G.R. No.

L-27421 September 12, 1986

ANITA MANG-OY, assisted by her husband, William Mang-oy; LEONORA MIGUEL, assisted by
her husband, Miguel Olila; HELENA TAYNAN, and JOSE TUMPAO, petitioners,
vs.
THE COURT OF APPEALS, BANDO TUMPAO, LAMBIA TUMPAO, married to Salming Pirazo,
and ABITO TUMPAO, respondents.

CRUZ, J.:
We are back to the early 1900's in the cool regions of the Mountain Province, setting of many
legends of adventure and romance among the highlanders of the North. Our story is not as fanciful,
involving as it does not a rivalry for the hand of a beautiful Igorot maiden but a prosaic dispute over a
piece of land. Even so, as in those tales of old, the issue shall be decided in favor of the just and
deserving albeit according to the dictates not of the heart but of the law.
The hero of this story we shall call Old Man Tumpao although at the time it all began he was still a
young and vigorous man. He had a first wife by whom he begot three children, who are the private
respondents in this case. 1 Upon her death, he took to himself a second wife, by whom he had no issue but who had two children
she had "adopted" according to the practice of the Igorots then. 2 It is their children who, with some others, are the petitioners in this case.

The facts are as simple as the ancient hills.

On September 4, 1937, Old Man Tumpao executed what he called a "last will and testament" the
dispositive portion of which declared:
Lastly, I appoint my son BANDO TUMPAO, whom I named, that after departing from
this life, he shall be the one to carry or fulfill my Testament, and that he shall have the
power to see and dispose all what I have stated, he shall not change what I have
already stated in my Testament so that there is truth in my will. I will affix my right
thumbmark at the end of my written name because I do not know how to read and
write, after it has been read to me and affirm all what is my Win this 2:00 o'clock in
the afternoon this 4th day of September 1937, before those who are present and
have heard what I have stated, Pico La Trinidad, Benguet, 4th September, 1937. 3
The contents of this document were read to the beneficiaries named therein who at the time were
already occupying the portions respectively allotted to them. In implementation of this document,
they then, on September 7, 1937, executed an agreement providing as follows:
We who are named children and who will inherit from our father TUMPAO: BANDO
TUMPAO, LAMBIA ABITO, JOSE and LABET, and we also whose lands are
included, SUCDAD BUTIOG, TULINGAN PUL-OT and ANTHONY MENECIO all of
legal age and residing in the town of La Trinidad, Sub-Province of Benguet we say in
truth after swearing under oath in accordance to law that the testament of our father
TUMPAO who is presently ill by virtue of our right to inherit and also acknowledge or
recognize the lands as included in the area of said land as appearing in Title No. 416
in the name of our father TUMPAO here in La Trinidad, Barrio Pico, have heard and

understood the Will as told by him concerning our right to the land which we will
inherit and also to those whose lands which were included in the said Title No. 416
because we were all called be present and hear his wilt We heard and agreed to his
will as appearing in his testament regarding the land which we will inherit. We also
recognized and agree to the appointment of our brother BANDO to whom the parcels
of land is to be delivered and he will also be the one, to deliver to us our shares as
soon as we will demand the partition in accordance with the will of our father
TUMPAO as soon in the Testament which we saw and have heard by all.
It is also agreed upon among us in this confirmation that when our brother BANDO
who is appointed to distribute to us our shares we affirm in this instrument that will
answer for all the expenses when it shag be surveyed so the share of each will be
segregated so also with the approval of the title, which shall appear the name of
each of us and that we do not dispute the land which we are actually working shall
pertain to us as embodied in the said win of our father TUMPAO.
We execute this deed of confirmation in the presence of the Notary Public here in
Baguio so that this Will, be used as our agreement so also with the wig of our father
so that they be one to be followed as regard upon by all and we affix our right
thumbmark at the end of our written name because we do not know how to read and
write this 7th day of September, 1937 in the City of Baguio. 4
Two days later, Old Man Tumpao died.
The parties remained in possession of the lots assigned to them, apparently in obedience to the wish
of Old Man Tumpao as expressed in his last "will" and affirmed by the other abovequoted instrument.
But things changed unexpectedly in 1960, twenty three years later, that brought this matter to the
courts.
On November 4, 1960, the respondents executed an extrajudicial partition in which they divided the
property of Old Man Tumpao among the three of them only, to the exclusion of the other persons
mentioned in the above-quoted documents. 5 By virtue of this partition, Old Man Tumpao's title was cancelled and another
one was issued in favor of the three respondents.

It is this title that is now being questioned by the petitioners, who are suing for reconveyance. They
had been sustained by the trial court, 7 which, however, was reversed by the Court of Appeals. They are before this Court to
challenge that reversal.

In deciding against them, the Court of Appeals held that the "will" executed by Old Man Tumpao was
null and void because it had not been probated The agreement of partition among the supposed
beneficiaries of the will was nullified because it was a partition inter vivos and had not been
approved by the Director of the Bureau of Non-Christian Tribes. It was likewise held that the land in
dispute was acquired during Old Man Tumpao's first marriage although it was registered during his
second marriage and so the petitioners were liable in rentals for the lots occupied by them, as well
as attorney's fees. 8
After examining the musty records, we sustain the ruling-made both by the trial court and the Court
of Appeals-that the will, not having been probated as required by law, was inoperative as such. The

settled principle, as announced in a long line of decisions in accordance with the Rules of Court, is
that no will shall pass either real or personal property unless it is proved or allowed in court. 9
We find, however, that the document may be sustained on the basis of Article 1056 of the Civil Code
of 1899, which was in force at the time the said document was executed by Old Man Tumpao in
1937. The said article reads as follows:
Art. 1056. If the testator should make a partition of his properties by an act inter
vivos, or by win, such partition shall stand in so far as it does not prejudice the
legitime of the forced heirs.
On this score, we agree with the trial court. The applicable decision is Albela vs. Albela, 10 also decided
by the Court of Appeals, with Justice J.B.L. Reyes as the ponente.

In this case, Agustin Albela executed on January 19, 1935, a deed of partition dividing two parcels of
land between hisdaughters, Eduarda and Restituta, who indicated their conformity by signing the
instrument. The took possession of their respective shares upon his death, but fourteen years later,
Restituta ejected Eduarda from her lot, alleging title by purchase from a third party and denying the
existence of the partition. Eduarda sued for recovery and was upheld by the trial court on the basis
of the deed of partition.
Let Justice J.B.L. Reyes, who later became a distinguished member of this Court, take over at this
point:
In their argument, appellants do not question the authenticity of the above document,
but argue against its validity, on the grounds summarized in their brief (p. 7), as
follows:
Therefore the allegations of the plaintiff-appellee, Eduarda Albela, rest on a
document which defies classification. If it is a deed of partition, it is null and void
because it is not embodied in a public document; if it is a simple donation of realty, it
is also null and void, because it is not in a public document and there is no
acceptance; if it is a donation Mortis Causa, certainly it is null and void because it
does not follow the rules governing testamentary succession; and if ever it is to be
classified as a will, more so, it is still null and void because it does not conform to the
requirements of Section 618, Act 190 as amended by Act 2645.
None of these objections is valid in law. The appellants evidently fail to realize that
Article 1056 of the Civil Code of 1889 authorizes a testator to partition inter vivos his
property, and distribute them among his heirs, and that this partition is not
necessarily either a donation nor a testament, but an instrument of a special
character, sui generis, which is revocable at any time by the causante during his
lifetime, and does not operate as a conveyance of title until his death. It derives its
binding force on the heirs from the respect due to the will of the owner of the
property, limited only by his creditors and the intangibility of the legitime of the forced
heirs. 'El testador es libre y sus herederos han de pasar por lo que haga en cuanto
no perjudique la legitime de los forsozos. Inutil es sonar en otras limitaciones que no
existen.' (7 Manresa Commentaries, 6th Ed., p. 639.

That such partition is not governed by the rules of wills or donations inter vivos is a
consequence of its special nature. Says the learned Manresa on this point:
Con estas palabras (en acto entre vivos) la ley en el Articulo 1056, como en el 1057,
que despues examinaremos, alude a las formalidades con que puede practicarse la
particion, no a los efectos de esta, significando que para ella no es preciso que
intervengan las formas solemnes que todo testamento o acto de ultima voluntad en
general requiere. Ni aun sera preciso guardar las formalidades especiales de las
donaciones, porque no se trata de disponer a titulo gratuito, sino de divider aquellos
bienes de que ya anteriormente sedispuso en forma legal (Emphasis supplied. Op.
Cit., p. 635)
It was sufficient, therefore, that the partition Exhibit A, should be in writing. It does not
have to be in a public document except to affect third persons (Art. 1280), being valid
between the parties who signed it in its present form.
If any invalidity could be alleged against the partition, it would lie in the absence of a
previous testament preceding it (Legasto v. Verzosa, 54 Phil. 766). And even this
may not be indispensable in the present case, for the testator's partition did not
depart from the shares allotted to his heirs by the law of intestacy. Nor is a prior win
necessary under Article 1080 of the new Civil Code, which replaced the word
'testator' in Article 1056 of the Code of 1889 with the broader term 'person.'
Be that as it may, the nullity of the partition Exhibit A would not alter the result. There
being only two daughters surviving the deceased Agustin, each one of them would
necessarily be entitled to one-half of each of the two parcels he owned at his death,
and Agustin's former ownership is no longer disputed by the appellants in this
instance. In addition, since both daughters signed the partition Exhibit A, its terms
would bind both, and estop them from asserting a different interest. Appellants' act; in
appropriating the whole inheritance and its fruits can find no support in law or justice.
There is no difference in legal effect between Agustin Albela's deed of partition and Old Man
Tumpao's "last will and testament." Both are sustainable under Article 1056 of the Civil Code, which
was in force at the time they were executed Even as Agustin Albela's partition was signed by the two
daughters themselves, so was Old Man Tumpao's "will" affirmed by the beneficiaries in their
agreement of September 7, 1937, which reiterated and recognized the terms of such "will." While not
valid as a partition inter vivos under Articles 816 and 1271 of the old Civil Code, it was nevertheless
binding on the parties as proof of their conformity to the dispositions made by Old Man Tumpao in
his "last will and testament."
As the trial court put it:
The will alone, 'Exh. B', would be inoperative for the simple reason that it was not
probated, However, when the persons who were named therein as heirs and
beneficiaries voluntarily agreed in writing to abide by its terms probably to save the
expenses of probate. and furthermore, carried out its terms after the death of the
testator until now, then it must be held to be binding between them.

Said agreement was not a disposal of inheritance by a prospective heir before the
death of the testator, but an agreement to carry out the will. It was not contested by
the defendants and after the lapse of 25 years their right, if any, to assail it has
prescribed under Art. 1144 of the Civil Code.
Art. 1144-The following actions must be brought ten years from the time the right of
action accrues:
1) upon a written contract;
2) Upon an obligation created by law;
3) Upon a judgment.
Any formal defect of the deed, 'Exh. 'C', was cured by the lapse of time.
What the plaintiffs received had an aggregate area of less than 1/3 of the land of Old
Tumpao. It covers about 11,000 square meters while the total area was more than
35,000 square meters, Under the old Civil Code, it was within the free disposable
portion of ones' estate despite the existence of any forced heirs. (See old Civil Code,
Art. 808)
In view of the foregoing considerations, the defendants are ordered to execute a
deed of conveyance in favor of the plaintiffs of the areas respectively owned and
occupied by them and to pay the costs.
Sucdad Butiog is ordered to pay the defendants P160.00 more as a reasonable
amount of his additional share in the expenses of segregating his lot but the
(defendants) are ordered to execute a deed of conveyance in his favor of the said lot
owned by him.
The expenses of Survey and segregation must be borne by the plaintiffs.
We may add that the agreement entered into by the parties in implementation of Old Man Tumpao's
"will" did not have to be approved by the Director of the Bureau of Non-Christian Tribes because the
Administrative Code of Mindanao and Sulu was not extended to the Mountain Province. 11 Moreover, the
document was not a conveyance of properties or property right.

12

It remains to state that the property in dispute having been registered in 1917, the presumption is
that it was acquired during the second marriage and so cannot be claimed by the respondents as the
conjugal property of their mother and Old Man Tumpao. Hence, they are not entitled to retain the
entire land as their exclusive inheritance or to collect rentals for the lots occupied by the petitioners.
The trial judge, the Hon. Feliciano Belmonte, was correct in ordering the reconveyance to the
petitioners of their respective shares. We affirm his decision in toto.

How much simpler was life among the natives in the North during the early days, when right and
wrong were weighed according to the primal code of the ancient hills. Even so, though that past is
gone forever, justice now, as it was then, is still for the deserving.
WHEREFORE, the decision of the Court of Appeals is REVERSED and that of the trial court
reinstated, with costs against the respondents.
SO ORDERED.
Yap (Chairman), Narvasa, Melencio-Herrera and Feliciano, JJ., concur.

G.R. No. L-23638

October 12, 1967

DIONISIO FERNANDEZ, EUSEBIO REYES and LUISA REYES, petitioners,

vs.
ISMAELA DIMAGIBA, respondent.
---------------------------------------G.R. No. L-23662

October 12, 1967

MARIANO REYES, CESAR REYES, LEONOR REYES and PACIENCIA REYES, petitioners,
vs.
ISMAELA DIMAGIBA, respondent.
Jose D. Villena for petitioners.
Antonio Barredo and Exequiel M. Zaballero for respondent.
REYES, J.B.L., Actg. C.J.:
The heirs intestate of the late Benedicta de los Reyes have petitioned for a review of the decision of
the Court of Appeals (in CA-G. R. No. 31221-R) affirming that of the Court of First Instance of
Bulacan, in Special Proceeding No. 831 of said Court, admitting to probate the alleged last will and
testament of the deceased, and overruling the opposition to the probate.
It appears from the record that on January 19, 1955, Ismaela Dimagiba, now respondent, submitted
to the Court of First Instance a petition for the probate of the purported will of the late Benedicta de
los Reyes, executed on October 22, 1930, and annexed to the petition. The will instituted the
petitioner as the sole heir of the estate of the deceased. The petition was set for hearing, and in due
time, Dionisio Fernandez, Eusebio Reyes and Luisa Reyes and one month later, Mariano, Cesar,
Leonor and Paciencia, all surnamed Reyes, all claiming to be heirs intestate of the decedent, filed
oppositions to the probate asked. Grounds advanced for the opposition were forgery, vices of
consent of the testatrix, estoppel by laches of the proponent and revocation of the will by two deeds
of conveyance of the major portion of the estate made by the testatrix in favor of the proponent in
1943 and 1944, but which conveyances were finally set aside by this Supreme Court in a decision
promulgated on August 3, 1954, in cases G.R. Nos. L-5618 and L-5620 (unpublished).
After trial on the formulated issues, the Court of First Instance, by decision of June 20, 1958, found
that the will was genuine and properly executed; but deferred resolution on the questions of estoppel
and revocation "until such time when we shall pass upon the intrinsic validity of the provisions of the
will or when the question of adjudication of the properties is opportunely presented."
Oppositors Fernandez and Reyes petitioned for reconsideration, and/or new trial, insisting that the
issues of estoppel and revocation be considered and resolved; whereupon, on July 27, 1959, the
Court overruled the claim that proponent was in estoppel to ask for the probate of the will, but
"reserving unto the parties the right to raise the issue of implied revocation at the opportune time."
On January 11, 1960, the Court of First Instance appointed Ricardo Cruz as administrator for the
sole purpose of submitting an inventory of the estate, and this was done on February 9, 1960.

On February 27, 1962, after receiving further evidence on the issue whether the execution by the
testatrix of deeds of sale of the larger portion of her estate in favor of the testamentary heir, made in
1943 and 1944, subsequent to the execution of her 1930 testament, had revoked the latter under
Article 957(2) of the 1950 Civil Code (Art. 869 of the Civil Code of 1889), the trial Court resolved
against the oppositors and held the will of the late Benedicta de los Reyes "unaffected and
unrevoked by the deeds of sale." Whereupon, the oppositors elevated the case to the Court of
Appeals.
The appellate Court held that the decree of June 20, 1958, admitting the will to probate, had become
final for lack of opportune appeal; that the same was appealable independently of the issue of
implied revocation; that contrary to the claim of oppositors-appellants, there had been no legal
revocation by the execution of the 1943 and 1944 deeds of sale, because the latter had been made
in favor of the legatee herself, and affirmed the decision of the Court of First Instance.
Oppositors then appealed to this Court.
In this instance, both sets of oppositors-appellants pose three main issues: (a) whether or not the
decree of the Court of First Instance allowing the will to probate had become final for lack of appeal;
(b) whether or not the order of the Court of origin dated July 27, 1959, overruling the estoppel
invoked by oppositors-appellants had likewise become final; and (c) whether or not the 1930 will of
Benedicta de los Reyes had been impliedly revoked by her execution of deeds of conveyance in
favor of the proponent on March 26, 1943 and April 3, 1944.
As to the first point, oppositors-appellants contend that the order allowing the will to probate should
be considered interlocutory, because it fails to resolve the issues of estoppel and revocation
propounded in their opposition. We agree with the Court of Appeals that the appellant's stand is
untenable. It is elementary that a probate decree finally and definitively settles all questions
concerning capacity of the testator and the proper execution and witnessing of his last will and
testament, irrespective of whether its provisions are valid and enforceable or otherwise. (Montaano
vs. Suesa, 14 Phil. 676; Mercado vs. Santos, 66 Phil. 215; Trillana vs. Crisostomo, 89 Phil. 710). As
such, the probate order is final and appealable; and it is so recognized by express provisions of
Section 1 of Rule 109, that specifically prescribes that "any interested person may appeal in special
proceedings from an order or judgment . . . where such order or judgment: (a) allows or disallows a
will."
Appellants argue that they were entitled to await the trial Court's resolution on the other grounds of
their opposition before taking an appeal, as otherwise there would be a multiplicity of recourses to
the higher Courts. This contention is without weight, since Rule 109, section 1, expressly
enumerates six different instances when appeal may be taken in special proceedings.
There being no controversy that the probate decree of the Court below was not appealed on time,
the same had become final and conclusive. Hence, the appellate courts may no longer revoke said
decree nor review the evidence upon which it is made to rest. Thus, the appeal belatedly lodged
against the decree was correctly dismissed.
The alleged revocation implied from the execution of the deeds of conveyance in favor of the
testamentary heir is plainly irrelevant to and separate from the question of whether the testament
was duly executed. For one, if the will is not entitled to probate, or its probate is denied, all questions
of revocation become superfluous in law, there is no such will and hence there would be nothing to

revoke. Then, again, the revocation invoked by the oppositors-appellants is not an express one, but
merely implied from subsequent acts of the testatrix allegedly evidencing an abandonment of the
original intention to bequeath or devise the properties concerned. As such, the revocation would not
affect the will itself, but merely the particular devise or legacy. Only the total and absolute revocation
can preclude probate of the revoked testament (Trillana vs. Crisostomo, supra.).
As to the issue of estoppel, we have already ruled in Guevara vs. Guevara, 98 Phil. 249, that the
presentation and probate of a will are requirements of public policy, being primarily designed to
protect the testator's, expressed wishes, which are entitled to respect as a consequence of the
decedent's ownership and right of disposition within legal limits. Evidence of it is the duty imposed on
a custodian of a will to deliver the same to the Court, and the fine and imprisonment prescribed for
its violation (Revised Rule 75). It would be a non sequitur to allow public policy to be evaded on the
pretext of estoppel. Whether or not the order overruling the allegation of estoppel is still appealable
or not, the defense is patently unmeritorious and the Court of Appeals correctly so ruled.
The last issue, that of revocation, is predicated on paragraph 2 of Article 957 of the Civil Code of
1950 (Art. 869 of the Code of 1889), which recites:
Art. 957. The legacy or devise shall be without effect:
(1) . . . .
(2) If the testator by any title or for any cause alienates the thing bequeathed or any part
thereof, it being understood that in the latter case the legacy or devise shall be without effect
only with respect to the part thus alienated. If after the alienation the thing should again
belong to the testator, even if it be by reason of nullity of the contract, the legacy or devise
shall not thereafter be valid, unless the reacquisition shall have been effected by virtue of the
exercise of the right of repurchase;
xxx

xxx

xxx

It is well to note that, unlike in the French and Italian Codes, the basis of the quoted provision is a
presumed change of intention on the part of the testator. As pointed out by Manresa in his
Commentaries on Article 869 of the Civil Code (Vol. 6, 7th Ed., p. 743)
Este caso se funda en la presunta voluntad del testador. Si este, despues de legar, se
desprende de la cosa por titulo lucrativo u oneroso, hace desaparecer su derecho sobra ella,
dando lugar a la presuncion de que ha cambiado de voluntad, y no quiere que el legado se
cumpla. Mas para que pueda presumirse esa voluntad, es necesario que medien actos del
testador que la indiquen. Si la perdida del derecho sobre la cosa ha sido independiente de la
voluntad del testador, el legado podraquedar sin efecto, mas no en virtud del numero 2 del
articulo 869, que exige siempre actos voluntarios de enajenacion por parte del mismo
testador.
As observed by the Court of Appeals, the existence of any such change or departure from the
original intent of the testatrix, expressed in her 1930 testament, is rendered doubtful by the
circumstance that the subsequent alienations in 1943 and 1944 were executed in favor of the
legatee herself, appellee Dimagiba. In fact, as found by the Court of Appeals in its decision annulling
these conveyances (affirmed in that point by this Supreme Court in Reyes vs. Court of Appeals and

Dimagiba, L-5618 and L-5620, promulgated on July 31, 1954), "no consideration whatever was paid
by respondent Dimagiba" on account of the transfers, thereby rendering it even more doubtful
whether in conveying the property to her legatee, the testatrix merely intended to comply in advance
with what she had ordained in her testament, rather than an alteration or departure
therefrom.1Revocation being an exception, we believe, with the Courts below, that in the
circumstances of the particular case, Article 957 of the Civil Code of the Philippines, does not apply
to the case at bar.
Not only that, but even if it were applicable, the annulment of the conveyances would not necessarily
result in the revocation of the legacies, if we bear in mind that the findings made in the decision
decreeing the annulment of the subsequent 1943 and 1944 deeds of sale were also that
it was the moral influence, originating from their confidential relationship, which was the only
cause for the execution of Exhs. A and B (the 1943 and 1944 conveyances). (Decision, L5618 and L-5620).
If the annulment was due to undue influence, as the quoted passage implies, then the transferor was
not expressing her own free will and intent in making the conveyances. Hence, it can not be
concluded, either, that such conveyances established a decision on her part to abandon the original
legacy.
True it is that the legal provision quoted prescribes that the recovery of the alienated property "even
if it be by reason of the nullity of the contract" does not revive the legacy; but as pointed out by
Scaevola (Codigo Civil, Vol. XV, 4th Ed., pp. 324-325) the "nullity of the contract" can not be taken in
an absolute sense.2 Certainly, it could not be maintained, for example, that if a testator's subsequent
alienation were avoided because the testator was mentally deranged at the time, the revocatory
effect ordained by the article should still ensue. And the same thing could be said if the alienation
(posterior to the will) were avoided on account of physical or mental duress. Yet, an alienation
through undue influence in no way differs from one made through violence or intimidation. In either
case, the transferor is not expressing his real intent,3 and it can not be held that there was in fact an
alienation that could produce a revocation of the anterior bequest.
In view of the foregoing considerations, the appealed decision of the Court of Appeals is hereby
affirmed. Costs against appellants Reyes and Fernandez. So ordered.
Dizon, Makalintal, Zaldivar, Sanchez, Castro, Angeles and Fernando, JJ., concur.
Concepcion, C.J. and Bengzon, J.P., J., are on leave, took no part.

