parcel of the assets of his estate which, being placed under the control and management of the
executor or administrator, can not be exercised but by him in representation of the estate for the
benefit of the creditors, devisees or legatees, if any, and the heirs of the decedent. And if the right
involved happens to consist in the prosecution of an unfinished proceeding upon an application for a
certificate of public convenience of the deceased before the Public Service Commission, it is but
logical that the legal representative be empowered and entitled in behalf of the estate to make the
right effective in that proceeding.
Manresa (Vol. III, 6th ed., p. 11) says that No. 10 of article 334 and article 336 of the Civil Code,
respectively, consider as immovable and movable things rights which are not material. The same
eminent commentator says in the cited volume (p. 45) that article 336 of the Civil Code has been
deficiently drafted in that it is not sufficiently expressive of all incorporeal rights which are
also property for juridical purposes.
Corpus Juris (Vol. 50, p. 737) states that in the broad sense of the term, property includes, among
other things, "an option", and "the certificate of the railroad commission permitting the operation of a
bus line", and on page 748 of the same volume we read:
However, these terms (real property, as estate or interest) have also been declared to
include every species of title, inchoate or complete, and embrace rights which lie in contract,
whether executory or executed. (Emphasis supplied.)
Another important question raised by petitioner is whether the estate of Pedro O. Fragrante is a
"person" within the meaning of the Public Service Act.
Words and Phrases, First Series, (Vol. 6, p, 5325), states the following doctrine in the jurisdiction of
the State of Indiana:
As the estate of the decedent is in law regarded as a person, a forgery committed after the
death of the man whose name purports to be signed to the instrument may be prosecuted as
with the intent to defraud the estate. Billings vs. State, 107 Ind., 54, 55, 6 N. E. 914, 7 N. E.
763, 57 Am. Rep. 77.
The Supreme Court of Indiana in the decision cited above had before it a case of forgery committed
after the death of one Morgan for the purpose of defrauding his estate. The objection was urged that
the information did not aver that the forgery was committed with the intent to defraud any person.
The Court, per Elliott, J., disposed of this objection as follows:
. . . The reason advanced in support of this proposition is that the law does not regard the
estate of a decedent as a person. This intention (contention) cannot prevail. The estate of
the decedent is a person in legal contemplation. "The word "person" says Mr. Abbot, "in its
legal signification, is a generic term, and includes artificial as well as natural persons," 2 Abb.
Dict. 271; Douglas vs. Pacific, etc. Co., 4 Cal. 304; Planters', etc., Bank vs. Andrews, 8 Port.
(Ala.) 404. It said in another work that 'persons are of two kinds: natural and artificial. A
natural person is a human being. Artificial persons include (1) a collection or succession of
natural persons forming a corporation; (2) a collection of property to which the law attributes
the capacity of having rights and duties. The latter class of artificial persons is recognized
only to a limited extent in our law. "Examples are the estate of a bankrupt or deceased
person." 2 Rapalje & L. Law Dict. 954. Our own cases inferentially recognize the correctness
of the definition given by the authors from whom we have quoted, for they declare that it is
sufficient, in pleading a claim against a decedent's estate, to designate the defendant as the
estate of the deceased person, naming him. Ginn vs. Collins, 43 Ind. 271. Unless we accept
this definition as correct, there would be a failure of justice in cases where, as here, the
forgery is committed after the death of a person whose name is forged; and this is a result to
be avoided if it can be done consistent with principle. We perceive no difficulty in avoiding
such a result; for, to our minds, it seems reasonable that the estate of a decedent should be
regarded as an artificial person. It is the creation of law for the purpose of enabling a
disposition of the assets to be properly made, and, although natural persons as heirs,
devises, or creditors, have an interest in the property, the artificial creature is a distinct legal
entity. The interest which natural persons have in it is not complete until there has been a
due administration; and one who forges the name of the decedent to an instrument
purporting to be a promissory note must be regarded as having intended to defraud the
estate of the decedent, and not the natural persons having diverse interests in it, since ha
cannot be presumed to have known who those persons were, or what was the nature of their
respective interest. The fraudulent intent is against the artificial person, the estate and
not the natural persons who have direct or contingent interest in it. (107 Ind. 54, 55, 6 N.E.
914-915.)
In the instant case there would also be a failure of justice unless the estate of Pedro O. Fragrante is
considered a "person", for quashing of the proceedings for no other reason than his death would
entail prejudicial results to his investment amounting to P35,000.00 as found by the commission, not
counting the expenses and disbursements which the proceeding can be presumed to have
occasioned him during his lifetime, let alone those defrayed by the estate thereafter. In this
jurisdiction there are ample precedents to show that the estate of a deceased person is also
considered as having legal personality independent of their heirs. Among the most recent cases may
be mentioned that of "Estate of Mota vs. Concepcion, 56 Phil., 712, 717, wherein the principal
plaintiff was the estate of the deceased Lazaro Mota, and this Court gave judgment in favor of said
estate along with the other plaintiffs in these words:
. . . the judgment appealed from must be affirmed so far as it holds that defendants
Concepcion and Whitaker are indebted to he plaintiffs in the amount of P245,804.69 . . . .
Under the regime of the Civil Code and before the enactment of the Code of Civil Procedure, the
heirs of a deceased person were considered in contemplation of law as the continuation of his
personality by virtue of the provision of article 661 of the first Code that the heirs succeed to all the
rights and obligations of the decedent by the mere fact of his death. It was so held by this Court
in Barrios vs. Dolor, 2 Phil., 44, 46. However, after the enactment of the Code of Civil Procedure,
article 661 of the Civil Code was abrogated, as held in Suiliong & Co. vs. Chio-Taysan, 12 Phil., 13,
22. In that case, as well as in many others decided by this Court after the innovations introduced by
the Code of Civil Procedure in the matter of estates of deceased persons, it has been the constant
doctrine that it is the estate or the mass of property, rights and assets left by the decedent, instead of
the heirs directly, that becomes vested and charged with his rights and obligations which survive
after his demise.
The heirs were formerly considered as the continuation of the decedent's personality simply by legal
fiction, for they might not have been flesh and blood the reason was one in the nature of a legal
exigency derived from the principle that the heirs succeeded to the rights and obligations of the
decedent. Under the present legal system, such rights and obligations as survive after death have to
be exercised and fulfilled only by the estate of the deceased. And if the same legal fiction were not
indulged, there would be no juridical basis for the estate, represented by the executor or
administrator, to exercise those rights and to fulfill those obligations of the deceased. The reason
and purpose for indulging the fiction is identical and the same in both cases. This is why according to
the Supreme Court of Indiana in Billings vs. State, supra, citing 2 Rapalje & L. Dictionary, 954,
among the artificial persons recognized by law figures "a collection of property to which the law
attributes the capacity of having rights and duties", as for instance, the estate of a bankrupt or
deceased person.
Petitioner raises the decisive question of whether or not the estate of Pedro O. Fragrante can be
considered a "citizen of the Philippines" within the meaning of section 16 of the Public Service Act,
as amended, particularly the proviso thereof expressly and categorically limiting the power of the
commission to issue certificates of public convenience or certificates of public convenience and
necessity "only to citizens of the Philippines or of the United States or to corporations,
copartnerships, associations, or joint-stock companies constituted and organized under the laws of
the Philippines", and the further proviso that sixty per centum of the stock or paid-up capital of such
entities must belong entirely to citizens of the Philippines or of the United States.
Within the Philosophy of the present legal system, the underlying reason for the legal fiction by
which, for certain purposes, the estate of the deceased person is considered a "person" is the
avoidance of injustice or prejudice resulting from the impossibility of exercising such legal rights and
fulfilling such legal obligations of the decedent as survived after his death unless the fiction is
indulged. Substantially the same reason is assigned to support the same rule in the jurisdiction of
the State of Indiana, as announced in Billings vs. State, supra, when the Supreme Court of said
State said:
. . . It seems reasonable that the estate of a decedent should be regarded as an artificial
person. it is the creation of law for the purpose of enabling a disposition of the assets to be
properly made . . . .
Within the framework and principles of the constitution itself, to cite just one example, under the bill
of rights it seems clear that while the civil rights guaranteed therein in the majority of cases relate to
natural persons, the term "person" used in section 1 (1) and (2) must be deemed to include artificial
or juridical persons, for otherwise these latter would be without the constitutional guarantee against
being deprived of property without due process of law, or the immunity from unreasonable searches
and seizures. We take it that it was the intendment of the framers to include artificial or juridical, no
less than natural, persons in these constitutional immunities and in others of similar nature. Among
these artificial or juridical persons figure estates of deceased persons. Hence, we hold that within the
framework of the Constitution, the estate of Pedro O. Fragrante should be considered an artificial or
juridical person for the purposes of the settlement and distribution of his estate which, of course,
include the exercise during the judicial administration thereof of those rights and the fulfillment of
those obligations of his which survived after his death. One of those rights was the one involved in
his pending application before the Public Service Commission in the instant case, consisting in the
prosecution of said application to its final conclusion. As stated above, an injustice would ensue from
the opposite course.
How about the point of citizenship? If by legal fiction his personality is considered extended so that
any debts or obligations left by, and surviving, him may be paid, and any surviving rights may be
exercised for the benefit of his creditors and heirs, respectively, we find no sound and cogent reason
for denying the application of the same fiction to his citizenship, and for not considering it as likewise
extended for the purposes of the aforesaid unfinished proceeding before the Public Service
Commission. The outcome of said proceeding, if successful, would in the end inure to the benefit of
the same creditors and the heirs. Even in that event petitioner could not allege any prejudice in the
legal sense, any more than he could have done if Fragrante had lived longer and obtained the
desired certificate. The fiction of such extension of his citizenship is grounded upon the same
principle, and motivated by the same reason, as the fiction of the extension of personality. The fiction
is made necessary to avoid the injustice of subjecting his estate, creditors and heirs, solely by
reason of his death to the loss of the investment amounting to P35,000, which he has already made
in the ice plant, not counting the other expenses occasioned by the instant proceeding, from the
Public Service Commission of this Court.
We can perceive no valid reason for holding that within the intent of the constitution (Article IV), its
provisions on Philippine citizenship exclude the legal principle of extension above adverted to. If for
reasons already stated our law indulges the fiction of extension of personality, if for such reasons the
estate of Pedro O. Fragrante should be considered an artificial or juridical person herein, we can find
no justification for refusing to declare a like fiction as to the extension of his citizenship for the
purposes of this proceeding.
Pedro O. Fragrante was a Filipino citizen, and as such, if he had lived, in view of the evidence of
record, he would have obtained from the commission the certificate for which he was applying. The
situation has suffered but one change, and that is, his death. His estate was that of a Filipino citizen.
And its economic ability to appropriately and adequately operate and maintain the service of an ice
plant was the same that it received from the decedent himself. In the absence of a contrary showing,
which does not exist here, his heirs may be assumed to be also Filipino citizens; and if they are not,
there is the simple expedient of revoking the certificate or enjoining them from inheriting it.
Upon the whole, we are of the opinion that for the purposes of the prosecution of said case No. 4572
of the Public Service Commission to its final conclusion, both the personality and citizenship of
Pedro O. Fragrante must be deemed extended, within the meaning and intent of the Public Service
Act, as amended, in harmony with the constitution: it is so adjudged and decreed.
Decision affirmed, without costs. So ordered.
Moran, C.J., Pablo, Bengzon, Briones, Padilla and Tuason, JJ., concur.
Paras, J., I hereby certify that Mr. Justice Feria voted with the majority.

G.R. No. L-5064 February 27, 1953
92 Phil 721
BIENVENIDO A. IBARLE, plaintiff-appellant,
vs.
ESPERANZA M. PO, defendant-appellant.
Quirico del Mar for appellant.
Daniel P. Tumulak and Conchita F. Miel appellee.
TUASON, J .:
This action commenced in the Court of First Instance of Cebu to annul a deed of sale conveying to
the defendant, in consideration of P1,700, one undivided half of a parcel of land which previously
had been sold, along with the other half, by the same vendor to the plaintiff's grantors. judgment was
against the plaintiff.
The case was submitted for decision upon an agreed statement of facts, the pertinent parts of which
are thus summarized in the appealed decision:
1st. That Leonard j. Winstanley and Catalina Navarro were husband and wife, the former
having died on June 6, 1946 leaving heir the surviving spouse and some minor children;
2nd. hat upon the death of L.J. Winstanley, he left a parcel of land described under
Transfer Certificate of title No. 2391 of the Registry of Deeds of the Province of Cebu;
3rd. That the above mentioned property was a conjugal property;
4th. That on April 15, 1946, the surviving spouse Catalina Navarro Vda. de Winstanley
sold the entire parcel of land to the spouses Maria Canoy, alleging among other things, that
she needed money for the support of her children;
5th. That on May 24, 1947, the spouses Maria Canoy and Roberto Canoy sold the same
parcel of land to the plaintiff in this case named Bienvenido A. Ebarle;
6th. That the two deeds of sale referred to above were not registered and have never
been registered up to the date;
7th. That on January 17, 1948 surviving spouse Catalina Navarro Vda. de Winstanley,
after her appointment as guardian of her children by this court (Special proceeding no. 212-
R) sold one-half of the land mentioned above to Esperanza M. Po, defendant in the instant
case, which portion belongs to the children of the above named spouses.
As stated by the trial Judge, the sole question for determination is the validity of the sale to
Esperanza M. Po, the last purchaser. This question in turn depends upon the validity of the prior ale
to Maria Canoy and Roberto Canoy.
Article 657 of the old Civil Code provides: "The rights to the succession of a person are transmitted
from the moment of his death." in a slightly different language, this article is incorporated in the new
Civil Code as article 777.
Manresa, commending on article 657 of the Civil Code of Spain, says:
The moment of death is the determining factor when the heirs acquire a definite right to the
inheritance, whether such right be pure or contingent. It is immaterial whether a short or long
period of time lapses between the death of the predecessor and the entry into possession of
the property of the inheritance because the right is always deemed to be retroactive from the
moment of death. (5 Manresa, 317.)
The above provision and comment make it clear that when Catalina Navarro Vda. de Winstanley
sold the entire parcel to the Canoy spouses, one-half of it already belonged to the seller's children.
No formal or judicial declaration being needed to confirm the children's title, it follows that the first
sale was null and void in so far as it included the children's share.
On the other hand, the sale to the defendant having been made by authority of the competent court
was undeniably legal and effective. The fact that it has not been recorded is of no consequence. If
registration were necessary, still the non-registration would not avail the plaintiff because it was due
to no other cause than his own opposition.
The decision will be affirmed subject to the reservation, made in said decision, of the right of the
plaintitff and/or the Canoy spouses to bring such action against Catalina Navarro Vda. de Winstanley
as may be appropriate for such damages as they may have incurred by reason of the voiding of the
sale in their favor.
Paras, C.J., Feria, Pablo, Bengzon, Padilla, Montemayor, Reyes, Jugo, Bautista Angelo and
Labrador, JJ.,concur.

G.R. No. L-43082 June 18, 1937
64 Phil 353
PABLO LORENZO, as trustee of the estate of Thomas Hanley, deceased, plaintiff-appellant,
vs.
JUAN POSADAS, JR., Collector of Internal Revenue, defendant-appellant.
Pablo Lorenzo and Delfin Joven for plaintiff-appellant.
Office of the Solicitor-General Hilado for defendant-appellant.
LAUREL, J .:
On October 4, 1932, the plaintiff Pablo Lorenzo, in his capacity as trustee of the estate of Thomas
Hanley, deceased, brought this action in the Court of First Instance of Zamboanga against the
defendant, Juan Posadas, Jr., then the Collector of Internal Revenue, for the refund of the amount of
P2,052.74, paid by the plaintiff as inheritance tax on the estate of the deceased, and for the
collection of interst thereon at the rate of 6 per cent per annum, computed from September 15, 1932,
the date when the aforesaid tax was [paid under protest. The defendant set up a counterclaim for
P1,191.27 alleged to be interest due on the tax in question and which was not included in the
original assessment. From the decision of the Court of First Instance of Zamboanga dismissing both
the plaintiff's complaint and the defendant's counterclaim, both parties appealed to this court.
It appears that on May 27, 1922, one Thomas Hanley died in Zamboanga, Zamboanga, leaving a
will (Exhibit 5) and considerable amount of real and personal properties. On june 14, 1922,
proceedings for the probate of his will and the settlement and distribution of his estate were begun in
the Court of First Instance of Zamboanga. The will was admitted to probate. Said will provides,
among other things, as follows:
4. I direct that any money left by me be given to my nephew Matthew Hanley.
5. I direct that all real estate owned by me at the time of my death be not sold or otherwise
disposed of for a period of ten (10) years after my death, and that the same be handled and
managed by the executors, and proceeds thereof to be given to my nephew, Matthew
Hanley, at Castlemore, Ballaghaderine, County of Rosecommon, Ireland, and that he be
directed that the same be used only for the education of my brother's children and their
descendants.
6. I direct that ten (10) years after my death my property be given to the above mentioned
Matthew Hanley to be disposed of in the way he thinks most advantageous.
x x x x x x x x x
8. I state at this time I have one brother living, named Malachi Hanley, and that my nephew,
Matthew Hanley, is a son of my said brother, Malachi Hanley.
The Court of First Instance of Zamboanga considered it proper for the best interests of ther estate to
appoint a trustee to administer the real properties which, under the will, were to pass to Matthew
Hanley ten years after the two executors named in the will, was, on March 8, 1924, appointed
trustee. Moore took his oath of office and gave bond on March 10, 1924. He acted as trustee until
February 29, 1932, when he resigned and the plaintiff herein was appointed in his stead.
During the incumbency of the plaintiff as trustee, the defendant Collector of Internal Revenue,
alleging that the estate left by the deceased at the time of his death consisted of realty valued at
P27,920 and personalty valued at P1,465, and allowing a deduction of P480.81, assessed against
the estate an inheritance tax in the amount of P1,434.24 which, together with the penalties for
deliquency in payment consisting of a 1 per cent monthly interest from July 1, 1931 to the date of
payment and a surcharge of 25 per cent on the tax, amounted to P2,052.74. On March 15, 1932, the
defendant filed a motion in the testamentary proceedings pending before the Court of First Instance
of Zamboanga (Special proceedings No. 302) praying that the trustee, plaintiff herein, be ordered to
pay to the Government the said sum of P2,052.74. The motion was granted. On September 15,
1932, the plaintiff paid said amount under protest, notifying the defendant at the same time that
unless the amount was promptly refunded suit would be brought for its recovery. The defendant
overruled the plaintiff's protest and refused to refund the said amount hausted, plaintiff went to court
with the result herein above indicated.
In his appeal, plaintiff contends that the lower court erred:
I. In holding that the real property of Thomas Hanley, deceased, passed to his instituted heir,
Matthew Hanley, from the moment of the death of the former, and that from the time, the
latter became the owner thereof.
II. In holding, in effect, that there was deliquency in the payment of inheritance tax due on the
estate of said deceased.
III. In holding that the inheritance tax in question be based upon the value of the estate upon
the death of the testator, and not, as it should have been held, upon the value thereof at the
expiration of the period of ten years after which, according to the testator's will, the property
could be and was to be delivered to the instituted heir.
IV. In not allowing as lawful deductions, in the determination of the net amount of the estate
subject to said tax, the amounts allowed by the court as compensation to the "trustees" and
paid to them from the decedent's estate.
V. In not rendering judgment in favor of the plaintiff and in denying his motion for new trial.
The defendant-appellant contradicts the theories of the plaintiff and assigns the following error
besides:
The lower court erred in not ordering the plaintiff to pay to the defendant the sum of
P1,191.27, representing part of the interest at the rate of 1 per cent per month from April 10,
1924, to June 30, 1931, which the plaintiff had failed to pay on the inheritance tax assessed
by the defendant against the estate of Thomas Hanley.
The following are the principal questions to be decided by this court in this appeal: (a) When does
the inheritance tax accrue and when must it be satisfied? (b) Should the inheritance tax be
computed on the basis of the value of the estate at the time of the testator's death, or on its value ten
years later? (c) In determining the net value of the estate subject to tax, is it proper to deduct the
compensation due to trustees? (d) What law governs the case at bar? Should the provisions of Act
No. 3606 favorable to the tax-payer be given retroactive effect? (e) Has there been deliquency in the
payment of the inheritance tax? If so, should the additional interest claimed by the defendant in his
appeal be paid by the estate? Other points of incidental importance, raised by the parties in their
briefs, will be touched upon in the course of this opinion.
(a) The accrual of the inheritance tax is distinct from the obligation to pay the same. Section 1536 as
amended, of the Administrative Code, imposes the tax upon "every transmission by virtue of
inheritance, devise, bequest, giftmortis causa, or advance in anticipation of inheritance,devise, or
bequest." The tax therefore is upon transmission or the transfer or devolution of property of a
decedent, made effective by his death. (61 C. J., p. 1592.) It is in reality an excise or privilege tax
imposed on the right to succeed to, receive, or take property by or under a will or the intestacy law,
or deed, grant, or gift to become operative at or after death. Acording to article 657 of the Civil Code,
"the rights to the succession of a person are transmitted from the moment of his death." "In other
words", said Arellano, C. J., ". . . the heirs succeed immediately to all of the property of the deceased
ancestor. The property belongs to the heirs at the moment of the death of the ancestor as
completely as if the ancestor had executed and delivered to them a deed for the same before his
death." (Bondad vs. Bondad, 34 Phil., 232. See also, Mijares vs. Nery, 3 Phil., 195; Suilong & Co.,
vs. Chio-Taysan, 12 Phil., 13; Lubrico vs. Arbado, 12 Phil., 391; Innocencio vs. Gat-Pandan, 14
Phil., 491; Aliasas vs.Alcantara, 16 Phil., 489; Ilustre vs. Alaras Frondosa, 17 Phil., 321; Malahacan
vs. Ignacio, 19 Phil., 434; Bowa vs. Briones, 38 Phil., 27; Osario vs. Osario & Yuchausti Steamship
Co., 41 Phil., 531; Fule vs. Fule, 46 Phil., 317; Dais vs. Court of First Instance of Capiz, 51 Phil.,
396; Baun vs. Heirs of Baun, 53 Phil., 654.) Plaintiff, however, asserts that while article 657 of the
Civil Code is applicable to testate as well as intestate succession, it operates only in so far as forced
heirs are concerned. But the language of article 657 of the Civil Code is broad and makes no
distinction between different classes of heirs. That article does not speak of forced heirs; it does not
even use the word "heir". It speaks of the rights of succession and the transmission thereof from the
moment of death. The provision of section 625 of the Code of Civil Procedure regarding the
authentication and probate of a will as a necessary condition to effect transmission of property does
not affect the general rule laid down in article 657 of the Civil Code. The authentication of a will
implies its due execution but once probated and allowed the transmission is effective as of the death
of the testator in accordance with article 657 of the Civil Code. Whatever may be the time when
actual transmission of the inheritance takes place, succession takes place in any event at the
moment of the decedent's death. The time when the heirs legally succeed to the inheritance may
differ from the time when the heirs actually receive such inheritance. "Poco importa", says Manresa
commenting on article 657 of the Civil Code, "que desde el falleimiento del causante, hasta que el
heredero o legatario entre en posesion de los bienes de la herencia o del legado, transcurra mucho
o poco tiempo, pues la adquisicion ha de retrotraerse al momento de la muerte, y asi lo ordena el
articulo 989, que debe considerarse como complemento del presente." (5 Manresa, 305; see also,
art. 440, par. 1, Civil Code.) Thomas Hanley having died on May 27, 1922, the inheritance tax
accrued as of the date.
From the fact, however, that Thomas Hanley died on May 27, 1922, it does not follow that the
obligation to pay the tax arose as of the date. The time for the payment on inheritance tax is clearly
fixed by section 1544 of the Revised Administrative Code as amended by Act No. 3031, in relation to
section 1543 of the same Code. The two sections follow:
SEC. 1543. Exemption of certain acquisitions and transmissions. The following shall not
be taxed:
(a) The merger of the usufruct in the owner of the naked title.
(b) The transmission or delivery of the inheritance or legacy by the fiduciary heir or
legatee to the trustees.
(c) The transmission from the first heir, legatee, or donee in favor of another
beneficiary, in accordance with the desire of the predecessor.
In the last two cases, if the scale of taxation appropriate to the new beneficiary is greater
than that paid by the first, the former must pay the difference.
SEC. 1544. When tax to be paid. The tax fixed in this article shall be paid:
(a) In the second and third cases of the next preceding section, before entrance into
possession of the property.
(b) In other cases, within the six months subsequent to the death of the predecessor;
but if judicial testamentary or intestate proceedings shall be instituted prior to the
expiration of said period, the payment shall be made by the executor or administrator
before delivering to each beneficiary his share.
If the tax is not paid within the time hereinbefore prescribed, interest at the rate of twelve per
centum per annum shall be added as part of the tax; and to the tax and interest due and
unpaid within ten days after the date of notice and demand thereof by the collector, there
shall be further added a surcharge of twenty-five per centum.
A certified of all letters testamentary or of admisitration shall be furnished the Collector of
Internal Revenue by the Clerk of Court within thirty days after their issuance.
It should be observed in passing that the word "trustee", appearing in subsection (b) of section 1543,
should read "fideicommissary" or "cestui que trust". There was an obvious mistake in translation
from the Spanish to the English version.
The instant case does fall under subsection (a), but under subsection (b), of section 1544 above-
quoted, as there is here no fiduciary heirs, first heirs, legatee or donee. Under the subsection, the
tax should have been paid before the delivery of the properties in question to P. J. M. Moore as
trustee on March 10, 1924.
(b) The plaintiff contends that the estate of Thomas Hanley, in so far as the real properties are
concerned, did not and could not legally pass to the instituted heir, Matthew Hanley, until after the
expiration of ten years from the death of the testator on May 27, 1922 and, that the inheritance tax
should be based on the value of the estate in 1932, or ten years after the testator's death. The
plaintiff introduced evidence tending to show that in 1932 the real properties in question had a
reasonable value of only P5,787. This amount added to the value of the personal property left by the
deceased, which the plaintiff admits is P1,465, would generate an inheritance tax which, excluding
deductions, interest and surcharge, would amount only to about P169.52.
If death is the generating source from which the power of the estate to impose inheritance taxes
takes its being and if, upon the death of the decedent, succession takes place and the right of the
estate to tax vests instantly, the tax should be measured by the vlaue of the estate as it stood at the
time of the decedent's death, regardless of any subsequent contingency value of any subsequent
increase or decrease in value. (61 C. J., pp. 1692, 1693; 26 R. C. L., p. 232; Blakemore and
Bancroft, Inheritance Taxes, p. 137. See also Knowlton vs. Moore, 178 U.S., 41; 20 Sup. Ct. Rep.,
747; 44 Law. ed., 969.) "The right of the state to an inheritance tax accrues at the moment of death,
and hence is ordinarily measured as to any beneficiary by the value at that time of such property as
passes to him. Subsequent appreciation or depriciation is immaterial." (Ross, Inheritance Taxation,
p. 72.)
Our attention is directed to the statement of the rule in Cyclopedia of Law of and Procedure (vol. 37,
pp. 1574, 1575) that, in the case of contingent remainders, taxation is postponed until the estate
vests in possession or the contingency is settled. This rule was formerly followed in New York and
has been adopted in Illinois, Minnesota, Massachusetts, Ohio, Pennsylvania and Wisconsin. This
rule, horever, is by no means entirely satisfactory either to the estate or to those interested in the
property (26 R. C. L., p. 231.). Realizing, perhaps, the defects of its anterior system, we find upon
examination of cases and authorities that New York has varied and now requires the immediate
appraisal of the postponed estate at its clear market value and the payment forthwith of the tax on its
out of the corpus of the estate transferred. (In re Vanderbilt, 172 N. Y., 69; 69 N. E., 782; In
re Huber, 86 N. Y. App. Div., 458; 83 N. Y. Supp., 769; Estate of Tracy, 179 N. Y., 501; 72 N. Y.,
519; Estate of Brez, 172 N. Y., 609; 64 N. E., 958; Estate of Post, 85 App. Div., 611; 82 N. Y. Supp.,
1079. Vide also, Saltoun vs. Lord Advocate, 1 Peter. Sc. App., 970; 3 Macq. H. L., 659; 23 Eng. Rul.
Cas., 888.) California adheres to this new rule (Stats. 1905, sec. 5, p. 343).
But whatever may be the rule in other jurisdictions, we hold that a transmission by inheritance is
taxable at the time of the predecessor's death, notwithstanding the postponement of the actual
possession or enjoyment of the estate by the beneficiary, and the tax measured by the value of the
property transmitted at that time regardless of its appreciation or depreciation.
(c) Certain items are required by law to be deducted from the appraised gross in arriving at the net
value of the estate on which the inheritance tax is to be computed (sec. 1539, Revised
Administrative Code). In the case at bar, the defendant and the trial court allowed a deduction of
only P480.81. This sum represents the expenses and disbursements of the executors until March
10, 1924, among which were their fees and the proven debts of the deceased. The plaintiff contends
that the compensation and fees of the trustees, which aggregate P1,187.28 (Exhibits C, AA, EE, PP,
HH, JJ, LL, NN, OO), should also be deducted under section 1539 of the Revised Administrative
Code which provides, in part, as follows: "In order to determine the net sum which must bear the tax,
when an inheritance is concerned, there shall be deducted, in case of a resident, . . . the judicial
expenses of the testamentary or intestate proceedings, . . . ."
A trustee, no doubt, is entitled to receive a fair compensation for his services (Barney vs. Saunders,
16 How., 535; 14 Law. ed., 1047). But from this it does not follow that the compensation due him
may lawfully be deducted in arriving at the net value of the estate subject to tax. There is no statute
in the Philippines which requires trustees' commissions to be deducted in determining the net value
of the estate subject to inheritance tax (61 C. J., p. 1705). Furthermore, though a testamentary trust
has been created, it does not appear that the testator intended that the duties of his executors and
trustees should be separated. (Ibid.; In re Vanneck's Estate, 161 N. Y. Supp., 893; 175 App. Div.,
363; In re Collard's Estate, 161 N. Y. Supp., 455.) On the contrary, in paragraph 5 of his will, the
testator expressed the desire that his real estate be handled and managed by his executors until the
expiration of the period of ten years therein provided. Judicial expenses are expenses of
administration (61 C. J., p. 1705) but, in State vs. Hennepin County Probate Court (112 N. W., 878;
101 Minn., 485), it was said: ". . . The compensation of a trustee, earned, not in the administration of
the estate, but in the management thereof for the benefit of the legatees or devises, does not come
properly within the class or reason for exempting administration expenses. . . . Service rendered in
that behalf have no reference to closing the estate for the purpose of a distribution thereof to those
entitled to it, and are not required or essential to the perfection of the rights of the heirs or legatees. .
. . Trusts . . . of the character of that here before the court, are created for the the benefit of those to
whom the property ultimately passes, are of voluntary creation, and intended for the preservation of
the estate. No sound reason is given to support the contention that such expenses should be taken
into consideration in fixing the value of the estate for the purpose of this tax."
(d) The defendant levied and assessed the inheritance tax due from the estate of Thomas Hanley
under the provisions of section 1544 of the Revised Administrative Code, as amended by section 3
of Act No. 3606. But Act No. 3606 went into effect on January 1, 1930. It, therefore, was not the law
in force when the testator died on May 27, 1922. The law at the time was section 1544 above-
mentioned, as amended by Act No. 3031, which took effect on March 9, 1922.
It is well-settled that inheritance taxation is governed by the statute in force at the time of the death
of the decedent (26 R. C. L., p. 206; 4 Cooley on Taxation, 4th ed., p. 3461). The taxpayer can not
foresee and ought not to be required to guess the outcome of pending measures. Of course, a tax
statute may be made retroactive in its operation. Liability for taxes under retroactive legislation has
been "one of the incidents of social life." (Seattle vs. Kelleher, 195 U. S., 360; 49 Law. ed., 232 Sup.
Ct. Rep., 44.) But legislative intent that a tax statute should operate retroactively should be perfectly
clear. (Scwab vs. Doyle, 42 Sup. Ct. Rep., 491; Smietanka vs. First Trust & Savings Bank, 257 U.
S., 602; Stockdale vs. Insurance Co., 20 Wall., 323; Lunch vs. Turrish, 247 U. S., 221.) "A statute
should be considered as prospective in its operation, whether it enacts, amends, or repeals an
inheritance tax, unless the language of the statute clearly demands or expresses that it shall have a
retroactive effect, . . . ." (61 C. J., P. 1602.) Though the last paragraph of section 5 of Regulations
No. 65 of the Department of Finance makes section 3 of Act No. 3606, amending section 1544 of the
Revised Administrative Code, applicable to all estates the inheritance taxes due from which have not
been paid, Act No. 3606 itself contains no provisions indicating legislative intent to give it retroactive
effect. No such effect can begiven the statute by this court.
The defendant Collector of Internal Revenue maintains, however, that certain provisions of Act No.
3606 are more favorable to the taxpayer than those of Act No. 3031, that said provisions are penal in
nature and, therefore, should operate retroactively in conformity with the provisions of article 22 of
the Revised Penal Code. This is the reason why he applied Act No. 3606 instead of Act No. 3031.
Indeed, under Act No. 3606, (1) the surcharge of 25 per cent is based on the tax only, instead of on
both the tax and the interest, as provided for in Act No. 3031, and (2) the taxpayer is allowed twenty
days from notice and demand by rthe Collector of Internal Revenue within which to pay the tax,
instead of ten days only as required by the old law.
Properly speaking, a statute is penal when it imposes punishment for an offense committed against
the state which, under the Constitution, the Executive has the power to pardon. In common use,
however, this sense has been enlarged to include within the term "penal statutes" all status which
command or prohibit certain acts, and establish penalties for their violation, and even those which,
without expressly prohibiting certain acts, impose a penalty upon their commission (59 C. J., p.
1110). Revenue laws, generally, which impose taxes collected by the means ordinarily resorted to
for the collection of taxes are not classed as penal laws, although there are authorities to the
contrary. (See Sutherland, Statutory Construction, 361; Twine Co. vs. Worthington, 141 U. S., 468;
12 Sup. Ct., 55; Rice vs. U. S., 4 C. C. A., 104; 53 Fed., 910; Com. vs. Standard Oil Co., 101 Pa. St.,
150; State vs. Wheeler, 44 P., 430; 25 Nev. 143.) Article 22 of the Revised Penal Code is not
applicable to the case at bar, and in the absence of clear legislative intent, we cannot give Act No.
3606 a retroactive effect.
(e) The plaintiff correctly states that the liability to pay a tax may arise at a certain time and the tax
may be paid within another given time. As stated by this court, "the mere failure to pay one's tax
does not render one delinqent until and unless the entire period has eplased within which the
taxpayer is authorized by law to make such payment without being subjected to the payment of
penalties for fasilure to pay his taxes within the prescribed period." (U. S. vs. Labadan, 26 Phil.,
239.)
The defendant maintains that it was the duty of the executor to pay the inheritance tax before the
delivery of the decedent's property to the trustee. Stated otherwise, the defendant contends that
delivery to the trustee was delivery to the cestui que trust, the beneficiery in this case, within the
meaning of the first paragraph of subsection (b) of section 1544 of the Revised Administrative Code.
This contention is well taken and is sustained. The appointment of P. J. M. Moore as trustee was
made by the trial court in conformity with the wishes of the testator as expressed in his will. It is true
that the word "trust" is not mentioned or used in the will but the intention to create one is clear. No
particular or technical words are required to create a testamentary trust (69 C. J., p. 711). The words
"trust" and "trustee", though apt for the purpose, are not necessary. In fact, the use of these two
words is not conclusive on the question that a trust is created (69 C. J., p. 714). "To create a trust by
will the testator must indicate in the will his intention so to do by using language sufficient to
separate the legal from the equitable estate, and with sufficient certainty designate the beneficiaries,
their interest in the ttrust, the purpose or object of the trust, and the property or subject matter
thereof. Stated otherwise, to constitute a valid testamentary trust there must be a concurrence of
three circumstances: (1) Sufficient words to raise a trust; (2) a definite subject; (3) a certain or
ascertain object; statutes in some jurisdictions expressly or in effect so providing." (69 C. J., pp.
705,706.) There is no doubt that the testator intended to create a trust. He ordered in his will that
certain of his properties be kept together undisposed during a fixed period, for a stated purpose. The
probate court certainly exercised sound judgment in appointment a trustee to carry into effect the
provisions of the will (see sec. 582, Code of Civil Procedure).
P. J. M. Moore became trustee on March 10, 1924. On that date trust estate vested in him (sec. 582
in relation to sec. 590, Code of Civil Procedure). The mere fact that the estate of the deceased was
placed in trust did not remove it from the operation of our inheritance tax laws or exempt it from the
payment of the inheritance tax. The corresponding inheritance tax should have been paid on or
before March 10, 1924, to escape the penalties of the laws. This is so for the reason already stated
that the delivery of the estate to the trustee was in esse delivery of the same estate to the cestui que
trust, the beneficiary in this case. A trustee is but an instrument or agent for thecestui que
trust (Shelton vs. King, 299 U. S., 90; 33 Sup. Ct. Rep., 689; 57 Law. ed., 1086). When Moore
accepted the trust and took possesson of the trust estate he thereby admitted that the estate
belonged not to him but to hiscestui que trust (Tolentino vs. Vitug, 39 Phil.,126, cited in 65 C. J., p.
692, n. 63). He did not acquire any beneficial interest in the estate. He took such legal estate only as
the proper execution of the trust required (65 C. J., p. 528) and, his estate ceased upon the
fulfillment of the testator's wishes. The estate then vested absolutely in the beneficiary (65 C. J., p.
542).
The highest considerations of public policy also justify the conclusion we have reached. Were we to
hold that the payment of the tax could be postponed or delayed by the creation of a trust of the type
at hand, the result would be plainly disastrous. Testators may provide, as Thomas Hanley has
provided, that their estates be not delivered to their beneficiaries until after the lapse of a certain
period of time. In the case at bar, the period is ten years. In other cases, the trust may last for fifty
years, or for a longer period which does not offend the rule against petuities. The collection of the tax
would then be left to the will of a private individual. The mere suggestion of this result is a sufficient
warning against the accpetance of the essential to the very exeistence of government. (Dobbins vs.
Erie Country, 16 Pet., 435; 10 Law. ed., 1022; Kirkland vs. Hotchkiss, 100 U. S., 491; 25 Law. ed.,
558; Lane County vs. Oregon, 7 Wall., 71; 19 Law. ed., 101; Union Refrigerator Transit Co. vs.
Kentucky, 199 U. S., 194; 26 Sup. Ct. Rep., 36; 50 Law. ed., 150; Charles River Bridge vs. Warren
Bridge, 11 Pet., 420; 9 Law. ed., 773.) The obligation to pay taxes rests not upon the privileges
enjoyed by, or the protection afforded to, a citizen by the government but upon the necessity of
money for the support of the state (Dobbins vs. Erie Country, supra). For this reason, no one is
allowed to object to or resist the payment of taxes solely because no personal benefit to him can be
pointed out. (Thomas vs. Gay, 169 U. S., 264; 18 Sup. Ct. Rep., 340; 43 Law. ed., 740.) While
courts will not enlarge, by construction, the government's power of taxation (Bromley vs. McCaughn,
280 U. S., 124; 74 Law. ed., 226; 50 Sup. Ct. Rep., 46) they also will not place upon tax laws so
loose a construction as to permit evasions on merely fanciful and insubstantial distictions. (U. S. vs.
Watts, 1 Bond., 580; Fed. Cas. No. 16,653; U. S. vs. Wigglesirth, 2 Story, 369; Fed. Cas. No.
16,690, followed in Froelich & Kuttner vs. Collector of Customs, 18 Phil., 461, 481; Castle Bros.,
Wolf & Sons vs. McCoy, 21 Phil., 300; Muoz & Co. vs. Hord, 12 Phil., 624; Hongkong & Shanghai
Banking Corporation vs. Rafferty, 39 Phil., 145; Luzon Stevedoring Co. vs. Trinidad, 43 Phil., 803.)
When proper, a tax statute should be construed to avoid the possibilities of tax evasion. Construed
this way, the statute, without resulting in injustice to the taxpayer, becomes fair to the government.
That taxes must be collected promptly is a policy deeply intrenched in our tax system. Thus, no court
is allowed to grant injunction to restrain the collection of any internal revenue tax ( sec. 1578,
Revised Administrative Code; Sarasola vs. Trinidad, 40 Phil., 252). In the case of Lim Co Chui vs.
Posadas (47 Phil., 461), this court had occassion to demonstrate trenchment adherence to this
policy of the law. It held that "the fact that on account of riots directed against the Chinese on
October 18, 19, and 20, 1924, they were prevented from praying their internal revenue taxes on time
and by mutual agreement closed their homes and stores and remained therein, does not authorize
the Collector of Internal Revenue to extend the time prescribed for the payment of the taxes or to
accept them without the additional penalty of twenty five per cent." (Syllabus, No. 3.)
". . . It is of the utmost importance," said the Supreme Court of the United States, ". . . that the
modes adopted to enforce the taxes levied should be interfered with as little as possible. Any delay
in the proceedings of the officers, upon whom the duty is developed of collecting the taxes, may
derange the operations of government, and thereby, cause serious detriment to the public." (Dows
vs. Chicago, 11 Wall., 108; 20 Law. ed., 65, 66; Churchill and Tait vs. Rafferty, 32 Phil., 580.)
It results that the estate which plaintiff represents has been delinquent in the payment of inheritance
tax and, therefore, liable for the payment of interest and surcharge provided by law in such cases.
The delinquency in payment occurred on March 10, 1924, the date when Moore became trustee.
The interest due should be computed from that date and it is error on the part of the defendant to
compute it one month later. The provisions cases is mandatory (see and cf. Lim Co Chui vs.
Posadas, supra), and neither the Collector of Internal Revenuen or this court may remit or decrease
such interest, no matter how heavily it may burden the taxpayer.
To the tax and interest due and unpaid within ten days after the date of notice and demand thereof
by the Collector of Internal Revenue, a surcharge of twenty-five per centum should be added (sec.
1544, subsec. (b), par. 2, Revised Administrative Code). Demand was made by the Deputy Collector
of Internal Revenue upon Moore in a communiction dated October 16, 1931 (Exhibit 29). The date
fixed for the payment of the tax and interest was November 30, 1931. November 30 being an official
holiday, the tenth day fell on December 1, 1931. As the tax and interest due were not paid on that
date, the estate became liable for the payment of the surcharge.
In view of the foregoing, it becomes unnecessary for us to discuss the fifth error assigned by the
plaintiff in his brief.
We shall now compute the tax, together with the interest and surcharge due from the estate of
Thomas Hanley inaccordance with the conclusions we have reached.
At the time of his death, the deceased left real properties valued at P27,920 and personal properties
worth P1,465, or a total of P29,385. Deducting from this amount the sum of P480.81, representing
allowable deductions under secftion 1539 of the Revised Administrative Code, we have P28,904.19
as the net value of the estate subject to inheritance tax.
The primary tax, according to section 1536, subsection (c), of the Revised Administrative Code,
should be imposed at the rate of one per centum upon the first ten thousand pesos and two per
centum upon the amount by which the share exceed thirty thousand pesos, plus an additional two
hundred per centum. One per centum of ten thousand pesos is P100. Two per centum of
P18,904.19 is P378.08. Adding to these two sums an additional two hundred per centum, or
P965.16, we have as primary tax, correctly computed by the defendant, the sum of P1,434.24.
To the primary tax thus computed should be added the sums collectible under section 1544 of the
Revised Administrative Code. First should be added P1,465.31 which stands for interest at the rate
of twelve per centum per annum from March 10, 1924, the date of delinquency, to September 15,
1932, the date of payment under protest, a period covering 8 years, 6 months and 5 days. To the tax
and interest thus computed should be added the sum of P724.88, representing a surhcarge of 25
per cent on both the tax and interest, and also P10, the compromise sum fixed by the defendant
(Exh. 29), giving a grand total of P3,634.43.
As the plaintiff has already paid the sum of P2,052.74, only the sums of P1,581.69 is legally due
from the estate. This last sum is P390.42 more than the amount demanded by the defendant in his
counterclaim. But, as we cannot give the defendant more than what he claims, we must hold that the
plaintiff is liable only in the sum of P1,191.27 the amount stated in the counterclaim.
The judgment of the lower court is accordingly modified, with costs against the plaintiff in both
instances. So ordered.
Avancea, C.J., Abad Santos, Imperial, Diaz and Concepcion, JJ., concur.
Villa-Real, J., concurs.

G.R. No. L-4067 November 29, 1951
90 Phil 489
In the Matter of the will of ANTERO MERCADO, deceased. ROSARIO GARCIA, petitioner,
vs.
JULIANA LACUESTA, ET AL., respondents.
Elviro L. Peralta and Hermenegildo A. Prieto for petitioner.
Faustino B. Tobia, Juan I. Ines and Federico Tacason for respondents.
PARAS, C.J .:
This is an appeal from a decision of the Court of Appeals disallowing the will of Antero Mercado
dated January 3, 1943. The will is written in the Ilocano dialect and contains the following attestation
clause:
We, the undersigned, by these presents to declare that the foregoing testament of Antero
Mercado was signed by himself and also by us below his name and of this attestation clause
and that of the left margin of the three pages thereof. Page three the continuation of this
attestation clause; this will is written in Ilocano dialect which is spoken and understood by the
testator, and it bears the corresponding number in letter which compose of three pages and
all them were signed in the presence of the testator and witnesses, and the witnesses in the
presence of the testator and all and each and every one of us witnesses.
In testimony, whereof, we sign this statement, this the third day of January, one thousand
nine hundred forty three, (1943) A.D.
(Sgd.) NUMERIANO EVANGELISTA (Sgd.) "ROSENDA CORTES
(Sgd.) BIBIANA ILLEGIBLE
The will appears to have been signed by Atty. Florentino Javier who wrote the name of Antero
Mercado, followed below by "A reugo del testator" and the name of Florentino Javier. Antero
Mercado is alleged to have written a cross immediately after his name. The Court of Appeals,
reversing the judgement of the Court of First Instance of Ilocos Norte, ruled that the attestation
clause failed (1) to certify that the will was signed on all the left margins of the three pages and at the
end of the will by Atty. Florentino Javier at the express request of the testator in the presence of the
testator and each and every one of the witnesses; (2) to certify that after the signing of the name of
the testator by Atty. Javier at the former's request said testator has written a cross at the end of his
name and on the left margin of the three pages of which the will consists and at the end thereof; (3)
to certify that the three witnesses signed the will in all the pages thereon in the presence of the
testator and of each other.
In our opinion, the attestation clause is fatally defective for failing to state that Antero Mercado
caused Atty. Florentino Javier to write the testator's name under his express direction, as required by
section 618 of the Code of Civil Procedure. The herein petitioner (who is appealing by way of
certiorari from the decision of the Court of Appeals) argues, however, that there is no need for such
recital because the cross written by the testator after his name is a sufficient signature and the
signature of Atty. Florentino Javier is a surplusage. Petitioner's theory is that the cross is as much a
signature as a thumbmark, the latter having been held sufficient by this Court in the cases of De
Gala vs. Gonzales and Ona, 53 Phil., 104; Dolar vs. Diancin, 55 Phil., 479; Payad vs. Tolentino, 62
Phil., 848; Neyra vs. Neyra, 76 Phil., 296 and Lopez vs. Liboro, 81 Phil., 429.
It is not here pretended that the cross appearing on the will is the usual signature of Antero Mercado
or even one of the ways by which he signed his name. After mature reflection, we are not prepared
to liken the mere sign of the cross to a thumbmark, and the reason is obvious. The cross cannot and
does not have the trustworthiness of a thumbmark.
What has been said makes it unnecessary for us to determine there is a sufficient recital in the
attestation clause as to the signing of the will by the testator in the presence of the witnesses, and by
the latter in the presence of the testator and of each other.
Wherefore, the appealed decision is hereby affirmed, with against the petitioner. So ordered.
Feria, Pablo, Bengzon, Padilla, Reyes, Jugo and Bautista Angelo, JJ., concur.

