In re: Will and Testament of the deceased REVEREND SANCHO

ABADIA. SEVERINA A. VDA. DE ENRIQUEZ, ET AL., petitioners-appellees,

vs. 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.
MONTEMAYOR, J.:

August 9, 1954

Page

G.R. No. L-7188

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:
. . . . 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.

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 evacuee. 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.

And in the case of Aspe vs. Prieto, 46 Phil., 700, referring to the same
requirement, this Court declared:

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.

What is the law to apply to the probate of Exh. "A"? May we apply the
provisions of the new Civil Code which not 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 affect that the
validity of a will is to be judged not by the law enforce at the time of the
testator's 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.

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 testator's death, holographic wills were
not permitted by law still, 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.
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.

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. 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.

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 execution should be allowed
to validate a defective will and thereby divest the heirs of their vested rights in

In view of the foregoing, the order appealed from is reversed, and Exhibit "A" is
denied probate. With costs.
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 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,

2
Page

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).

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.
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.

3
Page

dismissed the application, stating:... "Under our Existing rules only Those wills
That Have Previously Been PROVED and allowed in the United States, or any
state or territory thereof, or any foreign country, ACCORDING to the laws of
Such state, territory, or country, may be allowed, or Recorded filed in the court
of first instance proper in the Philippines.... " Against this order the applicant
appealed.
The opposition, in support of his theory, argues that Article 635 of the Code of
Civil Procedure was repealed by Rule 78, under Section 13, Article VIII of the
Constitution. That Article 635 of the Code of Civil Procedure reads:
The testament granted outside of the Philippine Islands, which may be
authenticated and legalized under the laws of the state or country where I was
granted, could be authenticated, legalized and registered in the Philippines,
and will have the same efficacy Quesi has been granted in accordance with the
laws of these Islands.

G.R. No. L-4113 June 30, 1952

Testamentary the late William R. Giberson. LELA G. DALTON,
applicant-appellant,
vs. SPRING Giberson, opposition-appealed.
Messrs. C. and A. P. D. Johnston Deen on behalf of the appellant.
Francisco D. E. F. Remotique for appellee.
PAUL, J .:
Lela G. Dalton presented 'on 10 February 1949 an application in the Court of
First Instance of Cebupidiendo the legalization of a document which, she
claims, is holographic will of William R. Giberson, otorgadoen April 29, 1920 in
San Francisco, California; that Giberson was a citizen of the state of Illinois,
United States, and a resident of Cebu; and died on August 6, 1943 in the
concentration camp at the University of Santo Tomas, Manila, Philippines.
Spring Giberson, legitimate son of William R. Giberson, presented an opposition
claiming that the will is apocryphal; that does not represent the true will of the
decedent Giberson: and has not been otor gado according to the law.
On 1 July 1949, the opponent filed a mocionpidiendo the dismissal of the
request, claiming that, before a country will granted in extranjeropueda be
legalized in the Philippines, it must be demonstrated that the will had been
legalized that country previamenteen , according to article 1 of Rule 78; that
the request does not allege that the will had already been legalized in
California.
The applicant opposed the motion to dismiss. On 20 June 1950 the judge

This article has been applied in the case of Templeton against Rider Babcock
Babcock, 52 Phil. Rep., 134, in which it was stated that the will made in
California and could be legalized in that state, may be legalized in the
Philippines. In Case of Varela against Varela Calderon, 57 Phil. Rep., 291, the
will made in Paris, France, by the late Dr. Francisco Varela Calderon was
legalized because it was a testament that podiaser legalized in accordance
with the laws of France.
A person may dispose of its assets to after his death by will. The granting of a
testamentoes a legal act that can be done in the Philippines or abroad; if it is
granted in a foreign country, it has to be done according to the laws of that
country, which is universally adopted rule.
The alien may have to after his death of his property in the Philippines by will
and is not forced to grant the Philippines; you can do so in their own country or
another, but according to the laws of the country in which it gives. Article 635
of the Code of Civil Procedure, respecting the freedom of the testator to grant
his will anywhere, has the will to be legalized in a foreign country in
accordance with the laws of that country can legalizsarse also in the
Philippines. This provision is substantive, creates the rights of the beneficiaries
of the will: they are assured to legalize Philippines wills otorgadosfuera Islands
if they can be legalized in the country in which they were granted, giving them
cause of action for pedirjudicialmente compliance with the last testator's will
whatever the place of execution. Sinesa provision would be truncated to test
the power.
By amending this Court the Code of Civil Procedure, only amended the
procedural part, but not the substantive part. "The substantive law can not be
enmendadapor rules of procedure." (Reyes v Widow of Light, * 16 Lawyer
Journal, 623.) For both, there is still subsisting as the articulo635 substantive
law of the Code of Civil Procedure.

Article 1 of Rule 78 is not more than a transplantation of Article 637 of the

Code of Civil Procedure. We reproduce the two provisions:
RULE 78 - SECTION 1. Wills PROVED outside Philippines May be allowed here. PROVED Wills and allowed in a foreign country, According to the laws of Such
country, may be allowed, filed, and Recorded by the Court of First Instance
proper in the Philippines.
SEC. 637. Wills islands outside PROVED May be allowed here. - Wills PROVED
and allowed in the United States, or any State or Territory thereof, or in a
foreign state or country, According to the laws of Such State, Territory, or
country, may be allowed, filed, and Recorded in the Court of First Instance of
the province in Which the testator has real personal or estate on May Which
Such will operate.
Underlined words in the second arrangement are not listed in the first.
Article 1 of Rule 78 does not preclude be legalized in the Philippines a
testament granted in a foreign country, if it can be legalized according to the
laws of that country, or require to be previously legalized in that country. It is
untenable, therefore, the theory of the opposition.
the order appealed against the appellee bordering revoked.
Paras, Pres., Fair, Bengzon, Padilla, Tuason, Montemayor, Bautista Angelo and
Labrador, JJ., Concur.
G.R. No. L-20234

December 23, 1964

PAULA DE LA CERNA, ET AL., petitioners, vs.

MANUELA REBACA POTOT, ET AL., and THE HONORABLE COURT OF
APPEALS, respondents.
Philip M. Alo and Crispin M. Menchavez for petitioners.Nicolas Jumapao for
respondents.
REYES, J.B.L., J.:
Appeal by Paula de la Cerna and others from a decision of the Court of
Appeals, Sixth Division (C.A.-G.R. No. 23763-R) reversing that of the Court of
First Instance of Cebu (Civ. Case No. R-3819) and ordering the dismissal of an
action for partition.

4
Page

And Article 637 reads: "Authenticated Wills and legalized in the United States
or any state or territory thereof, or a state or paisextranjero, in accordance
with the laws of that state, territory or country may be legalized, registered
yarchivados in the Court of First Instance of the provinciaen the testator's
goods furniture or properties efectados by such wills. " This articulono is in
conflict with Article 635; in fact, more than its corollary noes. If a will made in a
foreign country can be legalized according to the laws of that country may also
be legalized in the Philippines, with greater reason wills and legalizadosen
foreign countries according to the laws of those countries, they can be
legalized also in the Philippines.

The factual background appears in the following portion of the decision of the
Court of Appeals (Petition, Annex A, pp. 2-4):
It appears that on May 9, 1939, the spouses, Bernabe de la Serna and Gervasia
Rebaca, executed a joint last will and testament in the local dialect whereby
they willed that "our two parcels of land acquired during our marriage together
with all improvements thereon shall be given to Manuela Rebaca, our niece,
whom we have nurtured since childhood, because God did not give us any
child in our union, Manuela Rebaca being married to Nicolas Potot", and that
"while each of the testators is yet living, he or she will continue to enjoy the
fruits of the two lands aforementioned", the said two parcels of land being
covered by Tax No. 4676 and Tax No. 6677, both situated in sitio Bucao, barrio
Lugo, municipality of Borbon, province of Cebu. Bernabe dela Serna died on
August 30, 1939, and the aforesaid will was submitted to probate by said
Gervasia and Manuela before the Court of First Instance of Cebu which, after
due publication as required by law and there being no opposition, heard the
evidence, and, by Order of October 31, 1939; in Special Proceedings No. 499,
"declara legalizado el documento Exhibit A como el testamento y ultima
voluntad del finado Bernabe de la Serna con derecho por parte du su viuda
superstite Gervasia Rebaca y otra testadora al propio tiempo segun el Exhibit A
de gozar de los frutos de los terranos descritos en dicho documents; y habido
consideracion de la cuantia de dichos bienes, se decreta la distribucion
sumaria de los mismos en favor de la logataria universal Manuela Rebaca de
Potot previa prestacion por parte de la misma de una fianza en la sum de
P500.00 para responder de cualesquiera reclamaciones que se presentare
contra los bienes del finado Bernabe de la Serna de los aos desde esta fecha"
(Act Esp. 499, Testamentaria Finado Bernabe de la Serna) Upon the death of
Gervasia Rebaca on October 14, 1952, another petition for the probate of the
same will insofar as Gervasia was concerned was filed on November 6, 1952,
being Special Proceedings No. 1016-R of the same Court of First Instance of
Cebu, but for failure of the petitioner, Manuela R. Potot and her attorney,
Manuel Potot to appear, for the hearing of said petition, the case was
dismissed on March 30, 1954 Spec. Proc. No. 1016-R, In the matter of the
Probate of the Will of Gervasia Rebaca).
The Court of First Instance ordered the petition heard and declared the
testament null and void, for being executed contrary to the prohibition of joint
wills in the Civil Code (Art. 669, Civil Code of 1889 and Art. 818, Civil Code of
the Philippines); but on appeal by the testamentary heir, the Court of Appeals
reversed, on the ground that the decree of probate in 1939 was issued by a
court of probate jurisdiction and conclusive on the due execution of the
testament. Further, the Court of Appeals declared that:
... . It is true the law (Art. 669, old Civil Code; Art. 818, new Civil Code).
prohibits the making of a will jointly by two or more persons either for their
reciprocal benefit or for the benefit of a third person. However, this form of will
has long been sanctioned by use, and the same has continued to be used; and
when, as in the present case, one such joint last will and testament has been
admitted to probate by final order of a Court of competent jurisdiction, there
seems to be no alternative except to give effect to the provisions thereof that
are not contrary to law, as was done in the case of Macrohon vs. Saavedra, 51
Phil. 267, wherein our Supreme Court gave effect to the provisions of the joint
will therein mentioned, saying, "assuming that the joint will in question is
valid."
Whence this appeal by the heirs intestate of the deceased husband, Bernabe