G.R. No. 45629

September 22, 1938

ANTILANO G. MERCADO, petitioner,

vs.
ALFONSO SANTOS, Judge of First Instance of Pampanga, respondents.
ROSARIO BASA DE LEON, ET AL., intervenors.
Claro M. Recto and Benigno S. Aquino for petitioner.
Esperanza de la Cruz and Heracio Abistao for respondents.
Sotto and Sotto for intervenors.
LAUREL, J.:
On May 28, 1931, the petitioner herein filed in the Court of First Instance of Pampanga a petition for
the probate of the will of his deceased wife, Ines Basa. Without any opposition, and upon the
testimony of Benigno F. Gabino, one of the attesting witnesses, the probate court, on June 27,1931,
admitted the will to probate. Almost three years later, on April 11, 1934, the five intervenors herein
moved ex parte to reopen the proceedings, alleging lack of jurisdiction of the court to probate the will
and to close the proceedings. Because filed ex parte, the motion was denied. The same motion was
filed a second time, but with notice to the adverse party. The motion was nevertheless denied by the
probate court on May 24, 1934. On appeal to this court, the order of denial was affirmed on July 26,
1935. (Basa vs. Mercado, 33 Off. Gaz., 2521.)
It appears that on October 27, 1932, i. e., sixteen months after the probate of the will of Ines Basa,
intervenor Rosario Basa de Leon filed with the justice of the peace court of San Fernando,
Pampanga, a complaint against the petitioner herein, for falsification or forgery of the will probated
as above indicated. The petitioner was arrested. He put up a bond in the sum of P4,000 and
engaged the services of an attorney to undertake his defense. Preliminary investigation of the case
was continued twice upon petition of the complainant. The complaint was finally dismissed, at the
instance of the complainant herself, in an order dated December 8, 1932. Three months later, or on
March 2, 1933, the same intervenor charged the petitioner for the second time with the same
offense, presenting the complaint this time in the justice of the peace court of Mexico, Pampanga.
The petitioner was again arrested, again put up a bond in the sum of P4,000, and engaged the
services of counsel to defend him. This second complaint, after investigation, was also dismissed,
again at the instance of the complainant herself who alleged that the petitioner was in poor health.
That was on April 27, 1933. Some nine months later, on February 2, 1934, to be exact, the same
intervenor accused the same petitioner for the third time of the same offense. The information was
filed by the provincial fiscal of Pampanga in the justice of the peace court of Mexico. The petitioner
was again arrested, again put up a bond of P4,000, and engaged the services of defense counsel.
The case was dismissed on April 24, 1934, after due investigation, on the ground that the will alleged
to have been falsified had already been probated and there was no evidence that the petitioner had
forged the signature of the testatrix appearing thereon, but that, on the contrary, the evidence
satisfactorily established the authenticity of the signature aforesaid. Dissatisfied with the result, the
provincial fiscal, on May 9, 1934, moved in the Court of First Instance of Pampanga for
reinvestigation of the case. The motion was granted on May 23, 1934, and, for the fourth time, the
petitioner was arrested, filed a bond and engaged the services of counsel to handle his defense. The
reinvestigation dragged on for almost a year until February 18, 1934, when the Court of First
Instance ordered that the case be tried on the merits. The petitioner interposed a demurrer on
November 25, 1935, on the ground that the will alleged to have been forged had already been

probated. This demurrer was overruled on December 24, 1935, whereupon an exception was taken
and a motion for reconsideration and notice of appeal were filed. The motion for reconsideration and
the proposed appeal were denied on January 14, 1936. The case proceeded to trial, and forthwith
petitioner moved to dismiss the case claiming again that the will alleged to have been forged had
already been probated and, further, that the order probating the will is conclusive as to the
authenticity and due execution thereof. The motion was overruled and the petitioner filed with the
Court of Appeals a petition for certiorari with preliminary injunction to enjoin the trial court from
further proceedings in the matter. The injunction was issued and thereafter, on June 19, 1937, the
Court of Appeals denied the petition for certiorari, and dissolved the writ of preliminary injunction.
Three justices dissented in a separate opinion. The case is now before this court for review
on certiorari.
Petitioner contends (1) that the probate of the will of his deceased wife is a bar to his criminal
prosecution for the alleged forgery of the said will; and, (2) that he has been denied the constitutional
right to a speedy trial.
1. Section 306 of our Code of Civil Procedure provides as to the effect of judgments.
SEC. 306. Effect of judgment. The effect of a judgment or final order in an action or
special proceeding before a court or judge of the Philippine Islands or of the United States,
or of any State or Territory of the United States, having jurisdiction to pronounce the
judgment or order, may be as follows.
1. In case of a judgment or order against a specific thing, or in respect to the probate of a
will, or the administration of the estate of a deceased person, or in respect to the personal,
political, or legal condition or relation of a particular person, the judgment or order is
conclusive upon the title of the thing, the will or administration, or the condition or relation of
the person Provided, That the probate of a will or granting of letters of administration shall
only be prima facie evidence of the death of the testator or intestate.
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(Emphasis ours.)
Section 625 of the same Code is more explicit as to the conclusiveness of the due execution of a
probate will. It says.
SEC. 625. Allowance Necessary, and Conclusive as to Execution. No will shall pass either
the real or personal estate, unless it is proved and allowed in the Court of First Instance, or
by appeal to the Supreme Court; and the allowance by the court of a will of real and personal
estate shall be conclusive as to its due execution. (Emphasis ours.)
(In Manahan vs. Manahan 58 Phil., 448, 451), we held:
. . . The decree of probate is conclusive with respect to the due execution thereof and it
cannot be impugned on any of the grounds authorized by law, except that of fraud, in any
separate or independent action or proceeding. Sec. 625, Code of Civil Procedure;
Castaeda vs. Alemany, 3 Phil., 426; Pimentel vs. Palanca, 5 Phil., 436; Sahagun vs. De
Gorostiza, 7 Phil., 347; Limjuco vs. Ganara, 11 Phil., 393; Montaano vs. Suesa, 14 Phil.,

676; in re Estate of Johnson, 39 Phil, 156; Riera vs. Palmaroli, 40 Phil., 105;
Austria vs. Ventenilla, 21 Phil., 180; Ramirez vs. Gmur, 42 Phil., 855; and Chiong
Jocsoy vs. Vano, 8 Phil., 119.
In 28 R. C. L., p. 377, section 378, it is said.
The probate of a will by the probate court having jurisdiction thereof is usually considered as
conclusive as to its due execution and validity, and is also conclusive that the testator was of
sound and disposing mind at the time when he executed the will, and was not acting under
duress, menace, fraud, or undue influence, and that the will is genuine and not a forgery.
(Emphasis ours.)
As our law on wills, particularly section 625 of our Code of Civil Procedure aforequoted, was taken
almost bodily from the Statutes of Vermont, the decisions of the Supreme Court of the State relative
to the effect of the probate of a will are of persuasive authority in this jurisdiction. The Vermont
statute as to the conclusiveness of the due execution of a probated will reads as follows.
SEC. 2356. No will shall pass either real or personal estate, unless it is proved and allowed
in the probate court, or by appeal in the county or supreme court; and the probate of a will of
real or personal estate shall be conclusive as to its due execution. (Vermont Statutes, p.
451.)
Said the Supreme Court of Vermont in the case of Missionary Society vs. Eells (68 Vt., 497, 504):
"The probate of a will by the probate court having jurisdiction thereof, upon the due notice, is
conclusive as to its due execution against the whole world. (Vt. St., sec. 2336; Fosters
Exrs. vs. Dickerson, 64 Vt., 233.)"
The probate of a will in this jurisdiction is a proceeding in rem. The provision of notice by Publication
as a prerequisite to the allowance of a will is constructive notice to the whole world, and when
probate is granted, the judgment of the court is binding upon everybody, even against the State. This
court held in the case of Manalo vs. Paredes and Philippine Food Co. (47 Phil., 938):
The proceeding for the probate of a will is one in rem (40 Cyc., 1265), and the court acquires
jurisdiction over all the persons interested, through the publication of the notice prescribed by
section 630 of the Code of Civil Procedure, and any order that may be entered therein is
binding against all of them.
Through the publication of the petition for the probate of the will, the court acquires
jurisdiction over all such persons as are interested in said will; and any judgment that may be
rendered after said proceeding is binding against the whole world.
In Everrett vs. Wing (103 Vt., 488, 492), the Supreme Court of Vermont held.
In this State the probate of a will is a proceeding in rem being in form and substance upon
the will itself to determine its validity. The judgment determines the status of the instrument,
whether it is or is not the will of the testator. When the proper steps required by law have
been taken the judgment is binding upon everybody, and makes the instrument as to all the
world just what the judgment declares it to be. (Woodruff vs. Taylor, 20 Vt., 65, 73;
Burbeck vs. Little, 50 Vt., 713, 715; Missionary Society vs. Eells, 68 Vt., 497, 504; 35 Atl.,

463.) The proceedings before the probate court are statutory and are not governed by
common law rules as to parties or causes of action. (Holdrige vs. Holdriges Estate, 53 Vt.,
546, 550; Purdy vs. Estate of Purdy, 67 Vt. 50, 55; 30 Atl., 695.) No process is issued against
anyone in such proceedings, but all persons interested in determining the state or conditions
of the instrument are constructively notified by the publication of notice as required by G. L.
3219. (Woodruff vs. Taylor, supra; In re Warners Estate 98 Vt., 254; 271; 127 Atl., 362.)
Section 333, paragraph 4, of the Code of Civil Procedure establishes an incontrovertible
presumption in favor of judgments declared by it to be conclusive.
SEC. 333. Conclusive Presumptions. The following presumptions or deductions, which
the law expressly directs to be made from particular facts, are deemed conclusive.
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4. The judgment or order of a court, when declared by this code to be conclusive.

Conclusive presumptions are inferences which the law makes so peremptory that it will not allow
them to be overturned by any contrary proof however strong. (Brant vs. Morning Journal Assn., 80
N.Y.S., 1002, 1004; 81 App. Div., 183; see, also, Joslyn vs. Puloer, 59 Hun., 129, 140, 13 N.Y.S.,
311.) The will in question having been probated by a competent court, the law will not admit any
proof to overthrow the legal presumption that it is genuine and not a forgery.
The majority decision of the Court of Appeals cites English decisions to bolster up its conclusion that
"the judgment admitting the will to probate is binding upon the whole world as to the due execution
and genuineness of the will insofar as civil rights and liabilities are concerned, but not for the
purpose of punishment of a crime." The cases of Dominus Rex vs. Vincent, 93 English Reports, Full
Reprint, 795, the first case being decided in 1721, were cited to illustrate the earlier English
decisions to the effect that upon indictment for forging a will, the probating of the same is conclusive
evidence in the defendants favor of its genuine character. Reference is made, however, to the cases
of Rex vs. Gibson, 168 English Reports, Full Reprint, 836, footnote (a), decided in 1802, and
Rex vs. Buttery and Macnamarra, 168 English Reports, Full Reprint, 836, decided in 1818, which
establish a contrary rule. Citing these later cases, we find the following quotation from Black on
Judgments, Vol. II, page 764.
A judgment admitting a will to probate cannot be attacked collaterally although the will was
forged; and a payment to the executor named therein of a debt due the decedent will
discharge the same, notwithstanding the spurious character of the instrument probated. It
has also been held that, upon an indictment for forging a will, the probate of the paper in
question is conclusive evidence in the defendants favor of its genuine character. But this
particular point has lately been ruled otherwise.
It was the case of Rex vs. Buttery, supra, which induced the Supreme Court of Massachussetts in
the case of Waters vs. Stickney (12 Allen 1; 90 Am. Dec., 122) also cited by the majority opinion, to
hold that "according to later and sounder decisions, the probate, though conclusive until set aside of
the disposition of the property, does not protect the forger from punishment." This was reproduced in
28 R.C.L., p. 376, and quoted in Barry vs. Walker (103 Fla., 533; 137 So., 711, 715), and
Thompson vs. Freeman (149 So., 740, 742), also cited in support of the majority opinion of the Court
of Appeals. The dissenting opinion of the Court of Appeals in the instant case under review makes a

cursory study of the statutes obtaining in England, Massachussetts and Florida, and comes to the
conclusion that the decisions cited in the majority opinion do not appear to "have been
promulgated in the face of statutes similar to ours." The dissenting opinion cites Whartons Criminal
Evidence (11th ed., sec. 831), to show that the probate of a will in England is only prima facie proof
of the validity of the will (Op. Cit. quoting Marriot vs. Marriot, 93 English Reprint, 770); and 21 L.R.A.
(pp. 686689 and note), to show that in Massachussetts there is no statute making the probate of a
will conclusive, and that in Florida the statute(sec. 1810, Revised Statutes) makes the probate
conclusive evidence as to the validity of the will with regard to personal, and prima facie as to real
estate. The cases decided by the Supreme Court of Florida cited by the majority opinion, supra, refer
to wills of both personal and real estate.
The petitioner cites the case of State vs. McGlynn (20 Cal., 233, decided in 1862), in which Justice
Norton of the Supreme Court of California, makes the following review of the nature of probate
proceedings in England with respect to wills personal and real property.
In England, the probate of wills of personal estate belongs to the Ecclesiastical Courts. No
probate of a will relating to real estate is there necessary. The real estate, upon the death of
the party seized, passes immediately to the devisee under the will if there be one; or if there
be no will, to the heir at law. The person who thus becomes entitled takes possession. If one
person claims to be the owner under a will, and another denies the validity of the will and
claims to be the owner as heir at law, an action of ejectment is brought against the party who
may be in possession by the adverse claimant; and on the trial of such an action, the validity
of the will is contested, and evidence may be given by the respective parties as to the
capacity of the testator to make a will, or as to any fraud practiced upon him, or as to the
actual execution of it, or as to any other circumstance affecting its character as a valid devise
of the real estate in dispute. The decision upon the validity of the will in such action
becomes res adjudicata, and is binding and conclusive upon the parties to that action and
upon any person who may subsequently acquire the title from either of those parties; but the
decision has no effect upon other parties, and does not settle what may be called the status
or character of the will, leaving it subject to be enforced as a valid will, or defeated as invalid,
whenever other parties may have a contest depending upon it. A probate of a will of personal
property, on the contrary, is a judicial determination of the character of the will itself. It does
not necessarily or ordinarily arise from any controversy between adverse claimants, but is
necessary in order to authorize a disposition of the personal estate in pursuance of its
provisions. In case of any controversy between adverse claimants of the personal estate, the
probate is given in evidence and is binding upon the parties, who are not at liberty to
introduce any other evidence as to the validity of the will.
The intervenors, on the other hand, attempt to show that the English law on wills is different from that
stated in the case of State vs. McGlynn, supra, citing the following statutes.
1. The Wills Act, 1837 (7 Will. 4 E 1 Vict. c. 26).
2. The Court of Probate Act, 1857 (20 and 21 Vict. c. 77).
3. The Judicature Act, 1873 (36 and 37 Vict. c. 66).
The Wills Act of 1837 provides that probate may be granted of "every instrumental purporting to be
testamentary and executed in accordance with the statutory requirements . . . if it disposes of

property, whether personal or real." The Ecclesiastical Courts which took charge of testamentary
causes (Ewells Blackstone [1910], p. 460), were determined by the Court of Probate Act of 1857,
and the Court of Probate in turn was, together with other courts, incorporated into the Supreme
Court of Judicature, and transformed into the Probate Division thereof, by the Judicature Act of 1873.
(Lord Halsbury, The Laws of England[1910], pp. 151156.) The intervenors overlook the fact,
however, that the case of Rex vs. Buttery and Macnamarra, supra, upon which they rely in support of
their theory that the probate of a forged will does not protect the forger from punishment, was
decided long before the foregoing amendatory statutes to the English law on wills were enacted. The
case of State vs. McGlynn may be considered, therefore, as more or less authoritative on the law of
England at the time of the promulgation of the decision in the case of Rex vs. Buttery and
Macnamarra.
In the case of State vs. McGlynn, the Attorney General of California filed an information to set aside
the probate of the will of one Broderick, after the lapse of one year provided by the law of California
for the review of an order probating a will, in order that the estate may be escheated to the State of
California for the review of an probated will was forged and that Broderick therefore died intestate,
leaving no heirs, representatives or devisees capable of inheriting his estate. Upon these facts, the
Supreme Court of California held.
The fact that a will purporting to be genuine will of Broderick, devising his estate to a devisee
capable of inheriting and holding it, has been admitted to probate and established as a
genuine will by the decree of a Probate Court having jurisdiction of the case, renders
it necessary to decide whether that decree, and the will established by it, or either of them,
can be set aside and vacated by the judgment of any other court. If it shall be found that the
decree of the Probate Court, not reversed by the appellate court, is final and conclusive, and
not liable to be vacated or questioned by any other court, either incidentally or by any direct
proceeding, for the purpose of impeaching it, and that so long as the probate stands the will
must be recognized and admitted in all courts to be valid, then it will be immaterial and
useless to inquire whether the will in question was in fact genuine or forged.
(State vs. McGlynn, 20 Cal., 233; 81 Am. Dec., 118, 121.).
Although in the foregoing case the information filed by the State was to set aside the decree of
probate on the ground that the will was forged, we see no difference in principle between that case
and the case at bar. A subtle distinction could perhaps be drawn between setting aside a decree of
probate, and declaring a probated will to be a forgery. It is clear, however, that a duly probated will
cannot be declared to be a forgery without disturbing in a way the decree allowing said will to
probate. It is at least anomalous that a will should be regarded as genuine for one purpose and
spurious for another.
The American and English cases show a conflict of authorities on the question as to whether or not
the probate of a will bars criminal prosecution of the alleged forger of the probate will. We have
examined some important cases and have come to the conclusion that no fixed standard maybe
adopted or drawn therefrom, in view of the conflict no less than of diversity of statutory provisions
obtaining in different jurisdictions. It behooves us, therefore, as the court of last resort, to choose that
rule most consistent with our statutory law, having in view the needed stability of property rights and
the public interest in general. To be sure, we have seriously reflected upon the dangers of evasion
from punishment of culprits deserving of the severity of the law in cases where, as here, forgery is
discovered after the probate of the will and the prosecution is had before the prescription of the
offense. By and large, however, the balance seems inclined in favor of the view that we have taken.

Not only does the law surround the execution of the will with the necessary formalities and require
probate to be made after an elaborate judicial proceeding, but section 113, not to speak of section
513, of our Code of Civil Procedure provides for an adequate remedy to any party who might have
been adversely affected by the probate of a forged will, much in the same way as other parties
against whom a judgment is rendered under the same or similar circumstances.
(Pecson vs. Coronel, 43 Phil., 358.)The aggrieved party may file an application for relief with the
proper court within a reasonable time, but in no case exceeding six months after said court has
rendered the judgment of probate, on the ground of mistake, inadvertence, surprise or excusable
neglect. An appeal lies to review the action of a court of first instance when that court refuses to
grant relief. (Banco Espaol Filipino vs. Palanca, 37 Phil., 921; Philippine Manufacturing
Co. vs. Imperial, 47 Phil., 810; Samia vs. Medina, 56 Phil., 613.) After a judgment allowing a will to
be probated has become final and unappealable, and after the period fixed by section 113 of the
Code of Civil Procedure has expired, the law as an expression of the legislative wisdom goes no
further and the case ends there.
. . . The court of chancery has no capacity, as the authorities have settled, to judge or decide
whether a will is or is not a forgery; and hence there would be an incongruity in its assuming
to set aside a probate decree establishing a will, on the ground that the decree was procured
by fraud, when it can only arrive at the fact of such fraud by first deciding that the will was a
forgery. There seems, therefore, to be a substantial reason, so long as a court of chancery is
not allowed to judge of the validity of a will, except as shown by the probate, for the
exception of probate decrees from the jurisdiction which courts of chancery exercise in
setting aside other judgments obtained by fraud. But whether the exception be founded in
good reason or otherwise, it has become too firmly established to be disregarded. At the
present day, it would not be a greater assumption to deny the general rule that courts of
chancery may set aside judgments procured by fraud, than to deny the exception to that rule
in the case of probate decrees. We must acquiesce in the principle established by the
authorities, if we are unable to approve of the reason. Judge Story was a staunch advocate
for the most enlarged jurisdiction of courts of chancery, and was compelled to yield to the
weight of authority. He says "No other excepted case is known to exist; and it is not easy to
discover the grounds upon which this exception stands, in point of reason or principle,
although it is clearly settled by authority. (1 Storys Eq. Jur. sec. 440.)" (State vs. McGlynn, 20
Cal., 233; 81 Am. Dec., 118, 129. See, also, Tracy vs. Muir, 121 American State Reports,
118, 125.)
We hold, therefore, that in view of the provisions of sections 306, 333 and 625 of our Code of Civil
Procedure, criminal action will not lie in this jurisdiction against the forger of a will which had been
duly admitted to probate by a court of competent jurisdiction.
The resolution of the foregoing legal question is sufficient to dispose of the case. However, the other
legal question with reference to the denial to the accused of his right to a speedy trial having been
squarely raised and submitted, we shall proceed to consider the same in the light of cases already
adjudicated by this court.
2. The Constitution of the Philippines provides that "In all criminal prosecutions the accused . . . shall
enjoy the right . . . to have a speedy . . . trial. . . . (Art. III, sec. 1, par. 17. See, also, G.O. No. 58, sec.
15, No. 7.) Similar provisions are to be found in the Presidents Instructions to the Second Philippine
Commission (par. 11), the Philippine Bill of July 1, 1902 (sec. 5, par. 2) and the Jones Act of August
29, 1916 (sec. 3, par. 2). The provisions in the foregoing organic acts appear to have been taken

from similar provisions in the Constitution of the United States (6th Amendment) and those of the
various states of the American Union. A similar injunction is contained in the Malolos Constitution
(art. 8, Title IV), not to speak of other constitutions. More than once this court had occasion to set
aside the proceedings in criminal cases to give effect to the constitutional injunction of speedy trial.
(Conde vs. Judge of First Instance and Fiscal of Tayabas [1923], 45 Phil., 173; Conde vs. Rivera and
Unson[1924], 45 Phil., 650; People vs. Castaeda and Fernandez[1936]), 35 Off. Gaz., 1269;
Kalaw vs. Apostol, Oct. 15, 1937, G.R. No. 45591; Esguerra vs. De la Costa, Aug. 30,1938, G.R. No.
46039.).
In Conde vs. Rivera and Unson, supra, decided before the adoption of our Constitution, we said.
Philippine organic and statutory law expressly guarantee that in all criminal prosecutions the
accused shall enjoy the right to have a speedy trial. Aurelia Conde, like all other accused
persons, has a right to a speedy trial in order that if innocent she may go free, and she has
been deprived of that right in defiance of law. Dismissed from her humble position, and
compelled to dance attendance on courts while investigations and trials are arbitrarily
postponed without her consent, is palpably and openly unjust to her and a detriment to the
public. By the use of reasonable diligence, the prosecution could have settled upon the
appropriate information, could have attended to the formal preliminary examination, and
could have prepared the case for a trial free from vexatious, capricious, and oppressive
delays.
In People vs. Castaeda and Fernandez, supra, this court found that the accused had not been
given a fair and impartial trial. The case was to have been remanded to the court a quo for a new
trial before an impartial judge. This step, however, was found unnecessary. A review of the evidence
convinced this court that a judgment of conviction for theft, as charged, could not be sustained and,
having in view the right to a speedy trial guaranteed by the Constitution to every person accused of
crime, entered a judgment acquitting the accused, with costs de oficio. We said.
. . . The Constitution, Article III, section 1, paragraph 17, guarantees to every accused person
the right to a speedy trial. This criminal proceeding has been dragging on for almost five
years now. The accused have twice appealed to this court for redress from the wrong that
they have suffered at the hands of the trial court. At least one of them, namely Pedro
Fernandez alias Piro, had been con-fined in prison from July 20, 1932 to November 27,
1934, for inability to post the required bond of P3,000 which was finally reduced to P300. The
Government should be the last to set an example of delay and oppression in the
administration of justice and it is the moral and legal obligation of this court to see that the
criminal proceedings against the accused come to an end and that they be immediately discharged from the custody of the law. (Conde vs. Rivera and Unson, 45 Phil., 651.)
In Kalaw vs. Apostol, supra, the petitioner invoked and this court applied and gave effect to the
doctrines stated in the second Conde case, supra. In granting the writs prayed for, this court, after
referring to the constitutional and statutory provisions guaranteeing to persons accused of crime the
right to a speedy trial, said:
Se infiere de los preceptos legales transcritos que todo acusado en causa criminal tiene
derecho a ser juzgado pronta y publicamente. Juicio rapido significa un juicioque se celebra
de acuerdo con la ley de procedimiento criminal y los reglamentos, libre de dilaciones
vejatorias, caprichosas y opersivas (Burnett vs. State, 76 Ark., 295; 88S. W., 956; 113

