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G.R. No.

L-4963

January 29, 1953

MARIA USON, plaintiff-appellee,


vs.
MARIA DEL ROSARIO, CONCEPCION NEBREDA, CONRADO
NEBREDA, DOMINADOR NEBREDA, AND FAUSTINO NEBREDA,
Jr., defendants-appellants.
Priscilo Evangelista for appellee.
Brigido G. Estrada for appellant.
BAUTISTA ANGELO, J.:
This is an action for recovery of the ownership and possession of
five (5) parcels of land situated in the Municipality of Labrador,
Province of Pangasinan, filed by Maria Uson against Maria del
Rosario and her four children named Concepcion, Conrado,
Dominador, and Faustino, surnamed Nebreda, who are all of minor
age, before the Court of First Instance of Pangasinan.
Maria Uson was the lawful wife of Faustino Nebreda who upon his
death in 1945 left the lands involved in this litigation. Faustino
Nebreda left no other heir except his widow Maria Uson. However,
plaintiff claims that when Faustino Nebreda died in 1945, his
common-law wife Maria del Rosario took possession illegally of said
lands thus depriving her of their possession and enjoyment.
Defendants in their answer set up as special defense that on
February 21, 1931, Maria Uson and her husband, the late Faustino
Nebreda, executed a public document whereby they agreed to
separate as husband and wife and, in consideration of their
separation, Maria Uson was given a parcel of land by way of
alimony and in return she renounced her right to inherit any other
property that may be left by her husband upon his death (Exhibit
1).

After trial, at which both parties presented their respective


evidence, the court rendered decision ordering the defendants to
restore to the plaintiff the ownership and possession of the lands in
dispute without special pronouncement as to costs. Defendants
interposed the present appeal.
There is no dispute that Maria Uson, plaintiff-appellee, is the lawful
wife of Faustino Nebreda, former owner of the five parcels of lands
litigated in the present case. There is likewise no dispute that Maria
del Rosario, one of the defendants-appellants, was merely a
common-law wife of the late Faustino Nebreda with whom she had
four illegitimate children, her now co-defendants. It likewise
appears that Faustino Nebreda died in 1945 much prior to the
effectivity of the new Civil Code. With this background, it is evident
that when Faustino Nebreda died in 1945 the five parcels of land he
was seized of at the time passed from the moment of his death to
his only heir, his widow Maria Uson (Article 657, old Civil Code).As
this Court aptly said, "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" (Ilustre vs. Alaras Frondosa, 17 Phil., 321). From
that moment, therefore, the rights of inheritance of Maria Uson
over the lands in question became vested.
The claim of the defendants that Maria Uson had relinquished her right
over the lands in question because she expressly renounced to inherit any
future property that her husband may acquire and leave upon his death in
the deed of separation they had entered into on February 21, 1931, cannot
be entertained for the simple reason that future inheritance cannot be the
subject of a contract nor can it be renounced (1 Manresa, 123, sixth
edition; Tolentino on Civil Code, p. 12; Osorio vs. Osorio and Ynchausti
Steamship Co., 41 Phil., 531).
But defendants contend that, while it is true that the four minor defendants
are illegitimate children of the late Faustino Nebreda and under the old
Civil Code are not entitled to any successional rights, however, under the
new Civil Code which became in force in June, 1950, they are given the
status and rights of natural children and are entitled to the successional

rights which the law accords to the latter (article 2264 and article 287, new
Civil Code), and because these successional rights were declared

WHEREFORE, the decision appealed from is affirmed, without costs.

for the first time in the new code, they shall be given retroactive
effect even though the event which gave rise to them may have
occurred under the prior legislation (Article 2253, new Civil Code).

Paras, C.J., Pablo, Bengzon, Padilla, Tuason, Montemayor, Reyes, Jugo and
Labrador, JJ., concur.
..

There is no merit in this claim. Article 2253 above referred to


provides indeed that rights which are declared for the first time
shall have retroactive effect even though the event which gave rise
to them may have occurred under the former legislation, but this is
so only when the new rights do not prejudice any vested or
acquired right of the same origin. Thus, said article provides that "if
a right should be declared for the first time in this Code, it shall be
effective at once, even though the act or event which gives rise
thereto may have been done or may have occurred under the prior
legislation, provided said new right does not prejudice or impair any
vested or acquired right, of the same origin." As already stated in
the early part of this decision, the right of ownership of Maria Uson
over the lands in question became vested in 1945 upon the death
of her late husband and this is so because of the imperative
provision of the law which commands that the rights to succession
are transmitted from the moment of death (Article 657, old Civil
Code). The new right recognized by the new Civil Code in favor of
the illegitimate children of the deceased cannot, therefore, be
asserted to the impairment of the vested right of Maria Uson over
the lands in dispute.
As regards the claim that Maria Uson, while her deceased husband was
lying in state, in a gesture of pity or compassion, agreed to assign the
lands in question to the minor children for the reason that they were
acquired while the deceased was living with their mother and Maria Uson
wanted to assuage somewhat the wrong she has done to them, this much
can be said; apart from the fact that this claim is disputed, we are of the
opinion that said assignment, if any, partakes of the nature of a donation of
real property, inasmuch as it involves no material consideration, and in
order that it may be valid it shall be made in a public document and must
be accepted either in the same document or in a separate one (Article 633,
old Civil Code). Inasmuch as this essential formality has not been followed,
it results that the alleged assignment or donation has no valid effect.

G.R. No. L-28040 August 18, 1972


TESTATE ESTATE OF JOSEFA TANGCO, JOSE DE BORJA,
administrator-appellee; JOSE DE BORJA, as administrator,
CAYETANO DE BORJA, MATILDE DE BORJA and CRISANTO DE
BORJA (deceased) as Children of Josefa Tangco, appellees,
vs.
TASIANA VDA. DE DE BORJA, Special Administratrix of the
Testate Estate of Francisco de Borja,appellant. .
G.R. No L-28568 August 18, 1972
TESTATE ESTATE OF THE LATE FRANCISCO DE BORJA,
TASIANA O. VDA. DE DE BORJA, special Administratrix appellee,
vs.
JOSE DE BORJA, oppositor-appellant.
G.R. No. L-28611 August 18, 1972
TASIANA 0. VDA. DE BORJA, as Administratrix of the Testate
Estate of the late Francisco de Borja,plaintiff-appellee,
vs.
JOSE DE BORJA, as Administrator of the Testate Estate of
the late Josefa Tangco, defendant-appellant.
L-28040
Pelaez, Jalandoni & Jamir for administrator-appellee.
Quiogue & Quiogue for appellee Matilde de Borja.
Andres Matias for appellee Cayetano de Borja.
Sevilla & Aquino for appellant.
L-28568
Sevilla & Aquino for special administratrix-appellee.
Pelaez, Jalandoni & Jamir for oppositor-appellant.
L-28611
Sevilla & Aquino for plaintiff-appellee.
Pelaez, Jalandoni & Jamir and David Gueverra for defendantappellant.
REYES, J.B.L., J.:p
Of these cases, the first, numbered L-28040 is an appeal by Tasiana
Ongsingco Vda. de de Borja, special administratrix of the testate
estate of Francisco de Borja, 1 from the approval of a compromise

agreement by the Court of First Instance of Rizal, Branch I, in its


Special Proceeding No. R-7866, entitled, "Testate Estate of Josefa
Tangco, Jose de Borja, Administrator".
Case No. L-28568 is an appeal by administrator Jose Borja from the
disapproval of the same compromise agreement by the Court of
First Instance of Nueva Ecija, Branch II, in its Special Proceeding No.
832, entitled, "Testate Estate of Francisco de Borja, Tasiana O. Vda.
de de Borja, Special Administratrix".
And Case No. L-28611 is an appeal by administrator Jose de Borja
from the decision of the Court of First Instance of Rizal, Branch X, in
its Civil Case No. 7452, declaring the Hacienda Jalajala Poblacion,
which is the main object of the aforesaid compromise agreement,
as the separate and exclusive property of the late Francisco de
Borja and not a conjugal asset of the community with his first wife,
Josefa Tangco, and that said hacienda pertains exclusively to his
testate estate, which is under administrator in Special Proceeding
No. 832 of the Court of First Instance of Nueva Ecija, Branch II.
It is uncontested that Francisco de Borja, upon the death of his wife
Josefa Tangco on 6 October 1940, filed a petition for the probate of
her will which was docketed as Special Proceeding No. R-7866 of
the Court of First Instance of Rizal, Branch I. The will was probated
on 2 April 1941. In 1946, Francisco de Borja was appointed executor
and administrator: in 1952, their son, Jose de Borja, was appointed
co-administrator. When Francisco died, on 14 April 1954, Jose
became the sole administrator of the testate estate of his mother,
Josefa Tangco. While a widower Francisco de Borja allegedly took
unto himself a second wife, Tasiana Ongsingco. Upon Francisco's
death, Tasiana instituted testate proceedings in the Court of First
Instance of Nueva Ecija, where, in 1955, she was appointed special
administratrix. The validity of Tasiana's marriage to Francisco was
questioned in said proceeding.
The relationship between the children of the first marriage and
Tasiana Ongsingco has been plagued with several court suits and
counter-suits; including the three cases at bar, some eighteen (18)
cases remain pending determination in the courts. The testate
estate of Josefa Tangco alone has been unsettled for more than a
quarter of a century. In order to put an end to all these litigations, a
compromise agreement was entered into on 12 October 1963, 2 by
and between "[T]he heir and son of Francisco de Borja by his first
marriage, namely, Jose de Borja personally and as administrator of
the Testate Estate of Josefa Tangco," and "[T]he heir and surviving
spouse of Francisco de Borja by his second marriage, Tasiana
Ongsingco Vda. de Borja, assisted by her lawyer, Atty. Luis

Panaguiton Jr." The terms and conditions of the compromise


agreement are as follows:
AGREEMENT
THIS AGREEMENT made and entered into by and
between
The heir and son of Francisco de Borja by his first
marriage, namely, Jose de Borja personally and as
administrator of the Testate Estate of Josefa Tangco,
AND
The heir and surviving spouse of Francisco de Borja
by his second marriage, Tasiana Ongsingco Vda. de
Borja, assisted by her lawyer, Atty. Luis Panaguiton Jr.
WITNESSETH
THAT it is the mutual desire of all the parties herein
terminate and settle, with finality, the various court
litigations, controversies, claims, counterclaims, etc.,
between them in connection with the administration,
settlement, partition, adjudication and distribution of
the assets as well as liabilities of the estates of
Francisco de Borja and Josefa Tangco, first spouse of
Francisco de Borja.
THAT with this end in view, the parties herein have
agreed voluntarily and without any reservations to
enter into and execute this agreement under the
following terms and conditions:
1. That the parties agree to sell the Poblacion portion
of the Jalajala properties situated in Jalajala, Rizal,
presently under administration in the Testate Estate
of Josefa Tangco (Sp. Proc. No. 7866, Rizal), more
specifically described as follows:
Linda al Norte con el Rio Puwang que
la separa de la jurisdiccion del
Municipio de Pililla de la Provincia de
Rizal, y con el pico del Monte
Zambrano; al Oeste con Laguna de
Bay; por el Sur con los herederos de
Marcelo de Borja; y por el Este con los
terrenos de la Familia Maronilla
with a segregated area of approximately 1,313
hectares at the amount of P0.30 per square meter.
2. That Jose de Borja agrees and obligates himself to
pay Tasiana Ongsingco Vda. de de Borja the total
amount of Eight Hundred Thousand Pesos (P800,000)
Philippine Currency, in cash, which represent

P200,000 as his share in the payment and P600,000


as pro-rata shares of the heirs Crisanto, Cayetano
and Matilde, all surnamed de Borja and this shall be
considered as full and complete payment and
settlement of her hereditary share in the estate of
the late Francisco de Borja as well as the estate of
Josefa Tangco, Sp. Proc. No. 832-Nueva Ecija and Sp.
Proc. No. 7866-Rizal, respectively, and to any
properties bequeathed or devised in her favor by the
late Francisco de Borja by Last Will and Testament or
by Donation Inter Vivos or Mortis Causa or
purportedly conveyed to her for consideration or
otherwise. The funds for this payment shall be taken
from and shall depend upon the receipt of full
payment of the proceeds of the sale of Jalajala,
"Poblacion."
3. That Tasiana Ongsingco Vda. de de Borja hereby
assumes payment of that particular obligation
incurred by the late Francisco de Borja in favor of the
Rehabilitation Finance Corporation, now
Development Bank of the Philippines, amounting to
approximately P30,000.00 and also assumes
payment of her 1/5 share of the Estate and
Inheritance taxes on the Estate of the late Francisco
de Borja or the sum of P3,500.00, more or less, which
shall be deducted by the buyer of Jalajala,
"Poblacion" from the payment to be made to Tasiana
Ongsingco Vda. de Borja under paragraph 2 of this
Agreement and paid directly to the Development
Bank of the Philippines and the heirs-children of
Francisco de Borja.
4. Thereafter, the buyer of Jalajala "Poblacion" is
hereby authorized to pay directly to Tasiana
Ongsingco Vda. de de Borja the balance of the
payment due her under paragraph 2 of this
Agreement (approximately P766,500.00) and issue in
the name of Tasiana Ongsingco Vda. de de Borja,
corresponding certified checks/treasury warrants,
who, in turn, will issue the corresponding receipt to
Jose de Borja.
5. In consideration of above payment to Tasiana
Ongsingco Vda. de de Borja, Jose de Borja personally
and as administrator of the Testate Estate of Josefa
Tangco, and Tasiana Ongsingco Vda. de de Borja, for

themselves and for their heirs, successors,


executors, administrators, and assigns, hereby
forever mutually renounce, withdraw, waive, remise,
release and discharge any and all manner of action
or actions, cause or causes of action, suits, debts,
sum or sums of money, accounts, damages, claims
and demands whatsoever, in law or in equity, which
they ever had, or now have or may have against
each other, more specifically Sp. Proceedings Nos.
7866 and 1955, CFI-Rizal, and Sp. Proc. No. 832Nueva Ecija, Civil Case No. 3033, CFI Nueva Ecija and
Civil Case No. 7452-CFI, Rizal, as well as the case
filed against Manuel Quijal for perjury with the
Provincial Fiscal of Rizal, the intention being to
completely, absolutely and finally release each other,
their heirs, successors, and assigns, from any and all
liability, arising wholly or partially, directly or
indirectly, from the administration, settlement, and
distribution of the assets as well as liabilities of the
estates of Francisco de Borja and Josefa Tangco, first
spouse of Francisco de Borja, and lastly, Tasiana
Ongsingco Vda. de de Borja expressly and
specifically renounce absolutely her rights as heir
over any hereditary share in the estate of Francisco
de Borja.
6. That Tasiana Ongsingco Vda. de de Borja, upon
receipt of the payment under paragraph 4 hereof,
shall deliver to the heir Jose de Borja all the papers,
titles and documents belonging to Francisco de Borja
which are in her possession and said heir Jose de
Borja shall issue in turn the corresponding receive
thereof.
7. That this agreement shall take effect only upon the
fulfillment of the sale of the properties mentioned
under paragraph 1 of this agreement and upon
receipt of the total and full payment of the proceeds
of the sale of the Jalajala property "Poblacion",
otherwise, the non-fulfillment of the said sale will
render this instrument NULL AND VOID AND
WITHOUT EFFECT THEREAFTER.
IN WITNESS WHEREOF, the parties hereto have her
unto set their hands in the City of Manila, Philippines,
the 12th of October, 1963.

On 16 May 1966, Jose de Borja submitted for Court approval the


agreement of 12 October 1963 to the Court of First Instance of
Rizal, in Special Proceeding No. R-7866; and again, on 8 August
1966, to the Court of First Instance of Nueva Ecija, in Special
Proceeding No. 832. Tasiana Ongsingco Vda. de de Borja opposed in
both instances. The Rizal court approved the compromise
agreement, but the Nueva Ecija court declared it void and
unenforceable. Special administratrix Tasiana Ongsingco Vda. de de
Borja appealed the Rizal Court's order of approval (now Supreme
Court G.R. case No. L-28040), while administrator Jose de Borja
appealed the order of disapproval (G.R. case No. L-28568) by the
Court of First Instance of Nueva Ecija.
The genuineness and due execution of the compromised
agreement of 12 October 1963 is not disputed, but its validity is,
nevertheless, attacked by Tasiana Ongsingco on the ground that:
(1) the heirs cannot enter into such kind of agreement without first
probating the will of Francisco de Borja; (2) that the same involves
a compromise on the validity of the marriage between Francisco de
Borja and Tasiana Ongsingco; and (3) that even if it were valid, it
has ceased to have force and effect.
In assailing the validity of the agreement of 12 October 1963,
Tasiana Ongsingco and the Probate Court of Nueva Ecija rely on this
Court's decision in Guevara vs. Guevara. 74 Phil. 479, wherein the
Court's majority held the view that the presentation of a will for
probate is mandatory and that the settlement and distribution of an
estate on the basis of intestacy when the decedent left a will, is
against the law and public policy. It is likewise pointed out by
appellant Tasiana Ongsingco that Section 1 of Rule 74 of the
Revised Rules explicitly conditions the validity of an extrajudicial
settlement of a decedent's estate by agreement between heirs,
upon the facts that "(if) the decedentleft no will and no debts, and
the heirs are all of age, or the minors are represented by their
judicial and legal representatives ..." The will of Francisco de Borja
having been submitted to the Nueva Ecija Court and still pending
probate when the 1963 agreement was made, those
circumstances, it is argued, bar the validity of the agreement.
Upon the other hand, in claiming the validity of the compromise
agreement, Jose de Borja stresses that at the time it was entered
into, on 12 October 1963, the governing provision was Section 1,
Rule 74 of the original Rules of Court of 1940, which allowed the
extrajudicial settlement of the estate of a deceased person
regardless of whether he left a will or not. He also relies on the
dissenting opinion of Justice Moran, in Guevara vs. Guevara, 74
Phil. 479, wherein was expressed the view that if the parties have

already divided the estate in accordance with a decedent's will, the


probate of the will is a useless ceremony; and if they have divided
the estate in a different manner, the probate of the will is worse
than useless.
The doctrine of Guevara vs. Guevara, ante, is not applicable to the
case at bar. This is apparent from an examination of the terms of
the agreement between Jose de Borja and Tasiana Ongsingco.
Paragraph 2 of said agreement specifically stipulates that the sum
of P800,000 payable to Tasiana Ongsingco
shall be considered as full complete payment
settlement of her hereditary share in the estate of
the late Francisco de Borja as well as the estate of
Josefa Tangco, ... and to any properties bequeathed
or devised in her favor by the late Francisco de Borja
by Last Will and Testament or by Donation Inter Vivos
or Mortis Causa or purportedly conveyed to her for
consideration or otherwise.
This provision evidences beyond doubt that the ruling in the
Guevara case is not applicable to the cases at bar. There was here
no attempt to settle or distribute the estate of Francisco de Borja
among the heirs thereto before the probate of his will. The clear
object of the contract was merely the conveyance by Tasiana
Ongsingco of any and all her individual share and interest, actual or
eventual in the estate of Francisco de Borja and Josefa Tangco.
There is no stipulation as to any other claimant, creditor or legatee.
And as a hereditary share in a decedent's estate is transmitted or
vested immediately from the moment of the death of
such causante or predecessor in interest (Civil Code of the
Philippines, Art. 777) 3 there is no legal bar to a successor (with
requisite contracting capacity) disposing of her or his hereditary
share immediately after such death, even if the actual extent of
such share is not determined until the subsequent liquidation of the
estate. 4 Of course, the effect of such alienation is to be deemed
limited to what is ultimately adjudicated to the vendor heir.
However, the aleatory character of the contract does not affect the
validity of the transaction; neither does the coetaneous agreement
that the numerous litigations between the parties (the approving
order of the Rizal Court enumerates fourteen of them, Rec. App. pp.
79-82) are to be considered settled and should be dismissed,
although such stipulation, as noted by the Rizal Court, gives the
contract the character of a compromise that the law favors, for
obvious reasons, if only because it serves to avoid a multiplicity of
suits.