Petitioners, as heirs and successors of the late Bernabe de la Cerna, are

concluded by the 1939 decree admitting his will to probate. The contention
that being void the will cannot be validated, overlooks that the ultimate
decision on Whether an act is valid or void rests with the courts, and here they
have spoken with finality when the will was probated in 1939. On this court,
the dismissal of their action for partition was correct.
But the Court of Appeals should have taken into account also, to avoid future
misunderstanding, that the probate decree in 1989 could only affect the share
of the deceased husband, Bernabe de la Cerna. It could not include the
disposition of the share of the wife, Gervasia Rebaca, who was then still alive,
and over whose interest in the conjugal properties the probate court acquired
no jurisdiction, precisely because her estate could not then be in issue. Be it
remembered that prior to the new Civil Code, a will could not be probated
during the testator's lifetime.
It follows that the validity of the joint will, in so far as the estate of the wife was
concerned, must be, on her death, reexamined and adjudicated de novo, since
a joint will is considered a separate will of each testator. Thus regarded, the
holding of the court of First Instance of Cebu that the joint will is one prohibited
by law was correct as to the participation of the deceased Gervasia Rebaca in
the properties in question, for the reasons extensively discussed in our
decision in Bilbao vs. Bilbao, 87 Phil. 144, that explained the previous holding
in Macrohon vs. Saavedra, 51 Phil. 267.
Therefore, the undivided interest of Gervasia Rebaca should pass upon her
death to her heirs intestate, and not exclusively to the testamentary heir,
unless some other valid will in her favor is shown to exist, or unless she be the
only heir intestate of said Gervasia.
It is unnecessary to emphasize that the fact that joint wills should be in
common usage could not make them valid when our Civil Codes consistently
invalidated them, because laws are only repealed by other subsequent laws,
and no usage to the contrary may prevail against their observance (Art. 5, Civ.
Code of 1889; Art. 7, Civil Code of the Philippines of 1950).
WITH THE FOREGOING MODIFICATION, the judgment of the Court of Appeals in
CA-G.R. No. 23763-R is affirmed. No Costs.
Bengzon, C.J., Bautista, Angelo, Concepcion, Barrera, Paredes, Dizon Regala,
Makalintal, Bengzon, J.P., and Zaldivar, JJ., concur.

The appealed decision correctly held that the final decree of probate, entered
in 1939 by the Court of First Instance of Cebu (when the testator, Bernabe de
la Cerna, died), has conclusive effect as to his last will and testament despite
the fact that even then the Civil Code already decreed the invalidity of joint
wills, whether in favor of the joint testators, reciprocally, or in favor of a third
party (Art. 669, old Civil Code). The error thus committed by the probate court
was an error of law, that should have been corrected by appeal, but which did
not affect the jurisdiction of the probate court, nor the conclusive effect of its
final decision, however erroneous. A final judgment rendered on a petition for
the probate of a will is binding upon the whole world (Manalo vs. Paredes, 47
Phil. 938; In re Estates of Johnson, 39 Phil. 156); and public policy and sound
practice demand that at the risk of occasional errors judgment of courts should
become final at some definite date fixed by law. Interest rei publicae ut finis
set litium (Dy Cay vs. Crossfield, 38 Phil, 521, and other cases cited in 2 Moran,
Comments on the Rules of Court (1963 Ed., p. 322).

Page

de la Cerna.

G.R. No. L-23002

July 31, 1967

CONCEPCION FELIX VDA. DE RODRIGUEZ, plaintiff-appellant, vs.

GERONIMO RODRIGUEZ., ET AL., defendants-appellees.
Ozaeta, Gibbs and Ozaeta for plaintiff-appellant.Sycip, Salazar, Luna and
Associates and Carolina C. Grio-Aquino for defendants-appellees.
REYES, J.B.L., J.:
This is an appeal by Concepcion Felix Vda. de Rodriguez from the decision of
the Court of First Instance of Bulacan in Civil Case No. 2565, which she
commenced on May 28, 1962, to secure declaration, of nullity of two contracts
executed on January 24, 1934 and for recovery of certain properties.
The facts of this case may be briefly stated as follows:
Concepcion Felix, widow of the late Don Felipe Calderon and with whom she
had one living child, Concepcion Calderon, contracted a second marriage on
June 20, 1929, with Domingo Rodriguez, widower with four children by a
previous marriage, named Geronimo, Esmeragdo, Jose and Mauricio, all
surnamed Rodriguez. There was no issue in this second marriage.
Prior to her marriage to Rodriguez, Concepcion Felix was the registered owner
of 2 fishponds located in the barrio of Babagad, municipality of Bulacan,
Bulacan province. with a total area of 557,711 square meters covered by OCT
Nos. 605 and 807. Under date of January 24, 1934, Concepcion Felix appeared
to have executed a deed of sale conveying ownership of the aforesaid
properties to her daughter, Concepcion Calderon, for the sum of P2,500.00,
which the latter in turn appeared to have transferred to her mother and
stepfather by means of a document dated January 27, 1934. Both deeds,
notarized by Notary Public Jose D. Mendoza, were registered in the office of the
Register of Deeds of Bulacan on January 29, 1934, as a consequence of which,
the original titles were cancelled and TCT Nos. 13815 and 13816 were issued in
the names of the spouses Domingo Rodriguez and Concepcion Felix.
On March 6, 1953, Domingo Rodriguez died intestate, survived by the widow,
Concepcion Felix, his children Geronimo Esmeragdo and Mauricio and
grandchildren Oscar, Juan and Ana, surnamed Rodriguez, children of a son,
Jose, who had predeceased him.
On March 16, 1953, the above-named widow, children and grandchildren of the
deceased entered into an extra-judicial settlement of his (Domingo's) estate,
consisting of one-half of the properties allegedly belonging to the conjugal
partnership. Among the properties listed as conjugal were the two parcels of
land in Bulacan, Bulacan, which, together with another piece of property, were
divided among the heirs in this manner:
WHEREAS, the parties have furthermore agreed that the fishpond covered by
TCT Nos. 13815, 13816 and 24109 of the Office of the Register of Deeds of
Bulacan, containing an area of 557,971 sq. m., which is likewise the conjugal
property of the deceased and his surviving spouse; 1/2 of the same or
278,985.5 sq. m. belongs to said Concepcion Felix Vda. de Rodriguez, as her
share in the conjugal property; and 3/4 of the remaining half or 209,239.125
sq. m. are transferred in full ownership to Geronimo Rodriguez, Esmeragdo
Rodriguez and Mauricio Rodriguez, share and share alike, while the other 1/4 or
69,746.375 sq. m. of the said remaining half goes in equal shares to Oscar

On March 23, 1953, in a power of attorney executed by the children and

grandchildren of Domingo Rodriguez, Concepcion Felix Vda. de Rodriguez was
named their attorney in-fact, authorized to manage their shares in the
fishponds (Exh. 4).
On July 2, 1954, the heirs ended their co-ownership by executing a deed of
partition, dividing and segregating their respective shares in the properties,
pursuant to a consolidation and subdivision plan (PCS-3702), in accordance
with which, Concepcion Felix Vda. de Rodriguez obtained TCT No. T-12910, for
the portion pertaining to her (Exh. L), while TCT No. T-12911 was issued to the
other heirs, for their shares. This latter title was subsequently replaced by TCT
No. 16660 (Exh. M).
On October 12, 1954, the Rodriguez children executed another document
granting unto the widow lifetime usufruct over one-third of the fishpond which
they received as hereditary share in the estate of Domingo Rodriguez, which
grant was accepted by Concepcion Felix Vda. de Rodriguez.
Then, in a contract dated December 15, 1961, the widow appeared to have
leased from the Rodriguez children and grandchildren the fishpond (covered by
TCT No. 16660) for a period of 5 years commencing August 16, 1962, for an
annual rental of P7,161.37 (Exh. 5).1wph1.t
At about this time, it seemed that the relationship between the widow and her
stepchildren had turned for the worse. Thus, when she failed to deliver to them
the balance of the earnings of the fishponds, in the amount of P3,000.00, her
stepchildren endorsed the matter to their lawyer who, on May 16, 1962, sent a
letter of demand to the widow for payment thereof. On, May 28, 1962,
Concepcion Felix Vda. de Rodriguez filed the present action in the Court of First
Instance of Manila naming as defendants, Geronimo Rodriguez, Esmeragdo
Rodriguez, Oscar Rodriguez, Concepcion Bautista Vda. de Rodriguez, as
guardian of the minors Juan and Ana Rodriguez, and Antonio Diaz de Rivera
and Renato Diaz de Rivera, as guardians of the minors Maria Ana, Mercedes,
Margarita, Mauricio, Jr. and Domingo (Children of Mauricio Rodriguez who had
also died).
The action to declare null and void the deeds of transfer of plaintiff's properties
to the conjugal partnership was based on the alleged employment or exercise
by plaintiff's deceased husband of force and pressure on her; that the
conveyances of the properties from plaintiff to her daughter and then to the
conjugal partnership of plaintiff and her husband are both without
consideration; that plaintiff participated in the extrajudicial settlement of
estate (of the deceased Domingo Rodriguez) and in other subsequent deeds or
instruments involving the properties in dispute, on the false assumption that
the said properties had become conjugal by reason of the execution of the
deeds of transfer in 1934; that laboring under the same false assumption,
plaintiff delivered to defendants, as income of the properties from 1956 to
1961, the total amount of P56,976.58. As alternative cause of action, she
contended that she would claim for her share, as surviving widow, of 1/5 of the
properties in controversy, should such properties be adjudged as belonging to
the conjugal partnership. Thus, plaintiff prayed that the deeds of transfer
mentioned in the complaint be declared fictitious and simulated; that the

As a result of this partition, TCT Nos. 13815 and 13816 were cancelled and TCT
Nos. T-11431 and T-14432 were issued in the names of the said heirs of the
deceased.