AMSR, 94; Stewart vs. State, 13 Ark., 720; Peo. vs. Shufelt, 61 Mich., 237; 28 N. W., 79;
Nixon vs. State, 10 Miss., 497; 41 AMD., 601; State vs. Cole, 4 Okl. Cr., 25; 109 P., 736;
State vs. Caruthers, 1 Okl. Cr., 428; 98 P., 474; State vs. Keefe, 17 Wyo., 227, 98 p., 122;22
IRANS, 896; 17 Ann. Cas., 161). Segun los hechos admitidos resulta que al recurrente se le
concedio vista parcial del asunto, en el Juzgado de Primera Instancia de Samar, solo
despues de haber transcurrido ya mas de un ao y medio desde la presentacion de la
primera querella y desde la recepcion de la causa en dicho Juzgado, y despues de haberse
transferido dos veces la vista delasunto sin su consentimiento. A esto debe aadirse que
laprimera transferencia de vista era claramente injustificadaporque el motivo que se alego
consistio unicamente en laconveniencia personal del ofendido y su abogado, no habiendose
probado suficientemente la alegacion del primero de quese hallaba enfermo. Es cierto que
el recurrente habia pedido que, en vez de sealarse a vista el asunto para el mayo de 1936,
lo fuera para el noviembre del mismo ao; pero,aparte de que la razon que alego era
bastante fuerte porquesu abogado se oponia a comparecer por compromisos urgentes
contraidos con anterioridad y en tal circunstancia hubiera quedado indefenso si hubiese sido
obligado a entraren juicio, aparece que la vista se pospuso por el Juzgado amotu proprio,
por haber cancelado todo el calendario judicial preparado por el Escribano para el mes de
junio. Declaramos, con visto de estos hechos, que al recurrents se leprivo de su derecho
fundamental de ser juzgado prontamente.
Esguerra vs. De la Costa, supra, was a petition for mandamus to compel the respondent judge of
the Court of First Instance of Rizal to dismiss the complaint filed in a criminal case against the
petitioner, to cancel the bond put up by the said petitioner and to declare the costs de oficio. In
accepting the contention that the petitioner had been denied speedy trial, this court said:
Consta que en menos de un ao el recurrente fue procesado criminalmente por el alegado
delito de abusos deshonestos, en el Juzgado de Paz del Municipio de Cainta, Rizal. Como
consecuencia de las denuncias que contra el se presentaron fue arrestado tres veces y para
gozar de libertad provisional, en espera de los juicios, se vio obligado a prestartres fianzas
por la suma de P1,000 cada una. Si no se da fin al proceso que ultimamente se ha incoado
contra el recurrente la incertidumbre continuara cerniendose sobre el y las consiguientes
molestias y preocupaciones continuaran igualmente abrumandole. El Titulo III, articulo 1, No.
17,de la Constitucion preceptua que en todo proceso criminalel acusado tiene derecho de
ser juzgado pronta y publicamente. El Articulo 15, No. 7, de la Orden General No. 58
dispone asimismo que en las causas criminales el acusado tendra derecho a ser juzgado
pronta y publicamente. Si el recurrente era realmente culpable del delito que se le imputo,
tenia de todos modos derechos a que fuera juzgado pronta y publicamente y sin dilaciones
arbitrarias y vejatorias. Hemos declarado reiteradamente que existe un remedio positivo
para los casos en que se viola el derecho constitucional del acusado de ser juzgado
prontamente. El acusado que esprivado de su derecho fundomental de ser enjuiciado
rapidamente tiene derecho a pedir que se le ponga en libertad, si estuviese detenido, o a
que la causa que pende contra el sea sobreseida definitivamente. (Conde contra Rivera y
Unson, 45 Jur. Fil., 682; In the matter of Ford [1911], 160 Cal., 334; U. S. vs. Fox [1880], 3
Mont., 512; Kalaw contra Apostol, R. G. No. 45591, Oct. 15, 1937; Pueblo contra Castaeda
y Fernandez, 35 Gac. Of., 1357.)
We are again called upon to vindicate the fundamental right to a speedy trial. The facts of the
present case may be at variance with those of the cases hereinabove referred to. Nevertheless, we
are of the opinion that, under the circumstances, we should consider the substance of the right

instead of indulging in more or less academic or undue factual differentiations. The petitioner herein
has been arrested four times, has put up a bond in the sum of P4,000 and has engaged the services
of counsel to undertake his defense an equal number of times. The first arrest was made upon a
complaint filed by one of the intervenors herein for alleged falsification of a will which, sixteen
months before, had been probated in court. This complaint, after investigation, was dismissed at the
complainant's own request. The second arrest was made upon a complaint charging the same
offense and this complaint, too, was dismissed at the behest of the complainant herself who alleged
the quite startling ground that the petitioner was in poor health. The third arrest was made following
the filing of an information by the provincial fiscal of Pampanga, which information was dismissed,
after due investigation, because of insufficiency of the evidence. The fourth arrest was made when
the provincial fiscal secured a reinvestigation of the case against the petitioner on the pretext that he
had additional evidence to present, although such evidence does not appear to have ever been
presented.
It is true that the provincial fiscal did not intervene in the case until February 2, 1934, when he
presented an information charging the petitioner, for the third time, of the offense of falsification.
This, however, does not matter. The prosecution of offenses is a matter of public interest and it is the
duty of the government or those acting in its behalf to prosecute all cases to their termination without
oppressive, capricious and vexatious delay. The Constitution does not say that the right to a speedy
trial may be availed of only where the prosecution for crime is commenced and undertaken by the
fiscal. It does not exclude from its operation cases commenced by private individuals. Where once a
person is prosecuted criminally, he is entitled to a speedy trial, irrespective of the nature of the
offense or the manner in which it is authorized to be commenced. In any event, even the actuations
of the fiscal himself in this case is not entirely free from criticism. From October 27, 1932, when the
first complaint was filed in the justice of the peace court of San Fernando, to February 2, 1934, when
the provincial fiscal filed his information with the justice of the peace of Mexico, one year, three
months and six days transpired; and from April 27, 1933, when the second criminal complaint was
dismissed by the justice of the peace of Mexico, to February 2, 1934, nine months and six days
elapsed. The investigation following the fourth arrest, made after the fiscal had secured a
reinvestigation of the case, appears also to have dragged on for about a year. There obviously has
been a delay, and considering the antecedent facts and circumstances within the knowledge of the
fiscal, the delay may not at all be regarded as permissible. In Kalaw vs. Apostol, supra, we observed
that the prosecuting officer all prosecutions for public offenses (secs. 1681 and 2465 of the Rev.
Adm. Code), and that it is his duty to see that criminal cases are heard without vexatious, capricious
and oppressive delays so that the courts of justice may dispose of them on the merits and determine
whether the accused is guilty or not. This is as clear an admonition as could be made. An accused
person is entitled to a trial at the earliest opportunity. (Sutherland on the Constitution, p. 664; United
States vs. Fox, 3 Mont., 512.) He cannot be oppressed by delaying he commencement of trial for an
unreasonable length of time. If the proceedings pending trial are deferred, the trial itself is
necessarily delayed. It is not to be supposed, of course, that the Constitution intends to remove from
the prosecution every reasonable opportunity to prepare for trial. Impossibilities cannot be expected
or extraordinary efforts required on the part of the prosecutor or the court. As stated by the Supreme
Court of the United States, "The right of a speedy trial is necessarily relative. It is consistent with
delays and depends upon circumstances. It secures rights to a defendant. It does not preclude the
rights of public justice." (Beavers vs. Haubert [1905], 198 U. S., 86; 25 S. Ct., 573; 49 Law. ed., 950,
954.).
It may be true, as seems admitted by counsel for the intervenors, in paragraph 8, page 3 of his brief,
that the delay was due to "the efforts towards reaching an amicable extrajudicial compromise," but

this fact, we think, casts doubt instead upon the motive which led the intervenors to bring criminal
action against the petitioner. The petitioner claims that the intention of the intervenors was to press
upon settlement, with the continuous threat of criminal prosecution, notwithstanding the probate of
the will alleged to have been falsified. Argument of counsel for the petitioner in this regard is not
without justification. Thus after the filing of the second complaint with the justice of the peace court of
Mexico, complainant herself, as we have seen, asked for dismissal of the complaint, on the ground
that "el acusado tenia la salud bastante delicada," and, apparently because of failure to arrive at any
settlement, she decided to renew her complaint.
Counsel for the intervenors contend and the contention is sustained by the Court of Appeals
that the petitioner did not complain heretofore of the denial of his constitutional right to a speedy trial.
This is a mistake. When the petitioner, for the fourth time, was ordered arrested by the Court of First
Instance of Pampanga, he moved for reconsideration of the order of arrest, alleging, among other
things, "Que por estas continuas acusaciones e investigaciones, el acusado compareciente no
obstante su mal estado de salud desde el ao 1932 en que tuvo que ser operado por padecer de
tuberculosis ha tenido que sostener litigios y ha sufrido la mar de humiliaciones y zozobras y ha
incudo en enormes gastos y molestias y ha desatendido su quebrantada salud." The foregoing
allegation was inserted on page 6 of the amended petition for certiorari presented to the Court of
Appeals. The constitutional issue also appears to have been actually raised and considered in the
Court of Appeals. In the majority opinion of that court, it is stated:
Upon the foregoing facts, counsel for the petitioner submits for the consideration of this court
the following questions of law: First, that the respondent court acted arbitrarily and with
abuse of its authority, with serious damage and prejudice to the rights and interests of the
petitioner, in allowing that the latter be prosecuted and arrested for the fourth time, and that
he be subjected, also for the fourth time, to a preliminary investigation for the same offense,
hereby converting the court into an instrument of oppression and vengeance on the part of
the alleged offended parties, Rosario Basa et al.; . . . .
And in the dissenting opinion, we find the following opening paragraph:
We cannot join in a decision declining to stop a prosecution that has dragged for about five
years and caused the arrest on four different occasions of a law abiding citizen for the
alleged offense of falsifying a will that years be competent jurisdiction.
From the view we take of the instant case, the petitioner is entitled to have the criminal proceedings
against him quashed. The judgment of the Court of Appeals is hereby reversed, without
pronouncement regarding costs. So ordered.
Avancea, C.J., Villa-Real, Imperial, Diaz and Concepcion, JJ., concur.

G.R. No. L-56340 June 24, 1983

SPOUSES ALVARO PASTOR, JR. and MA. ELENA ACHAVAL DE PASTOR, petitioners,
vs.
THE COURT OF APPEALS, JUAN Y. REYES, JUDGE OF BRANCH I, COURT OF FIRST
INSTANCE OF CEBU and LEWELLYN BARLITO QUEMADA, respondents.
Pelaez, Pelaez, & Pelaez Law Office for petitioners.
Ceniza, Rama & Associates for private respondents.

PLANA, J.:
I. FACTS:
This is a case of hereditary succession.
Alvaro Pastor, Sr. (PASTOR, SR.), a Spanish subject, died in Cebu City on June 5, 1966, survived
by his Spanish wife Sofia Bossio (who also died on October 21, 1966), their two legitimate children
Alvaro Pastor, Jr. (PASTOR, JR.) and Sofia Pastor de Midgely (SOFIA), and an illegitimate child, not
natural, by the name of Lewellyn Barlito Quemada QUEMADA PASTOR, JR. is a Philippine citizen,
having been naturalized in 1936. SOFIA is a Spanish subject. QUEMADA is a Filipino by his
mother's citizenship.
On November 13, 1970, QUEMADA filed a petition for the probate and allowance of an alleged
holographic will of PASTOR, SR. with the Court of First Instance of Cebu, Branch I (PROBATE
COURT), docketed as SP No. 3128-R. The will contained only one testamentary disposition: a
legacy in favor of QUEMADA consisting of 30% of PASTOR, SR.'s 42% share in the operation by
Atlas Consolidated Mining and Development Corporation (ATLAS) of some mining claims in PinaBarot, Cebu.
On November 21, 1970, the PROBATE COURT, upon motion of QUEMADA and after an ex parte
hearing, appointed him special administrator of the entire estate of PASTOR, SR., whether or not
covered or affected by the holographic will. He assumed office as such on December 4, 1970 after
filing a bond of P 5,000.00.
On December 7, 1970, QUEMADA as special administrator, instituted against PASTOR, JR. and his
wife an action for reconveyance of alleged properties of the estate, which included the properties
subject of the legacy and which were in the names of the spouses PASTOR, JR. and his wife, Maria
Elena Achaval de Pastor, who claimed to be the owners thereof in their own rights, and not by
inheritance. The action, docketed as Civil Case No. 274-R, was filed with the Court of First Instance
of Cebu, Branch IX.
On February 2, 1971, PASTOR, JR. and his sister SOFIA filed their opposition to the petition for
probate and the order appointing QUEMADA as special administrator.

On December 5, 1972, the PROBATE COURT issued an order allowing the will to probate. Appealed
to the Court of Appeals in CA-G.R. No. 52961- R, the order was affirmed in a decision dated May 9,
1977. On petition for review, the Supreme Court in G.R. No. L-46645 dismissed the petition in a
minute resolution dated November 1, 1977 and remanded the same to the PROBATE COURT after
denying reconsideration on January 11, 1978.
For two years after remand of the case to the PROBATE COURT, QUEMADA filed pleading after
pleading asking for payment of his legacy and seizure of the properties subject of said legacy.
PASTOR, JR. and SOFIA opposed these pleadings on the ground of pendency of the reconveyance
suit with another branch of the Cebu Court of First Instance. All pleadings remained unacted upon by
the PROBATE COURT.
On March 5, 1980, the PROBATE COURT set the hearing on the intrinsic validity of the will for
March 25, 1980, but upon objection of PASTOR, JR. and SOFIA on the e ground of pendency of the
reconveyance suit, no hearing was held on March 25. Instead, the PROBATE COURT required the
parties to submit their respective position papers as to how much inheritance QUEMADA was
entitled to receive under the wig. Pursuant thereto, PASTOR. JR. and SOFIA submitted their
Memorandum of authorities dated April 10, which in effect showed that determination of how much
QUEMADA should receive was still premature. QUEMADA submitted his Position paper dated April
20, 1980. ATLAS, upon order of the Court, submitted a sworn statement of royalties paid to the
Pastor Group of tsn from June 1966 (when Pastor, Sr. died) to February 1980. The statement
revealed that of the mining claims being operated by ATLAS, 60% pertained to the Pastor Group
distributed as follows:
1. A. Pastor, Jr. ...................................40.5%
2. E. Pelaez, Sr. ...................................15.0%
3. B. Quemada .......................................4.5%
On August 20, 1980, while the reconveyance suit was still being litigated in Branch IX of the Court of
First Instance of Cebu, the PROBATE COURT issued the now assailed Order of Execution and
Garnishment, resolving the question of ownership of the royalties payable by ATLAS and ruling in
effect that the legacy to QUEMADA was not inofficious. [There was absolutely no statement or claim
in the Order that the Probate Order of December 5, 1972 had previously resolved the issue of
ownership of the mining rights of royalties thereon, nor the intrinsic validity of the holographic will.]
The order of August 20, 1980 found that as per the holographic will and a written acknowledgment of
PASTOR, JR. dated June 17, 1962, of the above 60% interest in the mining claims belonging to the
Pastor Group, 42% belonged to PASTOR, SR. and only 33% belonged to PASTOR, JR. The
remaining 25% belonged to E. Pelaez, also of the Pastor Group. The PROBATE COURT thus
directed ATLAS to remit directly to QUEMADA the 42% royalties due decedent's estate, of which
QUEMADA was authorized to retain 75% for himself as legatee and to deposit 25% with a reputable
banking institution for payment of the estate taxes and other obligations of the estate. The 33%
share of PASTOR, JR. and/or his assignees was ordered garnished to answer for the accumulated
legacy of QUEMADA from the time of PASTOR, SR.'s death, which amounted to over two million
pesos.

The order being "immediately executory", QUEMADA succeeded in obtaining a Writ of Execution
and Garnishment on September 4, 1980, and in serving the same on ATLAS on the same day.
Notified of the Order on September 6, 1980, the oppositors sought reconsideration thereof on the
same date primarily on the ground that the PROBATE COURT gravely abused its discretion when it
resolved the question of ownership of the royalties and ordered the payment of QUEMADA's legacy
after prematurely passing upon the intrinsic validity of the will. In the meantime, the PROBATE
COURT ordered suspension of payment of all royalties due PASTOR, JR. and/or his assignees until
after resolution of oppositors' motion for reconsideration.
Before the Motion for Reconsideration could be resolved, however, PASTOR, JR., this time joined by
his wife Ma. ELENA ACHAVAL DE PASTOR, filed with the Court of Appeals a Petition for certiorari
and Prohibition with a prayer for writ of preliminary injunction (CA-G.R. No. SP- 11373-R). They
assailed the Order dated August 20, 1980 and the writ of execution and garnishment issued
pursuant thereto. The petition was denied on November 18, 1980 on the grounds (1) that its filing
was premature because the Motion for Reconsideration of the questioned Order was still pending
determination by the PROBATE COURT; and (2) that although "the rule that a motion for
reconsideration is prerequisite for an action for certiorari is never an absolute rule," the Order
assailed is "legally valid. "
On December 9, 1980, PASTOR, JR. and his wife moved for reconsideration of the Court of Appeal's
decision of November 18, 1980, calling the attention of the appellate court to another order of the
Probate Court dated November 11, 1980 (i.e., while their petition for certiorari was pending decision
in the appellate court), by which the oppositors' motion for reconsideration of the Probate Court's
Order of August 20, 1980 was denied. [The November 11 Order declared that the questions of
intrinsic validity of the will and of ownership over the mining claims (not the royalties alone) had been
finally adjudicated by the final and executory Order of December 5, 1972, as affirmed by the Court of
Appeals and the Supreme Court, thereby rendering moot and academic the suit for reconveyance
then pending in the Court of First Instance of Cebu, Branch IX. It clarified that only the 33% share of
PASTOR, JR. in the royalties (less than 7.5% share which he had assigned to QUEMADA before
PASTOR, SR. died) was to be garnished and that as regards PASTOR, SR.'s 42% share, what was
ordered was just the transfer of its possession to the custody of the PROBATE COURT through the
special administrator. Further, the Order granted QUEMADA 6% interest on his unpaid legacy from
August 1980 until fully paid.] Nonetheless, the Court of Appeals denied reconsideration.
Hence, this Petition for Review by certiorari with prayer for a writ of pre y injunction, assailing the
decision of the Court of Appeals dated November 18, 1980 as well as the orders of the Probate
Court dated August 20, 1980, November 11, 1980 and December 17, 1980, Med by petitioners on
March 26, 1981, followed by a Supplemental Petition with Urgent Prayer for Restraining Order.
In April 1981, the Court (First Division) issued a writ of preliminary injunction, the lifting of which was
denied in the Resolution of the same Division dated October 18, 1982, although the bond of
petitioners was increased from P50,000.00 to P100,000.00.
Between December 21, 1981 and October 12, 1982, private respondent filed seven successive
motions for early resolution. Five of these motions expressly prayed for the resolution of the question
as to whether or not the petition should be given due course.
On October 18, 1982, the Court (First Division) adopted a resolution stating that "the petition in fact
and in effect was given due course when this case was heard on the merits on September 7, (should

be October 21, 1981) and concise memoranda in amplification of their oral arguments on the merits
of the case were filed by the parties pursuant to the resolution of October 21, 1981 . . . " and denied
in a resolution dated December 13, 1982, private respondent's "Omnibus motion to set aside
resolution dated October 18, 1982 and to submit the matter of due course to the present
membership of the Division; and to reassign the case to another ponente."
Upon Motion for Reconsideration of the October 18, 1982 and December 13, 1982 Resolutions, the
Court en banc resolved to CONFIRM the questioned resolutions insofar as hey resolved that the
petition in fact and in effect had been given due course.
II. ISSUES:
Assailed by the petitioners in these proceedings is the validity of the Order of execution and
garnishment dated August 20, 1980 as well as the Orders subsequently issued allegedly to
implement the Probate Order of December 5, 1972, to wit: the Order of November 11, 1980
declaring that the Probate Order of 1972 indeed resolved the issues of ownership and intrinsic
validity of the will, and reiterating the Order of Execution dated August 20, 1980; and the Order of
December 17, 1980 reducing to P2,251,516.74 the amount payable to QUEMADA representing the
royalties he should have received from the death of PASTOR, SR. in 1966 up to February 1980.
The Probate Order itself, insofar as it merely allowed the holographic will in probate, is not
questioned. But petitioners denounce the Probate Court for having acted beyond its jurisdiction or
with grave abuse of discretion when it issued the assailed Orders. Their argument runs this way:
Before the provisions of the holographic win can be implemented, the questions of ownership of the
mining properties and the intrinsic validity of the holographic will must first be resolved with finality.
Now, contrary to the position taken by the Probate Court in 1980 i.e., almost eight years after the
probate of the will in 1972 the Probate Order did not resolve the two said issues. Therefore, the
Probate Order could not have resolved and actually did not decide QUEMADA's entitlement to the
legacy. This being so, the Orders for the payment of the legacy in alleged implementation of the
Probate Order of 1972 are unwarranted for lack of basis.
Closely related to the foregoing is the issue raised by QUEMADA The Probate Order of 1972 having
become final and executory, how can its implementation (payment of legacy) be restrained? Of
course, the question assumes that QUEMADA's entitlement to the legacy was finally adjudged in the
Probate Order.
On the merits, therefore, the basic issue is whether the Probate Order of December 5, 1972 resolved
with finality the questions of ownership and intrinsic validity. A negative finding will necessarily render
moot and academic the other issues raised by the parties, such as the jurisdiction of the Probate
Court to conclusively resolve title to property, and the constitutionality and repercussions of a ruling
that the mining properties in dispute, although in the name of PASTOR, JR. and his wife, really
belonged to the decedent despite the latter's constitutional disqualification as an alien.
On the procedural aspect, placed in issue is the propriety of certiorari as a means to assail the
validity of the order of execution and the implementing writ.
III. DISCUSSION:
1. Issue of Ownership

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

executed on July 31, 1961 with respect to its extrinsic validity, the same having been
duly authenticated pursuant to the requisites or solemnities prescribed by law. Let,
therefore, a certificate of its allowance be prepared by the Branch Clerk of this Court
to be signed by this Presiding Judge, and attested by the seal of the Court, and
thereafter attached to the will, and the will and certificate filed and recorded by the
clerk. Let attested copies of the will and of the certificate of allowance thereof be sent
to Atlas Consolidated Mining & Development Corporation, Goodrich Bldg., Cebu City,
and the Register of Deeds of Cebu or of Toledo City, as the case may be, for
recording.
(b) There was a delay in the granting of the letters testamentary or of administration
for as a matter of fact, no regular executor and/or administrator has been appointed
up to this time and - the appointment of a special administrator was, and still is,
justified under the circumstances to take possession and charge of the estate of the
deceased in the Philippines (particularly in Cebu) until the problems causing the
delay are decided and the regular executor and/or administrator appointed.
(c) There is a necessity and propriety of a special administrator and later on an
executor and/or administrator in these proceedings, in spite of this Court's
declaration that the oppositors are the forced heirs and the petitioner is merely
vested with the character of a voluntary heir to the extent of the bounty given to him
(under) the will insofar as the same will not prejudice the legitimes of the
oppositor for the following reasons:
1. To submit a complete inventory of the estate of the
decedent-testator Alvaro Pastor, Sr.
2. To administer and to continue to put to prolific
utilization of the properties of the decedent;
3. To keep and maintain the houses and other
structures and belonging to the estate, since the
forced heirs are residing in Spain, and prepare them
for delivery to the heirs in good order after partition
and when directed by the Court, but only after the
payment of estate and inheritance taxes;
(d) Subject to the outcome of the suit for reconveyance of ownership and possession
of real and personal properties in Civil Case No. 274-T before Branch IX of the Court
of First Instance of Cebu, the intestate estate administration aspect must proceed,
unless, however, it is duly proven by the oppositors that debts of the decedent have
already been paid, that there had been an extrajudicial partition or summary one
between the forced heirs, that the legacy to be given and delivered to the petitioner
does not exceed the free portion of the estate of the testator, that the respective
shares of the forced heirs have been fairly apportioned, distributed and delivered to
the two forced heirs of Alvaro Pastor, Sr., after deducting the property willed to the
petitioner, and the estate and inheritance taxes have already been paid to the
Government thru the Bureau of Internal Revenue.

The suitability and propriety of allowing petitioner to remain as special administrator

or administrator of the other properties of the estate of the decedent, which
properties are not directly or indirectly affected by the provisions of the holographic
will (such as bank deposits, land in Mactan etc.), will be resolved in another order as
separate incident, considering that this order should have been properly issued
solely as a resolution on the issue of whether or not to allow and approve the
aforestated will. (Emphasis supplied.)
Nowhere in the dispositive portion is there a declaration of ownership of specific properties. On the
contrary, it is manifest therein that ownership was not resolved. For it confined itself to the question
of extrinsic validity of the win, and the need for and propriety of appointing a special administrator.
Thus it allowed and approved the holographic win "with respect to its extrinsic validity, the same
having been duly authenticated pursuant to the requisites or solemnities prescribed by law." It
declared that the intestate estate administration aspect must proceed " subject to the outcome of the
suit for reconveyance of ownership and possession of real and personal properties in Civil Case
274-T before Branch IX of the CFI of Cebu." [Parenthetically, although the statement refers only to
the "intestate" aspect, it defies understanding how ownership by the estate of some properties could
be deemed finally resolved for purposes of testate administration, but not so for intestate purposes.
Can the estate be the owner of a property for testate but not for intestate purposes?] Then again, the
Probate Order (while indeed it does not direct the implementation of the legacy) conditionally stated
that the intestate administration aspect must proceed "unless . . . it is proven . . . that the legacy to
be given and delivered to the petitioner does not exceed the free portion of the estate of the
testator," which clearly implies that the issue of impairment of legitime (an aspect of intrinsic validity)
was in fact not resolved. Finally, the Probate Order did not rule on the propriety of allowing
QUEMADA to remain as special administrator of estate properties not covered by the holographic
will, "considering that this (Probate) Order should have been properly issued solely as a resolution
on the issue of whether or not to allow and approve the aforestated will. "
(c) That the Probate Order did not resolve the question of ownership of the properties listed in the
estate inventory was appropriate, considering that the issue of ownership was the very subject of
controversy in the reconveyance suit that was still pending in Branch IX of the Court of First Instance
of Cebu.
(d) What, therefore, the Court of Appeals and, in effect, the Supreme Court affirmed en toto when
they reviewed the Probable Order were only the matters properly adjudged in the said Order.
(e) In an attempt to justify the issuance of the Order of execution dated August 20, 1980, the Probate
Court in its Order of November 11, 1980 explained that the basis for its conclusion that the question
of ownership had been formally resolved by the Probate Order of 1972 are the findings in the latter
Order that (1) during the lifetime of the decedent, he was receiving royalties from ATLAS; (2) he had
resided in the Philippines since pre-war days and was engaged in the mine prospecting business
since 1937 particularly in the City of Toledo; and (3) PASTOR, JR. was only acting as dummy for his
father because the latter was a Spaniard.
Based on the premises laid, the conclusion is obviously far-fetched.
(f) It was, therefore, error for the assailed implementing Orders to conclude that the Probate Order
adjudged with finality the question of ownership of the mining properties and royalties, and that,

premised on this conclusion, the dispositive portion of the said Probate Order directed the special
administrator to pay the legacy in dispute.
2. Issue of Intrinsic Validity of the Holographic Will (a) When PASTOR, SR. died in 1966, he was survived by his wife, aside from his two legitimate
children and one illegitimate son. There is therefore a need to liquidate the conjugal partnership and
set apart the share of PASTOR, SR.'s wife in the conjugal partnership preparatory to the
administration and liquidation of the estate of PASTOR, SR. which will include, among others, the
determination of the extent of the statutory usufructuary right of his wife until her death. * When the
disputed Probate order was issued on December 5, 1972, there had been no liquidation of the community properties of PASTOR, SR. and
his wife.