It is likewise worthy of note in this connection that as the surviving


spouse of Francisco de Borja, Tasiana Ongsingco was his
compulsory heir under article 995 et seq. of the present Civil Code.
Wherefore, barring unworthiness or valid disinheritance, her
successional interest existed independent of Francisco de Borja's
last will and testament and would exist even if such will were not
probated at all. Thus, the prerequisite of a previous probate of the
will, as established in the Guevara and analogous cases, can not
apply to the case of Tasiana Ongsingco Vda. de de Borja.
Since the compromise contract Annex A was entered into by and
between "Jose de Borja personally and as administrator of the
Testate Estate of Josefa Tangco" on the one hand, and on the other,
"the heir and surviving spouse of Francisco de Borja by his second
marriage, Tasiana Ongsingco Vda. de de Borja", it is clear that the
transaction was binding on both in their individual capacities, upon
the perfection of the contract, even without previous authority of
the Court to enter into the same. The only difference between an
extrajudicial compromise and one that is submitted and approved
by the Court, is that the latter can be enforced by execution
proceedings. Art. 2037 of the Civil Code is explicit on the point:
8. Art. 2037. A compromise has upon the parties the
effect and authority of res judicata; but there shall be
no execution except in compliance with a judicial
compromise.
It is argued by Tasiana Ongsingco that while the
agreement Annex A expressed no definite period for
its performance, the same was intended to have a
resolutory period of 60 days for its effectiveness. In
support of such contention, it is averred that such a
limit was expressly stipulated in an agreement in
similar terms entered into by said Ongsingco with the
brothers and sister of Jose de Borja, to wit, Crisanto,
Matilde and Cayetano, all surnamed de Borja, except
that the consideration was fixed at P600,000
(Opposition, Annex/Rec. of Appeal, L-28040, pp. 3946) and which contained the following clause:
III. That this agreement shall take effect only upon
the consummation of the sale of the property
mentioned herein and upon receipt of the total and
full payment of the proceeds of the sale by the
herein owner heirs-children of Francisco de Borja,
namely, Crisanto, Cayetano and Matilde, all
surnamed de Borja; Provided that if no sale of the
said property mentioned herein is consummated, or

the non-receipt of the purchase price thereof by the


said owners within the period of sixty (60) days from
the date hereof, this agreement will become null and
void and of no further effect.
Ongsingco's argument loses validity when it is considered that Jose
de Borja was not a party to this particular contract (Annex 1), and
that the same appears not to have been finalized, since it bears no
date, the day being left blank "this day of October 1963"; and
while signed by the parties, it was not notarized, although plainly
intended to be so done, since it carries a proposed notarial
ratification clause. Furthermore, the compromise contract with Jose
de Borja (Annex A), provides in its par. 2 heretofore transcribed that
of the total consideration of P800, 000 to be paid to Ongsingco,
P600,000 represent the "prorata share of the heirs Crisanto,
Cayetano and Matilde all surnamed de Borja" which corresponds to
the consideration of P600,000 recited in Annex 1, and that
circumstance is proof that the duly notarized contract entered into
wit Jose de Borja under date 12 October 1963 (Annex A), was
designed to absorb and supersede the separate unformalize
agreement with the other three Borja heirs. Hence, the 60 days
resolutory term in the contract with the latter (Annex 1) not being
repeated in Annex A, can not apply to the formal compromise with
Jose de Borja. It is moreover manifest that the stipulation that the
sale of the Hacienda de Jalajala was to be made within sixty days
from the date of the agreement with Jose de Borja's co-heirs (Annex
1) was plainly omitted in Annex A as improper and ineffective, since
the Hacienda de Jalajala (Poblacion) that was to be sold to raise the
P800,000 to be paid to Ongsingco for her share formed part of the
estate of Francisco de Borja and could not be sold until authorized
by the Probate Court. The Court of First Instance of Rizal so
understood it, and in approving the compromise it fixed a term of
120 days counted from the finality of the order now under appeal,
for the carrying out by the parties for the terms of the contract.
This brings us to the plea that the Court of First Instance of Rizal
had no jurisdiction to approve the compromise with Jose de Borja
(Annex A) because Tasiana Ongsingco was not an heir in the estate
of Josefa Tangco pending settlement in the Rizal Court, but she was
an heir of Francisco de Borja, whose estate was the object of
Special Proceeding No. 832 of the Court of First Instance of Nueva
Ecija. This circumstance is irrelevant, since what was sold by
Tasiana Ongsingco was only her eventual share in the estate of her
late husband, not the estate itself; and as already shown, that
eventual share she owned from the time of Francisco's death and
the Court of Nueva Ecija could not bar her selling it. As owner of her

undivided hereditary share, Tasiana could dispose of it in favor of


whomsoever she chose. Such alienation is expressly recognized
and provided for by article 1088 of the present Civil Code:
Art. 1088. Should any of the heirs sell his hereditary
rights to a stranger before the partition, any or all of
the co-heirs may be subrogated to the rights of the
purchaser by reimbursing him for the price of the
sale, provided they do so within the period of one
month from the time they were notified in writing of
the sale of the vendor.
If a sale of a hereditary right can be made to a stranger, then a
fortiori sale thereof to a coheir could not be forbidden.
Tasiana Ongsingco further argues that her contract with Jose de
Borja (Annex "A") is void because it amounts to a compromise as to
her status and marriage with the late Francisco de Borja. The point
is without merit, for the very opening paragraph of the agreement
with Jose de Borja (Annex "A") describes her as "the heir and
surviving spouse of Francisco de Borja by his second marriage,
Tasiana Ongsingco Vda. de de Borja", which is in itself definite
admission of her civil status. There is nothing in the text of the
agreement that would show that this recognition of Ongsingco's
status as the surviving spouse of Francisco de Borja was only made
in consideration of the cession of her hereditary rights.
It is finally charged by appellant Ongsingco, as well as by the Court
of First Instance of Nueva Ecija in its order of 21 September 1964,
in Special Proceedings No. 832 (Amended Record on Appeal in L28568, page 157), that the compromise agreement of 13 October
1963 (Annex "A") had been abandoned, as shown by the fact that,
after its execution, the Court of First Instance of Nueva Ecija, in its
order of 21 September 1964, had declared that "no amicable
settlement had been arrived at by the parties", and that Jose de
Borja himself, in a motion of 17 June 1964, had stated that the
proposed amicable settlement "had failed to materialize".
It is difficult to believe, however, that the amicable settlement
referred to in the order and motion above-mentioned was the
compromise agreement of 13 October 1963, which already had
been formally signed and executed by the parties and duly
notarized. What the record discloses is that some time after its
formalization, Ongsingco had unilaterally attempted to back out
from the compromise agreement, pleading various reasons
restated in the opposition to the Court's approval of Annex "A"
(Record on Appeal, L-20840, page 23): that the same was invalid
because of the lapse of the allegedly intended resolutory period of
60 days and because the contract was not preceded by the probate

of Francisco de Borja's will, as required by this Court's Guevarra vs.


Guevara ruling; that Annex "A" involved a compromise affecting
Ongsingco's status as wife and widow of Francisco de Borja, etc., all
of which objections have been already discussed. It was natural
that in view of the widow's attitude, Jose de Borja should attempt to
reach a new settlement or novatory agreement before seeking
judicial sanction and enforcement of Annex "A", since the latter
step might ultimately entail a longer delay in attaining final remedy.
That the attempt to reach another settlement failed is apparent
from the letter of Ongsingco's counsel to Jose de Borja quoted in
pages 35-36 of the brief for appellant Ongsingco in G.R. No. 28040;
and it is more than probable that the order of 21 September 1964
and the motion of 17 June 1964 referred to the failure of the
parties' quest for a more satisfactory compromise. But the inability
to reach a novatory accord can not invalidate the original
compromise (Annex "A") and justifies the act of Jose de Borja in
finally seeking a court order for its approval and enforcement from
the Court of First Instance of Rizal, which, as heretofore described,
decreed that the agreement be ultimately performed within 120
days from the finality of the order, now under appeal.
We conclude that in so doing, the Rizal court acted in accordance
with law, and, therefore, its order should be upheld, while the
contrary resolution of the Court of First Instance of Nueva Ecija
should be, and is, reversed.
In her brief, Tasiana Ongsingco also pleads that the time elapsed in
the appeal has affected her unfavorably, in that while the
purchasing power of the agreed price of P800,000 has diminished,
the value of the Jalajala property has increased. But the fact is that
her delay in receiving the payment of the agreed price for her
hereditary interest was primarily due to her attempts to nullify the
agreement (Annex "A") she had formally entered into with the
advice of her counsel, Attorney Panaguiton. And as to the
devaluation de facto of our currency, what We said in Dizon Rivera
vs. Dizon, L-24561, 30 June 1970, 33 SCRA 554, that "estates would
never be settled if there were to be a revaluation with every
subsequent fluctuation in the values of currency and properties of
the estate", is particularly opposite in the present case.
Coming now to Case G.R. No. L-28611, the issue is whether the
Hacienda de Jalajala (Poblacion), concededly acquired by Francisco
de Borja during his marriage to his first wife, Josefa Tangco, is the
husband's private property (as contended by his second spouse,
Tasiana Ongsingco), or whether it forms part of the conjugal
(ganancial) partnership with Josefa Tangco. The Court of First
Instance of Rizal (Judge Herminio Mariano, presiding) declared that

there was adequate evidence to overcome the presumption in favor


of its conjugal character established by Article 160 of the Civil
Code.
We are of the opinion that this question as between Tasiana
Ongsingco and Jose de Borja has become moot and academic, in
view of the conclusion reached by this Court in the two preceding
cases (G.R. No. L-28568), upholding as valid the cession of Tasiana
Ongsingco's eventual share in the estate of her late husband,
Francisco de Borja, for the sum of P800,000 with the accompanying
reciprocal quit-claims between the parties. But as the question may
affect the rights of possible creditors and legatees, its resolution is
still imperative.
It is undisputed that the Hacienda Jalajala, of around 4,363
hectares, had been originally acquired jointly by Francisco de Borja,
Bernardo de Borja and Marcelo de Borja and their title thereto was
duly registered in their names as co-owners in Land Registration
Case No. 528 of the province of Rizal, G.L.R.O. Rec. No. 26403 (De
Barjo vs. Jugo, 54 Phil. 465). Subsequently, in 1931, the Hacienda
was partitioned among the co-owners: the Punta section went to
Marcelo de Borja; the Bagombong section to Bernardo de Borja, and
the part in Jalajala proper (Poblacion) corresponded to Francisco de
Borja (V. De Borja vs. De Borja 101 Phil. 911, 932).
The lot allotted to Francisco was described as
Una Parcela de terreno en Poblacion, Jalajala: N.
Puang River; E. Hermogena Romero; S. Heirs of
Marcelo de Borja O. Laguna de Bay; containing an
area of 13,488,870 sq. m. more or less, assessed at
P297,410. (Record on Appeal, pages 7 and 105)
On 20 November 1962, Tasiana O. Vda. de Borja, as Administratrix
of the Testate Estate of Francisco de Borja, instituted a complaint in
the Court of First Instance of Rizal (Civil Case No. 7452) against Jose
de Borja, in his capacity as Administrator of Josefa Tangco
(Francisco de Borja's first wife), seeking to have the Hacienda
above described declared exclusive private property of Francisco,
while in his answer defendant (now appellant) Jose de Borja
claimed that it was conjugal property of his parents (Francisco de
Borja and Josefa Tangco), conformably to the presumption
established by Article 160 of the Philippine Civil Code (reproducing
Article 1407 of the Civil Code of 1889), to the effect that:
Art. 160. All property of the marriage is presumed to
belong to the conjugal partnership, unless it be
proved that it pertains exclusively to the husband or
to the wife.

Defendant Jose de Borja further counterclaimed for damages,


compensatory, moral and exemplary, as well as for attorney's fees.
After trial, the Court of First Instance of Rizal, per Judge Herminio
Mariano, held that the plaintiff had adduced sufficient evidence to
rebut the presumption, and declared the Hacienda de Jalajala
(Poblacion) to be the exclusive private property of the late
Francisco de Borja, and his Administratrix, Tasiana Ongsingco Vda.
de Borja, to be entitled to its possession. Defendant Jose de Borja
then appealed to this Court.
The evidence reveals, and the appealed order admits, that the
character of the Hacienda in question as owned by the conjugal
partnership De Borja-Tangco was solemnly admitted by the late
Francisco de Borja no less than two times: first, in the Reamended
Inventory that, as executor of the estate of his deceased wife Josefa
Tangco, he filed in the Special Proceedings No. 7866 of the Court of
First Instance of Rizal on 23 July 1953 (Exhibit "2"); and again, in
the Reamended Accounting of the same date, also filed in the
proceedings aforesaid (Exhibit "7"). Similarly, the plaintiff Tasiana
O. Vda. de Borja, herself, as oppositor in the Estate of Josefa
Tangco, submitted therein an inventory dated 7 September 1954
(Exhibit "3") listing the Jalajala property among the "Conjugal
Properties of the Spouses Francisco de Borja and Josefa Tangco".
And once more, Tasiana Ongsingco, as administratrix of the Estate
of Francisco de Borja, in Special Proceedings No. 832 of the Court of
First Instance of Nueva Ecija, submitted therein in December, 1955,
an inventory wherein she listed the Jalajala Hacienda under the
heading "Conjugal Property of the Deceased Spouses Francisco de
Borja and Josefa Tangco, which are in the possession of the
Administrator of the Testate Estate of the Deceased Josefa Tangco
in Special Proceedings No. 7866 of the Court of First Instance of
Rizal" (Exhibit "4").
Notwithstanding the four statements aforesaid, and the fact that
they are plain admissions against interest made by both Francisco
de Borja and the Administratrix of his estate, in the course of
judicial proceedings in the Rizal and Nueva Ecija Courts, supporting
the legal presumption in favor of the conjugal community, the
Court below declared that the Hacienda de Jalajala (Poblacion) was
not conjugal property, but the private exclusive property of the late
Francisco de Borja. It did so on the strength of the following
evidences: (a) the sworn statement by Francis de Borja on 6 August
1951 (Exhibit "F") that
He tomado possession del pedazo de terreno ya
delimitado (equivalente a 1/4 parte, 337 hectareas)

adjunto a mi terreno personal y exclusivo (Poblacion


de Jalajala, Rizal).
and (b) the testimony of Gregorio de Borja, son of Bernardo de
Borja, that the entire Hacienda had been bought at a foreclosure
sale for P40,100.00, of which amount P25,100 was contributed by
Bernardo de Borja and P15,000. by Marcelo de Borja; that upon
receipt of a subsequent demand from the provincial treasurer for
realty taxes the sum of P17,000, Marcelo told his brother Bernardo
that Francisco (son of Marcelo) wanted also to be a co-owner, and
upon Bernardo's assent to the proposal, Marcelo issue a check for
P17,000.00 to pay the back taxes and said that the amount would
represent Francisco's contribution in the purchase of the Hacienda.
The witness further testified that
Marcelo de Borja said that that money was entrusted
to him by Francisco de Borja when he was still a
bachelor and which he derived from his business
transactions. (Hearing, 2 February 1965, t.s.n., pages
13-15) (Emphasis supplied)
The Court below, reasoning that not only Francisco's sworn
statement overweighed the admissions in the inventories relied
upon by defendant-appellant Jose de Borja since probate courts can
not finally determine questions of ownership of inventoried
property, but that the testimony of Gregorio de Borja showed that
Francisco de Borja acquired his share of the original Hacienda with
his private funds, for which reason that share can not be regarded
as conjugal partnership property, but as exclusive property of the
buyer, pursuant to Article 1396(4) of Civil Code of 1889 and Article
148(4) of the Civil Code of the Philippines.
The following shall be the exclusive property of each spouse:
xxx xxx xxx
(4) That which is purchased with exclusive money of
the wife or of the husband.
We find the conclusions of the lower court to be untenable. In the
first place, witness Gregorio de Borja's testimony as to the source
of the money paid by Francisco for his share was plain hearsay,
hence inadmissible and of no probative value, since he was merely
repeating what Marcelo de Borja had told him (Gregorio). There is
no way of ascertaining the truth of the statement, since both
Marcelo and Francisco de Borja were already dead when Gregorio
testified. In addition, the statement itself is improbable, since there
was no need or occasion for Marcelo de Borja to explain to Gregorio
how and when Francisco de Borja had earned the P17,000.00
entrusted to Marcelo. A ring of artificiality is clearly discernible in
this portion of Gregorio's testimony.

As to Francisco de Borja's affidavit, Exhibit "F", the quoted portion


thereof (ante, page 14) does not clearly demonstrate that the "mi
terreno personal y exclusivo (Poblacion de Jalajala, Rizal) " refers
precisely to the Hacienda in question. The inventories (Exhibits 3
and 4) disclose that there were two real properties in Jalajala owned
by Francisco de Borja, one of 72.038 sq. m., assessed at P44,600,
and a much bigger one of 1,357.260.70 sq. m., which is evidently
the Hacienda de Jalajala (Poblacion). To which of these lands did the
affidavit of Francisco de Borja (Exhibit "F") refer to? In addition,
Francisco's characterization of the land as "mi terreno personal y
exclusivo" is plainly self-serving, and not admissible in the absence
of cross examination.
It may be true that the inventories relied upon by defendantappellant (Exhibits "2", "3", "4" and "7") are not conclusive on the
conjugal character of the property in question; but as already
noted, they are clear admissions against the pecuniary interest of
the declarants, Francisco de Borja and his executor-widow, Tasiana
Ongsingco, and as such of much greater probative weight than the
self-serving statement of Francisco (Exhibit "F"). Plainly, the legal
presumption in favor of the conjugal character of the Hacienda de
Jalajala (Poblacion) now in dispute has not been rebutted but
actually confirmed by proof. Hence, the appealed order should be
reversed and the Hacienda de Jalajala (Poblacion) declared property
of the conjugal partnership of Francisco de Borja and Josefa Tangco.
No error having been assigned against the ruling of the lower court
that claims for damages should be ventilated in the corresponding
special proceedings for the settlement of the estates of the
deceased, the same requires no pro announcement from this Court.
IN VIEW OF THE FOREGOING, the appealed order of the Court of
First Instance of Rizal in Case No. L-28040 is hereby affirmed; while
those involved in Cases Nos. L-28568 and L-28611 are reversed and
set aside. Costs against the appellant Tasiana Ongsingco Vda. de
Borja in all three (3) cases.
Concepcion, C.J., Makalintal, Zaldivar, Castro, Teehankee, Barredo,
Makasiar, Antonio and Esguerra, JJ., concur.
Fernando, J., took no part.
Footnotes
1 She died during the pendency of these appeals,
being substituted by Atty. Luis Panaguiton Jr.,
administrator of the estate (S.C. Resolution, 27
February 1970).

2 Annex A, Record on Appeal, G.R. No. L-28040, pp.


16-21.
3 Also: Osorio vs. Osorio Steamship Co., 41 Phil. 531;
Baun vs. Heirs of Baun, 53 Phil. 654; Barretto vs.
Tuason, 59 Phil. 845; Cuevas vs. Abesamis, 71 Phil.
147; Jayme vs. Gamboa, 75 Phil. 479; Iballe vs. Po.
4 Garcia vs. David, 67 Phil. 279; Jakosalem vs. Rafols,
73 Phil. 628.

G.R. No. L-41715 June 18, 1976


ROSALIO BONILLA (a minor) SALVACION BONILLA (a minor)
and PONCIANO BONILLA (their father) who represents the
minors, petitioners,
vs.
LEON BARCENA, MAXIMA ARIAS BALLENA, ESPERANZA
BARCENA, MANUEL BARCENA, AGUSTINA NERI, widow of
JULIAN TAMAYO and HON. LEOPOLDO GIRONELLA of the
Court of First Instance of Abra, respondents.
Federico Paredes for petitioners.
Demetrio V. Pre for private respondents.
MARTIN, J:
This is a petition for review 1 of the Order of the Court of First
Instance of Abra in Civil Case No. 856, entitled Fortunata Barcena
vs. Leon Barcena, et al., denying the motions for reconsideration of
its order dismissing the complaint in the aforementioned case.
On March 31, 1975 Fortunata Barcena, mother of minors Rosalio
Bonilla and Salvacion Bonilla and wife of Ponciano Bonilla, instituted
a civil action in the Court of First Instance of Abra, to quiet title over
certain parcels of land located in Abra.
On May 9, 1975, defendants filed a written motion to dismiss the
complaint, but before the hearing of the motion to dismiss, the
counsel for the plaintiff moved to amend the complaint in order to
include certain allegations therein. The motion to amend the
complaint was granted and on July 17, 1975, plaintiffs filed their
amended complaint.
On August 4, 1975, the defendants filed another motion to dismiss
the complaint on the ground that Fortunata Barcena is dead and,
therefore, has no legal capacity to sue. Said motion to dismiss was
heard on August 14, 1975. In said hearing, counsel for the plaintiff
confirmed the death of Fortunata Barcena, and asked for
substitution by her minor children and her husband, the petitioners
herein; but the court after the hearing immediately dismissed the