G.R. No. L-5971 February 27, 1911
18 Phil 450
BEATRIZ NERA, ET AL., plaintiffs-appellees,
vs.
NARCISA RIMANDO, defendant-appellant.
Valerio Fontanilla and Andres Asprer for appellant.
Anacleto Diaz for appellees.
CARSON, J .:
The only question raised by the evidence in this case as to the due execution of the instrument
propounded as a will in the court below, is whether one of the subscribing witnesses was present in
the small room where it was executed at the time when the testator and the other subscribing
witnesses attached their signatures; or whether at that time he was outside, some eight or ten feet
away, in a large room connecting with the smaller room by a doorway, across which was hung a
curtain which made it impossible for one in the outside room to see the testator and the other
subscribing witnesses in the act of attaching their signatures to the instrument.
A majority of the members of the court is of opinion that this subscribing witness was in the small
room with the testator and the other subscribing witnesses at the time when they attached their
signatures to the instrument, and this finding, of course, disposes of the appeal and necessitates the
affirmance of the decree admitting the document to probate as the last will and testament of the
deceased.
The trial judge does not appear to have considered the determination of this question of fact of vital
importance in the determination of this case, as he was of opinion that under the doctrine laid down
in the case of Jaboneta vs. Gustilo (5 Phil. Rep., 541) the alleged fact that one of the subscribing
witnesses was in the outer room when the testator and the other describing witnesses signed the
instrument in the inner room, had it been proven, would not be sufficient in itself to invalidate the
execution of the will. But we are unanimously of opinion that had this subscribing witness been
proven to have been in the outer room at the time when the testator and the other subscribing
witnesses attached their signatures to the instrument in the inner room, it would have been invalid as
a will, the attaching of those signatures under circumstances not being done "in the presence" of the
witness in the outer room. This because the line of vision from this witness to the testator and the
other subscribing witnesses would necessarily have been impeded by the curtain separating the
inner from the outer one "at the moment of inscription of each signature."
In the case just cited, on which the trial court relied, we held that:
The true test of presence of the testator and the witnesses in the execution of a will is not
whether they actually saw each other sign, but whether they might have been seen each
other sign, had they chosen to do so, considering their mental and physical condition and
position with relation to each other at the moment of inscription of each signature.
But it is especially to be noted that the position of the parties with relation to each other at the
moment of the subscription of each signature, must be such that they may see each other sign if
they choose to do so. This, of course, does not mean that the testator and the subscribing witnesses
may be held to have executed the instrument in the presence of each other if it appears that they
would not have been able to see each other sign at that moment, without changing their relative
positions or existing conditions. The evidence in the case relied upon by the trial judge discloses that
"at the moment when the witness Javellana signed the document he was actually and physically
present and in such position with relation to Jaboneta that he could see everything that took place by
merely casting his eyes in the proper direction and without any physical obstruction to prevent his
doing so." And the decision merely laid down the doctrine that the question whether the testator and
the subscribing witnesses to an alleged will sign the instrument in the presence of each other does
not depend upon proof of the fact that their eyes were actually cast upon the paper at the moment of
its subscription by each of them, but that at that moment existing conditions and their position with
relation to each other were such that by merely casting the eyes in the proper direction they could
have seen each other sign. To extend the doctrine further would open the door to the possibility of all
manner of fraud, substitution, and the like, and would defeat the purpose for which this particular
condition is prescribed in the code as one of the requisites in the execution of a will.
The decree entered by the court below admitting the instrument propounded therein to probate as
the last will and testament of Pedro Rimando, deceased, is affirmed with costs of this instance
against the appellant.
Arellano, C. J., Mapa, Moreland and Trent, JJ., concur.

G.R. No. L-21755 December 29, 1924
73 Phil 153
In the matter of the testate estate of Antonio Mojal, deceased. FILOMENA NAYVE, petitioner-
appellee,
vs.
LEONA MOJAL and LUCIANA AGUILAR, opponents-appellants.
Manuel M. Calleja for appellants.
Felix U. Calleja for appellee.

ROMUALDEZ, J .:
This is a proceeding for the probate of the will of the deceased Antonio Mojal instituted by his
surviving spouse, Filomena Nayve. The probate is opposed by Leona Mojal and Luciana Aguilar,
sister and niece, respectively, of the deceased.
The Court of First Instance of Albay, which tried the case, overruled the objections to the will, and
ordered the probate thereof, holding that the document in controversy was the last will and
testament of Antonio Mojal, executed in accordance with law. From this judgment the opponents
appeal, assigning error to the decree of the court allowing the will to probate and overruling their
opposition.
The will in question, Exhibit A, is composed of four sheets with written matter on only side of each,
that is, four pages written on four sheets. The four sides or pages containing written matter are
paged "Pag. 1," "Pag. 2," "Pag. 3," "Pag. 4," successively. Each of the first two sides or pages, which
was issued, was signed by the testator and the three witnesses on the margin, left side of the
reader. On the third page actually used, the signatures of the three witnesses appear also on the
margin, left side of the reader, but the signature of the testator is not on the margin, but about the
middle of the page, at the end of the will and before the attestation clause. On the fourth page, the
signatures of the witnesses do not appear on the margin, but at the bottom of the attestation clause,
it being the signature of the testator that is on the margin, left side of the reader.
The defects attributed to the will are:
(a) The fact of not having been signed by the testator and the witnesses on each and every sheet on
the left margin; (b) the fact of the sheets of the document not being paged with letters; (c) the fact
that the attestation clause does not state the number of sheets or pages actually used of the will;
and (d) the fact that the testator does not appear to have signed all the sheets in the presence of the
three witnesses, and the latter to have attested and signed all the sheets in the presence of the
testator and of each other.
As to the signatures on the margin, it is true, as above stated, that the third page actually used was
signed by the testator, not on the left margin, as it was by the witnesses, but about the middle of the
page and the end of the will; and that the fourth page was signed by the witnesses, not on the left
margin, as it was by the testator, but about the middle of the page and at the end of the attestation
clause.
In this respect the holding of this court in the case of Avera vs. Garcia and Rodriguez (42 Phil., 145),
is applicable, wherein the will in question was signed by the testator and the witnesses, not on the
left, but right, margin. The rule laid down in that case is that the document contained the necessary
signatures on each page, whereby each page of the will was authenticated and safeguarded against
any possible alteration. In that case, the validity of the will was sustained, and consequently it was
allowed to probate.
Applying that doctrine to the instant case, we hold that, as each and every page used of the will
bears the signatures of the testator and the witnesses, the fact that said signatures do not all appear
on the left margin of each page does not detract from the validity of the will.lawphi1.net
Turning to the second defect alleged, that is to say, the fact that the sheets of the document are not
paged with letters, suffice it to cite the case of Unson vs. Abella (43 Phil., 494), where this court held
that paging with Arabic numerals and not with letters, as in the case before us, is within the spirit of
the law and is just as valid as paging with letters.
As to the proposition that the attestation clause does not state the number of sheets or pages of the
will, which is the third defect assigned, it must be noted that the last paragraph of the will here in
question and the attestation clause, coming next to it, are of the following tenor:
In witness whereof, I set my hand unto this will here in the town of Camalig,
Albay, Philippine Islands, this 26th day of November, nineteen hundred
and eighteen, composed of four sheets, including the next:

ANTONIO MOJAL

(Signed and declared by the testator Don Antonio Mojal to be his last will
and testament in the presence of each of us, and at the request of said
testator Don Antonio Mojal, we signed this will in the presence of each
other and of the testator.)

PEDRO CARO
SILVERIO
MORCO
ZOILO MASINAS
As may be seen, the number of sheets is stated in said last paragraph of the will. It is true that in the
case of Uy Coque vs. Navas L. Sioca (43 Phil., 405), it was held that the attestation clause must
state the number of sheets or pages composing the will; but when, as in the case before us, such
fact, while it is not stated in the attestation clause, appears at the end of the will proper, so that no
proof aliunde is necessary of the number of the sheets of the will, then there can be no doubt that it
complies with the intention of the law that the number of sheets of which the will is composed be
shown by the document itself, to prevent the number of the sheets of the will from being unduly
increased or decreased.
With regard to the last defect pointed out, namely, that the testator does not appear to have signed
on all the sheets of the will in the presence of the three witnesses, and the latter to have attested
and signed on all the sheets in the presence of the testator and of each other, it must be noted that
in the attestation clause above set out it is said that the testator signed the will "in the presence of
each of the witnesses" and the latter signed "in the presence of each other and of the testator." So
that, as to whether the testator and the attesting witnesses saw each other sign the will, such a
requirement was clearly and sufficiently complied with. What is not stated in this clause is whether
the testator and the witnesses signed all the sheets of the will.
The act of the testator and the witnesses seeing reciprocally the signing of the will is one which
cannot be proven by the mere exhibition of the will unless it is stated in the document. And this fact
is expressly stated in the attestation clause now before us. But the fact of the testator and the
witnesses having signed all the sheets of the will may be proven by the mere examination of the
document, although it does not say anything about this, and if that is the fact, as it is in the instant
case, the danger of fraud in this respect, which is what the law tries to avoid, does not exist.
Therefore, as in the instant case the fact that the testator and the witnesses signed each and every
page of the will is proven by the mere examination of the signatures in the will, the omission to
expressly state such evident fact does not invalidate the will nor prevent its probate.
The order appealed from is affirmed with the costs against the appellants. So ordered.
Johnson, Malcolm, and Villamor, JJ., concur.

G.R. No. L-18979 June 30, 1964
11 SCRA 422
IN THE MATTER OF THE TESTATE ESTATE OF THE LATE JOSEFA VILLACORTE.
CELSO ICASIANO, petitioner-appellee,
vs.
NATIVIDAD ICASIANO and ENRIQUE ICASIANO, oppositors-appellants.
Jose W. Diokno for petitioner-appellee.
Rosendo J. Tansinin for oppositor-appellant Natividad Icasiano.
Jaime R. Nuevas for oppositor-appellant Enrique Icasiano.
REYES, J.B.L., J .:
Appeal from an order of the Court of First Instance of Manila admitting to probate the document and
its duplicate, marked as Exhibits "A" and "A-1", as the true last will and testament of Josefa
Villacorte, deceased, and appointing as executor Celso Icasiano, the person named therein as such.
This special proceeding was begun on October 2, 1958 by a petition for the allowance and
admission to probate of the original, Exhibit "A" as the alleged will of Josefa Villacorte, deceased,
and for the appointment of petitioner Celso Icasiano as executor thereof.
The court set the proving of the alleged will for November 8, 1958, and caused notice thereof to be
published for three (3) successive weeks, previous to the time appointed, in the newspaper "Manila
chronicle", and also caused personal service of copies thereof upon the known heirs.
On October 31, 1958, Natividad Icasiano, a daughter of the testatrix, filed her opposition; and on
November 10, 1958, she petitioned to have herself appointed as a special administrator, to which
proponent objected. Hence, on November 18, 1958, the court issued an order appointing the
Philippine Trust Company as special administrator.1wph1.t
On February 18, 1959, Enrique Icasiano, a son of the testatrix, also filed a manifestation adopting as
his own Natividad's opposition to the probate of the alleged will.
On March 19, 1959, the petitioner proponent commenced the introduction of his evidence; but on
June 1, 1959, he filed a motion for the admission of an amended and supplemental petition, alleging
that the decedent left a will executed in duplicate with all the legal requirements, and that he was, on
that date, submitting the signed duplicate (Exhibit "A-1"), which he allegedly found only on or about
May 26, 1959. On June 17, 1959, oppositors Natividad Icasiano de Gomez and Enrique Icasiano
filed their joint opposition to the admission of the amended and supplemental petition, but by order of
July 20, 1959, the court admitted said petition, and on July 30, 1959, oppositor Natividad Icasiano
filed her amended opposition. Thereafter, the parties presented their respective evidence, and after
several hearings the court issued the order admitting the will and its duplicate to probate. From this
order, the oppositors appealed directly to this Court, the amount involved being over P200,000.00,
on the ground that the same is contrary to law and the evidence.
The evidence presented for the petitioner is to the effect that Josefa Villacorte died in the City of
Manila on September 12, 1958; that on June 2, 1956, the late Josefa Villacorte executed a last will
and testament in duplicate at the house of her daughter Mrs. Felisa Icasiano at Pedro Guevara
Street, Manila, published before and attested by three instrumental witnesses, namely: attorneys
Justo P. Torres, Jr. and Jose V. Natividad, and Mr. Vinicio B. Diy; that the will was acknowledged by
the testatrix and by the said three instrumental witnesses on the same date before attorney Jose
Oyengco Ong, Notary Public in and for the City of Manila; and that the will was actually prepared by
attorney Fermin Samson, who was also present during the execution and signing of the decedent's
last will and testament, together with former Governor Emilio Rustia of Bulacan, Judge Ramon
Icasiano and a little girl. Of the said three instrumental witnesses to the execution of the decedent's
last will and testament, attorneys Torres and Natividad were in the Philippines at the time of the
hearing, and both testified as to the due execution and authenticity of the said will. So did the Notary
Public before whom the will was acknowledged by the testatrix and attesting witnesses, and also
attorneys Fermin Samson, who actually prepared the document. The latter also testified upon cross
examination that he prepared one original and two copies of Josefa Villacorte last will and testament
at his house in Baliuag, Bulacan, but he brought only one original and one signed copy to Manila,
retaining one unsigned copy in Bulacan.
The records show that the original of the will, which was surrendered simultaneously with the filing of
the petition and marked as Exhibit "A" consists of five pages, and while signed at the end and in
every page, it does not contain the signature of one of the attesting witnesses, Atty. Jose V.
Natividad, on page three (3) thereof; but the duplicate copy attached to the amended and
supplemental petition and marked as Exhibit "A-1" is signed by the testatrix and her three attesting
witnesses in each and every page.
The testimony presented by the proponents of the will tends to show that the original of the will and
its duplicate were subscribed at the end and on the left margin of each and every page thereof by
the testatrix herself and attested and subscribed by the three mentioned witnesses in the testatrix's
presence and in that of one another as witnesses (except for the missing signature of attorney
Natividad on page three (3) of the original); that pages of the original and duplicate of said will were
duly numbered; that the attestation clause thereof contains all the facts required by law to be recited
therein and is signed by the aforesaid attesting witnesses; that the will is written in the language
known to and spoken by the testatrix that the attestation clause is in a language also known to and
spoken by the witnesses; that the will was executed on one single occasion in duplicate copies; and
that both the original and the duplicate copies were duly acknowledged before Notary Public Jose
Oyengco of Manila on the same date June 2, 1956.
Witness Natividad who testified on his failure to sign page three (3) of the original, admits that he
may have lifted two pages instead of one when he signed the same, but affirmed that page three (3)
was signed in his presence.
Oppositors-appellants in turn introduced expert testimony to the effect that the signatures of the
testatrix in the duplicate (Exhibit "A-1") are not genuine nor were they written or affixed on the same
occasion as the original, and further aver that granting that the documents were genuine, they were
executed through mistake and with undue influence and pressure because the testatrix was
deceived into adopting as her last will and testament the wishes of those who will stand to benefit
from the provisions of the will, as may be inferred from the facts and circumstances surrounding the
execution of the will and the provisions and dispositions thereof, whereby proponents-appellees
stand to profit from properties held by them as attorneys-in-fact of the deceased and not enumerated
or mentioned therein, while oppositors-appellants are enjoined not to look for other properties not
mentioned in the will, and not to oppose the probate of it, on penalty of forfeiting their share in the
portion of free disposal.
We have examined the record and are satisfied, as the trial court was, that the testatrix signed both
original and duplicate copies (Exhibits "A" and "A-1", respectively) of the will spontaneously, on the
same in the presence of the three attesting witnesses, the notary public who acknowledged the will;
and Atty. Samson, who actually prepared the documents; that the will and its duplicate were
executed in Tagalog, a language known to and spoken by both the testator and the witnesses, and
read to and by the testatrix and Atty. Fermin Samson, together before they were actually signed; that
the attestation clause is also in a language known to and spoken by the testatrix and the witnesses.
The opinion of expert for oppositors, Mr. Felipe Logan, that the signatures of the testatrix appearing
in the duplicate original were not written by the same had which wrote the signatures in the original
will leaves us unconvinced, not merely because it is directly contradicted by expert Martin Ramos for
the proponents, but principally because of the paucity of the standards used by him to support the
conclusion that the differences between the standard and questioned signatures are beyond the
writer's range of normal scriptural variation. The expert has, in fact, used as standards only three
other signatures of the testatrix besides those affixed to the original of the testament (Exh. A); and
we feel that with so few standards the expert's opinion and the signatures in the duplicate could not
be those of the testatrix becomes extremely hazardous. This is particularly so since the comparison
charts Nos. 3 and 4 fail to show convincingly that the are radical differences that would justify the
charge of forgery, taking into account the advanced age of the testatrix, the evident variability of her
signatures, and the effect of writing fatigue, the duplicate being signed right the original. These,
factors were not discussed by the expert.
Similarly, the alleged slight variance in blueness of the ink in the admitted and questioned signatures
does not appear reliable, considering the standard and challenged writings were affixed to different
kinds of paper, with different surfaces and reflecting power. On the whole, therefore, we do not find
the testimony of the oppositor's expert sufficient to overcome that of the notary and the two
instrumental witnesses, Torres and Natividad (Dr. Diy being in the United States during the trial, did
not testify).
Nor do we find adequate evidence of fraud or undue influence. The fact that some heirs are more
favored than others is proof of neither (see In re Butalid, 10 Phil. 27; Bugnao vs. Ubag, 14 Phil. 163;
Pecson vs. Coronal, 45 Phil. 216). Diversity of apportionment is the usual reason for making a
testament; otherwise, the decedent might as well die intestate. The testamentary dispositions that
the heirs should not inquire into other property and that they should respect the distribution made in
the will, under penalty of forfeiture of their shares in the free part do not suffice to prove fraud or
undue influence. They appear motivated by the desire to prevent prolonged litigation which, as
shown by ordinary experience, often results in a sizeable portion of the estate being diverted into the
hands of non-heirs and speculators. Whether these clauses are valid or not is a matter to be litigated
on another occassion. It is also well to note that, as remarked by the Court of Appeals in Sideco vs.
Sideco, 45 Off. Gaz. 168, fraud and undue influence are mutually repugnant and exclude each other;
their joining as grounds for opposing probate shows absence of definite evidence against the validity
of the will.
On the question of law, we hold that the inadvertent failure of one witness to affix his signature to
one page of a testament, due to the simultaneous lifting of two pages in the course of signing, is not
per se sufficient to justify denial of probate. Impossibility of substitution of this page is assured not
only the fact that the testatrix and two other witnesses did sign the defective page, but also by its
bearing the coincident imprint of the seal of the notary public before whom the testament was ratified
by testatrix and all three witnesses. The law should not be so strictly and literally interpreted as to
penalize the testatrix on account of the inadvertence of a single witness over whose conduct she
had no control, where the purpose of the law to guarantee the identity of the testament and its
component pages is sufficiently attained, no intentional or deliberate deviation existed, and the
evidence on record attests to the full observance of the statutory requisites. Otherwise, as stated
in Vda. de Gil. vs. Murciano, 49 Off. Gaz. 1459, at 1479 (decision on reconsideration) "witnesses
may sabotage the will by muddling or bungling it or the attestation clause".
That the failure of witness Natividad to sign page three (3) was entirely through pure oversight is
shown by his own testimony as well as by the duplicate copy of the will, which bears a complete set
of signatures in every page. The text of the attestation clause and the acknowledgment before the
Notary Public likewise evidence that no one was aware of the defect at the time.
This would not be the first time that this Court departs from a strict and literal application of the
statutory requirements, where the purposes of the law are otherwise satisfied. Thus, despite the
literal tenor of the law, this Court has held that a testament, with the only page signed at its foot by
testator and witnesses, but not in the left margin, could nevertheless be probated (Abangan vs.
Abangan, 41 Phil. 476); and that despite the requirement for the correlative lettering of the pages of
a will, the failure to make the first page either by letters or numbers is not a fatal defect (Lopez vs.
Liboro, 81 Phil. 429). These precedents exemplify the Court's policy to require satisfaction of the
legal requirements in order to guard against fraud and bid faith but without undue or unnecessary
curtailment of the testamentary privilege.
The appellants also argue that since the original of the will is in existence and available, the
duplicate (Exh. A-1) is not entitled to probate. Since they opposed probate of original because it
lacked one signature in its third page, it is easily discerned that oppositors-appellants run here into a
dilemma; if the original is defective and invalid, then in law there is no other will but the duly signed
carbon duplicate (Exh. A-1), and the same is probatable. If the original is valid and can be probated,
then the objection to the signed duplicate need not be considered, being superfluous and irrelevant.
At any rate, said duplicate, Exhibit A-1, serves to prove that the omission of one signature in the third
page of the original testament was inadvertent and not intentional.
That the carbon duplicate, Exhibit A-1, was produced and admitted without a new publication does
not affect the jurisdiction of the probate court, already conferred by the original publication of the
petition for probate. The amended petition did not substantially alter the one first filed, but merely
supplemented it by disclosing the existence of the duplicate, and no showing is made that new
interests were involved (the contents of Exhibit A and A-1 are admittedly identical); and appellants
were duly notified of the proposed amendment. It is nowhere proved or claimed that the amendment
deprived the appellants of any substantial right, and we see no error in admitting the amended
petition.
IN VIEW OF THE FOREGOING, the decision appealed from is affirmed, with costs against
appellants.
Bengzon, C.J., Padilla, Bautista Angelo, Labrador, Concepcion, Paredes, Regala and Makalintal,
JJ., concur.
Barrera and Dizon, JJ., took no part.

G.R. No. L-32213 November 26, 1973
54 SCRA 31
AGAPITA N. CRUZ, petitioner,
vs.
HON. JUDGE GUILLERMO P. VILLASOR, Presiding Judge of Branch I, Court of First Instance
of Cebu, and MANUEL B. LUGAY, respondents.
Paul G. Gorrez for petitioner.
Mario D. Ortiz for respondent Manuel B. Lugay.

ESGUERRA, J .:
Petition to review on certiorari the judgment of the Court First Instance of Cebu allowing the probate
of the last will a testament of the late Valente Z. Cruz. Petitioner-appellant Agapita N. Cruz, the
surviving spouse of the said decease opposed the allowance of the will (Exhibit "E"), alleging the will
was executed through fraud, deceit, misrepresentation and undue influence; that the said instrument
was execute without the testator having been fully informed of the content thereof, particularly as to
what properties he was disposing and that the supposed last will and testament was not executed in
accordance with law. Notwithstanding her objection, the Court allowed the probate of the said last
will and testament Hence this appeal by certiorari which was given due course.
The only question presented for determination, on which the decision of the case hinges, is whether
the supposed last will and testament of Valente Z. Cruz (Exhibit "E") was executed in accordance
with law, particularly Articles 805 and 806 of the new Civil Code, the first requiring at least three
credible witnesses to attest and subscribe to the will, and the second requiring the testator and the
witnesses to acknowledge the will before a notary public.
Of the three instrumental witnesses thereto, namely Deogracias T. Jamaloas Jr., Dr. Francisco
Paares and Atty. Angel H. Teves, Jr., one of them, the last named, is at the same time the Notary
Public before whom the will was supposed to have been acknowledged. Reduced to simpler terms,
the question was attested and subscribed by at least three credible witnesses in the presence of the
testator and of each other, considering that the three attesting witnesses must appear before the
notary public to acknowledge the same. As the third witness is the notary public himself, petitioner
argues that the result is that only two witnesses appeared before the notary public to acknowledge
the will. On the other hand, private respondent-appellee, Manuel B. Lugay, who is the supposed
executor of the will, following the reasoning of the trial court, maintains that there is substantial
compliance with the legal requirement of having at least three attesting witnesses even if the notary
public acted as one of them, bolstering up his stand with 57 American Jurisprudence, p. 227 which,
insofar as pertinent, reads as follows:
It is said that there are, practical reasons for upholding a will as against the purely
technical reason that one of the witnesses required by law signed as certifying to an
acknowledgment of the testator's signature under oath rather than as attesting the
execution of the instrument.
After weighing the merits of the conflicting claims of the parties, We are inclined to sustain that of the
appellant that the last will and testament in question was not executed in accordance with law. The
notary public before whom the will was acknowledged cannot be considered as the third
instrumental witness since he cannot acknowledge before himself his having signed the will. To
acknowledge before means to avow (Javellana v. Ledesma, 97 Phil. 258, 262; Castro v. Castro, 100
Phil. 239, 247); to own as genuine, to assent, to admit; and "before" means in front or preceding in
space or ahead of. (The New Webster Encyclopedic Dictionary of the English Language, p. 72; Funk
& Wagnalls New Standard Dictionary of the English Language, p. 252; Webster's New International
Dictionary 2d. p. 245.) Consequently, if the third witness were the notary public himself, he would
have to avow assent, or admit his having signed the will in front of himself. This cannot be done
because he cannot split his personality into two so that one will appear before the other to
acknowledge his participation in the making of the will. To permit such a situation to obtain would be
sanctioning a sheer absurdity.
Furthermore, the function of a notary public is, among others, to guard against any illegal or immoral
arrangement Balinon v. De Leon, 50 0. G. 583.) That function would defeated if the notary public
were one of the attesting instrumental witnesses. For them he would be interested sustaining the
validity of the will as it directly involves him and the validity of his own act. It would place him in
inconsistent position and the very purpose of acknowledgment, which is to minimize fraud (Report of
Code Commission p. 106-107), would be thwarted.
Admittedly, there are American precedents holding that notary public may, in addition, act as a
witness to the executive of the document he has notarized. (Mahilum v. Court Appeals, 64 0. G.
4017; 17 SCRA 482; Sawyer v. Cox, 43 Ill. 130). There are others holding that his signing merely as
notary in a will nonetheless makes him a witness thereon (Ferguson v. Ferguson, 47 S. E. 2d. 346;
In Re Douglas Will, N. Y. S. 2d. 641; Ragsdal v. Hill, 269 S. W. 2d. 911, Tyson Utterback, 122 So.
496; In Re Baybee's Estate 160 N. 900; W. Merill v. Boal, 132 A. 721;See also Trenwith v.
Smallwood, 15 So. 1030). But these authorities do not serve the purpose of the law in this
jurisdiction or are not decisive of the issue herein because the notaries public and witnesses referred
to aforecited cases merely acted as instrumental, subscribing attesting witnesses, and not
as acknowledging witnesses. He the notary public acted not only as attesting witness but also
acknowledging witness, a situation not envisaged by Article 805 of the Civil Code which reads:
ART. 806. Every will must be acknowledged before a notary public by the testator
and the witnesses. The notary public shall not be required to retain a copy of the will
or file another with the office of the Clerk of Court. [Emphasis supplied]
To allow the notary public to act as third witness, or one the attesting and acknowledging witnesses,
would have the effect of having only two attesting witnesses to the will which would be in
contravention of the provisions of Article 80 be requiring at least three credible witnesses to act as
such and of Article 806 which requires that the testator and the required number of witnesses must
appear before the notary public to acknowledge the will. The result would be, as has been said, that
only two witnesses appeared before the notary public for or that purpose. In the circumstances, the
law would not be duly in observed.
FOR ALL THE FOREGOING, the judgment appealed from is hereby reversed and the probate of the
last will and testament of Valente Z. Cruz (Exhibit "E") is declared not valid and hereby set aside.
Cost against the appellee.
Makalintal, C.J., Castro, Teehankee, Makasiar and Muoz Palma, JJ., concur.
G.R. No. L-38338 January 28, 1985
134 SCRA 245
IN THE MATTER OF THE INTESTATE ESTATE OF ANDRES G. DE JESUS AND BIBIANA
ROXAS DE JESUS, SIMEON R. ROXAS & PEDRO ROXAS DE JESUS, petitioners,
vs.
ANDRES R. DE JESUS, JR., respondent.
Raul S. Sison Law Office for petitioners.
Rafael Dinglasan, Jr. for heir M. Roxas.
Ledesma, Guytingco Velasco and Associates for Ledesa and A. R. de Jesus.

GUTIERREZ, JR., J .:
This is a petition for certiorari to set aside the order of respondent Hon. Jose C. Colayco, Presiding
Judge Court of First Instance of Manila, Branch XXI disallowing the probate of the holographic Will of
the deceased Bibiana Roxas de Jesus.
The antecedent facts which led to the filing of this petition are undisputed.
After the death of spouses Andres G. de Jesus and Bibiana Roxas de Jesus, Special Proceeding
No. 81503 entitled "In the Matter of the Intestate Estate of Andres G. de Jesus and Bibiana Roxas
de Jesus" was filed by petitioner Simeon R. Roxas, the brother of the deceased Bibiana Roxas de
Jesus.
On March 26, 1973, petitioner Simeon R. Roxas was appointed administrator. After Letters of
Administration had been granted to the petitioner, he delivered to the lower court a document
purporting to be the holographic Will of the deceased Bibiana Roxas de Jesus. On May 26, 1973,
respondent Judge Jose Colayco set the hearing of the probate of the holographic Win on July 21,
1973.
Petitioner Simeon R. Roxas testified that after his appointment as administrator, he found a
notebook belonging to the deceased Bibiana R. de Jesus and that on pages 21, 22, 23 and 24
thereof, a letter-win addressed to her children and entirely written and signed in the handwriting of
the deceased Bibiana R. de Jesus was found. The will is dated "FEB./61 " and states: "This is my
win which I want to be respected although it is not written by a lawyer. ...
The testimony of Simeon R. Roxas was corroborated by the testimonies of Pedro Roxas de Jesus
and Manuel Roxas de Jesus who likewise testified that the letter dated "FEB./61 " is the holographic
Will of their deceased mother, Bibiana R. de Jesus. Both recognized the handwriting of their mother
and positively Identified her signature. They further testified that their deceased mother understood
English, the language in which the holographic Will is written, and that the date "FEB./61 " was the
date when said Will was executed by their mother.
Respondent Luz R. Henson, another compulsory heir filed an "opposition to probate" assailing the
purported holographic Will of Bibiana R. de Jesus because a it was not executed in accordance with
law, (b) it was executed through force, intimidation and/or under duress, undue influence and
improper pressure, and (c) the alleged testatrix acted by mistake and/or did not intend, nor could
have intended the said Will to be her last Will and testament at the time of its execution.
On August 24, 1973, respondent Judge Jose C. Colayco issued an order allowing the probate of the
holographic Will which he found to have been duly executed in accordance with law.
Respondent Luz Roxas de Jesus filed a motion for reconsideration alleging inter alia that the alleged
holographic Will of the deceased Bibiana R. de Jesus was not dated as required by Article 810 of the
Civil Code. She contends that the law requires that the Will should contain the day, month and year
of its execution and that this should be strictly complied with.
On December 10, 1973, respondent Judge Colayco reconsidered his earlier order and disallowed
the probate of the holographic Will on the ground that the word "dated" has generally been held to
include the month, day, and year. The dispositive portion of the order reads:
WHEREFORE, the document purporting to be the holographic Will of Bibiana Roxas
de Jesus, is hereby disallowed for not having been executed as required by the law.
The order of August 24, 1973 is hereby set aside.
The only issue is whether or not the date "FEB./61 " appearing on the holographic Will of the
deceased Bibiana Roxas de Jesus is a valid compliance with the Article 810 of the Civil Code which
reads:
ART. 810. 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.
The petitioners contend that while Article 685 of the Spanish Civil Code and Article 688 of the Old
Civil Code require the testator to state in his holographic Win the "year, month, and day of its
execution," the present Civil Code omitted the phrase Ao mes y dia and simply requires that the
holographic Will should be dated. The petitioners submit that the liberal construction of the
holographic Will should prevail.
Respondent Luz Henson on the other hand submits that the purported holographic Will is void for
non-compliance with Article 810 of the New Civil Code in that the date must contain the year, month,
and day of its execution. The respondent contends that Article 810 of the Civil Code was patterned
after Section 1277 of the California Code and Section 1588 of the Louisiana Code whose Supreme
Courts had consistently ruled that the required date includes the year, month, and day, and that if
any of these is wanting, the holographic Will is invalid. The respondent further contends that the
petitioner cannot plead liberal construction of Article 810 of the Civil Code because statutes
prescribing the formalities to be observed in the execution of holographic Wills are strictly construed.
We agree with the petitioner.
This will not be the first time that this Court departs from a strict and literal application of the statutory
requirements regarding the due execution of Wills. We should not overlook the liberal trend of the
Civil Code in the manner of execution of Wills, the purpose of which, in case of doubt is to prevent
intestacy
The underlying and fundamental objectives permeating the provisions of the law on
wigs in this Project consists in the liberalization of the manner of their execution with
the end in view of giving the testator more freedom in expressing his last wishes, but
with sufficien safeguards and restrictions to prevent the commission of fraud and the
exercise of undue and improper pressure and influence upon the testator.
This objective is in accord with the modem tendency with respect to the formalities in
the execution of wills. (Report of the Code Commission, p. 103)
In Justice Capistrano's concurring opinion in Heirs of Raymundo Castro v. Bustos (27 SCRA 327) he
emphasized that:
xxx xxx xxx
... The law has a tender regard for the will of the testator expressed in his last will
and testament on the ground that any disposition made by the testator is better than
that which the law can make. For this reason, intestate succession is nothing more
than a disposition based upon the presumed will of the decedent.
Thus, the prevailing policy is to require satisfaction of the legal requirements in order to guard
against fraud and bad faith but without undue or unnecessary curtailment of testamentary
privilege Icasiano v. Icasiano, 11 SCRA 422). If a Will has been executed in substantial compliance
with the formalities of the law, and the possibility of bad faith and fraud in the exercise thereof is
obviated, said Win should be admitted to probate (Rey v. Cartagena 56 Phil. 282). Thus,
xxx xxx xxx
... More than anything else, the facts and circumstances of record are to be
considered in the application of any given rule. If the surrounding circumstances
point to a regular execution of the wilt and the instrument appears to have been
executed substantially in accordance with the requirements of the law, the inclination
should, in the absence of any suggestion of bad faith, forgery or fraud, lean towards
its admission to probate, although the document may suffer from some imperfection
of language, or other non-essential defect. ... (Leynez v. Leynez 68 Phil. 745).
If the testator, in executing his Will, attempts to comply with all the requisites, although compliance is
not literal, it is sufficient if the objective or purpose sought to be accomplished by such requisite is
actually attained by the form followed by the testator.
The purpose of the solemnities surrounding the execution of Wills has been expounded by this Court
in Abangan v. Abanga 40 Phil. 476, where we ruled 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. ...
In particular, a complete date is required to provide against such contingencies as that of two
competing Wills executed on the same day, or of a testator becoming insane on the day on which a
Will was executed (Velasco v. Lopez, 1 Phil. 720). There is no such contingency in this case.
We have carefully reviewed the records of this case and found no evidence of bad faith and fraud in
its execution nor was there any substitution of Wins and Testaments. There is no question that the
holographic Will of the deceased Bibiana Roxas de Jesus was entirely written, dated, and signed by
the testatrix herself and in a language known to her. There is also no question as to its genuineness
and due execution. All the children of the testatrix agree on the genuineness of the holographic Will
of their mother and that she had the testamentary capacity at the time of the execution of said Will.
The objection interposed by the oppositor-respondent Luz Henson is that the holographic Will is
fatally defective because the date "FEB./61 " appearing on the holographic Will is not sufficient
compliance with Article 810 of the Civil Code. This objection is too technical to be entertained.
As a general rule, the "date" in a holographic Will should include the day, month, and year of its
execution. However, when as in the case at bar, there is no appearance of fraud, bad faith, undue
influence and pressure and the authenticity of the Will is established and the only issue is whether or
not the date "FEB./61" appearing on the holographic Will is a valid compliance with Article 810 of the
Civil Code, probate of the holographic Will should be allowed under the principle of substantial
compliance.
WHEREFORE, the instant petition is GRANTED. The order appealed from is REVERSED and SET
ASIDE and the order allowing the probate of the holographic Will of the deceased Bibiana Roxas de
Jesus is reinstated.
SO ORDERED.
Teehankee (Chairman), Melencio-Herrera, Plana, Relova and De la Fuente, JJ., concur.

G.R. No. L-12190 August 30, 1958
109 Phil 509
TESTATE ESTATE OF FELICIDAD ESGUERRA ALTO-YAP deceased. FAUSTO E.
GAN, petitioner-appellant,
vs.
ILDEFONSO YAP, oppositor-appellee.
Benedicto C. Belran, Crispin D. Baizas and Roberto H. Benitez for appellant.
Arturo M. Tolentino for appellee.
BENGZON, J .:
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 them 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 pag-iisip, ay nagsasalaysay na ang
aking kayamanan sa bayan ng Pulilan, Bulacan ay aking ipinamamana sa aking mga kamag-
anakang sumusunod:
Vicente Esguerra, Sr.
.............................................
5 Bahagi
Fausto E. Gan
.........................................................
2 Bahagi
Rosario E. Gan
.........................................................
2 Bahagi
Filomena Alto
..........................................................
1 Bahagi
Beatriz Alto
..............................................................
1 Bahagi
At ang aking lahat ng ibang kayamanan sa Maynila at iba panglugar ay aking ipinamamana
sa aking asawang si Idelfonso 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 pangalang Felicidad Esguerra-Alto. At kung ito ay may
kakulangan 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
well-known 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 of 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 permitted 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 andevery 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 authencity (Abangan vs. Abangan, 40 Phil.,
476) and to avoid 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. 1st Supp. No. 3 p. 194.)
Authenticity and due execution is the dominant requirements 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 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."
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
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 whetherin 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.
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 privilegeto 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 Ilenaron 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 au adveracion y
protocolizacion; y como consecuencia ineludible de ello, forzoso es affirmar que el de autos
carece de validez y aficacia, por no estarfirmado 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 VI 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 end
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 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
119 SCRA 16
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 Paralejo for oppositor-appellee.

RELOVA, J .:
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 hollographic will itself,and not an alleged copy thereof, must be
produced, otherwise it would produce no effect, as held in Gam 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 Gam 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 cannot 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 Gam 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. L-14003 August 5, 1960
109 Phil 142
FEDERICO AZAOLA, petitioner-appellant,
vs.
CESARIO SINGSON, oppositor-appellee.
F. Lavides and L.B. Alcuaz for appellant.
Vicente J. Cuna and P.S. Singson for appellee.
REYES, J.B.L., J .:
This appeal, taken on points of law from a decision rendered on 15 January 1958 by the Court of
First Instance of Quezon City in its Special Proceedings No. Q-2640, involves the determination of
the quantity of evidence required for the probate of a holographic will.
The established facts are thus summarized in the decision appealed from (Rec. App. pp. 22-24):
"Briefly speaking, the following facts were established by the petitioner; that on September 9,
1957, Fortunata S. Vda. de Yance died at 13 Luskot, Quezon City, known to be the last
residence of said testatrix; that Francisco Azaola, petitioner herein for probate of the
holographic will, submitted the said holographic will (Exh. C) whereby Maria Milagros Azaola
was made the sole heir as against the nephew of deceased Cesario Singson; that witness
Francisco Azaola testified that he saw the holographic will (Exh. C) one month, more or less,
before the death of the testatrix, as the same was handed to him and his wife; that the
witness testified also that he recognized all the signatures appearing in the holographic will
(Exh. C) as the handwriting of the testatrix and to reinforce said statement, witness
presented the mortgage (Exh. E), the special power of the attorney (Exh. F), and the general
power of attorney (Exh. F-1), besides the deeds of sale (Exhs. G and G-1) including an
affidavit (Exh. G-2), and that there were further exhibited in court two residence certificates
(Exhs. H and H-1) to show the signatures of the testatrix, for comparison purposes; that said
witness, Azaola, testified that the penmanship appearing in the aforesaid documentary
evidence is in the handwriting of the testatrix as well as the signatures appearing in the
aforesaid documentary evidence is in the handwriting of the testatrix as well as the
signatures appearing therein are the signatures of the testatrix; that said witness, in answer
to a question of his counsel admitted that the holographic will was handed to him by the
testatrix. "apparently it must have been written by her" (t.s.n., p. 11). However, on page 16
on the same transcript of the stenographic notes, when the same witness was asked by
counsel if he was familiar with the penmanship and handwriting of the deceased Fortunata
Vda. de Yance, he answered positively in the affirmative and when he was asked again
whether the penmanship referred to in the previous answer as appearing in the holographic
will (Exh. C) was hers (testatrix'), he answered, "I would definitely say it is hers"; that it was
also established in the proceedings that the assessed value of the property of the deceased
in Luskot, Quezon City, is in the amount of P7,000.00.
The opposition to the probate was on the ground that (1) the execution of the will was procured by
undue and improper pressure and influence on the part of the petitioner and his wife, and (2) that the
testatrix did not seriously intend the instrument to be her last will, and that the same was actually
written either on the 5th or 6th day of August 1957 and not on November 20, 1956 as appears on the
will.
The probate was denied on the ground that under Article 811 of the Civil Code, the proponent must
present three witnesses who could declare that the will and the signature are in the writing of the
testatrix, the probate being contested; and because the lone witness presented by the proponent
"did not prove sufficiently that the body of the will was written in the handwriting of the testatrix."
The proponent appealed, urging: first, that he was not bound to produce more than one witness
because the will's authenticity was not questioned; and second, that Article 811 does not mandatorily
require the production of three witnesses to identify the handwriting and signature of a holographic
will, even if its authenticity should be denied by the adverse party.
Article 811 of the Civil Code of the Philippines is to the following effect:
ART. 811. In the probate of a holographic will, 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 of
such witnesses shall be required.
In the absence of any competent witnesses referred to in the preceding paragraph, and if the
court deems it necessary, expert testimony may be resorted to. (691a).
We agree with the appellant that since the authenticity of the will was not contested, he was not
required to produce more than one witness; but even if the genuineness of the holographic will were
contested, we are of the opinion that Article 811 of our present Civil Code can not be interpreted as
to require the compulsory presentation of three witnesses to identify the handwriting of the testator,
under penalty of having the probate denied. Since no witness may have been present at the
execution of a holographic will, none being required by law (Art. 810, new Civil Code), it becomes
obvious that the existence of witness possessing the requisite qualifications is a matter beyond the
control of the proponent. For it is not merely a question of finding and producing any three
witnesses; they must be witnesses "who know the handwriting and signature of the testator" and
who can declare (truthfully, of course, even if the law does not so express) "that the will and the
signature are in the handwriting of the testator". There may be no available witness of the testator's
hand; or even if so familiarized, the witnesses may be unwilling to give a positive opinion.
Compliance with the rule of paragraph 1 of Article 811 may thus become an impossibility. That is
evidently the reason why the second paragraph of Article 811 prescribes that
in the absence of any competent witness referred to in the preceding paragraph, and if the
court deems it necessary, expert testimony may be resorted to.
As can be seen, the law foresees the possibility that no qualified witness may be found (or what
amounts to the same thing, that no competent witness may be willing to testify to the authenticity of
the will), and provides for resort to expert evidence to supply the deficiency.
It may be true that the rule of this article (requiring that three witnesses be presented if the will is
contested and only one if no contest is had) was derived from the rule established for ordinary
testaments (cf. Cabang vs. Delfinado, 45 Phil., 291; Tolentino vs. Francisco, 57 Phil., 742). But it can
not be ignored that the requirement can be considered mandatory only in the case of ordinary
testaments, precisely because the presence of at least three witnesses at the execution of ordinary
wills is made by law essential to their validity (Art. 805). Where the will is holographic, no witness
need be present (Art. 10), and the rule requiring production of three witnesses must be deemed
merely permissive if absurd results are to be avoided.
Again, under Article 811, the resort to expert evidence is conditioned by the words "if the Court deem
it necessary", which reveal that what the law deems essential is that the Court should be convinced
of the will's authenticity. Where the prescribed number of witnesses is produced and the court is
convinced by their testimony that the ill is genuine, it may consider it unnecessary to call for expert
evidence. On the other hand, if no competent witness is available, or none of those produced is
convincing, the Court may still, and in fact it should, resort to handwriting experts. The duty of the
Court, in fine, is to exhaust all available lines of inquiry, for the state is as much interested as the
proponent that the true intention of the testator be carried into effect.
Commenting on analogous provisions of Article 691 of the Spanish Civil Code of 1889, the noted
Commentator, Mucuis Scaevola (Vol. 12, 2nd Ed., p.421), sagely remarks:
La manera como esta concebida la redaccion del ultimo apartado de dicho precepto induce
la conclusion de que siempre o por lo menos, en la mayor parte de los casos, el Juez debe
acudir al criterio pericial para que le ilustre acerca de la autenticidad del testamento olografo,
aunque ya esten insertas en los autos del expediente las declaraciones testificales. La
prudencia con que el Juez debe de proceder en resoluciones de transcendencia asi lo exige,
y la indole delicada y peligrosa del testamento olografo lo hace necesario para mayor
garantia de todos los interes comprometidos en aquel.
En efecto, el cotejo pericial de letras puede ser una confirmacion facultativa del dicho
profano de los testigos y un modo de desvanecer las ultimas dudas que pudieran ocurrir al
Juez acerca de la autenticidad que trata de averigaur y declarar. Para eso se ha escrito la
frase del citado ultimo apartado, (siempre que el Juez lo estime conveniente), haya habido o
no testigos y dudaran o no estos respecto de los extremos por que son preguntados.
El arbitrio judicial en este caso debe formarse con independencia de los sucesos y de su
significacion, para responder debidamente de las resoluciones que haya de dictar.
And because the law leaves it to the trial court if experts are still needed, no unfavourable inference
can be drawn from a party's failure to offer expert evidence, until and unless the court expresses
dissatisfaction with the testimony of the lay witnesses.
Our conclusion is that the rule of the first paragraph of Article 811 of the Civil Code is merely
directory and is not mandatory.
Considering, however, that this is the first occasion in which this Court has been called upon to
construe the import of said article, the interest of justice would be better served, in our opinion, by
giving the parties ample opportunity to adduce additional evidence, including expert witnesses,
should the Court deem them necessary.
In view of the foregoing, the decision appealed from is set aside, and the records ordered remanded
to the Court of origin, with instructions to hold a new trial in conformity with this opinion. But evidence
already on record shall not be retaken. No costs.
Bengzon, Padilla, Bautista Angelo, Labrador, Concepcion, Barrera and Gutierrez David, JJ., concur.