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

Under the circumstances of the case at bar, the challenge must be rejected. Grave abuse of
discretion amounting to lack of jurisdiction is much too evident in the actuations of the probate court
to be overlooked or condoned.
(a) Without a final, authoritative adjudication of the issue as to what properties compose the estate of
PASTOR, SR. in the face of conflicting claims made by heirs and a non-heir (MA. ELENA ACHAVAL
DE PASTOR) involving properties not in the name of the decedent, and in the absence of a
resolution on the intrinsic validity of the will here in question, there was no basis for the Probate
Court to hold in its Probate Order of 1972, which it did not, that private respondent is entitled to the
payment of the questioned legacy. Therefore, the Order of Execution of August 20, 1980 and the
subsequent implementing orders for the payment of QUEMADA's legacy, in alleged implementation
of the dispositive part of the Probate Order of December 5, 1972, must fall for lack of basis.
(b) The ordered payment of legacy would be violative of the rule requiring prior liquidation of the
estate of the deceased, i.e., the determination of the assets of the estate and payment of all debts
and expenses, before apportionment and distribution of the residue among the heirs and legatees.
(Bernardo vs. Court of Appeals, 7 SCRA 367.)
(c) Neither has the estate tax been paid on the estate of PASTOR, SR. Payment therefore of the
legacy to QUEMADA would collide with the provision of the National Internal Revenue Code
requiring payment of estate tax before delivery to any beneficiary of his distributive share of the
estate (Section 107 [c])
(d) The assailed order of execution was unauthorized, having been issued purportedly under Rule
88, Section 6 of the Rules of Court which reads:
Sec. 6. Court to fix contributive shares where devisees, legatees, or heirs have been
in possession. Where devisees, legatees, or heirs have entered into possession of
portions of the estate before the debts and expenses have been settled and paid and
have become liable to contribute for the payment of such debts and expenses, the
court having jurisdiction of the estate may, by order for that purpose, after hearing,
settle the amount of their several liabilities, and order how much and in what manner
each person shall contribute, and may issue execution as circumstances require.
The above provision clearly authorizes execution to enforce payment of debts of estate. A legacy is
not a debt of the estate; indeed, legatees are among those against whom execution is authorized to
be issued.
... there is merit in the petitioners' contention that the probate court generally cannot
issue a writ of execution. It is not supposed to issue a writ of execution because its
orders usually refer to the adjudication of claims against the estate which the
executor or administrator may satisfy without the necessity of resorting to a writ of
execution. The probate court, as such, does not render any judgment enforceable by
execution.
The circumstances that the Rules of Court expressly specifies that the probate court
may issue execution (a) to satisfy (debts of the estate out of) the contributive shares
of devisees, legatees and heirs in possession of the decedent's assets (Sec. 6. Rule
88), (b) to enforce payment of the expenses of partition (Sec. 3, Rule 90), and (c) to

satisfy the costs when a person is cited for examination in probate proceedings (Sec.
13, Rule 142) may mean, under the rule of inclusion unius est exclusion alterius, that
those are the only instances when it can issue a writ of execution. (Vda. de Valera
vs. Ofilada, 59 SCRA 96, 108.)
(d) It is within a court's competence to order the execution of a final judgment; but to order the
execution of a final order (which is not even meant to be executed) by reading into it terms that are
not there and in utter disregard of existing rules and law, is manifest grave abuse of discretion
tantamount to lack of jurisdiction. Consequently, the rule that certiorari may not be invoked to defeat
the right of a prevailing party to the execution of a valid and final judgment, is inapplicable. For when
an order of execution is issued with grave abuse of discretion or is at variance with the judgment
sought to be enforced (PVTA vs. Honorable Gonzales, 92 SCRA 172), certiorari will lie to abate the
order of execution.
(e) Aside from the propriety of resorting to certiorari to assail an order of execution which varies the
terms of the judgment sought to be executed or does not find support in the dispositive part of the
latter, there are circumstances in the instant case which justify the remedy applied for.
Petitioner MA. ELENA ACHAVAL DE PASTOR, wife of PASTOR, JR., is the holder in her own right of
three mining claims which are one of the objects of conflicting claims of ownership. She is not an
heir of PASTOR, SR. and was not a party to the probate proceedings. Therefore, she could not
appeal from the Order of execution issued by the Probate Court. On the other hand, after the
issuance of the execution order, the urgency of the relief she and her co-petitioner husband seek in
the petition for certiorari states against requiring her to go through the cumbersome procedure of
asking for leave to intervene in the probate proceedings to enable her, if leave is granted, to appeal
from the challenged order of execution which has ordered the immediate transfer and/or
garnishment of the royalties derived from mineral properties of which she is the duly registered
owner and/or grantee together with her husband. She could not have intervened before the issuance
of the assailed orders because she had no valid ground to intervene. The matter of ownership over
the properties subject of the execution was then still being litigated in another court in a
reconveyance suit filed by the special administrator of the estate of PASTOR, SR.
Likewise, at the time petitioner PASTOR, JR. Med the petition for certiorari with the Court of Appeals,
appeal was not available to him since his motion for reconsideration of the execution order was still
pending resolution by the Probate Court. But in the face of actual garnishment of their major source
of income, petitioners could no longer wait for the resolution of their motion for reconsideration. They
needed prompt relief from the injurious effects of the execution order. Under the circumstances,
recourse to certiorari was the feasible remedy.
WHEREFORE, the decision of the Court of Appeals in CA G.R. No. SP-11373-R is reversed. The
Order of execution issued by the probate Court dated August 20, 1980, as well as all the Orders
issued subsequent thereto in alleged implementation of the Probate Order dated December 5, 1972,
particularly the Orders dated November 11, 1980 and December 17, 1980, are hereby set aside; and
this case is remanded to the appropriate Regional Trial Court for proper proceedings, subject to the
judgment to be rendered in Civil Case No. 274-R.
SO ORDERED.
Teehankee (Chairman), Melencio-Herrera Vasquez and Relova JJ., concur.

Gutierrez, J., took no part.

G.R. No. 77047 May 28, 1988

JOAQUINA R-INFANTE DE ARANZ, ANTONIO R-INFANTE, CARLOS R. INFANTE, MERCEDES
R-INFANTE DE LEDNICKY, ALFREDO R-INFANTE, TERESITA R-INFANTE, RAMON R-INFANTE,
FLORENCIA R-INFANTE DE DIAS, MARTIN R-INFANTE, JOSE R-INFANTE LINK and JOAQUIN
R-INFANTE CAMPBELL, petitioners,
vs.
THE HON. NICOLAS GALING, PRESIDING JUDGE, REGIONAL TRIAL COURT, NATIONAL
CAPITAL JUDICIAL REGION, BRANCH NO. 166, PASIG, METRO MANILA AND JOAQUIN RINFANTE, respondents.
Belo, Abiera and Associates for petitioners.
Miguel J. Lagman for respondents.

PADILLA, J.:
This is a petition for review on certiorari of the decision 1 of the Court of Appeals, dated 13 January
1987, in CA-G.R. SP No. 09622, entitled "Joaquina R-Infante de Aranz, et al., petitioners vs. Hon. Nicolas
Galing, etc., et al., respondents," dismissing petitioners' petition for certiorari and prohibition as-, sailing
the orders 2 of the Regional Trial Court of Pasig, Branch 166, dated 12 May 1986 and 30 May 1986,
respectively, in Sp. Proc. No. 9995, entitled, "In the Matter of Petition for Approval of the Last Will and
Testament of Montserrat R-Infante y G-Pola Joaquin R. Infante, Petitioner."
On 3 March 1986, private respondent filed with the Regional Trial Court of Pasig, Branch 166, a
petition for the probate and allowance of the last will and testament of the late Montserrat R-Infante y
G-Pola The petition specified the names and ad- dresses of herein petitioners as legatees and
devisees, as follows:
Joaquina R-Infante Roxas de Aranz residing at No. 86 10th St., New Manila, Quezon
City, Metro Manila;
Antonio R-Infante Roxas residing at #91 Cambridge, North Forbes, Makati, Metro
Manila;
Carlos R-Infante Roxas residing at #46 Washington St., Greenhills, San Juan, Metro
Manila;
Mercedes R-Infante Roxas de Lednicky residing at #386 P. Guevarra St., San Juan,
Metro Manila;
Alfredo R-Infante Roxas residing at #27 A Scout Tobias St., Quezon City, Metro
Manila;
Teresita R-Infante Roxas residing at #121 9th Street, New Manila, Quezon City,
Metro Manila;

Ramon R-Infante Roxas residing at #27 B Scout Tobias St., Quezon City, Metro
Manila;
Florencia R-Infante Roxas de Diaz residing at Calle Sancho Davila, 13-19-D, Madrid,
28028 Spain;
Martin R-Infante Roxas residing at #2 Bongavilla St., Cubao, Quezon City, Metro
Manila;
Jose R-Infante Link residing at 174R-Pascual St., San Juan, Metro Manila;
Joaquin R-Infante Campbell C/O Pilar Campbell, 15 Briones, Makati, Metro Marta.

On 12 March 1986, the probate court issued an order selling the petition for hearing on 5 May 1986
at 8:30 o'clock in the morning. Said order was published in the "Nueva Era" A newspaper of general
circulation in Metro Manila once a week for three (3) consecutive weeks. On the date of the hearing,
no oppositor appeared. The hearing was then reset to 12 May 1986, on which date, the probate
court issued the following order:
There being no opposition to this instant case, as prayed for, the oner to-receive
Branch Clerk of Court is hereby designated Co evidence ex-parte of the petitioner.
SO ORDERED. 4
On the same day (12 May 1986), private respondent presented his evidence ex-parte and placed
Arturo Arceo one of the testamentary witnesses, on the witness stand. During the proceedings,
private respondent was appointed executor.
On 14 May 1986, petitioners filed a motion for reconsideration of the order of 12 May 1986 alleging
that, as named legatees, no notices were sent to them as required by Sec. 4, Rule 76 of the Rules of
Court and they prayed that they be given a period of ten (10) days within which to file their
opposition to the probate of the will.
On 30 May 1986, the probate court, acting on the opposition of private respondent and the reply
thereto of petitioners, issued an order denying petitioners motion for reconsideration.
Thereafter, petitioners filed with this Court a petition for certiorari and prohibition which was,
however, referred to the Court of Appeals. On 13 January 1987, the Court of Appeals promulgated a
decision dismissing the petition. 5Hence, the instant petition.
It is the view of petitioners that the Court of Appeals erred in holding that personal notice of probate
proceedings to the known legatees and devisees is not a jurisdictional requirement in the probate of
a will. Contrary to the holding of the Court of Appeals that the requirement of notice on individual
heirs, legatees and devisees is merely a matter of procedural convenience to better satisfy in some
instances the requirements of due process, petitioners allege that under Sec. 4 of Rule 76 of the
Rules of Court, said requirement of the law is mandatory and its omission constitutes a reversible
error for being constitutive of grave abuse of discretion. 6

We grant the petition:

Sec. 4, Rule 76 of the Rules of Cof reads:
SEC. 4. Heirs, devisees, legatees, and executors to be notified by mail or personally.
The court shag also cause copies of the notice of the time and place fixed for
proving the will to be addressed to the designated or other known heirs, legatees,
and devisees of the testator resident in the Philippines at their places of residence,
and deposited in the post office with the postage thereon prepaid at least twenty (20)
days before the hearing, if such places of residence be known. A copy of the notice
must in like manner be mailed to the person named as executor, if he be not, the
petitioner; also, to any person named as co-executor not petitioning, if their places of
residence be known. Personal service of copies of the notice at least ten (10) days
before the day of hearing shall be equivalent to mailing.
It is clear from the aforecited rule that notice of the time and place of the hearing for the allowance of
a will shall be forwarded to the designated or other known heirs, legatees, and devisees residing in
the Philippines at their places of residence, if such places of residence be known. There is no
question that the residences of herein petitioners legatees and devisees were known to the probate
court. The petition for the allowance of the wig itself indicated the names and addresses of the
legatees and devisees of the testator. 7 But despite such knowledge, the probate court did not cause
copies of the notice to be sent to petitioners. The requirement of the law for the allowance of the will was
not satisfied by mere publication of the notice of hearing for three (3) weeks in a newspaper of general
circulation in the province.
The case of Joson vs. Nable 8 cited by the Court of Appeals in its assailed decision to support its theory
is not applicable in the present case. In that case, petitioners Purificacion Joson and Erotica Joson failed
to contest the will of Tomas Joson because they had not been notified of the hearing of the petition for
probate. he the petition included the residence of petitioners as Dagupan Street No. 83, Manila,
petitioners claimed that their residence was not Dagupan Street No. 83, Manila. There the Court said:
Petitioners maintain that no notice was received by them partly because their
residence was not Dagupan Street No. 83 as alleged in the petition for probate. If the
allegation of the petition was wrong and the true residence of petitioners was not
known, then notice upon them individually was not necessary. Under the provision
abovequoted, individual notice upon heirs, legatees and devisees is necessary only
when they are known or when their places of residence are known. In other
instances, such notice is not necessary and the court may acquire and exercise
jurisdiction simply upon the publication of the notice in a newspaper of general
circulation. ... 9
In Re: Testate Estate of Suntay, 10 the Court, speaking thru Mr. Justice Sabino Padilla, said:
... It is a proceedings in rem and for the validity of such proceedings personal notice
or by publication or both to all interested parties must be made. The interested
parties in the case were known to reside in the Philippines. The evidence shows that
no such notice was received by the interested parties residing in the Philippines (pp.
474, 476, 481, 503-4, t.s.n., hearing of 24 February 1948). The proceedings had in
the municipal district court of Amoy, China, may be likened to a deposition or to a

perpetuation of testimony, and even if it were so it does not measure or come up to

the standard of such proceedings in the Philippines for lack of notice to all interested
parties and the proceedings were held at the back of such interested parties.
xxx xxx xxx
... In view thereof, the will and the alleged probate thereof cannot be said to have
been done in accordance with the accepted basic and fundamental concepts and
principles followed in the probate and allowance of wills. Consequently, the
authenticated transcript of proceedings held in the municipal district court of Amoy,
China, cannot be deemed and accepted as proceedings leading to the probate or
allowance of a will and, therefore, the will referred to therein cannot be allowed, filed
and recorded by a competent court of court. 11
WHEREFORE, the decision of the Court of Appeals dated 13 January 1987 is hereby ANNULLED
and SET ASIDE. The case is hereby ordered remanded to the Regional Trial Court of Pasig for
further proceedings in accordance with this decision. No costs.
SO ORDERED.
Yap (Chairman), Melencio-Herrera, Paras and Sarmiento, JJ., concur.

G.R. No. L-58509 December 7, 1982

IN THE MATTER OF THE PETITION TO APPROVE THE WILL OF RICARDO B. BONILLA
deceased, MARCELA RODELAS, petitioner-appellant,
vs.
AMPARO ARANZA, ET AL., oppositors-appellees, ATTY. LORENZO SUMULONG, intervenor.
Luciano A. Joson for petitioner-appellant.
Cesar Paralejo for oppositor-appellee.

RELOVA, J.:
This case was certified to this Tribunal by the Court of Appeals for final determination pursuant to
Section 3, Rule 50 of the Rules of Court.
As found by the Court of Appeals:
... On January 11, 1977, appellant filed a petition with the Court of First Instance of
Rizal for the probate of the holographic will of Ricardo B. Bonilla and the issuance of
letters testamentary in her favor. The petition, docketed as Sp. Proc. No. 8432, was
opposed by the appellees Amparo Aranza Bonilla, Wilferine Bonilla Treyes Expedita
Bonilla Frias and Ephraim Bonilla on the following grounds:
(1) Appellant was estopped from claiming that the deceased left a will by failing to
produce the will within twenty days of the death of the testator as required by Rule
75, section 2 of the Rules of Court;
(2) The alleged copy of the alleged holographic will did not contain a disposition of
property after death and was not intended to take effect after death, and therefore it
was not a will
(3) The alleged hollographic will itself,and not an alleged copy thereof, must be
produced, otherwise it would produce no effect, as held in Gam v. Yap, 104 Phil. 509;
and
(4 ) The deceased did not leave any will, holographic or otherwise, executed and
attested as required by law.
The appellees likewise moved for the consolidation of the case with another case Sp.
Proc. No, 8275). Their motion was granted by the court in an order dated April 4,
1977.
On November 13, 1978, following the consolidation of the cases, the appellees
moved again to dismiss the petition for the probate of the will. They argued that:

(1) The alleged holographic was not a last will but merely an instruction as to the
management and improvement of the schools and colleges founded by decedent
Ricardo B. Bonilla; and
(2) Lost or destroyed holographic wills cannot be proved by secondary evidence
unlike ordinary wills.
Upon opposition of the appellant, the motion to dismiss was denied by the court in its
order of February 23, 1979.
The appellees then filed a motion for reconsideration on the ground that the order
was contrary to law and settled pronouncements and rulings of the Supreme Court,
to which the appellant in turn filed an opposition. On July 23, 1979, the court set
aside its order of February 23, 1979 and dismissed the petition for the probate of the
will of Ricardo B. Bonilla. The court said:
... It is our considered opinion that once the original copy of the holographic will is
lost, a copy thereof cannot stand in lieu of the original.
In the case of Gam vs. Yap, 104 Phil. 509, 522, the Supreme Court held that 'in the
matter of holographic wills the law, it is reasonable to suppose, regards the document
itself as the material proof of authenticity of said wills.
MOREOVER, this Court notes that the alleged holographic will was executed on
January 25, 1962 while Ricardo B. Bonilla died on May 13, 1976. In view of the lapse
of more than 14 years from the time of the execution of the will to the death of the
decedent, the fact that the original of the will could not be located shows to our mind
that the decedent had discarded before his death his allegedly missing Holographic
Will.
Appellant's motion for reconsideration was denied. Hence, an appeal to the Court of Appeals in
which it is contended that the dismissal of appellant's petition is contrary to law and well-settled
jurisprudence.
On July 7, 1980, appellees moved to forward the case to this Court on the ground that the appeal
does not involve question of fact and alleged that the trial court committed the following assigned
errors:
I. THE LOWER COURT ERRED IN HOLDING THAT A LOST HOLOGRAPHIC WILL
MAY NOT BE PROVED BY A COPY THEREOF;
II. THE LOWER COURT ERRED IN HOLDING THAT THE DECEDENT HAS
DISCARDED BEFORE HIS DEATH THE MISSING HOLOGRAPHIC WILL;
III. THE LOWER COURT ERRED IN DISMISSING APPELLANT'S WILL.
The only question here is whether a holographic will which was lost or cannot be found can be
proved by means of a photostatic copy. Pursuant to Article 811 of the Civil Code, probate of

holographic wills is the allowance of the will by the court after its due execution has been proved.
The probate may be uncontested or not. If uncontested, at least one Identifying witness is required
and, if no witness is available, experts may be resorted to. If contested, at least three Identifying
witnesses are required. However, if the holographic will has been lost or destroyed and no other
copy is available, the will can not be probated because the best and only evidence is the handwriting
of the testator in said will. It is necessary that there be a comparison between sample handwritten
statements of the testator and the handwritten will. But, a photostatic copy or xerox copy of the
holographic will may be allowed because comparison can be made with the standard writings of the
testator. In the case of Gam vs. Yap, 104 PHIL. 509, the Court ruled that "the execution and the
contents of a lost or destroyed holographic will may not be proved by the bare testimony of
witnesses who have seen and/or read such will. The will itself must be presented; otherwise, it shall
produce no effect. The law regards the document itself as material proof of authenticity." But, in
Footnote 8 of said decision, it says that "Perhaps it may be proved by a photographic or photostatic
copy. Even a mimeographed or carbon copy; or by other similar means, if any, whereby the
authenticity of the handwriting of the deceased may be exhibited and tested before the probate
court," Evidently, the photostatic or xerox copy of the lost or destroyed holographic will may be
admitted because then the authenticity of the handwriting of the deceased can be determined by the
probate court.
WHEREFORE, the order of the lower court dated October 3, 1979, denying appellant's motion for
reconsideration dated August 9, 1979, of the Order dated July 23, 1979, dismissing her petition to
approve the will of the late Ricardo B. Bonilla, is hereby SET ASIDE.
SO ORDERED.

G.R. Nos. L-3087 and L-3088

July 31, 1954

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

and claimed to have been probated in the municipal district court of Amoy, Fookien province,
Republic of China.
As to prescription, the dismissal of the petition for probate of the will on 7 February 1938 was no bar
to the filing of this petition on 18 June 1947, or before the expiration of ten years.
As to the lost will, section 6, Rule 77, provides:
No will shall be proved as a lost or destroyed will unless the execution and validity of the
same be established, and the will is proved to have been in existence at the time of the
death of the testator, or is shown to have been fraudulently or accidentally destroyed in the
lifetime of the testator without his knowledge, nor unless its provisions are clearly and
distinctly proved by at least two credible witnesses. When a lost will is proved, the provisions
thereof must be distinctly stated and certified by the judge, under the seal of the court, and
the certificate must be filed and recorded as other wills are filed and recorded.
The witnesses who testified to the provisions of the lost will are Go Toh, an attesting witness,
Anastacio Teodoro and Ana Suntay. Manuel Lopez, who was an attesting witness to the lost will, was
dead at the time of the hearing of this alternative petition. In his deposition Go Toh testifies that he
was one of the witnesses to the lost will consisting of twenty-three sheets signed by Jose B. Suntay
at the bottom of the will and each and every page thereof in the presence of Alberto Barretto, Manuel
Lopez and himself and underneath the testator's signature the attesting witnesses signed and each
of them signed the attestation clause and each and every page of the will in the presence of the
testator and of the other witnesses (answers to the 31st, 41st, 42nd, 49th, 50th, 55th and 63rd
interrogatories, Exhibit D-1), but did not take part in the drafting thereof (answer to the 11th
interrogatory, Id.); that he knew the contents of the will written in Spanish although he knew very little
of that language (answers to the 22nd and 23rd interrogatories and to X-2 cross-interrogatory, Id.)
and all he knows about the contends of the lost will was revealed to him by Jose B. Suntay at the
time it was executed (answers to the 25th interrogatory and to X-4 and X-8 crossinterrogatories, Id.); that Jose B. Suntay told him that the contents thereof are the same as those of
the draft (Exhibit B) (answers to the 33rd interrogatory and to X-8 cross-interrogatory, Id.) which he
saw in the office of Alberto Barretto in November 1929 when the will was signed (answers to the
69th, 72nd, and 74th interrogatories, Id); that Alberto Barretto handed the draft and said to Jose B.
Suntay: "You had better see if you want any correction" (answers to the 81st, 82nd and 83rd
interrogatories, Id.); that "after checking Jose B. Suntay put the "Exhibit B" in his pocket and had the
original signed and executed" (answers to the 91st interrogatory, and to X-18 crossinterrogatory, Id.); that Mrs. Suntay had the draft of the will (Exhibit B) translated into Chinese and he
read the translation (answers to the 67th interrogatory, Id.); that he did not read the will and did not
compare it (check it up) with the draft (Exhibit B) (answers to X-6 and X-20 crossinterrogatories, Id.).
Ana Suntay testifies that sometime in September 1934 in the house of her brother Apolonio Suntay
she learned that her father left a will "because of the arrival of my brother Manuel Suntay, who was
bringing along with him certain document and he told us or he was telling us that it was the will of our
father Jose B. Suntay which was taken from Go Toh. ..." (p. 524, t. s. n., hearing of 24 February
1948); that she saw her brother Apolonio Suntay read the document in her presence and of Manuel
and learned of the adjudication made in the will by her father of his estate, to wit: one-third to his
children, one-third to Silvino and his mother and the other third to Silvino, Apolonio, Concepcion and
Jose, Jr. (pp. 526-8, 530-1, 542, t. s. n. Id.); that "after Apolonio read that portion, then he turned
over the document to Manuel, and he went away," (p. 528, t. s. n., Id.). On cross-examination, she
testifies that she read the part of the will on adjudication to know what was the share of each heir

(pp. 530, 544, t. s. n., Id.) and on redirect she testifies that she saw the signature of her father, Go
Toh, Manuel Lopez and Alberto Barretto (p. 546, t. s. n., Id.).
Anastacio Teodoro testifies that one day in November 1934 (p. 273, t. s. n., hearing of 19 January
1948), before the last postponement of the hearing granted by the Court, Go Toh arrived at his law
office in the De los Reyes Building and left an envelope wrapped in red handkerchief [Exhibit C] (p.
32, t. s. n., hearing of 13 October 1947); that he checked up the signatures on the envelope Exhibit A
with those on the will placed in the envelope (p. 33, t. s. n., Id.); that the will was exactly the same as
the draft Exhibit B (pp. 32, 47, 50, t. s. n., Id.).
If the will was snatched after the delivery thereof by Go Toh to Anastacio Teodoro And returned by
the latter to the former because they could not agree on the amount of fees, the former coming to
the latter's office straight from the boat (p. 315, t. s. n., hearing of 19 January 1948) that brought him
to the Philippines from Amoy, and that delivery took place in November 1934 (p. 273, t. s. n., Id.),
then the testimony of Ana Suntay that she saw and heard her brother Apolonio Suntay read the will
sometime in September 1934 (p. 524, t. s. n., hearing of 24 February 1948), must not be true.
Although Ana Suntay would be a good witness because she was testifying against her own interest,
still the fact remains that she did not read the whole will but only the adjudication (pp. 526-8, 530-1,
542, t. s. n., Id.) and saw only the signature, of her father and of the witnesses Go Toh, Manuel
Lopez and Alberto Barretto (p. 546, t. s. n., Id.). But her testimony on cross-examination that she
read the part of the will on adjudication is inconsistent with her testimony in chief that after Apolonio
had read that part of the will he turned over or handed the document to Manuel who went away (p.
528, t. s. n., Id.).
If it is true that Go Toh saw the draft Exhibit B in the office of Alberto Barretto in November 1929
when the will was signed, then the part of his testimony that Alberto Barretto handed the draft to
Jose B. Suntay to whom he said: "You had better see if you want any correction" and that "after
checking Jose B. Suntay put the "Exhibit B" in his pocket and had the original signed and executed"
cannot be true, for it was not the time for correcting the draft of the will, because it must have been
corrected before and all corrections and additions written in lead pencil must have been inserted and
copied in the final draft of the will which was signed on that occasion. The bringing in for the draft
(Exhibit B) on that occasion is just to fit it within the framework of the appellant's theory. At any rate,
all of Go Toh's testimony by deposition on the provisions of the alleged lost will is hearsay, because
he came to know or he learned to them from information given him by Jose B. Suntay and from
reading the translation of the draft (Exhibit B) into Chinese.
Much stress is laid upon the testimony of Federico C. Suntay who testifies that he read the
supposed will or the alleged will of his father and that the share of the surviving widow, according to
the will, is two-thirds of the estate (p. 229, t. s. n., hearing of 24 October 1947). But this witness
testified to oppose the appointment of a co-administrator of the estate, for the reason that he had
acquired the interest of the surviving widow not only in the estate of her deceased husband but also
in the conjugal property (pp. 148, 205, 228, 229, 231, t. s. n., Id.) Whether he read the original will or
just the copy thereof (Exhibit B) is not clear. For him the important point was that he had acquired all
the share, participation and interest of the surviving widow and of the only child by the second
marriage in the estate of his deceased father. Be that as it may, his testimony that under the will the
surviving widow would take two-thirds of the estate of the late Jose B. Suntay is at variance with
Exhibit B and the testimony of Anastacio Teodoro. According to the latter, the third for strict legitime
is for the ten children; the third for betterment is for Silvino, Apolonio, Concepcion and Jose Jr.; and
the third for free disposal is for the surviving widow and her child Silvino.

