Land Dispute Between Widow and Mistress's Children

MARIA USON, plaintiff-appellee,
vs.
MARIA DEL ROSARIO, CONCEPCION NEBREDA, CONRADO
NEBREDA, DOMINADOR NEBREDA, AND FAUSTINO NEBREDA, Jr.,
defendants-appellants.
Priscilo Evangelista for appellee.
Brigido G. Estrada for appellant.
BAUTISTA ANGELO, J.:
This is an action for recovery of the ownership and possession of five (5)
parcels of land situated in the Municipality of Labrador, Province of
Pangasinan, filed by Maria Uson against Maria del Rosario and her four
children named Concepcion, Conrado, Dominador, and Faustino,
surnamed Nebreda, who are all of minor age, before the Court of First
Instance of Pangasinan.
Maria Uson was the lawful wife of Faustino Nebreda who upon his death in
1945 left the lands involved in this litigation. Faustino Nebreda left no other
heir except his widow Maria Uson. However, plaintiff claims that when
Faustino Nebreda died in 1945, his common-law wife Maria del Rosario
took possession illegally of said lands thus depriving her of their
possession and enjoyment.
Defendants in their answer set up as special defense that on February 21,
1931, Maria Uson and her husband, the late Faustino Nebreda, executed a
public document whereby they agreed to separate as husband and wife
and, in consideration of their separation, Maria Uson was given a parcel of
land by way of alimony and in return she renounced her right to inherit any
other property that may be left by her husband upon his death (Exhibit 1).
After trial, at which both parties presented their respective evidence, the
court rendered decision ordering the defendants to restore to the plaintiff
the ownership and possession of the lands in dispute without special
pronouncement as to costs. Defendants interposed the present appeal.
There is no dispute that Maria Uson, plaintiff-appellee, is the lawful wife of
Faustino Nebreda, former owner of the five parcels of lands litigated in the
present case. There is likewise no dispute that Maria del Rosario, one of
the defendants-appellants, was merely a common-law wife of the late
Faustino Nebreda with whom she had four illegitimate children, her now codefendants. It likewise appears that Faustino Nebreda died in 1945 much
prior to the effectivity of the new Civil Code. With this background, it is
evident that when Faustino Nebreda died in 1945 the five parcels of land
he was seized of at the time passed from the moment of his death to his
only heir, his widow Maria Uson (Article 657, old Civil Code).As this Court
aptly said, "The property belongs to the heirs at the moment of the death of
the ancestor as completely as if the ancestor had executed and delivered
to them a deed for the same before his death" (Ilustre vs. Alaras Frondosa,
17 Phil., 321). From that moment, therefore, the rights of inheritance of
Maria Uson over the lands in question became vested.
The claim of the defendants that Maria Uson had relinquished her right
over the lands in question because she expressly renounced to inherit any
future property that her husband may acquire and leave upon his death in
the deed of separation they had entered into on February 21, 1931, cannot
be entertained for the simple reason that future inheritance cannot be the
subject of a contract nor can it be renounced (1 Manresa, 123, sixth edition;
Tolentino on Civil Code, p. 12; Osorio vs. Osorio and Ynchausti Steamship
Co., 41 Phil., 531).
But defendants contend that, while it is true that the four minor defendants
are illegitimate children of the late Faustino Nebreda and under the old Civil
Code are not entitled to any successional rights, however, under the new
Civil Code which became in force in June, 1950, they are given the status
and rights of natural children and are entitled to the successional rights
which the law accords to the latter (article 2264 and article 287, new Civil
Code), and because these successional rights were declared for the first
time in the new code, they shall be given retroactive effect even though the
event which gave rise to them may have occurred under the prior
legislation (Article 2253, new Civil Code).
There is no merit in this claim. Article 2253 above referred to provides
indeed that rights which are declared for the first time shall have retroactive
effect even though the event which gave rise to them may have occurred
under the former legislation, but this is so only when the new rights do not
prejudice any vested or acquired right of the same origin. Thus, said article
provides that "if a right should be declared for the first time in this Code, it
shall be effective at once, even though the act or event which gives rise
thereto may have been done or may have occurred under the prior
legislation, provided said new right does not prejudice or impair any vested
or acquired right, of the same origin." As already stated in the early part of
this decision, the right of ownership of Maria Uson over the lands in
question became vested in 1945 upon the death of her late husband and
this is so because of the imperative provision of the law which commands
that the rights to succession are transmitted from the moment of death
(Article 657, old Civil Code). The new right recognized by the new Civil
Code in favor of the illegitimate children of the deceased cannot, therefore,
be asserted to the impairment of the vested right of Maria Uson over the
lands in dispute.
As regards the claim that Maria Uson, while her deceased husband was
lying in state, in a gesture of pity or compassion, agreed to assign the lands
in question to the minor children for the reason that they were acquired
while the deceased was living with their mother and Maria Uson wanted to
assuage somewhat the wrong she has done to them, this much can be
said; apart from the fact that this claim is disputed, we are of the opinion
that said assignment, if any, partakes of the nature of a donation of real
property, inasmuch as it involves no material consideration, and in order
that it may be valid it shall be made in a public document and must be
accepted either in the same document or in a separate one (Article 633, old
Civil Code). Inasmuch as this essential formality has not been followed, it
results that the alleged assignment or donation has no valid effect.
WHEREFORE, the decision appealed from is affirmed, without costs.
ROSALIO BONILLA (a minor) SALVACION BONILLA (a minor) and
PONCIANO BONILLA (their father) who represents the minors,
petitioners,
vs.
LEON BARCENA, MAXIMA ARIAS BALLENA, ESPERANZA BARCENA,
MANUEL BARCENA, AGUSTINA NERI, widow of JULIAN TAMAYO and
HON. LEOPOLDO GIRONELLA of the Court of First Instance of Abra,
respondents.
Federico Paredes for petitioners.
Demetrio V. Pre for private respondents.
MARTIN, J:
This is a petition for review 1 of the Order of the Court of First Instance of Abra
in Civil Case No. 856, entitled Fortunata Barcena vs. Leon Barcena, et al.,
denying the motions for reconsideration of its order dismissing the complaint in
the aforementioned case.
On March 31, 1975 Fortunata Barcena, mother of minors Rosalio Bonilla