G.R. No. L-2538 September 21, 1951
90 Phil 37
Testate Estate of the Deceased MARIANO MOLO Y LEGASPI. JUANA JUAN VDA. DE
MOLO, petitioner-appellee,
vs.
LUZ, GLICERIA and CORNELIO MOLO, oppositors-appellants.
Claro M. Recto and Serafin C. Dizon for appellants.
Delgado & Flores for appellee.
BAUTISTA ANGELO, J .:
This is an appeal from an order of the Court of First Instance of Rizal admitting to probate the last
will and testament of the deceased Mariano Molo y Legaspi executed on August 17, 1918. The
oppositors-appellants brought the case on appeal to this Court for the reason that the value of the
properties involved exceeds P50,000.
Mariano Molo y Legaspi died on January 24, 1941, in the municipality of Pasay, province of Rizal,
without leaving any forced heir either in the descending or ascending line. He was survived,
however, by his wife, the herein petitioner Juana Juan Vda. de Molo, and by his nieces and nephew,
the oppositors-appellants, Luz Gliceria and Cornelio, all surnamed Molo, who were the legitimate
children of Candido Molo y Legaspi, deceased brother of the testator. Mariano Molo y Legaspi left
two wills, one executed on August 17, 1918, (Exhibit A) and another executed on June 20, 1939.
(Exhibit I). The later will executed in 1918.
On February 7, 1941, Juana Juan Vda. de Molo, filed in the Court of First Instance of Rizal a
petition, which was docketed as special proceeding No. 8022 seeking the probate of the will
executed by the deceased on June 20, 1939. There being no opposition, the will was probated.
However, upon petition filed by the herein oppositors, the order of the court admitting the will to
probate was set aside and the case was reopened. After hearing, at which both parties presented
their evidence, the court rendered decision denying the probate of said will on the ground that the
petitioner failed to prove that the same was executed in accordance with law.
In view of the disallowance of the will executed on June 20, 1939, the widow on February 24, 1944,
filed another petition for the probate of the will executed by the deceased on August 17, 1918, which
was docketed as special proceeding No. 56, in the same court. Again, the same oppositors filed an
opposition to the petition based on three grounds: (1) that petitioner is now estopped from seeking
the probate of the will of 1918; (2) that said will has not been executed in the manner required by law
and (3) that the will has been subsequently revoked. But before the second petition could be heard,
the battle for liberation came and the records of the case were destroyed. Consequently, a petition
for reconstitution was filed, but the same was found to be impossible because neither petitioner nor
oppositors could produce the copies required for its reconstitution. As a result, petitioner filed a new
petition on September 14, 1946, similar to the one destroyed, to which the oppositors filed an
opposition based on the same grounds as those contained in their former opposition. Then, the case
was set for trial, and on May 28, 1948, the court issued an order admitting the will to probate already
stated in the early part of this decision. From this order the oppositors appealed assigning six errors,
to wit.
I. The probate court erred in not holding that the present petitioner voluntarily and
deliberately frustrated the probate of the will dated June 20, 1939, in special proceeding No.
8022, in order to enable her to obtain the probate of another alleged will of Molo dated 191.
II. The court a quo erred in not holding that the petitioner is now estopped from seeking the
probate of Molo's alleged will of 1918.
III. The lower court erred in not holding that petitioner herein has come to court with "unclean
hands" and as such is not entitled to relief.
IV. The probate court erred in not holding that Molo's alleged will of August 17, 1918 was not
executed in the manner required by law.
V. The probate court erred in not holding that the alleged will of 1918 was deliberately
revoked by Molo himself.
VI. The lower court erred in not holding that Molo's will of 1918 was subsequently revoked by
the decedent's will of 1939.
In their first assignment of error, counsel for oppositors contend that the probate court erred in not
holding that the petitioner voluntarily and deliberately frustrated the probate of the will dated June 20,
1939, in order to enable her to obtain the probate of the will executed by the deceased on August
17, 1918, pointing out certain facts and circumstances with their opinion indicate that petitioner
connived with the witness Canuto Perez in an effort to defeat and frustrate the probate of the 1939
will because of her knowledge that said will intrinsically defective in that "the one and only
testamentory disposition thereof was a "disposicion captatoria". These circumstances, counsel for
the appellants contend, constitute a series of steps deliberately taken by petitioner with a view to
insuring the realization of her plan of securing the probate of the 1918 will which she believed would
better safeguard her right to inherit from the decease.
These imputations of fraud and bad faith allegedly committed in connection with special proceedings
No. 8022, now closed and terminated, are vigorously met by counsel for petitioner who contends
that to raise them in these proceedings which are entirely new and distinct and completely
independent from the other is improper and unfair as they find no support whatsoever in any
evidence submitted by the parties in this case. They are merely based on the presumptions and
conjectures not supported by any proof. For this reason, counsel, contends, the lower court was
justified in disregarding them and in passing them sub silentio in its decision.
A careful examination of the evidence available in this case seems to justify this contention. There is
indeed no evidence which may justify the insinuation that petitioner had deliberately intended to
frustrate the probate of the 1939 will of the deceased to enable her to seek the probate of another
will other than a mere conjecture drawn from the apparently unexpected testimony of Canuto Perez
that he went out of the room to answer an urgent call of nature when Artemio Reyes was signing the
will and the failure of petitioner later to impeach the character of said witness in spite of the
opportunity given her by the court to do so. Apart from this insufficiency of evidence, the record
discloses that this failure has been explained by petitioner when she informed the court that she was
unable to impeach the character of her witness Canuto Perez because of her inability to find
witnesses who may impeach him, and this explanation stands uncontradicted. Whether this
explanation is satisfactory or not, it is not now, for us to determine. It is an incident that comes within
the province of the former case. The failure of petitioner to present the testimony of Artemio Reyes
at the hearing has also been explained, and it appears that petitioner has filed because his
whereabouts could not be found. Whether this is true or not is also for this Court to determine. It is
likewise within the province and function of the court in the former case. And the unfairness of this
imputation becomes more glaring when we stock of the developments that had taken place in these
proceedings which show in bold relief the true nature of the conduct, behavior and character of the
petitioner so bitterly assailed and held in disrepute by the oppositors.
It should be recalled that the first petition for the probate of the will executed on June 20, 1939, was
filed on February 7, 1941, by the petitioner. There being no opposition, the will was probated.
Subsequently, however, upon petition of the herein oppositors, the order of the court admitting said
will to probate was set aside, over the vigorous opposition of the herein petitioner, and the case was
reopened. The reopening was ordered because of the strong opposition of the oppositors who
contended that he will had not been executed as required by law. After the evidence of both parties
had been presented, the oppositors filed an extensive memorandum wherein they reiterated their
view that the will should be denied probate. And on the strenght of this opposition, the court
disallowed the will.
If petitioner then knew that the 1939 will was inherently defective and would make the testamentary
disposition in her favor invalid and ineffective, because it is a "disposicion captatoria", which
knowledge she may easily acquire through consultation with a lawyer, there was no need her to go
through the order of filing the petition for the probate of the will. She could accomplish her desire by
merely suppressing the will or tearing or destroying it, and then take steps leading to the probate of
the will executed in 1918. But for her conscience was clear and bade her to take the only proper step
possible under the circumstances, which is to institute the necessary proceedings for the probate of
the 1939 will. This she did and the will was admitted to probate. But then the unexpected happened.
Over her vigorous opposition, the herein appellants filed a petition for reopening, and over her
vigorous objection, the same was granted and the case was reopened. Her motion for
reconsideration was denied. Is it her fault that the case was reopened? Is it her fault that the order
admitting the will to probate was set aside? That was a contingency which petitioner never expected.
Had appellants not filed their opposition to the probate of the will and had they limited their objection
to the intrinsic validity of said will, their plan to defeat the will and secure the intestacy of the
deceased would have perhaps been accomplished. But they failed in their strategy. If said will was
denied probate it is due to their own effort. It is now unfair to impute bad faith petitioner simply
because she exerted every effort to protect her own interest and prevent the intestacy of the
deceased to happen.
Having reached the foregoing conclusions, it is obvious that the court did not commit the second and
third errors imputed to it by the counsel for appellants. Indeed, petitioner cannot be considered guilty
or estoppel which would prevent her from seeking the probate of the 1918 will simply because of her
effort to obtain the allowance of the 1939 will has failed considering that in both the 1918 and 1939
wills she was in by her husband as his universal heir. Nor can she be charged with bad faith far
having done so because of her desire to prevent the intestacy of her husband. She cannot be
blamed being zealous in protecting her interest.
The next contention of appellants refers to the revocatory clause contained in 1939 will of the
deceased which was denied probate. They contend that, notwithstanding the disallowance of said
will, the revocatory clause is valid and still has the effect of nullifying the prior of 1918.
Counsel for petitioner meets this argument by invoking the doctrine laid down in the case of Samson
vs. Naval, (41 Phil., 838). He contends that the facts involved in that case are on all fours with the
facts of this case. Hence, the doctrine is that case is here controlling.
There is merit in this contention. We have carefully read the facts involved in the Samson case we
are indeed impressed by their striking similarity with the facts of this case. We do not need to recite
here what those facts are; it is enough to point out that they contain many points and circumstances
in common. No reason, therefore, is seen by the doctrine laid down in that case (which we quote
hereunder) should not apply and control the present case.
A subsequent will, containing a clause revoking a previous will, having been disallowed, for
the reason that it was not executed in conformity with the provisions of section 618 of the
Code of Civil Procedure as to the making of wills, cannot produce the effect of annulling the
previous will, inasmuch as said revocatory clause is void. (41 Phil., 838.)
Apropos of this question, counsel for oppositors make the remark that, while they do not disagree
with the soundness of the ruling laid down in the Samson case, there is reason to abandon said
ruling because it is archaic or antiquated and runs counter to the modern trend prevailing in
American jurisprudence. They maintain that said ruling is no longer controlling but merely represents
the point of view of the minority and should, therefore, be abandoned, more so if we consider the
fact that section 623 of our Code of Civil Procedure, which governs the revocation of wills, is of
American origin and as such should follow the prevailing trend of the majority view in the United
States. A long line of authorities is cited in support of this contention. And these authorities hold the
view, that "an express revocation is immediately effective upon the execution of the subsequent will,
and does not require that it first undergo the formality of a probate proceeding". (p. 63, appellants'
brief .
While they are many cases which uphold the view entertained by counsel for oppositors, and that
view appears to be in controlling the states where the decisions had been promulgated, however, we
are reluctant to fall in line with the assertion that is now the prevailing view in the United States. In
the search we have made of American authorities on the subject, we found ourselves in a pool of
conflicting opinions perhaps because of the peculiar provisions contained in the statutes adopted by
each State in the subject of revocation of wills. But the impression we gathered from a review and
the study of the pertinent authorities is that the doctrine laid down in the Samson case is still a good
law. On page 328 of the American Jurisprudence Vol. 57, which is a revision Published in 1948, we
found the following passages which in our opinion truly reflect the present trend of American
jurisprudence on this matter affecting the revocation of wills:
SEC. 471. Observance of Formalities in Execution of Instrument. Ordinarily, statutes
which permit the revocation of a will by another writing provide that to be effective as a
revocation, the writing must be executed with the same formalities which are required to be
observed in the execution of a will. Accordingly, where, under the statutes, attestation is
necessary to the making of a valid will, an unattested non testamentary writing is not
effective to revoke a prior will. It has been held that a writing fails as a revoking instrument
where it is not executed with the formalities requisite for the execution of a will, even though
it is inscribed on the will itself, although it may effect a revocation by cancellation or
obliteration of the words of the will. A testator cannot reserve to himself the power to modify
a will by a written instrument subsequently prepared but not executed in the manner required
for a will.
SEC, 472. Subsequent Unexecuted, Invalid, or Ineffective Will or Codicil. A will which is
invalid because of the incapacity of the testator, or of undue influence can have no effect
whatever as a revoking will. Moreover, a will is not revoked by the unexecuted draft of a later
one. Nor is a will revoked by a defectively executed will or codicil, even though the latter
contains a clause expressly revoking the former will, in a jurisdiction where it is provided by a
controlling statute that no writing other than a testamentary instrument is sufficient to revoke
a will, for the simple reason that there is no revoking will. Similarly where the statute provides
that a will may be revoked by a subsequent will or other writing executed with the same
formalities as are required in the execution of wills, a defectively executed will does not
revoke a prior will, since it cannot be said that there is a writing which complies with the
statute. Moreover, a will or codicil which, on account of the manner in which it is executed, is
sufficient to pass only personally does not affect dispositions of real estate made by a former
will, even though it may expressly purport to do so. The intent of the testator to revoke is
immaterial, if he has not complied with the statute. (57 Am. Jur., 328, 329.)
We find the same opinion in the American Law Reports, Annotated, edited in 1939. On page 1400,
Volume 123, there appear many authorities on the "application of rules where second will is invalid",
among which a typical one is the following:
It is universally agreed that where the second will is invalid on account of not being executed
in accordance with the provisions of the statute, or where the testator who has not sufficient
mental capacity to make a will or the will is procured through undue influence, or the such, in
other words, where the second will is really no will, it does not revoke the first will or affect it
in any manner. Mort vs. Baker University (193-5) 229 Mo. App., 632, 78 S.W. (2d), 498.
These treaties cannot be mistaken. They uphold the view on which the ruling in the Samson case is
predicated. They reflect the opinion that this ruling is sound and good and for this reason, we see no
justification for abondoning it as now suggested by counsel for the oppositors.
It is true that our law on the matter (sec. 623, Code Civil Procedure) provides that a will may be
some will, codicil, or other writing executed as proved in case of wills" but it cannot be said that the
1939 will should be regarded, not as a will within the meaning of said word, but as "other writing
executed as provided in the case of wills", simply because it was denied probate. And even if it be
regarded as any other writing within the meaning of said clause, there is authority for holding that
unless said writing is admitted to probate, it cannot have the effect of revocation. (See 57 Am. Jur.
pp. 329-330).
But counsel for oppositors contemned that, regardless of said revocatory clause, said will of 1918
cannot still be given effect because of the presumption that it was deliberately revoked by the
testator himself. The oppositors contend that the testator, after executing the 1939 will, and with full
knowledge of the recovatory clause contained said will, himself deliberately destroyed the original of
the 1918 will, and for that reason the will submitted by petitioner for probate in these proceedings is
only a duplicate of said original.
There is no evidence which may directly indicate that the testator deliberately destroyed the original
of the 1918 will because of his knowledge of the revocatory clause contained in the will he executed
in 1939. The only evidence we have is that when the first will was executed in 1918, Juan Salcedo,
who prepared it, gave the original and copies to the testator himself and apparently they remained in
his possession until he executed his second will in 1939. And when the 1939 will was denied probate
on November 29, 1943, and petitioner was asked by her attorney to look for another will, she found
the duplicate copy (Exhibit A) among the papers or files of the testator. She did not find the original.
If it can be inferred that the testator deliberately destroyed the 1918 will because of his knowledge of the
revocatory clause of the 1939 will, and it is true that he gave a duplicate copy thereof to his wife, the
herein petitioner, the most logical step for the testator to take is to recall said duplicate copy in order that
it may likewise be destroyed. But this was not done as shown by the fact that said duplicate copy
remained in the possession of petitioner. It is possible that because of the long lapse of twenty-one (21)
years since the first will was executed, the original of the will had been misplaced or lost, and forgetting
that there was a copy, the testator deemed it wise to execute another will containing exactly the same
testamentary dispositions. Whatever may be the conclusion we may draw from this chain of
circumstances, the stubborn fact is that there is no direct evidence of voluntary or deliberate destruction
of the first will by the testator. This matter cannot be inference or conjectur.
Granting for the sake of argument that the earlier will was voluntarily destroyed by the testator after the
execution of the second will, which revoked the first, could there be any doubt, under this theory, that said
earlier will was destroyed by the testator in the honest belief that it was no longer necessary because he
had expressly revoked it in his will of 1939? In other words, can we not say that the destruction of the
earlier will was but the necessary consequence of the testator's belief that the revocatory clause
contained in the subsequent will was valid and the latter would be given effect? If such is the case, then it
is our opinion that the earlier will can still be admitted to probate under the principle of "dependent relative
revocation".
This doctrine is known as that of dependent relative revocation, and is usually applied where the
testator cancels or destroys a will or executes an instrument intended to revoke a will with a
present intention to make a new testamentary disposition as a substitute for the old, and the new
disposition is not made or, if made, fails of effect for same reason. The doctrine is n limited to the
existence of some other document, however, and has been applied where a will was destroyed
as a consequence of a mistake of law. . . . (68 C.J.P. 799).
The rule is established that where the act of destruction is connected with the making of another
will so as fairly to raise the inference that the testator meant the revocation of the old to depend
upon the efficacy of a new disposition intended to be substituted, the revocation will be
conditional and dependent upon the efficacy of the new disposition; and if, for any reason, the
new will intended to be made as a substitute is inoperative, the revocation fails and the original
will remains in full force. (Gardner, pp. 232, 233.)
This is the doctrine of dependent relative revocation. The failure of a new testamentary
disposition upon whose validity the revocation depends, is equivalent to the non-fulfillment of a
suspensive conditions, and hence prevents the revocation of the original will. But a mere intent to
make at some time a will in the place of that destroyed will not render the destruction conditional.
It must appear that the revocation is dependent upon the valid execution of a new will. (1
Alexander, p. 751; Gardner, p. 253.)
We hold therefore, that even in the supposition that the destruction of the original will by the testator could
be presumed from the failure of the petitioner to produce it in court, such destruction cannot have the
effect of defeating the prior will of 1918 because of the fact that it is founded on the mistaken belief that
the will of 1939 has been validly executed and would be given due effect. The theory on which this
principle is predicated is that the testator did not intend to die intestate. And this intention is clearly
manifest when he executed two wills on two different occasion and instituted his wife as his universal heir.
There can therefore be no mistake as to his intention of dying testate.
The remaining question to be determined refers to the sufficiency of the evidence to prove the due execution of the
will.
The will in question was attested, as required by law, by three witnesses, Lorenzo Morales, Rufino Enriquez, and
Angel Cuenca. The first two witnesses died before the commencement of the present proceedings. So the only
instrumental witness available was Angel Cuenca and under our law and precedents, his testimony is sufficient to
prove the due execution of the will. However, petitioner presented not only the testimony of Cuenca but placed on the
witness stand Juan Salcedo, the notary public who prepared and notarized the will upon the express desire and
instruction of the testator, The testimony of these witnesses shows that the will had been executed in the manner
required by law. We have read their testimony and we were impressed by their readiness and sincerity. We are
convinced that they told the truth.
Wherefore, the order appealed from is hereby affirmed, with costs against the appellants.1wphl. nt
Paras, C.J. Feria, Pablo Bengzon, Tuason and Jugo JJ.,

G.R. No. L-26306 April 27, 1988
106 Phil 59
TESTATE ESTATE OF THE LATE GREGORIO VENTURA MARIA VENTURA, executrix-
appellant, MIGUEL VENTURA and JUANA CARDONA, heirs-appellants,
vs.
GREGORIA VENTURA and HER HUSBAND, EXEQUIEL VICTORIO, MERCEDES VENTURA and
HER HUSBAND, PEDRO D. CORPUZ, oppositors-appellees.

PARAS, J .:
This is an appeal from the order of the Court of First Instance of Nueva Ecija, Guimba, Branch V in
Special Proceedings No. 812, Testate of the late Gregorio Venture, dated October 5, 1965,
removing the appellant Maria Ventura as executrix and administratrix of the estate of the late
Gregorio Ventura, and in her place appointing the appellees Mercedes Ventura and Gregoria
Ventura as joint administratrices of the estate. (Record on Appeal, pp. 120-131.)
Appellant Maria Ventura is the illegitimate daughter of the deceased Gregorio Ventura while Miguel
Ventura and Juana Cardona are his son and saving spouse who are also the brother and mother of
Maria Ventura. On the other hand, appellees Mercedes and Gregoria Ventura are the deceased's
legitimate children with his former wife, the late Paulina Simpliciano (Record on Appeal, p. 122) but
the paternity of appellees was denied by the deceased in his will (Record on Appeal, p. 4).
On December 14,1953, Gregorio Ventura filed a petition for the probate of his will which did not
include the appellees and the petition was docketed as Special Proceedings No. 812 (Record on
Appeal, pp. 1-3). In the said will, the appellant Maria Ventura, although an illegitimate child, was
named and appointed by the testator to be the executrix of his will and the administratrix of his
estate (Record on Appeal, p. 7).
In due course, said will was admitted to probate on January 14,1954 (Record on Appeal, pp. 8-10).
Gregorio Ventura died on September 26,1955. On October 10, 1955, the appellant Maria Ventura
filed a motion for her appointment as executrix and for the issuance of letters testamentary in her
favor (Record on Appeal, pp. 10-11). On October 17, 1955, Maria Ventura was appointed executrix
and the corresponding letters testamentary was issued in her favor (Record on Appeal, pp. 11-12).
On or about July 26, 1956, Maria Ventura submitted an inventory of the estate of Gregorio Ventura
(Record on Appeal, pp. 12-20).
On June 17,1960, she filed her accounts of administration for the years 1955 to 1960, inclusive.
(Record on Appeal, pp. 20-27). Said account of administration was opposed by the spouses
Mercedes Ventura and Pedro Corpuz on July 25, 1960 (Record on Appeal, pp. 27-33) and by
Exequiel Victorio and Gregoria Ventura on August 5,1963 (Record on Appeal, pp. 46-50). Both
oppositions assailed the veracity of the report as not reflecting the true income of the estate and the
expenses which allegedly are not administration expenses. But on January 25, 1961, Maria Ventura
filed a motion to hold in abeyance the approval of the accounts of administration or to have their
approval without the opposition of the spouses Mercedes Ventura and Pedro Corpuz and Gregoria
Ventura and Exequiel Victorio on the ground that the question of the paternity of Mercedes Ventura
and Gregoria Ventura is still pending final determination before the Supreme Court and that should
they be adjudged the adulterous children of testator, as claimed, they are not entitled to inherit nor to
oppose the approval of the counts of administration (Record on Appeals, pp. 33-36). Spouses
Mercedes Ventura and Pedro Corpuz filed on February 2, 1961 their opposition to the motion to hold
in abeyance the approval of the accounts of administration on the ground that Mercedes and
Gregoria Ventura had already been declared by the Court of First Instance in Civil Cases No. 1064
and 1476, which cases are supposed to be pending before the Supreme Court, as the legitimate
children of Gregorio Ventura, hence, they have reason to protect their interest (Record on Appeal,
pp. 36-39). On February 9,1961, the motion to hold in abeyance the approval of the accounts was
denied (Record on Appeal, pp. 39-40).
It appears that on July 12, 1963, the Court set the case for pre-trial on August 7, 1963 in connection
with the accounts of the executrix Maria Ventura dated June 17, 1960 and the Motion to Annul
Provision of Will dated July 14,1962 of Mercedes Ventura (Record on Appeal, p. 45).
On October 22, 1963, four motions were filed by Mercedes Ventura and Gregoria Ventura, namely:
(1) motion to remove the executrix Maria Ventura which was supplemented on April 27, 1965; (2)
motion to require her to deposit the harvest of palay of the property under administration in a bonded
warehouse; (3) motion to render an accounting of the proceeds and expenses of Administration; and
(4) motion to require her to include in the inventory of the estate certain excluded properties (Record
on Appeal, pp. 50-53; 71). An opposition to said motions was filed by the heirs Juana Cardona and
Miguel Ventura and by the executrix Maria Ventura herself (Record on Appeal, pp. 56-61; 61-70 and
71).
On motion of counsel for Exequiel Victorio and Gregoria Ventura the joint motions to require an Up-
to-date Accounting and to Require Executrix Ventura to Include Excluded Properties in Her Inventory
were ordered withdrawn (Order dated February 2, 1965, Record on Appeal, p. 73). The other two
motions were however set for hearing.
The grounds of aforesaid joint motions to remove the executrix Maria Ventura are: (1) that she is
grossly incompetent; (2) that she has maliciously and purposely concealed certain properties of the
estate in the inventory; (3) that she is merely an illegitimate daughter who can have no harmonious
relations with the appellees; (4) that the executrix has neglected to render her accounts and failed to
comply with the Order of the Court of December 12, 1963, requiring her to file her accounts of
administration for the years 1961 to 1963 (Record on Appeal, pp. 70 and 75-76) and the Order of
June 11, 1964, reiterating aforesaid Order of December 12, 1963 (Record on Appeal, p. 76); and (5)
that she is with permanent physical defect hindering her from efficiently performing her duties as an
executrix (Record on Appeal, pp. 50-53 and 74-79).
On May 17, 1965, the executrix Maria Ventura finally submitted her accounts of administration
covering the period 1961 to 1965 (Record on Appeal, pp. 79-84) which were again opposed by the
spouses Exequiel Victorio and Gregoria Ventura on September 21, 1965 and by the spouses
Mercedes Ventura and Pedro Corpuz on September 29, 1965 (Record on Appeal, pp. 106-120). On
June 2, 1965, the executrix filed her supplemental opposition to the aforesaid four motions, and
prayed that the joint supplemental motion to remove the executrix be denied or held in abeyance
until after the status of Mercedes and Gregoria Ventura as heirs of the testator is finally decided
(Record on Appeal, pp. 85-1 01). On June 3, 1965, the Court, finding that the estate taxes have not
been paid, ordered the administratrix to pay the same within thirty (30) days. On September 13,
1965, the lower court denied the suspension of the proceedings and deferred the resolution of the
joint motion to remove executrix Maria Ventura until after the examination of the physical fitness of
said executrix to undertake her duties as such. Also, it ordered the deposit of all palay to be
harvested in the next agricultural year and subsequent years to be deposited in a bonded
warehouse to be selected by the Court and the palay so deposited shall not be withdrawn without
the express permission of the Court (Record on Appeal, pp. 103-105). On September 21, 1965,
spouses Exequiel Victorio and Gregoria Ventura filed their opposition to the accounts of
administration of Maria Ventura dated May 17, 1965, while that of spouses Mercedes Ventura and
Pedro Corpuz was filed on September 29, 1965, both oppositions alleging among others that said
accounts do not reflect the true and actual income of the estate and that the expenses reported
thereunder are fake, exhorbitant and speculative (Record on Appeal, pp. 106-120).
On October 5, 1965, the court a quo, finding that the executrix Maria Ventura has squandered the
funds of the estate, was inefficient and incompetent, has failed to comply with the orders of the Court
in the matter of presenting up-to-date statements of accounts and neglected to pay the real estate
taxes of the estate, rendered the questioned decision, the dispositive portion of which reads:
WHEREFORE, Maria Ventura is hereby removed as executrix and administratrix of
the estate and in her place Mercedes Ventura and Gregoria Ventura are hereby
appointed joint a tratrices of the estate upon filing by each of them of a bond of P
7,000.00. Let letters of administration be issued to Mercedes Ventura and Gregoria
Ventura upon their qualification.
IT IS SO ORDERED.
(Record on Appeal pp. 120-131).
Hence, this appeal.
In their brief, appellants Maria Ventura and spouses Juana Cardona and Miguel Ventura assign the
following errors allegedly committed by the probate court:
ASSIGNMENT OF ERRORS
I
The lower court erred in ordering the removal of Maria Ventura as executrix and
administratrix of the will and estate of the deceased Gregorio Ventura without giving
her full opportunity to be heard and to present all her evidence.
II
The lower court erred in finding that the executrix Maria Ventura had squandered and
dissipated the funds of the estate under her administration.
III
The lower court erred in finding that the executrix Maria Ventura was inefficient and
incompetent.
IV
That, considering the circumtances surrounding the case, the lower court erred in
finding that the failure of Maria Ventura to submit her periodical account had justified
her removal as executrix.
V
The lower court erred in considering as an established fact that the appellees
Mercedes Ventura and Gregoria Ventura are the legitimate daughters of the
deceased Gregorio Ventura.
VI
The lower court erred in finding that the devises and bequests in favor of Maria
Ventura and Miguel Ventura as specified in paragraph 8 of the last Will and
Testament of the late Gregorio Ventura have ipso facto been annulled.
VII
The lower court erred in allowing the appellees Mercedes Ventura and Gregoria
Ventura to intervene in the hearing of the accounts of administration submitted by the
executrix Maria Ventura and/or in not suspending the hearing of the said accounts
until the said appellees have finally established their status as legitimate children of
the deceased Gregorio Ventura.
VIII
The lower court erred in appointing (even without a proper petition for appointment
and much less a hearing on the appointment of) the appellees Mercedes Ventura
and Gregoria Ventura who have an adverse interest as joint administratrices of the
estate of the deceased Gregorio Ventura.
IX
The lower court erred in not appointing the surviving widow, Juana Cardona, or
Miguel Ventura, as administratrix of the estate of Gregorio Ventura in case the
removal of Maria Ventura as executrix and administratrix thereof is legally justified.
X
Considering that there are in fact two (2) factions representing opposite interests in
the estate, the lower court erred in not appointing Juana Cardona, or Miguel Ventura,
as one of the two (2) administratrices.' (Joint Brief for the Appellants, pp. 1-4)
On July 19,1967, Atty. Arturo Tolentino (representing appellees Mercedes Ventura and Pedro
Corpuz) and Atty. Jose J. Francisco (representing Gregoria and Exequiel Victoria), having failed to
submit their respective briefs within the period for the purpose, which expired on July 2 and May
29,1967, respectively, the Supreme Court Resolved to consider this case submitted for decision
WITHOUT SAID APPELLEES' BRIEF (Rollo, p. 152).
The crucial issue in this case is whether or not the removal of Maria Ventura as executrix is legally
justified. This issue has, however, become moot and academic in view of the decision of this Court
in related cases.
At the outset, it is worthy to note that aside from the instant special proceedings, there are two other
civil cases involving the estate of the deceased Gregoria Ventura, namely, Civil Cases Nos. 1064
and 1476. Civil Case No. 1064 was filed on December 2, 1952 by herein appellee Gregoria Ventura
in the Court of First Instance of Nueva Ecija, Branch I, against the other appellees herein Mercedes
Ventura and their father, Gregorio Ventura. Later Mercedes Ventura joined cause with Gregoria
Ventura. (Record on Appeal, p. 95). Gregoria and Mercedes Ventura claimed that they are the
legitimate children of Gregorio Ventura and his wife Paulina Simpliciano, who died in 1943, and
asked that one-half of the properties described in the complaint be declared as the share of their
mother in the conjugal partnership, with them as the only forced heirs of their mother Paulina (Joint
Brief for the Appellants, pp. 53-68).
Subsequently, Civil Case No. 1476 was filed by Alipio, Eufracia and Juliana, all surnamed
Simpliciano, against Gregorio Ventura and the two sisters, Mercedes and Gregoria Ventura, before
the Court of First Instance of Nueva Ecija, Branch I. They alleged that as the only children of
Modesto Simpliciano, sole brother of Paulina Simpliciano, they, instead of Mercedes and Gregoria
Ventura, whom they claimed are adulterous children of Paulina with another man, Teodoro Ventura
and as such are not entitled to inherit from her, are the ones who should inherit the share of Paulina
Simpliciano in the conjugal Partnership with Gregorio Ventura (Joint Brief For The Appealant,pp.69-
79)
It appears that on November 4, 1959, after a joint hearing of Civil Cases Nos. 1064 and 1476, the
lower court rendered its judgment, the dispositive portion of which reads as follows:
WHEREFORE, judgment is hereby rendered declaring Mercedes Ventura and
Gregoria Ventura to be the ligitimate daughters of Paulina Simpliciano and Gregorio
Ventura; declaring that as such ligitimate daughters of Paulina Simpliciano they are
entitled to 1/2 of the properties described in paragraph six of the complaint; ordering
the defendant Maria Ventura, as administratrix of the estate of Gregorio Ventura to
pay to Mercedes Ventura and Gregorio Ventura the amount of P 19,074.09 which
shall be divided equally between Mercedes and Gregoria Ventura declaring
Mercedes Ventura and Pedro Corpuz are the exclusive owners of the property
describe in the certificate of Title Nos. T-1102, 212, T-1213, T-1214, Exhibits 32, 33,
34 and 35, respectively; ordering Mercedes Ventura and Pedro D. Corpuz to pay to
the conjugal partnership of Gregorio Ventura and Paulina Simpliciano the sum of
P100,000.00, one-half of which shall pertain to the estate of Gregorio Ventura and
the other half to the estate of Paulina Simpliciano to whom Mercedes and Gregoria
Ventura have succeeded, to be divided between Mercedes and Gregoria in equal
parts; and dismissing Civil Case No. 1476. The parties are urged to arrive at an
amicable partition of the properties herein adjudicated within twenty days from
receipt of this decision. Upon their failure to do so, the Court shall appoint
commissioners to divide the properties in accordance with the terms of the decision.
Without pronouncements as to costs. (Emphasis supplied). (Joint Brief for the
Appellants, pp. 3738.)
Thereafter, on July 14, 1962, Mercedes Ventura filed a motion to annul the provisions of the will of
the deceased Gregorio Ventura in Special Proceedings No. 812, which motion was opposed by
Miguel Ventura and Juana Cardona and later by Maria Ventura. They claimed that the decision
dated November 4,1959 in Civil Cases Nos. 1064 and 1476 was not yet final.
On February 26,1964, the court annulled the institution of the heirs in the probated will of Gregorio
Ventura. The motion for reconsideration of the aforesaid order filed by executrix Maria Ventura was
denied on June 11, 1964.
Accordingly, Maria Ventura appealed the February 26, 1964 and June 11, 1964 orders of the
probate court in Special Proceedings No. 812 before the Supreme Court and was docketed as G.R.
No. L-23878. On May 27,1977, this Court, through then Associate Justice Antonio P. Barredo, ruled,
as follows:
And so, acting on appellees' motion to dismiss appeal, it is Our considered opinion
that the decision in Civil Cases Nos.1064 and 1476 declaring that appellees
Mercedes and Gregoria Ventura are the ligimate children of the deceased Gregorio
Ventura and his wife, Paulina Simpliciano, and as such are entitled to the annulment
of the institution of heirs made in the probated will of said deceased became final and
executory upon the finality of the order, approving ther partition directed in the
decision in question. We need not indulge in any discussion as to whether or not, as
of the time the orders here in question were issued by the trial court said decision
had the nature of an interlocutory order only. To be sure, in the case of Miranda,
aforementioned, the opinion of the majority of the Court may well be invoked against
appellant's pose. In any event, even if the Court were minded to modify again
Miranda and go back to Fuentebella and Zaldariaga and it is not, as of now
there can be no question that the approval by the trial court in Civil Cases Nos. 1064
and 1476 of the partition report of the commissioners appointed for the purpose, one
of whom, Emmanuel Mariano, is the husband of appellant, put a definite end to those
cases, leaving nothing else to be done in the trial court. That order of approval is an
appealable one, and inasmuch as no appeal has been taken from the same, it is
beyond dispute that the decision in controversy has already become final and
executory in all respects. Hence, the case at bar has become moot and academic.
(Ventura vs. Ventura, 77 SCRA 159, May 27,1977)
Under Article 854 of the Civil Code, "the pretention 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," and as a result, intestacy follows, thereby rendering the previous
appointment of Maria Ventura as executrix moot and academic. This would now necessitate the
appointment of another administrator, under the following provision:
Section 6, Rule 78 of the Rules of Court:
When and to whom letters of administration granted.-If no executor is named in the
will, or the executor or executors are incompetent, refuse the trust, or fail to give
bond, or a person dies intestate, a petition shall be granted:
(a) To the surviving husband or wife, as the case may be or next of kin, or both, in
the discretion of the court, or to such person as such surviving husband or wife, or
both, in the discretion of the court, or to such person as such surviving husband or
wife, or next of kin, requests to have appointed, if competent and willing to serve;"
xxx xxx xxx
In the case at bar, the surviving spouse of the deceased Gregorio Ventura is Juana Cardona while
the next of kin are: Mercedes and Gregoria Ventura and Maria and Miguel Ventura. The "next of kin"
has been defined as those persons who are entitled under the statute of distribution to the
decedent's property (Cooper vs. Cooper, 43 Ind. A. 620, 88 NE 341). It is generally said that "the
nearest of kin, whose interest in the estate is more preponderant, is preferred in the choice of
administrator. 'Among members of a class the strongest ground for preference is the amount or
preponderance of interest. As between next of kin, the nearest of kin is to be preferred." (Cabanas,
et al. vs. Enage et al., 40 Off. Gaz. 12 Suppl. 227; citing 12 Am. Jur. Sec. 77, p. 416, cited in
Francisco Vicente J., The Revised Rules of Court in the Philippines, Vol. V-B 1970 Ed., p. 23).
As decided by the lower court and sustained by the Supreme Court, Mercedes and Gregoria Ventura
are the legitimate children of Gregorio Ventura and his wife, the late Paulina Simpliciano. Therefore,
as the nearest of kin of Gregorio Ventura they are entitled to preference over the illegitimate children
of Gregorio Ventura, namely: Maria and Miguel Ventura. Hence, under the aforestated preference
provided in Section 6 of Rule 78, the person or persons to be appointed administrator are Juana
Cardona, as the surviving spouse, or Mercedes and Gregoria Ventura as nearest of kin, or Juana
Cardona and Mercedes and Gregoria Ventura in the discretion of the Court, in order to represent
both interests.
PREMISES CONSIDERED, the appeal interposed by appellants Maria Ventura, Juana Cardona and
Miguel Ventura is hereby DISMISSED.
SO ORDERED.
Padilla and Sarmiento, JJ., concur.

[G.R. No. L-5405. January 31, 1956.]
98 Phil 249
ERNESTO M. GUEVARA, Petitioner, vs. ROSARIO GUEVARA and PEDRO C. QUINTO, Respondents.