Hence, granting that there was a will duly executed by Jose B. Suntay placed in the envelope
(Exhibit A) and that it was in existence at the time of, and not revoked before, his death, still the
testimony of Anastacio Teodoro alone falls short of the legal requirement that the provisions of the
lost will must be "clearly and distinctly proved by at least two credible witnesses." Credible witnesses
mean competent witnesses and those who testify to facts from or upon hearsay are neither
competent nor credible witnesses.
On the other hand, Alberto Barretto testifies that in the early part of 1929 he prepared or drew up two
mills for Jose B. Suntay at the latter's request, the rough draft of the first will was in his own
handwriting, given to Manuel Lopez for the final draft or typing and returned to him; that after
checking up the final with the rough draft he tore it and returned the final draft to Manuel Lopez; that
this draft was in favor of all the children and the widow (pp. 392-4, 449, t. s. n., hearing of 21
February 1948); that two months later Jose B. Suntay and Manuel Lopez called on him and the
former asked him to draw up another will favoring more his wife and child Silvino; that he had the
rough draft of the second will typed (pp. 395, 449 t. s. n., Id.) and gave it to Manuel Lopez (p. 396, t.
s. n., Id.); that he did not sign as witness the second will of Jose B. Suntay copied from the
typewritten draft [Exhibit B] (p. 420, t. s. n., Id.); that the handwritten insertions or additions in lead
pencil to Exhibit B are not his (pp. 415-7 435-6, 457, t. s. n., Id.); that the final draft of the first will
made up of four or five pages (p. 400, t. s. n., Id.) was signed and executed, two or three months
after Suntay and Lopez had called on him (pp. 397-8, 403, 449, t. s. n., Id.) in his office at the Cebu
Portland Cement in the China Banking Building on Dasmarias street by Jose B. Suntay, Manuel
Lopez and a Chinaman who had all come from Hagonoy (p. 398, t. s. n., Id.); that on that occasion
they brought an envelope (Exhibit A) where the following words were written: "Testamento de Jose
B. Suntay" (pp. 399, 404, t. s. n., Id.); that after the signing of the will it was placed inside the
envelope (Exhibit A) together with an inventory of the properties of Jose B. Suntay and the envelope
was sealed by the signatures of the testator and the attesting witnesses (pp. 398, 401, 441, 443,
461, t. s. n., Id.); that he again saw the envelope (Exhibit A) in his house one Saturday in the later
part of August 1934, brought by Go Toh and it was then in perfect condition (pp. 405-6, 411, 440-2, t.
s. n., Id.); that on the following Monday Go Toh went to his law office bringing along with him the
envelope (Exhibit A) in the same condition; that he told Go Toh that he would charge P25,000 as fee
for probating the will (pp. 406, 440-2, Id.); that Go Toh did not leave the envelope (Exhibit A) either in
his house or in his law office (p. 407, t. s. n., Id.); that Go Toh said he wanted to keep it and on no
occasion did Go Toh leave it to him (pp. 409, 410, t. s. n., Id.).
The testimony of Go Toh taken and heard by Assistant Fiscal F. B. Albert in connection with the
complaint for estafa filed against Manuel Suntay for the alleged snatching of the envelope (Exhibit
A), corroborates the testimony of Alberto Barretto to the effect that only one will was signed by Jose
B. Suntay at his office in which he (Alberto Barretto), Manuel Lopez and Go Toh took part as
attesting witnesses (p. 15, t. s. n., Exhibit 6). Go Toh testified before the same assistant fiscal that he
did not leave the will in the hands of Anastacio Teodoro (p. 26, t. s. n., Exhibit 6). He said, quoting his
own words, "Because I can not give him this envelope even though the contract (on fees) was
signed. I have to bring that document to court or to anywhere else myself." (p. 27, t. s. n., Exhibit 6).
As to the will claimed to have been executed on 4 January 1931 in Amoy, China, the law on the point
in Rule 78. Section 1 of the rule provides:
Wills proved and allowed in a foreign country, according to the laws of such country, may be
allowed, filed, and recorded by the proper Court of First Instance in the Philippines.
Section 2 provides:

When a copy of such will and the allowance thereof, duly authenticated, is filed with a
petition for allowance in the Philippines, by the executor or other person interested, in the
court having jurisdiction, such court shall fix a time and place for the hearing, and cause
notice thereof to be given as in case of an original will presented for allowance.
Section 3 provides:
If it appears at the hearing that the will should be allowed in the Philippines, the court shall
so allow it, and a certificate of its allowance, signed by the Judge, and attested by the seal of
the courts, to which shall be attached a copy of the will, shall be filed and recorded by the
clerk, and the will shall have the same effect as if originally proved and allowed in such court.
The fact that the municipal district court of Amoy, China, is a probate court must be proved. The law
of China on procedure in the probate or allowance of wills must also be proved. The legal
requirements for the execution of a valid will in China in 1931 should also be established by
competent evidence. There is no proof on these points. The unverified answers to the questions
propounded by counsel for the appellant to the Consul General of the Republic of China set forth in
Exhibits R-1 and R-2, objected to by counsel for the appellee, are inadmissible, because apart from
the fact that the office of Consul General does not qualify and make the person who holds it an
expert on the Chinese law on procedure in probate matters, if the same be admitted, the adverse
party would be deprived of his right to confront and cross-examine the witness. Consuls are
appointed to attend to trade matters. Moreover, it appears that all the proceedings had in the
municipal district court of Amoy were for the purpose of taking the testimony of two attesting
witnesses to the will and that the order of the municipal district court of Amoy does not purport to
probate the will. In the absence of proof that the municipal district court of Amoy is a probate court
and on the Chinese law of procedure in probate matters, it may be presumed that the proceedings in
the matter of probating or allowing a will in the Chinese courts are the a deposition or to a
perpetuation of testimony, and even if it were so it does not measure same as those provided for in
our laws on the subject. It is a proceedings in rem and for the validity of such proceedings personal
notice or by publication or both to all interested parties must be made. The interested parties in the
case were known to reside in the Philippines. The evidence shows that no such notice was received
by the interested parties residing in the Philippines (pp. 474, 476, 481, 503-4, t. s. n., hearing of 24
February 1948). The proceedings had in the municipal district court of Amoy, China, may be likened
toe or come up to the standard of such proceedings in the Philippines for lack of notice to all
interested parties and the proceedings were held at the back of such interested parties.
The order of the municipal district court of Amoy, China, which reads as follows:
ORDER:
SEE BELOW
The above minutes were satisfactorily confirmed by the interrogated parties, who declare
that there are no errors, after said minutes were loudly read and announced actually in the
court.
Done and subscribed on the Nineteenth day of the English month of the 35th year of the
Republic of China in the Civil Section of the Municipal District Court of Amoy, China.

HUANG KUANG CHENG

Clerk of Court

CHIANG TENG HWA

Judge

(Exhibit N-13, p. 89 Folder of Exhibits.).

does not purport to probate or allow the will which was the subject of the proceedings. In view
thereof, the will and the alleged probate thereof cannot be said to have been done in accordance
with the accepted basic and fundamental concepts and principles followed in the probate and
allowance of wills. Consequently, the authenticated transcript of proceedings held in the municipal
district court of Amoy, China, cannot be deemed and accepted as proceedings leading to the probate
or allowance of a will and, therefore, the will referred to therein cannot be allowed, filed and recorded
by a competent court of this country.
The decree appealed from is affirmed, without pronouncement as to costs.
Pablo, Bengzon, A. Reyes, Labrador and Concepcion, JJ., concur.

Separate Opinions
PARAS, C.J., dissenting:
As a preliminary statement we may well refer to the case of Maria Natividad Lim Billian, petitioner
and appellant, vs. Apolonio Suntay, Angel Suntay, Manuel Suntay, and Jose Suntay, oppositors and
appellees, 63 Phil., 793-797, in which the following decision was rendered by this Court on
November 25, 1936, holding that the will executed by Jose B. Suntay who died in the City of Amoy,
China, on May 14, 1934, was lost under the circumstances pointed out therein, and ordering the
return of the case to the Court of First Instance of Bulacan for further proceedings:
On May 14, 1934, Jose B. Suntay died in the City of Amoy, China. He married twice, the first
time to Manuela T. Cruz with whom he had several children now residing in the Philippines,
and the second time to Maria Natividad Lim Billian with whom he had a son.
On the same date, May 14, 1934, Apolonio Suntay, eldest son of the deceased by his first
marriage, filed the latter's intestate in the Court of First Instance of Manila (civil case No.
4892).
On October 15, 1934, and in the same court, Maria Natividad Lim Billian also instituted the
present proceedings for the probate of a will allegedly left by the deceased.
According to the petitioner, before the deceased died in China he left with her a sealed
envelope (Exhibit A) containing his will and, also another document (Exhibit B of the

petitioner) said to be a true copy of the original contained in the envelope. The will in the
envelope was executed in the Philippines, with Messrs. Go Toh, Alberto Barretto and Manuel
Lopez as attesting witnesses. On August 25, 1934, Go Toh, as attorney-in-fact of the
petitioner, arrived in the Philippines with the will in the envelope and its copy Exhibit B. While
Go Toh was showing this envelope to Apolonio Suntay and Angel Suntay, children by first
marriage of the deceased, they snatched and opened it and, after getting its contents and
throwing away the envelope, they fled.
Upon this allegation, the petitioner asks in this case that the brothers Apolonio, Angel,
Manuel and Jose Suntay, children by the first marriage of the deceased, who allegedly have
the document contained in the envelope which is the will of the deceased, be ordered to
present it in court, that a day be set for the reception of evidence on the will, and that the
petitioner be appointed executrix pursuant to the designation made by the deceased in the
will.
In answer to the court's order to present the alleged will, the brothers Apolonio, Angel,
Manuel and Jose Suntay stated that they did not have the said will and denied having
snatched it from Go Toh.
In view of the allegations of the petition and the answer of the brothers Apolonio, Angel,
Manuel and Jose Suntay, the questions raised herein are: The loss of the alleged will of the
deceased, whether Exhibit B accompanying the petition is an authentic copy thereof, and
whether it has been executed with all the essential and necessary formalities required by law
for its probate.
At the trial of the case on March 26, 1934, the petitioner put two witnesses upon the stand,
Go Toh and Tan Boon Chong, who corroborated the allegation that the brothers Apolonio and
Angel appropriated the envelope in the circumstances above-mentioned. The oppositors
have not adduced any evidence counter to the testimony of these two witnesses. The court,
while making no express finding on this fact, took it for granted in its decision; but it
dismissed the petition believing that the evidence is insufficient to establish that the envelope
seized from Go Toh contained the will of the deceased, and that the said will was executed
with all the essential and necessary formalities required by law for its probate.
In our opinion, the evidence is sufficient to establish the loss of the document contained in
the envelope. Oppositors' answer admits that, according to Barretto, he prepared a will of the
deceased to which he later become a witness together with Go Toh and Manuel Lopez, and
that this will was placed in an envelope which was signed by the deceased and by the
instrumental witnesses. In court there was presented and attached to the case an open and
empty envelope signed by Jose B. Suntay, Alberto Barretto, Go Toh and Manuel Lopez. It is
thus undeniable that this envelope Exhibit A is the same one that contained the will executed
by the deceased-drafted by Barretto and with the latter, Go Toh and Manuel Lopez as
attesting witnesses. These tokens sufficiently point to the loss of the will of the deceased, a
circumstance justifying the presentation of secondary evidence of its contents and of
whether it was executed with all the essential and necessary legal formalities.
The trial of this case was limited to the proof of loss of the will, and from what has taken
place we deduce that it was not petitioner's intention to raise, upon the evidence adduced by
her, the other points involved herein, namely, as we have heretofore indicated, whether
Exhibit B is a true copy of the will and whether the latter was executed with all the formalities
required by law for its probate. The testimony of Alberto Barretto bears importantly in this
connection.

Wherefore, the loss of the will executed by the deceased having been sufficiently
established, it is ordered that this case be remanded to the court of origin for further
proceedings in obedience to this decision, without any pronouncement as to the costs. So
ordered
On June 18, 1947, Silvino Suntay, the herein petitioner, filed a petition in the Court of First Instance
of Bulacan praying "that an order be issued (a) either directing the continuation of the proceedings in
the case remanded by the Supreme Court by virtue of its decision in G. R. No. 44276 and fixing a
date for the reception of evidence of the contents of the will declared lost, or the allowance, filing and
recording of the will of the deceased which had been duly probated in China, upon the presentation
of the certificates and authentications required by Section 41, Rule 123 (Yu
Chengco vs. Tiaoqui supra), or both proceedings concurrently and simultaneously; (b) that letters of
administration be issued to herein petitioner as co-administrator of the estate of the deceased
together with Federico Suntay; and (c) that such other necessary and proper orders be issued which
this Honorable Court deems appropriate in the premises." While this petition was opposed by
Federico C. Suntay, son of the deceased Jose B. Suntay with his first wife, Manuela T. Cruz, the
other children of the first marriage, namely, Ana Suntay, Aurora Suntay, Concepcion Suntay, Lourdes
Guevara Vda. de Suntay, Manuel Suntay and Emiliano Suntay, filed the following answer stating that
they had no opposition thereto; "Come now the heirs Concepcion Suntay, Ana Suntay, Aurora
Suntay, Lourdes Guevara Vda. de Suntay, Manuel Suntay, and Emiliano Suntay, through their
undersigned attorney, and, in answer to the alternative petition filed in these proceedings by Silvino
Suntay, through counsel, dated June 18, 1947, to this Honorable Court respectfully state that, since
said alternative petition seeks only to put into effect the testamentary disposition and wishes of their
late father, they have no opposition thereto."
After hearing, the Court of First Instance of Bulacan rendered on April 19, 1948, the following
decision:
This action is for the legalization of the alleged will of Jose B. Suntay, deceased.
In order to have a comprehensive understanding of this case, it is necessary to state the
background on which the alternative petition of the herein petitioner Silvino Suntay has been
based.
The decision of the Supreme Court (Exhibit O), in re will of the deceased Jose B. Suntay, 63
Phil., 793-797, is hereunder produced:
(As quoted above)
The above quoted decision of the Supreme Court was promulgated on November 25, 1936
(Exhibit O).
The Clerk of the Court of Court of First Instance of Bulacan notified the parties of the
decision on December 15, 1936; and the case was set for hearing on February 12, 1937, but
it was transferred to March 29, 1937 (Exhibit O), on motion of the then petitioner Maria
Natividad Lim Billian (Exhibit F). Again, it was postponed until "further setting" in the order of
court dated March 18, 1937, upon motion of the petitioner (Exhibit H).
In the meantime, the deposition of Go Toh was being sought (Exhibit H).

The hearing of the case was again set for February 7, 1936, by order of the court dated
January 5, 1938, upon motion of Emiliano Suntay and Jose Suntay, Jr. On the same day of
the hearing which had been set, the petitioner, then, Maria Natividad Lim Billian, sent a
telegram from Amoy, China, addressed to the Court of First Instance of Bulacan moving for
the postponement of the hearing on the ground that Atty. Eriberto de Silva who was
representing her died (Exhibit K). The court, instead of granting the telegraphic motion for
postponement, dismissed the case in the order dated February 7, 1938 (Exhibit L).
On July 3, 1947, the petitioner Silvino Suntay filed a motion for the consolidation of the
intestate Estate of the deceased Jose B. Suntay, Special Proceeding No. 4892 and the
Testate Estate of Jose B. Suntay, Special Proceeding No. 4952, which latter case is the
subject of the said alternative petition. The motion for the merger and consolidation of the
two cases was granted on July 3, 1947.
That oppositor, Federico C. Suntay, in the Testate Proceeding filed a motion to dismiss the
alternative petition on November 14, 1947, which was denied by the court in its resolution of
November 22, 1947. The said oppositor not being satisfied with the ruling of this court
denying the motion to dismiss, filed before the Supreme Court a petition for a writ
of certiorari with preliminary injunction, which was dismissed for lack of merit on January 27,
1948.
In obedience to the decision of the Supreme Court (Exhibit O) and upon the alternative
petition of Silvino Suntay, and, further, upon the dismissal of the petition for a writ
of certiorari with preliminary injunction, the court was constrained to proceed with the hearing
of the probate of the lost will, the draft of which is Exhibit B, or the admission and recording
of the will which had been probated in Amoy, China.
The evidence for the petitioner, Silvino Suntay, shows that Jose B. Suntay married twice; first
to Manuela T. Cruz who died on June 15, 1920 and had begotten with her Apolonio, now
deceased, Concepcion, Angel, Manuel, Federico, Ana, Aurora, Emiliano and Jose, Jr., all
surnamed Suntay, and second, to Maria Natividad Lim Billian with whom he had as the only
child Silvino Suntay, the petitioner herein.
Some time in November 1929, Jose B. Suntay executed his last will and testament in the
office of Atty. Alberto Barretto in Manila, which was witnessed by Alberto Barretto, Manuel
Lopez and Go Toh. The will was prepared by said Alberto Barretto upon the instance of Jose
B. Suntay, and it was written in the Spanish language which was understood and spoken by
said testator. After the due execution of the will, that is signing every page and the attestation
clause by the testator and the witnesses in the presence of each other, the will was placed
inside the envelope (Exhibit A), sealed and on the said envelope the testator and the three
subscribing witnesses also signed, after which it was delivered to Jose B. Suntay.
A year or so after the execution of the will, Jose B. Suntay together with his second wife
Maria Natividad Lim Billian and Silvino Suntay who was then of tender age went to reside in
Amoy, Fookien, China, where he died on May 14, 1934. The will was entrusted to the widow,
Maria Natividad Lim Billian.
Upon the death of Jose B. Suntay on May 14, 1934, Apolonio Suntay, the oldest son now
deceased, instituted the Intestate Proceedings No. 4892, upon the presumption that no will
existed. Maria Natividad Lim Billian who remained in Amoy, China, had with her the will and
she engaged the services of the law firm of Barretto and Teodoro for the probate of the will.
Upon the request of the said attorneys the will was brought to the Philippines by Go Toh who

was one of the attesting witnesses, and it was taken to the law office of Barretto and
Teodoro. The law firm of Barretto and Teodoro was composed of Atty. Alberto Barretto and
Judge Anastacio Teodoro. The probate of the will was entrusted to the junior partner Judge
Anastacio Teodoro; and, upon the presentation of the sealed envelope to him, he opened it
and examined the said will preparatory to the filing of the petition for probate. There was a
disagreement as to the fees to be paid by Maria Natividad Lim Billian, and as she (through
Go Toh) could not agree to pay, P20,000 as fees, the will was returned to Go Toh by Judge
Anastacio Teodoro after the latter had kept it in his safe, in his office, for three days.
Subsequently, the will inside the envelope was snatched from Go Toh by Manuel Suntay and
Jose, Jr., which fact has been established in the decision of the Supreme Court at the
beginning of this decision. Go Toh could recover the envelope (Exhibit A) and the piece of
cloth with which the envelope was wrapped (Exhibit C).
The Testate Proceeding was filed nevertheless and in lien of the lost will a draft of the will
(Exhibit B) was presented as secondary evidence for probate. It was disallowed by this court
through Judge Buenaventura Ocampo, but on appeal the Supreme Court remanded the
case to this court for further proceeding (Exhibit C).
In the meantime, a Chinese will which was executed in Amoy Fookien, China, on January 4,
1931, by Jose B. Suntay, written in Chinese characters (Exhibit P) was discovered in Amoy,
China, among the papers left by Jose B. Suntay, and said will had been allowed to probate in
the Amoy District Court, China, which is being also presented by Silvino Suntay for
allowance and recording in this court.
The said petition is opposed by Federico C. Suntay on the main ground that Maria Natividad
Lim Billian and Silvino Suntay have no more interest in the properties left by Jose B. Suntay,
because they have already sold their respective shares, interests and participations. But
such a ground of opposition is not of moment in the instant case, because the proposition
involved herein in the legalization of the lost will or the allowance and recording of the will
which had been probated in Amoy, China.
It is now incumbent upon this court to delve into the evidence whether or not Jose B. Suntay,
deceased, left a will (the draft of which is Exhibit B) and another will which was executed and
another will which was executed and probated in Amoy, China.
There is no longer any doubt that Jose B. Suntay while he was still residing in the
Philippines, had executed a will; such is the conclusion of the Supreme Court in its decision
(Exhibit O). That the will was snatched and it has never been produced in court by those who
snatched it, and consequently considered lost, is also an established fact.
The contention of the oppositor, Federico C. Suntay, is that the will that was executed by
Jose B. Suntay in the Philippines contained provisions which provided for equal distribution
of the properties among the heirs; hence, the draft (Exhibit B) cannot be considered as
secondary evidence, because it does not provide for equal distribution, but if favors Maria
Natividad Lim Billian and Silvino Suntay. He relies on the testimony of Atty. Alberto Barretto
who declared that the first will which he drafted and reduced into a plain copy was the will
that was executed by Jose B. Suntay and placed inside the envelope (Exhibit A).
Granting that the first will which Atty. Alberto Barretto had drafted became the will of Jose B.
Suntay and it was snatched by, and, therefore, it had fallen into the hands of, Manuel Suntay
and the brothers of the first marriage, it stands to reason that said Manuel Suntay and

brothers would have been primarily interested in the production of said will in court, for
obvious reasons, namely, that they would have been favored. But it was suppressed and
"evidence willfully suppressed would be adverse if produced" (Section 69 (e), Rule 123 of the
Rules of Court). The contention, therefore, that the first will which was drafted by Atty.
Barretto was the one placed inside the envelope (Exhibit A) is untenable.
It might be said in this connection that the draft of the will (Exhibit B) has been admitted by
Atty. Alberto Barretto as identical in substance and form to the second draft which he
prepared in typewriting; it differs only, according to him, in style. He denied that the insertions
in long hand in the said draft are in his own handwriting; however, Judge Anastacio Teodoro
averred that the said insertions are the handwriting of Atty. Alberto Barretto. But when Atty.
Alberto Barretto was asked to show any manuscript of his for purposes of comparison, he
declined to do so alleging that he did not have any document in his possession showing his
handwriting notwithstanding the fact that he was testifying in his own house at 188 Sta. Mesa
Boulevard, Manila. He further testified that the first will be drafted contained four or five
pages, but the second draft contained twenty-three pages; that he declared in one breath
that he did not read the will any more when it was signed by the testator and the attesting
witnesses because it would take up much time, and in the same breath he declared that he
checked it before it was signed; and that he destroyed the draft of the first will which was in
his own handwriting, but he delivered the draft of the second will which he prepared to Jose
B. Suntay in the presence of Manuel Lopez, now deceased.
Whether or not the final plain copy of the draft of the will (Exhibit B) was executed by the
testator, Jose B. Suntay, and attested by the subscribing witnesses, Atty. Alberto Barretto,
Manuel Lopez and Go Toh, is the pivotal point in this instant case. Judge Anastacio Teodoro
testified that he opened the sealed envelope when it was given to him by Go Toh preparatory
to the presentation of the petition for the probate of the said will. As the lawyer entrusted with
that task, he had to examine the will and have it copied to be reproduced or appended to the
petition. He could not do otherwise if he is worth salt as a good lawyer; he could not perform
the stunt of "blind flying" in the judicial firmament. Every step must be taken with certainty
and precision under any circumstances. He could not have talked about the attorney's fees
with Go Toh, unless he has not examined the will beforehand. And, declaring that it was the
exact draft of the will that was inside the envelope (Exhibit A), the testimony of Atty. Alberto
Barretto to the contrary notwithstanding.
The testimony of Judge Anastacio Teodoro is corroborated by Go Toh, one of the attesting
witnesses, in his deposition (Exhibit D-1).
Ana Suntay, one of the heirs and who would be affected adversely by the legalization of the
will in question, also testified on rebuttal that she saw the original will in the possession of
Manuel Suntay, immediately after the snatching. She read it and she particularly remembers
the manner in which the properties were to be distributed. Exhibit B was shown to her on the
witness stand and she declared that the provision regarding the distribution of the properties
in said Exhibit B is the same as that contained in the original will. Said testimony of Ana
Suntay, therefore, belies the testimony of Atty. Alberto Barretto.
With respect to the proof of lost or destroyed will, Section 6 of Rule 77 provides as follows:
"No will shall be proved as a lost or destroyed will unless the execution and validity of the
same be established, and the will is proved to have been in existence at the time of the
death of the testator, or it is shown to have been fraudulently or accidentally destroyed in the
lifetime of the testator without his knowledge, nor unless its provisions are clearly and

distinctly proved by at least two credible witnesses. When a lost will is proved, the provisions
thereof must be distinctly stated and certified by the judge, under the seal of the court, and
the certificate must be filed and recorded as other wills are filed and recorded."
Section 8 of the same Rule provides as follows:
"If it appears at the time fixed for the hearing that the subscribing witnesses are dead or
insane, or that none of them resides in the Philippines the court may admit the testimony of
other witnesses to prove the sanity of the testator, and the due execution of the will; and as
evidence of the due execution of the will, it may admit proof of the handwriting of the testator
and of the subscribing witnesses, or any of them."
Manuel Lopez as one of the subscribing witnesses is dead. Atty. Alberto Barretto and Go Toh
are still living. The former testified during the hearing, while Go Toh's deposition was
introduced in evidence which was admitted. In the absence of the testimony of Manuel
Lopez, deceased, the testimony of Judge Anastacio Teodoro and Ana Suntay was received.
It is an established fact that the will, draft of which is Exhibit B, was lost or destroyed; that it
was executed and valid and that it existed at the time of the death of Jose B. Suntay. These
circumstances also apply to the will (Exhibit P) which was executed in Amoy, China.
The contents of the Chinese will is substantially the same as the draft (Exhibit B). Granting
that the will executed in the Philippines is non-existent as contended by the oppositor,
although the findings of this court is otherwise, the will executed and probated in China
should be allowed and recorded in this court. All the formalities of the law in China had been
followed in its execution, on account of which it was duly probated in the Amoy District Court.
There is no cogent reason, therefore, why it should not be admitted and recorded in this
jurisdiction.
The said will (Exhibit P) in Chinese characters is presented as an alternate in case the will
executed in the Philippines would not be allowed to probate, or as a corroborative evidence
that the will, the draft of which is Exhibit B, has been duly executed in the Philippines by Jose
B. Suntay.
Rule 78 of the Rules of Court covers the allowance of will proved outside of the Philippines
and administration of estate thereunder.
Section 1 of said rule provides:
"Wills proved and allowed in the United States, or any state or territory thereof, or in foreign
country, according to the laws of such state, territory, or country, may be allowed, filed, and
recorded by the proper Court of First Instance in the Philippines."
Section 2 of the same rule provides:
"When a copy of such will and the allowance thereof, duly authenticated, is filed with a
petition for allowance in the Philippines, by the executor or other person interested, in the
court having jurisdiction, such court shall fix a time and place for the hearing, and cause
notice thereof to be given as in case of an original will presented for allowance."