Page

Rodriguez, Juan Rodriguez and Ana Rodriguez.

"Extrajudicial Settlement of Estate" be also declared null and void; that TCT No.
16660 of the Registry of Deeds of Bulacan be cancelled and another one be
issued in the name of plaintiff, Concepcion Felix Vda. de Felix; that defendants
be ordered to pay plaintiff the sum of P56,976.58, with legal interest thereon
from the date of the filing of the complaint, and for appropriate relief in
connection with her alternative cause of action.
In their separate answers, defendants not only denied the material allegations
of the complaint, but also set up as affirmative defenses lack of cause of
action, prescription, estoppel and laches. As counterclaim, they asked for
payment by the plaintiff of the unpaid balance of the earnings of the land up to
August 15, 1962 in the sum of P3,000.00, for attorney's fees and expenses of
litigation.
On October 5, 1963, judgment was rendered for the defendants. In upholding
the validity of the contracts, the court found that although the two documents,
Exhibits A and B, were executed for the purpose of converting plaintiff's
separate properties into conjugal assets of the marriage with Domingo
Rodriguez, the consent of the parties thereto was voluntary, contrary to the
allegations of plaintiff and her witness. The court also ruled that having taken
part in the questioned transactions, plaintiff was not the proper party to plead
lack of consideration to avoid the transfers; that contracts without
consideration are not inexistent, but are only voidable, following the ruling in
the case of Concepcion vs. Sta. Ana (87 Phil. 787); that there was ratification or
confirmation by the plaintiff of the transfer of her property, by her execution
(with the other heirs) of the extrajudicial settlement of estate; that being a
voluntary party to the contracts, Exhibits A and B, plaintiff cannot recover the
properties she gave thereunder. Plaintiff's alternative cause of action was also
rejected on the ground that action for rescission of the deed of extrajudicial
settlement should have been filed within 4 years from its execution (on March
16, 1953).
From the decision of the Court of First Instance, plaintiff duly appealed to this
Court, insisting that the conveyances in issue were obtained through duress,
and were inexistent, being simulated and without consideration.
We agree with the trial Court that the evidence is not convincing that the
contracts of transfer from Concepcion Felix to her daughter, and from the latter
to her mother and stepfather were executed through violence or intimidation.
The charge is predicated solely upon the improbable and biased testimony of
appellant's daughter, Concepcion C. Martelino, whom the trial court, refused to
believe, considering that her version of violence and harassment was
contradicted by Bartolome Gualberto who had lived with the Rodriguez
spouses from 1917 to 1953, and by the improbability of Rodriguez threatening
his stepdaughter in front of the Notary Public who ratified her signature.
Furthermore, as pointed out by the appealed decision, the charge of duress
should be treated with caution considering that Rodriguez had already died
when the suit was brought, for duress, like fraud, is not to be lightly paid at the
door of men already dead. (Cf. Prevost vs. Gratz, 6 Wheat. [U.S.] 481, 498;
Sinco vs. Longa, 51 Phil. 507).
What is more decisive is that duress being merely a vice or defect of consent,
an action based upon it must be brought within four years after it has ceased; 1
and the present action was instituted only in 1962, twenty eight (28) years
after the intimidation is claimed to have occurred, and no less than nine (9)
years after the supposed culprit died (1953). On top of it, appellant entered

Appellant's main stand in attacking the conveyances in question is that they

are simulated or fictitious, and inexistent for lack of consideration. We shall
examine each purported defect separately.
The charge of simulation is untenable, for the characteristic of simulation is the
fact that the apparent contract is not really desired or intended to produce
legal effects or in way alter the juridical situation of the parties. Thus, where a
person, in order to place his property beyond the reach of his creditors,
simulates a transfer of it to another, he does not really intend to divest himself
of his title and control of the property; hence, the deed of transfer is but a
sham. But appellant contends that the sale by her to her daughter, and the
subsequent sale by the latter to appellant and her husband, the late Domingo
Rodriguez, were done for the purpose of converting the property from
paraphernal to conjugal, thereby vesting a half interest in Rodriguez, and
evading the prohibition against donations from one spouse to another during
coverture (Civil Code of 1889, Art. 1334). If this is true, then the appellant and
her daughter must have intended the two conveyance to be real and effective;
for appellant could not intend to keep the ownership of the fishponds and at
the same time vest half of them in her husband. The two contracts of sale then
could not have been simulated, but were real and intended to be fully
operative, being the means to achieve the result desired.
Nor does the intention of the parties to circumvent by these contracts the law
against donations between spouses make them simulated ones.
Ferrara, in his classic book, "La Simulacion de los Negocios Juridicos" (Sp.
trans, 1926), pp. 95, 105, clearly explains the difference between simulated
transactions and transactions in fraudem legis:
Otra figura que debe distinguirse de la simulacion es el fraus legis. Tambien
aqui se da una gran confusion que persiste aun en la jurisprudencia, apegada
tenazmente a antiguos errores. Se debe a Bahr el haber defendido con vigor la
antitesis teorica que existe entre negocio fingido y negocio fraudulento y haber
atacado la doctrina comun que hacia una mescolanza con los dos conceptos.
Se confunde dice (2) , el negocio in fraudem legis con el negocio
simulado; aunque la naturaleza de ambos sea totalmente diversa. El negocio
fraudulento no es, en absolute, un negocio aparente. Es perfectamente serio:
se quiere realmente. Es mas, se quiere tal como se ha realizado, con todas las
consecuencias que correspondent a la forma juridica elegida. Muchas veces,
estas consecuencias con incomodas para una u otra de las partes, aunque
serian mucho mas incomodas las consecuencias que lievaria consigo el acto
prohibido.
xxx

xxx

xxx

El resultado de las precedentes investigaciones es el siguiente el negocio

simulado quiere producir una apariencia; el negocio fraudulente, una realidad;
los negocios simulados son ficticios, no queridos; los negocios in fraudem son
serios, reales, y realizados en tal forma por las partes para consequir un
resultado prohibido: la simulacion nunca es un medio para eludir la ley sino
para ocultar su violation. La transgresion del contenido verbal e inmediato de
la norma se encubre bajo el manto de un negocio licito, lo cual no altera el
caracter del contra legem agere. Tan verdad es, que si se ha redactado una
contra-escritura que documentary y declara la verdadera naturaleza del

7
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into a series of subsequent transactions with appellees that confirmed the

contracts that she now tries to set aside. Therefore, this cause of action is
clearly barred.

negocio realizado, no queda mas que aplicar pura y simplementela prohibicion.

Tambien el fraude quiere perjudicar la ley, pero emplea para ello medios
diversos y sigue distintos caminus. No oculta el acto exterior, sino que lo deja
claro y visible, tratando de huir sesgadamente de la aplicacion de la ley
merced a una artistica y sabia combinacion de varios medios juridicos no
reprobados.
Appellant invokes our decision in Vasquez vs. Porta, 98 Phil. 490, but to no
purpose. The mortgage and foreclosure sale involved in that case were typical
simulations merely apparent but not really intended to produce legal effects,
as approved by the Court's finding that the alleged creditor and buyer at the
foreclosure sale "Porta himself ostensibly acknowledged by his inertia in
allowing the doctor (alleged mortgagor debtor) to exercise dominical power
thereon without any protest on his part." (cas. cit., p. 495). Not only this, but
the mortgagor's wife, when her husband died, "found among his papers Porta's
cancellation of the mortgage in his favor and the draft of the complaint for
foreclosure." Plainly, the precedent cited is here inapplicable.
Were the two conveyances from appellant to her daughter and from the latter
to the spouses Rodriguez void ab initio or inexistent for lack of consideration?
We do not find them to be so. In the first transaction, the price of P2,500.00 is
recited in the deed itself (Exh. A); in the second (Exh. B), the consideration set
forth is P3,000.00. Now, Article 1274 of the Civil Code of 1889 (in force when
the deeds were executed) provided that
In onerous contracts the cause is understood to be, for each contracting party,
the prestation or promise of a thing or service by the other. (emphasis
supplied.)
Since in each conveyance the buyer became obligated to pay a definite price
in money, such undertaking constituted in themselves actual causa or
consideration for the conveyance of the fishponds. That the prices were not
paid (assuming ad arguendo that Concepcion Martelino's testimony, to this
effect is true) does not make the sales inexistent for want of causa. As ruled in
Enriquez de la Cavada vs. Diaz, 37 Phil. 982, "the consideration (causa) need
not pass from one (party) to the other at the time the contract is entered into x
x x . The consideration need not be paid at the time of the promise. The one
promise is a consideration for the other."
What would invalidate the conveyances now under scrutiny is the fact that
they were resorted to in order to circumvent the legal prohibition against
donations between spouses contained in Article 1334, paragraph 1, of the Civil
Code of 1889, then prevailing. That illegal purpose tainted the contracts, for as
held by the Spanish Tribunal Supreme in its decision of 2 April 1941.
ha de ser reputado ineficaz, por exigencias includibles del caracter social y
moral del Derecho, todo contrato que persiga un fin ilicito o immoral, sea
cualquiera el medio empleado por los contratantes para lograr esa finalidad,
no justificada por un interes digno de ser socialmente protegido.
The illicit purpose then becomes illegal causa within the terms of the old Civil
Code, for as declared by the same Spanish Court in its decision of 14
December 1940
toda vez que lo que caracteriza fundamentalmente la ilicitud de la causa es la
lesion de un interos general juridica 6 moral.
a ruling reiterated in the decision of 2 April 1941 when the Court ruled:
El concepto de la causa ilicita, tal como la desenvuelve y aplica con gran