10

case on the ground that a dead person cannot be a real party in


interest and has no legal personality to sue.
On August 19, 1975, counsel for the plaintiff received a copy of the
order dismissing the complaint and on August 23, 1975, he moved
to set aside the order of the dismissal pursuant to Sections 16 and
17 of Rule 3 of the Rules of Court. 2
On August 28, 1975, the court denied the motion for
reconsideration filed by counsel for the plaintiff for lack of merit. On
September 1, 1975, counsel for deceased plaintiff filed a written
manifestation praying that the minors Rosalio Bonilla and Salvacion
Bonilla be allowed to substitute their deceased mother, but the
court denied the counsel's prayer for lack of merit. From the order,
counsel for the deceased plaintiff filed a second motion for
reconsideration of the order dismissing the complaint claiming that
the same is in violation of Sections 16 and 17 of Rule 3 of the Rules
of Court but the same was denied.
Hence, this petition for review.
The Court reverses the respondent Court and sets aside its order
dismissing the complaint in Civil Case No. 856 and its orders
denying the motion for reconsideration of said order of dismissal.
While it is true that a person who is dead cannot sue in court, yet
he can be substituted by his heirs in pursuing the case up to its
completion. The records of this case show that the death of
Fortunata Barcena took place on July 9, 1975 while the complaint
was filed on March 31, 1975. This means that when the complaint
was filed on March 31, 1975, Fortunata Barcena was still alive, and
therefore, the court had acquired jurisdiction over her person. If
thereafter she died, the Rules of Court prescribes the procedure
whereby a party who died during the pendency of the proceeding
can be substituted. Under Section 16, Rule 3 of the Rules of Court
"whenever a party to a pending case dies ... it shall be the duty of
his attorney to inform the court promptly of such death ... and to
give the name and residence of his executor, administrator,
guardian or other legal representatives." This duty was complied
with by the counsel for the deceased plaintiff when he manifested
before the respondent Court that Fortunata Barcena died on July 9,
1975 and asked for the proper substitution of parties in the case.
The respondent Court, however, instead of allowing the
substitution, dismissed the complaint on the ground that a dead
person has no legal personality to sue. This is a grave error. Article
777 of the Civil Code provides "that the rights to the succession are
transmitted from the moment of the death of the decedent." From
the moment of the death of the decedent, the heirs become the
absolute owners of his property, subject to the rights and

obligations of the decedent, and they cannot be deprived of their


rights thereto except by the methods provided for by law. 3 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. 4 The right of the heirs to the property of the deceased
vests in them even before judicial declaration of their being heirs in
the testate or intestate proceedings. 5 When Fortunata Barcena,
therefore, died her claim or right to the parcels of land in litigation
in Civil Case No. 856, was not extinguished by her death but was
transmitted to her heirs upon her death. Her heirs have thus
acquired interest in the properties in litigation and became parties
in interest in the case. There is, therefore, no reason for the
respondent Court not to allow their substitution as parties in
interest for the deceased plaintiff.
Under Section 17, Rule 3 of the Rules of Court "after a party dies
and the claim is not thereby extinguished, the court shall order,
upon proper notice, the legal representative of the deceased to
appear and be substituted for the deceased, within such time as
may be granted ... ." The question as to whether an action survives
or not depends on the nature of the action and the damage sued
for. 6 In the causes of action which survive the wrong complained
affects primarily and principally property and property rights, the
injuries to the person being merely incidental, while in the causes
of action which do not survive the injury complained of is to the
person, the property and rights of property affected being
incidental. 7 Following the foregoing criterion the claim of the
deceased plaintiff which is an action to quiet title over the parcels
of land in litigation affects primarily and principally property and
property rights and therefore is one that survives even after her
death. It is, therefore, the duty of the respondent Court to order the
legal representative of the deceased plaintiff to appear and to be
substituted for her. But what the respondent Court did, upon being
informed by the counsel for the deceased plaintiff that the latter
was dead, was to dismiss the complaint. This should not have been
done for under the same Section 17, Rule 3 of the Rules of Court, it
is even the duty of the court, if the legal representative fails to
appear, to order the opposing party to procure the appointment of
a legal representative of the deceased. In the instant case the
respondent Court did not have to bother ordering the opposing
party to procure the appointment of a legal representative of the
deceased because her counsel has not only asked that the minor
children be substituted for her but also suggested that their uncle
be appointed as guardian ad litem for them because their father is
busy in Manila earning a living for the family. But the respondent

11

Court refused the request for substitution on the ground that the
children were still minors and cannot sue in court. This is another
grave error because the respondent Court ought to have known
that under the same Section 17, Rule 3 of the Rules of Court, the
court is directed to appoint a guardian ad litem for the minor heirs.
Precisely in the instant case, the counsel for the deceased plaintiff
has suggested to the respondent Court that the uncle of the minors
be appointed to act as guardian ad litem for them. Unquestionably,
the respondent Court has gravely abused its discretion in not
complying with the clear provision of the Rules of Court in
dismissing the complaint of the plaintiff in Civil Case No. 856 and
refusing the substitution of parties in the case.
IN VIEW OF THE FOREGOING, the order of the respondent Court
dismissing the complaint in Civil Case No. 856 of the Court of First
Instance of Abra and the motions for reconsideration of the order of
dismissal of said complaint are set aside and the respondent Court
is hereby directed to allow the substitution of the minor children,
who are the petitioners therein for the deceased plaintiff and to
appoint a qualified person as guardianad litem for them. Without
pronouncement as to costs.
SO ORDERED.
Teehankee (Chairman), Makasiar, Esguerra and Muoz Palma, JJ.,
concur.
Footnotes
1 Which this Court treats as special civil action as per
its Resolution dated February 11, 1976.
2 Section 16. Duty of Attorney upon which death,
incapacity or incompetency of party. - Whenever a
party to a pending case dies, becomes incapacitated
or incompetent, it shall be the duty of his attorney to
inform the court promptly of such death, incapacity
or incompetency, and to give the name and
residence of his executor, administrator, guardian or
other legal representative.
Section 17. Death of party.After a party dies and
the claim is not thereby extinguished, the court shall
order, upon proper notice, the legal representative of
the deceased to appear and to be substituted for
deceased, within a period of thirty (30) days, or
within such time as may be granted. If the legal
representative fails to appear within said time, the
court may order the opposing party to procure the
appointment of a legal representative of the within a
time to be specified by the court, and the

representative shall immediately appear for and on


behalf of the interest of the deceased. The court
charges involved in procuring such appointment, if
defrayed by the opposing party, may be recovered as
costs. The heirs of the deceased may be allowed to
be substituted for the deceased, without requiring
the appointment of an executor or administrator and
the court may appoint guardian ad litem for the
minor heirs.
3 Buan vs. Heirs of Buan, 53 Phil. 654.
4 Ibarle vs. Po, 92 Phil. 721.
5 Morales, et al. vs. Ybanez, 98 Phil. 677.
6 Iron Gate Bank vs. Brady, 184 U.S. 665, 22 SCT
529, 46 L. ed. 739.
7 Wenber vs. St. Paul City Co., 97 Feb. 140 R. 39
C.C.A. 79.

12

JOSE CUENCO BORROMEO, petitioner,


vs.
HONORABLE COURT OF APPEALS, HON. FRANCISCO P.
BURGOS, As presiding Judge of the (now) Regional Trial
Court, Branch XV, Region VII, RICARDO V. REYES, as
Administrator of the Estate of Vito Borromeo in Sp. Proc.
No. 916-R, NUMERIANO G. ESTENZO and DOMINGO L.
ANTIGUA, respondents.
x - - - - - - - - - - - - - - - - - - - - - - -x
No. L-63818

G.R. No. L-41171

July 23, 1987

INTESTATE ESTATE OF THE LATE VITO BORROMEO,


PATROCINIO BORROMEO-HERRERA, petitioner,
vs.
FORTUNATO BORROMEO and HON. FRANCISCO P. BURGOS,
Judge of the Court of First Instance of Cebu, Branch
II, respondents.
x - - - - - - - - - - - - - - - - - - - - - - -x
No. L-55000

July 23, 1987

IN THE MATTER OF THE ESTATE OF VITO BORROMEO,


DECEASED, PILAR N. BORROMEO, MARIA B. PUTONG,
FEDERICO V. BORROMEO, JOSE BORROMEO, CONSUELO B.
MORALES, AND CANUTO V. BORROMEO, JR., heirs-appellants,
vs.
FORTUNATO BORROMEO, claimant-appellee.

July 23, 1987

DOMINGO ANTIGUA AND RICARDO V. REYES, as


Administrator of the Intestate Estate of VITO BORROMEO,
Sp. Proceedings No. 916-R, Regional Trial Court of Cebu,
joined by HON. JUDGE FRANCISCO P. BURGOS, as Presiding
Judge of Branch XV of the Regional Trial Court of Cebu, as a
formal party, and ATTYS. FRANCIS M. ZOSA, GAUDIOSO RUIZ
and NUMERIANO ESTENZO, petitioners,
vs.
HONORABLE INTERMEDIATE APPELLATE COURT, JOSE
CUENCO BORROMEO, and PETRA O. BORROMEO, respondents.
x - - - - - - - - - - - - - - - - - - - - - - -x
No. L-65995

July 23, 1987

x - - - - - - - - - - - - - - - - - - - - - - -x

PETRA BORROMEO, VITALIANA BORROMEO, AMELINDA


BORROMEO, and JOSE CUENCO BORROMEO,petitioners,
vs.
HONORABLE FRANCISCO P. BURGOS, Presiding Judge of
Branch XV, Regional Trial Court of Cebu; RICARDO V. REYES,
Administrator of the Estate of VITO BORROMEO in Sp. Proc.
No. 916-R; and DOMINGO L. ANTIGUA, respondents.

No. L-62895

GUTIERREZ, JR., J.:

July 23, 1987

13

These cases before us all stem from SP. PROC. NO. 916-R of the
then Court of First Instance of Cebu.
G.R. No. 41171

1. On August 29, 1967, the heirs of Jose Ma. Borromeo and


Cosme Borromeo filed a petition for declaration of heirs and
determination of heirship. There was no opposition filed
against said petition.

Vito Borromeo, a widower and permanent resident of Cebu City,


died on March 13, 1952, in Paranaque, Rizal at the age of 88 years,
without forced heirs but leaving extensive properties in the
province of Cebu.

2. On November 26, 1967, Vitaliana Borromeo also filed a


petition for declaration as heir. The heirs of Jose Ma.
Borromeo and Cosme Borromeo filed an opposition to this
petition.

On April 19, 1952, Jose Junquera filed with the Court of First
Instance of Cebu a petition for the probate of a one page document
as the last will and testament left by the said deceased, devising all
his properties to Tomas, Fortunato and Amelia, all surnamed
Borromeo, in equal and undivided shares, and designating Junquera
as executor thereof. The case was docketed as Special Proceedings
No. 916-R. The document, drafted in Spanish, was allegedly signed
and thumbmarked by the deceased in the presence of Cornelio
Gandionco, Eusebio Cabiluna, and Felixberto Leonardo who acted
as witnesses.

3. On December 13, 1967, Jose Barcenilla, Jr., Anecita


Ocampo de Castro, Ramon Ocampo, Lourdes Ocampo, Elena
Ocampo, Isagani Morre, Rosario Morre, Aurora Morre, Lila
Morre, Lamberto Morre, and Patricia Morre, filed a petition
for declaration of heirs and determination of shares. The
petition was opposed by the heirs of Jose and Cosme
Borromeo.

Oppositions to the probate of the will were filed. On May 28, 1960,
after due trial, the probate court held that the document presented
as the will of the deceased was a forgery.
On appeal to this Court, the decision of the probate court
disallowing the probate of the will was affirmed inTestate Estate of
Vito Borromeo, Jose H. Junquera et al. v. Crispin Borromeo et al. (19
SCRA 656).
The testate proceedings was converted into an intestate
proceedings. Several parties came before the court filing claims or
petitions alleging themselves as heirs of the intestate estate of Vito
Borromeo.

4. On December 2, 1968, Maria Borromeo Atega, Luz


Borromeo, Hermenegilda Borromeo Nonnenkamp, Rosario
Borromeo, and Fe Borromeo Queroz filed a claim. Jose
Cuenco Borromeo, Crispin Borromeo, Vitaliana Borromeo
and the heirs of Carlos Borromeo represented by Jose Talam
filed oppositions to this claim.
When the aforementioned petitions and claims were heard jointly,
the following facts were established:
1. Maximo Borromeo and Hermenegilda Galan, husband and wife
(the latter having predeceased the former), were survived by their
eight (8) children, namely,
Jose Ma. Borromeo
Cosme Borromeo

The following petitions or claims were filed:


Pantaleon Borromeo

14

Vito Borromeo

e. Antonieta Ocampo Barcenilla (deceased), survived by


claimant Jose Barcenilla, Jr.

Paulo Borromeo
Anecita Borromeo

5. Cosme Borromeo, another brother of Vito Borromeo, died before


the war and left the following children:

Quirino Borromeo and

a. Marcial Borromeo

Julian Borromeo

b. Carlos Borromeo,who died on Jan. 18, 1965,survived by


his wife, Remedios Alfonso, and his only daughter, Amelinda
Borromeo Talam

2. Vito Borromeo died a widower on March 13, 1952, without any


issue, and all his brothers and sisters predeceased him.

c. Asuncion Borromeo
3. Vito's brother Pantaleon Borromeo died leaving the following
children:

d. Florentina Borromeo, who died in 1948.

a. Ismaela Borromeo,who died on Oct. 16, 1939

e. Amilio Borromeo, who died in 1944.

b. Teofilo Borromeo, who died on Aug. 1, 1955, or 3 years


after the death of Vito Borromeo. He was married to
Remedios Cuenco Borromeo, who died on March 28, 1968.
He had an only son-Atty. Jose Cuenco Borromeo one of the
petitioners herein.

f. Carmen Borromeo, who died in 1925.


The last three died leaving no issue.
6. Jose Ma. Borromeo, another brother of Vito Borromeo, died
before the war and left the following children:

c. Crispin Borromeo, who is still alive.


a. Exequiel Borromeo,who died on December 29, 1949
4. Anecita Borromeo, sister of Vito Borromeo, died ahead of him
and left an only daughter, Aurora B. Ocampo, who died on Jan. 30,
1950 leaving the following children:

b. Canuto Borromeo, who died on Dec. 31, 1959, leaving the


following children:

a. Anecita Ocampo Castro

aa. Federico Borromeo

b. Ramon Ocampo

bb. Marisol Borromeo (Maria B. Putong, Rec. p. 85)

c. Lourdes Ocampo

cc. Canuto Borromeo, Jr.

d. Elena Ocampo, all living, and

dd. Jose Borromeo

15

ee. Consuelo Borromeo

5. Salud Borromeo

ff. Pilar Borromeo

6. Asuncion Borromeo

gg. Salud Borromeo

7. Marcial Borromeo

hh. Patrocinio Borromeo Herrera

8. Amelinda Borromeo de Talam, and

c. Maximo Borromeo, who died in July, 1948


d. Matilde Borromeo, who died on Aug. 6, 1946
e. Andres Borromeo, who died on Jan. 3, 1923, but survived
by his children:
aa. Maria Borromeo Atega
bb. Luz Borromeo
cc. Hermenegilda Borromeo Nonnenkamp
dd. Rosario Borromeo
ee. Fe Borromeo Queroz
On April 10, 1969, the trial court, invoking Art. 972 of the Civil
Code, issued an order declaring the following, to the exclusion of all
others, as the intestate heirs of the deceased Vito Borromeo:
1. Jose Cuenco Borromeo
2. Judge Crispin Borromeo
3. Vitaliana Borromeo
4. Patrocinio Borromeo Herrera

9. The heirs of Canuto Borromeo


The court also ordered that the assets of the intestate estate of Vito
Borromeo shall be divided into 4/9 and 5/9 groups and distributed
in equal and equitable shares among the 9 abovenamed declared
intestate heirs.
On April 21 and 30, 1969, the declared heirs, with the exception of
Patrocinio B. Herrera, signed an agreement of partition of the
properties of the deceased Vito Borromeo which was approved by
the trial court, in its order of August 15, 1969. In this same order,
the trial court ordered the administrator, Atty Jesus Gaboya, Jr., to
partition the properties of the deceased in the way and manner
they are divided and partitioned in the said Agreement of Partition
and further ordered that 40% of the market value of the 4/9 and 5/9
of the estate shall be segregated. All attorney's fees shall be taken
and paid from this segregated portion.
On August 25, 1972, respondent Fortunato Borromeo, who had
earlier claimed as heir under the forged will, filed a motion before
the trial court praying that he be declared as one of the heirs of the
deceased Vito Borromeo, alleging that he is an illegitimate son of
the deceased and that in the declaration of heirs made by the trial
court, he was omitted, in disregard of the law making him a forced
heir entitled to receive a legitime like all other forced heirs. As an
acknowledged illegitimate child, he stated that he was entitled to a
legitime equal in every case to four-fifths of the legitime of an
acknowledged natural child.

16

Finding that the motion of Fortunato Borromeo was already barred


by the order of the court dated April 12, 1969 declaring the persons
named therein as the legal heirs of the deceased Vito Borromeo,
the court dismissed the motion on June 25, 1973.
Fortunato Borromeo filed a motion for reconsideration. In the
memorandum he submitted to support his motion for
reconsideration, Fortunato changed the basis for his claim to a
portion of the estate. He asserted and incorporated a Waiver of
Hereditary Rights dated July 31, 1967, supposedly signed by Pilar
N. Borromeo, Maria B. Putong, Jose Borromeo, Canuto V. Borromeo,
Jr., Salud Borromeo, Patrocinio Borromeo-Herrera, Marcial
Borromeo, Asuncion Borromeo, Federico V. Borromeo, Consuelo B.
Morales, Remedios Alfonso and Amelinda B. Talam In the waiver,
five of the nine heirs relinquished to Fortunato their shares in the
disputed estate. The motion was opposed on the ground that the
trial court, acting as a probate court, had no jurisdiction to take
cognizance of the claim; that respondent Fortunato Borromeo is
estopped from asserting the waiver agreement; that the waiver
agreement is void as it was executed before the declaration of
heirs; that the same is void having been executed before the
distribution of the estate and before the acceptance of the
inheritance; and that it is void ab initio and inexistent for lack of
subject matter.
On December 24, 1974, after due hearing, the trial court
concluding that the five declared heirs who signed the waiver
agreement assigning their hereditary rights to Fortunato Borromeo
had lost the same rights, declared the latter as entitled to 5/9 of
the estate of Vito Borromeo.
A motion for reconsideration of this order was denied on July 7,
1975.
In the present petition, the petitioner seeks to annul and set aside
the trial court's order dated December 24, 1974, declaring
respondent Fortunato Borromeo entitled to 5/9 of the estate of Vito

Borromeo and the July 7, 1975 order, denying the motion for
reconsideration.
The petitioner argues that the trial court had no jurisdiction to take
cognizance of the claim of respondent Fortunato Borromeo because
it is not a money claim against the decedent but a claim for
properties, real and personal, which constitute all of the shares of
the heirs in the decedent's estate, heirs who allegedly waived their
rights in his favor. The claim of the private respondent under the
waiver agreement, according to the petitioner, may be likened to
that of a creditor of the heirs which is improper. He alleges that the
claim of the private respondent under the waiver agreement was
filed beyond the time allowed for filing of claims as it was filed only
sometime in 1973, after there had been a declaration of heirs (April
10, 1969), an agreement of partition (April 30, 1969), the approval
of the agreement of partition and an order directing the
administrator to partition the estate (August 15, 1969), when in a
mere memorandum, the existence of the waiver agreement was
brought out.
It is further argued by the petitioner that the document entitled "
waiver of Hereditary Rights" executed on July 31, 1967, aside from
having been cancelled and revoked on June 29, 1968, by Tomas L.
Borromeo, Fortunato Borromeo and Amelia Borromeo, is without
force and effect because there can be no effective waiver of
hereditary rights before there has been a valid acceptance of the
inheritance the heirs intend to transfer. Pursuant to Article 1043 of
the Civil Code, to make acceptance or repudiation of inheritance
valid, the person must be certain of the death of the one from
whom he is to inherit and of his right to the inheritance. Since the
petitioner and her co-heirs were not certain of their right to the
inheritance until they were declared heirs, their rights were,
therefore, uncertain. This view, according to the petitioner, is also
supported by Article 1057 of the same Code which directs heirs,
devicees, and legatees to signify their acceptance or repudiation
within thirty days after the court has issued an order for the
distribution of the estate.