This court has delved deep into the evidence adduced during the hearing with that
penetrating scrutiny in order to discovery the real facts; it had used unsparingly the judicial
scapel; and it has winnowed the evidenced to separate the grain from the chaff. All the facts
lead to the inevitable conclusion that Jose B. Suntay, in his sound and disposing mind and
not acting under duress or undue influence, executed the will which is lost, the draft of which
is Exhibit B, with all the necessary formalities prescribed by law. He, likewise, executed the
second will (Exhibit P) in Amoy, China, which has been duly probated in Amoy District Court,a corroborative evidence that the testator really executed the will. Copies of the said wills
duly certified and under the seal of the court are appended hereto, marked Exhibits B and P,
and they form part of this decision.
In view of the foregoing considerations, the court is of the opinion and so declares that the
draft of the will (Exhibit B) is, to all legal intents and purposes, and testament of the
deceased Jose B. Suntay. With costs against the oppositor, Federico C. Suntay.
Oppositor Federico C. Suntay filed on May 20, 1948, a motion for new trial and to set aside the
decision rendered on April 19, 1948, to which the petitioner filed an opposition, followed by a reply
filed by the oppositor and an answer on the part of the petitioner. Without reopening the case and
receiving any new or additional evidence, the Court of First Instance of Bulacan, on September 29,
1948, promulgated the following resolution setting aside his first decision and disallowing the wills
sought to be probated by the petitioner in his alternative petition filed on June 18, 1947:
This is a motion for new trial and to set aside the decision legalizing the will of Jose B.
Suntay and allowing and recording another will executed by him in Amoy, China.
By virtue of this motion, this court is constrained to go over the evidence and the law
applicable thereto with the view of ascertaining whether or not the motion is well founded.
Both parties have presented extensive memoranda in support of their respective
contentions.
This court has gone over the evidence conscientiously, and it reiterates its findings of the
same facts in this resolution, whether or not the facts established by the petitioner, Silvino
Suntay, warrant the legalization of the lost will and the allowance and recording of the will
that was executed in Amoy, China, is therefore, the subject of this instant motion.
A. As to the legalization of the Lost Will. There is no question in the mind of this court that
the original will which Jose B. Suntay, deceased executed in the Philippines in the year 1929
was lost (Exhibit O, Decision of the Supreme Court). The evidence adduced by the petitioner
during the hearing has established through the testimony of Judge Anastacio Teodoro and
that of Go Toh (an attesting witness) that the will was executed by Jose B. Suntay, deceased,
with all the formalities required by law. For the purpose of legalizing an original and existing
will, the evidence on record is sufficient as to the execution and attesting in the manner
required by law.
Section 8 of Rule 77 provides as follows:
"SEC. 8. Proof when witnesses dead or insane or do not reside in the Philippines. If it
appears at the time fixed for the hearing that the subscribing witnesses are dead or insane,
or that none of them resides in the Philippines, the court may admit the testimony of other
witnesses to prove the sanity of the testator, and the due execution of the will; and as
evidence of the execution of the will, may admit proof of the handwriting of the testator and
of the subscribing witnesses, or any of them."

Section 11 of said rule also provides as follows:

"SEC. 11. Subscribing witnesses produced or accounted for where contest. If the will is
contested, all the subscribing witnesses present in the Philippines and not insane, must be
produced and examined, and the death, absence, or insanity of any of them must be
satisfactorily shown to the court. If all or some of the subscribing witnesses are present in the
Philippines, but outside the province where the will has been filed, their deposition must be
taken. If all or some of the subscribing witnesses produced and examined testify against the
due execution of the will, or do not remember having attested to it, or are otherwise of
doubtful credibility, the will may be allowed if the court is satisfied from the testimony of other
witnesses and from all the evidence presented that the will was executed and attested in the
manner required by law."
The three attesting witnesses were Manuel Lopez, deceased Alberto Barretto and Go Toh.
The last two witnesses are still living; the former testified against and the latter in favor. In
other words, the attesting witness, Go Toh, only, testified in his deposition in favor of the due
execution of the will. Hence, the petitioner presented another witness, Judge Anastacio
Teodoro, to establish and prove the due execution of the said will. Ana Suntay was also
presented as a witness in rebuttal evidence. The testimony of Go Toh in his deposition as an
attesting witness, coupled with the testimony of Judge Anastacio Teodoro who was able to
examine the original will that was executed by Jose B. Suntay, deceased, when it was given
to him by Go Toh for the purpose of filing the petition in court for its legalization, and could
recognize the signatures of the testator as well as of the three attesting witnesses on the
said original will is sufficient to convince the court that the original will was executed by the
deceased Jose B. Suntay with all the formalities required by law. The original will, therefore,
if it was presented in court to probate would be allowed to all legal intents and purposes. But
it was not the original will that was presented, because it was lost, but an alleged draft
(Exhibit B) of the said original will which does not bear the signature of the testator and any
of the attesting witness. The original will was duly executed with all the formalities required
by law, but it was unfortunately lost; and the curtain falls for the next setting.
The Court is now confronted with the legalization of the lost will whether or not the draft
(Exhibit B) should be admitted as secondary evidence in lieu of the lost will and allowed to
probate.
Section 6. Rule 77 provides as follows:
"SEC. 6. Proof of lost or destroyed will Certificate thereupon. No will shall be proved as
a lost will or destroyed will unless the execution and validity of the same be established, and
the will is proved to have been in existence at the time of the death of the testator, or is
shown to have been fraudulently or accidentally destroyed in the lifetime of the testator
without his knowledge, nor unless its provisions are clearly and distinctly proved by at least
two credible witnesses. When a lost will is proved, the provisions thereof must be distinctly
stated and certified by the Judge, under the seal of the court and the certificate must be filed
and recorded as other wills are filed and recorded." (Emphasis Court's)
From the above quoted provision of the law, it is clear that the petitioner should not only
establish the execution and validity of the will, its existence at the time of the death of the
testator or its fraudulent and accidental destruction in the lifetime of the testator without his
knowledge, but also must prove its provisions clearly and distinctly by at least two credible
witnesses. The exact language of the clause in the above quoted provision of the law is "nor
unless its provisions are clearly and distinctly proved by at least two credible witnesses." The

legalization of a lost will is not so easy, therefore, as that of an original will. The question,
therefore, is boiled down to, and projected on the screen, in a very sharp focus; namely, the
execution and validity must be established and the provisions must be clearly and distinctly
proved by at least credible witnesses.
Granting that the execution and validity of the lost will have been established through the
testimony of Judge Anastacio Teodoro and Go Toh, and perhaps superficially by the rebuttal
witness, Ana Suntay, does it follow that the provisions of the lost will have been clearly and
distinctly proved by at least two credible witnesses? A careful review of the evidence has
revealed that at most the only credible witness who testified as to the provisions of the will
was Judge Anastacio Teodoro, and yet he testified on the provisions of the lost will with the
draft (Exhibit B) in his hands while testifying. It may be granted, however, that with or without
the draft of the will (Exhibit B) in his hands, he could have testified clearly and distinctly on
the provisions of the said lost will, because he had kept the will in his safe, in his office, for
three days, after opening it, and he is well versed in Spanish language in which the will as
written. But did the attesting witness Go Toh, testify in his deposition and prove clearly and
distinctly the provisions of the lost will? He did not, and he could not have done so even if he
tried because the original will was not read to him nor by him before or at the signing of the
same. It was written in Spanish and he did not and does not understand the Spanish
language. Neither was there any occasion for him to have the contents of the said will, after
its execution and sealing inside the envelope (Exhibit A), read to him because it was opened
only when Judge Teodoro had examined it and then subsequently snatched from Go Toh.
Ana Suntay on rebuttal did not, likewise, prove clearly and distinctly the provisions of the
said lost will because she has not had enough schooling and she does possess adequate
knowledge of the Spanish language as shown by the fact that she had to testify in Tagalog
on the witness standing.
It is evident, therefore, that although the petitioner has established the execution and validity
of the lost will, yet he had not proved clearly and distinctly the provisions of the will by at
least two credible witnesses.
B. As to the Allowance and Recording of the will Executed in Amoy, China. Jose B.
Suntay, while he was residing in China during the remaining years of his life, executed also a
will, written in Chinese characters, the translation of which is marked Exhibit P. It was
allowed to probate in the District Court of Amoy, China. The question is whether or not the
said will should be allowed and recorded in this jurisdiction.
Section 1 of Rule 78 provides as follows:
"SEC. 1. Will proved outside Philippines any be allowed here. Will proved and allowed in
the United States, or any state or territory thereof, or in a foreign country, according to the
laws of such state, territory, or country, may be allowed, filed, and recorded by the proper
court of First Instance in the Philippines."
Section 2 of the same Rule also provides:
"SEC. 2. Notice of hearing for allowance. When a copy of such will and the allowance
thereof, duly authenticated, is filed with a petition for allowance in the Philippines by the
executor or other persons interested, in the Court having jurisdiction, such court shall fix a
time and place for the hearing, and cause notice thereof to be given as in case of an original
will presented for allowance."

Sections 41 and 42 of Rule 123 provides as follows:

"SEC. 41. Proof of Public or official record. An official record or an entry therein, when
admissible for any purpose, may be evidenced by an official publication thereof or by a copy
attested by the officer having the legal custody of the record, or by his deputy, and
accompanied, if the record is not kept in the Philippines, with a certificate that such officer
has the custody. If the office in which the record is kept is within the United States or its
territory, the certificate may be made by a judge of a court of record of the district or political
subdivision in which the record is kept, authenticated by the seal of the court, or may be
made by any public officer having a seal of the office and having official duties in the district
or political subdivision in which the record is kept, authenticated by the seal of his office. If
the office in which the record is kept is in a foreign country, the certificate may be made by a
secretary of embassy or legation, consul general, consul, vice consul, or consular agent or
by any officer in the foreign service of the United States stationed in the foreign country in
which the record is kept, and authenticated by the seal of his office."
F. "SEC. 42. What attestation of copy must state. Whenever a copy of writing is attested
for the purpose of evidence, the attestation must state, in substance, that the copy is a
correct copy of the original, or a specific part thereof, as the case may be. The attestation
must be under the official seal of the attesting officer, if there be any, or if he be the clerk of a
court having a seal, under the seal of such court."
In the case of Yu Changco vs. Tiaoqui, 11 Phil. 598, 599, 600, our Supreme Court said:
"Section 637 of the Code of Civil Procedure says that will proved and allowed in a foreign
country, according to the laws of such country, may be allowed, filed, and recorded in the
Court of First Instance of the province in which the testator has real or personal estate on
which such will may operate; but section 638 requires that the proof of the authenticity of a
will executed in a foreign country must be duly "authenticated". Such authentication,
considered as a foreign judicial record, is prescribed by section 304, which requires the
attestation of the clerk or of the legal keeper of the records with the seal of the court
annexed, if there be a seal, together with a certificate of the chief judge or presiding
magistrate that the signature of either of the functionaries attesting the will is genuine, and,
finally, the certification of the authenticity of the signature of such judge or presiding
magistrate, by the ambassador, minister, consul, vice consul or consular agent of the United
States in such foreign country. And, should the will be considered, from an administrative
point of view, as a mere official document 'of a foreign country', it may be proved, 'by the
original, or by a copy certified by the legal keeper thereof, with a certificate, under the seal of
the country or sovereign, that the document is a valid and subsisting document of such
country, and that the copy is duly certified by the officer having the legal custody of the
original. (Sec. 313, par. 8)."
In the case of Fluemer vs. Hix, 54 Phil. 610, 611, 612, and 613, our Supreme Court said:
"It is the theory of the petitioner that the alleged will was executed in Elkins, West Virginia, on
November 3, 1925, by Hix who had his residence in that jurisdiction, and that the laws of
West Virginia govern. To this end, there was submitted a copy of section 3868 of Acts 1882,
c. 84 as found in West Virginia Code, Annotated, by Hogg, Charles E., Vol. 2, 1914, p. 1690,
and as certified to by the Director of the National Library. But this was far from compliance
with the law. The laws of a foreign jurisdiction do not prove themselves in our courts. The
courts of the Philippine Islands are not authorized to take judicial notice of the laws of the
various States of the American Union. Such laws must be proved as facts. (In re Estate of

Johnson (1918), 39 Phil., 156.) Here the requirements of the law were not met. There was
not showing that the book from which an extract was taken was printed or published under
the authority of the State of West Virginia, as provided in section 300 of the Code of Civil
Procedure. Nor was the extract from the law attested by the certificate of the officer having
charge of the original under the seal of the State of West Virginia, as provided in section 301
of the Code of Civil Procedure. No evidence was introduced to show that the extract from the
laws of West Virginia was in force at the time the alleged will was executed.
"It was also necessary for the petitioner to prove that the testator had his domicile in West
Virginia and not in the Philippine Islands. The only evidence introduced to establish this fact
consisted of the recitals in the alleged will and the testimony of the petitioner.
"While the appeal was pending submission in this court, the attorney for the appellant
presented an unverified petition asking the court to accept as part of the evidence the
documents attached to the petition. One of these documents discloses that a paper writing
purporting to be the last will and testament of Edward Randolph Hix, deceased, was
presented for probate on June 8, 1929, to the clerk of Randolph County, State of West
Virginia, in vacation, and was duly proven by the oaths of Dana Vansley and Joseph L.
Madden, the subscribing witnesses thereto, and ordered to be recorded and filed. It was
shown by another document that in vacation, on June 8, 1929, the clerk of court of Randolph
County, West Virginia, appointed Claude E. Maxwell as administrator, cum testamento
annexo, of the estate of Edward Randolph Hix, deceased ... However this may be no attempt
has been made to comply with the provisions of sections 637, 638, and 639 of the Code of
Civil Procedure, for no hearing on the question of the allowance of a will said to have been
proved and allowed in West Virginia has been requested. ... ."
Granting that the will of Jose B. Suntay which was executed in Amoy, China, was validly
done in accordance with the law of the Republic of China on the matter, is it necessary to
prove in this jurisdiction the existence of such law in China as a prerequisite to the allowance
and recording of said will? The answer is in the affirmative as enunciated in
Fluemer vs. Hix, supra, and in Yanez de Barnuevo vs. Fuster, 29 Phil., 606. In the latter
case, the Supreme Court said:
"A foreign law may be proved by the certificate of the officer having in charge of the original,
under the seal of the state or country. It may also be proved by an official copy of the same
published under the authority of the particular state and purporting to contain such law.
(Secs. 300 and 301, Act No. 190.), (Syllabus.)
The provisions of section 300 and 301 of the Code of Civil Procedure (Act No. 190) are as
follows:
"SEC. 300. Printed laws of the State or Country. Books printed or published under the
authority of the United States, or one of the States of the United States, or a foreign country,
and purporting to contain statutes, codes, or other written law of such State or country or
proved to be commonly admitted in the tribunals of such State or country an evidence of the
written law thereof, are admissible in the Philippine Islands are evidence of such law."
"SEC. 301. Attested copy of foreign laws. A copy of the written law or other public writing
of any state or country, attested by the certificate of the officer having charge of the original,
under the seal of the state or country, is admissible as evidence of such law or writing."

The petitioner has presented in evidence the certification of the Chinese Consul General,
Tsutseng T. Shen, of the existence of the law in China (Exhibit B-3), relative to the execution
and probate of the will executed by Jose B. Suntay in Amoy, China (Exhibit P). Is that
evidence admissible, in view of the provisions of Sections 41 and 42 of the Rules of the
Rules of Court. Is the said certification of the Chinese Consul General in the Philippines a
substantial compliance with the provisions of the above mentioned section 41 and 42 of our
Rules of Court?
This court has its doubts as to the admissibility in evidence of the Chinese Consul General in
the Philippines of the existence of the laws of Republic of China relative to the execution and
probate of a will executed in China. Such law may exist in China, but
"An official record or an entry therein, when admissible for any purpose, may be evidence by
an official publication thereof or by a copy attested by the officer having the legal custody of
the record, or by his deputy, and accompanied, if the record is not kept in the Philippines,
with a certificate that such officer has the custody. ... If the office in which the record is kept is
in a foreign country, the certificate may be made by a secretary of embassy or legation,
consul general, consul, vice consul, or consular agent or by any officer in the foreign service
of the United States stationed in the foreign country in which the record is kept, and
authenticated by the seal of his office." (Sec. 41 of Rule 123.)
The law of the Republic of China is a public or official record and it must be proved in this
jurisdiction through the means prescribed by our Rules of Court. It is, therefore, obvious that
the Chinese Counsel General in the Philippines who certified as to the existence of such law
is not the officer having the legal custody of the record, nor is he a deputy of such officer.
And, if the office in which the record is kept is in a foreign country, the certificate may be
made by a secretary of embassy or legation, consul general, consul, vice consul, or consular
agent or by any officer in the foreign service of the United States stationed in the foreign
country in which the record is kept, and authenticated by the seal of his office.
It is clear, therefore, that the above provisions of the Rules of Court (Rule 123, sec. 41) not
having been complied with, the doubt of this court has been dissipated, and it is of the
opinion and so holds that the certification of the Chinese Consul General alone is not
admissible as evidence in the jurisdiction.
The evidence of record is not clear as to whether Jose B. Suntay, who was born in China,
but resided in the Philippines for a long time, has become a Filipino citizen by naturalization,
or he remained a citizen of the Republic of China. The record does not, likewise, show with
certainty whether or not he had changed his permanent domicile from the Philippines to
Amoy, China. His change of permanent domicile could only be inferred. But the question of
his permanent domicile pales into insignificance in view of the overtowering fact that the law
of China pertinent to the allowance and recording of the said will in this jurisdiction has been
satisfactorily established by the petitioner.
Both the petitioner and the oppositor have extensively urged in their respective
memorandum and in the oral argument in behalf of the oppositor the question of estoppel.
The consideration of the points raised by them would open the door to the appreciation of
the intrinsic validity of the provisions of the will which is not of moment at the present stage of
the proceeding. While the probate of a will is conclusive as to the compliance with all formal
requisites necessary to the lawful execution of the will, such probate does not affect the
intrinsic validity of the provisions of the will. With respect to the latter the will in governed by
the substantive law relative to descent and distribution. (In re Johnson, 39 Phil., 157).

IN VIEW OF THE FOREGOING, and upon reconsideration, the previous decision rendered
in this case allowing the will (Exhibit B) and allowing and recording the foreign will (Exhibit P)
is set aside; and this court is of the opinion and so holds that the said two wills should be, as
they are hereby disallowed. Without special pronouncement as to costs.
It is very significant that in the foregoing resolution, the Court of First Instance of Bulacan "reiterates
its finding of the same facts in this resolution," and merely proceeds to pose the sole question
"whether or not the facts established by the petitioner, Silvino Suntay, warrant the legalization of the
lost will and allowance and recording of the will that was executed in Amoy, China." The somersault
executed by the trial court is premised on the ground that "although the petitioner has established
the execution and validity of the lost will, yet he has not proved clearly and distinctly the provisions of
the will by the least two credible witnesses"; and that, assuming that the will of Jose B. Suntay
executed in Amoy, China, was in accordance with the law of the Republic of China, the certification
of the Chinese Consul General in the Philippines as the existence of such law is not admissible
evidence in this jurisdiction. In effect the resolution on the motion for reconsideration promulgated by
the trial court, and the decision of the majority herein, adopt the position that the testimony of Judge
Anastacio Teodoro as to the provisions of the lost will, while credible and perhaps sufficient in extent,
is not corroborated by the witnesses Go Toh and Ana Suntay and, therefore, falls short of the
requirement in section 6, Rule 77, of the Rules of Court that the provisions of the lost will must be
"clearly and distinctly proved by at least two witnesses." That this requirement was obviously
construed, to mean that the exact provisions are to be established, may be deduced from the
following dialogue between his Honor, Judge Potenciano Pecson, and attorney Teofilo Sison, new
counsel for oppositor Federico C. Suntay, who appeared for the first time at the ex parte hearing of
the oppositor's motion for new trial on September 1, 1949:
COURT: However, Rule 77, Section 6, provides in proving a lost will, the provisions of the
lost will must be distinctly stated and certified by the Judge.
ATTY. TEOFILO SISON: Yes, Your Honor.
COURT: That presupposes that the judge could only certify to the exact provisions of the will
from the evidence presented.
ATTY. TEOFILO SISON: That is our contention, provided that provision is clearly established
by two credible witnesses so that the Court could state that in the decision, we agree, that is
the very point.
(t. s. n. 75, Session of Sept. 1, 1948)
The sound rule, however, as we have found it to be, as to the degree of proof required to establish
the contents of a lost or destroyed will, is that there is sufficient compliance if two witnesses have
substantiated the provisions affecting the disposition of the testator's properties; and this is
especially necessary to prevent the "perpetration of fraud by permitting a presumption to supply the
suppressed proof," to keep a wrong-doer from utilizing the rule as his "most effective weapon," or to
avoid the enjoyment of a "premium from the rascality of one whose interests might suggest the
destruction of a will."
Section 1865 of the Code requires that the provisions of a lost will must be clearly and
distinctly proved by at least two credible witnesses before it can be admitted to probate; but
this section must receive a liberal construction (Hook vs. Pratt, 8 Hun. 102-109) and its spirit
is complied with by holding that it applies only to those provisions which affect the disposition
of the testator's property and which are of the substance of the will.

The allegations of the contents of the will are general, and under ordinary circumstances,
would be in sufficient; but the fact alleged, if proven as alleged, would certainly authorize the
establishment of the will so far as its bequests are concerned. To require that a copy of the
will or the language of the bequests, in detail, should be pleaded, where no copy has been
preserved, and where the memory of the witnesses does not hold the exact words, would not
only deny the substance for mere form, but would offer a premium upon the rascality of one
whose interests might suggest the destruction of a will. As said in Anderson vs. Irwin, 101 Ill.
411: "The instrument in controversy having been destroyed without the fault of the defendant
in error ... and there not appearing to be any copy of it in existence, it would be equivalent to
denying the complainant relief altogether to require her to prove the very terms in which it
was conceived. All that could reasonably be required of her under the circumstances could
be to show in general terms the disposition which the testator made of his property by the
instruments; that it purported to be his will and was duly attested by the requisite number of
witnesses." In Allison vs. Allison, 7 Dana 91, it was said in speaking of the character and
extent of proof required in such a case:" nor is there any just ground to object to the proof
because the witnesses have not given the language of the will or the substance
thereof. They have given the substance of the different devises as to the property or interest
devised, and to whom devised and we would not stop, in the case of a destroyed will, to
scan with rigid scrutiny the form of the proof, provided we are satisfied of the substance of its
provisions." (Jose vs. Casler 139 Ind. 392, 38 N. E. 812).
The evidence in the case falls short of establishing the existence of such a writing, except as
it may be presumed, under the maxim Omnia preasumuntur in odium spoliateris." There was
evidence tending to show that the second will of Anne Lambie was in the possession of
Francis Lambie, and that it came to the hands of the proponents, warranting the inference
that it has been suppressed or destroyed. If from this evidence the jury found such paper
destroyed the law permits the presumption that it was legally drawn and executed,
notwithstanding the terms of the statute, which requires the revoking instrument to be
formally executed. If a will be lost, secondary evidence may be given of its contents; if
suppressed or destroyed, the same is true; and, if necessary the law will prevent the
perpetration of a fraud by permitting a presumption to supply the suppressed proof. We
cannot assent to the proposition that the statute is so right as to be the wrongdoer's most
effective weapons. The misconduct once established to the satisfaction of the jury, it is no
hardship to the wrongdoer to say. "Produce the evidence in your possession, or we will
presume that your opponent's contention is true." When one deliberately destroys, or
purposely induces another to destroy, a written instrument subsequently become a matter of
judicial inquiry between the spoliator and an innocent party, the latter will not be required to
make strict proof of the contents of such instrument in order to establish a right founded
thereon. Brook, Leg. Max. 576, Preston vs. Preston, 132, Atl. 55, 61. (Re Lambie's Estate,
97 Mich, 55,56 N. W. 225)
Judged from the standard set forth in the foregoing authorities, and bearing in mind that the
circumstances of this case lead to the only conclusion that the loss of the will in question is of course
imputable to those whose interests are adverse to the petitioner and the widow Lim Billian, we have
no hesitancy in holding the view that the dispositions of the properties left by the deceased Jose B.
Suntay is provided in his will which was lost or snatched in the manner recited in the decision of this
Court in the case of Lim Billian vs. Suntay, 63 Phil., 798-797, had been more than sufficiently proved
by the testimony of Judge Anastacio Teodoro, Go Toh, and Ana Suntay, supported conclusively by
the draft of the lost will presented in evidence as Exhibit "B", and even by the testimony of oppositor
Federico C. Suntay himself.
It is to be recalled that the trial Judge, in his first decision of April 19, 1948, made the following
express findings with respect to the testimony of Judge Teodoro: "Judge Anastacio Teodoro testified

that he opened the sealed envelope when it was given to him by Go Toh preparatory to the
presentation of the petition for the probate of the said will. As the lawyer entrusted with that task, he
had to examine the will and have it copied to be reproduced or appended to the petition. He could
not do otherwise if he is worth his salt as a good lawyer. He could not perform the stunt of "blind
flying" in the judicial firmament. Every step must be taken with certainty and precision under any
circumstances. He could not have talked about the attorney's fees with Go Toh, unless he has not
examined the will beforehand. And, when he was shown Exhibit B, he did not hesitate in declaring
that it was the exact draft of the will that was inside the envelope (Exhibit A), the testimony of Atty.
Alberto Barretto to the contrary notwithstanding."
We should not forget, in this connection, that in the resolution on the motion for reconsideration the
trial Judge reiterated the findings in his decision, although as regards the testimony of Judge
Teodoro admittedly "the only credible witness who testified as to the provisions of the will," he
observed that Judge Teodoro had the draft Exhibit "B" in his hands while testifying. We cannot see
any justifying for the observation, assuming that Judge Teodoro consulted the draft, since even the
trial Judge granted that he "could have testified clearly and distinctly on the provisions of the said
lost will, because he had kept the will in his safe, in his office, for three days, after opening it, and he
is well versed in Spanish language in which the will was written." As a matter of fact, however, it is
not true that Judge Teodoro had the draft in question before him while testifying as may be seen
from the following passages of the transcript:
Q. And, have you read that will which was inside this envelope, Exhibit A? "A. Yes.
Q. Do you remember more or less the contents of the will?
ATTY. FERRIN: With our objection, the best evidence is original will itself, Your Honor.
ATTY. RECTO: We are precisely proving by means of secondary evidence, the contents of
the will, because according to the Supreme Court, and that is a fact already decided, that the
will of Jose B. Suntay was lost and that is res adjudicata.
COURT: Witness may answer.
WITNESS: I remember the main features of the will because as I said I was the one fighting
for the postponement of the hearing of the intestate case because I was asked by Don
Alberto Barretto to secure the postponement until the will that was executed by the deceased
is sent here by the widow from China, with whom we communicated with several letters, and
when the will arrived. I had to check the facts as appearing in the will, and examined fully in
connection with the facts alleged in the intestate, and there was a striking fact in the intestate
that Apolonio Suntay has..
ATTY. FERRIN: (Interrupting) May we ask that the witness answer categorically the
questions of Atty. Recto, it seems that the answers of the witness are kilometric ...
ATTY. RECTO: Sometimes the question cannot be answered fully unless the witness would
relate and give all the facts.
COURT: The Attorney for the Administrator may move for the striking out of any testimony
that is not responsive to the question.
ATTY. FERRIN: That is why, our objection, the answer is out of the question.