8
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amplitud y flexibilidad la doctrina moderna, permite cobijar, no solo las

convenciones ilicitas por razon de su objeto o de su motivo ... sino tambien
multiples convenciones que no encerrando en si ningun elemento de directa
antijuricidad son ilicitas por el matiz immoral que reviste la operation en su
conjunto x x x .
Unfortunately for herein appellant, in contracts invalidated by illegal subject
matter or illegal causa, Articles 1305 and 1306 of the Civil Code then in force
apply rigorously the rule in pari delicto non oritur action, denying all recovery
to the guilty parties inter se. And appellant is clearly as guilty as her husband
in the attempt to evade the legal interdiction of Article 1334 of the Code,
already cited. Wherefore, her present action to reivindicate the, conveyed
properties was correctly repulsed by the Court below.
Art. 1306. If the act which constitutes the illicit consideration is neither a crime
nor a misdemeanor, the following rules shall be observed:
1. When both parties are guilty, neither of them can recover what he may have
given by virtue of the contract, or enforce the performance of the undertaking
of the other party;
xxx

xxx

xxx

That Article 1306 applies to cases where the nullity arises from the illegality of
the consideration or the purpose of the contract was expressly recognized by
this Supreme Court in Gustilo vs. Maravilla, 48 Phil. 449-450.2
Finally, it cannot be denied that plaintiff-appellant had knowledge of the nullity
of the contract for the transfer of her properties in 1934, because she was
even a party thereto. And yet, her present action was filed only on May 28,
1962 and after the breaking up of friendly relations between her and
defendants-appellees. Appellant's inaction to enforce her right, for 28 years,
cannot be justified by the lame excuse that she assumed that the transfer was
valid. Knowledge of the effect of that transaction would have been obtained by
the exercise of diligence. Ignorance which is the effect of inexcusable
negligence, it has been said, is no excuse for laches. (Go Chi Gun, etc., et al.
vs. Co Cho, et al., G.R. No. L-5208, Feb. 28, 1955). Even assuming for the sake
of argument that appellant held her peace, during the lifetime of her husband,
out of legitimate fear for her life, there is no justification for her future to bring
the proper action after his death in 1953. Instead, she entered into a series of
agreements with herein appellees, the children of her husband by a prior
marriage, of partition, usufruct and lease of their share in the fishponds,
transactions that necessarily assumed that Rodriguez had acquired one-half of
the litigated fishponds. In the circumstances, appellant's cause has become a
stale demand and her conduct placed her in estoppel to question the Validity
of the transfer of her properties. (Manila, et al. vs. Galvan, et al., G.R. No. L23507, May 24, 1967; Perez vs. Herranz, 7 Phil. 695-696).
In view of the foregoing, the decision appealed from is affirmed. Costs against
appellant Concepcion Felix Vda. de Rodriguez. So ordered.
Makalintal, Bengzon, J.P., Zaldivar, Sanchez, Castro, Angeles and Fernando, JJ.,
concur.Concepcion, C.J. and Dizon, J., are on leave.

G.R. No. L-16749

January 31, 1963

IN THE MATTER OF THE TESTATE ESTATE OF EDWARD E. CHRISTENSEN,

DECEASED. ADOLFO C. AZNAR, Executor and LUCY CHRISTENSEN, Heir
of the deceased, Executor and Heir-appellees,
vs. HELEN CHRISTENSEN GARCIA, oppositor-appellant.
M. R. Sotelo for executor and heir-appellees.Leopoldo M. Abellera and Jovito
Salonga for oppositor-appellant.
LABRADOR, J.:
This is an appeal from a decision of the Court of First Instance of Davao, Hon.
Vicente N. Cusi, Jr., presiding, in Special Proceeding No. 622 of said court,

3. I declare ... that I have but ONE (1) child, named MARIA LUCY CHRISTENSEN
(now Mrs. Bernard Daney), who was born in the Philippines about twenty-eight
years ago, and who is now residing at No. 665 Rodger Young Village, Los
Angeles, California, U.S.A.
4. I further declare that I now have no living ascendants, and no descendants
except my above named daughter, MARIA LUCY CHRISTENSEN DANEY.
xxx

xxx

xxx

9
Page

dated September 14, 1949, approving among things the final accounts of the
executor, directing the executor to reimburse Maria Lucy Christensen the
amount of P3,600 paid by her to Helen Christensen Garcia as her legacy, and
declaring Maria Lucy Christensen entitled to the residue of the property to be
enjoyed during her lifetime, and in case of death without issue, one-half of said
residue to be payable to Mrs. Carrie Louise C. Borton, etc., in accordance with
the provisions of the will of the testator Edward E. Christensen. The will was
executed in Manila on March 5, 1951 and contains the following provisions:

also alleged that Maria Helen Christensen having been declared an

acknowledged natural child of the decedent, she is deemed for all purposes
legitimate from the time of her birth.
The court below ruled that as Edward E. Christensen was a citizen of the United
States and of the State of California at the time of his death, the successional
rights and intrinsic validity of the provisions in his will are to be governed by
the law of California, in accordance with which a testator has the right to
dispose of his property in the way he desires, because the right of absolute
dominion over his property is sacred and inviolable (In re McDaniel's Estate, 77
Cal. Appl. 2d 877, 176 P. 2d 952, and In re Kaufman, 117 Cal. 286, 49 Pac. 192,
cited in page 179, Record on Appeal). Oppositor Maria Helen Christensen,
through counsel, filed various motions for reconsideration, but these were
denied. Hence, this appeal.
The most important assignments of error are as follows:
I

7. I give, devise and bequeath unto MARIA HELEN CHRISTENSEN, now married
to Eduardo Garcia, about eighteen years of age and who, notwithstanding the
fact that she was baptized Christensen, is not in any way related to me, nor
has she been at any time adopted by me, and who, from all information I have
now resides in Egpit, Digos, Davao, Philippines, the sum of THREE THOUSAND
SIX HUNDRED PESOS (P3,600.00), Philippine Currency the same to be
deposited in trust for the said Maria Helen Christensen with the Davao Branch
of the Philippine National Bank, and paid to her at the rate of One Hundred
Pesos (P100.00), Philippine Currency per month until the principal thereof as
well as any interest which may have accrued thereon, is exhausted..

THE LOWER COURT ERRED IN IGNORING THE DECISION OF THE HONORABLE

SUPREME COURT THAT HELEN IS THE ACKNOWLEDGED NATURAL CHILD OF
EDWARD E. CHRISTENSEN AND, CONSEQUENTLY, IN DEPRIVING HER OF HER
JUST SHARE IN THE INHERITANCE.

xxx

THE LOWER COURT ERRED IN FAILING TO RECOGNIZE THAT UNDER

INTERNATIONAL LAW, PARTICULARLY UNDER THE RENVOI DOCTRINE, THE
INTRINSIC VALIDITY OF THE TESTAMENTARY DISPOSITION OF THE
DISTRIBUTION OF THE ESTATE OF THE DECEASED EDWARD E. CHRISTENSEN
SHOULD BE GOVERNED BY THE LAWS OF THE PHILIPPINES.

xxx

xxx

12. I hereby give, devise and bequeath, unto my well-beloved daughter, the
said MARIA LUCY CHRISTENSEN DANEY (Mrs. Bernard Daney), now residing as
aforesaid at No. 665 Rodger Young Village, Los Angeles, California, U.S.A., all
the income from the rest, remainder, and residue of my property and estate,
real, personal and/or mixed, of whatsoever kind or character, and wheresoever
situated, of which I may be possessed at my death and which may have come
to me from any source whatsoever, during her lifetime: ....
It is in accordance with the above-quoted provisions that the executor in his
final account and project of partition ratified the payment of only P3,600 to
Helen Christensen Garcia and proposed that the residue of the estate be
transferred to his daughter, Maria Lucy Christensen.
Opposition to the approval of the project of partition was filed by Helen
Christensen Garcia, insofar as it deprives her (Helen) of her legitime as an
acknowledged natural child, she having been declared by Us in G.R. Nos. L11483-84 an acknowledged natural child of the deceased Edward E.
Christensen. The legal grounds of opposition are (a) that the distribution should
be governed by the laws of the Philippines, and (b) that said order of
distribution is contrary thereto insofar as it denies to Helen Christensen, one of
two acknowledged natural children, one-half of the estate in full ownership. In
amplification of the above grounds it was alleged that the law that should
govern the estate of the deceased Christensen should not be the internal law
of California alone, but the entire law thereof because several foreign elements
are involved, that the forum is the Philippines and even if the case were
decided in California, Section 946 of the California Civil Code, which requires
that the domicile of the decedent should apply, should be applicable. It was

II
THE LOWER COURT ERRED IN ENTIRELY IGNORING AND/OR FAILING TO
RECOGNIZE THE EXISTENCE OF SEVERAL FACTORS, ELEMENTS AND
CIRCUMSTANCES CALLING FOR THE APPLICATION OF INTERNAL LAW.
III

IV
THE LOWER COURT ERRED IN NOT DECLARING THAT THE SCHEDULE OF
DISTRIBUTION SUBMITTED BY THE EXECUTOR IS CONTRARY TO THE PHILIPPINE
LAWS.
V
THE LOWER COURT ERRED IN NOT DECLARING THAT UNDER THE PHILIPPINE
LAWS HELEN CHRISTENSEN GARCIA IS ENTITLED TO ONE-HALF (1/2) OF THE
ESTATE IN FULL OWNERSHIP.
There is no question that Edward E. Christensen was a citizen of the United
States and of the State of California at the time of his death. But there is also
no question that at the time of his death he was domiciled in the Philippines,
as witness the following facts admitted by the executor himself in appellee's
brief:
In the proceedings for admission of the will to probate, the facts of record show
that the deceased Edward E. Christensen was born on November 29, 1875 in
New York City, N.Y., U.S.A.; his first arrival in the Philippines, as an appointed
school teacher, was on July 1, 1901, on board the U.S. Army Transport
"Sheridan" with Port of Embarkation as the City of San Francisco, in the State of
California, U.S.A. He stayed in the Philippines until 1904.