17

Respondent Fortunato Borromeo on the other hand, contends that


under Article 1043 of the Civil Code there is no need for a person to
be first declared as heir before he can accept or repudiate an
inheritance. What is required is that he must first be certain of the
death of the person from whom he is to inherit and that he must be
certain of his right to the inheritance. He points out that at the time
of the signing of the waiver document on July 31, 1967, the
signatories to the waiver document were certain that Vito Borromeo
was already dead as well as of their rights to the inheritance as
shown in the waiver document itself.
With respect to the issue of jurisdiction of the trial court to pass
upon the validity of the waiver of hereditary rights, respondent
Borromeo asserts that since the waiver or renunciation of
hereditary rights took place after the court assumed jurisdiction
over the properties of the estate it partakes of the nature of a
partition of the properties of the estate needing approval of the
court because it was executed in the course of the proceedings. lie
further maintains that the probate court loses jurisdiction of the
estate only after the payment of all the debts of the estate and the
remaining estate is distributed to those entitled to the same.
The prevailing jurisprudence on waiver of hereditary rights is that
"the properties included in an existing inheritance cannot be
considered as belonging to third persons with respect to the heirs,
who by fiction of law continue the personality of the former. Nor do
such properties have the character of future property, because the
heirs acquire a right to succession from the moment of the death of
the deceased, by principle established in article 657 and applied by
article 661 of the Civil Code, according to which the heirs succeed
the deceased by the mere fact of death. More or less, time may
elapse from the moment of the death of the deceased until the
heirs enter into possession of the hereditary property, but the
acceptance in any event retroacts to the moment of the death, in
accordance with article 989 of the Civil Code. The right is vested,
although conditioned upon the adjudication of the corresponding
hereditary portion." (Osorio v. Osorio and Ynchausti Steamship Co.,
41 Phil., 531). The heirs, therefore, could waive their hereditary

rights in 1967 even if the order to partition the estate was issued
only in 1969.
In this case, however, the purported "Waiver of Hereditary Rights"
cannot be considered to be effective. For a waiver to exist, three
elements are essential: (1) the existence of a right; (2) the
knowledge of the existence thereof; and (3) an intention to
relinquish such right. (People v. Salvador, (CA) 53 O.G. No. 22, p.
8116, 8120). The intention to waive a right or advantage must be
shown clearly and convincingly, and when the only proof of
intention rests in what a party does, his act should be so manifestly
consistent with, and indicative of an intent to, voluntarily relinquish
the particular right or advantage that no other reasonable
explanation of his conduct is possible (67 C.J., 311). (Fernandez v.
Sebido, et al., 70 Phil., 151, 159).
The circumstances of this case show that the signatories to the
waiver document did not have the clear and convincing intention to
relinquish their rights, Thus: (1) On October 27, 1967. Fortunato,
Tomas, and Amelia Borromeo filed a pleading entitled "Compliance"
wherein they submitted a proposal for the amicable settlement of
the case. In that Compliance, they proposed to concede to all the
eight (8) intestate heirs of Vito Borromeo all properties, personal
and real, including all cash and sums of money in the hands of the
Special Administrator, as of October 31, 1967, not contested or
claimed by them in any action then pending in the Court of First
Instance of Cebu. In turn, the heirs would waive and concede to
them all the 14 contested lots. In this document, the respondent
recognizes and concedes that the petitioner, like the other
signatories to the waiver document, is an heir of the deceased Vito
Borromeo, entitled to share in the estate. This shows that the
"Waiver of Hereditary Rights" was never meant to be what the
respondent now purports it to be. Had the intent been otherwise,
there would not be any reason for Fortunato, Tomas, and Amelia
Borromeo to mention the heirs in the offer to settle the case
amicably, and offer to concede to them parts of the estate of the
deceased; (2) On April 21 and 30, 1969, the majority of the
declared heirs executed an Agreement on how the estate they

18

inherited shall be distributed. This Agreement of Partition was


approved by the trial court on August 15, 1969; (3) On June 29,
1968, the petitioner, among others, signed a document entitled
Deed of Assignment" purporting to transfer and assign in favor of
the respondent and Tomas and Amelia Borromeo all her (Patrocinio
B. Herrera's) rights, interests, and participation as an intestate heir
in the estate of the deceased Vito Borromeo. The stated
consideration for said assignment was P100,000.00; (4) On the
same date, June 29, 1968, the respondent Tomas, and Amelia
Borromeo (assignees in the aforementioned deed of assignment) in
turn executed a "Deed of Reconveyance" in favor of the heirsassignors named in the same deed of assignment. The stated
consideration was P50,000.00; (5) A Cancellation of Deed of
Assignment and Deed of Reconveyance was signed by Tomas
Borromeo and Amelia Borromeo on October 15, 1968, while
Fortunato Borromeo signed this document on March 24, 1969.
With respect to the issue of jurisdiction, we hold that the trial court
had jurisdiction to pass upon the validity of the waiver agreement.
It must be noted that in Special Proceedings No. 916-R the lower
court disallowed the probate of the will and declared it as fake.
Upon appeal, this Court affirmed the decision of the lower court on
March 30, 1967, in G.R. No. L-18498. Subsequently, several parties
came before the lower court filing claims or petitions alleging
themselves as heirs of the intestate estate of Vito Borromeo. We
see no impediment to the trial court in exercising jurisdiction and
trying the said claims or petitions. Moreover, the jurisdiction of the
trial court extends to matters incidental and collateral to the
exercise of its recognized powers in handling the settlement of the
estate.
In view of the foregoing, the questioned order of the trial court
dated December 24, 1974, is hereby SET ASIDE.
G.R. No. 55000
This case was originally an appeal to the Court of Appeals from an
order of the Court of First Instance of Cebu, Branch 11, dated

December 24, 1974, declaring the waiver document earlier


discussed in G.R. No. 41171 valid. The appellate court certified this
case to this Court as the questions raised are all of law.
The appellants not only assail the validity of the waiver agreement
but they also question the jurisdiction of the lower court to hear
and decide the action filed by claimant Fortunato Borromeo.
The appellants argue that when the waiver of hereditary right was
executed on July 31, 1967, Pilar Borromeo and her children did not
yet possess or own any hereditary right in the intestate estate of
the deceased Vito Borromeo because said hereditary right was only
acquired and owned by them on April 10, 1969, when the estate
was ordered distributed.
They further argue that in contemplation of law, there is no such
contract of waiver of hereditary right in the present case because
there was no object, which is hereditary right, that could be the
subject matter of said waiver, and, therefore, said waiver of
hereditary right was not only null and void ab initio but was
inexistent.
With respect to the issue of jurisdiction, the appellants contend that
without any formal pleading filed by the lawyers of Fortunato
Borromeo for the approval of the waiver agreement and without
notice to the parties concerned, two things which are necessary so
that the lower court would be vested with authority and jurisdiction
to hear and decide the validity of said waiver agreement,
nevertheless, the lower court set the hearing on September 25,
1973 and without asking for the requisite pleading. This resulted in
the issuance of the appealed order of December 24, 1974, which
approved the validity of the waiver agreement. The appellants
contend that this constitutes an error in the exercise of jurisdiction.
The appellee on the other hand, maintains that by waiving their
hereditary rights in favor of Fortunato Borromeo, the signatories to
the waiver document tacitly and irrevocably accepted the
inheritance and by virtue of the same act, they lost their rights

19

because the rights from that moment on became vested in


Fortunato Borromeo.
It is also argued by the appellee that under Article 1043 of the Civil
Code there is no need for a person to be declared as heir first
before he can accept or repudiate an inheritance. What is required
is that he is certain of the death of the person from whom he is to
inherit, and of his right to the inheritance. At the time of the signing
of the waiver document on July 31, 1967, the signatories to the
waiver document were certain that Vito Borromeo was already
dead and they were also certain of their right to the inheritance as
shown by the waiver document itself.
On the allegation of the appellants that the lower court did not
acquire jurisdiction over the claim because of the alleged lack of a
pleading invoking its jurisdiction to decide the claim, the appellee
asserts that on August 23, 1973, the lower court issued an order
specifically calling on all oppositors to the waiver document to
submit their comments within ten days from notice and setting the
same for hearing on September 25, 1973. The appellee also avers
that the claim as to a 5/9 share in the inheritance involves no
question of title to property and, therefore, the probate court can
decide the question.
The issues in this case are similar to the issues raised in G.R. No.
41171. The appellants in this case, who are all declared heirs of the
late Vito Borromeo are contesting the validity of the trial court's
order dated December 24, 1974, declaring Fortunato Borromeo
entitled to 5/9 of the estate of Vito Borromeo under the waiver
agreement.
As stated in G.R. No. 41171, the supposed waiver of hereditary
rights can not be validated. The essential elements of a waiver,
especially the clear and convincing intention to relinquish
hereditary rights, are not found in this case.

consideration for the heirs giving to the respondent and to Tomas,


and Amelia Borromeo the fourteen (14) contested lots was filed
inspite of the fact that on July 31, 1967, some of the heirs had
allegedly already waived or sold their hereditary rights to the
respondent.
The agreement on how the estate is to be distributed, the June 29,
1968 deed of assignment, the deed of reconveyance, and the
subsequent cancellation of the deed of assignment and deed of
reconveyance all argue against the purported waiver of hereditary
rights.
Concerning the issue of jurisdiction, we have already stated in G.R.
No. 41171 that the trial court acquired jurisdiction to pass upon the
validity of the waiver agreement because the trial court's
jurisdiction extends to matters incidental and collateral to the
exercise of its recognized powers in handling the settlement of the
estate.
The questioned order is, therefore, SET ASIDE.
G.R. No. 62895
A motion dated April 28, 1972, was filed by Atty. Raul M. Sesbreno,
representative of some of the heirs-distributees, praying for the
immediate closure of Special Proceeding No. 916-R. A similar
motion dated May 29, 1979 was filed by Atty. Jose Amadora. Both
motions were grounded on the fact that there was nothing more to
be done after the payment of all the obligations of the estate since
the order of partition and distribution had long become final.
Alleging that respondent Judge Francisco P. Burgos failed or refused
to resolve the aforesaid motions, petitioner Jose Cuenco Borromeofiled a petition for mandamus before the Court of Appeals to
compel the respondent judge to terminate and close Special
Proceedings No. 916-R.

The October 27, 1967 proposal for an amicable settlement


conceding to all the eight (8) intestate heirs various properties in

20

Finding that the inaction of the respondent judge was due to


pending motions to compel the petitioner, as co-administrator, to
submit an inventory of the real properties of the estate and an
accounting of the cash in his hands, pending claims for attorney's
fees, and that mandamus will not lie to compel the performance of
a discretionary function, the appellate court denied the petition on
May 14, 1982. The petitioner's motion for reconsideration was
likewise denied for lack of merit. Hence, this petition.
The petitioner's stand is that the inaction of the respondent judge
on the motion filed on April 28, 1972 for the closure of the
administration proceeding cannot be justified by the filing of the
motion for inventory and accounting because the latter motion was
filed only on March 2, 1979. He claimed that under the then
Constitution, it is the duty of the respondent judge to decide or
resolve a case or matter within three months from the date of its
submission.
The respondents contend that the motion to close the
administration had already been resolved when the respondent
judge cancelled all settings of all incidents previously set in his
court in an order dated June 4, 1979, pursuant to the resolution and
restraining order issued by the Court of Appeals enjoining him to
maintain status quo on the case.
As stated in G.R. No. 41171, on April 21 and 30, 1969, the declared
heirs, with the exception of Patrocinio B. Herrera, signed an
agreement of partition of the properties of the deceased Vito
Borromeo which was approved by the trial court, in its order dated
August 15, 1969. In this same order, the trial court ordered the
administrator, Atty. Jesus Gaboya, Jr., to partition the properties of
the deceased in the way and manner they are divided and
partitioned in the said Agreement of Partition and further ordered
that 40% of the market value of the 4/9 and 5/9 of the estate shall
be segregated and reserved for attorney's fees.
According to the manifestation of Judge Francisco Burgos dated July
5, 1982, (p. 197, Rollo, G. R. No. 41171) his court has not finally

distributed to the nine (9) declared heirs the properties due to the
following circumstances:
1. The court's determination of the market value of the
estate in order to segregate the 40% reserved for attorney's
fees;
2. The order of December 24, 1974, declaring Fortunato
Borromeo as beneficiary of the 5/9 of the estate because of
the waiver agreement signed by the heirs representing the
5/9 group which is still pending resolution by this Court (G.R.
No. 4117 1);
3. The refusal of administrator Jose Cuenco Borromeo to
render his accounting; and
4. The claim of Marcela Villegas for 1/2 of the estate causing
annotations of notices of lis pendens on the different titles of
the properties of the estate.
Since there are still real properties of the estate that were not vet
distributed to some of the declared heirs, particularly the 5/9 group
of heirs due to the pending resolution of the waiver agreement, this
Court in its resolution of June 15, 1983, required the judge of the
Court of First Instance of Cebu, Branch 11, to expedite the
determination of Special Proceedings No. 916-R and ordered the coadministrator Jose Cuenco Borromeo to submit an inventory of real
properties of the estate and to render an accounting of cash and
bank deposits realized from rents of several properties.
The matter of attorney's fees shall be discussed in G.R. No. 65995.
Considering the pronouncements stated in:
1. G.R. No. 41171 & G.R. No. 55000, setting aside the Order
of the trial court dated December 24, 1974;

21

2. G.R. No. 63818, denying the petition for review seeking to


modify the decision of the Intermediate Appellate Court
insofar as it disqualifies and inhibits Judge Francisco P.
Burgos from further hearing the Intestate Estate of Vito
Borromeo and ordering the remand of the case to the
Executive,Judge of the Regional trial Court of Cebu for reraffling; and
3. G.R. No. 65995, granting the petition to restrain the
respondents from further acting on any and all incidents in
Special proceedings No. 916-11 because of the affirmation
of the decision of the Intermediate Appellate Court in G.R.
No. 63818.
the trial court may now terminate and close Special Proceedings
No. 916-R, subject to the submission of an inventory of the real
properties of the estate and an accounting of the call and bank
deposits of the petitioner, as co-administrator of the estate, if he
has not vet done so, as required by this Court in its Resolution
dated June 15, 1983. This must be effected with all deliberate
speed.

various motions for reconsideration from heirs-distributees


who contended that as owners they cannot be deprived of
their titles for the flimsy reasons advanced by Atty, Antigua.
In view of the motions for reconsideration, Atty Antigua
ultimately withdraw his motions for production of titles.
7. The incident concerning the production of titles triggered
another incident involving Atty. Raul H. Sesbreno who was
then the counsel of herein movants Petra O. Borromeo and
Amelinda B. Talam In connection with said incident, Atty.
Sesbreno filed a pleading which the tion. presiding, Judge
Considered direct contempt because among others, Atty.
Sesbreno insinuated that the Hon. Presiding Judge stands to
receive "fat commission" from the sale of the entire
property. Indeed, Atty. Sesbreno was seriously in danger of
being declared in contempt of court with the dim prospect of
suspension from the practice of his profession. But obviously
to extricate himself from the prospect of contempt and
suspension. Atty. Sesbreno chose rapproachment and
ultimately joined forces with Atty. Antigua, et al., who,
together, continued to harass administrator
xxx

G.R. No. 63818


On June 9, 1979, respondents Jose Cuenco Borromeo and Petra 0.
Borromeo filed a motion for inhibition in the Court of First Instance
of Cebu, Branch 11, presided over by Judge Francisco P. Burgos to
inhibit the judge from further acting in Special Proceedings No. 916R. 'The movants alleged, among others, the following:
xxx

xxx

xxx

6. To keep the agitation to sell moving, Atty. Antigua filed a


motion for the production of the certificates of title and to
deposit the same with the Branch Clerk of Court,
presumably for the ready inspection of interested buyers.
Said motion was granted by the Hon. Court in its order of
October 2, 1978 which, however, became the subject of

xxx

xxx

9. The herein movants are informed and so they allege, that


a brother of the Hon. Presiding Judge is married to a sister of
Atty. Domingo L. Antigua.
10. There is now a clear tug of war bet ween Atty. Antigua,
et al. who are agitating for the sale of the entire estate or to
buy out the individual heirs, on the one hand, and the herein
movants, on the other, who are not willing to sell their
distributive shares under the terms and conditions presently
proposed. In this tug of war, a pattern of harassment has
become apparent against the herein movants, especially
Jose Cuenco Borromeo. Among the harassments employed
by Atty Antigua et al. are the pending motions for the
removal of administrator Jose Cuenco Borromeo, the

22

subpoena duces tecum issued to the bank which seeks to


invade into the privacy of the personal account of Jose
Cuenco Borromeo, and the other matters mentioned in
paragraph 8 hereof. More harassment motions are expected
until the herein movants shall finally yield to the proposed
sale. In such a situation, the herein movants beg for an
entirely independent and impartial judge to pass upon the
merits of said incidents.
11. Should the Hon. Presiding Judge continue to sit and take
cognizance of this proceeding, including the incidents
above-mentioned, he is liable to be misunderstood as being
biased in favor of Atty Antigua, et al. and prejudiced against
the herein movants. Incidents which may create this
impression need not be enumerated herein. (pp. 39-41,
Rollo)
The motion for inhibition was denied by Judge Francisco P. Burgos.
Their motion for reconsideration having been denied, the private
respondents filed a petition for certiorari and/or prohibition with
preliminary injunction before the Intermediate Appellate Court.
In the appellate court, the private respondents alleged, among
others, the following:
xxx

xxx

xxx

16. With all due respect, petitioners regret the necessity of


having to state herein that respondent Hon. Francisco P.
Burgos has shown undue interest in pursing the sale
initiated by Atty. Domingo L. Antigua, et al. Significantly, a
brother of respondent Hon. Francisco P. Burgos is married to
a sister of Atty. Domingo L. Antigua.
17. Evidence the proposed sale of the entire properties of
the estate cannot be legally done without the conformity of
the heirs-distributees because the certificates of title are
already registered in their names Hence, in pursuit of the

agitation to sell, respondent Hon. Francisco P. Burgos urged


the heirs-distributees to sell the entire property based on
the rationale that proceeds thereof deposited in the bank
will earn interest more than the present income of the so
called estate. Most of the heirs-distributees, however. have
been petitioner timid to say their piece. Only the 4/9 group
of heirs led by Jose Cuenco Borromeo have had the courage
to stand up and refuse the proposal to sell clearly favored by
respondent Hon. Francisco P. Burgos.
xxx

xxx

xxx

20. Petitioners will refrain from discussing herein the merits


of the shotgun motion of Atty. Domingo L. Antigua as well as
other incidents now pending in the court below which smack
of harassment against the herein petitioners. For, regardless
of the merits of said incidents, petitioners respectfully
contend that it is highly improper for respondent Hon.
Francisco P. Burgos to continue to preside over Sp. Proc. No.
916-R by reason of the following circumstances:
(a) He has shown undue interest in the sale of the
properties as initiated by Atty. Domingo L. Antigua
whose sister is married to a brother of respondent.
(b) The proposed sale cannot be legally done without
the conformity of the heirs-distributees, and
petitioners have openly refused the sale, to the great
disappointment of respondent.
(c) The shot gun motion of Atty. Antigua and similar
incidents are clearly intended to harass and
embarrass administrator Jose Cuenco Borromeo in
order to pressure him into acceding to the proposed
sale.
(d) Respondent has shown bias and prejudice against
petitioners by failing to resolve the claim for

23

attorney's fees filed by Jose Cuenco Borromeo and


the late Crispin Borromeo. Similar claims by the other
lawyers were resolved by respondent after
petitioners refused the proposed sale. (pp. 41-43,
Rollo)
On March 1, 1983, the appellate court rendered its decision
granting the petition for certiorari and/or prohibition and
disqualifying Judge Francisco P. Burgos from taking further
cognizance of Special Proceedings No. 916-R. The court also
ordered the transmission of the records of the case to the Executive
Judge of the Regional Trial Court of Region VII for re-raffling.
A motion for reconsideration of the decision was denied by the
appellate court on April 11, 1983. Hence, the present petition for
review seeking to modify the decision of the Intermediate Appellate
Court insofar as it disqualifies and inhibits Judge Francisco P. Burgos
from further hearing the case of Intestate Estate of Vito Borromeo
and orders the remand of the case to the Executive Judge of the
Regional Trial Court of Cebu for re-raffling.
The principal issue in this case has become moot and academic
because Judge Francisco P. Burgos decided to retire from the
Regional Trial Court of Cebu sometime before the latest
reorganization of the judiciary. However, we decide the petition on
its merits for the guidance of the judge to whom this case will be
reassigned and others concerned.
The petitioners deny that respondent Jose Cuenco Borromeo has
been harassed. They contend that Judge Burgos has benn shown
unusual interest in the proposed sale of the entire estate for
P6,700,000.00 in favor of the buyers of Atty. Antigua. They claim
that this disinterest is shown by the judge's order of March 2, 1979
assessing the property of the estate at P15,000,000.00. They add
that he only ordered the administrator to sell so much of the
properties of the estate to pay the attorney's fees of the lawyersclaimants. To them, the inhibition of Judge Burgos would have been
unreasonable because his orders against the failure of Jose Cuenco

Borromeo, as administrator, to give an accounting and inventory of


the estate were all affirmed by the appellate court. They claim that
the respondent court, should also have taken judicial notice of the
resolution of this Court directing the said judge to "expedite the
settlement and adjudication of the case" in G.R. No. 54232. And
finally, they state that the disqualification of judge Burgos would
delay further the closing of the administration proceeding as he is
the only judge who is conversant with the 47 volumes of the
records of the case.
Respondent Jose Cuenco Borromeo, to show that he had been
harassed. countered that Judge Burgos appointed Ricardo V. Reyes
as co-administrator of the estate on October 11, 1972, yet
Borromeo was singled out to make an accounting of what t he was
supposed to have received as rentals for the land upon which the
Juliana Trade Center is erected, from January, 1977 to February
1982, inclusive, without mentioning the withholding tax for the
Bureau of Internal Revenue. In order to bolster the agitation to sell
as proposed by Domingo L. Antigua, Judge Burgos invited Antonio
Barredo, Jr., to a series of conferences from February 26 to 28,
1979. During the conferences, Atty. Antonio Barredo, Jr., offered to
buy the shares of the heirs-distributees presumably to cover up the
projected sale initiated by Atty. Antigua.
On March 2, 1979, or two days after the conferences, a motion was
filed by petitioner Domingo L. Antigua praying that Jose Cuenco
Borromeo be required to file an inventory when he has already filed
one to account for cash, a report on which the administrators had
already rendered: and to appear and be examined under oath in a
proceeding conducted by Judge Burgos lt was also prayed that
subpoena duces tecum be issued for the appearance of the
Manager of the Consolidated Bank and Trust Co., bringing all the
bank records in the name of Jose Cuenco Borromeo jointly with his
wife as well as the appearance of heirs-distributees Amelinda
Borromeo Talam and another heir distributee Vitaliana Borromeo.
Simultaneously with the filing of the motion of Domingo Antigua,
Atty. Raul H. Sesbreno filed a request for the issuance of
subpoena duces tecum to the Manager of Consolidated Bank and

24

'Trust Co., Inc.; Register of Deeds of Cebu City; Register of Deeds


for the Province of Cebu and another subpoena duces tecum to
Atty. Jose Cuenco Borromeo.
On the same date, the Branch Clerk of Court issued a subpoena
duces tecum to the Managert of the bank, the Register of deeds for
the City of Cebu, the Register of Deeds for the Province, of Cebu.
and to Jose Cuenco Borromeo.
On the following day, March 3, 1979, Atty Gaudioso v. Villagonzalo
in behalf of the heirs of Marcial Borromeo who had a common cause
with Atty Barredo, Jr., joined petitioner Domingo L. Antigua by filing
a motion for relief of the administrator.
On March 5, 1979, Atty. Villagonzalo filed a request for the issuance
of a subpoena duces tecum to private respondent Jose Cuenco
Borromeo to bring and produce all the owners" copies of the titles
in the court presided order by Judge Burgos.
Consequently. the Branch Clerk of Court issued a subpoena duces
tecum commanding Atty. Jose Cuenco Borromeo to bring and
produce the titles in court.
All the above-incidents were set for hearing on June 7, 1979 but on
June 14, 1979, before the date of the hearing, Judge Burgos issued
an order denying the private respondents' motion for
reconsideration and the motion to quash the subpoena.1avvphi1
It was further argued by the private respondents that if ,judge
Francisco P. Burgos is not inhibited or disqualified from trying Sp.
Proc. No. 916-R, there would be a miscarriage of justice Because for
the past twelve years, he had not done anything towards the
closure of the estate proceedings except to sell the properties of
the heirs-distributees as initiated by petitioner Domingo L. Antigua
at 6.7 million pesos while the Intestate Court had already evaluated
it at 15 million pesos.