COURT: Atty. Recto may propound another question.

ATTY. RECTO: I heard the witness was saying something and he has not finished the
sentence, and I want to ask the Court just to allow the witness to finish his sentence.
COURT: You may finish.
WITNESS: "A. There was a sentence, the point I was trying to check first was whether the
value of the estate left by the deceased was SIXTY THOUSAND PESOS (P60,000.00) as
Apolonio Suntay made it appear in his petition, and when I looked at the original will, I found
out that it was several hundred thousand pesos, several thousands of pesos, hundreds of
pesos, that was very striking fact to me because the petition for intestate was for SIXTY
THOUSAND PESOS (P60,000.00), and I came to know that it was worth more than SEVEN
HUNDRED THOUSAND (P700,000.00) PESOS.
Q. Do you remember, Judge, the disposition of the will, the main disposition of the will?
"A. Yes, because our client were the widow, Maria Natividad Lim Billian, and his son, Silvino,
the only son in the second marriage, that was very important for me to know.
Q. How were the properties distributed according to that will?- "A. The properties were
distributed into three (3) parts, one part which we call legitima corta, were equally distributed
to the ten (10) children, nine (9) in the first marriage, and one (1) in the second marriage with
Maria Natividad Lim Billian. The other third, the betterment was given to four (4) children,
Concepcion, and Apolonio getting a quiet substantial share in the betterment, around SIXTY
THOUSAND (P60,000.00) for Concepcion, Apolonio the amount of SEVENTY THOUSAND
(70,000,00) PESOS or little over, and then about ONE HUNDRED THOUSAND
(P100,000.00) PESOS of the betterment in favor of Silvino, the minor of the second
marriage, and to Jose equal to Concepcion.
Q. So the betterment, as I understand from you went to four (4) children?-"A. Yes.
Q. Silvino in the second marriage, Concepcion, Apolonio and Jose in the first marriage? "
A. Yes.
Q. What about the free disposal?-" A. The free disposal was disposed in favor of the widow,
Maria Natividad Lim Billian and Silvino, his minor son in equal parts..
Q. What about, if you remember, if there was something in the will in connection with that
particular of the usufruct of the widow? "A. It was somewhat incorporated into the assets
of the estate left by the deceased.
Q. Do you remember the number of pages of which that will consisted? "A. Twenty-three
(23) pages.
Q. Do you remember if the pages were signed by the testator? "A. Yes, sir, it was signed.
Q. And the foot of the testament or the end of the testament, was it signed by the testator?
"A. Yes, sir, and the attestation clause was the last page signed by the three instrumental
witnesses, Alberto Barretto, one Chinaman Go Toh, and Manuel Lopez, my former Justice of
the Peace of Hagonoy.

Q. Do you remember if there witnesses signed on the different pages of the will? "A. Yes,
sir, they signed with their name signatures.
Q. Showing you this document consisting of twenty-three (23) pages in Spanish and which
document appears already attached to this same testamentary proceedings and already
marked as EXHIBIT B, will you please tell the Court if and for instance on page eight (8) of
this document, pagina octavo, it says, there are handwritings in pencil, some of which read
as follows: "Los cinco-octavos (5/8) partes corresponds a mi hijo Emiliano", can you
recognize whose handwriting is that? "A. From my best estimate it is the handwriting of
Don Alberto Barretto.
Q. About the end of the same page eight (8) pagina octavo, of the same document Exhibit B,
there is also the handwriting in pencil which reads: "La otra sexta parte (6.a) corresponde a
Bonifacio Lopez", can you recognize that handwriting? "A. Yes, sir, this is the handwriting
of Don Alberto Barretto, and I wish to call the attention of the Court to compare letter "B"
which is in capital letter with the signature of Don Alberto Barretto in the envelope, "Alberto
Barretto" and stroke identifies one hand as having written those words.
Q. Will you please go over cursorily this document, Exhibit B composed of twenty-three (23)
pages and please tell the Court if this document had anything to do with the will which
according to you was contained in the envelope, Exhibit A? "A. This is exactly the
contents of the original will which I received and kept in my office inside the safe for three (3)
days, and I precisely took special case in the credits left by the deceased, and I remember
among them, were the De Leon family, and Sandiko, well known to me, and then the
disposition of the estate, divided into three (3) equal parts, and I noticed that they are the
contents of the will read.
His Honor, Judge Pecson, was positive in his first decision that "the testimony of Judge Anastacio
Teodoro is corroborated by Go Toh, one of the attesting witnesses, in his deposition (Exhibit D-1)."
Yet in setting aside his first decision, he remarked that Go Toh's testimony did not prove clearly and
distinctly the provision of the lost will, because: "He did not, and he could not have done so even if
he tried because the original will was not read to him nor by him before or at the signing of the same.
It was written in Spanish and he did not and does not understand the Spanish language. Neither was
there any occasion for him to have the contents of the said will, after its execution and sealing inside
the envelope (Exhibit A), read to him, because it was opened only when Judge Teodoro had
examined it and then subsequently snatched from Go Toh."
The later position thus taken by Judge Pecson is palpably inconsistent with the following
unequivocal statements of Go Toh contained in hid disposition taken in Amoy, China, on April 17,
1938, and in oppositor's Exhibit "6":
26. State what you know of the contents of that will.
. . . . Regarding (1) expenditures (2) Philippine citizenship; (3) Distribution of estates among
children (4) Taking care of grave lot; (5) guardianship of Silvino Suntay and (6) after paying
his debts he will have approximately 720,000 pesos left. This amount will be divided into
three equal parts of 240,000 pesos each. The first part is to be divided equally among the ten
children born by the first and second wives and the second part among the three sons
Silvino Suntay, 75,000 approximately; Apolonio Suntay, 50,000 pesos approximately; Jose
Suntay and Concepcion Suntay, 36,000 each approximately. The third part is to be divided
between Maria Lim Billian and Silvino Suntay; each will get approximately 110,000 pesos.
Silvino Suntay will get a total of 210,000 pesos approximately, Maria Natividad Lim Billian a

total of 290,000 approximately, and Apolonio Suntay a total of 80,000 approximately,

Concepcion Suntay and Jose Suntay will get 60,000 pesos each approximately. The rest of
the children will get approximately 29,000 each. The way of distribution of the property of
Jose B. Suntay, movable and immovable, and the outstanding debts to be collected was
arranged by Jose B. Suntay.
xxx

xxx

xxx

78. On the occasion of the execution of the testament of Jose B. Suntay, state whether or not
you say Exhibit B ... Yes.
79. In the affirmative case, state if you know who had the possession of Exhibit B and the
testament the first time you saw them on that occasion. ... Yes, I know who had
possession of them.
80. Can you say whether or not Jose B. Suntay happened to get those documents later on,
on that same occasion? ... He got them after the execution.
81. Please name the person who gave those documents to Mr. Suntay. ... Alberto Barretto
gave the documents to Jose B. Suntay.
82. Did the person who gave those documents to Suntay say anything to him (Suntay) at the
time of giving them? ... Yes.
83. If so what was it that he said, if he said any? ... He said, "You had better see if you
want any correction."
84. What did Mr. Suntay do after those documents were given to him? ... Jose B. Suntay
looked at them and then gave one copy to Manuel Lopez for checking.
85. State whether or not Mr. Suntay gave one of those documents to another man. ... Yes.
86. In the affirmative case, can you say which of the two documents was given and who the
man was? ... Yes he gave Exhibit B to Manuel Lopez.
87. State whether or not Mr. Suntay said something to the man to whom he gave one of
those documents. ... Yes.
88. In the affirmative case can you repeat more or less what Mr. Suntay said to that man?
... He told him to read it for checking.
89. State if you know what did the man do with one of those documents given to him. ...
He took it and read it for checking.
90. What did in turn Mr. Suntay do with the other one left with him? ... Jose B. Suntay
looked at the original and checked them.
91. What was done with those documents later on if there was anything done with them?
... After checking, Jose B. Suntay put Exhibit B in his pocket and had the original signed
and executed.

92. What was done with the testament of Jose B. Suntay after it was signed by the testator
and its witnesses? ... It was taken away by Jose B. Suntay. (Exhibit D, D-1.)
Q. Did you know the contents of this envelope? "A. I knew that it was a will.
Q. But did you know the provisions of the will? "A. It is about the distribution of the
property to the heirs.
Q. Did you know how the property was distributed according to the will? "A. I know that
more than P500,000 was for the widow and her son, more than P100,000 for the heirs that
are in the family. (Exhibit "6", p. 28).
Q. You stated that you were one of the witnesses to the will and that the will was written in
Spanish. Was it written in typewriting or in handwriting of somebody? "A. That will was
written in typewriting.
Q. Did you read the contents of that will, or do you know the contents of that will? A. No,
sir, because I do not know Spanish.
Q. How do you know that it was the will of Jose B. Suntay ? "A. Because I was one of the
signers and I saw it." (Exhibit "6", p. 19.)
22. Do you understand the language in which that will was written? ... I know a little
Spanish.
23. Do you talk or write that language? I can write and talk a little Spanish. (Exhibits D, D-1.)
As to Ana Suntay's corroborating testimony, Judge Pecson aptly made the following findings: "Ana
Suntay, one of the heirs and who would be affected adversely by the legalization of the will in
question, also testified on rebuttal that she saw the original will in the possession of Manuel Suntay
immediately after the snatching. She read it and she particularly remembers the manner in which the
properties were to be distributed. Exhibit B was shown to her on the witness stand and she declared
that the provision regarding the distribution of the properties in said Exhibit B is the same as that
contained in the original will. Said testimony of Ana Suntay, therefore, belies the testimony of Atty.
Alberto Barretto." And yet in the resolution on the motion for new trial, the trial Judge had to state
that "Ana Suntay on rebuttal did not, likewise, prove clearly and distinctly the provisions of the said
lost will, because she has not had enough schooling and she does not possess adequate knowledge
of the Spanish language as shown by the fact that she had to testify in Tagalog on the witness
stand." The potent error committed by Judge Pecson in reversing his views as regards Ana's
testimony, is revealed readily in the following portions of the transcript:
P. Cuantas paginas tenia aquel documento a que usted se refiere? "R. Probablemente
seria mas de veinte (20) paginas.
P. No serian treinta (30) paginas? "Abogado Recto: La testigo ha contestado ya que mas
de veinte (20).
Juzgado: Se estima
Abogado Mejia:

P. Usted personalmente leyo el documento" "R. Yo leyo mi hermano en presencia mia.

P. La pregunta es, si usted personalmente ha leido el documento? " R. Si, lo he visto.
P. No solamente le pregunto a usted si Vd. ha visto el testamento sino si usted ha leido
personalmente el testamento? "R. Si la parte de la adjudicacion lo he leido para
asegurarme a que porcion corresponde a cada uno de nosotros.
P. Puede usted repetir poco mas o menos esa porcion a que se hacia la distribucion del
alegado testamento? "R. Como ya he declarado, que las propiedades de mi difunto padre
se habian dividido en tres partes, una tercera parte se nos adjudica a nosotros diez (1) hijos
en primeros nupcias y segunda nupcia, la segunda tercera parte los adjudica a la viuda y a
Silvino, y la otra tercera parte se lo adjudica a sus hijos como mejora a Silvino, Apolonio,
Concepcion y Jose.
P. Eso, tal como usted personalmente lo leyo en el documento? "R. Si Seor.
P. Quiere usted tener la bondad, seora, de repetir poco mas o menos las palabras en ese
documento que se distribuia las propiedades del defundo padre usted como usted relata
aqui? "Abogado Recto: Objetamos a la pregunta por falta de base, porque elle solamente se
fijo en la parte como se distribuian las propiedades pero no ha dicho la testigo que ella lo ha
puesto de memoria, ni Vd. ha preguntado en que lenguaje estaba escrito el testamento ...
Juzgado: Se estima.
Abogado Mejia:
P. Sabe usted en que lenguaje estaba redactado el documento que usted leyo
personalmente? "R. En Castellano.
P. Puede usted repetirnos ahora en Castellano algunas frases o palabras como se hizo la
distribucion en aquel supuesto testamento?
Abogado Recto: Objecion, por falta de base, uno puede entender el espaol y sin embargo
no podra repetir lo que ha leido, y no se sabe todavia si ha estudiado el espaol bastante
hasta el punto de poder hablarlo.
Juzgado: Se estima.
Abogado Mejia
P. Usted dijo que estaba puesto en castellano el supuesto testamento que Vda. leyo, usted
poso el castellano? "R. Yo entiendo el castellano, pero no puedo hablar bien.
P. Usted estudio el castellano en algun colegio? "Rj. Si, seor, En Sta. Catalina.
P. Cuantos aos? "R. Nuestros estudios no han sido continuous porque mi padre nos
ingresaba en el colegio y despues nos sacaba para estar afuera, y no era continuo nuestro
estudio.

P. Pero en total, como cuantos meses o aos estaba usted en el colegio aprendiendo el
castelano? "R. Unos cuatro o cinco aos.
P. Entonces usted puede leer el castellano con facilidad, seora? "R. Si, castellano
sencillo puedo entender y lo puedo leer.
P. Usted entiende las preguntas que se le dirigian aqui en castellano sin interpretacion o sin
el interprete? "R. Si, Seor.
P. Puede usted contestar en castellano? "R. Bueno, pero como de contestar, por eso
quiero que la pregunta se me traduzca antes. asi puedo contestar debidamente. (t.s.n. pp.
533-534.)
We are really at a loss to understand why, without any change whatsoever in the evidence, the trial
Judge reversed his first decision, particularly when he announced therein that "it is now incumbent
upon this court to delve into the evidence whether or not Jose B. Suntay, deceased, left a will (the
draft of which is Exhibit B) and another will which was executed and probated in Amoy, China." His
action is indeed surprising when we take into account the various circumstancial features presently
to be stated, that clearly confirm the testimony of Judge Anastacio Teodoro, G. Toh and Ana Suntay,
or otherwise constitute visible indicia of oppositor's desire to frustrate the wishes of his father, Jose
B. Suntay.
In our opinion the most important piece of evidence in favor of the petitioner's case is the draft of the
lost will, Exhibit "B." Its authenticity cannot be seriously questioned, because according to the trial
Judge himself, oppositor's own witness, Atty. Alberto Barretto, admitted it to be "identical in
substance and form to the second draft which he prepared in typewriting." Indeed, all the "A's" and
"B's" in the handwritten insertions of the draft are very similar to those in Barretto's admittedly
genuine signature on the envelope, Exhibit "A." The finding of Judge Pecson on the point in his first
decision (reiterated expressly in the resolution on the motion for new trial), should control, not only
because it is in accordance with the evidence but because the oppositor had failed and did not even
attempt to have the trial Judge reconsider or reverse his factual conclusions. The draft, Exhibit "B,"
having been positively identified by the witnesses for the petitioner to be an exact copy of the lost will
of Jose B. Suntay, is therefore conclusive. Oppositor's effort to show that said draft was never signed
in final form, and was thought of merely to deceive petitioner's mother, Lim Billian, and that the will
actually executed and put in the envelope, Exhibit "A", provided that the testator's estate would be
divided equally among his heirs, as in the case of intestacy, was necessarily futile because, if this
allegation is true, the will would not have been "snatched" from Go Toh and the loss certainly
cannot be imputed to the widow Lim Billian or the petitioner; the snatched will would have been
produced to put an end to petitioner's and his mother's claim for greater inheritance or participation
under the lost will; and the envelope containing the first will providing for equal shares, would not
have been entrusted to the care and custody of the widow Lim Billian.
It is very noteworthy that out of the nine children of the first marriage, only Angel, Jose and Federico
Suntay had opposed the probate of the will in question; the rest, namely, Ana, Aurora, Concepcion,
Lourdes, Manuel and Emiliano Suntay, having expressly manifested in their answer that they had no
opposition thereto, since the petitioner's alternative petition "seeks only to put into effect the
testamentary disposition and wishes of their late father." This attitude is significantly an indication of
the justness of petitioner's claim, because it would have been to their greater advantage if they had
sided with oppositor Federico Suntay in his theory of equal inheritance for all the children of Jose B.
Suntay. Under the lost will or its draft Exhibit "B", each of the Suntay children would receive only
some P 25,000.00, whereas in case of intestacy or under the alleged will providing for equal shares,

each of them would receive some P100,000.00. And yet the Suntay children other than Angel, Jose
and Federico had chosen to give their conformity to the alternative petition in this case.
Another unequivocal confirmation of the lost will is the will which Jose B. Suntay executed in Amoy,
Fookien, China, on January 4, 1931, and probated in Amoy District Court, China, containing virtually
the same provisions as those in the draft Exhibit "B". What better evidence is there of an man's
desire or insistence to express his last wishes than the execution of a will reiterating the same
provisions contained in an earlier will. Assuming that the Chinese will cannot be probated in the
jurisdiction, its probative value as corroborating evidence cannot be ignored.
Oppositor himself had admitted having read the will in question under which the widow Lim Billian
was favored; and this again in a way goes to corroborate the evidence for the petitioner as to the
contents of the will sought to be probated.
COURT:
Q. Have you read the supposed will or the alleged will of your father? "A. Yes, sir.
COURT:
Q. Can you tell the court the share or participation in the inheritance of Maria Natividad Lim
Billian according to the will?
A. Yes sir, she will inherit, I think, two-thirds (2/3) of the estate, in other words she is the
most favored in the will, so when they sold that, they sold everything, they are selling
everything even the conjugal property. (t. s. n. 228-229.)
The decision of the majority leans heavily on the testimony of Atty. Alberto Barretto, forgetful perhaps
of the fact that the trial Judge gave no credence to said witness. It should be repeated that Judge
Pecson reiterated in the resolution on the motion for new trial all his findings in the first decision. If as
Atty. Barretto testified, Lim Billian was entitled under the will actually signed by Jose Suntay only to
P10,000.00, in addition to properties in China value at P15,000.00, the fees of P25,000.00
admittedly asked by him would absorb her entire inheritance; and this would normally not be done by
any law practitioner. Upon the other hand, there is evidence to the effect that Atty. Barretto might
have become hostile to the petitioner and his mother Lim Billian in view of the latter's refusal to
agree to the amount of P25,000.00 and her offer to pay only P100.00. There is also evidence
tending to show that as early as 1942, Atty. Barretto was paid by oppositor Federico Suntay the sum
of P16,000.00 which, although allegedly for services in the testate proceedings, was paid out of the
personal funds of said oppositors to supply Atty. Barretto's needs. This circumstances perhaps
further explains why the latter had to support the side of Federico Suntay.
We have quoted in full the decision of this court in the "snatching" case and the first decision of
Judge Pecson in this case, both in the hope and in the belief (1) that the first would reveal the
manner by which those adversely affected had planned to prevent the last wishes of the deceased
Jose B. Suntay from being carried on, and (2) that the second, by the facts correctly recited therein
and by the force and accuracy of its logic would amply show the weakness and utter lack of
foundation of the resolution on the motion for reconsideration. We have set forth at length pertinent
portions of the testimony of various witnesses to demonstrate more plainly the plausibility of the
original decision of Judge Pecson, and the latter's consequent bad judgment in having forced himself
to accomplish a somersault, a feat which the majority, in my opinion, have mistakenly commended.
We have found this to be one of the cases of this court in which we have had occasion to participate,

where there can be absolutely no doubt as to the result outright reversal for which, with due
respect to the majority opinion, we vote without hesitancy.
Montemayor and Jugo, JJ., concur.