Mr. Christensen's next arrival in the Philippines was in July of the year 1913.
However, in 1928, he again departed the Philippines for the United States and
came back here the following year, 1929. Some nine years later, in 1938, he
again returned to his own country, and came back to the Philippines the
following year, 1939.
Wherefore, the parties respectfully pray that the foregoing stipulation of facts
be admitted and approved by this Honorable Court, without prejudice to the
parties adducing other evidence to prove their case not covered by this
stipulation of facts. 1wph1.t
Being an American citizen, Mr. Christensen was interned by the Japanese
Military Forces in the Philippines during World War II. Upon liberation, in April
1945, he left for the United States but returned to the Philippines in December,
1945. Appellees Collective Exhibits "6", CFI Davao, Sp. Proc. 622, as Exhibits
"AA", "BB" and "CC-Daney"; Exhs. "MM", "MM-l", "MM-2-Daney" and p. 473,
t.s.n., July 21, 1953.)
In April, 1951, Edward E. Christensen returned once more to California shortly
after the making of his last will and testament (now in question herein) which
he executed at his lawyers' offices in Manila on March 5, 1951. He died at the
St. Luke's Hospital in the City of Manila on April 30, 1953. (pp. 2-3)
In arriving at the conclusion that the domicile of the deceased is the
Philippines, we are persuaded by the fact that he was born in New York,
migrated to California and resided there for nine years, and since he came to
the Philippines in 1913 he returned to California very rarely and only for short
visits (perhaps to relatives), and considering that he appears never to have
owned or acquired a home or properties in that state, which would indicate
that he would ultimately abandon the Philippines and make home in the State
of California.
Sec. 16. Residence is a term used with many shades of meaning from mere
temporary presence to the most permanent abode. Generally, however, it is
used to denote something more than mere physical presence. (Goodrich on
Conflict of Laws, p. 29)
As to his citizenship, however, We find that the citizenship that he acquired in
California when he resided in Sacramento, California from 1904 to 1913, was
never lost by his stay in the Philippines, for the latter was a territory of the
United States (not a state) until 1946 and the deceased appears to have
considered himself as a citizen of California by the fact that when he executed
his will in 1951 he declared that he was a citizen of that State; so that he
appears never to have intended to abandon his California citizenship by
acquiring another. This conclusion is in accordance with the following principle
expounded by Goodrich in his Conflict of Laws.
The terms "'residence" and "domicile" might well be taken to mean the same
thing, a place of permanent abode. But domicile, as has been shown, has
acquired a technical meaning. Thus one may be domiciled in a place where he
has never been. And he may reside in a place where he has no domicile. The
man with two homes, between which he divides his time, certainly resides in
each one, while living in it. But if he went on business which would require his
presence for several weeks or months, he might properly be said to have
sufficient connection with the place to be called a resident. It is clear, however,

10
Page

In December, 1904, Mr. Christensen returned to the United States and stayed
there for the following nine years until 1913, during which time he resided in,
and was teaching school in Sacramento, California.

that, if he treated his settlement as continuing only for the particular business
in hand, not giving up his former "home," he could not be a domiciled New
Yorker. Acquisition of a domicile of choice requires the exercise of intention as
well as physical presence. "Residence simply requires bodily presence of an
inhabitant in a given place, while domicile requires bodily presence in that
place and also an intention to make it one's domicile." Residence, however, is a
term used with many shades of meaning, from the merest temporary presence
to the most permanent abode, and it is not safe to insist that any one use et
the only proper one. (Goodrich, p. 29)
The law that governs the validity of his testamentary dispositions is defined in
Article 16 of the Civil Code of the Philippines, which is as follows:
ART. 16. Real property as well as personal property is subject to the law of the
country where it is situated.
However, intestate and testamentary successions, both with respect to the
order of succession and to the amount of successional rights and to the
intrinsic validity of testamentary provisions, shall be regulated by the national
law of the person whose succession is under consideration, whatever may be
the nature of the property and regardless of the country where said property
may be found.
The application of this article in the case at bar requires the determination of
the meaning of the term "national law" is used therein.
There is no single American law governing the validity of testamentary
provisions in the United States, each state of the Union having its own private
law applicable to its citizens only and in force only within the state. The
"national law" indicated in Article 16 of the Civil Code above quoted can not,
therefore, possibly mean or apply to any general American law. So it can refer
to no other than the private law of the State of California.
The next question is: What is the law in California governing the disposition of
personal property? The decision of the court below, sustains the contention of
the executor-appellee that under the California Probate Code, a testator may
dispose of his property by will in the form and manner he desires, citing the
case of Estate of McDaniel, 77 Cal. Appl. 2d 877, 176 P. 2d 952. But appellant
invokes the provisions of Article 946 of the Civil Code of California, which is as
follows:
If there is no law to the contrary, in the place where personal property is
situated, it is deemed to follow the person of its owner, and is governed by the
law of his domicile.
The existence of this provision is alleged in appellant's opposition and is not
denied. We have checked it in the California Civil Code and it is there. Appellee,
on the other hand, relies on the case cited in the decision and testified to by a
witness. (Only the case of Kaufman is correctly cited.) It is argued on
executor's behalf that as the deceased Christensen was a citizen of the State
of California, the internal law thereof, which is that given in the abovecited
case, should govern the determination of the validity of the testamentary
provisions of Christensen's will, such law being in force in the State of
California of which Christensen was a citizen. Appellant, on the other hand,
insists that Article 946 should be applicable, and in accordance therewith and
following the doctrine of the renvoi, the question of the validity of the
testamentary provision in question should be referred back to the law of the
decedent's domicile, which is the Philippines.

On logic, the solution is not an easy one. The Michigan court chose to accept
the renvoi, that is, applied the Conflict of Laws rule of Illinois which referred the
matter back to Michigan law. But once having determined the the Conflict of
Laws principle is the rule looked to, it is difficult to see why the reference back
should not have been to Michigan Conflict of Laws. This would have resulted in
the "endless chain of references" which has so often been criticized be legal
writers. The opponents of the renvoi would have looked merely to the internal
law of Illinois, thus rejecting the renvoi or the reference back. Yet there seems
no compelling logical reason why the original reference should be the internal
law rather than to the Conflict of Laws rule. It is true that such a solution
avoids going on a merry-go-round, but those who have accepted the renvoi
theory avoid this inextricabilis circulas by getting off at the second reference
and at that point applying internal law. Perhaps the opponents of the renvoi are
a bit more consistent for they look always to internal law as the rule of
reference.
Strangely enough, both the advocates for and the objectors to the renvoi plead
that greater uniformity will result from adoption of their respective views. And
still more strange is the fact that the only way to achieve uniformity in this
choice-of-law problem is if in the dispute the two states whose laws form the
legal basis of the litigation disagree as to whether the renvoi should be
accepted. If both reject, or both accept the doctrine, the result of the litigation
will vary with the choice of the forum. In the case stated above, had the
Michigan court rejected the renvoi, judgment would have been against the
woman; if the suit had been brought in the Illinois courts, and they too rejected
the renvoi, judgment would be for the woman. The same result would happen,
though the courts would switch with respect to which would hold liability, if
both courts accepted the renvoi.
The Restatement accepts the renvoi theory in two instances: where the title to
land is in question, and where the validity of a decree of divorce is challenged.
In these cases the Conflict of Laws rule of the situs of the land, or the domicile
of the parties in the divorce case, is applied by the forum, but any further
reference goes only to the internal law. Thus, a person's title to land,
recognized by the situs, will be recognized by every court; and every divorce,
valid by the domicile of the parties, will be valid everywhere. (Goodrich,
Conflict of Laws, Sec. 7, pp. 13-14.)
X, a citizen of Massachusetts, dies intestate, domiciled in France, leaving
movable property in Massachusetts, England, and France. The question arises
as to how this property is to be distributed among X's next of kin.
Assume (1) that this question arises in a Massachusetts court. There the rule of
the conflict of laws as to intestate succession to movables calls for an
application of the law of the deceased's last domicile. Since by hypothesis X's
last domicile was France, the natural thing for the Massachusetts court to do
would be to turn to French statute of distributions, or whatever corresponds
thereto in French law, and decree a distribution accordingly. An examination of
French law, however, would show that if a French court were called upon to
determine how this property should be distributed, it would refer the

11

The problem has been stated in this way: "When the Conflict of Laws rule of
the forum refers a jural matter to a foreign law for decision, is the reference to
the purely internal rules of law of the foreign system; i.e., to the totality of the
foreign law minus its Conflict of Laws rules?"

Page

The theory of doctrine of renvoi has been defined by various authors, thus:

distribution to the national law of the deceased, thus applying the

Massachusetts statute of distributions. So on the surface of things the
Massachusetts court has open to it alternative course of action: (a) either to
apply the French law is to intestate succession, or (b) to resolve itself into a
French court and apply the Massachusetts statute of distributions, on the
assumption that this is what a French court would do. If it accepts the so-called
renvoi doctrine, it will follow the latter course, thus applying its own law.
This is one type of renvoi. A jural matter is presented which the conflict-of-laws
rule of the forum refers to a foreign law, the conflict-of-laws rule of which, in
turn, refers the matter back again to the law of the forum. This is renvoi in the
narrower sense. The German term for this judicial process is
'Ruckverweisung.'" (Harvard Law Review, Vol. 31, pp. 523-571.)
After a decision has been arrived at that a foreign law is to be resorted to as
governing a particular case, the further question may arise: Are the rules as to
the conflict of laws contained in such foreign law also to be resorted to? This is
a question which, while it has been considered by the courts in but a few
instances, has been the subject of frequent discussion by textwriters and
essayists; and the doctrine involved has been descriptively designated by
them as the "Renvoyer" to send back, or the "Ruchversweisung", or the
"Weiterverweisung", since an affirmative answer to the question postulated
and the operation of the adoption of the foreign law in toto would in many
cases result in returning the main controversy to be decided according to the
law of the forum. ... (16 C.J.S. 872.)
Another theory, known as the "doctrine of renvoi", has been advanced. The
theory of the doctrine of renvoi is that the court of the forum, in determining
the question before it, must take into account the whole law of the other
jurisdiction, but also its rules as to conflict of laws, and then apply the law to
the actual question which the rules of the other jurisdiction prescribe. This may
be the law of the forum. The doctrine of the renvoi has generally been
repudiated by the American authorities. (2 Am. Jur. 296)
The scope of the theory of renvoi has also been defined and the reasons for its
application in a country explained by Prof. Lorenzen in an article in the Yale Law
Journal, Vol. 27, 1917-1918, pp. 529-531. The pertinent parts of the article are
quoted herein below:
The recognition of the renvoi theory implies that the rules of the conflict of
laws are to be understood as incorporating not only the ordinary or internal law
of the foreign state or country, but its rules of the conflict of laws as well.
According to this theory 'the law of a country' means the whole of its law.
xxx