D E C I S I O N
CONCEPCION, J.:
This is a petition for review by certiorari of a decision of the Court of Appeals. The pertinent facts are set
forth in said decision, from which we quote:chanroblesvirtuallawlibrary
This case being the sequel to, and aftermath of, a previous litigation between the parties that reached
the Supreme Court, through the former Court of Appeals, it becomes necessary to restate the essential
antecedent facts to view the issues in proper perspective. For this purpose, it is important to recall that
on August 26, 1931, Victorino L. Guevara, a resident of Bayambang, Pangasinan, executed a will (Exhibit
A), distributing assorted movables and a residential lot among his children, Rosario and Ernesto
Guevara, and his stepchildren, Vivencio, Eduvigis, Dionista, Candida, and Pio Guevara. To his second wife
Augustia Posadas, the testator bequeathed, in addition to various movables, a portion of 25 hectares to
be taken out of a 259 odd hectare parcel outlined in Plan Psu-68618, plus another five (5) hectares in
settlement of her widows usufruct. The balance of the 259 odd hectares he distributed as follows:chanroblesvirtuallawlibrary
100 hectares reserved for disposal during the testators lifetime and for payment of his debts and family
expenses;
108.0854 hectares to his legitimate son Ernesto Guevara, including therein 43.2342 hectares by way of
mejora;
21.6171 hectares to mi hija natural reconocida Rosario Guevara.
Ernesto Guevara was appointed executor without bond.
On July 12, 1933, the same testator executed a deed of sale in favor of Ernesto Guevara, conveying to
the latter the southern half of the 259-hectare lot heretofore mentioned, and expressly recognized
Ernesto Guevara as owner of the northern half.
Prior to this sale, on November 1, 1932, Victorino and his son Ernesto had jointly applied for registration
of the big parcel (case No. 15174), but in view of the sale from the former to the latter, the decree was
issued in the name of Ernesto Guevara exclusively and for the whole tract, a certificate of title (No.
51691 of Pangasinan) being issued in his sole name on October 12, 1933.
Fifteen days previously, i.e., on September 27, 1933, Victorino Guevara died, but his will was not filed
for probate. About four years later, Rosario Guevara, claiming to be a recognized natural child of the
deceased Victorino, and on the assumption that he had died intestate, brought suit against Ernesto
Guevara to recover 423,492 square meters of the tract covered by certificate of title No. 51691 as the
portion that should correspond to her (Rosario) by way of legitime.
The case reached the former Court of Appeals in due course and was decided in Rosario Guevaras favor
(Exhibit E); chan roblesvirtualawlibrarybut upon certiorari, the Supreme Court modified the judgment in December, 1943, as
follows (Exhibit F);
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 latters
assumption of the obligation to pay all the debts of the deceased, is hereby affirmed; chan roblesvirtualawlibrarybut the
judgment of said court insofar as it awarded any relief to the Respondent Rosario Guevara in this action
is hereby reversed and set aside, and the parties 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 herein 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.
(Appellants Brief, pp. 13-14.)
Claiming to act pursuant to the foregoing decision, Rosario Guevara commenced on October 5, 1945,
special proceedings No. 2646 in the Court of First Instance of Pangasinan for the probate of the will of
Victorino Guevara. In paragraph 10 of the petition, it was alleged:chanroblesvirtuallawlibrary
10. Que dicho testamento, o sus disposiciones testamentarias, ha sido de jure revocado, o revocados,
en cuanto a la parcela de terreno de 259 hectareas descrita en dicho testamento, por haber el testador
enajenado o dispuesto intervivos de la misma en la forma mencionada en las tres decisiones supra-
mencionadas; chan roblesvirtualawlibraryy que la solicitante pide la legalizacion de dicho testamento tan solo para los efectos
del reconocimiento de hija natural hecha en dicho testamento a favor de la demandante y en
obediencia al mandato de la Corte Suprema en su decision supra. (Record on Appeal, p. 5.)
Notice of the petition having been duly published pursuant to Rule of Court 77, section 4, Ernesto
Guevara appeared and opposed the probate. Pedro L. Quinto, counsel for Rosario in the former
litigation, was allowed to intervene in view of his duly recorded attorneys lien.
On January 31, 1946, Ernesto Guevara, through counsel, filed a motion to dismiss the petition on the
grounds that (a) the petition itself alleged that the will was revoked; chan roblesvirtualawlibrary(b) that whatever right to
probate the parties may have has already prescribed (Record on Appeal, p. 14); chan roblesvirtualawlibraryand (c) that the
purpose of the probate was solely to have Petitioner Rosario declared an acknowledged natural child of
the deceased.
By order of December 9, 1946, Judge Sotero Rodas denied the motion to dismiss; chan roblesvirtualawlibrarybut upon motion of
reconsideration, Judge Maalac of the same court, on June 23, 1937, reconsidered and set aside the
previous resolution and ordered the petition dismissed on the ground that Rosario Guevaras petition
did not ask for the probate in toto of the will, contrary to the order of the Supreme Court; chan roblesvirtualawlibrarythat her
right to petition for the probate of the testament of Victorino L. Guevara had prescribed; chan roblesvirtualawlibraryand that her
action for judicial declaration of acknowledgment had likewise prescribed.
An amended petition for the probate of the will in toto and another petition to reconsider the previous
order were subsequently denied; chan roblesvirtualawlibrarythe former on the ground that there was a radical change of theory
from that embodied in the original petition, and the second for the same reasons stated in the order of
June 23, 1947. Rosario L. Guevara and Pedro L. Quinto thereupon brought the case on appeal to this
Court, assigning no less than twenty (20) alleged errors committed by the court below. (Guevara vs.
Guevara, C.A. G. R. No. 5416-R, promulgated December 26, 1951; chan roblesvirtualawlibrarysee Appendix to brief for
the Petitioner-Appellant, pp. 1-6.)
The dispositive part of the decision of the Court of Appeals reads as follows:chanroblesvirtuallawlibrary
The order of dismissal of the petition for probate is reversed and the court of origin ordered to
reinstate the petition, and to hear and decide whether the will of Victorino Guevara, deceased, should
be allowed to probate. Costs against Appellees in both instances. (Ibid.)
In his appeal therefrom, Petitioner Ernesto M. Guevara raises the following questions, to wit:chanroblesvirtuallawlibrary (a)
Did Respondents herein duly perfect their appeal from the decision of the Court of First Instance of
Pangasinan? (b) Did the Court of Appeals have jurisdiction to entertain said appeal? (c) Is the petition for
probate of the alleged will of the deceased Victorino L. Guevara barred by the statute of limitations?
(1) With reference to the first question, Petitioner has submitted the following statement 1 of the steps
taken since June 23, 1947, date of the resolution of Judge Maalac, dismissing the petition for probate
of the last will and testament of Victoriano L. Guevara:chanr oblesvirtuallawlibrary
June 23, 1947
Date of Resolution appealed from.
July 14, 1947
Date of Joint Petition for Reconsideration filed by Appellants.
July 25, 1947
Date of Amended petition for probate of will.
July 25, 1947
Motion for admission of Amended Petition.
August 2, 1947
Appellants motion to postpone hearing on petition for reconsideration and motion for admission of
Amended Petition.
August 10, 1947
Appellants urgent motion for continuance of hearing on joint petition for Reconsideration as well as
Motion to Admit Amended Petition.
August 25, 1947
Motion for extension of time to file memorandum.
September 1, 1947
Memorandum for Appellants submitted.
October 7, 1947
Memorandum for Appellee submitted.
October 14, 1947
Appellants petition for ten (10) days to file reply memorandum.
November 1, 1947
Appellants petition to file reply memorandum on or before November 9, 1947.
November 8, 1947
Appellants petition for extension to file reply memorandum.
November 18, 1947
Verified reply of Appellant Rosario Guevara.
November 24, 1947
Reply memorandum of Pedro C. Quinto filed.
January 12, 1948
Court denies both petitions of July 14 and 25, 1947.
January 24, 1948
Notice of appeal to Supreme Court and petition for thirty (30) days extension by AppellantRosario
Guevara.
January 29, 1948
Order granting petition for extension.
February 1, 1948
Another notice of appeal to Supreme Court and motion for thirty (30) days extension
byAppellant Rosario Guevara.
February 28, 1948
Appellants ex-parte petition for further extension.
March 6, 1948
Original joint Record on Appeal filed. (This was so defective and incomplete it consisted of mere
disjointed sheets of paper intercalated with one another and was a mere token record on appeal.)
March 8, 1948
Another joint petition for reconsideration of Appellants.
March 11, 1948
Appellees objection to record on appeal.
March 17, 1948
Verified reply of Appellants to objection.
March 18, 1948
Appellees objection to joint petition for reconsideration.
June 19, 1948
Appellants memorandum in support of the joint petition for reconsideration.
July 23, 1948
Order of denial of Joint Petition and disapproving original record on appeal as incomplete and
giving Appellants within 10 days from notice.
July 26, 1948
Amended Notice of Appeal to the Court of Appeals instead of to the Supreme Court.
July 28 and 29, 1948
Appellants received copy of order of July 23, 1948.
August 1, 1948
Petition for five (5) days extension to file amended Record on Appeal filed by Appellant Pedro C. Quinto.
August 10, 1948
Appellants Joint Petition for last extension of two (2) days.
August 10, 1948
Filing of amended joint record on appeal. (This is also again so defective and incomplete as to constitute
another mere token record on appeal as required by the Rules.)
August 24, 1948
Appellants petition for ten (10) days period to reply to objection, if any was to be filed.
August 27, 1948
Appellees objection to amended record on appeal.
September 8, 1948
Appellants reply to objection.
October 20, 1948
Court order sustaining objection and gives Appellants fifteen (15) days from notice to redraft record on
appeal.
November 3, 1948
Appellants joint petition to reconsider order of disapproval of Amended Record on Appeal.
November 3, 1948
Appellants file re-amended joint record on appeal. (This again disregarded the orders of the court
regarding the contents of the record on appeal.).
November 22, 1948
Appellee objected to approval of re-amended joint record on appeal and prayed that order appealed
from be declared final.
March 22, 1949
Court sustains Appellees objection to record on appeal denying petition for reconsideration
and Appellants given fifteen (15) days from notice to satisfy requirements of courts previous order.
April 8, 1949
Appellants file in Supreme Court petition for certiorari and mandamus attacking order of June 23, 1947.
April 11, 1949
Appellant Quintos petition for fifteen (15) days extension to file Re-amended Record on Appeal.
April 12, 1949
Supreme Court denies petition off-hand.
April 16, 1949
Appellant Rosario Guevaras motion for fifteen (15) days extension for the same purpose.
April 21, 1949
Court granted extension prayed for to expire May 1, 1948.
April 21, 1949
Second Re-Amended Record on Appeal filed.
June 11, 1949
Appellees opposition to Second Re-Amended Record on Appeal.
June 29, 1949
Appellants joint notice of hearing on Second Re-Amended Record on Appeal for July 12, 1949.
July 10, 1949
Appellants joint reply to opposition.
July 12, 1949
Action on record on appeal deferred on petition of Atty. Quinto.
September 3, 1949
Appellant Quintos notice of hearing on Second Re-Amended Record on Appeal for September 28, 1949.
September 28, 1949
Order of court approving same.
December 8, 1949
Clerk of lower court sends records to appellate court.
December 10, 1949
Appellant Quintos motion ex-parte to have records sent up to appellate court.
(Petitioner-Appellants Brief, pp. 41-47.)
Based upon the foregoing, Oppositor and Appellee Ernesto M. Guevara filed, with the Court of Appeals,
a motion praying that the appeal be dismissed:chanroblesvirtuallawlibrary
(a) Because due to the Appellants many and repeated dilatory tactics, the prosecution of their appeal
has been unduly and unreasonably delayed for a period which should strike anyone as totally without
justification. The resolution appealed from was dictated by the lower court on June 23, 1947, so that a
period of over two (2) years and nine (9) months until the date of this writing has elapsed, thus
establishing a record-holding delay which should not be sanctioned by the Courts as prejudicial to the
administration of justice.
(b) Because Appellants, in violation of Rule 48, section 3, did not diligently prosecute their appeal by
failing to have the record sent up to this Honorable Court within thirty (30) days from the time their
Second Re-amended Record on Appeal was approved on September 28, 1949; chan roblesvirtualawlibraryand it was only so
transmitted on December 8, 1949, that is after the lapse of two (2) months and ten (10) days.
(c) Because, at any rate, the first Amended Joint Record on Appeal was filed beyond the extension
granted by the Court and, consequently, the Appellants right to appeal has lapsed. (Exhibit A, pp. 1-2).
The Court of Appeals denied said motion to dismiss for the following reasons:chanroblesvirtuallawlibrary
A preliminary question was posed by the Appellee who prayed for the dismissal of the appeal on the
ground that Petitioners-Appellants had unreasonably delayed the perfection of the appeal, as the
Second Re-amended Joint Record on Appeal was not certified to this Court until December, 1949. After
considering the voluminous record, and the arguments of both parties, we are of the opinion that both
parties have contributed to the delay with lengthy memoranda, and repeated motions and objections.
Moreover, the points in question are important enough to deserve adequate consideration upon the
merits. Wherefore, the motion to dismiss the appeal should be and is hereby, overruled and denied.
(Appendix to Brief for the Petitioner-Appellant, pp. 6- 7.)
It is urged by Petitioner herein that Respondents appeal from the decision of the Court of First Instance
of Pangasinan had not been duly perfected because:chanroblesvirtuallawlibrary (a) the original of the record on appeal did not
comply with the Rules of Court; chan roblesvirtualawlibrary(b) the record on appeal was filed after the lapse of the reglementary
period; chan roblesvirtualawlibrary(c) there has been an unprecedented delay in the filing of a satisfactory record on appeal; chan
roblesvirtualawlibraryand (d) the appeal should be deemed abandoned for violation of Rule 48, section 3, of the Rules of
Court.
The first ground is predicated upon the fact that, instead of transcribing the motions, petitions, orders
and resolutions incorporated in the original record on appeal, Respondents herein merely attached to
the original copy of said record on appeal, filed with the Court of First Instance of Pangasinan, their own
copies of said motions, petitions, orders and resolutions. Accordingly, the copy of said record on appeal
furnished to Petitioner herein did not contain or enclose the aforementioned parts of the record. It
appears, however, that the Respondentswere given several extensions of time within which to comply
with the pertinent provisions of the Rules of Court and that Respondents eventually did so. There being
no question about the authority of the court of first instance to grant said extensions of time, it is clear
that the first ground, relied upon by Petitioner herein, is untenable.
In support of the second ground, it is alleged:chanroblesvirtuallawlibrary (a) that the original record on appeal was filed by Pedro
C. Quinto only, and does not inure to the benefit of Rosario Guevara; chan roblesvirtualawlibraryand (b) thatRespondents had
lost their right to appeal by the lapse of the reglementary period. As regards the first
proposition, Petitioner asserts that Respondent Pedro C. Quinto had withdrawn his appearance as
counsel for Respondent Rosario Guevara; chan roblesvirtualawlibrarythat Quinto had, thereafter, intervened in the case in his
own behalf, in order to enforce his attorneys lien, as former counsel for Rosario Guevara; chan roblesvirtualawlibrarythat,
consequently, the original record on appeal and the petitions for extension of time to file an amended
record on appeal, filed by Pedro C. Quinto, were good only insofar as he is concerned, and cannot profit
Rosario Guevara, she having ceased to be his client long before the filing of said original record on
appeal and petitions for extension of time; chan roblesvirtualawlibrarythat this interest in the case arises from his rights as
former attorney forRespondent Rosario Guevara, and, as such, is subordinate to, and dependent upon,
the interest therein of said Rosario Guevara and the success of her claim therein; chan roblesvirtualawlibraryand that, her appeal
not having been duly perfected, his appeal must be deemed to have no legal effect. There is no merit in
this pretense, for it appears, at the foot of said record on appeal, that Pedro C. Quinto had filed the
same, for himself as Appellant and in behalf of Rosario Guevara, who authorized him to perfect the
appeal for both Appellants, and that similar statements were made in the body and at the foot of said
petitions for extension of time. It is clear, therefore, that the aforementioned record on appeal and
motions should be deemed submitted, also, byRespondent Rosario Guevara. The position then held by
Pedro C. Quinto, as special prosecutor in the office of the Solicitor General, did not nullify his aforesaid
acts on behalf of Rosario Guevara. Besides, said acts would seem to have been performed by him, more
as attorney-in- fact than as counsel for Rosario Guevara, and this merely in connection with the
perfection of her appeal. We do not find therein anything objectionable, either legally or morally, in the
light of the circumstances surrounding the case.
The second proposition is based upon the following reasons:chanroblesvirtuallawlibrary
(a) The aforementioned record on appeal and motions for extension of time filed by Quinto on behalf of
Rosario Guevara did not inure to her benefit, for which reason the reglementary period to appeal had
expired before the perfection of her appeal. For the reasons already adverted to, this argument is clearly
untenable.
(b) The petition for reconsideration filed by Respondents on July 14, 1947, did not suspend the running
of the period to perfect the record on appeal, because said petition did not comply with the provisions
of Rule 37, section 1, of the Rules of Court, reading as follows:chanroblesvirtuallawlibrary
Within thirty days after notice of the judgment in an action, the aggrieved party may move the trial
court to set aside the judgment end grant a new trial for one or more of the following causes materially
affecting the substantial rights of said party:chanroblesvirtuallawlibrary
(a) Fraud, accident, mistake or excusable negligence which ordinary prudence could not have guarded
against and by reason of which such aggrieved party has probably been impaired in his rights;
(b) Newly discovered evidence, which he could not, with reasonable diligence, have discovered, and
produced at the trial, and which if presented would probably alter the result;
(c) Because excessive damages have been awarded, or the evidence was insufficient to justify the
decision, or it is against the law.
Said petition for reconsideration appears, however, to be predicated, in effect, upon the ground that the
evidence is insufficient to justify the decision of the court of first instance, and that said decision is
contrary to law. It partakes, therefore, of the nature of a motion for new trial, stating specifically the
reasons in support thereof, and, hence, it suspended the period to appeal until the determination of
said motion.
Relative to the alleged unprecedented delay in the filing of a satisfactory record on appeal, we agree
with the finding of the Court of Appeals to the effect that the delay was due to the acts of
the Respondents, as well as of the Petitioner herein, for both had asked several postponements and
extensions of time, filed memoranda and reply memoranda, and raised or provoked a number of other
issues or incidents which necessarily delayed the perfection of the appeal. Obviously, Petitioner should
not be allowed to profit by said delay, to which he had actively contributed. 1
Lastly, Petitioner maintains that, although the record on appeal had been approved on September 28,
1949, it was not forwarded to the Court of Appeals until December 8, 1949. Section 3 of Rule 48 of the
Rules of Court provides:chanroblesvirtuallawlibrary
If the record on appeal is not received by the Court of Appeals within thirty days after the approval
thereof, the Appellee may, upon notice to the Appellant, move the court to grant an order directing the
clerk of the lower court forthwith to transmit such record on appeal or to declare the same abandoned
for failure to prosecute.
Considering that Respondents herein were not notified of the approval of the record on appeal until
December 8, 1949, on which date the record on appeal was forwarded to the Court of Appeals, and that
the aforementioned provision of the Rules of Court does impose upon said court the mandatory duty to
declare the appeal abandoned for failure to prosecute, we believe that no error was committed in giving
due course to the appeal and that the same has been duly perfected.
(2) Did the Court of Appeals have jurisdiction to try the case, on appeal from the decision of the court of
first instance? Petitioner maintains the negative, upon the ground that the appeal involved only
questions of law. This is not correct, for the very motion for reconsideration adverted to above,
indicated that the appeal raised some issues of fact, such as, for instance, whether or not the will in
question was in the possession of Respondent Rosario Guevara and whether Respondent Quinto had
been authorized by her to perfect the appeal on her behalf. At any rate, the case is now before us and,
upon examination of the record and consideration of all the issues therein raised, we are of the opinion
that, had the appeal been forwarded directly to this Court, we would have disposed of it in the manner
set forth in the decision of the Court of Appeals, the review of which is sought by herein Appellant.
(3) The last question for determination in this case is whether or not the petition for probate of the will
of Victorino L. Guevara is barred by the statute of limitations, considering that the testator died on
September 27, 1933, and that the petition for probate of said will was filed twelve (12) years later, or, to
be exact, on October 5, 1945. The Court of Appeals resolved the question in the negative, upon the
following grounds:chanroblesvirtuallawlibrary
We are of the opinion that the Court below was in error when it declared that the petition for probate
of the will of Victorino Guevara was barred by prescription. The provision of Article 756 of the old Civil
Code (1042 of the New) and of Rule 76 of the Rules of Court, reiterating those of the old Code of Civil
Procedure (Act 190), point out that the presentation of a decedents will to the competent court has
always been deemed by our law as more of a duty than a right, and the neglect of such obligation carries
with it the corresponding penalty and it is inconsistent with that policy that the court should refuse to
admit wills to probate, without inquiry into their validity. The authority given to testators to dispose
freely of a portion of their estate would be imperfectly safeguarded, unless adequate measures were
provided by the state to assure that the wishes of the deceased would be carried out. Because the
decedent may no longer act to have his testamentary dispositions duly executed, the state authority
must take over the opposite vigilance and supervision, so that free testamentary disposition does not
remain a delusion and a dream. This was expressly recognized by the Supreme Court in its previous
decision, G. R. No. 48840 (Exhibit E) when it said:chanroblesvirtuallawlibrary
cralaw 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. (Italics supplied)
In holding the statute of limitations applicable to the probate of wills, the court below failed to notice
that its doctrine was destructive of the right of testamentary disposition and violative of the owners
right to control his property within the legal limits. The appealed order in fact leaves wills at the mercy
and whim of custodians and heirs interested in their suppression. The lower court would in effect
abdicate the tutelary power that passed to the Republic from the former sovereigns, that potestad
suprema que en mi reside para velar por el puntual cumplimiento de las ultimas voluntades, asserted as
one of the royal prerogatives in the Real Cedula of March 18, 1776.
It is not without purpose that Rule of Court 77 prescribes that any 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. Taken from the Code of Procedure of California, this provision has been interpreted as
meaning that the statute of limitations has no application to probate of wills. In the case of In re Humes
Estate, 179 Calif. 338, 176 Pac. 681, the California Supreme Court ruled that:chanroblesvirtuallawlibrary
The chapter of the Code relating to the probate of wills does not provide for opposition to such probate
on the ground of the bar of the statute of limitations, but, in effect, excludes it from the category of
grounds allowed as a basis for such opposition. Section 1299 declares that any person interested in the
estate may at any time after the death of the testator, petition the court having jurisdiction to have the
will proved. This implies that there is no arbitrary time limit.
As additional reasons, the same Court stated:chanroblesvirtuallawlibrary
cralaw Section 1317 declares:chanroblesvirtuallawlibrary If the court is satisfied, upon the proof taken or from the facts found by the
jury that the will was duly executed and that the will testator at the time of its execution was of sound
and disposing mind and not acting under duress menace fraud, or undue influence, a certificate of the
proof and the facts found, signed by the judge and attested by the seal of the court, must be attached to
the will.
This excludes the bar of the statute of limitation from consideration as one of the matters which may be
shown in opposition to the probate. This is further emphasized by section 1341, which, in substance,
declares that, if upon the verdict of the jury the facts mentioned in section 1317 as aforesaid appear to
be established, the court must admit the will to probate. Section 1314 thus makes it imperative that
the court shall admit the will to probate if the execution is proven and the grounds of opposition
authorized by section 1312 are not established. This clearly implies that no grounds of opposition other
than those enumerated in section 1312 may be set up, and it leaves no place for the application of the
statute of limitations.
It is further to be observed that, notwithstanding the positive and comprehensive language of sections
343 and 369, if taken literally, there can be no doubt that they cannot apply to all special proceedings of
a civil nature. Proceedings for a change of name, or in arbitration, or for voluntary dissolution of a
corporation, or for guardianship, or for a married woman to become a sole trader, are all within the
definition of the phrase, and each is enumerated, classed, and defined as such proceeding by the Code.
If the statute of limitations applied, it would begin to run against such proceedings as soon as the right
to institute them accrued. Yet from the very nature of these proceedings it is obvious that neither of
them could be subject to such limitation.
This construction of these Code provisions is confirmed by the long-continued and uniform practice and
the universal understanding of the bench and bar of the state on the subject.
x x x x x x x x x
Action to quiet title frequently involve wills of persons who have died many years before the action was
begun. The section contemplates that such a will, although not yet probated, may be construed in the
action and may be afterwards probated, and it clearly shows that the Legislature did not understand
that the right to probate such will would be barred if the testator had died more than four years before
the petition for probate was filed.
This uniform practice and understanding of the bench and bar, and of the legislative department of the
state also, is a strong argument to the effect that the statute of limitations does not apply to such
proceedings. The authorities on the effect of such long acquiescence are numerous.
The Statute of Limitations upon which the court below has relied, sections 38 to 50 of the old Code of
Civil Procedure, Act 190, undertakes to fix limits for the filing of civil actions, but none for special
proceedings of which probate is admittedly one. The distinction is not purely verbal, but based on
differences that make the limitation to actions inapplicable to special proceedings. In this regard, the
Supreme Court of New York has adequately remarked (In re Canfields Will, 300 NYS 502):chanroblesvirtuallawlibrary
A Respondent in a private proceeding owes no legal duty or obligation to the proponent as such,
wherefore it is impossible for him to violate such non-existent obligation. Furthermore such a
proceeding is not instituted for the vindication of any personal right to the proponent. The subject-
matter is therefore wholly absent which could give rise to any cause of action against
any Respondent therein.
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 Watsons Will, 262 N.Y. 284, 294, 186 N.E. 787; chan roblesvirtualawlibraryMatter of Marrimans
Estate, 124 Misc. 320, 325, 208 N.Y.S. 672; chan roblesvirtualawlibraryFoley, S. affirmed 217 App. Div. 733, 216 N.Y.S. 842; chan
roblesvirtualawlibraryMatter of Lensmans Estate, 137 Misc. 77, 78, 243 N.Y.S. 126, Henderson, S., Matter of Drakes Estate,
160 Misc. 587, 598, 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 Valkenburghs Estate, 164
Misc. 295, 296, 298 N.Y.S. 219. A determination, therefore, that the mere non-action of a person upon
whom no legal duty rested in this regard, could have the effect of subverting the wishes of one who was
no longer able to protect his own unquestionable rights, would strike at the very foundation of all
conceptions of justice as administered in probate courts.
These decisions are of high persuasive value (Cu vs. Republic, G. R. L-3018, July 18, 1951); chan roblesvirtualawlibrarythey
represent the trend of authority (57 Am. Jur. 585), and enable us to conclude that reason and precedent
reject the applicability of the Statute of Limitations to probate proceedings, because these are not
exclusively established in the interest of the surviving heirs, but primarily for the protection of the
testators expressed wishes, that are entitled to respect as an effect of his ownership and right of
disposition. If the probate of validly executed wills is required by public policy, as declared by the
Supreme Court in the previous case, G.R. 48840 (Exhibit E), the state could not have intended the
statute of limitations to defeat that policy.
It is true, as ruled by the trial court, that the rights of parties should not be left hanging in uncertainty
for periods of time far in excess of the maximum period of ten years allowed by law; chan roblesvirtualawlibrarybut the obvious
remedy is for the other interested persons to petition for the production of the will and for its probate,
or to inflict upon the guilty party the penalties prescribed by Rule 76 or declare the unworthiness of the
heir under the Civil Code for concealing or suppressing the testament; chan roblesvirtualawlibrarybut not to dismiss the petition
for probate, however belatedly submitted, and thereby refuse sanction to testamentary dispositions
executed with all the formalities prescribed by law, incidentally prejudicing also those testamentary
heirs who do not happen to be successors ab intestato. That in this particular case the appealed rule
may not work injustice would not excuse its adoption as a general norm applicable to all cases.
It is likewise reasonable to assume that if the Supreme Court had considered the ten-year limitation
applicable to probate proceedings, it would not have ordered the parties on December 29, 1943 to
present the document Exhibit A to the proper court for probate in accordance with law, because the
ten years from the death of the testator expired in September of that same year, two months before the
decision. It is safe to assume that the high Court would not order a useless step. The reasoning that the
phrase in accordance with law was a qualification signifying if still legally possible, appears to be far-
fetched and unjustified. The plain import of the words employed by the high Court is that the probate
should follow the procedure provided for the purpose.
x x x x x x x x x
The other reasons advanced by the court a quo in support of its order dismissing the petition are also
untenable. The allegation contained in paragraph 10 of the original petition, that the will, or its
testamentary dispositions, had been de jure revoked in so far as the parcel of 259 hectares described in
said will is concerned, does not justify the finding that the probate would be pointless. What is alleged
is a partial revocation, only as to the parcel of land affected; chan roblesvirtualawlibrarybut as previously shown, the will
disposed of other property besides that one. And even granting that the next allegation to the effect
that Plaintiff sought to probate only for the purposes of her acknowledgment as natural child in said
will, constitutes an averment that the will had been fully revoked, the same would at the most
constitute a conclusion or inference that the lower court was not bound to admit. Because
the Appellant claimed or believed that the revocation of the will as to the large parcel of land,
constituted a total revocation of the testament is no reason why the court should concur in the same
belief or conclusion, especially when the will itself, appended to the petition, showed that there were
other properties and other heirs or legatees, and the trial court had before it the decision of the
Supreme Court ordering the filing of the will for its probate because, as stated in its decision, such a step
was enjoined by law and public policy. Moreover, the defect, if any, incurred in failing to ask for the
probate in toto of the will, was subsequently cured and corrected in the amended petition, where not
only the objectionable statements were eliminated, but others added indicating the existence of a
partible estate.
Assuming that the original petition violated the order of the Supreme Court in so far as it did not ask for
the allowance of the entire will, the court below erred in dismissing the petition, for it thereby
sanctioned further disobedience to the order of the superior court. Once again, it must be repeated that
the order of dismissal failed to take into account that the case involved not only the interests of Rosario
Guevara, and those of the Appellee Ernesto Guevara and the other legatees, but specially the express
desires of the testator; chan roblesvirtualawlibraryand that the protection and defense of the latter developed upon the court
itself, since no one else made any move to enforce them.
Even if the other heirs had failed to show interest in the case (a fact not properly inferable from their
non-intervention in the case, because the order of publication of the petition only called for those
interested to appear to contest the allowance and not to support it) (Rec. on App., p. 7), and even if the
other heirs had already received their shares, the order refusing the probate remains indefensible. If the
other heirs were not interested, there remained the wishes of the testator to be supported and
protected, if validly expressed. If the heirs had distributed the estate, the distribution was illegal and
improper unless the will be first probated. The Supreme Court so ruled in its previous decision (G. R.
48840) heretofore quoted.
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:chanroblesvirtuallawlibrary 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; chan roblesvirtualawlibraryand, 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 testators 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 revindicacion or partition.
From whatever angle the case is viewed, a hearing on the allowance of the will is unavoidable. The
persistent, albeit obnoxious, attempts of Rosario Guevara to sidetrack the will are not remedied by
dismissing the petition for probate of will, and allowing Ernesto to retain a greater interest than that
intended by the testator. (Appendix to brief for thePetitioner-Appellant, pp. 7-15, 17-20.)
We are fully in accord with these findings which we adopt as ours.
In view of the foregoing, the decision appealed from is hereby affirmed, with the costs of this instance
against the Petitioner.
Padilla, Reyes, A., Jugo, Bautista Angelo and Labrador, JJ., concur.

G.R. No. L-29300 June 21, 1978
83 SCRA 676
PEDRO D. H. GALLANOSA, CORAZON GRECIA-GALLONOSA and ADOLFO FORTAJADA, the
deceased Pedro Gallanosa being substituted by his legal heirs, namely his above-named
widow and his children, ISIDRO GALLANOSA and LEDY GALLANOSA, and grandchildren
named IMELDA TECLA GALLANOSA and ROSARIO BRIGIDA GALLANOSA, children of the
late SIKATUNA GALLANOSA, son of Pedro D.H. GALLONOSA, petitioners,
vs.
HON. UBALDO Y. ARCANGEL, Judge of Branch I of the Court of First Instance of Sorsogon
and FLORENTINO G. HITOSIS, CASIANO G. HITOSIS, TEOTIMO G. HITOSIS, VICTORIO G.
HITOSIS, EMILIA G. HITOSIS VDA. DE CRUZ, JOAQUIN R. HITOSIS VDA. DE CRUZ, JOAQUIN
R. HITOSIS, FLORENTINO R. HITOSIS, VIRGINIA R. MITOSIS, DEBORAH R. HITOSIS,
EDILBERTO R. HITOSIS, LEONOR R. HITOSIS, NORMA R. HITOSIS-VILLANUEVA, LEONCIO
R. HITOSIS, minors ANGEL R. HITOSIS and RODOLFO R. HITOSIS, represented by their legal
guardian and mother LOURDES RELUCIO VDA. DE HITOSIS, PETRONA HITOSIS-BALBIDO,
MODESTO HITOSIS-GACILO, CLETO HITOSIS, AGUSTIN HITOSIS-FORTES, TOMASA
HITOSIS-BANARES VDA. DE BORRAS, CONRADA HITOSIS-BANARES FRANCHE,
RESTITUTO HITOSIS-BANARES, DAMIAN HITOSIS-BANARES, FIDEL HITOSIS-BANARES,
SUSANA HITOSIS-BANARES RODRIGUEZ, JOSE HITOSIS, LOLITA HITOSIS-BANEGA, minors
MILAGROS HITOSIS-BANEGA, ALICIA HITOSIS-BANEGA AND ELISA HITOSIS-BANEGA,
represented by their legal guardian and father ERNESTO BANEGA, FELICITAS HITOSIS-
PENAFLOR, GENOVEVA HITOSIS-ADRIATICO, MANUEL HITOSIS, PEDRO HITOSIS, LIBRATA
HITOSIS-BALMES, JUANITA HITOSIS-GABITO VDA. DE GABAS, MAURA HITOSIS-GABITO
VDA. DE GANOLA and LEONA HITOSIS-GABITO GAMBA, respondents.
Haile Frivaldo for petitioners.
Joaquin R Mitosis for private respondents.

AQUINO, J .:
In this special civil action of certiorari, filed on July 29, 1968, the petitioners seek to annul the orders
of respondent Judge dated May 3 trial June 17, 1968, wherein he reconsidered his order of January
10, 1968, dismissing, on the ground of prescription, the complaint in Civil Case No. 2233 of the
Court of First Instance of Sorsogon.
The case involves the sixty-one parcels of land in Sorsogon left by Florentino Hitosis, with an
estimated value of P50,000, trial claims for damages exceeding one million pesos. The undisputed
facts are as follows:
1. Florentino Hitosis executed a will in the Bicol dialect on June 19, 1938 when he was eighty years
old. He died on May 26, 1939 at Irosin, Sorsogon. A childless widower, he as survived by his
brother, Leon Hitosis. His other brothers, named Juan, Tito (Juancito), Leoncio (Aloncio) trial
Apolonio and only sister, Teodora, were all dead.
2. On June 24, 1939 a petition for the probate of his will was filed in the Court of First Instance of
Sorsogon (Special Proceeding No. 3171). The notice of hearing was duly published. In that will,
Florentino bequeathed his one-half share in the conjugal estate to his second wife, Tecla Dollentas,
and, should Tecla predecease him, as was the case, his one-half share would be assigned to the
spouses Pedro Gallanosa and Corazon Grecia, the reason being that Pedro, Tecla's son by her first
marriage, grew up under the care of Florentino; he had treated Pedro as his foster child, and Pedro
has rendered services to Florentino and Tecla. Florentino likewise bequeathed his separate
properties consisting of three parcels of abaca land and parcel of riceland to his protege
(sasacuyang ataman), Adolfo Fortajada, a minor.
3. Opposition to the probate of the will was registered by the testator's legal heirs, namely, his
surviving brother, Leon, trial his nephews trial nieces. After a hearing, wherein the oppositors did not
present any evidence in support of their opposition, Judge Pablo S. Rivera, in his decision of
October 27, 1939, admitted the will to probate and appointed Gallanosa as executor. Judge Rivera
specifically found that the testator executed his last will "gozando de buena salud y facultades
mentales y no obrando en virtud de amenaza, fraude o influencia indebida."
4. On October 24, 1941, the testamentary heirs, the Gallanosa spouses trial Adolfo Fortajada,
submitted a project of partition covering sixty-one parcels of land located in various parts of
Sorsogon, large cattle trial several pieces of personal property which were distributed in accordance
with Florentino's will. The heirs assumed the obligations of the estate amounting to P7,129.27 in the
portion of P2,376.42 for Adolfo Fortajada and P4,752.85 for the Gallanosa spouses. The project of
partition was approved by Judge Doroteo Amador in his order of March 13, 1943, thus confirming
the heirs' possession of their respective shares. The testator's legal heirs did not appeal from the
decree of probate trial from the order of partition trial distribution.
5. On February 20, 1952, Leon Hitosis trial the heirs of Florentino's deceased brothers trial sisters
instituted an action in the Court of First Instance of Sorsogon against Pedro Gallanosa for the
recovery of the said sixty-one parcels of land. They alleged that they, by themselves or through their
predecessors-in-interest, had been in continuous possession of those lands en concepto de
dueo trial that Gallanosa entered those lands in 1951 trial asserted ownership over the lands. They
prayed that they be declared the owners of the lands trial that they be restored to the possession
thereof. They also claimed damages (Civil Case No. 696).
6. Gallanosa moved to dismiss the above complaint for lack of cause of action trial on the ground of
bar by the prior judgment in the probate proceeding. Judge Anatolio C. Maalac dismiss the
complaint on the ground of res judicata in his order of August 14, 1952 wherein he said:
It also appears that the plaintiffs and/or their predecessors-in-interest had intervened
in the testate proceedings in Civil Case No. 3171 of this Court for- the purpose of
contesting the probate of the will of (the) late Florentino Hitosis; trial had their
opposition prospered trial the will denied of probate, the proceedings would have
been converted into one of intestacy (Art. 960 Civil Code) and the settlement of the
estate of the said deceased would have been made in accordance with the
provisions of law governing legal or intestate succession ... , in which case the said
plaintiffs, as the nearest of kin or legal heirs of said Florentino Mitosis, would have
succeeded to the ownership and possession of the 61 parcels of land in question
forming part of his estate (art. 1003, Civil Code).
However, the derision of the Court was adverse to them, when it their opposition trial
ordered the probate of his will. From this decision (Annex K) legalizing the said will,
the oppositors did not file any appeal within the period fixed by law, despite the fact
that they were duly notified thereof, so that the said decision had become final trial it
now constitutes a bar to any action that the plaintiffs may institute for the purpose of
a redetermination of their rights to inherit the properties of the late Florentino Hitosis.
In other words, the said decision of this Court in Civil Case special ) No. 3171, in
which the herein plaintiffs or their predecessors-in-interest had intervened as parties
oppositors, constitutes a final judicial determination of the issue that the said
plaintiffs, as ordinary heirs, have no legal rights to succeed to any of the properties of
the late Florentino Hitosis; consequently, their present claim to the ownership trial
possession of the 61 parcels of land in question is without any legal merit or basis.
7. The plaintiffs did not appeal from that order of dismissal which should have set the matter at rest.
But the same plaintiffs or oppositors to the probate of the will, trial their heirs, with a persistence
befitting a more meritorious case, filed on September 21, 1967, or fifteen years after the dismissal of
Civil Case No. 696 trial twenty-eight years after the probate of the will another action in the same
court against the Gallanosa spouses trial Adolfo Fortajada for the "annulment" of the will of
Florentino Hitosis trial and for the recovery of the same sixty-one parcels of land. They prayed for
the appointment of a receiver.
8. As basis of their complaint, they alleged that the Gallanosa spouses, through fraud trial deceit,
caused the execution trial simulation of the document purporting to be the last will trial testament of
Florentino Hitosis. While in their 1952 complaint the game plaintiffs alleged that they were in
possession of the lands in question, in their 1967 complaint they admitted that since 1939, or from
the death of Florentino Hitosis, the defendants (now the petitioners) have been in possession of the
disputed lands (Par. XIV of the complaint, p. 70, Rollo in Civil Case No. 555, Gubat Branch, which
was transferred to Branch I in Sorsogon town where Special Proceeding No. 3171 trial Civil Case
No. 696 were decided trial which was re-docketed as Civil Case No. 2233).
9. As already stated, that 1967 complaint, upon motion of the defendants, now the petitioners, was
dismissed by respondent Judge. The plaintiffs filed a motion for reconsideration Respondent Judge.
granted it trial set aside the order of dismissal. He denied defendants' motion for the reconsideration
of his order setting aside that dismissal order.
The petitioners or the defendants below contend in this certiorari case that the lower court has no
jurisdiction to set aside the 1939 decree of probate trial the 1952 order of dismissal in Civil Case No.
696 trial that it acted with grave abuse of discretion in not dismissing private respondents' 1967
complaint.
The issue is whether, under the facts set forth above, the private respondents have a cause of action
the "annulment" of the will of Florentino Hitosis trial for the recovery of the sixty-one parcels of land
adjudicated under that will to the petitioners.
We hold that the lower court committed a grave abuse of discretion in reconsideration its order of
dismissal trial in ignoring the 1939 testamentary case trial the 1952 Civil Case No. 696 which is the
same as the instant 1967 case.
A rudimentary knowledge of substantive law trial procedure is sufficient for an ordinary lawyer to
conclude upon a causal perusal of the 1967 complaint that it is baseless trial unwarranted.
What the plaintiffs seek is the "annulment" of a last will trial testament duly probated in 1939 by the
lower court itself. The proceeding is coupled with an action to recover the lands adjudicated to the
defendants by the same court in 1943 by virtue of the probated will, which action is a resuscitation of
The complaint of the same parties that the same court dismissed in 1952.
It is evident from the allegations of the complaint trial from defendants' motion to dismiss that
plaintiffs' 1967 action is barred by res judicata, a double-barrelled defense, trial by prescription,
acquisitive trial extinctive, or by what are known in the jus civile trial the jus
gentium as usucapio, longi temporis possesio and praescriptio (See Ramos vs. Ramos, L-19872,
December 3, 1974, 61 SCRA 284).
Our procedural law does not sanction an action for the "annulment" of a will. In order that a will may
take effect, it has to be probated, legalized or allowed in the proper testamentary proceeding. The
probate of the will is mandatory (Art. 838, Civil Code; sec. 1, Rule 75, formerly sec. 1, Rule 76, Rules
of Court; Guevara vs. Guevara, 74 Phil. 479; Guevara vs. Guevara, 98 Phil. 249).
The testamentary proceeding is a special proceeding for the settlement of the testator's estate. A
special proceeding is distinct trial different from an ordinary action (Secs. 1 trial 2, Rule 2 trial sec. 1,
Rule 72, Rules of Court).
We say that the defense of res judicata, as a ground for the dismissal of plaintiffs' 1967 complaint, is
a two-pronged defense because (1) the 1939 trial 1943 decrees of probate trial distribution in
Special Proceeding No. 3171 trial (2) the 1952 order of dismissal in Civil Case No. 696 of the lower
court constitute bars by former judgment, Rule 39 of the Rules of Court provides:
SEC. 49. Effect of judgments. The effect of a judgment or final order rendered by
a court or judge of the Philippines, having jurisdiction to pronounce the judgment or
order, may be as follows:
(a) In case of a judgment or order against a specific thing, or in respect to the
probate of a will or the administration of the estate of a deceased person, or in
respect to the personal, political, or legal condition or status of a particular person or
his relationship to another, the judgment or order is conclusive upon the title to the
thing the will or administration, or the condition, status or relationship of the person;
however, the probate of a will or granting of letters of administration shall only be
prima facie evidence of the death of the testator or intestate;
(b) In other cases the judgment or order is, with respect to the matter directly
adjudged or as to any other matter that could have been raised in relation thereto,
conclusive between the parties trial their successors in interest by title subsequent to
the commencement of the action or special proceeding, litigating of the same thing
trial under the same title trial in the same capacity;
(c) In any other litigation between the same parties or their successors in interest,
that only is deemed to have been adjudged in a former judgment which appears
upon its face to have been so adjudged, or which was actually trial necessarily
included therein or necessary thereto.
The 1939 decree of probate is conclusive as to the due execution or formal validity of the will (Sec.
625, Act 190, sec. 1, Rule 76, now sec. 1, Rule 75, Rules of Court; Last par. of art. 838, Civil Code).
That means that the testator was of sound trial disposing mind at the time when he executed the will
and was not acting under duress, menace, fraud, or undue influence; that the will was signed by him
in the presence of the required number of witnesses, and that the will is genuine trial is not a forgery.
Accordingly, these facts cannot again be questioned in a subsequent proceeding, not even in a
criminal action for the forgery of the will. (3 Moran's Comments on the Rules of Court, 1970 Edition,
p. 395; Manahan vs. Manahan, 58 Phil. 448).
After the finality of the allowance of a will, the issue as to the voluntariness of its execution cannot be
raised anymore (Santos vs. De Buenaventura, L-22797, September 22, 1966, 18 SCRA 47).
In Austria vs. Ventenilla, 21 Phil. 180, a "petition for annulment of a will" was not entertained after the
decree of probate had become final. That case is summarized as follows:
Wills; Probate; Alledged Fraudulent Will; Appeal. V. died. His will was admitted to
probate without objection. No appeal was taken from said order. It was admitted that
due trial legal notice had been given to all parties. Fifteen months after the date of
said order, a motion was presented in the lower court to have said will declared null
and void, for the reason that fraud had been practised upon the deceased in the
making of his will.
Held: That under section 625 of Act No. 190, the only time given parties who are
displeased with the order admitting to probate a will, for an appeal is the time given
for appeals in ordinary actions; but without deciding whether or not an order
admitting a will to probate will be opened for fraud, after the time allowed for an
appeal has expired, when no appeal is taken from an order probating a will, the heirs
can not, in subsequent litigation in the same proceedings, raise questions relating to
its due execution. The probate of a will is conclusive as to its due execution trial as to
the testamentary capacity of The testator. (See Austria vs. Heirs of Ventenilla. 99
Phil. 1069).
On the other hand, the 1943 decree of adjudication rendered by the trial court in the testate
proceeding for the settlement of the estate of Florentino Hitosis, having been rendered in a
proceeding in rem, is under the abovequoted section 49(a), binding upon the whole world (Manalo
vs. Paredes, 47 Phil. 938; In re Estate of Johnson, 39 Phil. 156; De la Cerna vs. Potot, 120 Phil.
1361, 1364; McMaster vs. Hentry Reissmann & Co., 68 Phil. 142).
It is not only the 1939 probate proceeding that can be interposed as res judicata with respect to
private respondents' complaint, The 1952 order of dismissal rendered by Judge Maalac in Civil
Case No. 696, a judgment in personam was an adjudication on the merits (Sec. 4, Rule 30, old
Rules of Court). It constitutes a bar by former judgment under the aforequoted section 49(b)
(Anticamara vs. Ong, L-29689. April 14, 1978).
The plaintiffs or private respondents did not even bother to ask for the annulment of the
testamentary proceeding trial the proceeding in Civil Case No. 696. Obviously, they realized that the
final adjudications in those cases have the binding force of res judicata and that there is no ground,
nor is it timely, to ask for the nullification of the final orders trial judgments in those two cases.
It is a fundamental concept in the organization of every jural system, a principle of public policy, that,
at the risk of occasional errors, judgments of courts should become final at some definite date fixed
by law. Interest rei publicae ut finis sit litum. "The very object for which the courts were constituted
was to put an end to controversies." (Dy Cay vs. Crossfield and O'Brien, 38 Phil. 521: Pealosa vs.
Tuason, 22 Phil, 303; De la Cerna vs. Potot, supra).
After the period for seeking relief from a final order or judgment under Rule 38 of the Rules of Court
has expired, a final judgment or order can be set aside only on the grounds of (a) lack of jurisdiction
or lack of due process of law or (b) that the judgment was obtained by means of extrinsic or
collateral fraud. In the latter case, the period for annulling the judgment is four years from the
discovery of the fraud (2 Moran's Comments on the Rules of Court, 1970 Edition, pp. 245-246;
Mauricio vs. Villanueva, 106 Phil. 1159).
To hurdle over the obstacle of prescription, the trial court, naively adopting the theory of plaintiffs'
counsel, held that the action for the recovery of the lands had not prescribed because the rule in
article 1410 of the Civil Code, that "the action or defense for the declaration of the inexistence of
a contract does not prescribe", applies to wills.
That ruling is a glaring error. Article 1410 cannot possibly apply to last wills trial testaments. The trial
court trial plaintiffs' counsel relied upon the case of Dingle vs. Guillermo, 48 0. G. 4410, allegedly
decided by this Court, which cited the ruling in Tipton vs. Velasco, 6 Phil. 67, that mere lapse of time
cannot give efficacy to voidcontracts, a ruling elevated to the category of a codal provision in article
1410. The Dingle case was decided by the Court of Appeals. Even the trial court did not take pains
to verify the misrepresentation of plaintiffs' counsel that the Dingle case was decided by this Court.
An elementary knowledge of civil law could have alerted the trial court to the egregious error of
plaintiffs' counsel in arguing that article 1410 applies to wills.
WHEREFORE, the lower court's orders of May 3 trial June 17, 1968 are reversed trial set aside trial
its order of dismissal dated January 10, 1968 is affirmed. Costs against the private respondents.
SO ORDERED.
Fernando (Chairman), Barredo, Antonio, and Santos, JJ., concur.
Concepcion, Jr., J., is on leave.

G.R. No. L-23079 February 27, 1970
31 SCRA 754
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 and Associates for petitioners.
Ruben Austria for himself and co-petitioners.
De los Santos, De los Santos and De los Santos for respondent Perfecto Cruz.
Villareal, Almacen, Navarra and Amores for other respondents.