and Salvacion Bonilla and wife of Ponciano Bonilla, instituted a civil action
in the Court of First Instance of Abra, to quiet title over certain parcels of
land located in Abra.
On May 9, 1975, defendants filed a written motion to dismiss the complaint,
but before the hearing of the motion to dismiss, the counsel for the plaintiff
moved to amend the complaint in order to include certain allegations
therein. The motion to amend the complaint was granted and on July 17,
1975, plaintiffs filed their amended complaint.
On August 4, 1975, the defendants filed another motion to dismiss the
complaint on the ground that Fortunata Barcena is dead and, therefore, has
no legal capacity to sue. Said motion to dismiss was heard on August 14,
1975. In said hearing, counsel for the plaintiff confirmed the death of
Fortunata Barcena, and asked for substitution by her minor children and
her husband, the petitioners herein; but the court after the hearing
immediately dismissed the case on the ground that a dead person cannot
be a real party in interest and has no legal personality to sue.
On August 19, 1975, counsel for the plaintiff received a copy of the order
dismissing the complaint and on August 23, 1975, he moved to set aside
the order of the dismissal pursuant to Sections 16 and 17 of Rule 3 of the
Rules of Court. 2
On August 28, 1975, the court denied the motion for reconsideration filed
by counsel for the plaintiff for lack of merit. On September 1, 1975, counsel
for deceased plaintiff filed a written manifestation praying that the minors
Rosalio Bonilla and Salvacion Bonilla be allowed to substitute their
deceased mother, but the court denied the counsel's prayer for lack of
merit. From the order, counsel for the deceased plaintiff filed a second
motion for reconsideration of the order dismissing the complaint claiming
that the same is in violation of Sections 16 and 17 of Rule 3 of the Rules of
Court but the same was denied.
Hence, this petition for review.
The Court reverses the respondent Court and sets aside its order
dismissing the complaint in Civil Case No. 856 and its orders denying the
motion for reconsideration of said order of dismissal. While it is true that a
person who is dead cannot sue in court, yet he can be substituted by his
heirs in pursuing the case up to its completion. The records of this case
show that the death of Fortunata Barcena took place on July 9, 1975 while
the complaint was filed on March 31, 1975. This means that when the
complaint was filed on March 31, 1975, Fortunata Barcena was still alive,
and therefore, the court had acquired jurisdiction over her person. If
thereafter she died, the Rules of Court prescribes the procedure whereby a
party who died during the pendency of the proceeding can be substituted.
Under Section 16, Rule 3 of the Rules of Court "whenever a party to a
pending case dies ... it shall be the duty of his attorney to inform the court
promptly of such death ... and to give the name and residence of his
executor, administrator, guardian or other legal representatives." This duty
was complied with by the counsel for the deceased plaintiff when he
manifested before the respondent Court that Fortunata Barcena died on