xxx

xxx

Von Bar presented his views at the meeting of the Institute of International
Law, at Neuchatel, in 1900, in the form of the following theses:
(1) Every court shall observe the law of its country as regards the application
of foreign laws.
(2) Provided that no express provision to the contrary exists, the court shall
respect:
(a) The provisions of a foreign law which disclaims the right to bind its
nationals abroad as regards their personal statute, and desires that said
personal statute shall be determined by the law of the domicile, or even by the
law of the place where the act in question occurred.
(b) The decision of two or more foreign systems of law, provided it be certain

xxx

xxx

If, for example, the English law directs its judge to distribute the personal
estate of an Englishman who has died domiciled in Belgium in accordance with
the law of his domicile, he must first inquire whether the law of Belgium would
distribute personal property upon death in accordance with the law of domicile,
and if he finds that the Belgian law would make the distribution in accordance
with the law of nationality that is the English law he must accept this
reference back to his own law.
We note that Article 946 of the California Civil Code is its conflict of laws rule,
while the rule applied in In re Kaufman, Supra, its internal law. If the law on
succession and the conflict of laws rules of California are to be enforced jointly,
each in its own intended and appropriate sphere, the principle cited In re
Kaufman should apply to citizens living in the State, but Article 946 should
apply to such of its citizens as are not domiciled in California but in other
jurisdictions. The rule laid down of resorting to the law of the domicile in the
determination of matters with foreign element involved is in accord with the
general principle of American law that the domiciliary law should govern in
most matters or rights which follow the person of the owner.
When a man dies leaving personal property in one or more states, and leaves a
will directing the manner of distribution of the property, the law of the state
where he was domiciled at the time of his death will be looked to in deciding
legal questions about the will, almost as completely as the law of situs is
consulted in questions about the devise of land. It is logical that, since the
domiciliary rules control devolution of the personal estate in case of intestate
succession, the same rules should determine the validity of an attempted
testamentary dispostion of the property. Here, also, it is not that the
domiciliary has effect beyond the borders of the domiciliary state. The rules of
the domicile are recognized as controlling by the Conflict of Laws rules at the
situs property, and the reason for the recognition as in the case of intestate
succession, is the general convenience of the doctrine. The New York court has
said on the point: 'The general principle that a dispostiton of a personal
property, valid at the domicile of the owner, is valid anywhere, is one of the
universal application. It had its origin in that international comity which was
one of the first fruits of civilization, and it this age, when business intercourse
and the process of accumulating property take but little notice of boundary
lines, the practical wisdom and justice of the rule is more apparent than ever.
(Goodrich, Conflict of Laws, Sec. 164, pp. 442-443.)
Appellees argue that what Article 16 of the Civil Code of the Philippines pointed
out as the national law is the internal law of California. But as above explained
the laws of California have prescribed two sets of laws for its citizens, one for
residents therein and another for those domiciled in other jurisdictions. Reason
demands that We should enforce the California internal law prescribed for its
citizens residing therein, and enforce the conflict of laws rules for the citizens
domiciled abroad. If we must enforce the law of California as in comity we are
bound to go, as so declared in Article 16 of our Civil Code, then we must
enforce the law of California in accordance with the express mandate thereof
and as above explained, i.e., apply the internal law for residents therein, and
its conflict-of-laws rule for those domiciled abroad.
It is argued on appellees' behalf that the clause "if there is no law to the

12

xxx

Page

that one of them is necessarily competent, which agree in attributing the

determination of a question to the same system of law.

contrary in the place where the property is situated" in Sec. 946 of the
California Civil Code refers to Article 16 of the Civil Code of the Philippines and
that the law to the contrary in the Philippines is the provision in said Article 16
that the national law of the deceased should govern. This contention can not
be sustained. As explained in the various authorities cited above the national
law mentioned in Article 16 of our Civil Code is the law on conflict of laws in the
California Civil Code, i.e., Article 946, which authorizes the reference or return
of the question to the law of the testator's domicile. The conflict of laws rule in
California, Article 946, Civil Code, precisely refers back the case, when a
decedent is not domiciled in California, to the law of his domicile, the
Philippines in the case at bar. The court of the domicile can not and should not
refer the case back to California; such action would leave the issue incapable
of determination because the case will then be like a football, tossed back and
forth between the two states, between the country of which the decedent was
a citizen and the country of his domicile. The Philippine court must apply its
own law as directed in the conflict of laws rule of the state of the decedent, if
the question has to be decided, especially as the application of the internal law
of California provides no legitime for children while the Philippine law, Arts.
887(4) and 894, Civil Code of the Philippines, makes natural children legally
acknowledged forced heirs of the parent recognizing them.
The Philippine cases (In re Estate of Johnson, 39 Phil. 156; Riera vs. Palmaroli,
40 Phil. 105; Miciano vs. Brimo, 50 Phil. 867; Babcock Templeton vs. Rider
Babcock, 52 Phil. 130; and Gibbs vs. Government, 59 Phil. 293.) cited by
appellees to support the decision can not possibly apply in the case at bar, for
two important reasons, i.e., the subject in each case does not appear to be a
citizen of a state in the United States but with domicile in the Philippines, and it
does not appear in each case that there exists in the state of which the subject
is a citizen, a law similar to or identical with Art. 946 of the California Civil
Code.
We therefore find that as the domicile of the deceased Christensen, a citizen of
California, is the Philippines, the validity of the provisions of his will depriving
his acknowledged natural child, the appellant, should be governed by the
Philippine Law, the domicile, pursuant to Art. 946 of the Civil Code of
California, not by the internal law of California..
WHEREFORE, the decision appealed from is hereby reversed and the case
returned to the lower court with instructions that the partition be made as the
Philippine law on succession provides. Judgment reversed, with costs against
appellees.
Padilla, Bautista Angelo, Concepcion, Reyes, Barrera, Paredes, Dizon, Regala
and Makalintal, JJ., concur.Bengzon, C.J., took no part.

13
Page

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.

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, oppositorsappellants,
vs.
EDWARD A. BELLIS, ET AL., heirs-appellees.

On January 8, 1964, preparatory to closing its administration, the executor

submitted and filed its "Executor's Final Account, Report of Administration and
Project of Partition" wherein it reported, inter alia, the satisfaction of the legacy
of Mary E. Mallen by the delivery to her of shares of stock amounting to
$240,000.00, and the legacies of Amos Bellis, Jr., Maria Cristina Bellis and
Miriam Palma Bellis in the amount of P40,000.00 each or a total of
P120,000.00. In the project of partition, the executor pursuant to the
"Twelfth" clause of the testator's Last Will and Testament divided the
residuary estate into seven equal portions for the benefit of the testator's
seven legitimate children by his first and second marriages.
On January 17, 1964, Maria Cristina Bellis and Miriam Palma Bellis filed their
respective oppositions to the project of partition on the ground that they were

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, L16749, January 31, 1963. Said doctrine is usually pertinent where the decedent
is a national of one country, and a domicile of another. In the present case, it is
not disputed that the decedent was both a national of Texas and a domicile
thereof at the time of his death.2 So that even assuming Texas has a conflict of
law rule providing that the domiciliary system (law of the domicile) should
govern, the same would not result in a reference back (renvoi) to Philippine
law, but would still refer to Texas law. Nonetheless, if Texas has a 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

14

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

Page

deprived of their legitimes as illegitimate children and, therefore, compulsory

heirs of the deceased.

have for their object public order, public policy and good customs shall not be
rendered ineffective by laws or judgments promulgated, or by determinations
or conventions agreed upon in a foreign country.
prevails as the exception to Art. 16, par. 2 of the Civil Code afore-quoted. This
is not correct. Precisely, Congress deleted the phrase, "notwithstanding the
provisions of this and the next preceding article" when they incorporated Art.
11 of the old Civil Code as Art. 17 of the new Civil Code, while reproducing
without substantial change the second paragraph of Art. 10 of the old Civil
Code as Art. 16 in the new. It must have been their purpose to make the
second paragraph of Art. 16 a specific provision in itself which must be applied
in testate and intestate 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
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.
1

San Antonio, Texas was his legal residence.

Lim vs. Collector, 36 Phil. 472; In re Testate Estate of Suntay, 95 Phil. 500.