CASTRO, J .:
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, 1959, 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, 1959 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 questioned-document 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, let 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.
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
Kung ako ay bawian ng Dios ng buhay, ay aking ipinamamana ang aking mga ari-
ariang maiiwan, sa kaparaanang sumusunod:
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 () 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 () 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 () 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 describe 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 testate 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
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,
1959, 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
justices.
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. L-24365 June 30, 1966
17 SCRA 590
IN THE MATTER OF THE INTESTATE ESTATE OF EDWARD E. CHRISTENSEN, deceased.
ADOLFO C. AZNAR, executor and appellee,
vs.
MARIA LUCY CHRISTENSEN DUNCAN, oppositor and appellant.
MARIA HELEN CHRISTENSEN, oppositor and appellee.
J. Salonga and L. M. Abellera for oppositor and appellee.
Carlos Dominguez, Jr. for executor-appellee.
M. R. Sotelo for appellant.
MAKALINTAL, J .:
Edward E. Christensen, a citizen of California with domicile in the Philippines, died leaving a will
executed on March 5, 1951. The will was admitted to probate by the Court of First Instance of Davao
in its decision of February 28, 1954. In that same decision the court declared that Maria Helen
Christensen Garcia (hereinafter referred to as Helen Garcia) was a natural child of the deceased.
The declaration was appealed to this Court, and was affirmed in its decision of February 14, 1958
(G.R. No. L-11484).
In another incident relative to the partition of the deceased's estate, the trial court approved the
project submitted by the executor in accordance with the provisions of the will, which said court
found to be valid under the law of California. Helen Garcia appealed from the order of approval, and
this Court, on January 31, 1963, reversed the same on the ground that the validity of the provisions
of the will should be governed by Philippine law, and returned the case to the lower court with
instructions that the partition be made as provided by said law (G.R. No. L-16749).
On October 29, 1964, the Court of First Instance of Davao issued an order approving the project of
partition submitted by the executor, dated June 30, 1964, wherein the properties of the estate were
divided equally between Maria Lucy Christensen Duncan (named in the will as Maria Lucy
Christensen Daney, and hereinafter referred to as merely Lucy Duncan), whom the testator had
expressly recognized in his will as his daughter (natural) and Helen Garcia, who had been judicially
declared as such after his death. The said order was based on the proposition that since Helen
Garcia had been preterited in the will the institution of Lucy Duncan as heir was annulled, and hence
the properties passed to both of them as if the deceased had died intestate, saving only the legacies
left in favor of certain other persons, which legacies have been duly approved by the lower court and
distributed to the legatees.
The case is once more before us on appeal, this time by Lucy Duncan, on the sole question of
whether the estate, after deducting the legacies, should pertain to her and to Helen Garcia in equal
shares, or whether the inheritance of Lucy Duncan as instituted heir should be merely reduced to the
extent necessary to cover the legitime of Helen Garcia, equivalent to 1/4 of the entire estate.
The will of Edward E. Christensen contains, among others, the following clauses which are pertinent
to the issue in this case:
3. I declare ... that I have but ONE (1) child, named MARIA LUCY CHRISTENSEN (Now
Mrs. Bernard Daney), who was born in the Philippines about twenty-eight years ago, who is
now residing at No. 665 Rodger Young Village, Los Angeles, California, U.S.A.
4. I further declare that I now have no living ascendants, and no descendants except my
above-named daughter, MARIA LUCY CHRISTENSEN DANEY.
x x x x x x x x x
7. I give, devise, and bequeath unto MARIA HELEN CHRISTENSEN, now married to
Eduardo Garcia, about eighteen years of age and who, notwithstanding the fact that she was
baptized Christensen, is not in any way related to me, nor has she been at any time adopted
by me, and who, from all information I have now resides in Egpit, Digos, Davao, Philippines,
the sum of THREE THOUSAND SIX HUNDRED PESOS (P3,600.00), Philippine Currency,
the same to be deposited in trust for the said Maria Helen Christensen with the Davao
Branch of the Philippine National Bank, and paid to her at the rate of One Hundred Pesos
(P100.00), Philippine Currency per month until the principal thereof as well as any interest
which may have accrued thereon, is exhausted.
x x x x x x x x x
12. I hereby give, devise and bequeath, unto my well-beloved daughter, the said MARIA
LUCY CHRISTENSEN DANEY (Mrs. Bernard Daney) now residing, as aforesaid, at No. 665
Rodger Young Village, Los Angeles, California, U.S.A., all the income from the rest,
remainder, and residue of my property and estate, real, personal and/or mixed, of
whatsoever kind or character, and wheresoever situated, of which I may be possessed at my
death and which may have come to me from any source whatsoever, during her lifetime;
Provided, however, that should the said MARIA LUCY CHRISTENSEN DANEY at anytime
prior to her decease having living issue, then and in that event, the life interest herein given
shall terminate, and if so terminated, then I give, devise, and bequeath to my daughter, the
said MARIA LUCY CHRISTENSEN DANEY the rest, remainder and residue of my property
with the same force and effect as if I had originally so given, devised and bequeathed it to
her; and provided, further, that should the said MARIA LUCY CHRISTENSEN DANEY die
without living issue, then, and in that event, I give, devise and bequeath all the rest,
remainder and residue of my property one-half (1/2) to my well-beloved sister, Mrs. CARRIE
LOUISE C. BORTON, now residing at No. 2124, Twentieth Street, Bakersfield, California,
U.S.A., and one-half (1/2) to the children of my deceased brother, JOSEPH C.
CHRISTENSEN, namely: Mrs. Carol F. Ruggaver, of Los Angeles, California, U.S.A., and
Joseph Raymond Christensen, of Manhattan Beach, California, U.S.A., share and share
alike, the share of any of the three above named who may predecease me, to go in equal
parts to the descendants of the deceased; and, provided further, that should my sister Mrs.
Carol Louise C. Borton die before my own decease, then, and in that event, the share of my
estate devised to her herein I give, devise and bequeath to her children, Elizabeth Borton de
Trevio, of Mexico City Mexico; Barbara Borton Philips, of Bakersfield, California, U.S.A.,
and Richard Borton, of Bakersfield, California, U.S.A., or to the heirs of any of them who may
die before my own decease, share and share alike.
The trial court ruled, and appellee now maintains, that there has been preterition of Helen Garcia, a
compulsory heir in the direct line, resulting in the annulment of the institution of heir pursuant to
Article 854 of the Civil Code, which 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; but the devises and legacies shall be valid insofar
as they are not inofficious.
On the other hand, appellant contends that this is not a case of preterition, but is governed by Article
906 of the Civil Code, which says: "Any compulsory heir to whom the testator has left by any title
less than the legitime belonging to him may demand that the same be fully satisfied." Appellant also
suggests that considering the provisions of the will whereby the testator expressly denied his
relationship with Helen Garcia, but left to her a legacy nevertheless although less than the amount of
her legitime, she was in effect defectively disinherited within the meaning of Article 918, which reads:
ART. 918. Disinheritance without a specification of the cause, or for a cause the truth of
which, if contradicted, is not proved, or which is not one of those set forth in this Code, shall
annul the institution of heirs insofar as it may prejudice the person disinherited; but the
devices and legacies and other testamentary dispositions shall be valid to such extent as will
not impair the legitimate.
Thus, according to appellant, under both Article 906 and 918, Helen Garcia is entitled only to her
legitime, and not to a share of the estate equal that of Lucy Duncan as if the succession were
intestate.
Article 854 is a reproduction of Article 814 of the Spanish Civil Code; and Article 906 of Article 815.
Commenting on Article 815, Manresa explains:
Como dice Goyena, en el caso de pretericion puede presumirse ignorancia o falta de
memoria en el testador; en el de dejar algo al heredero forzoso no. Este no se encuentra
plivado totalmente de su legitima: ha recibido por cualquir titulo una porcion de los bienes
hereditarios, porcion que no alcanza a completar la legitima, pero que influeye
poderosamente en el animo del legislador para decidirle a adoptar una solucion bien
diferente de la sealada para el caso de pretericion.
El testador no ha olvidado por completo al heredero forzoso; le ha dejado bienes; pero
haciendo un calculo equivocado, ha repartido en favor de extraos o en favor de otros
legitimarios por via de legado donacion o mejora mayor cantidad de la que la ley de
consentia disponer. El heredero forzoso no puede perder su legitima, pero tampoco puede
pedir mas que la misma. De aqui su derecho a reclamar solamente lo que le falta; al
complemento de la porcion que forzosamente la corresponde.
... Dejar el testador por cualquier titulo, equivale a disponer en testamento por titulo de
herencia legado o mejora, y en favor de legitimarios, de alguna cantidad o porcion de bienes
menos que la legitima o igual a la misma. Tal sentido, que es el mas proprio en al articulo
815, no pugna tampoco con la doctrina de la ley.Cuando en el testamento se deja algo al
heredero forzoso, la pretericion es incompleta: es mas formularia que real. Cuando en el
testamento nada se deja el legitimario, hay verdadera pretericion. (6 Manresa, 7th Ed., 1951,
p. 437.)
On the difference between preterition of a compulsory heir and the right to ask for completion of his
legitime, Sanchez Roman says:
La desheredacion, como expresa, es siempre voluntaria; la pretericion puede serlo pero se
presume involuntaria la omision en que consiste en cuanto olvida o no atiende el testador en
su testamento a la satisfaccion del derecho a la legitima del heredero forzoso preterido,
prescindiendo absoluta y totalmente de el y no mencionandole en ninguna de sus
disposiciones testamentarias, o no instituyendole en parte alguna de la herencia, ni por titulo
de heredero ni por el de legatar o aunque le mencionara o nombrara sin dejarle mas o
menos bienes. Si le dejara algunos, por pocos que sean e insuficientes para cubrir su
legitima, ya no seria caso de pretericion, sino de complemento de aquella. El primer
supuesto o de pretericion se regula por el articulo 814, y produce accion de nulidad de la
institucion de heredero; y el segundo, o de complemento de legitima por el 815 y solo
original la accion ad suplementum, para completar la legitima. (Sanchez Roman, Tomo VI,
Vol. 2, p. 1131.)
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. Manresa continues:
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.1wph 1. t
x x x x x x x x x
B. Que la omision sea completa Esta condicion se deduce del mismo Articulo 814 y
resulta con evidencia al relacionar este articulo con el 815. El heredero forzoso a quien el
testador deja algo por cualquier titulo en su testamento, no se halla propiamente omitido
pues se le nombra y se le reconoce participacion en los bienes hereditarios. Podria
discutirse en el Articulo 814 si era o no necesario que se reconociese el derecho del
heredero como tal heredero, pero el articulo 815 desvanece esta duda. Aquel se ocupa de
privacion completa o total, tacita este, de la privacion parcial. Los efectos deben ser y son,
como veremos completamente distintos (6 Manresa, p. 428.)
La privacion de la legitima puede ser total o parcial.
Privar totalmente de la legitima es negarla en absoluto al legitimario, despojarle de ella por
completo. A este caso se refiere el articulo 814. Privar parcialmente de la legitima, es
menguarla o reducirla dejar al legitimario una porcion, menor que la que le corresponde. A
este caso se refiere el articulo 815. El 813 sienta, pues, una regla general, y las
consecuencias del que brantamiento de esta regla se determina en los articulos 814 y 815.
(6 Manresa p. 418.)
Again Sanchez Roman:
QUE LA OMISSION SEA TOTAL. Aunque el articulo 814 no consigna de modo expreso
esta circunstancia de que la pretericion o falta de mencion e institucion o disposicion
testamentaria a su favor, sea total, completa y absoluta, asi se deduce de no hacer
distincion o salvedad alguna empleandola en terminos generales; pero sirve a confirmarlo de
un modo indudable el siguiente articulo 815, al decir que el heredero forzoso a quien el
testador haya dejado por cualquier titulo, menos de la legitima que la corresponda, podria
pedir el complemento de la misma, lo cual ya no son el caso ni los efectos de la
pretericion, que anula la institucion, sino simplemente los del suplemento necesario para
cubrir su legitima. (Sanchez Roman Tomo VI, Vol. 2.0 p. 1133.)
The question may be posed: In order that the right of a forced heir may be limited only to the
completion of his legitime (instead of the annulment of the institution of heirs) is it necessary that
what has been left to him in the will "by any title," as by legacy, be granted to him in his capacity as
heir, that is, a titulo de heredero? In other words, should he be recognized or referred to in the will as
heir? This question is pertinent because in the will of the deceased Edward E. Christensen Helen
Garcia is not mentioned as an heir indeed her status as such is denied but is given a legacy of
P3,600.00.
While the classical view, pursuant to the Roman law, gave an affirmative answer to the question,
according to both Manresa (6 Manresa 7th 3rd. 436) and Sanchez Roman (Tomo VI, Vol. 2.0 p.
937), that view was changed by Article 645 of the "Proyecto de Codigo de 1851," later on copied in
Article 906 of our own Code. Sanchez Roman, in the citation given above, comments as follows:
RESPECTO DEL COMPLEMENTO DE LA LEGITIMA. Se inspira el Codigo en esta
materia en la doctrina clasica del Derecho romano y patrio (2); pero con alguna racional
modificacion. Concedian aquellos precedentes legales al heredero forzoso, a quien no se le
dejaba por titulo de tal el completo de su legitima, la accion para invalidar la institucion
hecha en el testamento y reclamar y obtener aquella mediante el ejercicio de la querella de
inoficioso, y aun cuando resultara favorecido como donotario, por otro titulo que no fuera el
de heredero, sino al honor de que se le privaba no dandole este caracter, y solo cuando era
instituido heredero en parte o cantidad inferior a lo que le correspondiera por legitima, era
cuando bastaba el ejercicio de la accion ad suplementum para completarla, sin necesidad
de anular las otras instituciones de heredero o demas disposiciones contenidas en el
testamento.
El Articulo 851 se aparta de este criterio estricto y se ajusta a la unica necesidad que le
inspira cual es la de que se complete la legitima del heredero forzoso, a quien por cualquier
titulo se haya dejado menos de lo que le corresponda, y se le otorga tan solo el derecho de
pedir el complemento de la misma sin necesidad de que se anulen las disposiciones
testamentarias, que se reduciran en lo que sean inoficiosas conforme al articulo 817, cuya
interpretacion y sentido tienen ya en su apoyo la sancion de la jurisprudencia (3); siendo
condicion precisa que lo que se hubiere dejado de menos de la legitima al heredero forzoso,
lo haya sido en el testamento, o sea por disposicion del testador, segun lo revela el texto del
articulo, "el heredero forzoso a quien el testador haya dejado, etc., esto es por titulo de
legado o donacion mortis causa en el testamento y, no fuera de al. (Sanchez Roman, Tomo
VI, Vol. 2.0 p. 937.)
Manresa cites particularly three decisions of the Supreme Court of Spain dated January 16, 1895,
May 25, 1917, and April 23, 1932, respectively. In each one of those cases the testator left to one
who was a forced heir a legacy worth less than the legitime, but without referring to the legatee as
an heir or even as a relative, and willed the rest of the estate to other persons. It was held that
Article 815 applied, and the heir could not ask that the institution of heirs be annulled entirely, but
only that the legitime be completed. (6 Manresa, pp. 438, 441.)
The foregoing solution is indeed more in consonance with the expressed wishes of the testator in the
present case as may be gathered very clearly from the provisions of his will. He refused to
acknowledge Helen Garcia as his natural daughter, and limited her share to a legacy of P3,600.00.
The fact that she was subsequently declared judicially to possess such status is no reason to
assume that had the judicial declaration come during his lifetime his subjective attitude towards her
would have undergone any change and that he would have willed his estate equally to her and to
Lucy Duncan, who alone was expressly recognized by him.
The decision of this Court in Neri, et al. v. Akutin, 74 Phil. 185, is cited by appellees in support of
their theory of preterition. That decision is not here applicable, because it referred to a will where
"the testator left all his property by universal title to the children by his second marriage, and (that)
without expressly disinheriting the children by his first marriage, he left nothing to them or, at least,
some of them." In the case at bar the testator did not entirely omit oppositor-appellee Helen Garcia,
but left her a legacy of P3,600.00.
The estate of the deceased Christensen upon his death consisted of 399 shares of stocks in the
Christensen Plantation Company and a certain amount in cash. One-fourth (1/4) of said estate
descended to Helen Garcia as her legitime. Since she became the owner of her share as of the
moment of the death of the decedent (Arts. 774, 777, Civil Code), she is entitled to a corresponding
portion of all the fruits or increments thereof subsequently accruing. These include the stock
dividends on the corporate holdings. The contention of Lucy Duncan that all such dividends pertain
to her according to the terms of the will cannot be sustained, for it would in effect impair the right of
ownership of Helen Garcia with respect to her legitime.
One point deserves to be here mentioned, although no reference to it has been made in the brief for
oppositor-appellant. It is the institution of substitute heirs to the estate bequeathed to Lucy Duncan in
the event she should die without living issue. This substitution results in effect from the fact that
under paragraph 12 of the will she is entitled only to the income from said estate, unless prior to her
decease she should have living issue, in which event she would inherit in full ownership; otherwise
the property will go to the other relatives of the testator named in the will. Without deciding this,
point, since it is not one of the issues raised before us, we might call attention to the limitations
imposed by law upon this kind of substitution, particularly that which says that it can never burden
the legitime (Art. 864 Civil Code), which means that the legitime must descend to the heir concerned
in fee simple.
Wherefore, the order of the trial court dated October 29, 1964, approving the project of partition as
submitted by the executor-appellee, is hereby set aside; and the case is remanded with instructions
to partition the hereditary estate anew as indicated in this decision, that is, by giving to oppositor-
appellee Maria Helen Christensen Garcia no more than the portion corresponding to her as legitime,
equivalent to one-fourth (1/4) of the hereditary estate, after deducting all debts and charges, which
shall not include those imposed in the will of the decedent, in accordance with Article 908 of the Civil
Code. Costs against appellees in this instance.
Concepcion, C.J., J.B.L. Reyes, Barrera, Dizon, Regala, J.P. Bengzon, Zaldivar and Sanchez, JJ.,
concur.
R E S O L U T I O N
July 30, 1967
MAKALINTAL, J .:
Oppositor-appellant has filed an ex-parte petition dated July 11, 1966, making reference to an
alleged oversight and asking for the corresponding correction, in the last paragraph before the
dispositive part of our decision, which reads as follows:
One point deserves to be here mentioned, although no reference to it has been made in the brief for
oppositor-appellant. It is the institution of substituted heirs to the estate bequeathed to Lucy Duncan
in the event she should die without living issue. This substitution results in effect from the fact that
under paragraph 12 of the will she is entitled only to the income from said estate, unless prior to her
decease she should have living issue, in which event she would inherit in full ownership; otherwise
the property will go to the other relatives of the testator named in the will. Without deciding this
point, since it is not one of the issues raised before us, we might call attention to the limitations
imposed by law upon this kind of substitution, particularly that which says that it can never burden
the legitime (Art. 864, Civil Code), which means that the legitime must descend to the heir
concerned in fee simple. (Decision, June 30, 1966, pages 14-15; emphasis ours).
Oppositor-appellant points out that the matter of substitution of heirs was taken up and discussed in
her brief particularly in pages 28 and 32 thereof. This is indeed quite true, but the reference to and
discussion of the rights of the substitute heirs (called American heirs in the brief) appears to be
merely for the purpose of refuting the theory advanced by appellees and not for the purpose of
having the rights of said heirs defined in so far as, under the terms of the will, they may affect the
legitime of oppositor-appellant. This point of course was not and could hardly have been squarely
raised as an issue inasmuch as the substitute heirs are not parties in this case. We have
nevertheless called attention "to the limitations imposed by law upon this kind of substitution,"
because in the brief for oppositor-appellant, at page 45, she makes the conclusion "that the Last Will
and Testament of Edward E. Christensen are valid under Philippine Law and must be given full force
and effect;" and to give them full force and effect would precisely affect the legitime of oppositor-
appellant.
Wherefore, the last paragraph before the dispositive part of our decision quoted above is amended
by eliminating the following phrase in the first sentence: "although no reference to it has been made
in the brief for oppositor-appellant."
Concepcion, C.J., Reyes, J.B.L., Barrera, Dizon, Bengzon, J.P., Zaldivar and Sanchez, JJ., concur.
Regala and Castro, JJ., took no part.

G.R. No. L-17818 January 25, 1967
19 SCRA 85
TIRSO T. REYES, as guardian of the minors Azucena Flordelis and Tirso, Jr., all surnamed
Reyes y Barretto, plaintiffs-appellants,
vs.
LUCIA MILAGROS BARRETTO-DATU, defendant-appellee.
Recto Law Office for plaintiff-appealant.
Deogracias T. Reyes and Associates for defendant-appellee.
REYES, J.B.L., J .:
Direct appeal from a judgment of the Court of First Instance of Bulacan, in its Civil Case No. 1084,
dismissing the complaint of appellant Tirso T. Reyes and ordering the same to deliver to the
defendant-appellee, Lucia Milagros Barretto-Datu, the properties receivea by his deceasea wife
under the terms of the will of the late Bibiano Barretto, consisting of lots in Manila, Rizal, Pampanga
and Bulacan, valued at more than P200,000.
The decision appealed from sets the antecedents of the case to be as follows:
"This is an action to recover one-half share in the fishpond, located in the barrio of San
Roque, Hagonoy, Bulacan, covered by Transfer Certificate of Title No. T-13734 of the Land
Records of this Province, being the share of plaintiff's wards as minor heirs of the deceased
Salud Barretto, widow of plaintiff Tirso Reyes, guardian of said minors."
It appears that Bibiano Barretto was married to Maria Gerardo. During their lifetime they acquired a
vast estate, consisting of real properties in Manila, Pampanga, and Bulacan, covered by Transfer
Certificates of Title Nos. 41423, 22443, 8858, 32989, 31046, 27285, 6277, 6500, 2057, 6501, 2991,
57403 and 12507/T-337.
When Bibiano Barretto died on February 18, 1936, in the City of Manila, he left his share of these
properties in a will Salud Barretto, mother of plaintiff's wards, and Lucia Milagros Barretto and a
small portion as legacies to his two sisters Rosa Barretto and Felisa Barretto and his nephew an
nieces The usufruct o the fishpon situate i barrio Sa Roque Hagonoy, Bulacan, above-
mentioned, however, was reserved for his widow, Maria Gerardo I the meantime Maria Gerardo
was appointe administratrix. By virtue thereof, she prepared a project of partition, which was signed
by her in her own behalf and as guardian of the minor Milagros Barretto. Said project of partition was
approved by the Court of First Instance of Manila on November 22, 1939. The distribution of the
estate and the delivery of the shares of the heirs followed forthwith. As a consequence, Salud
Barretto took immediate possession of her share and secured the cancellation of the original
certificates of title and the issuance of new titles in her own name.
Everything went well since then. Nobody was heard to complain of any irregularity in the distribution
of the said estate until the widow, Maria Gerardo died on March 5, 1948. Upon her death, it was
discovered that she had executed two wills, in the first of which, she instituted Salud and Milagros,
both surnamed Barretto, as her heirs; and, in the second, she revoked the same and left all her
properties in favor of Milagros Barretto alone. Thus, the later will was allowed and the first rejected.
In rejecting the first will presented by Tirso Reyes, as guardian of the children of Salud Barretto, the
lower court held that Salud was not the daughter of the decedent Maria Gerardo by her husband
Bibiano Barretto. This ruling was appealed to the Supreme Court, which affirmed the same.
1

Having thus lost this fight for a share in the estate of Maria Gerardo, as a legitimate heir of Maria
Gerardo, plaintiff now falls back upon the remnant of the estate of the deceased Bibiano Barretto,
which was given in usufruct to his widow Maria Gerardo. Hence, this action for the recovery of one-
half portion, thereof.
This action afforded the defendant an opportunity to set up her right of ownership, not only of the
fishpond under litigation, but of all the other properties willed and delivered to Salud Barretto, for
being a spurious heir, and not entitled to any share in the estate of Bibiano Barretto, thereby directly
attacking the validity, not only of the project of partition, but of the decision of the court based
thereon as well.
The defendant contends that the Project of Partition from which Salud acquired the fishpond in
question is void ab initio and Salud Barretto did not acquire any valid title thereto, and that the court
did not acquire any jurisdiction of the person of the defendant, who was then a minor.'
Finding for the defendant (now appellee), Milagros Barretto, the lower court declared the project of
partition submitted in the proceedings for the settlement of the estate of Bibiano Barretto (Civil Case
No. 49629 of the Court of First Instance of Manila) to be null and void ab initio (not merely voidable)
because the distributee, Salud Barretto, predecessor of plaintiffs (now appellants), was not a
daughter of the spouses Bibiano Barretto and Maria Gerardo. The nullity of the project of partition
was decreed on the basis of Article 1081 of the Civil Code of 1889 (then in force) providing as
follows: .
A partition in which a person was believed to be an heir, without being so, has been
included, shall be null and void.
The court a quo further rejected the contention advanced by plaintiffs that since Bibiano Barretto was
free to dispose of one-third (1/3) of his estate under the old Civil Code, his will was valid in favor of
Salud Barretto (nee Lim Boco) to the extent, at least, of such free part. And it concluded that, as
defendant Milagros was the only true heir of Bibiano Barretto, she was entitled to recover from
Salud, and from the latter's children and successors, all the Properties received by her from
Bibiano's estate, in view of the provisions of Article 1456 of the new Civil Code of the Philippines
establishing that property acquired by fraud or mistake is held by its acquirer in implied trust for the
real owner. Hence, as stated at the beginning of this opinion, the Court a quo not only dismissed the
plaintiffs' complaint but ordered them to return the properties received under the project of partition
previously mentioned as prayed for in defendant Milagros Barretto's counterclaim. However, it
denied defendant's prayer for damages. Hence, this appeal interposed by both plaintiffs and
defendant.
Plaintiffs-appellants correctly point out that Article 1081 of the old Civil Code has been misapplied to
the present case by the court below. The reason is obvious: Salud Barretto admittedly had been
instituted heir in the late Bibiano Barretto's last will and testament together with defendant Milagros;
hence, the partition had between them could not be one such had with a party who was believed to
be an heir without really being one, and was not null and void under said article. The legal precept
(Article 1081) does not speak of children, or descendants, but ofheirs (without distinction between
forced, voluntary or intestate ones), and the fact that Salud happened not to be a daughter of the
testator does not preclude her being one of the heirs expressly named in his testament; for Bibiano
Barretto was at liberty to assign the free portion of his estate to whomsoever he chose. While the
share () assigned to Salud impinged on the legitime of Milagros, Salud did not for that reason
cease to be a testamentary heir of Bibiano Barretto.
Nor does the fact that Milagros was allotted in her father's will a share smaller than her legitime
invalidate the institution of Salud as heir, since there was here no preterition, or total ommission of a
forced heir. For this reason,Neri vs. Akutin, 72 Phil. 322, invoked by appellee, is not at all applicable,
that case involving an instance of preterition or omission of children of the testator's former marriage.
Appellee contends that the partition in question was void as a compromise on the civil status of
Salud in violation of Article 1814 of the old Civil Code. This view is erroneous, since a compromise
presupposes the settlement of a controversy through mutual concessions of the parties (Civil Code
of 1889, Article 1809; Civil Code of the Philippines, Art. 2028); and the condition of Salud as
daughter of the testator Bibiano Barretto, while untrue, was at no time disputed during the settlement
of the estate of the testator. There can be no compromise over issues not in dispute. And while a
compromise over civil status is prohibited, the law nowhere forbids a settlement by the parties over
the share that should correspond to a claimant to the estate.
At any rate, independently of a project of partition which, as its own name implies, is merely a
proposal for distribution of the estate, that the court may accept or reject, it is the court alone that
makes the distribution of the estate and determines the persons entitled thereto and the parts to
which each is entitled (Camia vs. Reyes, 63 Phil. 629, 643; Act 190, Section 750; Rule 90, Rules of
1940; Rule 91, Revised Rules of Court), and it is that judicial decree of distribution, once final, that
vests title in the distributees. If the decree was erroneous or not in conformity with law or the
testament, the same should have been corrected by opportune appeal; but once it had become final,
its binding effect is like that of any other judgment in rem, unless properly set aside for lack of
jurisdiction or fraud.
It is thus apparent that where a court has validly issued a decree of distribution of the estate, and the
same has become final, the validity or invalidity of the project of partition becomes irrelevant.
It is, however, argued for the appellee that since the court's distribution of the estate of the late
Bibiano Barretto was predicated on the project of partition executed by Salud Barretto and the
widow, Maria Gerardo (who signed for herself and as guardian of the minor Milagros Barretto), and
since no evidence was taken of the filiation of the heirs, nor were any findings of fact or law made,
the decree of distribution can have no greater validity than that of the basic partition, and must stand
or fall with it, being in the nature of a judgment by consent, based on a compromise. Saminiada vs.
Mata, 92 Phil. 426, is invoked in support of the proposition. That case is authority for the proposition
that a judgment by compromise may be set aside on the ground of mistake or fraud, upon petition
filed in due time, where petition for "relief was filed before the compromise agreement a proceeding,
was consummated" (cas. cit. at p. 436). In the case before us, however, the agreement of partition
was not only ratified by the court's decree of distribution, but actually consummated, so much so that
the titles in the name of the deceased were cancelled, and new certificates issued in favor of the
heirs, long before the decree was attacked. Hence, Saminiada vs. Mata does not apply.
Moreover, the defendant-appellee's argument would be plausible if it were shown that the sole basis
for the decree of distribution was the project of partition. But, in fact, even without it, the distribution
could stand, since it was in conformity with the probated will of Bibiano Barretto, against the
provisions whereof no objection had been made. In fact it was the court's duty to do so. Act 190,
section 640, in force in 1939, provided: .
SEC. 640. 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
Philippine Islands. 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 these Islands belonging to persons who are inhabitants of another state or country.
(Emphasis supplied)
That defendant Milagros Barretto was a minor at the time the probate court distributed the estate of
her father in 1939 does not imply that the said court was without jurisdiction to enter the decree of
distribution. Passing upon a like issue, this Court ruled in Ramos vs. Ortuzar, 89 Phil. Reports, pp.
741 and 742:
If we are to assume that Richard Hill and Marvin Hill did not formally intervene, still they
would be concluded by the result of the proceedings, not only as to their civil status but as
the distribution of the estate as well. As this Court has held in Manolo vs. Paredes, 47 Phil.
938, "The proceeding for probate is one in rem (40 Cyc., 1265) and the court acquires
jurisdiction over all persons interested, through the publication of the notice prescribed by
section 630 C.P.C.; and any order that any be entered therein is binding against all of them."
(See also in re Estate of Johnson, 39 Phil. 156.) "A final order of distribution of the estate of
a deceased person vests the title to the land of the estate in the distributees". (Santos vs.
Roman Catholic Bishop of Nueva Caceres, 45 Phil. 895.) There is no reason why, by
analogy, these salutary doctrines should not apply to intestate proceedings.
The only instance that we can think of in which a party interested in a probate proceeding
may have a final liquidation set aside is when he is left out by reason of circumstances
beyond his control or through mistake or inadvertence not imputable to negligence. Even
then, the better practice to secure relief is reopening of the same case by proper motion
within the reglementary period, instead of an independent action the effect of which, if
successful, would be, as in the instant case, for another court or judge to throw out a
decision or order already final and executed and reshuffle properties long ago distributed and
disposed of.
It is well to observe, at this juncture, as this Court expressly declared in Reyes vs. Barretto Datu, 94
Phil. 446 (Am'd Rec. Appeal, pp. 156, 157), that:
... It is argued that Lucia Milagros Barretto was a minor when she signed the partition, and
that Maria Gerardo was not her judicially appointed guardian. The claim is not true. Maria
Gerardo signed as guardian of the minor. (Secs. 3 and 5, Rule 97, Rules of Court.) The mere
statement in the project of partion that the guardianship proceedings of the minor Lucia
Milagros Barretto are pending in the court, does not mean that the guardian had not yet been
appointed; it meant that the guardianship proceedings had not yet been terminated, and as a
guardianship proceedings begin with the appointment of a guardian, Maria Gerardo must
have been already appointed when she signed the project of partition. There is, therefore, no
irregularity or defect or error in the project of partition, apparent on the record of the testate
proceedings, which shows that Maria Gerardo had no power or authority to sign the project
of partition as guardian of the minor Lucia Milagros Barretto, and, consequently, no ground
for the contention that the order approving the project of partition is absolutely null and void
and may be attacked collaterally in these proceedings.
So that it is now incontestable that appellee Milagros Barretto was not only made a party by
publication but actually appeared and participated in the proceedings through her guardian: she,
therefore, can not escape the jurisdiction of the Manila Court of First Instance which settled her
father's estate.
Defendant-appellee further pleads that as her mother and guardian (Maria Gerardo) could not have
ignored that the distributee Salud was not her child, the act of said widow in agreeing to the oft-cited
partition and distribution was a fraud on appellees rights and entitles her to relief. In the first place,
there is no evidence that when the estate of Bibiano Barretto was judicially settled and distributed
appellants' predecessor, Salud Lim Boco Barretto to, knew that she was not Bibiano's child: so that if
fraud was committed, it was the widow, Maria Gerardo, who was solely responsible, and neither
Salud nor her minor children, appellants herein, can be held liable therefor. In the second
placegranting that there was such fraud, relief therefrom can only be obtained within 4 years from its
discovery, and the record shows that this period had elapsed long ago.
Because at the time of the distribution Milagros Barretto was only 16 years old (Exhibit 24), she
became of age five years later, in 1944. On that year, her cause of action accrued to contest on the
ground of fraud the court decree distributing her father's estate and the four-year period of limitation
started to run, to expire in 1948 (Section 43, Act. 190). In fact, conceding that Milagros only became
aware of the true facts in 1946 (Appellee's Brief, p. 27), her action still became extinct in 1950.
Clearly, therefore, the action was already barred when in August 31, 1956 she filed her counterclaim
in this case contesting the decree of distribution of Bibiano Barretto's estate.
In order to evade the statute of limitations, Milagros Barretto introduced evidence that appellant Tirso
Reyes had induced her to delay filing action by verbally promising to reconvey the properties
received by his deceased wife, Salud. There is no reliable evidence of the alleged promise, which
rests exclusively on the oral assertions of Milagros herself and her counsel. In fact, the trial court
made no mention of such promise in the decision under appeal. Even more: granting arguendo that
the promise was made, the same can not bind the wards, the minor children of Salud, who are the
real parties in interest. An abdicative waiver of rights by a guardian, being an act of disposition, and
not of administration, can not bind his wards, being null and void as to them unless duly authorized
by the proper court (Ledesma Hermanos vs. Castro, 55 Phil. 136, 142).
In resume, we hold (1) that the partition had between Salud and Milagros Barretto in the proceedings
for the settlement of the estate of Bibiano Barretto duly approved by the Court of First Instance of
Manila in 1939, in its Civil Case No. 49629, is not void for being contrary to either Article 1081 or
1814 of the, Civil Code of 1889; (2) that Milagros Barretto's action to contest said partition and
decree of distribution is barred by the statute of limitations; and (3) that her claim that plaintiff-
appellant guardian is a possessor in bad faith and should account for the fruits received from the
properties inherited by Salud Barretto (nee Lim Boco) is legally untenable. It follows that the
plaintiffs' action for partition of the fishpond described in the complaint should have been given due
course.
Wherefore, the decision of the Court of First Instance of Bulacan now under appeal is reversed and
set aside in so far as it orders plaintiff-appellant to reconvey to appellee Milagros Barretto Datu the
properties enumeracted in said decision, and the same is affirmed in so far as it denies any right of
said appellee to accounting. Let the records be returned to the court of origin, with instructions to
proceed with the action for partition of the fishpond (Lot No. 4, Plan Psu-4709), covered by TCT No.
T-13734 of the Office of the Register of Deeds of Bulacan, and for the accounting of the fruits
thereof, as prayed for in the complaint No costs.
Concepcion, C.J., Dizon, Regala, Makalintal, Bengzon, J.P., Zaldivar, Sanchez and Castro, JJ.,
concur.

G.R. No. L-47931 June 27, 1941
72 Phil 546
Testamentaria del finado Rev. P. Eleuterio Pilapil. ADRIANO MENDOZA, solicitante y apelado,
vs.
CALIXTO PILAPIL Y OTROS, opositores y apelantes.
D. Filemon Sotto y D. Numeriano G. Estenzo en representacion de los apelantes.
Sres. Alonso y Alonso en representacion del apelado.
DIAZ, J .:
Las cuestiones principales que los opositores nos presentan para su resolucion, al apelar de la
decision del Juzgado de Primera Instancia de Cebu, dictada en el expediente de testamentaria No.
407 de dicho Juzgado, pueden reducirse a las siguintes.
1. Si el Juzgado de Cebu podia nombrar el 4 de marzo de 1939, al apelado como administrador
especial de los bienes relictos del finado P. Eleuterio Pilapil (expediente de testamentaria No. 407),
estando como estaba entonces actuando como administrador de los mismos bienes desde el 7 de
febrero de 1939, el apelante Calixto Pilapil, que promovio un dia antes, el Expediente de Intestado
del mismo finado P. Eleuterio Pilapil, en dicho Juzgado (expediente No. 399, Juzgado de Cebu); y
2. Si procedia y procede la legalizacion como testamento o disposicion de ultima voluntad del
finado P. Eleuterio Pilapil, del documento obrante en autos como Exhibit A que es un duplicado al
carbon del Exhibit C.
Los hechos pertinentes que hay que tener en cuenta al resolver las cuestiones propuestas son,
segun se desprenden de la decision apelada y de los mismos documentos que el Juzgado declaro
ser testamento y ultima voluntad del finado P. Eleuterio Pilapil, los que a continuacion se relatan:
El P. Eleuterio Pilapil, siendo Cura de la parroquia de Mualboal de la Provincia de Cebu, fallecio en
la ciudad de este nombre el 6 de diciembre de 1935. No habiendose presentado ningun testamento
suyo despues de su muerte, por lo menos hasta principios de febrero de 1939, su hermano Calixto
Pilapil promovio el dia 6 de dichos mes y ano,el expediente de intestado No. 399 para pedir que
fuesenombrado administrador de los bienes relictos de el. Recibida a prueba la solicitud que habia
presentado para elindicado fin, previas las publicaciones de los avisos presritos por la ley, y oyendo
el Juzgado previamente a los quecomparecieron para oponerse a la misma, entre los cuales
estaban el mismo apelado y Simeona Pilapil, el Juzgado se la concedio, nombrandole acto seguido
administrador de dicho Intestado. A los pocos dias, o sea el 4 de marzo de 1939, el apelado
promovio a su vez el expediente No. 407 de que antes se ha hecho mencion, para pedir la
legalizacion como testamento del finado P. Eleuterio Pilapil, del Exhibit A que es el duplicado al
carbon del Exhibit C. Hay entre las clausulas de dichos dos documentos, las que se insertan a
continuacion por su pertinencia a las cuestiones planteadas y tambien por la importancia que tienen
Yo, Eleuterio Pilapil, Sacerdote de la Iglesia Catolica Apostolica Romana, de sesenta y ocho
aos de edad, natural de Liloan, actualmente, Cura Parroco de la Parroquia de Mualboal,
Provincia de Cebu, I.F., gozando de salud y en PLENO USO DE MIS FACULTADES
MENTALES, por la presente, publico, declaro y otorgo lo siguiente como MI TESTAMENTO
Y ULTIMA VOLUNTAD:
ART. PRIMERO: Instituyo y nombro al Sr. Adriano Mendoza, mi sobrino politico, casado,
mayor de edad y vecino del Municipio de Liloan, Provincia de Cebu, I.F., ALBACEA-
EJECUTOR de este mi Testamento y Ultima Voluntad: Entendiendose, Que en case de
imposibilidad, negligencia u otra causa con que se cohibe hacer cumplir este mi Testamento
y Ultima Voluntad, mediante fianza, dispongo y ordeno que sea sustituido en el cargo de
albacea-ejecutor de este mi Testamento y Ultima Voluntad, por mi Primo, Jose Cabatingan,
casado, mayor de edad, residente del Municipiop de Mualboal, Provincia de Cebu, I.F.,
quien se encargara y hara que se cumplan estas mis siguientes disposiciones:
x x x x x x x x x
2. Dispongo y ordeno que este mi Testamento y Ultima Voluntad No se ventile en el
Juzgado, toda vez que este Testamento y Ultima Voluntad, simplemente corrobora, afirma y
asegura la legitimidad de los documentos de compraventa de mis bienes;
x x x x x x x x x
ART. SEGUNDO: Por la presente, hago constar que este Mi Testamento y Ultima Voluntad,
que corrobora, afirma y asegura la legitimidad de documentos por mi otorgados a los
compradores consta de dos articulos; contiene dieciseis disposiciones y esta escrito en tres
paginas;
x x x x x x x x x
Cebu, Cebu, I.F., hoy dia 27 de noviembre de 1935.
(Firmado) ELEUTERIO PILAPIL
Testador;
al final de los mismos (exhibits A y C), hay esta clausula de atestiguamiento:
Al que leyere:
SALUD,
Nosotros los que abajo firmamos, hacemos constar: Que el pre-inserto Testamento y Ultimo
Voluntad, ha sido suscrito, declarado y jurado por el Testador, Rev. P. Eleuterio Pilapil en
presencia de todos nosotros y a ruego de dicho Testador, firmamos cada uno de nosotros
en presencia de nosotros, aqui en Cebu, Cebu, I.F., hoy dia 27 de noviembre de 1935.
(Firmados) WENCESLAO PILAPIL
Testigo
MARCELO PILAPIL
Testigo
EUGENIO K. PILAPIL
Testigo
Los dos documentos, exhibits A y C, constan de tres paginas; y en el margen izquierdo de cada una
de las dos primeras; aparecen las firmas que se ven al final del cuerpo principal de dichos
documentos y de su clausula de atestiguamiento; y que son, segun las pruebas, firmas del finado P.
Eleuterio Pilapil, y de los testigos Wenceslao Pilapil, Marcelo Pilapil y Eugenio K. Pilapil.
En el lugar de la fecha tanto de los dos documentos como de su clausula de atestiguamiento,
aparece escrita la palabra "Cebu" sobre que se trato de raspar pero que aun puede verse que decia
"Mualboal"; y aparecen tambien el guarismo "27" y el nombre de mas: "Noviembre", escrito este
ultimo sobre una palabra raspada que aun puede verse tambien sin ninguna dificultad, por lo menos
en el Exhibit A, que dice: "Octubre". En el ultimo parrafo de la pagina 2 cuya continuacion aparece
en las dos primeras lineas de la pagina siguiente, (pagina 3), que es la ultima, hay la mencion
expresa siguiente: "contiene dieciseis disposiciones y esta escrito en tres paginas". Al pie de las
paginas (1) y (2) hay respectivamente estas notas: "Pase a la 2. pagina"; "pase a la 3. pagina". Y
debe notarse que tanto en el uno como en el otro de los aludidos Exhibits A y C, no hay mas que
dos articulos ("Art. Primero" y "Art. Segundo"), y dieceseis disposiciones.
Las razones en que los apelantes se apoyan para sostener que no procede la legalizacion de
ninguna de los dos expresados documentos como testamento del finado P. Eleuterio Pilapil, son
estas:
(a) Que contienen raspaduras y alteraciones que el apelado dejo de explicar;
(b) Que no se ha probado que el finado, prescindimiento de lo que consta en los referidos
documentos exhibits A y C , era de edad competente para testar;
(c) Que tampoco se ha probado que el finado poseia el espaol que es el lenguaje en que aparecen
escritos los referidos documentos;
(d) Que en una de las clausulas de dichos documentos hay la prohibicion de que se ventilen en losa
Tribunales;
(e) Que ninguno de los dos se ha preparado, firmado y atestiguado de conformidad con las
disposiciones del articulo 618 del Codigo de Procedimiento Civil.
Con respecto a la primera cuestion, debe decirse que, segun nos lo dice la misma Pieza de
Apelacion de los apelantes, los dos expedientes Nos. 399 y 407 se promovieron en dos Salas
distintas del Juzgado de Primera Instancia de Cebu. El primero fue promovido en la Sala III; y el
ultimo, en la Sala II. Al enterarse el Juez de una de dichas Salas que habia una relacion directa
entre unto y otro, dispuso que los dos se conociesen por un solo Juez; de ahi que ambos se
consideraran como uno solo para evitar lo que el mencionado Juez dijo: "incompatibilidad en la
administracion de los bienes de dicho difunto", refiriendose a; finado P. Eleuterio Pilapil.
Indudablemente no le falto razon al Juzgado de Cebu para nombrar administrador especial en el
expediente No. 407, al apelado, porque en los documentos que alli se trataban de legalizar como
testamento y disposicion de ultima voluntad del finado P. Eleuterio Pilapil, consta el encargo
expreso de que lo fuese. Ademas, no habia ni hay ninguna ley que prohiba a los Tribunales que
conocen de un expediente de testamentaria o de intestado, nombrar a mas de un administrador; y,
en el caso de que se trata ocurrio que se dejo sin efecto el nombramiento del apelante como
administrador, luego que se fundieron los dos referidos expedientes. Mas todavia; si el proposito de
los apelantes al proponer la cuestion de que venimos hablando, es dejar sin efecto el nombramiento
expedido a favor del apelado como administrador especial, vano es y vano ha de ser dicho
proposito, porque el insistir en el equivale a estar apelando de una orden del Juzgado que nombra a
un administrador especial; y la ley no permite apelacion contra ordenes de dicha naturaleza. Es
terminante la disposicion de ley que dice: "No se permitira la apelacion contra el nombramiento de
dicho administrador especial". (Art. 660, Ley No. 190.)
En adicion a todo esto debe decirse que, si hubo algun error en el nombramiento del apelado como
administrador especial, por la razon de que otro en propiedad ya estaba nombrado por el Juzgado,
el error, si tal puede llamarse, no ha sido de tal naturaleza que haya causado perjuicio alguno a
nadie, y menos a la Testamentaria del finado P. Eleuterio Pilapil.
Las raspaduras y alteraciones que se notan en los exhibits A y C constituyen unos hechos a los que
ahora, por primera vez, y en esta instancia, se quiere llamr la atencion, cuando ello debio haberse
hecho mientras la causa se hallaba todavia en el Juzgado de su procedencia. No podemos tenerlos
en cuenta en el presente estado de las actuaciones porque, suponiendo que entonces ya existian,
puede y debe decirse, aunque no lo dijo en terminos expresos el Juzgado de Cebu, que considero
que no viciaban dichos documentos; pues es presuncion juris tantum que "todos los hechos
relacionados con los puntos discutidos en un juicio fueron expuestos al juzgado y apreciados por
el". (Art. 334, par. 16, Ley No. 190.) Y no lo viciaron en efecto, porque se desprende de las mismas
circunstancias del caso, que se hicieron precisamente para poner las cosas en su verdadero lugar.
Los dos exhibits A y C fueron preparados por el finado P. Eleuterio Pilapil en Mualboal donde era
Cura Parroco, antes de ser transladado para ser tratado de su enfermedad que le causo la muerte,
al Southern Islands Hospital de Cebu, donde murio. Fundandose el Juzgado en estos hechos que
se probaron en juicio, declaro lo siguiente: "La intervencion de los tres testigos instrumentales del
documento tuvo lugar de una manera casual, en ocasion en que los mismos fueron a visitarle a
Eleuterio Pilapil que estaba enfermo en el Southern Islands Hospital, y alli el hoy finado les rogo que
actuaran de testigos del documento que ya tenia entonces preparado".
Al prepararlos el, estando en Mualboal, no era mas que natural que expresase en los mismos que
alli fueron preparados, y dejase en blanco la fecha pero sin dejar de poner el nombre del mes en
que se pusieron en limpio, es decir, octubre de 1935.
Cuanto a la edad del testador y cuanto a si hablaba el espanol que es la lengua en que aparecen
redactados los dos exhibits, o no, debe decirse que siendo sacerdote y Cura de la parroquia de
Mualboal, Cebu, debe presumirse fundademente que tenia la edad competente para testar, y que
entendia y hablada el espanol, pues, es de conocimiento general que para ser Cura de una
parroquia, uno debe ser sacerdote, y para serlo, son necesarios muchos anos de estudio en
seminarios donde se habla el espaol que es una lengua tan oficial como la inglesa. Por otra parte,
no consta que se haya probado que el testador no entendia dicha lengua.
La disposicion del testador de que su "Testamento y Ultima Voluntad no se ventile en el Juzgado",
no puede despojar a los Tribunales de su autoridad para determinar si su referido testamento es
legalizable o no. No son las partes interesadas en un sentido u otro en un asunto, las que pueden
conferir o quitar jurisdiccion y autoridad a los Trubunales para resolver y decidir lo que la misma ley
quiere que se resuelva y se decida. Debe tenerse presente que la ley manda bajo pena, que se
entreguen al Juzgado los testamentos otorgados por un testador, luego que este muera, por la
persona a quien su custodia se haya encomendado, con el fin indudablemente de que se pueda
determinar si procede su legalizacion y se pueda al propio tiempo disponer de sus bienes segun lo
manda en los mismos; o si por el contrato, debe declararse muerto intestado, por no ser susceptible
de legalizacion el que hubiese otorgado. (Arts. 626 al 631, Ley No. 190.) Ademas, no siendo
abogado el testador, no es de extranar que haya consignado en su testamento la prohibicion de
que, usando sus mismas palabras , "se ventile en el Juzgado".
Y cuanto a que los exhibits A y C no pueden ser legalizados porque no se prepararon ni se firmaron
de conformidad con la ley, diciendose que sus paginas no estan numeradas con letras; y porque en
su clausula de atestiguamiento no se expresa que los mismos fueron firmados por los tres testigos
instrumentales, en presencia del testador, baste llamar la atencion al hecho de que al pie de la
primera pagina hay en letras la nota que dice claramente: "Pase a la 2. pagina"; y al hecho de que,
al pie de esta segunda pagina, hay esta otra nota: "Pase a la 3. pagina"; y baste llamar tambien la
atencion a las dos primeras lineas de dicha tercera pagina que es la ultima, donde, para completar
la disposicion que se encierra en el ultimo parrafo de la pagina anterior, o sea segunda, se dice lo
siguiente:
. . . consta de dos articulos; contien
dieciseis disposiciones y esta escrito
en tres paginas,
lo cual concuerda fielmente con los verdaderos hechos tales como aparecen en los referidos dos
exhibits, porque contienen efectivamente dos articulos y dieciseis disposiciones, y no mas, y no
menos.
En la clausula de atestiguamiento en una y otra copia del Testamento objeto de cuestion, se afirma
por los tres testigos instrumentales que la firmaron, que
el pre-inserto Testamento y Ultima Voluntad,
ha sido suscrito, declarado y jurado por
el Testador, Rev. P. Eleuterio Pilapil
en presencia de todos nosotros;
y a renglon seguido, se afirma tambien por los mismos testigos que:
a ruego de dicho Testador, firmamos
cada uno de nosotros, aqui en Cebu, Cebu,
I.F., hoy dia 27 de noviembre de 1935.
La fraze "a ruego de dicho Testador", unida a la de que suscribio y firmo su testamento en presencia
de los testigos instrumentales, permite y justifica la inferencia de que el testador estaba presente
cuando los ultimos estamparon alli sus respectivas firmas.
El proposito de la ley al establecer las formalidades que se requieren su autenticidad, es
indudablemente asegurar y garantizar su autenticidad contra la mala fe y el fraude, para evitar que
aquellos que no tienen derecho a suceder al testador, le sucedan y salgan beneficiados con la
legalizacion del mismo. Se ha cumplido dicho proposito en el caso de que se viene hablando
porque, en el mismo cuerpo del testamento y en la mismo pagina donde aparece la clausula de
atestiguamiento, o sea la tercera, se expresa que el testamento consta de tres paginas y porque
cada una de las dos primeras lleva en parte la nota en letras, y en parte la y segunda paginas del
mismo. Estos hechos excluyen evidentemente todo temor, toda sospecha, o todo asomo de duda
de que se haya sustituido alguna de sus paginas con otra.
Algo mas que en el caso de Nayve contra Mojal y Aguilar (47 Jur. Fil., 160), que fue aclarada
mediante la causa de Gumban contra Gorecho y otros (50 Jur. Fil., 31), hay en el presente caso
porque alli no habia mas que las notas: "Pag. 1"; "Pag. 2"; "Pag. 3"; y "Pag. 4" en la cara respectiva
de las cuatro paginas de que se compone, y en el presente hay los datos ya mencionados y hay
ademas la constancia inserta en las dos primeras lineas de la tercera pagina de los exhibits A y C,
de que los mismos estan compuestos de tres paginas, y contienen dos articulos y dieciseis
disposiciones.
Son por consiguiente de perfecta aplicacion al caso de que se trata lo que dijimos en las causas de
Rodriguezcontra Yap, R.G. No. 45924, mayo 18, 1939; y Dichoso contra De Gorostiza (57 Jur. Fil.,
456). Dijimos en dichas causas, respectivamente, lo siguiente:
La redaccion de la clausula de atestiguamiento en este testamento no esta tecnicamente
libre de reparos, pero, es sustancialmente un cumplimiento de la ley.
Mantenemos el criterio de que debe exigirse el cumplimiento estricto de los requisitos
substanciales del testamento, para asegurar su autenticidad, pero, al mismo tiempo
creemos que no deben tenerse en cuenta defectos de forma que no pueden afectar a este
fin y que, por otra part, de tenerse en cuenta, podrian frustrar la voluntad del testador.
(Rodriguez contra Yap, supra.)
No debera permitirse que las formalidades legales obstaculicen el empleo de buen sentido
comun en la consideracion de testamentos y que frustren los deseos de los difuntos
solemnemente expresados en sus testamentos, en cuanto a cuyo otorgamiento no hay ni
siquiera sombra de mala fe ni de fraude. (Dichosocontra De Gorostiza, supra.)
Por todo lo expuesto, hallando arreglada a derecho la decision apelada del Juzgado de Primera
Instancia de Cebu, por la presente, la confirmamos, condenados a los apelantes a pagar las costas.
Asi se ordena.
Avancea, Pres., Diaz, Laurel, Moran y Horrilleno, MM., estan conformes.