RESOLUTION

5 November 1954

PADILLA, J.:
This is a motion for reconsideration of the decision promulgated on 31 July 1954, affirming the
decree of the Court of First Instance of Bulacan which disallowed the alleged last will and testament
executed in November 1929 and the alleged last will and testament executed in Kulangsu, Amoy,
China, on 4 January 1931, by Jose B. Suntay, without pronouncement as to costs, on grounds that
will presently be taken up and discussed.
Appellant points to an alleged error in the decision where it states that
. . . This petition was denied because of the loss of said will after the filing of the petition and
before the hearing thereof, . . .
because according to him the "will was lost before not after (the) filing of the petition." This slight
error, if it is an error at all, does not, and cannot, after the conclusions and pronouncements made in
the judgment rendered in the case. In his alternative petition the appellant alleges:
4. That on October 15, 1934, Marian Natividad Lim Billian, the mother of herein petitioner
filed a petition in this court for the allowance and probate of a last will and testament
executed, and signed in the Philippines in the year 1929 by said deceased Jose B. Suntay.
(P. 3, amended record on appeal.)
If such will and testament was already lost or destroyed at the time of the filing of the petition by
Maria Natividad Lim Billian (15 October 1934), the appellant would have so stated and alleged. If
Anastacio Teodoro, a witness for the appellant, is to be believed when he testified
. . . that one day in November 1934 (p. 273, t. s. n., hearing of 19 January 1948), ... Go Toh
arrived at his law office in the De Los Reyes Building and left an envelope wrapped in red
handkerchief [Exhibit C] (p. 32, t. s. n., hearing of 13 October 19470 . . .
and
If the will was snatched after the delivery thereof by Go Toh to Anastacio Teodoro and
returned by the latter to the former because they could not agree on the amount of fees, . . .

then on 15 October 1934, the date of the filing of the petition, the will was not yet lost. And if the facts
alleged in paragraph 5 of the appellant's alternative petition which states:
That this Honorable Court, after hearing, denied the aforesaid petition for probate filed by
Maria Natividad Lim Billian in view of the loss and/or destruction of said will subsequent to
the filing of said petition and prior to the hearing thereof, and the alleged insufficiency of the
evidence adduced to established the loss and/or destruction of the said will, (Emphasis
supplied, P. 3, amended record on appeal.)
may be relied upon, then the alleged error pointed out by the appellant, if it is an error, is due to the
allegation in said paragraph of his alternative petition. Did the appellant allege the facts in said
paragraph with reckless abandon? Or, did the appellant make the allegation as erroneously as that
which he made in paragraph 10 of the alternative petition that "his will which was lost and
ordered probated by our Supreme Court in G. R. No. 44276, above referred to?" (P. 7, amended
record on appeal.) This Court did not order the probate of the will in said case because if it did, there
would have been no further and subsequent proceedings in the case after the decision of this Court
referred to had been rendered and had become final. Be that as it may, whether the loss of the will
was before or subsequent to the filing of the petition, as already stated, the fact would not affect in
the slightest degree the conclusions and pronouncements made by this Court.
The appellant advances the postulate that the decision of this Court in the case of Lim Billian vs.
Suntay, G. R. No. 44276, 63 Phil., 793, constitutes res judicata on these points: (a) that only one will
was prepared by attorney Barretto, and (b) that the issue to be resolved by the trial court was
whether the draft (Exhibit B) is a true copy or draft of the snatched will, and contends that these
points already adjudged were overlooked in the majority opinion. The decision of this Court in the
case referred to does not constitute res judicata on the points adverted to by the appellant. The only
point decided in that case is that "the evidence is sufficient to establish the loss of the document
contained in the envelope." In the opinion of this Court, this circumstance justified "the presentation
of secondary evidence of its contents and of whether it was executed with all the essential and
necessary legal formalities." That is all that was decided. This Court further said:
The trial of this case was limited to the proof of loss of the will, and from what has taken
place we deduce that it was not petitioner's intention to raise, upon the evidence adduced by
her, and other points involved herein, namely, as we have heretofore indicated, whether
Exhibit B is a true copy of the will and whether the latter was executed with all the formalities
required by law for its probate. The testimony of Alberto Barretto bears importantly in this
connection. (P. 796, supra.)
Appellant's contention that the question before the probate court was whether the draft (Exhibit B) is
a true copy or draft of the snatched will is a mistaken interpretation and view of the decision of this
Court in the case referred to, for if this Court did make that pronouncement, which, of course, it did
not, such pronouncement would be contrary to law and would have been a grievous and irreparable
mistake, because what the Court passed upon and decided in that case, as already stated, is that
there was sufficient evidence to prove the loss of the of the will and that the next step was to prove
by secondary evidence its due execution in accordance with the formalities of the law and its
contents, clearly and districtly, by the testimony of at least two credible witnesses. 1
The appellant invokes Rule 133 to argue that Rule 77 should not have been applied to the case but
the provisions of section 623 of the Code of Civil Procedure (Act No. 190), for the reason that this
case had been commenced before the Rules of Court took effect. But Rule 133 cited by the
appellant provides:

These rules shall take effect on July 1, 1940. They shall govern all cases brought after they
take effect, and also all further proceedings in cases then pending, except to the extent that
in the opinion of the court their application would not be feasible or would work injustice, in
which event the former procedure shall apply. (Emphasis supplied.)
So, Rule 77 applies to this case because it was a further proceedings in a case then pending. But
even if section 623 of the Code of Civil Procedure were to be applied, still the evidence to prove the
contents and due execution of the will and the fact of its unauthorized destruction, cancellation, or
obliteration must be established "by full evidence to the satisfaction of the Court." This requirement
may even be more strict and exacting than the two-witness rule provided for in section 6, Rule 77.
The underlying reason for the exacting provisions found in section 623 of Act No. 190 and section 6,
Rule 77, the product of experience and wisdom, is to prevent imposters from foisting, or at least to
make for them difficult to foist, upon probate courts alleged last wills or testaments that were never
executed.
In commenting unfavorably upon the decree disallowing the lost will, both the appellant and the
dissenting opinion suffer from an infirmity born of a mistaken premise that all the conclusions and
pronouncements made by the probate court in the first decree which allowed the probate of the lost
will of the late Jose B. Suntay must be accepted by this Court. This is an error. It must be borne in
mind that this is not a petition for a writ of certiorari to review a judgment of the Court of Appeals on
questions of law where the findings of fact by said Court are binding upon this Court. This is an
appeal from the probate court, because the amount involved in the controversy exceeds P50,000,
and this Court in the exercise of its appellate jurisdiction must review the evidence and the findings
of fact and legal pronouncements made by the probate court. If such conclusions and
pronouncements are unjustified and erroneous this Court is in duty bound to correct them. Not long
after entering the first decree the probate court was convinced that it had committed a mistake, so it
set aside the decree and entered another. This Court affirmed the last decree not precisely upon the
facts found by the probate court but upon facts found by it after a careful review and scrutiny of the
evidence, parole and documentary. After such review this Court has found that the provisions of the
will had not been established clearly and distinctly by at least two credible witnesses and that
conclusion is unassailable because it is solidly based on the established facts and in accordance
with law.
The appellant and the dissent try to make much out of a pleading filed by five (5) children and the
widow of Apolonio Suntay, another child of the deceased by the first marriage, wherein they state
that
. . . in answer to the alternative petition filed in these proceedings by Silvino Suntay, through
counsel, dated June 18, 1947, to this Honorable Court respectfully state that, since said
alternative petition seeks only to put into effect the testamentary disposition and wishes of
their late father, they have no opposition thereto. (Pp. 71-72, amended record on appeal.)
Does that mean that they were consenting to the probate of the lost will? Of course not. If the lost
will sought to be probated in the alternative petition was really the will of their late father, they, as
good children, naturally had, could have, no objection to its probate. That is all that their answer
implies and means. But such lack of objection to the probate of the lost will does not relieve the
proponent thereof or the party interested in its probate from establishing its due execution and
proving clearly and distinctly the provisions thereof at least two credible witnesses. It does not mean
that they accept the draft Exhibit B as an exact and true copy of the lost will and consent to its
probate. Far from it. In the pleading copied in the dissent, which the appellant has owned and used
as argument in the motion for reconsideration, there is nothing that may bolster up his contention.
Even if all the children were agreeable to the probate of said lost will, still the due execution of the

lost will must be established and the provisions thereof proved clearly and distinctly by at least two
credible witnesses, as provided for in section 6, Rule 77. The appellant's effort failed to prove what is
required by the rule. Even if the children of the deceased by the first marriage, out of generosity,
were willing to donate their shares in the estate of their deceased father or parts thereof to their step
mother and her only child, the herein appellant, still the donation, if validly made, would not dispense
with the proceedings for the probate of the will in accordance with section 6, Rule 77, because the
former may convey by way of donation their shares in the state of their deceased father or parts
thereof to the latter only after the decree disallowing the will shall have been rendered and shall
have become final. If the lost will is allowed to probate there would be no room for such donation
except of their respective shares in the probated will.
The part of the deposition of Go Toh quoted in the motion for reconsideration which appellant
underscores does not refer to Go Toh but to Manuel Lopez. Even if Go Toh heard Manuel Lopez
read the draft (Exhibit B) for the purpose of checking it up with the original held and read by Jose B.
Suntay, Go Toh should not have understood the provisions of the will because he knew very little of
the Spanish language in which the will was written (answer to 22nd and 23rd interrogatories and to
X-2 cross-interrogatory). In fact, he testifies in his deposition that all he knows about the contents of
the lost will was revealed to him by Jose B. Suntay at the time it was executed (answers to 25th
interrogatory and to X-4 and X-8 cross-interrogatories); that Jose B. Suntay told him that the
contents thereof are the same as those of the draft [Exhibit B] (answers to 33rd interrogatory and to
X-8 cross-interrogatory); that Mrs. Suntay had the draft of the will (Exhibit B) translated into Chinese
and he read the translation (answer to the 67th interrogatory); that he did not read the will and did
not compare it (check it up) with the draft [Exhibit B] (answers to X-6 and X-20 cross-interrogatories).
We repeat that
. . . all of Go Toh's testimony by deposition on the provisions of the alleged lost will is
hearsay, because he came to know or he learned of them from information given him by
Jose B. Suntay and from reading the translation of the draft (Exhibit B) into Chinese.
This finding cannot be contested and assailed.
The appellant does not understand how the Court came to the conclusion that Ana Suntay, a witness
for the appellant could not have read the part of the will on adjudication. According to her testimony
"she did not read the whole will but only the adjudication," which, this Court found, "is inconsistent
with her testimony in chief (to the effect) that "after Apolonio read that portion, then he turned over
the document of Manuel, and he went away." (P. 528, t. s. n., hearing of 24 February 1948.) And
appellant asks the question: "Who went away? Was it Manuel or Apolonio?" In answer to his own
question the appellant says: "The more obvious inference is that it was Apolonio and not Manuel
who went away." This inference made by the appellant not only is not obvious but it is also illogical, if
it be borne in mind that Manuel came to the house of Apolonio and it happened that Ana was there,
according to her testimony. So the sentence "he went away" in Ana's testimony must logically and
reasonably refer to Manuel, who was a caller or visitor in the house of his brother Apolonio and not
to the latter who was in his house. If it was Apolonio who "went away," counsel for the appellant
could have brought that out by a single question. As the evidence stands could it be said that the
one who went away was Apolonio and not Manuel? The obvious answer is that it was Manuel. That
inference is the result of a straight process of reasoning and clear thinking.
There is a veiled insinuation in the dissent that Alberto Barretto testified as he did because he had
been paid by Federico C. Suntay the sum of P16,000. Federico C. Suntay testifies on the point thus

Q. You mentioned in your direct testimony that you paid certain amount to Atty. Alberto
Barretto for services rendered, how much did you pay? A. Around SIXTEEN THOUSAND
(P16,000.00).
Q. When did you make the payment? A. During the Japanese time.
Q. Did you state that fact in any accounts you presented to the Court? A. I do not quite
remember that.
. . . (P. 180, t. s. n., hearing of 24 October 1947.)
Q. When you made that payment, was (it) your intention to charge it to the state or to collect
it later from the estate? A. Yes, sir.
Q. More or less when was such payment made, during the Japanese time, what particular
month and year, do you remember? A. I think in 1942.
Q. And you said you paid him because of services he rendered? A. Upon the order to the
Court.
Q. And those services were precisely because he made a will and he made a will which was
lost, the will of Jose B. Suntay? ... (P. 181, t. s. n., supra.) A. I think I remember correctly
according to ex-Representative Vera who is the administrator whom I followed at that time,
that was paid according to the services rendered by Don Alberto Barretto with regard to our
case in the testamentaria but he also rendered services to my father.
Q. At least your Counsel said that there was an order of the Court ordering you to pay that,
do you have that copy of the order? A. Yes, sir, I have, but I think that was burned. (P. 184,
t. s. n., supra.).
So the sum of P16,000 was paid upon recommendation of the former administrator and order of the
probate court for services rendered by Alberto Barretto not only in the probate proceedings that also
for services rendered to his father. But if this sum of P16,000 paid to Alberto Barretto upon
recommendation of the previous administrator and order of the probate court for professional
services rendered in the probate proceedings and to the deceased in his lifetime be taken against
his truthfulness and veracity as to affect adversely his testimony, what about the professional
services of Anastacio Teodoro who appeared in this case as one of the attorneys for the petitionerappellant? (P. 2, t. s. n., hearing of 13 October 1947.)Would that not likewise or by the same token
affect his credibility? It is the latter's interest more compelling than the former's?
For the foregoing reasons, the motion for reconsideration is denied.
Pablo, Bengzon, Reyes, A. and Concepcion, JJ., concur.

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, 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.

G.R. No. L-3677

November 29, 1951

In the Matter of the Testate Estate of BASIL GORDON BUTLER; MERCEDES LEON, petitionerappellant, and ADA LOGGEY GHEZZI, administratrix-appellant,
vs.
MANUFACTURERS LIFE INSURANCE CO., thru Philippine Branch, oppositor-appellee.
Juan S. Rustia for petitioner and appellant.
Peralta & Agrava for oppositor and appellee.
TUASON, J.:
This is an appeal from the Court of First Instance of Manila which denied a motion of the
administratrix in the matter of the testate estate of Basil Gordon Butler (Special Proceedings No.
6218). The motion prayed for the citation of the Manager of the Manila Branch of the Manufacturers
Life Insurance Co. of Toronto, Canada, to appear and under a complete accounting of certain funds
the said Branch allegedly has in its possession and claimed to belong to the estate. His Honor,
Judge Rafael Amparo of the court below, held that these funds "came into the possession of the
Manufacturers Life Insurance Co., Inc., regularly and in due course and, therefore, sees no
justifiable ground to require said company to render an accounting thereon."
The essential facts are that Basil Gordon Butler, formerly a resident of the Philippines, died in
Brooklyn, New York City, in 1945, leaving a will which was duly probated in the Surrogate's Court of
New York County on August 3 of the same year, and of which James Ross, Sr., James Madison
Ross, Jr. and Ewald E. Selph were named executors. The estate having been settled, the
proceedings were closed on July 17, 1947.
The will contained this residuary clause:
After payment of these legacies and my just debts, including funeral expenses, I devise, give
and bequeath all of my remaining estate and personal effects of which I may die possessed
to Mercedes de Leon, of Maypajo, Caloocan, Rizal, to wit: the personal effects to be
delivered to her for her use and profit; the moneys, securities and other valuable property,
not personal effects, to be held in trust for her benefit by my executors, at their absolute
discretion, to be administered for her permanent benefit in whatever way they may consider
most advantageous in the circumstances existing. Since the said Mercedes de Leon is not of
sound judgment, and discretion in the handling of money, it is not my wish that she be given
any sums of money other than for her current needs, except as my executors in their
judgment deem advantageous to her. In case the amount available for this bequest be
sufficient to purchase an adequate annuity, the executors in their discretion may do so. And I
attest and direct that I do not wish to intend that the action of my executors upon their
discretion in this matter be questioned by anyone whatsoever.
For the purpose of carrying out that testamentary provision, James Madison Ross was appointed
trustee by the New York County Surrogate's Court on February 4, 1948. Once appointed, and with
the beneficiary signing the application with him, Ross bought an annuity from the Manufacturer's life
Insurance Co. at its head office in Toronto, Canada, paying in advance $17,091.03 as the combined
premiums. The contract stipulates for a monthly payment of $57.60 to Mercedes Benz during her
lifetime, with the proviso that in the event of her death, the residue, if any, of the capital sum shall be

paid in one sum to James Madison Ross or his successor as trustee. And beginning May 27, 1948,
Mercedes de Leon has been receiving the stipulated monthly allowance through the Insurance
Company's Manila Office.
With the object, so it would seem, of getting hold at once of the entire amount invested in the
annuity, Mercedes de Leon on September 4, 1948, presented Butler's will for probate in the Court of
First Instance of Manila, and secured the appointment of Ada Loggey Ghezzi as administratrix with
the will annexed early in 1949. (James Madison Ross and Ewald E. Selph had expressly declined
appointment as executors "on the ground that the probate proceedings of the above estate were
terminated by the Surrogate's Court of the County of New York, New York City, U. S. A., and that
there are no properties of the estate left to be administered.") After having qualified, the
administratrix filed the motion which Judge Amparo has denied; and as the party most if not solely
interested in that motion, Mercedes de Leon has joined Ghezzi in this appeal.
The administration of Butler's estate granted in New York was the principal or domiciliary
administration (Johannes vs. Harvey, 43 Phil., 175), while the administration taken out in the
Philippines is ancillary. However, the distinction serves only to distinguish one administration from
the other, for the two proceedings are separate and independent. (34 C.J.S. 1232,1233).
The important thing to inquire into is the Manila court's authority with respect to the assets herein
involved. The general rule universally recognized is that administration extends only to the assets of
a decedent found within the state or country where it was granted, so that an administrator
appointed in one state or country has no power over property in another state or country.
(Keenan vs. Toury, 132 A.L.R. 1362; Nash vs. Benari, 3 A.L.R. 61; Michigan Trust Co. vs. Chaffee,
149 A.L.R. 1078).This principle is specifically embodied in section 4 of Rule 78 of the Rules of Court:
Estate, how administered.When a will is thus allowed, the court shall grant letters
testamentary, or letters of administration with the will annexed, and such letters testamentary
or of administration, shall extend to all the estate of the testator in the Philippines. Such
estate, after the payment of just debts and expenses of administration, shall be disposed of
according to such will, so far as such will may operate upon it; and the residue, if any, shall
be disposed of as is provided by law in cases of estates in the Philippines belonging to
persons who are inhabitants of another state or country.
It is manifest from the facts before set out that the funds in question are outside the jurisdiction of the
probate court of Manila. Having been invested in an annuity in Canada under a contract executed in
the country, Canada is the suits of the money. The party whose appearance the appellant seeks is
only a branch or agency of the company which holds the funds in its possession, the agency's
intervention being limited to delivering to the annuitant the checks made out and issued from the
home office. There is no showing or allegation that the funds have been transferred or removed to
the Manila Branch.
Even if the money were in the hands of the Manila Branch, yet it no longer forms part of butler's
estate and is beyond the control of the court. It has passed completely into the hands of the
company in virtue of a contract duly authorized and validly executed. Whether considered as a trust
or as simple consideration for the company's assumed obligation, which it has been religiously
performing, of paying periodical allowances to the annuitant, the proceeds of the sale can not be
withdrawn without the consent of the company, except, upon the death of the annuitant, the
residuary legatee may claim the remainder, if there be any. Neither the domiciliary or ancillary

executor of Butler's will, nor the trustee, nor the annuitant has disposition of any of these funds
beyond the amounts and except upon the conditions agreed upon in the contract for annuity.
In the third place, the power of the court to cite a person for the purpose stated in the administratrix's
motion is defined in section 7 of Rule 88, which provides.
Person entrusted with estate compelled to render account.The court, on complaint of an
executor or administrator, with any part the estate of the deceased to appear before it, and
may require such person to render a full account, on oath, of the money, goods, chattels,
bonds, accounts, or other papers belonging to such estate as came to his possession in trust
for such executor or administrator, and for his proceedings thereon; and if the person so
cited refuses to appear to render such account, the court may punish him for contempt as
having disobeyed a lawful order of the court.
The appellant administratrix did not entrust to the appellee the money she wants the latter to account
for, nor did the said money come to the appellee's possession in trust for the administratrix. In other
words, the administratrix is a complete stranger to the subject of the motion and to the appellee.
There being no creditors, the only subject of the motion, we incline to believe, is to enable Mercedes
de Leon to get the legacy in a lump sum in complete disregard of the wishes of the testator, who
showed deep concern for her welfare, and of the annuity contract which the annuitant herself applied
for in conjunction with the trustee.
All in all, from every standpoint, including that of the annuitant's financial well-being, the motion and
the appeal are utterly groundless and ill-advised.
The appealed order therefore is affirmed with costs against the appellants.
Paras, C.J., Feria, Pablo, Bengzon, Padilla, Reyes, Jugo, and Bautista Angelo, JJ., concur.

G.R. No. L-20080

March 27, 1923

Intestate estate of the deceased GERONIMA UY COQUE.

JUAN NAVAS L. SIOCA, petitioner-appellant,
vs.
JOSE GARCIA, administrator-appellee.
Romualdez Bros. and Pedro C. Mendiola for appellant.
Ruperto Kapunan for appellee.
OSTRAND, J.:
This is an appeal from an order of the Court of First Instance of Samar, dated November 11, 1922,
and appointing Jose Garcia, administrator of the estate of the deceased Geronima Uy Coque.
The appellant is the surviving spouse of the deceased and maintains that the court erred in not
appointing him administrator instead of Jose Garcia. As the refusal to appoint the appellant appears
in an order of the court below dated September 30, 1922, from which no appeal has been taken, we
might well consider the question raised upon this appeal res adjudicata. For the satisfaction of
counsel, we shall, however, briefly state another reason why the appeal must fail.
It is well settled that a probate court cannot arbitrarily and without sufficient reason disregard the
preferential rights of the surviving spouse to the administration of the estate of the deceased spouse.
But, if the person enjoying such preferential rights is unsuitable, the court may appoint another
person. (Paragraph 2 of sec. 642 of the Code of Civil Procedure.) The determination of a person's
suitability for the office of administrator rests, to a great extent, in the sound judgment of the court
exercising the power of appointment and such judgment will not be interfered with on appeal unless
it appears affirmatively that the court below was in error.
In the present case the court based its ruling on the fact that it appeared from the record in Civil
Case No. 1041 of the same court, that the appellant had adverse interest in the estate of such a
character as to render him unsuitable as administrator. Unsuitableness may consist in adverse
interest of some kind or hostility to those immediately interested in the estate. (18 Cyc., 93, 94.) The
court below therefore stated facts which may constitute sufficient grounds for setting aside the
appellant's preferential rights and which, in the absence of proof to the contrary, must be presumed
sufficient. Whether they are in fact sufficient, we are not in position to determine as we have not
before us the record in the aforesaid case No. 1041; it being a record of the court below, that court
could properly take judicial notice thereof, but we cannot.
The order appealed from is affirmed, with the costs against the appellant. So ordered.
Araullo, C.J., Street, Malcolm, Avancea, Villamor, and Johns, JJ., concur.

G.R. No. L-21917

November 29, 1966

TESTATE ESTATE OF THE DECEASED CARLOS GURREA Y MONASTERIO. MARCELO

PIJUAN, special administrator-appellee,
vs.
MANUELA RUIZ VDA. DE GURREA, movant-appellant.
Marcos S. Gomez for petitioner and appellee.
Ricardo B. Teruel for respondent and appellant.
CONCEPCION, C.J.:
This is an appeal, taken by Manuela Ruiz Vda. de Gurrea, from two (2) orders of the Court of First
Instance of Negros Occidental.
In 1932, appellant Manuela Ruiz hereinafter referred to as Mrs. Gurrea and Carlos Gurrea
were married in Spain, where they lived together until 1945, when he abandoned her and came, with
their son Teodoro, to the Philippines. Here he lived maritally with Rizalina Perez by whom he had
two (2) children. Having been informed by her son Teodoro, years later, that his father was residing
in Pontevedra, Negros Occidental, Manuela came to the Philippines, in June, 1960; but, Carlos
Gurrea refused to admit her to his residence in said municipality. Hence, she stayed with their son,
Teodoro, in Bacolod City.
Presently, or on July 29, 1960, she instituted, against Carlos Gurrea, Civil Case No. 5820 of the
Court of First Instance of Negros Occidental, for support and the annulment of some alleged
donations of conjugal property, in favor of his common-law wife, Rizalina. In due course, said court
issued an order granting Mrs. Gurrea a monthly alimony, pendente lite, of P2,000.00 which, on May
17, 1961, was reduced by the Court of Appeals to P1,000.00.
Carlos Gurrea died on March 7, 1962, leaving a document purporting to be his last will and
testament, in which he named Marcelo Pijuan as executor thereof and disinherited Mrs. Gurrea and
their son, Teodoro. Soon thereafter, or on April 24, 1962, Pijuan instituted Special Proceedings No.
6582 of the Court of First Instance of Negros Occidental, for the probate of said will. Thereafter
Pijuan was, upon his ex parte motion, appointed special administrator of the estate, without bond.
Oppositions to the probate of the will were filed by Mrs. Gurrea, her son, Teodoro, and one Pilar
Gurrea, as an alleged illegitimate daughter of the deceased.
On July 16, 1962, Mrs. Gurrea filed in said Special Proceedings No. 6582, a motion alleging that the
aforementioned alimony, pendente lite, of P1,000 a month, had been suspended upon the death of
Carlos Gurrea, and praying that the Special Administrator be ordered to continue paying it pending
the final determination of the case. This motion having been denied in an order dated February 2,
1963, Mrs. Gurrea moved for a reconsideration thereof. Moreover, on February 27, 1963, she moved
for her appointment as administratrix of the estate of the deceased. In an order dated April 20, 1963,
said motion for reconsideration was denied. The lower court, likewise, denied, for the time being, the
motion of Mrs. Gurrea for her appointment as administratrix, in view of the provision of the will of the
deceased designating another person as executor thereof. Hence this appeal from said orders of
February 2 and April 20, 1963.

Mrs. Gurrea assails as erroneous the order of the lower court denying her petition for support, as
well as that denying its reconsideration. Both were predicated upon the theory that, pursuant to
Article 188 of our Civil Code (Article 1430 of the Spanish Civil Code) the support of a surviving
spouse constitutes, not an encumbrance upon the estate of the decedent, but merely an advance
from her share of said estate, and that Mrs. Gurrea is not entitled to such advance, there being
neither allegation nor proof that she had contributed any paraphernal property to said estate or that
the same includes properties forming part of the conjugal partnership between her and the
deceased. In support of this view, His Honor, the trial Judge cited the opinion of Manresa to the
effect that
. . . Probado que ni en concepto de capital propio, ni como gananciales corresponde haber
alguno al conjuge sobreviviente o a los herederos del premuerto, no cabe la concesion de
alimentos, pues estos, en efecto, con arreglo el articulo 1430, son solo un anticipo del
respectivo haber de cada participe.
This has, however, been misconstrued by the lower court. The foregoing view of Manresa is
predicated upon the premise that it has been proven that none of the properties under administration
belongs to the surviving spouse either as paraphernal property or as part of the conjugal partnership.
Upon the other hand, the lower court denied support to Mrs. Gurrea because of absence of proof as
regards the status, nature or character of the property now under the custody of the Special
Administrator. Precisely, however, on account of such lack of proof thereon, we are bound by law1 to
assume that the estate of the deceased consists of property belonging to the conjugal
partnership,2 one-half of which belongs presumptively to Mrs. Gurrea,3 aside from such part of the
share of the deceased in said partnership as may belong to her as one of the compulsory heirs, 4 if
his alleged will were not allowed to probate, or, even if probated, if the provision therein disinheriting
her were nullified. Inasmuch as the aforementioned estate is worth P205,397.64, according to the
inventory submitted by the special administrator, it is clear to us that the continuation of the monthly
alimony, pendente lite, of P1,000, authorized in said Civil Case No. 5820, is fairly justified.
It is next urged by Mrs. Gurrea that the lower court erred in denying her petition for appointment as
administratrix, for, as widow of the deceased, she claims a right of preference under Section 6 of
Rule 78 of the Revised Rules of Court. In the language of this provision, said preference exists "if no
executor is named in the will or the executor or executors are incompetent, refuse the trust, or fail to
give bond, or a person dies intestate." None of these conditions obtains, however, in the case at bar.
The deceased Carlos Gurrea has left a document purporting to be his will, seemingly, is still pending
probate. So, it cannot be said, as yet, that he has died intestate. Again, said document names
Marcelo Pijuan as executor thereof, and it is not claimed that he is incompetent therefor. What is
more, he has not only not refused the trust, but, has, also, expressly accepted it, by applying for his
appointment as executor, and, upon his appointment as special administrator, has assumed the
duties thereof. It may not be amiss to note that the preference accorded by the aforementioned
provision of the Rules of Court to the surviving spouse refers to the appoint of a regular administrator
or administratrix, not to that of a special administrator, and that the order appointing the latter lies
within the discretion of the probate court,5and is not appealable.6
WHEREFORE, the orders appealed from are hereby modified, in the sense that Manuela Ruiz Vda.
de Gurrea shall receive from the estate of the deceased a monthly allowance of P1,000.00, by way
of support, from March 7, 1962, and that, in all other respects, said orders are hereby affirmed,
without pronouncement as to costs. It is so ordered.

Reyes, J.B.L., Barrera, Dizon, Regala, Makalintal, Bengzon, J.P., Zaldivar, Sanchez and Castro,
JJ., concur.