The allegations of the private respondents in their motion for


inhibition, more specifically, the insistence of the trial judge to sell
the entire estate at P6,700,000.00, where 4/9 group of heirs
objected, cannot easily be ignored. Suspicion of partiality on the
part of a trial judge must be avoided at all costs. In the case
of Bautista v. Rebeuno(81 SCRA 535), this Court stated:
... The Judge must maintain and preserve the trust and faith
of the parties litigants. He must hold himself above reproach
and suspicion. At the very first sign of lack of faith and trust
to his actions, whether well grounded or not, the Judge has
no other alternative but inhibit himself from the case. A
judge may not be legally Prohibited from sitting in a
litigation, but when circumstances appear that will induce
doubt to his honest actuations and probity in favor or of
either partly or incite such state of mind, he should conduct
a careful self-examination. He should exercise his discretion
in a way that the people's faith in the Courts of Justice is not
impaired, "The better course for the Judge under such
circumstances is to disqualify himself "That way he avoids
being misunderstood, his reputation for probity and
objectivity is preserve ed. what is more important, the Ideal
of impartial administration of justice is lived up to.
In this case, the fervent distrust of the private respondents is based
on sound reasons. As Earlier stated, however, the petition for
review seeking to modify the decision of the Intermediate Appellate
Court insofar as it disqualifies and inhibits Judge Francisco P. Burgos
from further hearing the Intestate Estate of Vito Borromeo case and
ordering the remand of the case to the Executive Judge of the
Regional Trial Court for re-raffling should be DENIED for the decision
is not only valid but the issue itself has become moot and
academic.
G.R. No. 65995
The petitioners seek to restrain the respondents from further acting
on any and all incidents in Special Proceedings No. 916-R during

25

the pendency of this petition and No. 63818. They also pray that all
acts of the respondents related to the said special proceedings
after March 1, 1983 when the respondent Judge was disqualified by
the appellate court be declared null and void and without force and
effect whatsoever.

excessive amount of 40% of the market value of the estate from


which attorney's fees shall be taken and paid should be deleted.

The petitioners state that the respondent Judge has set for hearing
all incidents in Special Proceedings No. 916-R, including the
reversion from the heirs-distributees to the estate, of the
distributed properties already titled in their names as early as
1970, notwithstanding the pending inhibition case elevated before
this Court which is docketed as G.R. No. 63818.

WHEREFORE,

The petitioners further argue that the present status of Special


Proceeding No. 916-R requires only the appraisal of the attorney's
fees of the lawyers-claimants who were individually hired by their
respective heirs-clients, so their attorney's fees should be legally
charged against their respective clients and not against the estate.
On the other hand, the respondents maintain that the petition is a
dilatory one and barred by res judicata because this Court on July 8,
1981, in G.R. No. 54232 directed the respondent Judge to expedite
the settlement and liquidation of the decedent's estate. They claim
that this resolution, which was already final and executory, was in
effect reversed and nullified by the Intermediate Appellate Court in
its case-AC G.R.-No. SP - 11145 when it granted the petition for
certiorari and or prohibition and disqualified Judge Francisco P.
Burgos from taking further cognizance of Special Proceedings No.
916R as well as ordering the transmission of the records of the case
to the Executive Judge of the Regional Trial Court of Region VII for
re-raffling on March 1, 1983, which was appealed to this Court by
means of a Petition for Review (G.R. No. 63818).
We agree with the petitioners' contention that attorney's fees are
not the obligation of the estate but of the individual heirs who
individually hired their respective lawyers. The portion, therefore, of
the Order of August 15, 1969, segregating the exhorbitantly

Due to our affirmance of the decision of the Intermediate Appellate


Court in G.R. No. 63818, we grant the petition.

(1) In G.R. No. 41171, the order of the respondent judge


dated December 24, 1974, declaring the respondent entitled
to 5/9 of the estate of the late Vito Borromeo and the order
dated July 7, 1975, denying the petitioner's motion for
reconsideration of the aforementioned order are hereby SET
ASIDE for being NULL and VOID;
(2) In G.R. No. 55000, the order of the trial court declaring
the waiver document valid is hereby SET ASIDE;
(3) In G.R. No. 63818, the petition is hereby DENIED. The
issue in the decision of the Intermediate Appellate Court
disqualifying and ordering the inhibition of Judge Francisco P.
Burgos from further hearing Special Proceedings No. 916-R
is declared moot and academic. The judge who has taken
over the sala of retired Judge Francisco P. Burgos shall
immediately conduct hearings with a view to terminating
the proceedings. In the event that the successor-judge is
likewise disqualified, the order of the Intermediate Appellate
Court directing the Executive Judge of the Regional Trial
Court of Cebu to re-raffle the case shall be implemented:
(4) In G.R. No. 65995, the petition is hereby GRANTED. 'The
issue seeking to restrain Judge Francisco P. Burgos from
further acting in G.R. No. 63818 is MOOT and ACADEMIC:
(5) In G.R, No, 62895, the trial court is hereby ordered to
speedily terminate the close Special Proceedings No. 916-R,
subject to the submission of an inventory of the real
properties of the estate and an accounting of the cash and

26

bank deposits by the petitioner-administrator of the estate


as required by this Court in its Resolution dated June 15,
1983; and
(6) The portion of the Order of August 15, 1969, segregating
40% of the market value of the estate from which attorney's
fees shall be taken and paid should be, as it is hereby
DELETED. The lawyers should collect from the heirsdistributees who individually hired them, attorney's fees
according to the nature of the services rendered but in
amounts which should not exceed more than 20% of the
market value of the property the latter acquired from the
estate as beneficiaries.
SO ORDERED.
Feliciano, Bidin and Cortes, JJ., concur.
Fernan (Chairman), took no part.

[G.R. No. 129008. January 13, 2004]


TEODORA A. RIOFERIO, VERONICA O. EVANGELISTA assisted
by her husband ZALDY EVANGELISTA, ALBERTO
ORFINADA, and ROWENA O. UNGOS, assisted by her
husband BEDA UNGOS, petitioners, vs. COURT OF
APPEALS, ESPERANZA P. ORFINADA, LOURDES P.
ORFINADA,
ALFONSO
ORFINADA,
NANCY
P.
ORFINADA,
ALFONSO
JAMES
P.
ORFINADA,
CHRISTOPHER
P.
ORFINADA
and
ANGELO
P.
ORFINADA,respondents.
DECISION
TINGA, J.:
Whether the heirs may bring suit to recover property of the
estate pending the appointment of an administrator is the issue in
this case.
This Petition for Review on Certiorari, under Rule 45 of the
Rules of Court, seeks to set aside the Decision[1] of the Court of
Appeals in CA-G.R. SP No. 42053 dated January 31, 1997, as well as
its Resolution[2] dated March 26, 1997, denying petitioners motion
for reconsideration.
On May 13, 1995, Alfonso P. Orfinada, Jr. died without a will in
Angeles City leaving several personal and real properties located in
Angeles City, Dagupan City and Kalookan City. [3]He also left a
widow, respondent Esperanza P. Orfinada, whom he married on July
11, 1960 and with whom he had seven children who are the herein
respondents, namely: Lourdes P. Orfinada, Alfonso Clyde P.
Orfinada, Nancy P. Orfinada-Happenden, Alfonso James P. Orfinada,
Christopher P. Orfinada, Alfonso Mike P. Orfinada (deceased) and
Angelo P. Orfinada.[4]
Apart from the respondents, the demise of the decedent left in
mourning his paramour and their children. They are petitioner
Teodora Riofero, who became a part of his life when he entered into
an extra-marital relationship with her during the subsistence of his
marriage to Esperanza sometime in 1965, and co-petitioners
Veronica[5], Alberto and Rowena.[6]
On November 14, 1995, respondents Alfonso James and
Lourdes Orfinada discovered that on June 29, 1995, petitioner
Teodora
Rioferio
and her children executed an Extrajudicial
Settlement of Estate of a Deceased Person with Quitclaim involving
the properties of the estate of the decedent located in Dagupan
City and that accordingly, the Registry of Deeds in Dagupan issued
Certificates of Titles Nos. 63983, 63984 and 63985 in favor of
petitioners Teodora Rioferio, Veronica Orfinada-Evangelista, Alberto

27

Orfinada and Rowena Orfinada-Ungos. Respondents also found out


that petitioners were able to obtain a loan of P700,000.00 from the
Rural Bank of Mangaldan Inc. by executing a Real Estate
Mortgage over the properties subject of the extra-judicial
settlement.[7]
On December 1, 1995, respondent Alfonso Clyde P. Orfinada III
filed a Petition for Letters of Administration docketed as S.P. Case
No. 5118 before the Regional Trial Court of Angeles City, praying
that letters of administration encompassing the estate of Alfonso P.
Orfinada, Jr. be issued to him.[8]
On December 4, 1995, respondents filed a Complaint for the
Annulment/Rescission of Extra Judicial Settlement of Estate of a
Deceased Person with Quitclaim, Real Estate Mortgage and
Cancellation of Transfer Certificate of Titles with Nos. 63983, 63985
and 63984 and Other Related Documents with Damages against
petitioners, the Rural Bank of Mangaldan, Inc. and the Register of
Deeds of Dagupan City before the Regional Trial Court, Branch 42,
Dagupan City.[9]
On February 5, 1996, petitioners filed their Answer to the
aforesaid complaint interposing the defense that the property
subject of the contested deed of extra-judicial settlement pertained
to the properties originally belonging to the parents of Teodora
Riofero[10] and that the titles thereof were delivered to her as an
advance inheritance but the decedent had managed to register
them in his name.[11] Petitioners also raised the affirmative defense
that respondents are not the real parties-in-interest but rather the
Estate of Alfonso O. Orfinada, Jr. in view of the pendency of the
administration proceedings.[12] On April 29, 1996, petitioners filed
a Motion to Set Affirmative Defenses for Hearing[13] on the aforesaid
ground.
The lower court denied the motion in its Order[14] dated June
27, 1996, on the ground that respondents, as heirs, are the real
parties-in-interest especially in the absence of an administrator
who is yet to be appointed in S.P. Case No. 5118. Petitioners moved
for its reconsideration[15] but the motion was likewise denied.[16]
This prompted petitioners to file before the Court of Appeals
their Petition for Certiorari under Rule 65 of the Rules of Court
docketed as CA G.R. S.P. No. 42053.[17] Petitioners averred that the
RTC committed grave abuse of discretion in issuing the assailed
order which denied the dismissal of the case on the ground that the
proper party to file the complaint for the annulment of the
extrajudicial settlement of the estate of the deceased is the estate
of the decedent and not the respondents.[18]

The Court of Appeals rendered the assailed Decision[19] dated


January 31, 1997, stating that it discerned no grave abuse of
discretion amounting to lack or excess of jurisdiction by the public
respondent judge when he denied petitioners motion to set
affirmative defenses for hearing in view of its discretionary nature.
A Motion for Reconsideration was filed by petitioners but it was
denied.[20] Hence, the petition before this Court.
The issue presented by the petitioners before this Court is
whether the heirs have legal standing to prosecute the rights
belonging to the deceased subsequent to the commencement of
the administration proceedings.[21]
Petitioners vehemently fault the lower court for denying their
motion to set the case for preliminary hearing on their affirmative
defense that the proper party to bring the action is the estate of
the decedent and not the respondents. It must be stressed that the
holding of a preliminary hearing on an affirmative defense lies in
the discretion of the court. This is clear from the Rules of Court,
thus:
SEC. 5. Pleadings grounds as affirmative defenses.- Any of the
grounds for dismissal provided for in this rule, except improper
venue, may be pleaded as an affirmative defense, and a
preliminary hearingmay be had thereon as if a motion to dismiss
had been filed.[22] (Emphasis supplied.)
Certainly, the incorporation of the word may in the provision is
clearly indicative of the optional character of the preliminary
hearing. The word denotes discretion and cannot be construed as
having a mandatory effect.[23] Subsequently, the electivity of the
proceeding was firmed up beyond cavil by the 1997 Rules of Civil
Procedure with the inclusion of the phrase in the discretion of the
Court, apart from the retention of the word may in Section 6, [24] in
Rule 16 thereof.
Just as no blame of abuse of discretion can be laid on the lower
courts doorstep for not hearing petitioners affirmative defense, it
cannot likewise be faulted for recognizing the legal standing of the
respondents as heirs to bring the suit.
Pending the filing of administration proceedings, the heirs
without doubt have legal personality to bring suit in behalf of the
estate of the decedent in accordance with the provision of Article
777 of the New Civil Code that (t)he rights to succession are
transmitted from the moment of the death of the decedent. The
provision in turn is the foundation of the principle that the property,
rights and obligations to the extent and value of the inheritance of
a person are transmitted through his death to another or others by
his will or by operation of law.[25]

28

Even if administration proceedings have already been


commenced, the heirs may still bring the suit if an administrator
has not yet been appointed. This is the proper modality despite the
total lack of advertence to the heirs in the rules on party
representation, namely Section 3, Rule 3 [26] and Section 2, Rule
87[27] of the Rules of Court. In fact, in the case of Gochan v. Young,
[28]
this Court recognized the legal standing of the heirs to represent
the rights and properties of the decedent under administration
pending the appointment of an administrator. Thus:
The above-quoted rules,[29] while permitting an executor or
administrator to represent or to bring suits on behalf of the
deceased, do not prohibit the heirs from representing the
deceased. These rules are easily applicable to cases in which
an administrator has already been appointed. But no rule
categorically addresses the situation in which special
proceedings for the settlement of an estate have already
been instituted, yet no administrator has been appointed. In
such instances, the heirs cannot be expected to wait for the
appointment of an administrator; then wait further to see if the
administrator appointed would care enough to file a suit to protect
the rights and the interests of the deceased; and in the meantime
do nothing while the rights and the properties of the decedent are
violated or dissipated.
Even if there is an appointed administrator, jurisprudence
recognizes two exceptions, viz: (1) if the executor or administrator
is unwilling or refuses to bring suit; [30] and (2) when the
administrator is alleged to have participated in the act complained
of[31] and he is made a party defendant. [32] Evidently, the necessity
for the heirs to seek judicial relief to recover property of the estate
is as compelling when there is no appointed administrator, if not
more, as where there is an appointed administrator but he is either
disinclined to bring suit or is one of the guilty parties himself.
All told, therefore, the rule that the heirs have no legal
standing to sue for the recovery of property of the estate during the
pendency of administration proceedings has three exceptions, the
third being when there is no appointed administrator such as in this
case.
As the appellate court did not commit an error of law in
upholding the order of the lower court, recourse to this Court is not
warranted.
WHEREFORE, the petition for review is DENIED. The assailed
decision and resolution of the Court of Appeals are hereby
AFFIRMED. No costs.
SO ORDERED.

Puno, (Chairman), Quisumbing, Austria-Martinez, and Callejo,


Sr., JJ., concur.

[1]

Rollo, pp. 17-20.


Id, at 21-22.
[3]
Id. at 95.
[4]
Ibid.
[5]
The Complaint for Annulment/Rescission of the Extrajudicial
Settlement of the Estate of a Deceased Person dated
December 2, 1995 contains an allegation under paragraph 9
that Veronica is not one of the illegitimate children of the
decedent Alfonso P. Orfinada, Jr. by Teodora Riofero but of
one Alonzo Orfinada.
[6]
Rollo, p. 95.
[7]
Id. at 95-96.
[8]
Id. at 96.
[9]
Id. at 28-37.
[10]
CA Rollo, p. 38.
[11]
Id. at 10.
[12]
Id. at 38.
[13]
Rollo, pp. 107-108.
[14]
CA Rollo, pp. 113-116.
[15]
Id. at 32-34.
[16]
Id. at 39-40.
[17]
Id. at 1-12.
[18]
Id. at 7.
[19]
Rollo, pp. 17-20.
[20]
Id. at 21-22.
[21]
Id. at 124.
[22]
Rule 16 of the Rules of Court. It is Section 6, Rule 16 of the 1997
Rules of Civil Procedure which reads:
Section 6. Pleading grounds as affirmative defenses. If no motion to
dismiss has been filed, any of the grounds for dismissal
provided for in this Rule may be pleaded as an affirmative
defense in the answer and, in the discretion of the court,
a preliminary hearing may be had thereon as if a motion to
dismiss had been filed.
The dismissal of the complaint under this section shall be without
prejudice to the prosecution in the same or separate action
of a counterclaim pleaded in the answer. (Emphasis
supplied)
[2]

29

[23]

Republic Planters Bank v. Agana, Sr., G.R. No. 51765, 269 SCRA
1, 12 (1997).
[24]
Supra note 22.
[25]
Coronel v. Court of Appeals, G.R. No. 103577, October 7, 1996,
263 SCRA 15.
[26]
Section 3 of Rule 3 of the Rules of Court:
Sec. 3. Representatives as parties. - Where the action is allowed to
be prosecuted or defended by a representative or someone
acting in a fiduciary capacity, the beneficiary shall be
included in the title of the case and shall be deemed to be
the real party in interest. A representative may be a trustee
of an express trust, a guardian, an executor or
administrator, or a party authorized by law or these
Rules. An agent acting in his own name and for the benefit
of an undisclosed principal may sue or be sued without
joining the principal except when the contract involves
things belonging to the principal.
[27]
Section 2 of Rule 87:
Sec. 2. Executor or administrator may bring or defend actions
which survive. For the recovery or protection of the property
or rights of the deceased, an executor or administrator may
bring or defend, in the right of the deceased, actions for
causes which survive.
[28]
G.R. No. 131889, March 12, 2001, 354 SCRA 207.
[29]
Supra, note 26.
[30]
Pascual v. Pascual, 73 Phil. 561 (1942).
[31]
Velasquez v. George, G.R. No. L-62376, October 27, 1983, 125
SCRA 456.
[32]
Borromeo v. Borromeo, 98 Phil 432 (1956).
.

30

G.R. No. L-54919 May 30, 1984


POLLY CAYETANO, petitioner,
vs.
HON. TOMAS T. LEONIDAS, in his capacity as the Presiding
Judge of Branch XXXVIII, Court of First Instance of Manila
and NENITA CAMPOS PAGUIA, respondents.
Ermelo P. Guzman for petitioner.
Armando Z. Gonzales for private respondent.

GUTIERREZ, JR., J.:


This is a petition for review on certiorari, seeking to annul the order
of the respondent judge of the Court of First Instance of Manila,
Branch XXXVIII, which admitted to and allowed the probate of the
last will and testament of Adoracion C. Campos, after an ex-parte
presentation of evidence by herein private respondent.
On January 31, 1977, Adoracion C. Campos died, leaving her father,
petitioner Hermogenes Campos and her sisters, private respondent
Nenita C. Paguia, Remedios C. Lopez and Marieta C. Medina as the
surviving heirs. As Hermogenes Campos was the only compulsory

31

heir, he executed an Affidavit of Adjudication under Rule 74,


Section I of the Rules of Court whereby he adjudicated unto himself
the ownership of the entire estate of the deceased Adoracion
Campos.
Eleven months after, on November 25, 1977, Nenita C. Paguia filed
a petition for the reprobate of a will of the deceased, Adoracion
Campos, which was allegedly executed in the United States and for
her appointment as administratrix of the estate of the deceased
testatrix.
In her petition, Nenita alleged that the testatrix was an American
citizen at the time of her death and was a permanent resident of
4633 Ditman Street, Philadelphia, Pennsylvania, U.S.A.; that the
testatrix died in Manila on January 31, 1977 while temporarily
residing with her sister at 2167 Leveriza, Malate, Manila; that
during her lifetime, the testatrix made her last wig and testament
on July 10, 1975, according to the laws of Pennsylvania, U.S.A.,
nominating Wilfredo Barzaga of New Jersey as executor; that after
the testatrix death, her last will and testament was presented,
probated, allowed, and registered with the Registry of Wins at the
County of Philadelphia, U.S.A., that Clement L. McLaughlin, the
administrator who was appointed after Dr. Barzaga had declined
and waived his appointment as executor in favor of the former, is
also a resident of Philadelphia, U.S.A., and that therefore, there is
an urgent need for the appointment of an administratrix to
administer and eventually distribute the properties of the estate
located in the Philippines.
On January 11, 1978, an opposition to the reprobate of the will was
filed by herein petitioner alleging among other things, that he has
every reason to believe that the will in question is a forgery; that
the intrinsic provisions of the will are null and void; and that even if
pertinent American laws on intrinsic provisions are invoked, the
same could not apply inasmuch as they would work injustice and
injury to him.