15
Page
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 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

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

Franco Loyola, filed a Motion to Dismiss Opposition (With Waiver of Rights or
Interests) stating that he "has been able to verify the veracity thereof (of the
will) and now confirms the same to be truly the probated will of his daughter
Adoracion." Hence, an ex-parte presentation of evidence for the reprobate of
the questioned will was made.
On January 10, 1979, the respondent judge issued an order, to wit:
At the hearing, it has been satisfactorily established that Adoracion C. Campos,
in her lifetime, was a citizen of the United States of America with a permanent
residence at 4633 Ditman Street, Philadelphia, PA 19124, (Exhibit D) that when
alive, Adoracion C. Campos executed a Last Will and Testament in the county
of Philadelphia, Pennsylvania, U.S.A., according to the laws thereat (Exhibits E3 to E-3-b) that while in temporary sojourn in the Philippines, Adoracion C.
Campos died in the City of Manila (Exhibit C) leaving property both in the
Philippines and in the United States of America; that the Last Will and
Testament of the late Adoracion C. Campos was admitted and granted probate
by the Orphan's Court Division of the Court of Common Pleas, the probate
court of the Commonwealth of Pennsylvania, County of Philadelphia, U.S.A.,
and letters of administration were issued in favor of Clement J. McLaughlin all
in accordance with the laws of the said foreign country on procedure and
allowance of wills (Exhibits E to E-10); and that the petitioner is not suffering
from any disqualification which would render her unfit as administratrix of the
estate in the Philippines of the late Adoracion C. Campos.
WHEREFORE, the Last Will and Testament of the late Adoracion C. Campos is
hereby admitted to and allowed probate in the Philippines, and Nenita Campos
Paguia is hereby appointed Administratrix of the estate of said decedent; let
Letters of Administration with the Will annexed issue in favor of said
Administratrix upon her filing of a bond in the amount of P5,000.00 conditioned
under the provisions of Section I, Rule 81 of the Rules of Court.
Another manifestation was filed by the petitioner on April 14, 1979, confirming
the withdrawal of his opposition, acknowledging the same to be his voluntary
act and deed.
On May 25, 1979, Hermogenes Campos filed a petition for relief, praying that
the order allowing the will be set aside on the ground that the withdrawal of his
opposition to the same was secured through fraudulent means. According to
him, the "Motion to Dismiss Opposition" was inserted among the papers which
he signed in connection with two Deeds of Conditional Sales which he executed
with the Construction and Development Corporation of the Philippines (CDCP).
He also alleged that the lawyer who filed the withdrawal of the opposition was
not his 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:

16
Page

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.

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

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 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

17
Page

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
ex-parte, there being no other opposition to the same.

will, as provided for by Article 16(2) and 1039 of the Civil Code, the national
law of the decedent must apply. This was squarely applied in the case of Bellis
v. Bellis (20 SCRA 358) wherein we ruled:
It is therefore evident that whatever public policy or good customs may be
involved in our system of legitimes, Congress has not intended to extend the
same to the succession of foreign nationals. For it has specifically chosen to
leave, inter alia, the amount of successional rights, to the decedent's national
law. Specific provisions must prevail over general ones.
xxx xxx xxx
The parties admit that the decedent, Amos G. Bellis, was a citizen of the State
of Texas, U.S.A., and under the law of Texas, there are no forced heirs or
legitimes. Accordingly, since the intrinsic validity of the provision of the will
and the amount of successional rights are to be determined under Texas law,
the Philippine Law on legitimes cannot be applied to the testacy of Amos G.
Bellis.
As regards the alleged absence of notice of hearing for the petition for relief,
the records 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).

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

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

18

SO ORDERED.

Page

WHEREFORE, the petition for certiorari and prohibition is hereby dismissed for
lack of merit.

G.R. No. L-22036 April 30, 1979

TESTATE ESTATE OF THE LATE REVEREND FATHER PASCUAL RIGOR. THE
PARISH PRIEST OF THE ROMAN CATHOLIC CHURCH OF VICTORIA,
TARLAC, petitioner-appellant,
vs. BELINA RIGOR, NESTORA RIGOR, FRANCISCA ESCOBAR DE RIGOR
and JOVITA ESCOBAR DE FAUSTO, respondents-appellees.
D. Taedo, Jr. for appellants.
J. Palanca, Sr. for appellee.
AQUINO, J.:
This case is about the efficaciousness or enforceability of a devise of ricelands
located at Guimba, Nueva Ecija, with a total area of around forty- four hectares
That devise was made in the will of the late Father Pascual Rigor, a native of

The record discloses that Father Rigor, the parish priest of Pulilan, Bulacan,
died on August 9, 1935, leaving a will executed on October 29, 1933 which was
probated by the Court of First Instance of Tarlac in its order of December 5,
1935. Named as devisees in the will were the testators nearest relatives,
namely, his three sisters: Florencia Rigor-Escobar, Belina Rigor-Manaloto and
Nestora Rigor-Quiambao. The testator gave a devise to his cousin, Fortunato
Gamalinda.
In addition, the will contained the following controversial bequest
(paragraphing supplied to facilitate comprehension of the testamentary
provisions):
Doy y dejo como legado CUATRO (4) PARCELAS de terreno palayeros situados
en el municipiooo de Guimba de la provinciaaa de NUEVA ECIJA, cuyo num. de
CERTIFICADO DE TRANSFERENCIA DE TITULO SON; Titulo Num. 6530, mide
16,249 m. cuadrados de superficie Titulo Num. 6548, mide 242,998 m.
cuadrados de superficie y annual 6525, mide 62,665 m. cuadrados de
superficie; y Titulo Num. 6521, mide 119,251 m. cuadrados de superficie; a
cualquier pariente mio varon mas cercano que estudie la carrera eclesiatica
hasta ordenarse de Presbiterado o sea Sacerdote; las condiciones de estate
legado son;
(1.a) Prohibe en absoluto la venta de estos terrenos arriba situados objectos de
este legado;
(2.a) Que el legatario pariente mio mas cercano tendra derecho de empezar a
gozar y administrar de este legado al principiar a curzar la Sagrada Teologio, y
ordenado de Sacerdote, hasta su muerte; pero que pierde el legatario este
derecho de administrar y gozar de este legado al dejar de continuar sus
estudios para ordenarse de Presbiterado (Sacerdote).
Que el legatario una vez Sacerdote ya estara obligado a celebrar cada ao
VEINTE (20) Misas rezadas en sufragio de mi alma y de mis padres difuntos, y
si el actual legatario, quedase excomulgado, IPSO FACTO se le despoja este
legado, y la administracion de esto pasara a cargo del actual Parroco y sus
sucesores de la Iglecia Catolica de Victoria, Tarlac.
Y en intervalo de tiempo que no haya legatario acondicionado segun lo arriba
queda expresado, pasara la administracion de este legado a cargo del actual
Parroco Catolico y sus sucesores, de Victoria, Tarlac.
El Parroco administrador de estate legado, acumulara, anualmente todos los
productos que puede tener estate legado, ganando o sacando de los productos
anuales el CINCO (5) por ciento para su administracion, y los derechos
correspondientes de las VEINTE (20) Misas rezadas que debiera el Parroco
celebrar cada ao, depositando todo lo restante de los productos de estate
legado, en un banco, a nombre de estate legado.
To implement the foregoing bequest, the administratix in 1940 submitted a
project containing the following item:
5. LEGACY OF THE CHURCH

19

The parish priest of Victoria, who claimed to be a trustee of the said lands,
appealed to this Court from the decision of the Court of Appeals affirming the
order of the probate court declaring that the said devise was inoperative (Rigor
vs. Parish Priest of the Roman Catholic Church of Victoria, Tarlac, CA-G.R. No.
24319-R, August 1, 1963).

Page

Victoria Tarlac, in favor of his nearest male relative who would study for the
priesthood.

That it be adjudicated in favor of the legacy purported to be given to the

nearest male relative who shall take the priesthood, and in the interim to be
administered by the actual Catholic Priest of the Roman Catholic Church of
Victoria, Tarlac, Philippines, or his successors, the real properties hereinbelow
indicated, to wit:

Title No.

Lot No.

Area in
Has.

Tax
Dec.

Ass. Value

T-6530

3663

1.6249

18740

P 340.00

T-6548

3445-C

24.2998

18730

7,290.00

T-6525

3670

6.2665

18736

1,880.00

T-6521

3666

11.9251

18733

3,580.00

Total amount and value 44.1163 P13,090.00

Judge Roman A. Cruz in his order of August 15, 1940, approving the project of
partition, directed that after payment of the obligations of the estate (including
the sum of P3,132.26 due to the church of the Victoria parish) the
administratrix should deliver to the devisees their respective shares.
It may be noted that the administratrix and Judge Cruz did not bother to
analyze the meaning and implications of Father Rigor's bequest to his nearest
male relative who would study for the priesthood. Inasmuch as no nephew of
the testator claimed the devise and as the administratrix and the legal heirs
believed that the parish priest of Victoria had no right to administer the
ricelands, the same were not delivered to that ecclesiastic. The testate
proceeding remained pending.
About thirteen years after the approval of the project of partition, or on
February 19, 1954, the parish priest of Victoria filed in the pending testate
proceeding a petition praying for the appointment of a new administrator
(succeeding the deceased administration Florencia Rigor), who should deliver
to the church the said ricelands, and further praying that the possessors
thereof be ordered to render an accounting of the fruits. The probate court
granted the petition. A new administrator was appointed. On January 31, 1957
the parish priest filed another petition for the delivery of the ricelands to the
church as trustee.
The intestate heirs of Father Rigor countered with a petition dated March 25,
1957 praying that the bequest be d inoperative and that they be adjudged as
the persons entitled to the said ricelands since, as admitted by the parish
priest of Victoria, "no nearest male relative of" the testator "has ever studied
for the priesthood" (pp. 25 and 35, Record on Appeal). That petition was
opposed by the parish priest of Victoria.
Finding that petition to be meritorious, the lower court, through Judge Bernabe
de Aquino, declared the bequest inoperative and adjudicated the ricelands to

The legal heirs appealed to the Court of Appeals. It reversed that order. It held
that Father Rigor had created a testamentary trust for his nearest male relative
who would take the holy orders but that such trust could exist only for twenty
years because to enforce it beyond that period would violate "the rule against
perpetuities. It ruled that since no legatee claimed the ricelands within twenty
years after the testator's death, the same should pass to his legal heirs, citing
articles 888 and 912(2) of the old Civil Code and article 870 of the new Civil
Code.
The parish priest in this appeal contends that the Court of Appeals erred in not
finding that the testator created a public charitable trust and in not liberally
construing the testamentary provisions so as to render the trust operative and
to prevent intestacy.
As refutation, the legal heirs argue that the Court of Appeals d the bequest
inoperative because no one among the testator's nearest male relatives had
studied for the priesthood and not because the trust was a private charitable
trust. According to the legal heirs, that factual finding is binding on this Court.
They point out that appellant priest's change of theory cannot be
countenanced in this appeal .
In this case, as in cases involving the law of contracts and statutory
construction, where the intention of the contracting parties or of the
lawmaking body is to be ascertained, the primary issue is the determination of
the testator's intention which is the law of the case (dicat testor et erit lex.
Santos vs. Manarang, 27 Phil. 209, 215; Rodriguez vs. Court of Appeals, L28734, March 28, 1969, 27 SCRA 546).
The will of the testator is the first and principal law in the matter of
testaments. When his intention is clearly and precisely expressed, any
interpretation must be in accord with the plain and literal meaning of his
words, except when it may certainly appear that his intention was different
from that literally expressed (In re Estate of Calderon, 26 Phil. 333).
The intent of the testator is the cardinal rule in the construction of wills." It is
"the life and soul of a will It is "the first greatest rule, the sovereign guide, the
polestar, in giving effect to a will". (See Dissent of Justice Moreland in Santos
vs. Manarang, 27 Phil. 209, 223, 237-8.)
One canon in the interpretation of the testamentary provisions is that "the
testator's intention is to be ascertained from the words of the wilt taking into
consideration the circumstances under which it was made", but excluding the
testator's oral declarations as to his intention (Art. 789, Civil Code of the
Philippines).
To ascertain Father Rigor's intention, it may be useful to make the following restatement of the provisions of his will.
1. that he bequeathed the ricelands to anyone of his nearest male relatives
who would pursue an ecclesiastical career until his ordination as a priest.