G.R. No. 24168 September 22, 1925
47 Phil 938
FLORENCIO MANALO, as guardian of the minors Lazaro Mendieta and Daria
Mendieta, petitioner,
vs.
Honorable ISIDRO PAREDES, Judge of First Instance of Laguna, and PHILIPPINE FOOD
COMPANY,respondents.
Francisco, Lualhati and Lopez and Juan S. Rustia for petitioner.
Claro M. Recto, Ross, Lawrence and Selph and Antonio T. Carrascoso, Jr., for respondents.
J.E. Blanco for the intervenor Hidalgo.
VILLA-REAL, J .:
This is a proceeding for mandamus commenced originally in this court by Florencio Manalo, as
guardian of the minors Lazaro and Daria Mendieta, for the issuance of a writ
of mandamus addressed to the Honorable Isidro Paredes, Judge of the Court of First Instance of
Laguna, and the Philippine Food Co., ordering the publication of the petition for the probate of the
will of the deceased Francisco Villegas, case No. 4217 of the Court of First Instance of Laguna; and
injunction commanding the respondent judge, Honorable Isidro Paredes, to suspend the
proceedings in the registration case No. 954 of the Court of First Instance of Laguna, wherein the
Philippine Food Co. is the applicant and the minors Lazaro and Daria Mendieta opponents, until the
termination of the proceeding for the probate of the will of Francisco Villegas, in which said minors
are named legatees of the land involved in said registration case.
On March 22, 1924, Laureana Hidalgo, surviving spouse of Francisco Villegas, filed with the Court of
First Instance of Laguna an application for letters of administration of the estate left by her deceased
husband, who, according to the application, died intestate (rec. No. 4031, file 1, of the Court of First
Instance of Laguna).
In the course of said administration and on May 5, 1924, Justina Mendieta, Lazaro Mendieta, Daria
Mendieta and Melecio Fule, supposed testamentary executor, through their attorney, Mr. Eusebio
Lopez, filed a motion with the court, praying for the probate of the supposed will of Francisco
Villegas, wherein most of his property was given as a legacy to said Justina Mendieta, the latter's
children and the legitimate wife of the deceased Francisco Villegas (rec. No. 4031, file 1. fol. 47).
On August 8, 1924, Messrs. E.M. Lopez and V.F. Reyes, attorneys, on behalf of the executor
Melecio Fule, filed a motion (Exhibit 3) wherein they stated that the attesting witnesses, Exequiel
Evidente and Albino Villegas, had assured them that the supposed will had not been executed by
Francisco Villegas in accordance with law, and that the executor Melecio Fule no longer took interest
in the case (rec. No. 4031, fol. 116).
On June 5, 1924, having received an order of the court requiring her to produce the supposed will of
Francisco Villegas, Justina Mendieta filed a motion wherein, among other things, she said:
That having learned of the aforesaid order of this court, I hereby freely and spontaneously
state that I know not of any will executed by the deceased Francisco Villegas, except the one
that I had had said deceased Francisco Villegas sign on January 18, 1924, which he signed
at my request and inducement in order that my children begotten by him might have a share
in his estate, as said deceased did in fact sign said will only in my presence and compelled
by the pressure exerted by me and for my aforesaid children. (Rec. No. 4031, file 1, fol. 70.)
Notwithstanding the foregoing motions, the court, on September 3, 1924, ordered the publication in
the newspaperEl Debate, of Manila, of the application of Melecio Fule and of Justina Mendieta,
Lazaro Mendieta, and Daria Mendieta for the probate of the supposed will of the deceased
Francisco Villegas, setting said application for hearing on the 3rd day of October, 1924 (rec. No.
4031, file 1, fol. 192).
On September 5, 1924, Justina Mendieta, together with her children Lazaro Mendieta and Daria
Mendieta, filed another application for the probate of the same will through their attorneys, Messrs.
Azada and Veluz (rec. No. 4031, file 1, fol. 199), and on October 13, 1924, the same attorneys and
Attorney Marcelino Lontok, on behalf of Justina Mendieta and her minor children, filed a motion for
the appointment of a guardian ad litem for said minors (rec. No. 4031, file 2, fol. 117).
At the trial which was held October 16, 1924, the court below appointed Justina Mendieta, natural
mother of said minors, as their guardian ad litem. Laureana Hidalgo entered her objection to the
probate of the will (rec. No. 4031, file 2, fol. 136) and immediately the court proceeded to hear the
evidence of the parties, each and everyone of the attesting witnesses of the supposed will, named
Tomas Dizon, Albino Villegas, and Exequiel Evidente having testified, and the applicants having
introduced Exhibits A, B, C, D, E, F, G, H, I, J, K, L, M, and N and the opponent Exhibits 1, 2, 3, and
4, the trial having been suspended thereafter, to be continued on October 24, 1924.
When the case was filed on October 24, 1924, for the continuation of the trial, Justina Mendieta, for
herself and in her capacity as guardian ad litem of her minor children Lazaro Mendieta and Daria
Mendieta, represented by their attorneys, Messrs. Marcelino Lontok and Marcial Azada, on the one
hand, and Laureana Hidalgo, represented by her attorney, Mr. J.E. Blanco, on the other, submitted
to the court an agreement wherein Justina Mendieta stated that she withdrew her application for the
probate of the supposed will of the deceased Francisco Villegas on the ground that the evidence
was insufficient to justify the probate of said will, and consequently, she prayed that said will be held
not allowable to probate and that the deceased died intestate, without leaving any more heirs than
his legitimate wife, Laureana Hidalgo, and his two adulterous children, Lazaro and Daria Mendieta,
and that the property of the deceased be distributed in accordance with said agreement (rec. No.
4031, file 2, fol. 171).
By an order dated October 25, 1924, the court approved said stipulation and rendered judgment,
holding that the supposed will of Francisco Villegas could not be probated, and awarding to the heirs
of the deceased the estate left by Francisco Villegas in accordance with said agreement (rec. No.
4031, file 2, fol. 173). From this order no appeal has been taken.
On January 7, 1925, one Gelacio Malihan, who claimed to be first cousin of the deceased Francisco
Villegas, filed with the court a new application for the probate of the same supposed will of the
deceased Francisco Villegas (rec. No. 4217).
As may be seen from the facts above stated, the will, the probate of which is applied for in the
petition dated January 7, 1925, is the same one that was the subject of the application of May 5,
1924, and of September 5, 1924. The only difference lies in that the first application was filed by
Justina Mendieta and her minor children Lazaro Mendieta and Daria Mendieta and Melecio Fule,
supposed testamentary executor, all represented by the attorney, Mr. Eusebio M. Lopez; the second
by Justina Mendieta and her minor children Lazaro Mendieta and Daria Mendieta, represented by
the attorneys Messrs. Azada and Veluz; and the third and last by one Gelacio Malihan who claimed
to be first cousin of the deceased Francisco Villegas.
The proceeding for the probate of a will is a proceeding in rem (40 Cyc., p. 1265), and the court
acquires jurisdiction over all the persons interested through the publication of the notice prescribed
by section 630 of the Code of Civil Procedure, and any order that may be entered is binding against
all of them. Through the publication ordered by the Court of First Instance of Laguna of the
application for the probate of the supposed will of Francisco Villegas, filed by Justina Mendieta and
her minor children Lazaro and Daria Mendieta and Melecio Fule, testamentary executor, through
their attorney, Mr. Eusebio Lopez, said court acquired jurisdiction over all such persons as were
interested in the supposed will, including Gelacio Malihan. The court having tried said application for
probate, hearing all the testimony of the attesting witnesses of the said supposed will, the applicant
Justina Mendieta for herself and as guardian ad litem of her minor children, represented by their
attorneys, Messrs. Marcelino Lontok and Marcial Azada, on the one hand, and Laureana Hidalgo,
widow of Francisco Villegas, represented by her attorney, Jesus. E. Blanco, on the other, having
submitted a stipulation wherein the former withdrew her application and the latter reserved certain
rights over the estate left by Francisco Villegas in favor of Justina Mendieta and her minor children;
and the court having approved said stipulation and declared that Francisco Villegas died intestate
according to said agreement, all the parties became bound by said judgment; and if any of them or
other persons interested were not satisfied with the court's decision, they had the remedy of appeal
to correct any injustice that might have been committed, and cannot now through the special remedy
ofmandamus, obtain a review of the proceeding upon a new application for the probate of the same
will in order to compel the respondent judge to comply with his ministerial duty imposed by section
330 of the Code of Civil Procedure; because this remedy, being extraordinary, cannot be used in lieu
of appeal, or writ of error (26 Cyc., 177; 18 R.C.L., par. 443); especially when the parties interested
have agreed to disregard the testamentary provisions and divide the estate as they pleased, each of
them taking what pertained to him (25 R.C.L., 359).
The first ground of the petition for mandamus is a consequence of the second and we need not deal
with it.
As to the motion of the petitioner that the record of the proceeding be transmitted to the Attorney-
General for investigation, in order to discover any irregularity or fraud that may have been
committed, and to institute the proper proceeding against those who may be found guilty, this court
will take no action unless specific charges are filed.
For all the foregoing, the petition for mandamus is denied with the costs against the petitioner. So
ordered.
Avancea, C.J., Johnson, Street, Malcolm, Villamor, Ostrand, Johns and Romualdez, JJ., concur.

G.R. No. L-29901 August 31, 1977
78 SCRA 412
IGNACIO FRIAS CHUA, DOMINADOR CHUA and REMEDIOS CHUA, petitioners,
vs.
THE COURT OF FIRST INSTANCE OF NEGROS OCCIDENTAL, BRANCH V and SUSANA DE
LA TORRE, in her capacity as Administratrix of the Intestate Estate of Consolacion de la
Torre, respondents.
Dominador G. Abaria and Primitivo Blanca for private respondent.
Rodrigo O. Delfinado for petitioners.

MARTIN, J .:
Petition for review of the decision of the respondent Court which dismissed the complaint of
petitioners in Civil Case No. 7839-A, entitled "Ignacio Frias Chua, et al. vs. Susana de la Torre,
Administratrix of the Intestate Estate of Consolacion de la Torre"
It appears that in the first marriage of Jose Frias Chua with Patricia S. Militar alias Sy Quio he sired
three children, namely: Ignacio, Lorenzo and Manuel, all surnamed Frias Chua. When Patricia S.
Militar died, Jose Frias Chua contracted a second marriage with Consolacion de la Torre with whom
he had a child by the name of Juanita Frias Chua. Manuel Frias Chua died without leaving any
issue. Then in 1929, Jose Frias Chua died intestate leaving his widow Consolacion de la Torre and
his son Juanito Frias Chua of the second marriage and sons Ignacio Frias Chua and Lorenzo Frias
Chua of his first marriage. In Intestate Proceeding No. 4816, the lower court issued an order dated
January 15, 1931
1
adjudicating, among others, the one-half (1/2,) portion of Lot No. 399 and the sum of
P8,000.00 in favor of Jose Frias Chua's widow, Consolacion de la Torre, the other half of Lot No. 399 in
favor of Juanito Frias Chua, his son in the second marriage; P3,000.00 in favor of Lorenze Frias chua;
and P1,550.00 in favor of Ignacio Frias, Chua, his sons of the first marriage. By virtue of said
adjudication, Transfer Certificate of Title No. TR-980 (14483)
2
dated April 28, 1932 was issued by the
Register of Deeds in the names of Consolacion de la Torre and Juanito Frias Chua as owners pro-
indiviso of Lot No. 399.
On February 27, 1952, Juanito Frias Chua of the second marriage died intestate without any issue.
After his death, his mother Consolacion de la Torre succeeded to his pro-indivisio share of Lot No.
399. In a week's time or on March 6, 1952, Consolacion de la Torre executed a declaration of
heirship adjudicating in her favor the pro-indiviso share of her son Juanito as a result of which
Transfer Certificate of Title No. 31796 covering the whole Lot No. 399 was issued in her name. Then
on March 5, 1966, Consolacion de la Torre died intestate leaving no direct heir either in the
descending or ascending line except her brother and sisters.
In the "Intestate Estate of Consolacion de la Torre", docketed as Sp. Proc. No. 7839-A, the
petitioners herein, Ignacio Frias Chua, of the first marriage and dominador and Remedios Chua, the
supposed legitimate children of the deceased Lorenzo Frias Chua, also of the first marriage filed the
complaint a quo
3
(subseqently segregated as a distinct suit and docketed as Civil Case No. 7839-A) on
May 11, 1966 before the respondent Court of First Instance of Negros Occidental, Branch V, praying that
the one-half (1/2) portion of Lot No. 399 which formerly belonged to Juanito Frias but which passed to
Consolacion de la Torre upon the latter's death, be declaredas a reservable property for the reason that
the lot in questionn was subject to reserval troncal pursuant to Article 981 of the New Civil Code, Private
respondent as administratrix of the estate of individually the complaint of petitioners
4

On July 29, 1986, the respondent Court rendered a decision dismissing the complaint of petitioner.
Hence this instant.
The pertinent provision of reserva troncal under the New Civil Code provides:
ART. 891. The ascendant who inheritts from his descendant any property which the
latter may have acquired by gratuitous title from another ascendat, or a brother or
sister, is obliged to reserve such property as he may have acquired by operation of
law for the benefit of relatives who are within the third degree and belong to the line
from which said property came.
Persuant to the foregoing provision, in order that a property may be impressed with a reservable
character the following requisites must exist, to wit: (1) that the property was acquired by a
descendant from an asscendant or from a brother or sister by gratuitous title; (2) that said
descendant died without an issue; (3) that the property is inherited by another ascendant by
operation of law; and (4) that there are relatives within the third degree belonging to the line from
which said property came.
5
In the case before Us, all of the foregoing requisites are present. Thus, as
borne out by the records, Juanoito Frias Chua of the second marriage died intestate in 1952; he died
withour leaving any issue; his pro-indiviso of 1/2 share of Lot No. 399 was acquired by his mother,
Consolacion de la Torre died, Juannnito Frias Chua who died intestate had relatives within the third
degree. These relatives are Ignacio Frias Chua and Dominador Chua and Remidios Chua, the suppose
legitimate children of the deceased Lorenzo Frias Chua, who are the petitioners herein.
The crux of the problem in instant petition is focused on the first requisit of reserva troncal
whether the property in question was acquired by Juanito Frias Chua from his father Jose Frias
Chua, gratuitously or not. In resolving this point, the respondent Court said:
It appears from Exh. "3", which is part of Exh. "D", that the property in question was
not acquired by Consolacion de la Torre and Juanito Frias Chua gratuitously but for a
consideration, namely, that the legatees were to pay the interest and cost and other
fees resulting from Civil Case No. 5300 of this Court. As such it is undeniable that the
lot in question is not subject tot a reserva troncal, under Art. 891 of the New Civil
Code, and as such the plaintiff's complaint must fail.
We are not prepared to sustain the respondent Court's conclusion that the lot in question is not
subject to areserva troncal under Art. 891 of the New Civil Code. It is, As explained by Manresa
which this Court quoted with approval in Cabardo v. Villanueva, 44 Phil. 186, "The transmission is
gratuitous or by gratuitous title when the recipient does not give anything in return." It matters not
whether the property transmitted be or be not subject to any prior charges; what is essential is that
the transmission be made gratuitously, or by an act of mere liberality of the person making it, without
imposing any obligation on the part of the recipient; and that the person receiving the property gives
or does nothing in return; or, as ably put by an eminent Filipino commentator,
6
"the essential thing is
that the person who transmits it does so gratuitously, from pure generosity, without requiring from the
transferee any prestation." It is evident from the record that the transmission of the property in question to
Juanito Frias Chua of the second marriage upon the death of his father Jose Frias Chua was by means of
a hereditary succession and therefore gratuitous. It is true that there is the order (Exh. "D") of the probate
Court in Intestate Proceeding No. 4816 which estates in express terms;
2. Se adjudicada pro el presente a favor de Consolacion de la Torre, viuda, mayor
de edad, y de su hiju, Juanito Frias Chua, menor de edad, todos residente de San
Enrique, Negros Occidental, I.F.,como herederos del finado Jose Frias Chua Choo,
estas propiadades:
14483
La parcela de terrenno concida por Lote No. 399 del Catsatro de la Carlota, Negros
Occidental, de 191.954 metros cuadddrados y cubierto por el Certificado de Titulo
No. 11759, en partes equales pro-indiviso; por con la obligscion de pagar a las
Standard Oil Co. of New York la deuda de P3971.20, sus intereses, costas y demas
gastos resultantes del asunto civil No. 5300de este jusgado
But the obligation of paying the Standard Oil Co. of New York the amount of P3,971.20 is imposed
upon Consolacion de la Torre and Juanito Frias Chua not personally by the deceased Jose Frias
Chua in his last will and testament but by an order of the court in the Testate Proceeding No.4816
dated January 15, 1931. As long as the transmission of the property to the heirs is free from any
condition imposed by the deceased himself and the property is given out of pure generosity, itg is
gratuitous. it does not matter if later the court orders one of the heirs, in this case Juanito Frias
Chua, to pay the Standare oil co. of New York the amount of P3,971.20. This does not change the
gratuitous nature of the transmission of the property to him. This being the case the lot in question is
subject to reserva troncal under Art, 891 of the New Civil Code.
It is contented that the distribution of the shares of the estate of Jose Frias Chua to the respondent
heirs or legatees was agreed upon by the heirs in their project of partition based on the last will and
testament of Jose Frias Chua. But petitioners claim that the supposed Last Will and Testament of
Jose Frias Chua was never probated. The fact that the will was not probated was admitted in
paragraph 6 of the respondents' answer.
7
There is nothing mentioned in the decision of the trial court in
Civil Case No. 7839 A which is the subject of the present appeal nor in the order of January 15, 1931 of
the trial court in the Testate Estate Proceeding No. 4816 nor in the private respondent's brief, that the
Last Will and Testament of Jose Frias Chua has ever been probated. With the foregoing, it is easy to
deduce that if the Last Will and Testament has in fact been probated there would have been no need for
the testamentary heirs to prepare a project of partition among themselves. The very will itself could be
made the basis for the adjudication of the estate as in fact they did in their project of partition with Juanito
Frias Chua getting one-half of Lot 399 by inheritance as a sone of the deceased Jose Frias Chua by the
latter's second marriage.
According to the record, Juanito Frias Chua died on February 27, 1952 without any issue. After his
death his mother Consolation de la Torre succeeded to his one-half pro-indiviso share of Lot 399.
This was, however, subject to the condition that the property was reservable in character under Art.
891 of the Civil Code in favor of relatives within the third degree of Jose Frias Chua from whom the
property came. These relatives are the petitioner herein.
It is claimed that the complaint of petitioners to recover the one-half portion of Lot 399 which
originally belonged to Juanito Frias Chua has already prescribed when it was filed on May 11, 1966.
We do not believe so. It must be remembered that the petitioners herein are claiming as reservees
did not arise until the time the reservor, Consolacion de la Torre, died in March 1966. When the
petitioners therefore filed their complaint to recover the one-half (1/2) portion of Lot 399, they were
very much in time to do so.
IN VIEW OF THE FOREGOING, the decision appealed from is hereby set aside. The petitioners
Ignacio Frias Chua, Dominador Chua and Remedios Chua are declared owners of 1/2 undivided
portion of Lot 399; and the Register of Deeds of Negros Occidental is hereby ordered to cancel.
Transfer Certificate of Title No. 31796 covering Lot No. 399 issued in the name of Consolacion de la
Torre and to issue a new Certificate of Title in the names of Consolacion de la Torre, 1/2 undivided
portion; Ignacio Frias Chua, 1/4 undivided portion; and Dominador Chua and Remedios Chua, 1/4
undivided portion, of said lot. Without pronouncement as to costs.
SO ORDERED.
Teehankee (Chairman), Makasiar, Mu;oz Palma, Fernandez and Guerrero, JJ., concur.

G.R. No. L-48840 December 29, 1943
74 Phil 479
ERNESTO M. GUEVARA, petitioner-appellant,
vs.
ROSARIO GUEVARA and her husband PEDRO BUISON, respondent-appellees.
Primacias, Abad, Mencias & Castillo for appellant.
Pedro C. Quinto for appellees.

OZAETA, J .:
Ernesto M. Guevarra and Rosario Guevara, ligitimate 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. Guervara 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 Piuo 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 usufructurary right.1awphil. net
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
degray his expenses and those of his family us to the time of his death.
The remainder of said parcel of land his 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 veiticinco (25)
centiares, 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. Guevarra executed 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, inconsideration 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. Guevarra 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 testor'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 Victirino 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 testor, or within
thirty days after he knows that he is named executor, if he obtained such knowledge after
knowing of the death of the testor, 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 proceeding
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 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 prision 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, incovenience, 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 letter 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 so 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 nobdy 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 the 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 reinvindicacion or partition.
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:
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 dies 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 for 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 titled 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 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 debt 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.

G.R. No. L-20374 October 11, 1923
45 Phil 216
In re of Dolores Coronel, deceased.
LORENZO PECSON, applicant-appellee,
vs.
AGUSTIN CORONEL, ET AL., opponents-appellants.
Fisher, DeWitt, Perkins and Brady for appellants.
Ross and Lawrence and Guillermo Lualhati for appellee.

ROMUALDEZ, J .:
On November 28, 1922, the Court of First Instance of Pampanga probated as the last will and
testament of Dolores Coronel, the document Exhibit A, which translated is as follows:
In the name of God, Amen:
I, Dolores Coronel, resident of Betis, Guagua, Pampanga, Philippine Islands, in the full
exercise of my mental faculties, do hereby make my last will and testament, and revoke all
former wills by me executed.
I direct and order that my body be buried in conformity with my social standing.
That having no forced heirs, I will all my properties, both movable and immovable, to my
nephew, Lorenzo Pecson, who is married to my niece Angela Coronel, in consideration of
the good services with he has rendered, and is rendering to me with good will and
disinterestedness and to my full satisfaction.
I name and appoint my aforesaid nephew, Lorenzo Pecson, executor of all that is willed and
ordained in this my will, without bond. Should he not be able to discharge his duties as such
executor for any reason whatsoever, I name and appoint as substitute executor my grandson
Victor Pecson, a native and resident of the town of Betis, without requiring him to give
bond. 1awph!l. net
All my real and paraphernal property as well as my credits for I declare that I have no debts,
are specified in an inventory.
In testimony whereof and as I do not know how to write my name, I have requested Vicente
J. Francisco to write my name at the foot hereof and on the left margin of each of its sheet
before me and all the undersigned witnesses this July 1, 1918.
VICENTE J. FRANCISCO
"For the testatrix Dolores Coronel
The foregoing document was executed and declared by Dolores Coronel to be her last will
and testament in our presence, and as the testatrix does not know how to write her name,
she requested Vicente J. Francisco to sign her name under her express direction in our
presence, at the foot, and on the left margin of each and every sheet, hereof. In testimony
whereof, each of us signed these presents in the presence of others and of the testatrix at
the foot hereof and on the margin of each and everyone of the two sheets of which this
document is composed, which are numbered "one" and "two" on the upper part of the face
thereof.
(Sgd.) "MAXIMO VERGARA SOTERO DUMAUAL MARCOS DE LOS
SANTOS
MARIANO L. CRISOSTOMO PABLO BARTOLOME MARCOS DE
LA CRUZ DAMIAN CRISOSTOMO
On the left margin of the two sheets of the will the following signatures also appear:
Mariano L. Crisostomo, Vicente J. Francisco for the testatrix Dolores Coronel, M. Vergara,
Pablo Bartolome, Sotero Dumaual Crisostomo, Marcos de la Cruz, Marcos de los Santos.
The petitioner for the probate of the will is Lorenzo Pecson, husband of Angela Coronel, who is a
niece of the deceased Dolores Coronel.
The opponents are: Eriberto Coronel, Tito Coronel, Julian Gozum, Cirila Santiago, widow of the
deceased Macario Gozum, in her own behalf and that of her three minor children, Hilarion Coronel,
Geronimo Coronel, Maria Coronel and her husband Eladio Gongco, Juana Bituin, widow of the
deceased Hipolito Coronel, in her own behalf and that of her three children, Generosa, Maria, and
Jose, all minors, Rosario Coronel, Agustin Coronel, Filomeno Coronel, Casimiro Coronel, Alejo
Coronel, Maria Coronel, Severina Coronel, Serapia Coronel, Maria Juana de Ocampo, widow of the
deceased Manuel Coronel, Dionisia Coronel, and her husband Pantaleon Gunlao.
The probate of this will is impugned on the following grounds: (a) That the proof does not that the
document Exhibit A above copied contains the last will of Dolores Coronel, and (b) that the
attestation clause is not in accordance with the provisions of section 618 of the Code of Civil
Procedure, as amended by Act No. 2645.
These are the two principal questions which are debated in this case and which we will now examine
separately.
As to the first, which is the one raised in the first assignment of error, the appellants argue: First, that
it was improbable and exceptional that Dolores Coronel should dispose of her estate, as set forth in
the document Exhibit A, her true being that the same be distributed among her blood relatives; and
second, that if such will not expressed in fact, it was due to extraneous illegal influence.
Let us examine the first point.
The opponents contend that it was not, nor could it be, the will of the testatrix, because it is not
natural nor usual that she should completely exclude her blood relatives from her vast estate, in
order to will the same to one who is only a relative by affinity, there appearing no sufficient motive for
such exclusion, inasmuch as until the death of Dolores Coronel, she maintained very cordial
relations with the aforesaid relatives who had helped her in the management and direction of her
lands. It appears, however, from the testimony of Attorney Francisco (page 71, transcript of the
stenographic notes) that Dolores Coronel revealed to him her suspicion against some of her
nephews as having been accomplices in a robbery of which she had been a victim.
As to whether or not Lorenzo Pecson rendered services to Dolores Coronel, the opponents admit
that he rendered them at least from the year 1914, although there is proof showing that he rendered
such services long before that time.
The appellants emphasize the fact that family ties in this country are very strongly knit and that the
exclusion of relative one's estate an exceptional case. It is true that ties of relationship in the
Philippines are very strong, but we understand that cases of preterition of relatives from the
inheritance are not rare. The liberty to dispose of one's estate by will when there are no forced heirs
is rendered sacred by the civil Code in force in the Philippines since 1889. It is so provided in the
first paragraph of article in the following terms:
Any person who was no forced heirs may dispose by will of all his property or any part of it in
favor of any person qualified to acquire it.
Even ignoring the precedents of this legal precept, the Code embodying it has been in force in the
Philippines for more than a quarter of a century, and for this reason it is not tenable to say that the
excercise of the liberty thereby granted is necessarily exceptional, where it is not shown that the
inhabitants of this country whose customs must have been take into consideration by the legislator in
adopting this legal precept, are averse to such a liberty.
As to preference given to Lorenzo Pecson, it is not purely arbitrary, nor a caprice or a whim of the
moment. The proof adduced by this appelle, although contradicted, shows by a preponderance of
evidence that besides the services which the opponents admit had been rendered by him to Dolores
Coronel since the year 1914, he had also rendered services prior to that time and was the
administrator and manager of the affairs of said Dolores in the last years of her life. And that this was
not a whim of the moment is shown by the fact that six years before the execution of the will in
question, said Lorenzo Pecson was named and appointed by Dolores Coronel as her sole heir in the
document Exhibit B, which, translated, is as follows:
1. That my present property was acquired by me by inheritance from my parents, but a great
part thereof was acquired by me by my own efforts and exertions;
2. That I have made no inventory of my properties, but they can be seen in the title deeds in
my possession and in the declarations of ownership;
3. That I institute Lorenzo Pecson, married to Angela Coronel, and a known resident of the
town, my heir to succeed to all my properties;
4. That I appoint my said heir, Lorenzo Pecson, as executor, and, in his default, Victor
Pecson, a resident of the same town;
5. That as to my burial and other things connected with the eternal rest of my soul, I leave
them to the sound direction of the aforesaid Lorenzo Pecson;
6. That as I cannot write I requested Martin Pangilinan, a native and resident of this town, to
write this will in accordance with my wishes and precise instructions.
In testimony whereof I had the said Martin Pangilinan write my name and surname, and
affixed my mark between my name and surname, and don Francisco Dumaual, Don Mariano
Sunglao, Don Sotero Dumaual, Don Marcos de la Cruz and Don Martin Pangilinan signed as
witnesses, they having been present at the beginning of, during, and after, the execution of
this my last will.
(Sgd.) "DOLORES CORONEL
Witnesses:
(Sgd.) "MARIANO SUNGLAO
MARCOS DE LA CRUZ
FRANCISCO DUMAUAL
SOTERO DUMAUAL
MARTIN PANGILINAN"
The appellants find in the testament Exhibit B something to support their contention that the intention
of Dolores Coronel was to institute the said Pecson not as sole beneficiary, but simply as executor
and distributor of all her estate among her heirs, for while Lorenzo Pecson's contention that he was
appointed sold beneficiary is based on the fact that he enjoyed the confidence of Dolores Coronel in
1918 and administered all her property, he did not exclusively have this confidence and
administration in the year 1912. Although such administration and confidence were enjoyed by
Pecson always jointly with others and never exclusively, this fact does not show that the will of the
testatrix was to appoint Pecson only as executor and distributor of her estate among the heirs, nor
does it prevent her, the testatrix, from instituting him in 1912 or 1918 as sole beneficiary; nor does it
constitute, lastly, a test for determining whether or not such institution in favor of Pecson was the
true will of the testatrix.
We find, therefore, nothing strange in the preterition made by Dolores Coronel of her blood relatives,
nor in the designation of Lorenzo Pecson as her sole beneficiary. Furthermore, although the
institution of the beneficiary here would not seem the most usual and customary, still this would not
be null per se.
In the absence of any statutory restriction every person possesses absolute dominion over
his property, and may bestow it upon whomsoever he pleases without regard to natural or
legal claim upon his bounty. If the testator possesses the requisite capacity to make a will,
and the disposition of his property is not affected by fraud of undue influence, the will is not
rendered invalid by the fact that it is unnatural, unreasonable, or unjust. Nothing can prevent
the testator from making a will as eccentric, as injudicious, or as unjust as caprice, frivolity, or
revenge can dictate. However, as has already been shown, the unreasonable or unjustice of
a will may be considered on the question of testamentary capacity. (40 Cyc., 1079.)
The testamentary capacity of Dolores Coronel is not disputed in this case.
Passing to the second question, to wit, whether or not the true last will of Dolores Coronel was
expressed in the testament Exhibit A, we will begin with expounding how the idea of making the
aforesaid will here controverted was borne and carried out.
About the year 1916 or 1917, Dolores showed the document Exhibit B to Attorney Francisco who
was then her legal adviser and who, considering that in order to make the expression of her last will
more legally valid, though it necessary that the statement be prepared in conformity with the laws in
force at time of the death of the testatrix, and observing that the will Exhibit B lacked the extrinsic
formalities required by Act No. 2645 enacted after its execution, advised Dolores Coronel that the
will be remade. She followed the advice, and Attorney Francisco, after receiving her instructions,
drew the will Exhibit A in accordance therewith, and brought it to the house of Dolores Coronel for its
execution.
Pablo Bartolome read Exhibit A to Dolores Coronel in her presence and that of the witnesses and
asked her whether the will was in accordance with her wishes. Dolores Coronel answer that it was,
and requested her attorney, Mr. Francisco, to sign the will for her, which the attorney accordingly did
in the presence of the witnesses, who in turn signed it before the testatrix and in the presence of
each other.
Upon the filing of the motion for a rehearing on the first order allowing the probate of the will, the
opponents presented an affidavit of Pablo Bartolome to the effect that, following instructions of
Lorenzo Pecson, he had informed the testatrix that the contents of the will were that she entrusted
Pecson with the distribution of all her property among the relatives of the said Dolores. But during
the new trial Pablo Bartolome, in spite of being present in the court room on the day of the trial, was
not introduced as a witness, without such an omission having been satisfactorily accounted for.
While it is true that the petitioner was bound to present Pablo Bartolome, being one of the witnesses
who signed the will, at the second hearing when the probate was controverted, yet we cannot
consider this point against the appellee for this was not raised in any of the assignments of error
made by the appellants. (Art. 20, Rules of the Supreme Court.)
On the other hand, it was incumbent upon the opponents to present Pablo Bartolome to prove
before the court the statement by him in his affidavit, since it was their duty to prove what they
alleged, which was that Dolores Coronel had not understood the true contents of the will Exhibit A.
Having suppressed, without explanation, the testimony of Pablo Bartolome, the presumption is
against the opponents and that is, that such a testimony would have been adverse had it been
produced at the hearing of the case before the court. (Sec 334, subsec. 5, Code of Civil Procedure.)
The opponents call our attention to the fourth clause of the document which says: "I name and
appoint my aforesaid nephew, Lorenzo Pecson, executor of all that is willed and ordained in this my
will, without bond. Should he not be able to discharge his duties as such executor for any reason
whatsoever, I name and appoint as a substitute executor my grandson Victor Pecson, resident of the
town of Betis, without requiring him to give bond," and contend that this clause is repugnant to the
institution of Lorenzo Pecson as sole beneficiary of all her estate, for if such was the intention of the
testatrix, there would have been no necessity of appointing an executor, nor any reason for
designating a substitute in case that the first one should not be able to discharge his duties, and they
perceived in this clause the idea which, according to them, was not expressed in the document, and
which was that Pecson was simply to be a mere executor entrusted with the distribution to the estate
among the relatives of the testatrix, and that should he not be able to do so, this duty would
devolved upon his substitutes.
But it is not the sole duty of an executor to distribute the estate, which in estate succession, such as
the instant case, has to be distributed with the intervention of the court. All executor has, besides,
other duties and general and special powers intended for the preservation, defense, and liquidation
of the estate so long as the same has not reached, by order of the court, the hands of those entitled
thereto.
The fact that Dolores Coronel foresaw the necessity of an executor does not imply a negation of her
desire to will all her estate to Lorenzo Pecson. It is to be noted, furthermore, that in the will, it was
ordered that her body be given a burial in accordance with her social standing and she had a perfect
right to designate a person who should see to it that this order was complied with. One of the
functions of an executor is the fulfillment of what is ordained in the will.
It is argued that the will of the testatrix was to will her estate to her blood relatives, for such was the
promise made to Maria Coronel, whom Rosario Coronel tends to corroborate. We do not find such a
promise to have been sufficiently proven, and much less to have been seriously made and coupled
with a positive intention on the part of Dolores Coronel to fulfill the same. In the absence of sufficient
proof of fraud, or undue influence, we cannot take such a promise into account, for even if such a
promise was in fact made, Dolores Coronel could retract or forget it afterwards and dispose of her
estate as she pleased. Wills themselves, which contain more than mere promises, are essentially
revocable.
It is said that the true will of Dolores Coronel not expressed in the will can be inferred from the
phrase used by Jose M. Reyes in his deposition when speaking of the purpose for which Lorenzo
Pecson was to receive the estate, to wit:
in order that the latter might dispose of the estate in the most appropriate manner
Weight is given to this phrase from the circumstance that its author was requested by Attorney
Francisco to explain the contents of Exhibit B and had acted as interpreter between Dolores Coronel
and Attorney Francisco at their interviews previous to the preparation of Exhibit A, and had
translated into the Pampango dialect this last document, and, lastly, was present at the execution of
the will in question.
The disputed phrase "in order that the latter might dispose of the estate in the most appropriate
manner" was used by the witness Reyes while sick in a hospital and testifying in the course of the
taking of his deposition.
The appellants interpret the expression "dispose in the most appropriate manner" as meaning to say
"distribute it among the heirs." Limiting ourselves to its meaning, the expression is a broad one, for
the disposition may be effected in several and various ways, which may not necessarily be a
"distribution among the heirs," and still be a "disposition in the most appropriate manner." "To
dispose" is not the same as "to distribute."
To judge correctly the import of this phrase, the circumstances under which it was used must be
taken into account in this particular instance. The witness Reyes, the author of the phrase, was not
expressing his own original ideas when he used it, but was translating into Spanish what Dolores
Coronel had told him. According to the facts, the said witness is not a Spaniard, that is to say, the
Spanish language is not his native tongue, but, perhaps, the Pampango dialect. It is an admitted fact
based on reason and experience that when a person translates from one language to another, it is
easier for him to express with precision and accuracy when the version is from a foreign language to
a native one than vice-versa. The witness Reyes translated from the Pampango dialect, which must
be more familiar to him, to the Spanish language which is not his own tongue. And judging from the
language used by him during his testimony in this case, it cannot be said that this witness masters
the Spanish language. Thus is explained the fact that when asked to give the reason for the
appointment of an executor in the will, he should say at the morning session that "Dolores Coronel
did appoint Don Lorenzo Pecson and in his default, Victor Pecson, to act during her lifetime, but not
after he death," which was explained at the afternoon session by saying "that Dolores Coronel did
appoint Don Lorenzo Pecson executor of all her estate during his lifetime and that in his default,
either through death or incapacity, Mr. Victor Pecson was appointed executor." Taking into account
all the circumstances of this witness, there is ground to attribute his inaccuracy as to the discharge
of the duties of an executor, not to ignorance of the elementary rule of law on the matter, for the
practice of which he was qualified, but to a non-mastery of the Spanish language. We find in this
detail of translation made by the witness Reyes no sufficient reason to believe that the will
expressed by Dolores Coronel at the said interview with Attorney Francisco was to appoint Lorenzo
Pecson executor and mere distributor of her estate among her heirs.
As to whether or not the burden of proof was on the petitioner to establish that he was the sole
legatee to the exclusion of the relatives of Dolores Coronel, we understand that it was not his duty to
show the reasons which the testatrix may have had for excluding her relatives from her estate, giving
preference to him. His duty was to prove that the will was voluntary and authentic and he, who
alleges that the estate was willed to another, has the burden of proving his allegation.
Attorney Francisco is charged with having employed improper means of making Lorenzo Pecson
appear in the will as sole beneficiary. However, after an examination of all the proceedings had, we
cannot find anything in the behavior of this lawyer, relative to the preparation and execution of the
will, that would justify an unfavorable conclusion as to his personal and professional conduct, nor
that he should harbor any wrongful or fraudulent purpose.
We find nothing censurable in his conduct in advising Dolores Coronel to make a new will other than
the last one, Exhibit B (in the drawing of which he does not appear to her intervened), so that the
instrument might be executed with all the new formalities required by the laws then in force; nor in
the preparation of the new will substantially in accordance with the old one; nor in the selection of
attesting witnesses who were persons other than the relatives of Dolores Coronel. Knowing, as he
did, that Dolores was excluding her blood relatives from the inheritance, in spite of her having been
asked by him whether their exclusion was due to a mere inadvertence, there is a satisfactory
explanation, compatible with honorable conduct, why said attorney should prescind from such
relatives in the attesting of the will, to the end that no obstacle be placed in the way to the probating
thereof.
The fact that this attorney should presume that Dolores was to ask him to sign the will for her and
that he should prepare it containing this detail is not in itself fraudulent. There was in this case
reason so to presume, and it appears that he asked her, through Pablo Bartolome, whom she
wanted to sign the document in her stead.
No imputation can be made to this attorney of any interest in favoring Lorenzo Pecson in the will,
because the latter was already his client at the execution of said will. Attorney Francisco denied this
fact, which we cannot consider proven after examining the evidence.
The conduct observed by this attorney after the death of Dolores Coronel in connection with the
attempted arrangement between Lorenzo Pecson and the opponents, does not, in our opinion,
constitute any data leading to the conclusion that an heir different from the true one intended by the
testatrix should have been fraudulently made to appear instituted in the will exhibit A. His attitude
towards the opponents, as can be gathered from the proceedings and especially from his letter
Exhibit D, does not show any perverse or fraudulent intent, but rather a conciliatory purpose. It is
said that such a step was well calculated to prevent every possible opposition to the probate of the
will. Even admitting that one of his objects in entering into such negotiations was to avoid every
possible to the probate of the will, such object is not incompatible with good faith, nor does it
necessarily justify the inference that the heir instituted in the instrument was not the one whom the
testatrix wanted appointed.
The appellants find rather suspicious the interest shown by the said attorney in trying to persuade
Lorenzo Pecson to give them some share of the estate. These negotiations were not carried out by
the attorney out of his own initiative, but at the instance of the same opponent, Agustin Coronel,
made by the latter in his own behalf and that of his coopponents.
As to Lorenzo Pecson, we do not find in the record sufficient proof to believe that he should have
tried, through fraud or any undue influence, to frustrate the alleged intention of the testatrix to leave
her estate to her blood relatives. The opponents insinuate that Lorenzo Pecson employed Attorney
Francisco to carry out his reproachable designs, but such depraved instrumentality was not proven,
nor was it shown that said lawyer, or Lorenzo Pecson, should have contrived or put into execution
any condemnable plan, nor that both should have conspired for illegal purposes at the time of the
preparation and execution of the will Exhibit A.
Although Norberto Paras testified having heard, when the will was being read to Dolores Coronel,
the provision whereby the estate was ordered distributed among the heirs, the preponderance of the
evidence is to the effect that said Norberto Paras was not present at such reading of the will.
Appellant do not insist on the probative force of the testimony of this witness, and do not oppose its
being stricken out.
The data furnished by the case do not show, to our mind, that Dolores Coronel should have had the
intention of giving her estate to her blood relatives instead of to Lorenzo Pecson at the time of the
execution of the will Exhibit A, nor that fraud or whatever other illegal cause or undue influence
should have intervened in the execution of said testament. Neither fraud nor evil is presumed and
the record does not show either.
Turning to the second assignment of error, which is made to consist in the will having been probated
in spite of the fact that the attestation clause was not in conformity with the provision of section 618
of the Code of Civil Procedure, as amended by Act No. 2645, let us examine the tenor of such
clause which literally is as follows:
The foregoing document was executed and declared by Dolores Coronel to be her last will
testament in our presence, and as testatrix does not know how to write her name, she
requested Vicente J. Francisco to sign her name under her express direction in our presence
at the foot and on the left margin of each and every sheet hereof. In testimony whereof, each
of us signed these presents in the presence of others of the testatrix at the foot hereof and
on the margin of each and everyone of the two pages of which this document is composed.
These sheets are numbered correlatively with the words "one and "two on the upper part of
the face thereof.
(Sgd.) "Maximo Vergara, Sotero Dumaual, Marcos de los Santos, Mariano L.
Crisostomo, Pablo Bartolome, Marcos de la Cruz, Damian Crisostomo."
Appellants remark that it is not stated in this clause that the will was signed by the witnesses in the
presence of the testatrix and of each other, as required by section 618 of the Code of Civil
Procedure, as amended, which on this particular point provides the following:
The attestation shall state the number of sheets or pages used, upon which the will is written,
and the fact that the testator signed the will and every page thereof, or caused some other
person to write his name, under his express direction, in the presence of three witnesses,
and the latter witnessed and signed the will and all pages thereof in the presence of the
testator and of each other.
Stress is laid on the phrase used in the attestation clause above copied, to wit:
each of us signed in the presence of others.
Two interpretations can absolutely be given here to the expression "of others." One, that insinuated
by the appellants, namely, that it is equivalent to "of other persons," and the other, that contended by
the appellee, to wit, that the phrase should be held to mean "of the others," the article "the" having
inadvertently been omitted.
Should the first interpretation prevail and "other persons" be taken to mean persons different from
the attesting witnesses, then one of the solemnities required by law would be lacking. Should the
second be adopted and "of others" construed as meaning the other witnesses to the will, then the
law would have been complied with in this respect.
Including the concomitant words, the controverted phrase results thus: "each of us signed these
presents in the presence of others and of the testatrix."
If we should omit the words "of others and," the expression would be reduced to "each of us signed
these presents in the presence of the testatrix," and the statement that the witnesses signed each in
the presence of the others would be lacking. But as a matter of fact, these words "of others and" are
present. Then, what for are they there? Is it to say that the witnesses signed in the presence of other
persons foreign to the execution of the will, which is completely useless and to no purpose in the
case, or was it for some useful, rational, necessary object, such as that of making it appear that the
witnesses signed the will each in the presence of the others? The first theory presupposes that the
one who drew the will, who is Attorney Francisco, was an unreasonable man, which is an
inadmissible hypothesis, being repugnant to the facts shown by the record. The second theory is the
most obvious, logical and reasonable under the circumstances. It is true that the expression proved
to be deficient. The deficiency may have been caused by the drawer of the will or by the typist. If by
the typist, then it must be presumed to have been merely accidental. If by the drawer, it is
explainable taking into account that Spanish is not only not the native language of the Filipinos, who,
in general, still speak until nowadays their own dialects, but also that such language is not even the
only official language since several years ago.
In Re will of Abangan (40 Phil., 476), this court said:
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 guarantee 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 requisite entirely unnecesary, useless and
frustrative of the testator's last will, must be disregarded.
We believe it to be more reasonable to construe the disputed phrase "of others" as meaning "of the
other witnesses," and that a grammatical or clerical error was committed consisting in the omission
of the article "the".
Grammatical or clerical errors are not usually considered of vital importance when the intention is
manifest in the will.
The court may correct clerical mistakes in writing, and disregard technical rules of grammar
as to the construction of the language of the will when it becomes necessary for it to do so in
order to effectuate the testators manifest intention as ascertained from the context of the will.
But unless a different construction is so required the ordinary rules of grammar should be
adhered to in construing the will. (40 Cyc., 1404).
And we understand that in the present case the interpretation we adopt is imperative, being the most
adequate and reasonable.
The case of In the matter of the estate of Geronima Uy Coque (43 Phil., 405), decided by this court
and invoked by the appellants, refers so far as pertinent to the point herein at issue, to an attestation
clause wherein the statement that the witnesses signed the will in the presence of each other is
totally absent. In the case at bar, there is the expression "in the presence of others" whose
reasonable interpretation is, as we have said, "in the presence of the other witnesses." We do not
find any party between the present case and that of Re Estate of Geronima Uy Coque above cited.
Finally, we will take up the question submitted by the opponents as to the alleged insufficiency of the
evidence to show that the attesting witnesses Damian Crisostomo and Sotero Dumaual were
present at the execution of the will in controversy. Although this point is raised in the first assignment
of error made by the appellants, and not in the second, it is discussed in this place because it refers
to the very fact of attestation. However, we do not believe it necessary to analyze in detail the
evidence of both parties on this particular point. The evidence leads us to the conclusion that the two
witnesses aforementioned were present at the execution and signing of the will. Such is also the
conclusion of the trial judge who, in this respect, states the following, in his decision:
As to the question of whether or not the testatrix and witnesses signed the document Exhibit A in
accordance with the provisions of law on the matter, that is, whether or not the testatrix signed the
will, or caused it to be signed, in the presence of the witnesses, and the latter in turn signed in her
presence and that of each other, the court, after observing the demeanor of the witnesses for both
parties, is of the opinion that those for the petitioner spoke the truth. It is neither probable nor likely
that a man versed in the law, such as Attorney Francisco, who was present at the execution of the
will in question, and to whose conscientiousness in the matter of compliance with all the extrinsic
formalities of the execution of a will, and to nothing else, was due the fact that the testatrix had
cancelled her former will (Exhibit B) and had new one (Exhibit A) prepared and executed, should
have consented the omission of formality compliance with which would have required little or no
effort; namely, that of seeing to it that the testatrix and the attesting witnesses were all present when
their respective signatures were affixed to the will." And the record does not furnish us sufficient
ground for deviating from the line reasoning and findings of the trial judge.
In conclusion we hold that the assignments of error made by the appellants are not supported by the
evidence of record.
The judgment appealed from if affirmed with costs against the appellants. So ordered.
Araullo, C.J., Johnson, Street, Malcolm, Avancea, Villamor and Johns, JJ., concur.

G.R. No. 76648 February 26, 1988
THE HEIRS OF THE LATE MATILDE MONTINOLA-SANSON, petitioners,
vs.
COURT OF APPEALS and EDUARDO F. HERNANDEZ, respondents.