On December 1, 1978, however, the petitioner through his counsel,


Atty. Franco Loyola, filed a Motion to Dismiss Opposition (With
Waiver of Rights or Interests) stating that he "has been able to
verify the veracity thereof (of the will) and now confirms the same
to be truly the probated will of his daughter Adoracion." Hence,
an ex-partepresentation of evidence for the reprobate of the
questioned will was made.
On January 10, 1979, the respondent judge issued an order, to wit:
At the hearing, it has been satisfactorily established
that Adoracion C. Campos, in her lifetime, was a
citizen of the United States of America with a
permanent residence at 4633 Ditman Street,
Philadelphia, PA 19124, (Exhibit D) that when alive,
Adoracion C. Campos executed a Last Will and
Testament in the county of Philadelphia,
Pennsylvania, U.S.A., according to the laws thereat
(Exhibits E-3 to E-3-b) that while in temporary
sojourn in the Philippines, Adoracion C. Campos died
in the City of Manila (Exhibit C) leaving property both
in the Philippines and in the United States of
America; that the Last Will and Testament of the late
Adoracion C. Campos was admitted and granted
probate by the Orphan's Court Division of the Court
of Common Pleas, the probate court of the
Commonwealth of Pennsylvania, County of
Philadelphia, U.S.A., and letters of administration
were issued in favor of Clement J. McLaughlin all in
accordance with the laws of the said foreign country
on procedure and allowance of wills (Exhibits E to E10); and that the petitioner is not suffering from any
disqualification which would render her unfit as
administratrix of the estate in the Philippines of the
late Adoracion C. Campos.
WHEREFORE, the Last Will and Testament of the late
Adoracion C. Campos is hereby admitted to and

32

allowed probate in the Philippines, and Nenita


Campos Paguia is hereby appointed Administratrix of
the estate of said decedent; let Letters of
Administration with the Will annexed issue in favor of
said Administratrix upon her filing of a bond in the
amount of P5,000.00 conditioned under the
provisions of Section I, Rule 81 of the Rules of Court.
Another manifestation was filed by the petitioner on April 14, 1979,
confirming the withdrawal of his opposition, acknowledging the
same to be his voluntary act and deed.
On May 25, 1979, Hermogenes Campos filed a petition for relief,
praying that the order allowing the will be set aside on the ground
that the withdrawal of his opposition to the same was secured
through fraudulent means. According to him, the "Motion to Dismiss
Opposition" was inserted among the papers which he signed in
connection with two Deeds of Conditional Sales which he executed
with the Construction and Development Corporation of the
Philippines (CDCP). He also alleged that the lawyer who filed the
withdrawal of the opposition was not his counsel-of-record in the
special proceedings case.
The petition for relief was set for hearing but the petitioner failed to
appear. He made several motions for postponement until the
hearing was set on May 29, 1980.
On May 18, 1980, petitioner filed another motion entitled "Motion
to Vacate and/or Set Aside the Order of January 10, 1979, and/or
dismiss the case for lack of jurisdiction. In this motion, the notice of
hearing provided:
Please include this motion in your calendar for
hearing on May 29, 1980 at 8:30 in the morning for
submission for reconsideration and resolution of the
Honorable Court. Until this Motion is resolved, may I
also request for the future setting of the case for

hearing on the Oppositor's motion to set aside


previously filed.
The hearing of May 29, 1980 was re-set by the court for June 19,
1980. When the case was called for hearing on this date, the
counsel for petitioner tried to argue his motion to vacate instead of
adducing evidence in support of the petition for relief. Thus, the
respondent judge issued an order dismissing the petition for relief
for failure to present evidence in support thereof. Petitioner filed a
motion for reconsideration but the same was denied. In the same
order, respondent judge also denied the motion to vacate for lack
of merit. Hence, this petition.
Meanwhile, on June 6,1982, petitioner Hermogenes Campos died
and left a will, which, incidentally has been questioned by the
respondent, his children and forced heirs as, on its face, patently
null and void, and a fabrication, appointing Polly Cayetano as the
executrix of his last will and testament. Cayetano, therefore, filed a
motion to substitute herself as petitioner in the instant case which
was granted by the court on September 13, 1982.
A motion to dismiss the petition on the ground that the rights of the
petitioner Hermogenes Campos merged upon his death with the
rights of the respondent and her sisters, only remaining children
and forced heirs was denied on September 12, 1983.
Petitioner Cayetano persists with the allegations that the
respondent judge acted without or in excess of his jurisdiction
when:
1) He ruled the petitioner lost his standing in court
deprived the Right to Notice (sic) upon the filing of
the Motion to Dismiss opposition with waiver of rights
or interests against the estate of deceased Adoracion
C. Campos, thus, paving the way for the hearing exparte of the petition for the probate of decedent will.

33

2) He ruled that petitioner can waive, renounce or


repudiate (not made in a public or authenticated
instrument), or by way of a petition presented to the
court but by way of a motion presented prior to an
order for the distribution of the estate-the law
especially providing that repudiation of an
inheritance must be presented, within 30 days after
it has issued an order for the distribution of the
estate in accordance with the rules of Court.
3) He ruled that the right of a forced heir to his
legitime can be divested by a decree admitting a will
to probate in which no provision is made for the
forced heir in complete disregard of Law of
Succession
4) He denied petitioner's petition for Relief on the
ground that no evidence was adduced to support the
Petition for Relief when no Notice nor hearing was set
to afford petitioner to prove the merit of his petition
a denial of the due process and a grave abuse of
discretion amounting to lack of jurisdiction.
5) He acquired no jurisdiction over the testate case,
the fact that the Testator at the time of death was a
usual resident of Dasmarias, Cavite, consequently
Cavite Court of First Instance has exclusive
jurisdiction over the case (De Borja vs. Tan, G.R. No.
L-7792, July 1955).

that Atty. Franco Loyola was not his counsel of record. The records
show that after the firing of the contested motion, the petitioner at
a later date, filed a manifestation wherein he confirmed that the
Motion to Dismiss Opposition was his voluntary act and deed.
Moreover, at the time the motion was filed, the petitioner's former
counsel, Atty. Jose P. Lagrosa had long withdrawn from the case and
had been substituted by Atty. Franco Loyola who in turn filed the
motion. The present petitioner cannot, therefore, maintain that the
old man's attorney of record was Atty. Lagrosa at the time of filing
the motion. Since the withdrawal was in order, the respondent
judge acted correctly in hearing the probate of the will exparte, there being no other opposition to the same.
The third issue raised deals with the validity of the provisions of the
will. As a general rule, the probate court's authority is limited only
to the extrinsic validity of the will, the due execution thereof, the
testatrix's testamentary capacity and the compliance with the
requisites or solemnities prescribed by law. The intrinsic validity of
the will normally comes only after the court has declared that the
will has been duly authenticated. However, where practical
considerations demand that the intrinsic validity of the will be
passed upon, even before it is probated, the court should meet the
issue. (Maninang vs. Court of Appeals, 114 SCRA 478).
In the case at bar, the petitioner maintains that since the
respondent judge allowed the reprobate of Adoracion's will,
Hermogenes C. Campos was divested of his legitime which was
reserved by the law for him.
This contention is without merit.

The first two issues raised by the petitioner are anchored on the
allegation that the respondent judge acted with grave abuse of
discretion when he allowed the withdrawal of the petitioner's
opposition to the reprobate of the will.
We find no grave abuse of discretion on the part of the respondent
judge. No proof was adduced to support petitioner's contention that
the motion to withdraw was secured through fraudulent means and

Although on its face, the will appeared to have preterited the


petitioner and thus, the respondent judge should have denied its
reprobate outright, the private respondents have sufficiently
established that Adoracion was, at the time of her death, an
American citizen and a permanent resident of Philadelphia,
Pennsylvania, U.S.A. Therefore, under Article 16 par. (2) and 1039
of the Civil Code which respectively provide:

34

Art. 16 par. (2).


xxx xxx xxx
However, intestate and testamentary successions,
both with respect to the order of succession and to
the amount of successional rights and to the intrinsic
validity of testamentary provisions, shall be
regulated by the national law of the person whose
succession is under consideration, whatever may be
the nature of the property and regardless of the
country wherein said property may be found.
Art. 1039.
Capacity to succeed is governed by the law of the nation of
the decedent.
the law which governs Adoracion Campo's will is the law of Pennsylvania,
U.S.A., which is the national law of the decedent. Although the parties
admit that the Pennsylvania law does not provide for legitimes and that all
the estate may be given away by the testatrix to a complete stranger, the

petitioner argues that such law should not apply because it would
be contrary to the sound and established public policy and would
run counter to the specific provisions of Philippine Law.
It is a settled rule that as regards the intrinsic validity of the
provisions of the will, as provided for by Article 16(2) and 1039 of
the Civil Code, the national law of the decedent must apply. This
was squarely applied in the case ofBellis v. Bellis (20 SCRA 358)
wherein we ruled:
It is therefore evident that whatever public policy or good
customs may be involved in our system of legitimes,
Congress has not intended to extend the same to the
succession of foreign nationals. For it has specifically
chosen to leave, inter alia, the amount of successional

rights, to the decedent's national law. Specific


provisions must prevail over general ones.

xxx xxx xxx


The parties admit that the decedent, Amos G. Bellis,
was a citizen of the State of Texas, U.S.A., and under
the law of Texas, there are no forced heirs or
legitimes. Accordingly, since the intrinsic validity of
the provision of the will and the amount of
successional rights are to be determined under Texas
law, the Philippine Law on legitimes cannot be
applied to the testacy of Amos G. Bellis.
As regards the alleged absence of notice of hearing for the petition
for relief, the records wig bear the fact that what was repeatedly
scheduled for hearing on separate dates until June 19, 1980 was
the petitioner's petition for relief and not his motion to vacate the
order of January 10, 1979. There is no reason why the petitioner
should have been led to believe otherwise. The court even
admonished the petitioner's failing to adduce evidence when his
petition for relief was repeatedly set for hearing. There was no
denial of due process. The fact that he requested "for the future
setting of the case for hearing . . ." did not mean that at the next
hearing, the motion to vacate would be heard and given preference
in lieu of the petition for relief. Furthermore, such request should be
embodied in a motion and not in a mere notice of hearing.
Finally, we find the contention of the petition as to the issue of
jurisdiction utterly devoid of merit. Under Rule 73, Section 1, of the
Rules of Court, it is provided that:
SECTION 1. Where estate of deceased persons
settled. If the decedent is an inhabitant of the
Philippines at the time of his death, whether a citizen
or an alien, his will shall be proved, or letters of
administration granted, and his estate settled, in the
Court of First Instance in the province in which he
resided at the time of his death, and if he is an
inhabitant of a foreign country, the Court of First
Instance of any province in which he had estate. The

35

court first taking cognizance of the settlement of the


estate of a decedent, shall exercise jurisdiction to the
exclusion of all other courts. The jurisdiction
assumed by a court, so far as it depends on the place
of residence of the decedent, or of the location of his
estate, shall not be contested in a suit or proceeding,
except in an appeal from that court, in the original
case, or when the want of jurisdiction appears on the
record.
Therefore, the settlement of the estate of Adoracion Campos was
correctly filed with the Court of First Instance of Manila where she
had an estate since it was alleged and proven that Adoracion at the
time of her death was a citizen and permanent resident of Pennsylvania,
United States of America and not a "usual resident of Cavite" as alleged by
the petitioner. Moreover, petitioner is now estopped from questioning the
jurisdiction of the probate court in the petition for relief. It is a settled rule
that a party cannot invoke the jurisdiction of a court to secure affirmative
relief, against his opponent and after failing to obtain such relief, repudiate
or question that same jurisdiction. (See Saulog Transit, Inc. vs. Hon. Manuel
Lazaro, et al., G. R. No. 63 284, April 4, 1984).
WHEREFORE, the petition for certiorari and prohibition is hereby dismissed
for lack of merit.

SO ORDERED.
Melencio-Herrera, Plana, Relova and De la Fuente, JJ., concur.

Ermelo P. Guzman for petitioner.


Armando Z. Gonzales for private respondent.

GUTIERREZ, JR., J.:


This is a petition for review on certiorari, seeking to annul the order
of the respondent judge of the Court of First Instance of Manila,
Branch XXXVIII, which admitted to and allowed the probate of the
last will and testament of Adoracion C. Campos, after an ex-parte
presentation of evidence by herein private respondent.
On January 31, 1977, Adoracion C. Campos died, leaving her father,
petitioner Hermogenes Campos and her sisters, private respondent
Nenita C. Paguia, Remedios C. Lopez and Marieta C. Medina as the
surviving heirs. As Hermogenes Campos was the only compulsory
heir, he executed an Affidavit of Adjudication under Rule 74,
Section I of the Rules of Court whereby he adjudicated unto himself
the ownership of the entire estate of the deceased Adoracion
Campos.
Eleven months after, on November 25, 1977, Nenita C. Paguia filed
a petition for the reprobate of a will of the deceased, Adoracion
Campos, which was allegedly executed in the United States and for
her appointment as administratrix of the estate of the deceased
testatrix.

Teehankee, J., (Chairman), took no part.


G.R. No. L-54919 May 30, 1984
POLLY CAYETANO, petitioner,
vs.
HON. TOMAS T. LEONIDAS, in his capacity as the Presiding
Judge of Branch XXXVIII, Court of First Instance of Manila
and NENITA CAMPOS PAGUIA, respondents.

In her petition, Nenita alleged that the testatrix was an American


citizen at the time of her death and was a permanent resident of
4633 Ditman Street, Philadelphia, Pennsylvania, U.S.A.; that the
testatrix died in Manila on January 31, 1977 while temporarily
residing with her sister at 2167 Leveriza, Malate, Manila; that
during her lifetime, the testatrix made her last wig and testament
on July 10, 1975, according to the laws of Pennsylvania, U.S.A.,
nominating Wilfredo Barzaga of New Jersey as executor; that after
the testatrix death, her last will and testament was presented,

36

probated, allowed, and registered with the Registry of Wins at the


County of Philadelphia, U.S.A., that Clement L. McLaughlin, the
administrator who was appointed after Dr. Barzaga had declined
and waived his appointment as executor in favor of the former, is
also a resident of Philadelphia, U.S.A., and that therefore, there is
an urgent need for the appointment of an administratrix to
administer and eventually distribute the properties of the estate
located in the Philippines.
On January 11, 1978, an opposition to the reprobate of the will was
filed by herein petitioner alleging among other things, that he has
every reason to believe that the will in question is a forgery; that
the intrinsic provisions of the will are null and void; and that even if
pertinent American laws on intrinsic provisions are invoked, the
same could not apply inasmuch as they would work injustice and
injury to him.
On December 1, 1978, however, the petitioner through his counsel,
Atty. Franco Loyola, filed a Motion to Dismiss Opposition (With
Waiver of Rights or Interests) stating that he "has been able to
verify the veracity thereof (of the will) and now confirms the same
to be truly the probated will of his daughter Adoracion." Hence,
an ex-partepresentation of evidence for the reprobate of the
questioned will was made.
On January 10, 1979, the respondent judge issued an order, to wit:
At the hearing, it has been satisfactorily established
that Adoracion C. Campos, in her lifetime, was a
citizen of the United States of America with a
permanent residence at 4633 Ditman Street,
Philadelphia, PA 19124, (Exhibit D) that when alive,
Adoracion C. Campos executed a Last Will and
Testament in the county of Philadelphia,
Pennsylvania, U.S.A., according to the laws thereat
(Exhibits E-3 to E-3-b) that while in temporary
sojourn in the Philippines, Adoracion C. Campos died
in the City of Manila (Exhibit C) leaving property both

in the Philippines and in the United States of


America; that the Last Will and Testament of the late
Adoracion C. Campos was admitted and granted
probate by the Orphan's Court Division of the Court
of Common Pleas, the probate court of the
Commonwealth of Pennsylvania, County of
Philadelphia, U.S.A., and letters of administration
were issued in favor of Clement J. McLaughlin all in
accordance with the laws of the said foreign country
on procedure and allowance of wills (Exhibits E to E10); and that the petitioner is not suffering from any
disqualification which would render her unfit as
administratrix of the estate in the Philippines of the
late Adoracion C. Campos.
WHEREFORE, the Last Will and Testament of the late
Adoracion C. Campos is hereby admitted to and
allowed probate in the Philippines, and Nenita
Campos Paguia is hereby appointed Administratrix of
the estate of said decedent; let Letters of
Administration with the Will annexed issue in favor of
said Administratrix upon her filing of a bond in the
amount of P5,000.00 conditioned under the
provisions of Section I, Rule 81 of the Rules of Court.
Another manifestation was filed by the petitioner on April 14, 1979,
confirming the withdrawal of his opposition, acknowledging the
same to be his voluntary act and deed.
On May 25, 1979, Hermogenes Campos filed a petition for relief,
praying that the order allowing the will be set aside on the ground
that the withdrawal of his opposition to the same was secured
through fraudulent means. According to him, the "Motion to Dismiss
Opposition" was inserted among the papers which he signed in
connection with two Deeds of Conditional Sales which he executed
with the Construction and Development Corporation of the
Philippines (CDCP). He also alleged that the lawyer who filed the

37

withdrawal of the opposition was not his counsel-of-record in the


special proceedings case.
The petition for relief was set for hearing but the petitioner failed to
appear. He made several motions for postponement until the
hearing was set on May 29, 1980.
On May 18, 1980, petitioner filed another motion entitled "Motion
to Vacate and/or Set Aside the Order of January 10, 1979, and/or
dismiss the case for lack of jurisdiction. In this motion, the notice of
hearing provided:
Please include this motion in your calendar for
hearing on May 29, 1980 at 8:30 in the morning for
submission for reconsideration and resolution of the
Honorable Court. Until this Motion is resolved, may I
also request for the future setting of the case for
hearing on the Oppositor's motion to set aside
previously filed.
The hearing of May 29, 1980 was re-set by the court for June 19,
1980. When the case was called for hearing on this date, the
counsel for petitioner tried to argue his motion to vacate instead of
adducing evidence in support of the petition for relief. Thus, the
respondent judge issued an order dismissing the petition for relief
for failure to present evidence in support thereof. Petitioner filed a
motion for reconsideration but the same was denied. In the same
order, respondent judge also denied the motion to vacate for lack
of merit. Hence, this petition.
Meanwhile, on June 6,1982, petitioner Hermogenes Campos died
and left a will, which, incidentally has been questioned by the
respondent, his children and forced heirs as, on its face, patently
null and void, and a fabrication, appointing Polly Cayetano as the
executrix of his last will and testament. Cayetano, therefore, filed a
motion to substitute herself as petitioner in the instant case which
was granted by the court on September 13, 1982.

A motion to dismiss the petition on the ground that the rights of the
petitioner Hermogenes Campos merged upon his death with the
rights of the respondent and her sisters, only remaining children
and forced heirs was denied on September 12, 1983.
Petitioner Cayetano persists with the allegations that the
respondent judge acted without or in excess of his jurisdiction
when:
1) He ruled the petitioner lost his standing in court
deprived the Right to Notice (sic) upon the filing of
the Motion to Dismiss opposition with waiver of rights
or interests against the estate of deceased Adoracion
C. Campos, thus, paving the way for the hearing exparte of the petition for the probate of decedent will.
2) He ruled that petitioner can waive, renounce or
repudiate (not made in a public or authenticated
instrument), or by way of a petition presented to the
court but by way of a motion presented prior to an
order for the distribution of the estate-the law
especially providing that repudiation of an
inheritance must be presented, within 30 days after
it has issued an order for the distribution of the
estate in accordance with the rules of Court.
3) He ruled that the right of a forced heir to his
legitime can be divested by a decree admitting a will
to probate in which no provision is made for the
forced heir in complete disregard of Law of
Succession
4) He denied petitioner's petition for Relief on the
ground that no evidence was adduced to support the
Petition for Relief when no Notice nor hearing was set
to afford petitioner to prove the merit of his petition
a denial of the due process and a grave abuse of
discretion amounting to lack of jurisdiction.

38

5) He acquired no jurisdiction over the testate case,


the fact that the Testator at the time of death was a
usual resident of Dasmarias, Cavite, consequently
Cavite Court of First Instance has exclusive
jurisdiction over the case (De Borja vs. Tan, G.R. No.
L-7792, July 1955).
The first two issues raised by the petitioner are anchored on the
allegation that the respondent judge acted with grave abuse of
discretion when he allowed the withdrawal of the petitioner's
opposition to the reprobate of the will.
We find no grave abuse of discretion on the part of the respondent
judge. No proof was adduced to support petitioner's contention that
the motion to withdraw was secured through fraudulent means and
that Atty. Franco Loyola was not his counsel of record. The records
show that after the firing of the contested motion, the petitioner at
a later date, filed a manifestation wherein he confirmed that the
Motion to Dismiss Opposition was his voluntary act and deed.
Moreover, at the time the motion was filed, the petitioner's former
counsel, Atty. Jose P. Lagrosa had long withdrawn from the case and
had been substituted by Atty. Franco Loyola who in turn filed the
motion. The present petitioner cannot, therefore, maintain that the
old man's attorney of record was Atty. Lagrosa at the time of filing
the motion. Since the withdrawal was in order, the respondent
judge acted correctly in hearing the probate of the will exparte, there being no other opposition to the same.
The third issue raised deals with the validity of the provisions of the
will. As a general rule, the probate court's authority is limited only
to the extrinsic validity of the will, the due execution thereof, the
testatrix's testamentary capacity and the compliance with the
requisites or solemnities prescribed by law. The intrinsic validity of
the will normally comes only after the court has declared that the
will has been duly authenticated. However, where practical
considerations demand that the intrinsic validity of the will be
passed upon, even before it is probated, the court should meet the
issue. (Maninang vs. Court of Appeals, 114 SCRA 478).