20

Judge De Aquino granted the respond motion for reconsideration in his order of
December 10, 1957 on the ground that the testator had a grandnephew
named Edgardo G. Cunanan (the grandson of his first cousin) who was a
seminarian in the San Jose Seminary of the Jesuit Fathers in Quezon City. The
administrator was directed to deliver the ricelands to the parish priest of
Victoria as trustee.

Page

the testator's legal heirs in his order of June 28, 1957. The parish priest filed
two motions for reconsideration.

2. That the devisee could not sell the ricelands.

3. That the devisee at the inception of his studies in sacred theology could
enjoy and administer the ricelands, and once ordained as a priest, he could
continue enjoying and administering the same up to the time of his death but
the devisee would cease to enjoy and administer the ricelands if he
discontinued his studies for the priesthood.
4. That if the devisee became a priest, he would be obligated to celebrate
every year twenty masses with prayers for the repose of the souls of Father
Rigor and his parents.
5. That if the devisee is excommunicated, he would be divested of the legacy
and the administration of the riceland would pass to the incumbent parish
priest of Victoria and his successors.
6. That during the interval of time that there is no qualified devisee as
contemplated above, the administration of the ricelands would be under the
responsibility of the incumbent parish priest of Victoria and his successors, and
7. That the parish priest-administrator of the ricelands would accumulate
annually the products thereof, obtaining or getting from the annual produce
five percent thereof for his administration and the fees corresponding to the
twenty masses with prayers that the parish priest would celebrate for each
year, depositing the balance of the income of the devise in the bank in the
name of his bequest.
From the foregoing testamentary provisions, it may be deduced that the
testator intended to devise the ricelands to his nearest male relative who
would become a priest, who was forbidden to sell the ricelands, who would lose
the devise if he discontinued his studies for the priesthood, or having been
ordained a priest, he was excommunicated, and who would be obligated to say
annually twenty masses with prayers for the repose of the souls of the testator
and his parents.
On the other hand, it is clear that the parish priest of Victoria would administer
the ricelands only in two situations: one, during the interval of time that no
nearest male relative of the testator was studying for the priesthood and two,
in case the testator's nephew became a priest and he was excommunicated.
What is not clear is the duration of "el intervalo de tiempo que no haya
legatario acondicionado", or how long after the testator's death would it be
determined that he had a nephew who would pursue an ecclesiastical
vocation. It is that patent ambiguity that has brought about the controversy
between the parish priest of Victoria and the testator's legal heirs.
Interwoven with that equivocal provision is the time when the nearest male
relative who would study for the priesthood should be determined. Did the
testator contemplate only his nearest male relative at the time of his death? Or
did he have in mind any of his nearest male relatives at anytime after his
death?
We hold that the said bequest refers to the testator's nearest male relative
living at the time of his death and not to any indefinite time thereafter. "In
order to be capacitated to inherit, the heir, devisee or legatee must be living at
the moment the succession opens, except in case of representation, when it is
proper" (Art. 1025, Civil Code).
The said testamentary provisions should be sensibly or reasonably construed.
To construe them as referring to the testator's nearest male relative at anytime
after his death would render the provisions difficult to apply and create

It is contended by the legal heirs that the said devise was in reality intended
for Ramon Quiambao, the testator's nephew and godchild, who was the son of
his sister, Mrs. Quiambao. To prove that contention, the legal heirs presented in
the lower court the affidavit of Beatriz Gamalinda, the maternal grandmother
of Edgardo Cunanan, who deposed that after Father Rigor's death her own son,
Valentin Gamalinda, Jr., did not claim the devise, although he was studying for
the priesthood at the San Carlos Seminary, because she (Beatriz) knew that
Father Rigor had intended that devise for his nearest male relative beloning to
the Rigor family (pp. 105-114, Record on Appeal).
Mrs. Gamalinda further deposed that her own grandchild, Edgardo G. Cunanan,
was not the one contemplated in Father Rigor's will and that Edgardo's father
told her that he was not consulted by the parish priest of Victoria before the
latter filed his second motion for reconsideration which was based on the
ground that the testator's grandnephew, Edgardo, was studying for the
priesthood at the San Jose Seminary.

21

In 1935, when the testator died, his nearest leagal heirs were his three sisters
or second-degree relatives, Mrs. Escobar, Mrs. Manaloto and Mrs. Quiambao.
Obviously, when the testator specified his nearest male relative, he must have
had in mind his nephew or a son of his sister, who would be his third-degree
relative, or possibly a grandnephew. But since he could not prognosticate the
exact date of his death or state with certitude what category of nearest male
relative would be living at the time of his death, he could not specify that his
nearest male relative would be his nephew or grandnephews (the son of his
nephew or niece) and so he had to use the term "nearest male relative".

Page

uncertainty as to the disposition of his estate. That could not have been his
intention.

trusteeship would be terminated.

Following that interpretation of the will the inquiry would be whether at the
time Father Rigor died in 1935 he had a nephew who was studying for the
priesthood or who had manifested his desire to follow the ecclesiastical career.
That query is categorically answered in paragraph 4 of appellant priest's
petitions of February 19, 1954 and January 31, 1957. He unequivocally alleged
therein that "not male relative of the late (Father) Pascual Rigor has ever
studied for the priesthood" (pp. 25 and 35, Record on Appeal).
Inasmuch as the testator was not survived by any nephew who became a
priest, the unavoidable conclusion is that the bequest in question was
ineffectual or inoperative. Therefore, the administration of the ricelands by the
parish priest of Victoria, as envisaged in the wilt was likewise inoperative.
The appellant in contending that a public charitable trust was constituted by
the testator in is favor assumes that he was a trustee or a substitute devisee
That contention is untenable. A reading of the testamentary provisions
regarding the disputed bequest not support the view that the parish priest of
Victoria was a trustee or a substitute devisee in the event that the testator was
not survived by a nephew who became a priest.
It should be understood that the parish priest of Victoria could become a
trustee only when the testator's nephew living at the time of his death, who
desired to become a priest, had not yet entered the seminary or, having been
ordained a priest, he was excommunicated. Those two contingencies did not
arise, and could not have arisen in this case because no nephew of the testator
manifested any intention to enter the seminary or ever became a priest.

Parenthetically, it should be stated at this juncture that Edgardo ceased to be a

seminarian in 1961. For that reason, the legal heirs apprised the Court of
Appeals that the probate court's order adjudicating the ricelands to the parish
priest of Victoria had no more leg to stand on (p. 84, Appellant's brief).

The Court of Appeals correctly ruled that this case is covered by article 888 of
the old Civil Code, now article 956, which provides that if "the bequest for any
reason should be inoperative, it shall be merged into the estate, except in
cases of substitution and those in which the right of accretion exists" ("el
legado ... por qualquier causa, no tenga efecto se refundira en la masa de la
herencia, fuera de los casos de sustitucion y derecho de acrecer").

Of course, Mrs. Gamalinda's affidavit, which is tantamount to evidence aliunde

as to the testator's intention and which is hearsay, has no probative value. Our
opinion that the said bequest refers to the testator's nephew who was living at
the time of his death, when his succession was opened and the successional
rights to his estate became vested, rests on a judicious and unbiased reading
of the terms of the will.

This case is also covered by article 912(2) of the old Civil Code, now article 960
(2), which provides that legal succession takes place when the will "does not
dispose of all that belongs to the testator." There being no substitution nor
accretion as to the said ricelands the same should be distributed among the
testator's legal heirs. The effect is as if the testator had made no disposition as
to the said ricelands.

Had the testator intended that the "cualquier pariente mio varon mas cercano
que estudie la camera eclesiatica" would include indefinitely anyone of his
nearest male relatives born after his death, he could have so specified in his
will He must have known that such a broad provision would suspend for an
unlimited period of time the efficaciousness of his bequest.

The Civil Code recognizes that a person may die partly testate and partly
intestate, or that there may be mixed succession. The old rule as to the
indivisibility of the testator's win is no longer valid. Thus, if a conditional legacy
does not take effect, there will be intestate succession as to the property
recovered by the said legacy (Macrohon Ong Ham vs. Saavedra, 51 Phil. 267).

What then did the testator mean by "el intervalo de tiempo que no haya
legatario acondicionado"? The reasonable view is that he was referring to a
situation whereby his nephew living at the time of his death, who would like to
become a priest, was still in grade school or in high school or was not yet in
the seminary. In that case, the parish priest of Victoria would administer the
ricelands before the nephew entered the seminary. But the moment the
testator's nephew entered the seminary, then he would be entitled to enjoy
and administer the ricelands and receive the fruits thereof. In that event, the

We find no merit in the appeal The Appellate Court's decision is affirmed. Costs
against the petitioner.
SO ORDERED
Fernando, C.J.(Actg. ), Barredo (Actg. Chairman), Antonio, Concepcion, Jr., and
Santos, JJ., concur.
Abad Santos, J., took no part.