GANCAYCO, J .:
This is a petition for review on certiorari of the decision of the Court of Appeals
1
promulgated August
29,1986 affirming in toto the decision of the Regional Trial Court of Manila, Branch XXII
2
dated March 21,
1985, the dispositive part of which reads:
WHEREFORE, the Court renders judgment declaring the holographic will marked in
evidence as Exhibit "H" as one wholly written, dated, and signed freely by the late
Herminia Montinola in accordance with law while in possession of full testamentary
capacity, and allowing and admitting the same to probate.
Upon the finality of the decision, let letters testamentary issue to the executor,
Eduardo F. Hernandez, as well as the certificate of probate prescribed under Section
13 of Rule 76 of the Rules of Court.
SO ORDERED.
3

This case arose from a petition filed by private respondent Atty. Eduardo F. Hernandez on April 22,
1981 with the Court of First Instance of Manila (now Regional Trial Court) seeking the probate of the
holographic will of the late Herminia Montinola executed on January 28, 1980.
4
The testatrix, who
died single, parentless and childless on March 29,1981 at the age of 70 years, devised in this will several
of her real properties to specified persons.
On April 29,1981, private respondent who was named executor in the will filed an urgent motion for
appointment of special administrator.
5
With the conformity of all the relatives and heirs of the testatrix
except oppositor, the court in its order of May 5, 1981
6
appointed private respondent as Special
Administrator of the testate estate of deceased.
On June 29,1981, Matilde Montinola Sanson (petitioner), the only surviving sister of the deceased
but who was not named in the said win, filed her Opposition to Probate of Will,
7
alleging inter alia:
that the subject will was not entirely written, dated and signed by the testatrix herself and the same was
falsely dated or antedated; that the testatrix was not in full possession of her mental faculties to make
testamentary dispositions; that undue influence was exerted upon the person and mind of the testatrix by
the beneficiaries named in the win; and that the will failed to institute a residual heir to the remainder of
the estate.
After a hearing on the merits, the probate court, finding the evidence presented in support of the
petition to be conclusive and overwhelming, rendered its decision allowing the probate of the
disputed will.
Petitioner thus appealed the decision of the probate court to the Court of Appeals which affirmed
in toto the decision.
8

On September 24,1986, petitioner filed with the respondent court a motion for new trial.
9
Attached to
her motion was the Affidavit of Merit of Gregorio Montinola Sanson, petitioner's son, alleging that
witnesses have been located whose testimonies could shed light as to the ill health of the testatrix as well
as undue influence exerted on the latter.
The appellate court in its resolution of October 13, 1986,
10
denied the motion for new trial of petitioner
on the following grounds: (1) the Affidavit of merit attached to the motion alleged that efforts were exerted
to locate unnamed witnesses only after the court's decision was handed down, and (2) the unnamed
witnesses would allegedly shed light on the fact of grave illness of the testatrix as well as the undue
influence exerted on her which are merely corroborative or cumulative since these facts were brought to
light during the trial.
The motion for reconsideration of petitioner dated October 27, 1986
11
was likewise denied by the
appellate court in its resolution of November 20, 1986
12
on the ground that the affidavit of one Patricia
Delgado submitted with the motion constitutes cumulative evidence and the motion being in reality a
second motion for reconsideration which is prescribed by law.
In the petition now before Us, petitioner assigned the following errors:
I
THE RESPONDENT COURT OF APPEALS ERRED IN DENYING PETITIONERS'
MOTION FOR NEW TRIAL ON THE GROUND THAT THE EVIDENCE SOUGHT TO
BE PRESENTED IS MERELY CUMULATIVE.
II
THE SAID COURT ERRED IN DENYING PETITIONERS' MOTION FOR
RECONSIDERATION OF THE RESOLUTION DENYING THE AFORESAID
MOTION FOR NEW TRIAL.
III
AT ANY RATE, THE SAID COURT ERRED IN HOLDING THAT THE
HOLOGRAPHIC WILL IN QUESTION WAS WHOLLY WRITTEN, DATED AND
SIGNED BY THE LATE HERMINIA MONTINOLA.
IV
THE SAID COURT ERRED IN NOT FINDING THAT THE ALLEGED WILL WAS
FRAUDULENTLY ANTEDATED TO CONCEAL ITS ACTUAL DATE OF
EXECUTION AND TO SHIELD IT FROM PROBABLE DISPUTES AS TO THE
TESTAMENTARY CAPACITY ON THE PART OF THE ALLEGED TESTATRIX AT
THE TIME OF ITS ACTUAL EXECUTION.
V
THE SAID COURT ERRED IN HOLDING THAT THE LATE HERMINIA MONTINOLA
WAS NOT SUBJECTED TO UNDUE PRESSURE AND
IMPROPERIMPORTUNINGS ON THE PART OF THOSE STANDING TO BENEFIT
FROM THE ALLEGED WILL.
VI
THE SAID COURT ERRED IN ALLOWING THE HOLOGRAPHIC WILL IN
QUESTION TO PROBATE.
In the meantime, petitioner who passed away on November 3, 1986, was substituted by her heirs.
In the first and second assigned errors, petitioners maintain that the appellate court erred in denying
the motion for new trial insisting that the new evidence sought to be presented is not merely
corroborative or cumulative.
On the other hand, the contention of private respondent is that the motion for new trial was a pro-
forma motion because it was not in accordance with Sec. 1, Rule 53 of the Rules of Court. We find
merit in this contention.
Section 1, Rule 53 provides
Before a final order or judgment rendered by the Court of appeals becomes
executory, a motion for new trial may be filed on the ground of newly discovered
evidence which could not have been discovered prior to the trial in the court below by
the exercise of the diligence and which is of such a character as would probably
change the result. The motion shall be accompanied by affidavits showing the facts
constituting the grounds therefor and the newly discovered evidence.
The affidavit of merit executed by Gregorio Montinola Sanson alleged the following:
xxx xxx xxx
3. That in her plea for new trial in the said case, I have exerted efforts to locate
witnesses whose whereabouts were not known to us during the trial in the lower
court, but I have finally succeeded in tracking them down;
4. That despite their initial reluctance to testify in this case,I am convinced that they
would testify under proper subpoena for purposes of shedding light on the fact that
the testatrix was gravely ill at or but the time that the questioned will was allegedly
executed;
5. That they had the clear opportunity to know the circumstances under which the
purported will was executed; and that they know for a fact that there was 'undue
influence' exerted by petitioner and other relatives to procure improper favors from
the testatrix;
xxx xxx xxx
13

Said motion for new trial is not in substantial compliance with the requirements of Rule 53. The lone
affidavit of a witness who was already presented said the hearing is hardly sufficient to justify the
holding of new trial. The alleged new witnesses were unnamed without any certainty as, to their
appearance before the court to testify. Affiant attests only on his belief that they would testify if and
when they are subpoenaed by the court. Furthermore, the allegations in the affidavit as to the undue
influence exerted on the testatrix are mere conclusions and not statement of facts. The requisite
affidavits must state facts and not mere conclusions or opinions, otherwise they are not valid.
14
The
affidavits are required to avoid waste of the court's time if the newly discovered evidence turns out to be
immaterial or of any evidentiary weight.
Moreover, it could not be said that the evidence sought to be presented is new having been
discovered only after the trial. It is apparent from the allegations of affiant that efforts to locate the
witnesses were exerted only after the decision of the appellate court was handed down. The trial
lasted for about four years so that petitioner had ample time to find said alleged witnesses who were
admittedly known to her. The evidence which the petitioner now propose to present could have been
discovered and presented during the hearing of the case, and there is no sufficient reason for
concluding that had the petitioner exercised proper diligence she would not have been able to
discover said evidence.
15

In addition, We agree with the appellate court that since the alleged illness of the testatrix as well as
the charges of undue influence exerted upon her had been brought to light during the trial, and new
evidence on this point is merely corroborative and cumulative which is generally not a ground for
new trial.
16
Accordingly, such evidence even if presented win not carry much probative weight which can
alter the judgment.
17

It is very patent that the motion for new trial was filed by petitioner only for the purpose of delaying
the proceedings. In fact, petitioners son in his manifestation admitted that he had to request a new
law firm to do everything legally possible to meet the deadline for the filing of a motion for
reconsideration and/or for new trial.
18
This would explain the haphazard preparation of the motion, thus
failing to comply with the requirements of rule 53, which was filed on the last day of the reglementary
period of appeal so that the veracity of the ground relied upon is questionable. The appellate court
correctly denied the motion for new trial.
The motion for new trial being pro-forma, it does not interrupt the running of the period for
appeal.
19
Since petitioner's motion was filed on September 24,1986, the fifteenth or last day of the period
to appeal, the decision of the respondent court became final on the following day, September 25. And
when the motion for reconsideration of petitioner was filed on October 30,1986, it was obviously filed out
of time.
Since the questioned decision has already become final and executory, it is no longer within the
province of this Court to review it. This being so, the findings of the probate court as to the due
execution of the will and the testamentary capacity of testatrix are now conclusive.
20

At any rate, even assuming that We can still review this case on its merits, the petition will also have
to fail.
During the hearing before the probate court, not only were three (3) close relatives of the testatrix
presented but also two (2) expert witnesses who declared that the contested will and signature are in
the handwriting of the testatrix. These testimonies more than satisfy the requirements of Art. 811 of
the Civil Code
21
in conjunction with Section 11 of Rule 76, Revised Rules of Court,
22
or the probate of
holographic wills.
As regards the alleged antedating of the will, petitioner failed to present competent proof that the will
was actually executed sometime in June 1980 when the testatrix was already seriously ill and dying
of terminal lung cancer. She relied only on the supposed inconsistencies in the testimony of
Asuncion Gemperle, niece and constant companion of testatrix, which upon careful examination did
not prove such claim of antedating.
The factual findings of the probate court and the Court of Appeals that the will in question was
executed according to the formalities required by law are conclusive on the Supreme Court when
supported by evidence.
23
We have examined the records of this case and find no error in the conclusion
arrived at by the respondent court that the contested will was duly executed in accordance with law.
Petitioner alleges that her exclusion from the alleged holographic will was without rhyme or reason,
being the only surviving sister of the testatrix with whom she shares an intimate relationship, thus
demonstrating the lack of testamentary capacity of testatrix.
In the case of Pecson v. Coronel,
24
it was held
The appellants emphasize the fact that family ties in this country are very strongly
knit and that the exclusion of a relative from one's estate is an exceptional case. It is
true that the ties of relationship in the Philippines are very strong, but we understand
that cases of preterition of relatives from the inheritance are not rare. The liberty to
dispose of one's estate by will when there are no forced heirs is rendered sacred by
the Civil Code in force in the Philippines since 1889...
Article 842 of the Civil Code provides that 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.
It is within the right of the testatrix not to include her only sister who is not a compulsory heir in her
will. Nevertheless, per testimony of Asuncion Gemperle, the latter had reserved two boxes of jewelry
worth P850,000.00 for petitioner. Furthermore, petitioner's son Francis was instituted as an heir in
the contested will.
Petitioner still insists that the fact that in her holographic will the testatrix failed to dispose of all of her
estate is an indication of the unsoundness of her mind.
We cannot subscribe to this contention. Art. 841 of the Civil Code provides
A will shall be valid even though it should not contain an institution of an heir, or such
institution should not comprise the entire estate, and even though the person so
instituted should not accept the inheritance or should be incapacitated to succeed.
In such cases, the testamentary dispositions made in accordance with law shall be
complied with and the remainder of the estate shall pass to the legal heirs.
Thus, the fact that in her holographic will, testatrix disposed of only eleven (11) of her real properties
does not invalidate the will, or is it an indication that the testatrix was of unsound mind. The portion
of the estate undisposed of shall pass on to the heirs of the deceased in intestate succession.
Neither is undue influence present just because blood relatives, other than compulsory heirs have
been omitted, for while blood ties are strong in the Philippines, it is the testator's right to disregard
non-compulsory heirs.
25
The fact that some heirs are more favored than others is proof of neither fraud
or undue influence.
26
Diversity of apportionment is the usual reason for making a testament, otherwise,
the decedent might as well die intestate.
27

The contention of the petitioner that the will was obtained by undue influence or improper pressure
exerted by the beneficiaries of the will cannot be sustained on mere conjecture or suspicion; as it is
not enough that there was opportunity to exercise undue influence or a possibility that it may have
been exercised.
28
The exercise of improper pressure and undue influence must be supported by
substantial evidence that it was actually exercised.
29

Finally, We quote with approval the observation of the respondent court
There is likewise no question as to the due execution of the subject Will. To Our
minds, the most authentic proof that decreased had testamentary capacity at the
time of the execution of the Will, is the Will itself which according to a report of one of
the two expert witnesses (Exhibits X to X-3) reveals the existence of significant
handwriting characteristics such as:
1. Spontaneity, freedom, and speed of writing
xxx xxx xxx
3. good line quality.
4. presence of natural variation... (Exhibit X).
The characteristics of spontaneity, freedom and good line quality could not be
achieved by the testatrix if it was true that she was indeed of unsound mind and/or
under undue influence or improper pressure when she the Will.
IN VIEW OF THE FOREGOING CONSIDERATIONS, the petition is DENIED for lack of merit with
costs against petitioner. The decision of respondent court dated August 29, 1986 in toto the decision
of the Regional Trial Court of Manila dated March 21, 1985 is hereby declared to be immediately
executory.
SO ORDERED.
Teehankee, C.J., Narvasa, Cruz and Grino-Aquino, JJ., concur.

G.R. No. L-39247 June 27, 1975
64 SCRA 452
In the Matter of the Petition to Approve the Will of Leodegaria Julian. FELIX BALANAY,
JR., petitioner,
vs.
HON. ANTONIO M. MARTINEZ, Judge of the Court of First Instance of Davao, Branch VI;
AVELINA B. ANTONIO and DELIA B. LANABAN, respondents.
Roberto M. Sarenas for petitioner.
Jose B. Guyo for private respondents.

AQUINO, J .:
Felix Balanay, Jr. appealed by certiorari from the order of the Court of First Instance of Davao dated
February 28, 1974, declaring illegal and void the will of his mother, Leodegaria Julian, converting the
testate proceeding into an intestate proceeding and ordering the issuance of the corresponding
notice to creditors (Special Case No. 1808). The antecedents of the appeal are as follows:
Leodegaria Julian, a native of Sta. Maria, Ilocos Sur, died on February 12, 1973 in Davao City at the
age of sixty-seven. She was survived by her husband, Felix Balanay, Sr., and by their six legitimate
children named Felix Balanay, Jr., Avelina B. Antonio, Beatriz B. Solamo, Carolina B. Manguiob,
Delia B. Lanaban and Emilia B. Pabaonon.
Felix J. Balanay, Jr. filed in the lower court a petition dated February 27, 1973 for the probate of his
mother's notarial will dated September 5, 1970 which is written in English. In that will Leodegaria
Julian declared (a) that she was the owner of the "southern half of nine conjugal lots (par. II); (b) that
she was the absolute owner of two parcels of land which she inherited from her father (par. III), and
(c) that it was her desire that her properties should not be divided among her heirs during her
husband's lifetime and that their legitimes should be satisfied out of the fruits of her properties (Par.
IV).
Then, in paragraph V of the will she stated that after her husband's death (he was eighty-two years
old in 1973) her paraphernal lands and all the conjugal lands (which she described as "my
properties") should be divided and distributed in the manner set forth in that part of her will. She
devised and partitioned the conjugal lands as if they were all owned by her. She disposed of in the
will her husband's one half share of the conjugal assets. *
Felix Balanay, Sr. and Avelina B. Antonio opposed the probate of the will on the grounds of lack of
testamentary capacity, undue influence, preterition of the husband and alleged improper partition of
the conjugal estate. The oppositors claimed that Felix Balanay, Jr. should collate certain properties
which he had received from the testatrix.
Felix Balanay, Jr., in his reply to the opposition, attached thereto an affidavit of Felix Balanay, Sr.
dated April 18, 1973 wherein he withdrew his opposition to the probate of the will and affirmed that
he was interested in its probate. On the same date Felix Balanay, Sr. signed an instrument
captioned "Conformation (sic) of Division and Renunciation of Hereditary Rights" wherein he
manifested that out of respect for his wife's will he "waived and renounced' his hereditary rights in
her estate in favor of their six children. In that same instrument he confirmed the agreement, which
he and his wife had perfected before her death, that their conjugal properties would be partitioned in
the manner indicated in her will.
Avelina B. Antonio, an oppositor, in her rejoinder contended that the affidavit and "conformation" of
Felix Balanay, Sr. were void. The lower court in its order of June 18, 1973 "denied" the opposition
and reset for hearing the probate of the will. It gave effect to the affidavit and conformity of Felix
Balanay, Sr. In an order dated August 28, 1973 it appointed its branch clerk of court as special
administrator of the decedent's estate.
Mrs. Antonio moved for the reconsideration of the lower court's order of June 18, 1973 on the
grounds (a) that the testatrix illegally claimed that she was the owner of the southern half of the
conjugal lots and (b) that she could not partition the conjugal estate by allocating portions of the nine
lots to her children. Felix Balanay, Jr., through his counsel, Hermenegildo Cabreros, opposed that
motion. The lower court denied it in its order of October 15, 1973.
In the meanwhile, another lawyer appeared in the case. David O. Montaa, Sr., claiming to be the
lawyer of petitioner Felix Balanay, Jr. (his counsel of record was Atty. Cabreros), filed a motion dated
September 25, 1973 for "leave of court to withdraw probate of alleged will of Leodegaria Julian and
requesting authority to proceed by intestate estate proceeding." In that motion Montaa claimed to
be the lawyer not only of the petitioner but also of Felix Balanay, Sr., Beatriz B. Solamo, Carolina B.
Manguiob and Emilia B. Pabaonon.
Montaa in his motion assailed the provision of the will which partitioned the conjugal assets or
allegedly effected a compromise of future legitimes. He prayed that the probate of the will be
withdrawn and that the proceeding be converted into an intestate proceeding. In another motion of
the same date he asked that the corresponding notice to creditors be issued.
Avelina B. Antonio and Delia B. Lanaban, through Atty. Jose B. Guyo, in their comments dated
October 15, 1973 manifested their conformity with the motion for the issuance of a notice to
creditors. They prayed that the will be declared void for being contrary to law and that an intestacy
be declared.
The lower court, acting on the motions of Atty. Montaa, assumed that the issuance of a notice to
creditors was in order since the parties had agreed on that point. It adopted the view of Attys.
Montaa and Guyo that the will was void. So, in its order of February 28, 1974 it dismissed the
petition for the probate, converted the testate proceeding into an intestate proceeding, ordered the
issuance of a notice to creditors and set the intestate proceeding for hearing on April 1 and 2, 1974.
The lower court did not abrogate its prior orders of June 18 and October 15, 1973. The notice to
creditors was issued on April 1, 1974 and published on May 2, 9 and 16 in the Davao Star in spite of
petitioner's motion of April 17, 1974 that its publication be held in abeyance.
Felix Balanay, Jr., through a new counsel, Roberto M. Sarenas, in a verified motion dated April 15,
1974, asked for the reconsideration of the lower court's order of February 28, 1974 on the ground
that Atty. Montaa had no authority to withdraw the petition for the allowance of the will. Attached to
the motion was a copy of a letter dated March 27, 1974 addressed to Atty. Montaa and signed by
Felix Balanay, Jr., Beatriz V. Solamo, Carolina B. Manguiob and Emilia B. Pabaonon, wherein they
terminated Montaa's services and informed him that his withdrawal of the petition for the probate of
the will was without their consent and was contrary to their repeated reminder to him that their
mother's will was "very sacred" to them.
Avelina B. Antonio and Delia B. Lanaban opposed the motion for reconsideration. The lower court
denied the motion in its order of June 29, 1974. It clarified that it declared the will void on the basis of
its own independent assessment of its provisions and not because of Atty. Montaa's arguments.
The basic issue is whether the probate court erred in passing upon the intrinsic validity of the will,
before ruling on its allowance or formal validity, and in declaring it void.
We are of the opinion that in view of certain unusual provisions of the will, which are of dubious
legality, and because of the motion to withdraw the petition for probate (which the lower court
assumed to have been filed with the petitioner's authorization), the trial court acted correctly in
passing upon the will's intrinsic validity even before its formal validity had been established. The
probate of a will might become an idle ceremony if on its face it appears to be intrinsically void.
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 (Nuguid vs. Nuguid, 64 O.G. 1527, 17 SCRA
449. Compare with Sumilang vs. Ramagosa, L-23135, December 26, 1967, 21 SCRA 1369; Cacho
vs. Udan, L-19996, April 30, 1965, 13 SCRA 693).1wph 1. t
But the probate court erred in declaring, in its order of February 28, 1974 that the will was void and
in converting the testate proceeding into an intestate proceeding notwithstanding the fact that in its
order of June 18, 1973 , it gave effect to the surviving husband's conformity to the will and to his
renunciation of his hereditary rights which presumably included his one-half share of the conjugal
estate.
The rule is that "the invalidity of one of several dispositions contained in a will does not result in the
invalidity of the other dispositions, unless it is to be presumed that the testator would not have made
such other dispositions if the first invalid disposition had not been made" (Art. 792, Civil Code).
"Where some of the provisions of a will are valid and others invalid, the valid parts will be upheld if
they can be separated from the invalid without defeating the intention of the testator or interfering
with the general testamentary scheme, or doing injustice to the beneficiaries" (95 C.J.S. 873).
The statement of the testatrix that she owned the "southern half of the conjugal lands is contrary to
law because, although she was a coowner thereof, her share was inchoate and proindiviso (Art. 143,
Civil Code; Madrigal and Paterno vs. Rafferty and Concepcion, 38 Phil. 414). But That illegal
declaration does not nullify the entire will. It may be disregarded.
The provision of the will that the properties of the testatrix should not be divided among her heirs
during her husband's lifetime but should be kept intact and that the legitimes should be paid in cash
is contrary to article 1080 of the Civil Code which 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.
A parent who, in the interest of his or her family, to keep any agricultural, industrial,
or manufacturing enterprise intact, may avail himself of the right granted him in this
article, by ordering that the legitime of the other children to whom the property is not
assigned be paid in cash. (1056a)
The testatrix in her will made a partition of the entire conjugal estate among her six children (her
husband had renounced his hereditary rights and his one-half conjugal share). She did not assign
the whole estate to one or more children as envisaged in article 1080. Hence, she had no right to
require that the legitimes be paid in cash. On the other hand, her estate may remain undivided only
for a period of twenty years. So, the provision that the estate should not be divided during her
husband's lifetime would at most be effective only for twenty years from the date of her death unless
there are compelling reasons for terminating the coownership (Art. 1083, Civil Code).
Felix Balanay, Sr. could validly renounce his hereditary rights and his one-half share of the conjugal
partnership (Arts. 179[1] and 1041, Civil Code) but insofar as said renunciation partakes of a
donation of his hereditary rights and his one-half share in the conjugal estate (Art. 1060[1] Civil
Code), it should be subject to the limitations prescribed in articles 750 and 752 of the Civil Code. A
portion of the estate should be adjudicated to the widower for his support and maintenance. Or at
least his legitime should be respected.
Subject to the foregoing observations and the rules on collation, the will is intrinsically valid and the
partition therein may be given effect if it does not prejudice the creditors and impair the legitimes.
The distribution and partition would become effective upon the death of Felix Balanay, Sr. In the
meantime, the net income should be equitably divided among the children and the surviving spouse.
It should be stressed that by reason of the surviving husband's conformity to his wife's will and his
renunciation of his hereditary rights, his one-half conjugal share became a part of his deceased
wife's estate. His conformity had the effect of validating the partition made in paragraph V of the will
without prejudice, of course, to the rights of the creditors and the legitimes of the compulsory heirs.
Article 793 of the Civil Code provides that "property acquired after the making of a will shall only
pass thereby, as if the testator had it at the time of making the will, should it expressly appear by the
will that such was his intention". Under article 930 of the Civil Code "the legacy or devise of a thing
belonging to another person is void, if the testator erroneously believed that the thing pertained to
him. But if the thing bequeathed, though not belonging to the testator when he made the will,
afterwards becomes his, by whatever title, the disposition shall take effect."
In the instant case there is no doubt that the testatrix and her husband intended to partition the
conjugal estate in the manner set forth in paragraph V of her will. It is true that she could dispose of
by will only her half of the conjugal estate (Art. 170, Civil Code) but since the husband, after the
dissolution of the conjugal partnership, had assented to her testamentary partition of the conjugal
estate, such partition has become valid, assuming that the will may be probated.
The instant case is different from the Nuguid case, supra, where the testatrix instituted as heir her
sister and preterited her parents. Her will was intrinsically void because it preterited her compulsory
heirs in the direct line. Article 854 of the Civil Code 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." Since the preterition of the parents
annulled the institution of the sister of the testatrix and there were no legacies and devises, total
intestacy resulted (.Art. 960[2], Civil Code).1wph1.t
In the instant case, the preterited heir was the surviving spouse. His preterition did not produce
intestacy. Moreover, he signified his conformity to his wife's will and renounced his hereditary rights.
.
It results that the lower court erred in not proceeding with the probate of the will as contemplated in
its uncancelled order of June 18, 1973. Save in an extreme case where the will on its face is
intrinsically void, it is the probate court's duty to pass first upon the formal validity of the will.
Generally, the probate of the will is mandatory (Art. 838, Civil Code; Guevara vs. Guevara, 74 Phil.
479 and 98 Phil. 249; Fernandez vs. Dimagiba, L-23638, October 12, 1967, 21 SCRA 428).
As aptly stated by Mr. Justice Barredo, "the very existence of a purported testament is in itself prima
facie proof that the supposed testator has willed that his estate should be distributed in the manner
therein provided, and it is incumbent upon the state that, if legally tenable, such desire be given
effect independent of the attitude of the parties affected thereby" (Resolution, Vda. de Precilla vs.
Narciso, L-27200, August 18, 1972, 46 SCRA 538, 565).
To give effect to the intention and wishes of the testatrix is the first and principal law in the matter of
testaments (Dizon-Rivera vs. Dizon, L-24561, June 30, 1970, 33 SCRA 554, 561). Testacy is
preferable to intestacy. An interpretation that will render a testamentary disposition operative takes
precedence over a construction that will nullify a provision of the will (Arts. 788 and 791, Civil Code).
Testacy is favored. Doubts are resolved in favor of testacy especially where the will evinces an
intention on the part of the testator to dispose of practically his whole estate. So compelling is the
principle that intestacy should be avoided and that the wishes of the testator should prevail that
sometimes the language of the will can be varied for the purpose of giving it effect (Austria vs.
Reyes, L-23079, February 27, 1970, 31 SCRA 754, 762).
As far as is legally possible, the expressed desire of the testator must be followed and the
dispositions of the properties in his will should be upheld (Estorque vs. Estorque, L-19573, June 30,
1970, 33 SCRA 540, 546).
The law has a tender regard for the wishes of the testator as expressed in his will because any
disposition therein is better than that which the law can make (Castro vs. Bustos, L-25913, February
28, 1969, 27 SCRA 327, 341).
Two other errors of the lower court may be noticed. It erred in issuing a notice to creditors although
no executor or regular administrator has been appointed. The record reveals that it appointed a
special administrator. A notice to creditors is not in order if only a special administrator has been
appointed. Section 1, Rule 86 of the Rules of Court, in providing that "immediately after granting
letters of testamentary or of administration, the court shall issue a notice requiring all persons having
money claims against the decedent to file them in the office of the clerk of said court" clearly
contemplates the appointment of an executor or regular administrator and not that of a special
administrator.
It is the executor or regular administrator who is supposed to oppose the claims against the estate
and to pay such claims when duly allowed (See. 10, Rule 86 and sec. 1, Rule 88, Rules of Court).
We also take this occasion to point out that the probate court's appointment of its branch clerk of
court as special administrator (p. 30, Rollo) is not a salutary practice because it might engender the
suspicion that the probate Judge and his clerk of court are in cahoots in milking the decedent's
estate. Should the branch clerk of court commit any abuse or devastavit in the course of his
administration, the probate Judge might find it difficult to hold him to a strict accountability. A court
employee should devote his official time to his official duties and should not have as a sideline the
administration of a decedent's estate.
WHEREFORE, the lower court's orders of February 28, and June 29, 1974 are set aside and its order of
June 18, 1973, setting for hearing the petition for probate, is affirmed. The lower court is directed to
conduct further proceedings in Special Case No. 1808 in consonance with this opinion. Costs, against the
private respondents.
SO ORDERED.
Fernando (Chairman), Barredo, Antonio and Concepcion, Jr., JJ., concur.
G.R. No. L-23445 June 23, 1966
17 SCRA 449
REMEDIOS NUGUID, petitioner and appellant,
vs.
FELIX NUGUID and PAZ SALONGA NUGUID, oppositors and appellees.
Custodio O. Partade for petitioner and appellant.
Beltran, Beltran and Beltran for oppositors and appellees.
SANCHEZ, J .:
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 six (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.1wph1.t
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
presented, 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 be 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 has 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 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 head-on the issue of the validity 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 in 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; but 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 omitar al heredero en el testamento. O no se le nombra siquiera o
aun nombrandole como padre, hijo, etc., no se le instituya 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 aquellos 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.
It may now appear trite bat 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 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:34-35).
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, 14 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 "anulara siempre la institucion de heredero, dando caracter 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 prejudique a la legitima del deseheredado
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 Sanchez Roman:
La consecuencia 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, hubiese 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, Sanchez Roman cites the
"Memoria annual del Tribunal Supreme, 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 alguna favorable a la 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 distribudo 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 sea 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 no autoriza 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 convereste
juicio en regla de interpretacion, 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, annullment 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. Sanchez Roman, speaking of the two component parts
of Article 814, now 854, states that preterition annuls the institution of the heir "totalmente por la
pretericion"; but added (in reference to legacies and bequests) "pero subsistiendo ... todas aquellas
otras disposiciones que no se refieren a la institucion de heredero ... .
13
As Manresa puts it,
annulment throws open to intestate succession the entire inheritance including "la porcion libre (que)
no hubiese dispuesto en virtud de legado, mejora o donacion.
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 pretention 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 privacion
expresa de la legitima constituye la desheredacion. La privacion tacita de la misma se
denomina pretericion."
18
Sanchez Roman 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 is 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", put 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, adquiren el
derecho a todo; desheredados, solo les corresponde un tercio o dos tercios,
22
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

This is best answered by a reference to the opinion of Mr. Chief 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
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 article 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 as a thing separate and distinct from
legacies or betterments. 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., Reyes, J.B.L., Barrera, Dizon, Regala, Makalintal, Bengzon, J.P. and Zaldivar, JJ.,
concur.
G.R. No. 72706 October 27, 1987
CONSTANTINO C. ACAIN, petitioner,
vs.
HON. INTERMEDIATE APPELLATE COURT (Third Special Cases Division), VIRGINIA A.
FERNANDEZ and ROSA DIONGSON, respondents.

PARAS, J .:
This is a petition for review on certiorari of the decision * of respondent. Court of Appeals in AC-G.R. SP No. 05744
promulgated on August 30, 1985 (Rollo, p. 108) ordering the dismissal of the petition in Special Proceedings No, 591 ACEB and its
Resolution issued on October 23, 1985 (Rollo, p. 72) denying respondents' (petitioners herein) motion for reconsideration.
The dispositive portion of the questioned decision reads as follows:
WHEREFORE, the petition is hereby granted and respondent Regional Trial Court of
the Seventh Judicial Region, Branch XIII (Cebu City), is hereby ordered to dismiss
the petition in Special Proceedings No. 591 ACEB No special pronouncement is
made as to costs.
The antecedents of the case, based on the summary of the Intermediate Appellate Court, now Court
of Appeals, (Rollo, pp. 108-109) are as follows:
On May 29, 1984 petitioner Constantino Acain filed on the Regional Trial Court of Cebu City Branch
XIII, a petition for the probate of the will of the late Nemesio Acain and for the issuance to the same
petitioner of letters testamentary, docketed as Special Proceedings No. 591 ACEB (Rollo, p. 29), on
the premise that Nemesio Acain died leaving a will in which petitioner and his brothers Antonio,
Flores and Jose and his sisters Anita, Concepcion, Quirina and Laura were instituted as heirs. The
will allegedly executed by Nemesio Acain on February 17, 1960 was written in Bisaya (Rollo, p. 27)
with a translation in English (Rollo, p. 31) submi'tted by petitioner without objection raised by private
respondents. The will contained provisions on burial rites, payment of debts, and the appointment of
a certain Atty. Ignacio G. Villagonzalo as the executor of the testament. On the disposition of the
testator's property, the will provided:
THIRD: All my shares that I may receive from our properties. house, lands and
money which I earned jointly with my wife Rosa Diongson shall all be given by me to
my brother SEGUNDO ACAIN Filipino, widower, of legal age and presently residing
at 357-C Sanciangko Street, Cebu City. In case my brother Segundo Acain pre-
deceased me, all the money properties, lands, houses there in Bantayan and here in
Cebu City which constitute my share shall be given to me to his children, namely:
Anita, Constantino, Concepcion, Quirina, laura, Flores, Antonio and Jose, all
surnamed Acain.
Obviously, Segundo pre-deceased Nemesio. Thus it is the children of Segundo who are claiming to
be heirs, with Constantino as the petitioner in Special Proceedings No. 591 ACEB
After the petition was set for hearing in the lower court on June 25, 1984 the oppositors
(respondents herein Virginia A. Fernandez, a legally adopted daughter of tile deceased and the
latter's widow Rosa Diongson Vda. de Acain filed a motion to dismiss on the following grounds for
the petitioner has no legal capacity to institute these proceedings; (2) he is merely a universal heir
and (3) the widow and the adopted daughter have been pretirited. (Rollo, p. 158). Said motion was
denied by the trial judge.
After the denial of their subsequent motion for reconsideration in the lower court, respondents filed
with the Supreme Court a petition for certiorari and prohibition with preliminary injunction which was
subsequently referred to the Intermediate Appellate Court by Resolution of the Court dated March
11, 1985 (Memorandum for Petitioner, p. 3; Rollo, p. 159).
Respondent Intermediate Appellate Court granted private respondents' petition and ordered the trial
court to dismiss the petition for the probate of the will of Nemesio Acain in Special Proceedings No.
591 ACEB
His motion for reconsideration having been denied, petitioner filed this present petition for the review
of respondent Court's decision on December 18, 1985 (Rollo, p. 6). Respondents' Comment was
filed on June 6, 1986 (Rollo, p. 146).
On August 11, 1986 the Court resolved to give due course to the petition (Rollo, p. 153).
Respondents' Memorandum was filed on September 22, 1986 (Rollo, p. 157); the Memorandum for
petitioner was filed on September 29, 1986 (Rollo, p. 177).
Petitioner raises the following issues (Memorandum for petitioner, p. 4):
(A) The petition filed in AC-G.R. No. 05744 for certiorari and prohibition with
preliminary injunction is not the proper remedy under the premises;
(B) The authority of the probate courts is limited only to inquiring into the extrinsic
validity of the will sought to be probated and it cannot pass upon the intrinsic validity
thereof before it is admitted to probate;
(C) The will of Nemesio Acain is valid and must therefore, be admitted to probate.
The preterition mentioned in Article 854 of the New Civil Code refers to preterition of
"compulsory heirs in the direct line," and does not apply to private respondents who
are not compulsory heirs in the direct line; their omission shall not annul the
institution of heirs;
(D) DICAT TESTATOR ET MERIT LEX. What the testator says will be the law;
(E) There may be nothing in Article 854 of the New Civil Code, that suggests that
mere institution of a universal heir in the will would give the heir so instituted a share
in the inheritance but there is a definite distinct intention of the testator in the case at
bar, explicitly expressed in his will. This is what matters and should be in violable.
(F) As an instituted heir, petitioner has the legal interest and standing to file the
petition in Sp. Proc. No. 591 ACEB for probate of the will of Nemesio Acain and
(G) Article 854 of the New Civil Code is a bill of attainder. It is therefore
unconstitutional and ineffectual.
The pivotal issue in this case is whether or not private respondents have been pretirited.
Article 854 of the Civil Code 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; but the devisees and legacies
shall be valid insofar as they are not; inofficious.
If the omitted compulsory heirs should die before the testator, the institution shall he
effectual, without prejudice to the right of representation.
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 (Nuguid v. Nuguid, 17 SCRA 450 [1966]; Maninang v. Court of
Appeals, 114 SCRA 478 [1982]). Insofar as the widow is concerned, Article 854 of the Civil Code
may not apply as she does not ascend or descend from the testator, although she is a compulsory
heir. Stated otherwise, even if the surviving spouse is a compulsory heir, there is no preterition even
if she is omitted from the inheritance, for she is not in the direct line. (Art. 854, Civil code) however,
the same thing cannot be said of the other respondent Virginia A. Fernandez, whose legal adoption
by the testator has not been questioned by petitioner (.Memorandum for the Petitioner, pp. 8-9).
Under Article 39 of P.D. No. 603, known as the Child and Youth Welfare Code, adoption gives to the
adopted person the same rights and duties as if he were a legitimate child of the adopter and makes
the adopted person a legal heir of the adopter. It cannot be denied that she has totally omitted and
preterited in the will of the testator and that both adopted child and the widow were deprived of at
least their legitime. Neither can it be denied that they were not expressly disinherited. Hence, this is
a clear case of preterition of the legally adopted child.
Pretention annuls the institution of an heir and annulment throws open to intestate succession the
entire inheritance including "la porcion libre (que) no hubiese dispuesto en virtual de legado mejora o
donacion" Maniesa as cited in Nuguid v. Nuguid, supra; Maninang v. Court of Appeals, 114 SCRA
[1982]). The only provisions which do not result in intestacy are the legacies and devises made in
the will for they should stand valid and respected, except insofar as the legitimes are concerned.
The universal institution of petitioner together with his brothers and sisters to the entire inheritance of
the testator results in totally abrogating the will because the nullification of such institution of
universal heirs-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 of the Civil Code offers no
leeway for inferential interpretation (Nuguid v. Nuguid), supra. No legacies nor devises having been
provided in the will the whole property of the deceased has been left by universal title to petitioner
and his brothers and sisters. The effect of annulling the "Institution of heirs will be, necessarily, the
opening of a total intestacy (Neri v. Akutin, 74 Phil. 185 [1943]) except that proper legacies and
devises must, as already stated above, be respected.
We now deal with another matter. In order that a person may be allowed to intervene in a probate
proceeding he must have an interest iii the estate, or in the will, or in the property to be affected by it
either as executor or as a claimant of the estate and an interested party is one who would be
benefited by the estate such as an heir or one who has a claim against the estate like a creditor
(Sumilang v. Ramagosa, 21 SCRA 1369/1967). Petitioner is not the appointed executor, neither a
devisee or a legatee there being no mention in the testamentary disposition of any gift of an
individual item of personal or real property he is called upon to receive (Article 782, Civil Code). At
the outset, he appears to have an interest in the will as an heir, defined under Article 782 of the Civil
Code as a person called to the succession either by the provision of a will or by operation of law.
However, intestacy having resulted from the preterition of respondent adopted child and the
universal institution of heirs, petitioner is in effect not an heir of the testator. He has no legal standing
to petition for the probate of the will left by the deceased and Special Proceedings No. 591 A-CEB
must be dismissed.
As a general rule certiorari cannot be a substitute for appeal, except when the questioned order is an
oppressive exercise of j judicial authority (People v. Villanueva, 110 SCRA 465 [1981]; Vda. de
Caldito v. Segundo, 117 SCRA 573 [1982]; Co Chuan Seng v. Court of Appeals, 128 SCRA 308
[1984]; and Bautista v. Sarmiento, 138 SCRA 587 [1985]). It is axiomatic that the remedies of
certiorari and prohibition are not available where the petitioner has the remedy of appeal or some
other plain, speedy and adequate remedy in the course of law (DD Comendador Construction
Corporation v. Sayo (118 SCRA 590 [1982]). They are, however, proper remedies to correct a grave
abuse of discretion of the trial court in not dismissing a case where the dismissal is founded on valid
grounds (Vda. de Bacang v. Court of Appeals, 125 SCRA 137 [1983]).
Special Proceedings No. 591 ACEB is for the probate of a will. As stated by respondent Court, the
general rule is that the probate court's authority is limited only to the extrinsic validity of the will, the
due execution thereof, the testator'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. 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 (Nuguid v.
Nuguid, 17 SCRA 449 [1966]; Sumilang v. Ramagosa, supra; Maninang v. Court of Appeals, 114
SCRA 478 [1982]; Cayetano v. Leonides, 129 SCRA 522 [1984]; and Nepomuceno v. Court of
Appeals, 139 SCRA 206 [1985]).
The rule, however, is not inflexible and absolute. Under exceptional circumstances, the probate court
is not powerless to do what the situation constrains it to do and pass upon certain provisions of the
will (Nepomuceno v. Court of Appeals, supra). In Nuguid v. Nuguid the oppositors to the probate
moved to dismiss on the ground of absolute preteriton The probate court acting on the motion held
that the will in question was a complete nullity and dismissed the petition without costs. On appeal
the Supreme Court upheld the decision of the probate court, induced by practical considerations.
The Court said:
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 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 head-on the issue of the validity of the provisions of the will in
question. After all there exists a justiciable controversy crying for solution.
In Saguimsim v. Lindayag (6 SCRA 874 [1962]) the motion to dismiss the petition by the surviving
spouse was grounded on petitioner's lack of legal capacity to institute the proceedings which was
fully substantiated by the evidence during the hearing held in connection with said motion. The Court
upheld the probate court's order of dismissal.
In Cayetano v. Leonides, supra one of the issues raised in the motion to dismiss the petition deals
with the validity of the provisions of the will. Respondent Judge allowed the probate of the will. The
Court held that as on its face the will appeared to have preterited the petitioner the respondent judge
should have denied its probate outright. Where circumstances demand that intrinsic validity of
testamentary provisions be passed upon even before the extrinsic validity of the will is resolved, the
probate court should meet the issue. (Nepomuceno v. Court of Appeals,supra; Nuguid v.
Nuguid, supra).
In the instant case private respondents filed a motion to dismiss the petition in Sp. Proceedings No.
591 ACEB of the Regional Trial Court of Cebu on the following grounds: (1) petitioner has no legal
capacity to institute the proceedings; (2) he is merely a universal heir; and (3) the widow and the
adopted daughter have been preterited (Rollo, p. 158). It was denied by the trial court in an order
dated January 21, 1985 for the reason that "the grounds for the motion to dismiss are matters
properly to be resolved after a hearing on the issues in the course of the trial on the merits of the
case (Rollo, p. 32). A subsequent motion for reconsideration was denied by the trial court on
February 15, 1985 (Rollo, p. 109).
For private 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 as petitioner and his brothers and sisters
were instituted as universal heirs coupled with the obvious fact that one of the private respondents
had been preterited 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 (Cayetano v. Leonides, supra; Nuquid v. Nuguid, supra. The remedies of
certiorari and prohibition were properly availed of by private respondents.
Thus, this Court ruled that where the grounds for dismissal are indubitable, the defendants had the
right to resort to the more speedy, and adequate remedies of certiorari and prohibition to correct a
grave abuse of discretion, amounting to lack of jurisdiction, committed by the trial court in not
dismissing the case, (Vda. de Bacang v. Court of Appeals, supra) and even assuming the existence
of the remedy of appeal, the Court harkens to the rule that in the broader interests of justice, a
petition for certiorari may be entertained, particularly where appeal would not afford speedy and
adequate relief. (Maninang Court of Appeals, supra).
PREMISES CONSIDERED, the petition is hereby DENIED for lack of merit and the questioned
decision of respondent Court of Appeals promulgated on August 30, 1985 and its Resolution dated
October 23, 1985 are hereby AFFIRMED.
SO ORDERED.
Teehankee, C.J., Yap, Fernan, Narvasa, Gutierrez, Jr., Cruz, Feliciano, Gancayco, Padilla, Bidin,
Sarmiento and Cortes, JJ., concur.
G.R. No. L-24365 June 30, 1966
17 SCRA 590
IN THE MATTER OF THE INTESTATE ESTATE OF EDWARD E. CHRISTENSEN, deceased.
ADOLFO C. AZNAR, executor and appellee,
vs.
MARIA LUCY CHRISTENSEN DUNCAN, oppositor and appellant.
MARIA HELEN CHRISTENSEN, oppositor and appellee.
J. Salonga and L. M. Abellera for oppositor and appellee.
Carlos Dominguez, Jr. for executor-appellee.
M. R. Sotelo for appellant.
MAKALINTAL, J .:
Edward E. Christensen, a citizen of California with domicile in the Philippines, died leaving a will
executed on March 5, 1951. The will was admitted to probate by the Court of First Instance of Davao
in its decision of February 28, 1954. In that same decision the court declared that Maria Helen
Christensen Garcia (hereinafter referred to as Helen Garcia) was a natural child of the deceased.
The declaration was appealed to this Court, and was affirmed in its decision of February 14, 1958
(G.R. No. L-11484).
In another incident relative to the partition of the deceased's estate, the trial court approved the
project submitted by the executor in accordance with the provisions of the will, which said court
found to be valid under the law of California. Helen Garcia appealed from the order of approval, and
this Court, on January 31, 1963, reversed the same on the ground that the validity of the provisions
of the will should be governed by Philippine law, and returned the case to the lower court with
instructions that the partition be made as provided by said law (G.R. No. L-16749).
On October 29, 1964, the Court of First Instance of Davao issued an order approving the project of
partition submitted by the executor, dated June 30, 1964, wherein the properties of the estate were
divided equally between Maria Lucy Christensen Duncan (named in the will as Maria Lucy
Christensen Daney, and hereinafter referred to as merely Lucy Duncan), whom the testator had
expressly recognized in his will as his daughter (natural) and Helen Garcia, who had been judicially
declared as such after his death. The said order was based on the proposition that since Helen
Garcia had been preterited in the will the institution of Lucy Duncan as heir was annulled, and hence
the properties passed to both of them as if the deceased had died intestate, saving only the legacies
left in favor of certain other persons, which legacies have been duly approved by the lower court and
distributed to the legatees.
The case is once more before us on appeal, this time by Lucy Duncan, on the sole question of
whether the estate, after deducting the legacies, should pertain to her and to Helen Garcia in equal
shares, or whether the inheritance of Lucy Duncan as instituted heir should be merely reduced to the
extent necessary to cover the legitime of Helen Garcia, equivalent to 1/4 of the entire estate.
The will of Edward E. Christensen contains, among others, the following clauses which are pertinent
to the issue in this case:
3. I declare ... that I have but ONE (1) child, named MARIA LUCY CHRISTENSEN (Now
Mrs. Bernard Daney), who was born in the Philippines about twenty-eight years ago, who is
now residing at No. 665 Rodger Young Village, Los Angeles, California, U.S.A.
4. I further declare that I now have no living ascendants, and no descendants except my
above-named daughter, MARIA LUCY CHRISTENSEN DANEY.
x x x x x x x x x
7. I give, devise, and bequeath unto MARIA HELEN CHRISTENSEN, now married to
Eduardo Garcia, about eighteen years of age and who, notwithstanding the fact that she was
baptized Christensen, is not in any way related to me, nor has she been at any time adopted
by me, and who, from all information I have now resides in Egpit, Digos, Davao, Philippines,
the sum of THREE THOUSAND SIX HUNDRED PESOS (P3,600.00), Philippine Currency,
the same to be deposited in trust for the said Maria Helen Christensen with the Davao
Branch of the Philippine National Bank, and paid to her at the rate of One Hundred Pesos
(P100.00), Philippine Currency per month until the principal thereof as well as any interest
which may have accrued thereon, is exhausted.
x x x x x x x x x
12. I hereby give, devise and bequeath, unto my well-beloved daughter, the said MARIA
LUCY CHRISTENSEN DANEY (Mrs. Bernard Daney) now residing, as aforesaid, at No. 665
Rodger Young Village, Los Angeles, California, U.S.A., all the income from the rest,
remainder, and residue of my property and estate, real, personal and/or mixed, of
whatsoever kind or character, and wheresoever situated, of which I may be possessed at my
death and which may have come to me from any source whatsoever, during her lifetime;
Provided, however, that should the said MARIA LUCY CHRISTENSEN DANEY at anytime
prior to her decease having living issue, then and in that event, the life interest herein given
shall terminate, and if so terminated, then I give, devise, and bequeath to my daughter, the
said MARIA LUCY CHRISTENSEN DANEY the rest, remainder and residue of my property
with the same force and effect as if I had originally so given, devised and bequeathed it to
her; and provided, further, that should the said MARIA LUCY CHRISTENSEN DANEY die
without living issue, then, and in that event, I give, devise and bequeath all the rest,
remainder and residue of my property one-half (1/2) to my well-beloved sister, Mrs. CARRIE
LOUISE C. BORTON, now residing at No. 2124, Twentieth Street, Bakersfield, California,
U.S.A., and one-half (1/2) to the children of my deceased brother, JOSEPH C.
CHRISTENSEN, namely: Mrs. Carol F. Ruggaver, of Los Angeles, California, U.S.A., and
Joseph Raymond Christensen, of Manhattan Beach, California, U.S.A., share and share
alike, the share of any of the three above named who may predecease me, to go in equal
parts to the descendants of the deceased; and, provided further, that should my sister Mrs.
Carol Louise C. Borton die before my own decease, then, and in that event, the share of my
estate devised to her herein I give, devise and bequeath to her children, Elizabeth Borton de
Trevio, of Mexico City Mexico; Barbara Borton Philips, of Bakersfield, California, U.S.A.,
and Richard Borton, of Bakersfield, California, U.S.A., or to the heirs of any of them who may
die before my own decease, share and share alike.
The trial court ruled, and appellee now maintains, that there has been preterition of Helen Garcia, a
compulsory heir in the direct line, resulting in the annulment of the institution of heir pursuant to
Article 854 of the Civil Code, which 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; but the devises and legacies shall be valid insofar
as they are not inofficious.
On the other hand, appellant contends that this is not a case of preterition, but is governed by Article
906 of the Civil Code, which says: "Any compulsory heir to whom the testator has left by any title
less than the legitime belonging to him may demand that the same be fully satisfied." Appellant also
suggests that considering the provisions of the will whereby the testator expressly denied his
relationship with Helen Garcia, but left to her a legacy nevertheless although less than the amount of
her legitime, she was in effect defectively disinherited within the meaning of Article 918, which reads:
ART. 918. Disinheritance without a specification of the cause, or for a cause the truth of
which, if contradicted, is not proved, or which is not one of those set forth in this Code, shall
annul the institution of heirs insofar as it may prejudice the person disinherited; but the
devices and legacies and other testamentary dispositions shall be valid to such extent as will
not impair the legitimate.
Thus, according to appellant, under both Article 906 and 918, Helen Garcia is entitled only to her
legitime, and not to a share of the estate equal that of Lucy Duncan as if the succession were
intestate.
Article 854 is a reproduction of Article 814 of the Spanish Civil Code; and Article 906 of Article 815.
Commenting on Article 815, Manresa explains:
Como dice Goyena, en el caso de pretericion puede presumirse ignorancia o falta de
memoria en el testador; en el de dejar algo al heredero forzoso no. Este no se encuentra
plivado totalmente de su legitima: ha recibido por cualquir titulo una porcion de los bienes
hereditarios, porcion que no alcanza a completar la legitima, pero que influeye
poderosamente en el animo del legislador para decidirle a adoptar una solucion bien
diferente de la sealada para el caso de pretericion.
El testador no ha olvidado por completo al heredero forzoso; le ha dejado bienes; pero
haciendo un calculo equivocado, ha repartido en favor de extraos o en favor de otros
legitimarios por via de legado donacion o mejora mayor cantidad de la que la ley de
consentia disponer. El heredero forzoso no puede perder su legitima, pero tampoco puede
pedir mas que la misma. De aqui su derecho a reclamar solamente lo que le falta; al
complemento de la porcion que forzosamente la corresponde.
... Dejar el testador por cualquier titulo, equivale a disponer en testamento por titulo de
herencia legado o mejora, y en favor de legitimarios, de alguna cantidad o porcion de bienes
menos que la legitima o igual a la misma. Tal sentido, que es el mas proprio en al articulo
815, no pugna tampoco con la doctrina de la ley.Cuando en el testamento se deja algo al
heredero forzoso, la pretericion es incompleta: es mas formularia que real. Cuando en el
testamento nada se deja el legitimario, hay verdadera pretericion. (6 Manresa, 7th Ed., 1951,
p. 437.)
On the difference between preterition of a compulsory heir and the right to ask for completion of his
legitime, Sanchez Roman says:
La desheredacion, como expresa, es siempre voluntaria; la pretericion puede serlo pero se
presume involuntaria la omision en que consiste en cuanto olvida o no atiende el testador en
su testamento a la satisfaccion del derecho a la legitima del heredero forzoso preterido,
prescindiendo absoluta y totalmente de el y no mencionandole en ninguna de sus
disposiciones testamentarias, o no instituyendole en parte alguna de la herencia, ni por titulo
de heredero ni por el de legatar o aunque le mencionara o nombrara sin dejarle mas o
menos bienes. Si le dejara algunos, por pocos que sean e insuficientes para cubrir su
legitima, ya no seria caso de pretericion, sino de complemento de aquella. El primer
supuesto o de pretericion se regula por el articulo 814, y produce accion de nulidad de la
institucion de heredero; y el segundo, o de complemento de legitima por el 815 y solo
original la accion ad suplementum, para completar la legitima. (Sanchez Roman, Tomo VI,
Vol. 2, p. 1131.)
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. Manresa continues:
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.1wph 1. t
x x x x x x x x x
B. Que la omision sea completa Esta condicion se deduce del mismo Articulo 814 y
resulta con evidencia al relacionar este articulo con el 815. El heredero forzoso a quien el
testador deja algo por cualquier titulo en su testamento, no se halla propiamente omitido
pues se le nombra y se le reconoce participacion en los bienes hereditarios. Podria
discutirse en el Articulo 814 si era o no necesario que se reconociese el derecho del
heredero como tal heredero, pero el articulo 815 desvanece esta duda. Aquel se ocupa de
privacion completa o total, tacita este, de la privacion parcial. Los efectos deben ser y son,
como veremos completamente distintos (6 Manresa, p. 428.)
La privacion de la legitima puede ser total o parcial.
Privar totalmente de la legitima es negarla en absoluto al legitimario, despojarle de ella por
completo. A este caso se refiere el articulo 814. Privar parcialmente de la legitima, es
menguarla o reducirla dejar al legitimario una porcion, menor que la que le corresponde. A
este caso se refiere el articulo 815. El 813 sienta, pues, una regla general, y las
consecuencias del que brantamiento de esta regla se determina en los articulos 814 y 815.
(6 Manresa p. 418.)
Again Sanchez Roman:
QUE LA OMISSION SEA TOTAL. Aunque el articulo 814 no consigna de modo expreso
esta circunstancia de que la pretericion o falta de mencion e institucion o disposicion
testamentaria a su favor, sea total, completa y absoluta, asi se deduce de no hacer
distincion o salvedad alguna empleandola en terminos generales; pero sirve a confirmarlo de
un modo indudable el siguiente articulo 815, al decir que el heredero forzoso a quien el
testador haya dejado por cualquier titulo, menos de la legitima que la corresponda, podria
pedir el complemento de la misma, lo cual ya no son el caso ni los efectos de la
pretericion, que anula la institucion, sino simplemente los del suplemento necesario para
cubrir su legitima. (Sanchez Roman Tomo VI, Vol. 2.0 p. 1133.)
The question may be posed: In order that the right of a forced heir may be limited only to the
completion of his legitime (instead of the annulment of the institution of heirs) is it necessary that
what has been left to him in the will "by any title," as by legacy, be granted to him in his capacity as
heir, that is, a titulo de heredero? In other words, should he be recognized or referred to in the will as
heir? This question is pertinent because in the will of the deceased Edward E. Christensen Helen
Garcia is not mentioned as an heir indeed her status as such is denied but is given a legacy of
P3,600.00.
While the classical view, pursuant to the Roman law, gave an affirmative answer to the question,
according to both Manresa (6 Manresa 7th 3rd. 436) and Sanchez Roman (Tomo VI, Vol. 2.0 p.
937), that view was changed by Article 645 of the "Proyecto de Codigo de 1851," later on copied in
Article 906 of our own Code. Sanchez Roman, in the citation given above, comments as follows:
RESPECTO DEL COMPLEMENTO DE LA LEGITIMA. Se inspira el Codigo en esta
materia en la doctrina clasica del Derecho romano y patrio (2); pero con alguna racional
modificacion. Concedian aquellos precedentes legales al heredero forzoso, a quien no se le
dejaba por titulo de tal el completo de su legitima, la accion para invalidar la institucion
hecha en el testamento y reclamar y obtener aquella mediante el ejercicio de la querella de
inoficioso, y aun cuando resultara favorecido como donotario, por otro titulo que no fuera el
de heredero, sino al honor de que se le privaba no dandole este caracter, y solo cuando era
instituido heredero en parte o cantidad inferior a lo que le correspondiera por legitima, era
cuando bastaba el ejercicio de la accion ad suplementum para completarla, sin necesidad
de anular las otras instituciones de heredero o demas disposiciones contenidas en el
testamento.
El Articulo 851 se aparta de este criterio estricto y se ajusta a la unica necesidad que le
inspira cual es la de que se complete la legitima del heredero forzoso, a quien por cualquier
titulo se haya dejado menos de lo que le corresponda, y se le otorga tan solo el derecho de
pedir el complemento de la misma sin necesidad de que se anulen las disposiciones
testamentarias, que se reduciran en lo que sean inoficiosas conforme al articulo 817, cuya
interpretacion y sentido tienen ya en su apoyo la sancion de la jurisprudencia (3); siendo
condicion precisa que lo que se hubiere dejado de menos de la legitima al heredero forzoso,
lo haya sido en el testamento, o sea por disposicion del testador, segun lo revela el texto del
articulo, "el heredero forzoso a quien el testador haya dejado, etc., esto es por titulo de
legado o donacion mortis causa en el testamento y, no fuera de al. (Sanchez Roman, Tomo
VI, Vol. 2.0 p. 937.)
Manresa cites particularly three decisions of the Supreme Court of Spain dated January 16, 1895,
May 25, 1917, and April 23, 1932, respectively. In each one of those cases the testator left to one
who was a forced heir a legacy worth less than the legitime, but without referring to the legatee as
an heir or even as a relative, and willed the rest of the estate to other persons. It was held that
Article 815 applied, and the heir could not ask that the institution of heirs be annulled entirely, but
only that the legitime be completed. (6 Manresa, pp. 438, 441.)
The foregoing solution is indeed more in consonance with the expressed wishes of the testator in the
present case as may be gathered very clearly from the provisions of his will. He refused to
acknowledge Helen Garcia as his natural daughter, and limited her share to a legacy of P3,600.00.
The fact that she was subsequently declared judicially to possess such status is no reason to
assume that had the judicial declaration come during his lifetime his subjective attitude towards her
would have undergone any change and that he would have willed his estate equally to her and to
Lucy Duncan, who alone was expressly recognized by him.
The decision of this Court in Neri, et al. v. Akutin, 74 Phil. 185, is cited by appellees in support of
their theory of preterition. That decision is not here applicable, because it referred to a will where
"the testator left all his property by universal title to the children by his second marriage, and (that)
without expressly disinheriting the children by his first marriage, he left nothing to them or, at least,
some of them." In the case at bar the testator did not entirely omit oppositor-appellee Helen Garcia,
but left her a legacy of P3,600.00.
The estate of the deceased Christensen upon his death consisted of 399 shares of stocks in the
Christensen Plantation Company and a certain amount in cash. One-fourth (1/4) of said estate
descended to Helen Garcia as her legitime. Since she became the owner of her share as of the
moment of the death of the decedent (Arts. 774, 777, Civil Code), she is entitled to a corresponding
portion of all the fruits or increments thereof subsequently accruing. These include the stock
dividends on the corporate holdings. The contention of Lucy Duncan that all such dividends pertain
to her according to the terms of the will cannot be sustained, for it would in effect impair the right of
ownership of Helen Garcia with respect to her legitime.
One point deserves to be here mentioned, although no reference to it has been made in the brief for
oppositor-appellant. It is the institution of substitute heirs to the estate bequeathed to Lucy Duncan in
the event she should die without living issue. This substitution results in effect from the fact that
under paragraph 12 of the will she is entitled only to the income from said estate, unless prior to her
decease she should have living issue, in which event she would inherit in full ownership; otherwise
the property will go to the other relatives of the testator named in the will. Without deciding this,
point, since it is not one of the issues raised before us, we might call attention to the limitations
imposed by law upon this kind of substitution, particularly that which says that it can never burden
the legitime (Art. 864 Civil Code), which means that the legitime must descend to the heir concerned
in fee simple.
Wherefore, the order of the trial court dated October 29, 1964, approving the project of partition as
submitted by the executor-appellee, is hereby set aside; and the case is remanded with instructions
to partition the hereditary estate anew as indicated in this decision, that is, by giving to oppositor-
appellee Maria Helen Christensen Garcia no more than the portion corresponding to her as legitime,
equivalent to one-fourth (1/4) of the hereditary estate, after deducting all debts and charges, which
shall not include those imposed in the will of the decedent, in accordance with Article 908 of the Civil
Code. Costs against appellees in this instance.
Concepcion, C.J., J.B.L. Reyes, Barrera, Dizon, Regala, J.P. Bengzon, Zaldivar and Sanchez, JJ.,
concur.
R E S O L U T I O N
July 30, 1967
MAKALINTAL, J .:
Oppositor-appellant has filed an ex-parte petition dated July 11, 1966, making reference to an
alleged oversight and asking for the corresponding correction, in the last paragraph before the
dispositive part of our decision, which reads as follows:
One point deserves to be here mentioned, although no reference to it has been made in the brief for
oppositor-appellant. It is the institution of substituted heirs to the estate bequeathed to Lucy Duncan
in the event she should die without living issue. This substitution results in effect from the fact that
under paragraph 12 of the will she is entitled only to the income from said estate, unless prior to her
decease she should have living issue, in which event she would inherit in full ownership; otherwise
the property will go to the other relatives of the testator named in the will. Without deciding this
point, since it is not one of the issues raised before us, we might call attention to the limitations
imposed by law upon this kind of substitution, particularly that which says that it can never burden
the legitime (Art. 864, Civil Code), which means that the legitime must descend to the heir
concerned in fee simple. (Decision, June 30, 1966, pages 14-15; emphasis ours).
Oppositor-appellant points out that the matter of substitution of heirs was taken up and discussed in
her brief particularly in pages 28 and 32 thereof. This is indeed quite true, but the reference to and
discussion of the rights of the substitute heirs (called American heirs in the brief) appears to be
merely for the purpose of refuting the theory advanced by appellees and not for the purpose of
having the rights of said heirs defined in so far as, under the terms of the will, they may affect the
legitime of oppositor-appellant. This point of course was not and could hardly have been squarely
raised as an issue inasmuch as the substitute heirs are not parties in this case. We have
nevertheless called attention "to the limitations imposed by law upon this kind of substitution,"
because in the brief for oppositor-appellant, at page 45, she makes the conclusion "that the Last Will
and Testament of Edward E. Christensen are valid under Philippine Law and must be given full force
and effect;" and to give them full force and effect would precisely affect the legitime of oppositor-
appellant.
Wherefore, the last paragraph before the dispositive part of our decision quoted above is amended
by eliminating the following phrase in the first sentence: "although no reference to it has been made
in the brief for oppositor-appellant."
Concepcion, C.J., Reyes, J.B.L., Barrera, Dizon, Bengzon, J.P., Zaldivar and Sanchez, JJ., concur.
Regala and Castro, JJ., took no part.
G.R. No. L-57848 June 19, 1982
114 SCRA 478
RAFAEL E. MANINANG and SOLEDAD L. MANINANG, petitioners,
vs.
COURT OF APPEALS, HON. RICARDO L. PRONOVE, JR., as Judge of the Court of First
Instance of Rizal and BERNARDO S. ASENETA, respondents.