In the case at bar, the petitioner maintains that since the


respondent judge allowed the reprobate of Adoracion's will,
Hermogenes C. Campos was divested of his legitime which was
reserved by the law for him.
This contention is without merit.
Although on its face, the will appeared to have preterited the
petitioner and thus, the respondent judge should have denied its
reprobate outright, the private respondents have sufficiently
established that Adoracion was, at the time of her death, an
American citizen and a permanent resident of Philadelphia,
Pennsylvania, U.S.A. Therefore, under Article 16 par. (2) and 1039
of the Civil Code which respectively provide:
Art. 16 par. (2).
xxx xxx xxx
However, intestate and testamentary successions, both
with respect to the order of succession and to the amount
of successional rights and to the intrinsic validity of
testamentary provisions, shall be regulated by the

national law of the person whose succession is under


consideration, whatever may be the nature of the
property and regardless of the country wherein said
property may be found.
Art. 1039.
Capacity to succeed is governed by the law of the
nation of the decedent.
the law which governs Adoracion Campo's will is the law of
Pennsylvania, U.S.A., which is the national law of the decedent.
Although the parties admit that the Pennsylvania law does not
provide for legitimes and that all the estate may be given away by
the testatrix to a complete stranger, the petitioner argues that such

39

law should not apply because it would be contrary to the sound and
established public policy and would run counter to the specific
provisions of Philippine Law.
It is a settled rule that as regards the intrinsic validity of the
provisions of the will, as provided for by Article 16(2) and 1039 of
the Civil Code, the national law of the decedent must apply. This
was squarely applied in the case ofBellis v. Bellis (20 SCRA 358)
wherein we ruled:
It is therefore evident that whatever public policy or
good customs may be involved in our system of
legitimes, Congress has not intended to extend the
same to the succession of foreign nationals. For it
has specifically chosen to leave, inter alia, the
amount of successional rights, to the decedent's
national law. Specific provisions must prevail over
general ones.
xxx xxx xxx
The parties admit that the decedent, Amos G. Bellis,
was a citizen of the State of Texas, U.S.A., and under
the law of Texas, there are no forced heirs or
legitimes. Accordingly, since the intrinsic validity of
the provision of the will and the amount of
successional rights are to be determined under Texas
law, the Philippine Law on legitimes cannot be
applied to the testacy of Amos G. Bellis.
As regards the alleged absence of notice of hearing for the petition
for relief, the records wig bear the fact that what was repeatedly
scheduled for hearing on separate dates until June 19, 1980 was
the petitioner's petition for relief and not his motion to vacate the
order of January 10, 1979. There is no reason why the petitioner
should have been led to believe otherwise. The court even
admonished the petitioner's failing to adduce evidence when his
petition for relief was repeatedly set for hearing. There was no

denial of due process. The fact that he requested "for the future
setting of the case for hearing . . ." did not mean that at the next
hearing, the motion to vacate would be heard and given preference
in lieu of the petition for relief. Furthermore, such request should be
embodied in a motion and not in a mere notice of hearing.
Finally, we find the contention of the petition as to the issue of
jurisdiction utterly devoid of merit. Under Rule 73, Section 1, of the
Rules of Court, it is provided that:
SECTION 1. Where estate of deceased persons
settled. If the decedent is an inhabitant of the
Philippines at the time of his death, whether a citizen or an
alien, his will shall be proved, or letters of administration
granted, and his estate settled, in the Court of First
Instance in the province in which he resided at the time of
his death, and if he is an inhabitant of a foreign country,
the Court of First Instance of any province in which he had
estate. The court first taking cognizance of the settlement
of the estate of a decedent, shall exercise jurisdiction to
the exclusion of all other courts. The jurisdiction assumed
by a court, so far as it depends on the place of residence of
the decedent, or of the location of his estate, shall not be
contested in a suit or proceeding, except in an appeal from
that court, in the original case, or when the want of

jurisdiction appears on the record.


Therefore, the settlement of the estate of Adoracion Campos was
correctly filed with the Court of First Instance of Manila where she
had an estate since it was alleged and proven that Adoracion at the
time of her death was a citizen and permanent resident of
Pennsylvania, United States of America and not a "usual resident of
Cavite" as alleged by the petitioner. Moreover, petitioner is now
estopped from questioning the jurisdiction of the probate court in
the petition for relief. It is a settled rule that a party cannot invoke
the jurisdiction of a court to secure affirmative relief, against his
opponent and after failing to obtain such relief, repudiate or
question that same jurisdiction. (See Saulog Transit, Inc. vs. Hon.
Manuel Lazaro, et al., G. R. No. 63 284, April 4, 1984).

40

WHEREFORE, the petition for certiorari and prohibition is hereby


dismissed for lack of merit.
SO ORDERED.
Melencio-Herrera, Plana, Relova and De la Fuente, JJ., concur.
Teehankee, J., (Chairman), took no part.
G.R. No. L-23638
October 12, 1967
DIONISIO FERNANDEZ, EUSEBIO REYES and LUISA
REYES, petitioners,
vs.
ISMAELA DIMAGIBA, respondent.
---------------------------------------G.R. No. L-23662
October 12, 1967
MARIANO REYES, CESAR REYES, LEONOR REYES and
PACIENCIA REYES, petitioners,
vs.
ISMAELA DIMAGIBA, respondent.
Jose D. Villena for petitioners.
Antonio Barredo and Exequiel M. Zaballero for respondent.
REYES, J.B.L., Actg. C.J.:
The heirs intestate of the late Benedicta de los Reyes have
petitioned for a review of the decision of the Court of Appeals (in
CA-G. R. No. 31221-R) affirming that of the Court of First Instance of
Bulacan, in Special Proceeding No. 831 of said Court, admitting to
probate the alleged last will and testament of the deceased, and
overruling the opposition to the probate.
It appears from the record that on January 19, 1955, Ismaela
Dimagiba, now respondent, submitted to the Court of First Instance
a petition for the probate of the purported will of the late Benedicta
de los Reyes, executed on October 22, 1930, and annexed to the
petition. The will instituted the petitioner as the sole heir of the
estate of the deceased. The petition was set for hearing, and in due
time, Dionisio Fernandez, Eusebio Reyes and Luisa Reyes and one
month later, Mariano, Cesar, Leonor and Paciencia, all surnamed
Reyes, all claiming to be heirs intestate of the decedent, filed
oppositions to the probate asked. Grounds advanced for the
opposition were forgery, vices of consent of the testatrix, estoppel
by laches of the proponent and revocation of the will by two deeds
of conveyance of the major portion of the estate made by the

testatrix in favor of the proponent in 1943 and 1944, but which


conveyances were finally set aside by this Supreme Court in a
decision promulgated on August 3, 1954, in cases G.R. Nos. L-5618
and L-5620 (unpublished).
After trial on the formulated issues, the Court of First Instance, by
decision of June 20, 1958, found that the will was genuine and
properly executed; but deferred resolution on the questions of
estoppel and revocation "until such time when we shall pass upon
the intrinsic validity of the provisions of the will or when the
question of adjudication of the properties is opportunely
presented."
Oppositors Fernandez and Reyes petitioned for reconsideration,
and/or new trial, insisting that the issues of estoppel and revocation
be considered and resolved; whereupon, on July 27, 1959, the Court
overruled the claim that proponent was in estoppel to ask for the
probate of the will, but "reserving unto the parties the right to raise
the issue of implied revocation at the opportune time."
On January 11, 1960, the Court of First Instance appointed Ricardo
Cruz as administrator for the sole purpose of submitting an
inventory of the estate, and this was done on February 9, 1960.
On February 27, 1962, after receiving further evidence on the issue
whether the execution by the testatrix of deeds of sale of the larger
portion of her estate in favor of the testamentary heir, made in
1943 and 1944, subsequent to the execution of her 1930
testament, had revoked the latter under Article 957(2) of the 1950
Civil Code (Art. 869 of the Civil Code of 1889), the trial Court
resolved against the oppositors and held the will of the late
Benedicta de los Reyes "unaffected and unrevoked by the deeds of
sale." Whereupon, the oppositors elevated the case to the Court of
Appeals.
The appellate Court held that the decree of June 20, 1958,
admitting the will to probate, had become final for lack of
opportune appeal; that the same was appealable independently of
the issue of implied revocation; that contrary to the claim of
oppositors-appellants, there had been no legal revocation by the
execution of the 1943 and 1944 deeds of sale, because the latter
had been made in favor of the legatee herself, and affirmed the
decision of the Court of First Instance.
Oppositors then appealed to this Court.
In this instance, both sets of oppositors-appellants pose three main
issues: (a) whether or not the decree of the Court of First Instance
allowing the will to probate had become final for lack of appeal; (b)
whether or not the order of the Court of origin dated July 27, 1959,
overruling the estoppel invoked by oppositors-appellants had

41

likewise become final; and (c) whether or not the 1930 will of
Benedicta de los Reyes had been impliedly revoked by her
execution of deeds of conveyance in favor of the proponent on
March 26, 1943 and April 3, 1944.
As to the first point, oppositors-appellants contend that the order
allowing the will to probate should be considered interlocutory,
because it fails to resolve the issues of estoppel and revocation
propounded in their opposition. We agree with the Court of Appeals
that the appellant's stand is untenable. It is elementary that a
probate decree finally and definitively settles all questions
concerning capacity of the testator and the proper execution and
witnessing of his last will and testament, irrespective of whether its
provisions are valid and enforceable or otherwise. (Montaano vs.
Suesa, 14 Phil. 676; Mercado vs. Santos, 66 Phil. 215; Trillana vs.
Crisostomo, 89 Phil. 710). As such, the probate order is final and
appealable; and it is so recognized by express provisions of Section
1 of Rule 109, that specifically prescribes that "any interested
person may appeal in special proceedings from an order or
judgment . . . where such order or judgment: (a) allows or disallows
a will."
Appellants argue that they were entitled to await the trial Court's
resolution on the other grounds of their opposition before taking an
appeal, as otherwise there would be a multiplicity of recourses to
the higher Courts. This contention is without weight, since Rule
109, section 1, expressly enumerates six different instances when
appeal may be taken in special proceedings.
There being no controversy that the probate decree of the Court
below was not appealed on time, the same had become final and
conclusive. Hence, the appellate courts may no longer revoke said
decree nor review the evidence upon which it is made to rest. Thus,
the appeal belatedly lodged against the decree was correctly
dismissed.
The alleged revocation implied from the execution of the deeds of
conveyance in favor of the testamentary heir is plainly irrelevant to
and separate from the question of whether the testament was duly
executed. For one, if the will is not entitled to probate, or its
probate is denied, all questions of revocation become superfluous
in law, there is no such will and hence there would be nothing to
revoke. Then, again, the revocation invoked by the oppositorsappellants is not an express one, but merely implied from
subsequent acts of the testatrix allegedly evidencing an
abandonment of the original intention to bequeath or devise the
properties concerned. As such, the revocation would not affect the
will itself, but merely the particular devise or legacy. Only

the total and absoluterevocation can preclude probate of the


revoked testament (Trillana vs. Crisostomo, supra.).
As to the issue of estoppel, we have already ruled in Guevara vs.
Guevara, 98 Phil. 249, that the presentation and probate of a will
are requirements of public policy, being primarily designed to
protect the testator's, expressed wishes, which are entitled to
respect as a consequence of the decedent's ownership and right of
disposition within legal limits. Evidence of it is the duty imposed on
a custodian of a will to deliver the same to the Court, and the fine
and imprisonment prescribed for its violation (Revised Rule 75). It
would be a non sequitur to allow public policy to be evaded on the
pretext of estoppel. Whether or not the order overruling the
allegation of estoppel is still appealable or not, the defense is
patently unmeritorious and the Court of Appeals correctly so ruled.
The last issue, that of revocation, is predicated on paragraph 2 of
Article 957 of the Civil Code of 1950 (Art. 869 of the Code of 1889),
which recites:
Art. 957. The legacy or devise shall be without effect:
(1) . . . .
(2) If the testator by any title or for any cause alienates the
thing bequeathed or any part thereof, it being understood
that in the latter case the legacy or devise shall be without
effect only with respect to the part thus alienated. If after
the alienation the thing should again belong to the testator,
even if it be by reason of nullity of the contract, the legacy
or devise shall not thereafter be valid, unless the
reacquisition shall have been effected by virtue of the
exercise of the right of repurchase;
xxx
xxx
xxx
It is well to note that, unlike in the French and Italian Codes, the
basis of the quoted provision is a presumed change of intention on
the part of the testator. As pointed out by Manresa in his
Commentaries on Article 869 of the Civil Code (Vol. 6, 7th Ed., p.
743)
Este caso se funda en la presunta voluntad del testador. Si
este, despues de legar, se desprende de la cosa por titulo
lucrativo u oneroso, hace desaparecer su derecho sobra ella,
dando lugar a la presuncion de que ha cambiado de
voluntad, y no quiere que el legado se cumpla. Mas para
que pueda presumirse esa voluntad, es necesario que
medien actos del testador que la indiquen. Si la perdida del
derecho sobre la cosa ha sido independiente de la voluntad
del testador, el legado podraquedar sin efecto, mas no en
virtud del numero 2 del articulo 869, que exige siempre

42

actos voluntarios de enajenacion por parte del mismo


testador.
As observed by the Court of Appeals, the existence of any such
change or departure from the original intent of the testatrix,
expressed in her 1930 testament, is rendered doubtful by the
circumstance that the subsequent alienations in 1943 and 1944
were executed in favor of the legatee herself, appellee Dimagiba. In
fact, as found by the Court of Appeals in its decision annulling
these conveyances (affirmed in that point by this Supreme Court
in Reyes vs. Court of Appeals and Dimagiba, L-5618 and L-5620,
promulgated on July 31, 1954), "no consideration whatever was
paid by respondent Dimagiba" on account of the transfers, thereby
rendering it even more doubtful whether in conveying the property
to her legatee, the testatrix merely intended to comply in advance
with what she had ordained in her testament, rather than an
alteration or departure therefrom.1Revocation being an exception,
we believe, with the Courts below, that in the circumstances of the
particular case, Article 957 of the Civil Code of the Philippines, does
not apply to the case at bar.
Not only that, but even if it were applicable, the annulment of the
conveyances would not necessarily result in the revocation of the
legacies, if we bear in mind that the findings made in the decision
decreeing the annulment of the subsequent 1943 and 1944 deeds
of sale were also that
it was the moral influence, originating from their confidential
relationship, which was the only cause for the execution of
Exhs. A and B (the 1943 and 1944 conveyances). (Decision,
L-5618 and L-5620).
If the annulment was due to undue influence, as the quoted
passage implies, then the transferor was not expressing her own
free will and intent in making the conveyances. Hence, it can not
be concluded, either, that such conveyances established a decision
on her part to abandon the original legacy.
True it is that the legal provision quoted prescribes that the
recovery of the alienated property "even if it be by reason of the
nullity of the contract" does not revive the legacy; but as pointed
out by Scaevola (Codigo Civil, Vol. XV, 4th Ed., pp. 324-325) the
"nullity of the contract" can not be taken in an absolute
sense.2 Certainly, it could not be maintained, for example, that if a
testator's subsequent alienation were avoided because the testator
was mentally deranged at the time, the revocatory effect ordained
by the article should still ensue. And the same thing could be said if
the alienation (posterior to the will) were avoided on account of
physical or mental duress. Yet, an alienation through undue

influence in no way differs from one made through violence or


intimidation. In either case, the transferor is not expressing his real
intent,3 and it can not be held that there was in fact an alienation
that could produce a revocation of the anterior bequest.
In view of the foregoing considerations, the appealed decision of
the Court of Appeals is hereby affirmed. Costs against appellants
Reyes and Fernandez. So ordered.
Dizon, Makalintal, Zaldivar, Sanchez, Castro, Angeles and
Fernando, JJ., concur.
Concepcion, C.J. and Bengzon, J.P., J., are on leave, took no part.
Footnotes
1
Scaevola (Codigo Civil, Vol. XV, 4th Ed., p. 378) aptly
remarks:
"Cuando el testador, a sabiendas de la disposicion contenida
en su ultima voluntad, enajena al legatario la cosa legada, si
bien esta sale del poder de aquel, va a parar al del legatario,
acto que no puede interpretarse como mudanza del a
voluntad, puesto que transmits la cosa a la persona a la que
deseaba favoreer con ella. Por esta circunstancia y por la de
no revocar el legado, mas bien parece que persiste en su
intencion de beneficiar al legatario, ya que no con la propia
cosa, con el derecho que le concede el art. 878. Si al donar
el testador al futuro legatario la cosa que le dejaba en el
testamento, indica solo una realizacion anticipada de la
ultima voluntad, el venderia sin derogar la disposicion
dellegado parece indicae tambien que no ha habido idea
modificadora de la intencion, sino que porsigue en la de
favorecer al instituido, y ya que no es posible conseguirlo
con la cosa misma,se impone el verificarlo en la manera
determinada por el articulo, o sea mediante la entrega del
precio."
2
"Deciamos anteriormente que necesitaba alguna
explicacion la frase del num. 20.o del art. 869, "aunque sea
por la nulidad del contrato," para no apartarla de sus
verdaderos y prudentes limites. Literalmente entendida,
autorizaria el que fuese revocado un legado por enajenacion
que hubiese realizado el testador con vicio en el
consentimiento. Dice con razon eljurisconsulto frances
Demante, "quese llegaria a consecuencias contrariasa los
principios mas elementales del Derecho y de la razon si,
exagerandodicha doctrina, se diese efecto revocatorio a una
enajenacion nulapor vicio de consentimiento." Como una

43

voluntad impotente para transferirla propiedad podria tener


la fuerza de revocar un legado? Si la enajenacionlleva el
vicio de violencia o de error, sera posible artibuir algun
efectoa acto semejante? Es logico deducir entonces que el
testador se arrepintio, como dicen las partidas del
otorgamento de la manda?" (Scaevola, op. cit.)
3
Cf. Torres vs. Lopez, 48 Phil. 772; Coso vs. Deza, 42 Phil.

[G.R. No. L-7188. August 9, 1954.]


In re: Will and Testament of the deceased REVEREND
SANCHO ABADIA. SEVERINA A. VDA. DE ENRIQUEZ, ET
AL., Petitioners-Appellees, v. MIGUEL ABADIA, ET
AL., Oppositors-Appellants.
Manuel A. Zosa, Luis B. Ladonga, Mariano A. Zosa and B. G.
Advincula, for Appellants.
C. de la Victoria, for Appellees.
SYLLABUS
1. WILLS; PROBATE OF WILL; VALIDITY OF WILLS AS TO FORM
DEPENDS UPON LAW IN FORCE AT TIME OF EXECUTION; TITLE OF
EXECUTION. The validity of a will as to form is to be judged not
by the law in force at the time of the testators death or at the time
the supposed will is presented in court for probate or when the
petition is decided by the court but at the time the instrument was
executed. One reason in support of the rule is that although the will
operates upon and after the death of testator, the wishes of the
testator about the disposition of his estate among his heirs and
among the legatees is given solemn expression at the time the will
is executed, and in reality, the legacy or bequest then becomes a
completed act.
2. ID.; EXECUTION OF WILLS; LAW SUBSEQUENTLY PASSED ADDING
NEW REQUIREMENTS AS TO EXECUTION OF WILLS; FAILURE TO
OBSERVE FORMAL REQUIREMENTS AT TIME OF EXECUTION
INVALIDATES WILLS; HEIRS INHERIT BY INTESTATE SUCCESSION;
LEGISLATURE CAN NOT VALIDATE VOID WILLS. From the day of the
death of the testator, if he leaves a will, the title of the legatees
and devisees under it becomes a vested right, protected under the
due process clause of the Constitution against a subsequent
change in the statute adding new legal requirements of execution
of will, which would invalidate such a will. By parity of reasoning,
when one executes a will which is invalid for failure to observe and

44

follow the legal requirements at the time of its execution then upon
his death he should be regarded and declared as having died
intestate, and his heirs will then inherit by intestate succession, and
no subsequent law with more liberal requirements or which
dispenses with such requirements as to execution should be
allowed to validate a defective will and thereby divest the heirs of
their vested rights in the estate by intestate succession. The
general rule is that the Legislature can not validate void wills (57
Am. Jur., Wills, Sec. 231, pp. 192-193).

because at the time of the hearing and when the case was to be
decided the new Civil Code was already in force, which Code
permitted the execution of holographic wills, under a liberal view,
and to carry out the intention of the testator which according to the
trial court is the controlling factor and may override any defect in
form, said trial court by order dated January 24, 1952, admitted to
probate Exhibit "A", as the Last Will and Testament of Father
Sancho Abadia. The oppositors are appealing from that decision;
and because only questions of law are involved in the appeal, the
case was certified to us by the Court of Appeals.

DECISION

The new Civil Code (Republic Act No. 386) under article 810 thereof
provides that a person may execute a holographic will which must
be entirely written, dated and signed by the testator himself and
need not be witnessed. It is a fact, however, that at the time that
Exhibit "A" was executed in 1923 and at the time that Father
Abadia died in 1943, holographic wills were not permitted, and the
law at the time imposed certain requirements for the execution of
wills, such as numbering correlatively each page (not folio or sheet)
in letters and signing on the left hand margin by the testator and
by the three attesting witnesses, requirements which were not
complied with in Exhibit "A" because the back pages of the first two
folios of the will were not signed by any one, not even by the
testator and were not numbered, and as to the three front pages,
they were signed only by the testator.

MONTEMAYOR, J.:
On September 6, 1923, Father Sancho Abadia, parish priest of
Talisay, Cebu, executed a document purporting to be his Last Will
and Testament now marked Exhibit "A." Resident of the City of
Cebu, he died on January 14, 1943, in the municipality of
Aloguinsan, Cebu, where he was an evacue. He left properties
estimated at P8,000 in value. On October 2, 1946, one Andres
Enriquez, one of the legatees in Exhibit "A", filed a petition for its
probate in the Court of First Instance of Cebu. Some cousins and
nephews who would inherit the estate of the deceased if he left no
will, filed opposition.
During the hearing one of the attesting witnesses, the other two
being dead, testified without contradiction that in his presence and
in the presence of his co-witnesses, Father Sancho wrote out in
longhand Exhibit "A" in Spanish which the testator spoke and
understood; that he (testator) signed on he left hand margin of the
front page of each of the three folios or sheets of which the
document is composed, and numbered the same with Arabic
numerals, and finally signed his name at the end of his writing at
the last page, all this, in the presence of the three attesting
witnesses after telling that it was his last will and that the said
three witnesses signed their names on the last page after the
attestation clause in his presence and in the presence of each
other. The oppositors did not submit any evidence.
The learned trial court found and declared Exhibit "A" to be a
holographic will; that it was in the handwriting of the testator and
that although at the time it was executed and at the time of the
testators death, holographic wills were not permitted by law still,

Interpreting and applying this requirement this Court in the case of


In re Estate of Saguinsin, 41 Phil., 875, 879, referring to the failure
of the testator and his witnesses to sign on the left hand margin of
every page, said:jgc:chanrobles.com.ph
". . . This defect is radical and totally vitiates the testament. It is not
enough that the signatures guaranteeing authenticity should
appear upon two folios or leaves; three pages having been written
on, the authenticity of all three of them should be guaranteed by
the signature of the alleged testatrix and her witnesses."cralaw
virtua1aw library
And in the case of Aspe v. Prieto, 46 Phil., 700, referring to the
same requirement, this Court declared:jgc:chanrobles.com.ph
"From an examination of the document in question, it appears that
the left margins of the six pages of the document are signed only
by Ventura Prieto. The noncompliance with section 2 of Act No.

45

2645 by the attesting witnesses who omitted to sign with the


testator at the left margin of each of the five pages of the
document alleged to be the will of Ventura Prieto, is a fatal defect
that constitutes an obstacle to its probate."cralaw virtua1aw library

execution should be allowed to validate a defective will and thereby


divest the heirs of their vested rights in the estate by intestate
succession. The general rule is that the Legislature can not validate
void wills (57 Am. Jur., Wills, Sec. 231, pp. 192-193).

What is the law to apply to the probate of Exh. "A" ? May we apply
the provisions of the new Civil Code which now allows holographic
wills, like Exhibit "A" which provisions were invoked by the
appellee- petitioner and applied by the lower court? But article 795
of this same new Civil Code expressly provides: "The validity of a
will as to its form depends upon the observance of the law in force
at the time it is made." The above provision is but an expression or
statement of the weight of authority to the effect that the validity
of a will is to be judged not by the law inforce at the time of the
testators death or at the time the supposed will is presented in
court for probate or when the petition is decided by the court but at
the time the instrument was executed. One reason in support of the
rule is that although the will operates upon and after the death of
the testator, the wishes of the testator about the disposition of his
estate among his heirs and among the legatees is given solemn
expression at the time the will is executed, and in reality, the
legacy or bequest then becomes a completed act. This ruling has
been laid down by this court in the case of In re Will of Riosa, 39
Phil., 23. It is a wholesome doctrine and should be followed.

In view of the foregoing, the order appealed from is reversed, and


Exhibit "A" is denied probate. With costs.

Of course, there is the view that the intention of the testator should
be the ruling and controlling factor and that all adequate remedies
and interpretations should be resorted to in order to carry out said
intention, and that when statutes passed after the execution of the
will and after the death of the testator lessen the formalities
required by law for the execution of wills, said subsequent statutes
should be applied so as to validate wills defectively executed
according to the law in force at the time of execution. However, we
should not forget that from the day of the death of the testator, if
he leaves a will, the title of the legatees and devisees under it
becomes a vested right, protected under the due process clause of
the constitution against a subsequent change in the statute adding
new legal requirements of execution of wills which would invalidate
such a will. By parity of reasoning, when one executes a will which
is invalid for failure to observe and follow the legal requirements at
the time of its execution then upon his death he should be regarded
and declared as having died intestate, and his heirs will then inherit
by intestate succession, and no subsequent law with more liberal
requirements or which dispenses with such requirements as to

Paras, C.J., Pablo, Bengzon, Padilla, Reyes, A., Jugo, Bautista Angelo,
Labrador, Concepcion and Reyes J.B.L., JJ., concur.

G.R. No. L-32636

March 17, 1930

In the matter Estate of Edward Randolph Hix, deceased.


A.W. FLUEMER, petitioner-appellant,
vs.
ANNIE COUSHING HIX, oppositor-appellee.
C.A. Sobral for appellant.
Harvey & O' Brien and Gibbs & McDonough for appellee.
MALCOLM, J.:
The special administrator of the estate of Edward Randolph Hix
appeals from a decision of Judge of First Instance Tuason denying
the probate of the document alleged to by the last will and

46

testament of the deceased. Appellee is not authorized to carry on


this appeal. We think, however, that the appellant, who appears to
have been the moving party in these proceedings, was a "person
interested in the allowance or disallowance of a will by a Court of
First Instance," and so should be permitted to appeal to the
Supreme Court from the disallowance of the will (Code of Civil
Procedure, sec. 781, as amended; Villanueva vs. De Leon [1925],
42 Phil., 780).
It is 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 Verginia
Code, Annotated, by Hogg, Charles E., vol. 2, 1914, p. 1690, and as
certified to by the Director of the National Library. But this was far
from 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 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 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 sale 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.
In addition, the due execution of the will was not established. The
only evidence on this point is to be found in the testimony of the
petitioner. Aside from this, there was nothing to indicate that the
will was acknowledged by the testator in the presence of two
competent witnesses, of that these witnesses subscribed the will in
the presence of the testator and of each other as the law of West
Virginia seems to require. On the supposition that the witnesses to
the will reside without the Philippine Islands, it would then the duty
of the petitioner to prove execution by some other means (Code of
Civil Procedure, sec. 633.)

It was also necessary for the petitioner to prove that the testator
had his domicile in West Virginia and not establish this fact
consisted of the recitals in the CATHY will and the testimony of the
petitioner. Also in beginning administration proceedings orginally in
the Philippine Islands, the petitioner violated his own theory by
attempting to have the principal administration in the Philippine
Islands.
While the appeal pending submission in this court, the attorney for
the appellant presented an unverified petition asking the court to
accept as part of the evidence the documents attached to the
petition. One of these documents discloses that a paper writing
purporting to be the was presented for probate on June 8, 1929, to
the clerk of Randolph Country, State of West Virginia, in vacation,
and was duly proven by the oaths of Dana Wamsley and Joseph L.
MAdden, the subscribing witnesses thereto , and ordered to be
recorded and filed. It was shown by another document that, in
vacation, on June 8, 1929, the clerk of court of Randolph Country,
West Virginia, appointed Claude W. Maxwell as administrator, cum
testamento annexo, of the estate of Edward Randolph Hix,
deceased. In this connection, it is to be noted that the application
for the probate of the will in the Philippines was filed on February
20, 1929, while the proceedings in West Virginia appear to have
been initiated on June 8, 1929. These facts are strongly indicative
of an intention to make the Philippines the principal administration
and West Virginia the ancillary administration. However this may
be, no attempt has been made to comply with Civil Procedure, for
no hearing on the question of the allowance of a will said to have
been proved and allowed in West Virginia has been requested.
There is no showing that the deceased left any property at any
place other than the Philippine Islands and no contention that he
left any in West Virginia.
Reference has been made by the parties to a divorce purported to
have been awarded Edward Randolph Hix from Annie Cousins Hix
on October 8, 1925, in the State of West specific pronouncements
on the validity or validity of this alleged divorce.

47

For all of the foregoing, the judgment appealed from will be


affirmed, with the costs of this instance against the appellant.
Villamor, Ostrand, Johns, Romualdez and Villa-Real, JJ., concur.

G.R. No. L-32636

March 17, 1930

In the matter Estate of Edward Randolph Hix, deceased.


A.W. FLUEMER, petitioner-appellant,
vs.
ANNIE COUSHING HIX, oppositor-appellee.
C.A. Sobral for appellant.
Harvey & O' Brien and Gibbs & McDonough for appellee.
MALCOLM, J.:

The special administrator of the estate of Edward Randolph Hix


appeals from a decision of Judge of First Instance Tuason denying
the probate of the document alleged to by the last will and
testament of the deceased. Appellee is not authorized to carry on
this appeal. We think, however, that the appellant, who appears to
have been the moving party in these proceedings, was a "person
interested in the allowance or disallowance of a will by a Court of
First Instance," and so should be permitted to appeal to the
Supreme Court from the disallowance of the will (Code of Civil
Procedure, sec. 781, as amended; Villanueva vs. De Leon [1925],
42 Phil., 780).
It is 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 Verginia
Code, Annotated, by Hogg, Charles E., vol. 2, 1914, p. 1690, and as
certified to by the Director of the National Library. But this was far
from 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 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 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 sale 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.
In addition, the due execution of the will was not established. The
only evidence on this point is to be found in the testimony of the
petitioner. Aside from this, there was nothing to indicate that the
will was acknowledged by the testator in the presence of two
competent witnesses, of that these witnesses subscribed the will in
the presence of the testator and of each other as the law of West
Virginia seems to require. On the supposition that the witnesses to

48

the will reside without the Philippine Islands, it would then the duty
of the petitioner to prove execution by some other means (Code of
Civil Procedure, sec. 633.)
It was also necessary for the petitioner to prove that the testator
had his domicile in West Virginia and not establish this fact
consisted of the recitals in the CATHY will and the testimony of the
petitioner. Also in beginning administration proceedings orginally in
the Philippine Islands, the petitioner violated his own theory by
attempting to have the principal administration in the Philippine
Islands.

Reference has been made by the parties to a divorce purported to


have been awarded Edward Randolph Hix from Annie Cousins Hix
on October 8, 1925, in the State of West specific pronouncements
on the validity or validity of this alleged divorce.
For all of the foregoing, the judgment appealed from will be
affirmed, with the costs of this instance against the appellant.
Villamor, Ostrand, Johns, Romualdez and Villa-Real, JJ., concur.
..

While the appeal pending submission in this court, the attorney for
the appellant presented an unverified petition asking the court to
accept as part of the evidence the documents attached to the
petition. One of these documents discloses that a paper writing
purporting to be the was presented for probate on June 8, 1929, to
the clerk of Randolph Country, State of West Virginia, in vacation,
and was duly proven by the oaths of Dana Wamsley and Joseph L.
MAdden, the subscribing witnesses thereto , and ordered to be
recorded and filed. It was shown by another document that, in
vacation, on June 8, 1929, the clerk of court of Randolph Country,
West Virginia, appointed Claude W. Maxwell as administrator, cum
testamento annexo, of the estate of Edward Randolph Hix,
deceased. In this connection, it is to be noted that the application
for the probate of the will in the Philippines was filed on February
20, 1929, while the proceedings in West Virginia appear to have
been initiated on June 8, 1929. These facts are strongly indicative
of an intention to make the Philippines the principal administration
and West Virginia the ancillary administration. However this may
be, no attempt has been made to comply with Civil Procedure, for
no hearing on the question of the allowance of a will said to have
been proved and allowed in West Virginia has been requested.
There is no showing that the deceased left any property at any
place other than the Philippine Islands and no contention that he
left any in West Virginia.

49

EN BANC
G.R. No. L-23678

June 6, 1967

TESTATE ESTATE OF AMOS G. BELLIS, deceased.


PEOPLE'S BANK and TRUST COMPANY, executor.
MARIA CRISTINA BELLIS and MIRIAM PALMA
BELLIS, oppositors-appellants,
vs.
EDWARD A. BELLIS, ET AL., heirs-appellees.
Vicente R. Macasaet and Jose D. Villena for oppositors appellants.
Paredes, Poblador, Cruz and Nazareno for heirs-appellees E. A.
Bellis, et al.
Quijano and Arroyo for heirs-appellees W. S. Bellis, et al.
J. R. Balonkita for appellee People's Bank & Trust Company.
Ozaeta, Gibbs and Ozaeta for appellee A. B. Allsman.
BENGZON, J.P., J.:
This is a direct appeal to Us, upon a question purely of law, from an
order of the Court of First Instance of Manila dated April 30, 1964,
approving the project of partition filed by the executor in Civil Case
No. 37089 therein.1wph1.t
The facts of the case are as follows:
Amos G. Bellis, born in Texas, was "a citizen of the State of Texas
and of the United States." By his first wife, Mary E. Mallen, whom he
divorced, he had five legitimate children: Edward A. Bellis, George
Bellis (who pre-deceased him in infancy), Henry A. Bellis, Alexander
Bellis and Anna Bellis Allsman; by his second wife, Violet Kennedy,
who survived him, he had three legitimate children: Edwin G. Bellis,
Walter S. Bellis and Dorothy Bellis; and finally, he had three
illegitimate children: Amos Bellis, Jr., Maria Cristina Bellis and
Miriam Palma Bellis.

On August 5, 1952, Amos G. Bellis executed a will in the


Philippines, in which he directed that after all taxes, obligations,
and expenses of administration are paid for, his distributable estate
should be divided, in trust, in the following order and manner: (a)
$240,000.00 to his first wife, Mary E. Mallen; (b) P120,000.00 to his
three illegitimate children, Amos Bellis, Jr., Maria Cristina Bellis,
Miriam Palma Bellis, or P40,000.00 each and (c) after the foregoing
two items have been satisfied, the remainder shall go to his seven
surviving children by his first and second wives, namely: Edward A.
Bellis, Henry A. Bellis, Alexander Bellis and Anna Bellis Allsman,
Edwin G. Bellis, Walter S. Bellis, and Dorothy E. Bellis, in equal
shares.1wph1.t
Subsequently, or on July 8, 1958, Amos G. Bellis died a resident of
San Antonio, Texas, U.S.A. His will was admitted to probate in the
Court of First Instance of Manila on September 15, 1958.
The People's Bank and Trust Company, as executor of the will, paid
all the bequests therein including the amount of $240,000.00 in the
form of shares of stock to Mary E. Mallen and to the three (3)
illegitimate children, Amos Bellis, Jr., Maria Cristina Bellis and
Miriam Palma Bellis, various amounts totalling P40,000.00 each in
satisfaction of their respective legacies, or a total of P120,000.00,
which it released from time to time according as the lower court
approved and allowed the various motions or petitions filed by the
latter three requesting partial advances on account of their
respective legacies.
On January 8, 1964, preparatory to closing its administration, the
executor submitted and filed its "Executor's Final Account, Report of
Administration and Project of Partition" wherein it reported, inter
alia, the satisfaction of the legacy of Mary E. Mallen by the delivery
to her of shares of stock amounting to $240,000.00, and the
legacies of Amos Bellis, Jr., Maria Cristina Bellis and Miriam Palma
Bellis in the amount of P40,000.00 each or a total of P120,000.00.
In the project of partition, the executor pursuant to the "Twelfth"
clause of the testator's Last Will and Testament divided the
residuary estate into seven equal portions for the benefit of the

50

testator's seven legitimate children by his first and second


marriages.
On January 17, 1964, Maria Cristina Bellis and Miriam Palma Bellis
filed their respective oppositions to the project of partition on the
ground that they were deprived of their legitimes as illegitimate
children and, therefore, compulsory heirs of the deceased.
Amos Bellis, Jr. interposed no opposition despite notice to him,
proof of service of which is evidenced by the registry receipt
submitted on April 27, 1964 by the executor.1
After the parties filed their respective memoranda and other
pertinent pleadings, the lower court, on April 30, 1964, issued an
order overruling the oppositions and approving the executor's final
account, report and administration and project of partition. Relying
upon Art. 16 of the Civil Code, it applied the national law of the
decedent, which in this case is Texas law, which did not provide for
legitimes.
Their respective motions for reconsideration having been denied by
the lower court on June 11, 1964, oppositors-appellants appealed to
this Court to raise the issue of which law must apply Texas law or
Philippine law.
In this regard, the parties do not submit the case on, nor even
discuss, the doctrine of renvoi, applied by this Court in Aznar v.
Christensen Garcia, L-16749, January 31, 1963. Said doctrine is
usually pertinent where the decedent is a national of one country,
and a domicile of another. In the present case, it is not disputed
that the decedent was both a national of Texas and a domicile
thereof at the time of his death.2 So that even assuming Texas has
a conflict of law rule providing that the domiciliary system (law of
the domicile) should govern, the same would not result in a
reference back (renvoi) to Philippine law, but would still refer to
Texas law. Nonetheless, if Texas has a conflicts rule adopting the
situs theory (lex rei sitae) calling for the application of the law of
the place where the properties are situated, renvoi would arise,

since the properties here involved are found in the Philippines. In


the absence, however, of proof as to the conflict of law rule of
Texas, it should not be presumed different from ours.3 Appellants'
position is therefore not rested on the doctrine of renvoi. As stated,
they never invoked nor even mentioned it in their arguments.
Rather, they argue that their case falls under the circumstances
mentioned in the third paragraph of Article 17 in relation to Article
16 of the Civil Code.
Article 16, par. 2, and Art. 1039 of the Civil Code, render applicable
the national law of the decedent, in intestate or testamentary
successions, with regard to four items: (a) the order of succession;
(b) the amount of successional rights; (e) the intrinsic validity of the
provisions of the will; and (d) the capacity to succeed. They provide
that
ART. 16. Real property as well as personal property is subject
to the law of the country where it is situated.
However, intestate and testamentary successions, both with
respect to the order of succession and to the amount of
successional rights and to the intrinsic validity of
testamentary provisions, shall be regulated by the national
law of the person whose succession is under consideration,
whatever may he the nature of the property and regardless
of the country wherein said property may be found.
ART. 1039. Capacity to succeed is governed by the law of
the nation of the decedent.
Appellants would however counter that Art. 17, paragraph three, of
the Civil Code, stating that
Prohibitive laws concerning persons, their acts or property,
and those which have for their object public order, public
policy and good customs shall not be rendered ineffective by
laws or judgments promulgated, or by determinations or
conventions agreed upon in a foreign country.

51

prevails as the exception to Art. 16, par. 2 of the Civil Code aforequoted. This is not correct. Precisely, Congressdeleted the phrase,
"notwithstanding the provisions of this and the next preceding
article" when they incorporated Art. 11 of the old Civil Code as Art.
17 of the new Civil Code, while reproducing without substantial
change the second paragraph of Art. 10 of the old Civil Code as Art.
16 in the new. It must have been their purpose to make the second
paragraph of Art. 16 a specific provision in itself which must be
applied in testate and intestate succession. As further indication of
this legislative intent, Congress added a new provision, under Art.
1039, which decrees that capacity to succeed is to be governed by
the national law of the decedent.
It is therefore evident that whatever public policy or good customs
may be involved in our System of legitimes, Congress has not
intended to extend the same to the succession of foreign nationals.
For it has specifically chosen to leave, inter alia, the amount of
successional rights, to the decedent's national law. Specific
provisions must prevail over general ones.
Appellants would also point out that the decedent executed two
wills one to govern his Texas estate and the other his Philippine
estate arguing from this that he intended Philippine law to
govern his Philippine estate. Assuming that such was the
decedent's intention in executing a separate Philippine will, it would
not alter the law, for as this Court ruled in Miciano v. Brimo, 50 Phil.
867, 870, a provision in a foreigner's will to the effect that his
properties shall be distributed in accordance with Philippine law
and not with his national law, is illegal and void, for his national law
cannot be ignored in regard to those matters that Article 10 now
Article 16 of the Civil Code states said national law should
govern.

The parties admit that the decedent, Amos G. Bellis, was a citizen
of the State of Texas, U.S.A., and that under the laws of Texas, there
are no forced heirs or legitimes. Accordingly, since the intrinsic
validity of the provision of the will and the amount of successional
rights are to be determined under Texas law, the Philippine law on
legitimes cannot be applied to the testacy of Amos G. Bellis.
Wherefore, the order of the probate court is hereby affirmed in toto,
with costs against appellants. So ordered.
Concepcion, C.J., Reyes, J.B.L., Dizon, Regala, Makalintal, Zaldivar,
Sanchez and Castro, JJ., concur.

Footnotes
1

He later filed a motion praying that as a legal heir he be


included in this case as one of the oppositors-appellants; to
file or adopt the opposition of his sisters to the project of
partition; to submit his brief after paying his proportionate
share in the expenses incurred in the printing of the record
on appeal; or to allow him to adopt the briefs filed by his
sisters but this Court resolved to deny the motion.
2

San Antonio, Texas was his legal residence.

Lim vs. Collector, 36 Phil. 472; In re Testate Estate of


Suntay, 95 Phil. 500.
..

52