MELENCIO-HERRERA, J .:
A Petition to Review the Decision of April 28, 1981 of respondent Appellate Court in CA-G.R. No.
12032-R entitled "Rafael E. Maninang and Soledad L. Maninang vs. Hon. Ricardo Pronove, Judge of
the Court of First Instance of Rizal, Pasig, Branch XI, and Bernardo S. Aseneta".
Pertinent to the controversy are the following antecedental facts:
On May 21, 1977, Clemencia Aseneta, single, died at the Manila Sanitarium Hospital at age 81. She
left a holographic will, the pertinent portions of which are quoted hereunder:
xxx xxx xxx
It is my will that all my real properties located in Manila, Makati, Quezon City, Albay
and Legaspi City and all my personal properties shagllbe inherited upon my death by
Dra. Soledad L. Maninang with whose family I have lived continuously for around the
last 30 years now. Dra. Maninang and her husband Pamping have been kind to me.
... I have found peace and happiness with them even during the time when my
sisters were still alive and especially now when I am now being troubled by my
nephew Bernardo and niece Salvacion. I am not incompetent as Nonoy would like
me to appear. I know what is right and wrong. I can decide for myself. I do not
consider Nonoy as my adopted son. He has made me do things against my will.
xxx xxx xxx
On June 9, 1977, petitioner Soledad Maninang filed a Petition for probate of the Will of the decedent
with the Court of First Instance-Branch IV, Quezon City (Sp. Proc. No. Q-23304, hereinafter referred
to as the Testate Case).
On July 25, 1977, herein respondent Bernardo Aseneta, who, as the adopted son, claims to be the
sole heir of decedent Clemencia Aseneta, instituted intestate proceedings with the Court of First
Instance-Branch XI, Pasig, Rizal (Sp. Proc. No. 8569, called hereinafter the Intestate Case" for
brevity).
On December 23, 1977, the Testate and Intestate Cases were ordered consolidated before Branch
XI, presided by respondent Judge.
Respondent Bernardo then filed a Motion to Dismiss the Testate Case on the ground that the
holographic will was null and void because he, as the only compulsory heir, was preterited and,
therefore, intestacy should ensue. In support of said Motion to Dismiss, respondent Bernardo cited
the cases of Neri vs. Akutin (72 Phil. 322); Nuguid vs. Nuguid (17 SCRA 449), and Ramos vs.
Baldovino (2 CA Rep. 2nd, 878).
1

In her Opposition to said Motion to Dismiss, petitioner Soledad averred that it is still the rule that in a
case for 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; and that respondent Bernardo was effectively disinherited by the
decedent.
2

On September 8, 1980, the lower Court ordered the dismissal of the Testate Case in this wise:
For reasons stated in the motion to dismiss filed by petitioner Bernardo S. Aseneta
which the Court finds meritorious, the petition for probate of will filed by Soledad L.
Maninang and which was docketed as Sp. Proc. No. Q-23304 is DISMISSED,
without pronouncement as to costs.
On December 19, 1980, the lower Court denied reconsideration for lack of merit and in the same
Order appointed Bernardo as the administrator of the intestate estate of the deceased Clemencia
Aseneta "considering that he is a forced heir of said deceased while oppositor Soledad Maninang is
not, and considering further that Bernardo Aseneta has not been shown to be unfit to perform the
duties of the trust. "
Petitioners Maninang resorted to a certiorari Petition before respondent Court of Appeals alleging
that the lower Court exceeded its jurisdiction in issuing the Orders of dismissal of the Testate Case
(September 8, 1980) and denial of reconsideration (December 19, 1980).
On April 28, 1981, respondent Court
3
denied certiorari and ruled that the trial Judge's Order of
dismissal was final in nature as it finally disposed of the Testate Case and, therefore, appeal was the
proper remedy, which petitioners failed to avail of. Continuing, it said that even granting that the lower
Court committed errors in issuing the questioned Orders, those are errors of judgment reviewable only by
appeal and not by Certiorari. 'Thus, this Petition before us.
We find that the Court a quo a quo acted in excess of its jurisdiction when it dismissed the Testate
Case. Generally, the probate of a Will is mandatory.
No will shall pass either real or personal property unless it is proved and allowed in
accordance with the Rules of Court.
4

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.
5

Normally, the probate of a Will does not look into its intrinsic validity.
... The authentication of a will decides no other question than such as touch upon the
capacity of the testator and the compliance with those requisites or solemnities which
the law prescribes for the validity of wills. It does not determine nor even by
implication prejudge the validity or efficiency (sic) of the provisions, these may be
impugned as being vicious or null, notwithstanding its authentication. The que0stions
relating to these points remain entirely unaffected, and may be raised even after the
will has been authenticated ....
6

Opposition to the intrinsic validity or legality of the provisions of the will cannot be
entertained in Probate proceeding because its only purpose is merely to determine if
the will has been executed in accordance with the requirements of the law.
7

Respondent Bernardo, however, relies on the pronouncement in Nuguid vs. Nuguid
8
, reading:
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 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 that issue. (Emphasis
supplied)
Our ruling in Balanay vs. Hon. Martinez
9
had a similar thrust:
The trial court acted correctly in passing upon the will's intrinsic validity even before
its formal validity had been established. The probate of a will might become an Idle
ceremony if on its face it appears to be intrinsically void. 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.
The Nuguid and the Balanay cases provide the exception rather than the rule. The intrinsic validity of
the Wills in those cases was passed upon even before probate because "practical considerations" so
demanded. Moreover, for the parties in the Nuguid case, the "meat of the controversy" was the
intrinsic validity of the Will; in fact, the parties in that case "shunted aside the question of whether or
not the Will should be allowed probate." Not so in the case before us now where the probate of the
Will is insisted on by petitioners and a resolution on the extrinsic validity of the Will demanded.
Moreover, in the Nuguid case, this Court ruled that the Will was intrinsically invalid as it completely
preterited the parents of the testator. In the instant case, a crucial issue that calls for resolution is
whether under the terms of the decedent's Will, private respondent had been preterited or
disinherited, and if the latter, whether it was a valid disinheritance. Preterition and disinheritance are
two diverse concepts.
... 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." (Neri
vs. Akutin, 72 Phil. 325). Disinheritance, in turn, "is a testamentary disposition
depriving any compulsory heirs of his share in the legitimate 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 2.o p. 1131).
10

The effects of preterition and disinheritance are also totally different.
... The effects flowing from preterition are totally different from those of
disinheritance. Pretention under Article 854 of the New Civil Code shall annul the
institution of heir. This annulment is in toto, unless in the wail 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.
11

By virtue of the dismissal of the Testate Case, the determination of that controversial issue has not
been thoroughly considered. We gather from the assailed Order of the trial Court that its conclusion
was that respondent Bernardo has been preterited We are of opinion, however, that from the face of
the Will, that conclusion is not indubitable.
As held in the case of Vda. de Precilla vs. Narciso
12

... it is as important a 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 foundation, ...
Coming now to the procedural aspect, suffice it to state that in view of our finding that respondent
Judge had acted in excess of his jurisdiction in dismissing the Testate Case, certiorari is a proper
remedy. An act done by a Probate Court in excess of its jurisdiction may be corrected
by Certiorari.
13
And even assuming the existence of the remedy of appeal, we harken to the rule that in
the broader interests of justice, a petition for certiorari may be entertained, particularly where appeal
would not afford speedy and adequate relief.
WHEREFORE, the Decision in question is set aside and the Orders of the Court of First Instance-
Branch XI, Rizal, dated September 8, 1980 and December 19, 1980, are nullified. Special
Proceeding No. Q-23304 is hereby remanded to said Court of First Instance-Branch XI. Rizal,
therein to be reinstated and consolidated with Special Proceeding No. 8569 for further proceedings.
No pronouncement as to costs.
SO ORDERED.
Teehankee (Chairman), Makasiar, Plana and Relova JJ., concur.
Vasquez, J., took no part.
Gutierrez, Jr., J., I concur.
G.R. No. L-31703 February 13, 1930
54 Phil 431
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.
ROMUALDEZ, J .:
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.
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 and 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 from the 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 that 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
instants 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 is 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 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
Resolution 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, as referred to in articles 783 of
the Civil Code, is entitled 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 prescribed 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 wholeestate 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 more 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. At 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 should 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., reserves his vote.
G.R. No. L-27952 February 15, 1982
111 SCRA 704
TESTATE ESTATE OF JOSE EUGENIO RAMIREZ, MARIA LUISA PALACIOS,
Administratrix, petitioner-appellee,
vs.
MARCELLE D. VDA. DE RAMIREZ, ET AL., oppositors, JORGE and ROBERTO
RAMIREZ, legatees, oppositors- appellants.

ABAD SANTOS, J .:
The main issue in this appeal is the manner of partitioning the testate estate of Jose Eugenio
Ramirez among the principal beneficiaries, namely: his widow Marcelle Demoron de Ramirez; his
two grandnephews Roberto and Jorge Ramirez; and his companion Wanda de Wrobleski.
The task is not trouble-free because the widow Marcelle is a French who lives in Paris, while the
companion Wanda is an Austrian who lives in Spain. Moreover, the testator provided for
substitutions.
Jose Eugenio Ramirez, a Filipino national, died in Spain on December 11, 1964, with only his widow
as compulsory heir. His will was admitted to probate by the Court of First Instance of Manila, Branch
X, on July 27, 1965. Maria Luisa Palacios was appointed administratrix of the estate. In due time she
submitted an inventory of the estate as follows:
INVENTARIO
Una sexta parte (1/6) proindiviso de un te
rreno, con sus mejoras y edificaciones, situadoen
la Escolta, Manila............................................................. P500,000.00
Una sexta parte (1/6) proindiviso de dos
parcelas de terreno situadas en Antipolo, Rizal................... 658.34
Cuatrocientos noventa y uno (491) acciones
de la 'Central Azucarera de la Carlota a P17.00
por accion ................................................................................8,347.00
Diez mil ochocientos seize (10,806) acciones
de la 'Central Luzon Milling Co.', disuelta y en
liquidacion a P0.15 por accion ..............................................1,620.90
Cuenta de Ahorros en el Philippine Trust
Co.............................................................................................. 2,350.73
TOTAL.............................................................. P512,976.97
MENOS:
Deuda al Banco de las Islas Filipinas, garan-
tizada con prenda de las acciones de La Carlota ......... P 5,000,00
VALOR LIQUIDO........................................... P507,976.97
The testamentary dispositions are as follows:
A.En nuda propiedad, a D. Roberto y D. Jorge Ramirez, ambas menores de edad,
residentes en Manila, I.F., calle 'Alright, No. 1818, Malate, hijos de su sobrino D.
Jose Ma. Ramirez, con sustitucion vulgar a favor de sus respectivos descendientes,
y, en su defecto, con sustitucion vulgar reciprocal entre ambos.
El precedente legado en nuda propiedad de la participacion indivisa de la finca
Santa Cruz Building, lo ordena el testador a favor de los legatarios nombrados, en
atencion a que dicha propiedad fue creacion del querido padre del otorgante y por
ser aquellos continuadores del apellido Ramirez,
B.Y en usufructo a saber:
a. En cuanto a una tercera parte, a favor de la esposa del testador, Da. Marcelle
Ramirez, domiciliada en IE PECO, calle del General Gallieni No. 33, Seine Francia,
con sustitucion vulgar u fideicomisaria a favor de Da. Wanda de Wrobleski, de Palma
de Mallorca, Son Rapina Avenida de los Reyes 13,
b.Y en cuanto a las dos terceras partes restantes, a favor de la nombrada Da.
Wanda de Nrobleski con sustitucion vulgar v fideicomisaria a saber:
En cuanto a la mitad de dichas dos terceras partes, a favor de D. Juan Pablo
Jankowski, de Son Rapina Palma de Mallorca; y encuanto a la mitad restante, a
favor de su sobrino, D. Horace V. Ramirez, San Luis Building, Florida St. Ermita,
Manila, I.F.
A pesar de las sustituciones fideiconiisarias precedentemente ordinadas, las
usufiructuarias nombradas conjuntamente con los nudo propietarios, podran en
cualquier memento vender a tercero los bienes objeto delegado, sin intervencion
alguna de los titulares fideicomisaarios.
On June 23, 1966, the administratrix submitted a project of partition as follows: the property of the
deceased is to be divided into two parts. One part shall go to the widow 'en pleno dominio" in
satisfaction of her legitime; the other part or "free portion" shall go to Jorge and Roberto Ramirez "en
nuda propriedad." Furthermore, one third (1/3) of the free portion is charged with the widow's
usufruct and the remaining two-thirds (2/3) with a usufruct in favor of Wanda.
Jorge and Roberto opposed the project of partition on the grounds: (a) that the provisions for vulgar
substitution in favor of Wanda de Wrobleski with respect to the widow's usufruct and in favor of Juan
Pablo Jankowski and Horacio V. Ramirez, with respect to Wanda's usufruct are invalid because the
first heirs Marcelle and Wanda) survived the testator; (b) that the provisions for fideicommissary
substitutions are also invalid because the first heirs are not related to the second heirs or substitutes
within the first degree, as provided in Article 863 of the Civil Code; (c) that the grant of a usufruct
over real property in the Philippines in favor of Wanda Wrobleski, who is an alien, violates Section 5,
Article III of the Philippine Constitution; and that (d) the proposed partition of the testator's interest in
the Santa Cruz (Escolta) Building between the widow Marcelle and the appellants, violates the
testator's express win to give this property to them Nonetheless, the lower court approved the project
of partition in its order dated May 3, 1967. It is this order which Jorge and Roberto have appealed to
this Court.
1. The widow's legitime.
The appellant's do not question the legality of giving Marcelle one-half of the estate in full ownership.
They admit that the testator's dispositions impaired his widow's legitime. Indeed, under Art. 900 of
the Civil Code "If the only survivor is the widow or widower, she or he shall be entitled to one-half of
the hereditary estate." And since Marcelle alone survived the deceased, she is entitled to one-half of
his estate over which he could impose no burden, encumbrance, condition or substitution of any kind
whatsoever. (Art. 904, par. 2, Civil Code.)
It is the one-third usufruct over the free portion which the appellants question and justifiably so. It
appears that the court a quo approved the usufruct in favor of Marcelle because the testament
provides for a usufruct in her favor of one-third of the estate. The court a quo erred for Marcelle who
is entitled to one-half of the estate "en pleno dominio" as her legitime and which is more than what
she is given under the will is not entitled to have any additional share in the estate. To give Marcelle
more than her legitime will run counter to the testator's intention for as stated above his dispositions
even impaired her legitime and tended to favor Wanda.
2. The substitutions.
It may be useful to recall that "Substitution is the appoint- judgment of another heir so that he may
enter into the inheritance in default of the heir originally instituted." (Art. 857, Civil Code. And that
there are several kinds of substitutions, namely: simple or common, brief or compendious,
reciprocal, and fideicommissary (Art. 858, Civil Code.) According to Tolentino, "Although the Code
enumerates four classes, there are really only two principal classes of substitutions: the simple and
the fideicommissary. The others are merely variations of these two." (111 Civil Code, p. 185 [1973].)
The simple or vulgar is that provided in Art. 859 of the Civil Code which reads:
ART. 859. The testator may designate one or more persons to substitute the heir or
heirs instituted in case such heir or heirs should die before him, or should not wish,
or should be incapacitated to accept the inheritance.
A simple substitution, without a statement of the cases to which it refers, shall
comprise the three mentioned in the preceding paragraph, unless the testator has
otherwise provided.
The fideicommissary substitution is described in the Civil Code as follows:
ART. 863. A fideicommissary substitution by virtue of which 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 inheritance, shall be valid and shall take effect, provided such
substitution does not go beyond one degree from the heir originally instituted, and
provided further that the fiduciary or first heir and the second heir are living at time of
the death of the testator.
It will be noted that the testator provided for a vulgar substitution in respect of the legacies of
Roberto and Jorge Ramirez, the appellants, thus: con sustitucion vulgar a favor de sus respectivos
descendientes, y, en su defecto, con substitution vulgar reciprocal entre ambos.
The appellants do not question the legality of the substitution so provided. The appellants question
the sustitucion vulgar y fideicomisaria a favor de Da. Wanda de Wrobleski" in connection with the
one-third usufruct over the estate given to the widow Marcelle However, this question has become
moot because as We have ruled above, the widow is not entitled to any usufruct.
The appellants also question the sustitucion vulgar y fideicomisaria in connection with Wanda's
usufruct over two thirds of the estate in favor of Juan Pablo Jankowski and Horace v. Ramirez.
They allege that the substitution in its vulgar aspect as void because Wanda survived the testator or
stated differently because she did not predecease the testator. But dying before the testator is not
the only case for vulgar substitution for it also includes refusal or incapacity to accept the inheritance
as provided in Art. 859 of the Civil Code, supra. Hence, the vulgar substitution is valid.
As regards the substitution in its fideicommissary aspect, the appellants are correct in their claim that
it is void for the following reasons:
(a) The substitutes (Juan Pablo Jankowski and Horace V. Ramirez) are not related to Wanda, the
heir originally instituted. Art. 863 of the Civil Code validates a fideicommissary substitution "provided
such substitution does not go beyond one degree from the heir originally instituted."
What is meant by "one degree" from the first heir is explained by Tolentino as follows:
Scaevola Maura, and Traviesas construe "degree" as designation, substitution, or
transmission. The Supreme Court of Spain has decidedly adopted this construction.
From this point of view, there can be only one tranmission or substitution, and the
substitute need not be related to the first heir. Manresa, Morell and Sanchez Roman,
however, construe the word "degree" as generation, and the present Code has
obviously followed this interpretation. by providing that the substitution shall not go
beyond one degree "from the heir originally instituted." The Code thus clearly
indicates that the second heir must be related to and be one generation from the first
heir.
From this, it follows that the fideicommissary can only be either a child or a parent of
the first heir. These are the only relatives who are one generation or degree from the
fiduciary (Op. cit., pp. 193-194.)
(b) There is no absolute duty imposed on Wanda to transmit the usufruct to the substitutes as
required by Arts. 865 and 867 of the Civil Code. In fact, the appellee admits "that the testator
contradicts the establishment of a fideicommissary substitution when he permits the properties
subject of the usufruct to be sold upon mutual agreement of the usufructuaries and the naked
owners." (Brief, p. 26.)
3. The usufruct of Wanda.
The appellants claim that the usufruct over real properties of the estate in favor of Wanda is void
because it violates the constitutional prohibition against the acquisition of lands by aliens.
The 1935 Constitution which is controlling provides as follows:
SEC. 5. Save in cases of hereditary succession, no private agricultural land shall be
transferred or assigned except to individuals, corporations, or associations qualified
to acquire or hold lands of the public domain in the Philippines. (Art. XIII.)
The court a quo upheld the validity of the usufruct given to Wanda on the ground that the
Constitution covers not only succession by operation of law but also testamentary succession. We
are of the opinion that the Constitutional provision which enables aliens to acquire private lands does
not extend to testamentary succession for otherwise the prohibition will be for naught and
meaningless. Any alien would be able to circumvent the prohibition by paying money to a Philippine
landowner in exchange for a devise of a piece of land.
This opinion notwithstanding, We uphold the usufruct in favor of Wanda because a usufruct, albeit a
real right, does not vest title to the land in the usufructuary and it is the vesting of title to land in favor
of aliens which is proscribed by the Constitution.
IN VIEW OF THE FOREGOING, the estate of Jose Eugenio Ramirez is hereby ordered distributed
as follows:
One-half (1/2) thereof to his widow as her legitime;
One-half (1/2) thereof which is the free portion to Roberto and Jorge Ramirez in naked ownership
and the usufruct to Wanda de Wrobleski with a simple substitution in favor of Juan Pablo Jankowski
and Horace V. Ramirez.
The distribution herein ordered supersedes that of the court a quo. No special pronouncement as to
costs.
SO ORDERED.
Barredo (Chairman), Concepcion, Jr., De Castro, Ericta and Escolin, JJ., concur.
Aquino J., took no part.
G.R. No. L-13876 February 28, 1962
4 SCRA 491
CONSOLACION FLORENTINO DE CRISOLOGO, ET AL., plaintiffs-appellees,
vs.
DR. MANUEL SINGSON, defendant-appellant.
Felix V. Vergara for defendant-appellant.
B. Martinez for plaintiffs-appellees.
DIZON, J .:
Action for partition commenced by the spouses Consolacion Florentino and Francisco Crisologo
against Manuel Singson in connection with a residential lot located a Plaridel St., Vigan, Ilocos Sur,
with an area of approximately 193 square meters, and the improvements existing thereon, covered
by Tax No. 10765-C. Their complaint alleged that Singson owned one-half pro-indiviso of said
property and that Consolacion Florentino owned the other half by virtue of the provisions of the duly
probated last will of Da. Leona Singson, the original owner, and the project of partition submitted to,
and approved by the Court of First Instance of Ilocos Sur in special Proceeding No. 453; that
plaintiffs had made demands for the partition of said property, but defendant refused to accede
thereto, thus compelling them to bring action.
Defendant's defense was that Consolacion Florentino was a mere usufructuary of, and not owner of
one-half pro-indiviso of the property in question, and that, therefore, she was not entitled to demand
partition thereof.
After trial upon the issue thus posed, the lower court rendered judgment as follows:
1. Declaring that the plaintiff is a co-owner pro-indiviso with the defendant of the house and
lot described in the complaint to the extent of each of an undivided 1/2 portion thereof; .
2. Ordering the aforesaid co-owners to execute an agreement of partition of the said property
within 30 days from receipt of this judgment unless it be shown that the division thereof may
render it unserviceable, in which case the provisions of Art. 498 of the New Civil Code may
be applied; .1wph1.t
3. That in the event the said parties shall fail to do so, this Court will appoint the
corresponding commissioners to make the partition in accordance with law; and .
4. Without special pronouncement as to costs." .
From the above judgment, defendant Singson appealed.
It is admitted that Da. Leona Singson, who died single on January 13, 1948, was the owner of the
property in question at the time of her death. On July 31, 1951 she executed her last will which was
admitted to probate in Special Proceeding No. 453 of the lower court whose decision was affirmed
by the Court of Appeals in G.R. No. 3605-R. At the time of the execution of the will, her nearest living
relatives were her brothers Evaristo, Manuel and Dionisio Singson, her nieces Rosario, Emilia and
Trinidad, and her grandniece Consolation, all surnamed Florentino.
Clause IX of her last will reads as follows: .
NOVENO. Ordeno que se de a mi nieta por parte de mi hermana mia y que al mismo
tiempo vive en mi casa, y, por tanto, bajo mi proteccion, y es la CONSOLACION
FLORENTINO:
(A). La mitad de mi casa de materials fuertes con techo de hierro galvanizado, incluyendo la
mitad de su solar, ubicado en la Poblacion de Vigan, Ilocos Sur, Calle Plaridel, actualmente
arrendada por los hermanos Fortunato, Teofilo y Pedro del appellido Kairuz. Pero si
falleciere antes o despues que yo mi citada nieta, esta propiedad se dara por partes iguales
entre mis tres hermanos Evaristo, Manuel y Dionisio, o a sus herederos forzosos en el caso
de que alguno de ellas murieie antes ... (Exhibit F.)
The issue to be decided is whether the testamentary disposition above-quoted provided for what is
calledsustitucion vulgar or for a sustitucion fideicomisaria. This issue is, we believe, controlled by the
pertinent provisions of the Civil Code in force in the Philippines prior to the effectivity of the New Civil
Code, in view of the fact that the testatrix died on January 13, 1948. They are the following: .
Art. 774. The testator may designate one or more persons to substitute the heir or heirs
instituted in case such heir or heirs should die before him, or should not wish or should be
unable to accept the inheritance.
A simple substitution, without a statement of the cases to which it is to apply, shall include
the three mentioned in the next preceeding paragraph, unless the testator has otherwise
provided:
Art. 781. Fidei-commissary substitutions by virtue of which the heir is charged to preserve
and transmit to a third person the whole or part of the inheritance shall be valid and effective,
provided they do not go beyond the second degree, or that they are made in favor of persons
living at the time of the death of the testator." .
Art. 785. The following shall be inoperative: .
1. Fiduciary substitutions not made expressly, either by giving them this name or by imposing
upon the fiduciary the absolute obligation of delivering the property to a second heir." ....
In accordance with the first legal provision quoted above, the testator may not only designate the
heirs who will succeed him upon his death, but also provide for substitutes in the event that said
heirs do not accept or are in no position to accept the inheritance or legacies, or die ahead of him.
The testator may also bequeath his properties to a particular person with the obligation, on the part
of the latter, to deliver the same to another person, totally or partially, upon the occurrence of a
particular event (6 Manresa, p. 1112).
It is clear that the particular testamentary clause under consideration provides for a substitution of
the heir named therein in this manner: that upon the death of Consolacion Florentino whether this
occurs before or after that of the testatrix the property bequeathed to her shall be delivered ("se
dara") or shall belong in equal parts to the testatrix's three brothers, Evaristo, Manuel and Dionisio,
or their forced heirs, should anyone of them die ahead of Consolacion Florentino. If this clause
created what is known as sustitucion vulgar, the necessary result would be that Consolacion
Florentino, upon the death of the testatrix, became the owner of one undivided half of the property,
but if it provided for a sustitution fideicomisaria, she would have acquired nothing more than
usufructuary rights over the same half. In the former case, she would undoubtedly be entitled to
partition, but not in the latter. As Manresa says, if the fiduciary did not acquire full ownership of the
property bequeathed by will, but mere usufructuary rights thereon until the time came for him to
deliver said property to the fideicomisario, it is obvious that the nude ownership over the property,
upon the death of the testatrix, passed to and was acquired by another person, and the person
cannot be other than the fideicomisario (6 Manresa p. 145).
It seems to be of the essence of a fideicommissary substitution that an obligation be clearly imposed
upon the first heir to preserve and transmit to another the whole or part of the estate bequeathed to
him, upon his death or upon the happening of a particular event. For this reason, Art. 785 of the old
Civil Code provides that a fideicommissary substitution shall have no effect unless it is made
expressly ("de una manera expresa") either by giving it such name, or by imposing upon the first heir
the absolute obligation ("obligacion terminante") to deliver the inheritance to a substitute or second
heir. In this connection Manresa says: .
Para que la sustitucion sea fideicomisaria, es preciso segun el art. 781, que se ordeno o
encargue al primer heredero, cuando sea tal, que conserve y transmita a una tercera
persona o entidad el todo a parte de la herencia. O lo que es lo mismo, la sustitucion
fideicomisaria, como declaran las resoluciones de 25 de Junio de 1895, 10 de Febrero de
1899 y 19 de Julio de 1909, exige tres requisitos: .
1.o Un primer heredero llamado al goce de los bienes preferentemente.
2.o Obligacion claramente impuesta al mismo de conservar y transmitir a un tercero el todo
o parte del caudal.
3.o Un segundo heredero.
A estos requisitos anade la sentencia de 18 de Noviembre de 1918, otro mas, el del que el
fideicomisario tenga derecho a los bienes de la herencia desde el momento de la muerte del
testador, puesto que ha de suceder a este y no al fiduciario.
Por tanto, cuando el causante se limita a instituir dos herederos, y por fallecimiento de
ambos o de cualquiera de ellos, asigna la parte del fallecido o fallecidos, a los herederos
legitimos o a otras personas, solo existe una sustitucion vulgar, porque falta el requisito de
haberse impuesto a los primeros herederos la obligacion de conservar y transmitir los
bienes, y el articulo 789, en su parrafo primero, evige que la sustitucion sea expresa, ya
dandole el testador el nombre de sustitucion fideicomisaria, ya imponiendo al sustituido la
obligacion terminante de conservar y transmitir los bienes a un segundo heredero.
A careful perusal of the testamentary clause under consideration shows that the substitution of heirs
provided for therein is not expressly made of the fideicommissary kind, nor does it contain a clear
statement to the effect that appellee, during her lifetime, shall only enjoy usufructuary rights over the
property bequeathed to her, naked ownership thereof being vested in the brothers of the testatrix. As
already stated, it merely provides that upon appellee's death whether this happens before or after
that of the testatrix her share shall belong to the brothers of the testatrix.
In the light of the foregoing, we believe, and so hold, that the last will of the deceased Da. Leona
Singson, established a mere sustitucion vulgar, the substitution Consolacion Florentino by the
brothers of the testatrix to be effective or to take place upon the death of the former, whether it
happens before or after that of the testatrix.
IN VIEW OF THE FOREGOING, the appealed judgment is affirmed, with costs.
Bengzon, C.J., Padilla, Bautista Angelo, Labrador, Concepcion, Reyes, J.B.L., Barrera, Paredes and
De Leon, JJ., concur.
G.R. Nos. L-27860 and 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
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,administrator-appellant,
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., movant-
appellee.
San Juan, Africa, Gonzales and San Agustin for Philippine Commercial and Industrial Bank.
Manglapus Law Office, Antonio Law Office and Rizal R. Quimpo for private respondents and
appellees Avelina A. Magno, etc., et al.

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.
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.
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.
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 executor 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:
O R D E R
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.
Iloilo City. December 14, 1957.
(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 be 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 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, 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.
City of Iloilo April 21, 1959.
(Annex "J", Petition.)
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 above-quoted 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
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 estate as having earned income of P135,311.66, exactly one-half of the net
income of his combined personal assets and that of the estate of 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 said estate as having earned income of
P157,428.97, exactly one-half 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 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.
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, 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 Hodges, albeit the motion was followed on February 22, 1963 by a
separate one asking that Atty. Fernando Mirasol be appointed as his co-administrator. 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.
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.
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.
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 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 Administratix 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 estates 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 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 so-calledmodus 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, seventy-five 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 afore-described
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 313-320 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 retailers 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 be 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, hereinbefore 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 Vice-President 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. 1825-1828), 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 separate
expedientes in 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 "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 their 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
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.)
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 cases 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.)
Likewise, the respondent court approved deeds of sale executed by respondent Magno alone, as
Administratrix of the estate of Mrs. Hodges, 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.
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., insofar 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:
"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 Executory, 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, 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."
(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 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)
(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]
(13) On September l6, 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 Administratrix 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
Admini
stratrix
(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 because 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 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 any 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 co-administrators 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 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).
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 administrated 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 (10017,) (or, in the
alternative, seventy-five 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.
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 Administratrix 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).
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 or 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 co-administrator 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 co-administrators of the estate of C. N. Hodges.
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.
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;
(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 interferring 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
any changes in the physical properties of said estate by sale of any
part thereof which he 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, predeceasing 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 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 andimmovable 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 motion Court in the two above-
captioned 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 entirely 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 ofthe 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, ofthe 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
ofthe 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 entirely 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.)
(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 orsimple 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 kisses of substitution, meaningfully stated that:
"... cuando el testador instituyeun 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 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' Willis 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. 17-18);
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 reglamentary 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;
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 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 above-quoted,
Linnie Jane Hodges gave a life-estate or a usufruct over all her estate to her
husband, Charles Newton Hodges, and a vested remainder-estate 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;
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 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 one-half 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;
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 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;
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 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
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.
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 pre-judicial 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.
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. 1672, 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, 1957 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 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 order 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.
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 seventy-eight (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
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 SPELL WHICH WERE CANCELLED AND RESCINDED.
XXX to XXXIV
THE LOWER COURT ERRED IN DETERMINING THE RIGHTS OF OWNERSHIP
OVER REAL PROPERTY OF THE 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.
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 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 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 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, FLRENIA 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
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
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
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.
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
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.
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.)
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
I
As to the Alleged Tardiness
of the Present Appeals
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 hereinbelow 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.
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 certiorariand 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 Mrs. Hodges that may be Adjudicated to her brothers
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 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.
... 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 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 he 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
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 27, 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 os 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, A 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:
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
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
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 estate as having earned income of P135,311.66, exactly one-
half 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 one-half 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, curtesy or a statutory
interest? (X) Yes ( ) No
2d. Does the surviving spouse contemplate renouncing the will and electing to take
dower, curtesy, 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 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. (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 lands 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., 566;
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.
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 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 discuss 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 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 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-in-law. 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 legitime 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, 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. 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 the 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 on 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], See. 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, Charl