July 9, 1975 and asked for the proper substitution of parties in the case.
The respondent Court, however, instead of allowing the substitution,
dismissed the complaint on the ground that a dead person has no legal
personality to sue. This is a grave error. Article 777 of the Civil Code
provides "that the rights to the succession are transmitted from the moment
of the death of the decedent." From the moment of the death of the
decedent, the heirs become the absolute owners of his property, subject to
the rights and obligations of the decedent, and they cannot be deprived of
their rights thereto except by the methods provided for by law. 3 The moment
of death is the determining factor when the heirs acquire a definite right to the
inheritance whether such right be pure or contingent. 4 The right of the heirs to
the property of the deceased vests in them even before judicial declaration of
their being heirs in the testate or intestate proceedings. 5 When Fortunata
Barcena, therefore, died her claim or right to the parcels of land in litigation in
Civil Case No. 856, was not extinguished by her death but was transmitted to her
heirs upon her death. Her heirs have thus acquired interest in the properties in
litigation and became parties in interest in the case. There is, therefore, no
reason for the respondent Court not to allow their substitution as parties in
interest for the deceased plaintiff.
Under Section 17, Rule 3 of the Rules of Court "after a party dies and the
claim is not thereby extinguished, the court shall order, upon proper notice,
the legal representative of the deceased to appear and be substituted for
the deceased, within such time as may be granted ... ." The question as to
whether an action survives or not depends on the nature of the action and
the damage sued for. 6 In the causes of action which survive the wrong
complained affects primarily and principally property and property rights, the
injuries to the person being merely incidental, while in the causes of action which
do not survive the injury complained of is to the person, the property and rights of
property affected being incidental. 7 Following the foregoing criterion the claim of
the deceased plaintiff which is an action to quiet title over the parcels of land in
litigation affects primarily and principally property and property rights and
therefore is one that survives even after her death. It is, therefore, the duty of the
respondent Court to order the legal representative of the deceased plaintiff to
appear and to be substituted for her. But what the respondent Court did, upon
being informed by the counsel for the deceased plaintiff that the latter was dead,
was to dismiss the complaint. This should not have been done for under the
same Section 17, Rule 3 of the Rules of Court, it is even the duty of the court, if
the legal representative fails to appear, to order the opposing party to procure the
appointment of a legal representative of the deceased. In the instant case the
respondent Court did not have to bother ordering the opposing party to procure
the appointment of a legal representative of the deceased because her counsel
has not only asked that the minor children be substituted for her but also
suggested that their uncle be appointed as guardian ad litem for them because
their father is busy in Manila earning a living for the family. But the respondent
Court refused the request for substitution on the ground that the children were
still minors and cannot sue in court. This is another grave error because the
respondent Court ought to have known that under the same Section 17, Rule 3 of
the Rules of Court, the court is directed to appoint a guardian ad litem for the
minor heirs. Precisely in the instant case, the counsel for the deceased plaintiff
has suggested to the respondent Court that the uncle of the minors be appointed
to act as guardian ad litem for them. Unquestionably, the respondent Court has
gravely abused its discretion in not complying with the clear provision of the
Rules of Court in dismissing the complaint of the plaintiff in Civil Case No. 856
and refusing the substitution of parties in the case.
IN VIEW OF THE FOREGOING, the order of the respondent Court

dismissing the complaint in Civil Case No. 856 of the Court of First Instance
of Abra and the motions for reconsideration of the order of dismissal of said
complaint are set aside and the respondent Court is hereby directed to
allow the substitution of the minor children, who are the petitioners therein
for the deceased plaintiff and to appoint a qualified person as guardian ad
litem for them. Without pronouncement as to costs.
SO ORDERED.
Teehankee (Chairman), Makasiar, Esguerra and Muoz Palma, JJ.,
concur.
Footnotes
1 Which this Court treats as special civil action as per its Resolution dated
February 11, 1976.
2 Section 16. Duty of Attorney upon which death, incapacity or
incompetency of party. - Whenever a party to a pending case dies,
becomes incapacitated or incompetent, it shall be the duty of his attorney to
inform the court promptly of such death, incapacity or incompetency, and to
give the name and residence of his executor, administrator, guardian or
other legal representative.
Section 17. Death of party.After a party dies and the claim is not thereby
extinguished, the court shall order, upon proper notice, the legal
representative of the deceased to appear and to be substituted for
deceased, within a period of thirty (30) days, or within such time as may be
granted. If the legal representative fails to appear within said time, the court
may order the opposing party to procure the appointment of a legal
representative of the within a time to be specified by the court, and the

representative shall immediately appear for and on behalf of the interest of
the deceased. The court charges involved in procuring such appointment, if
defrayed by the opposing party, may be recovered as costs. The heirs of
the deceased may be allowed to be substituted for the deceased, without
requiring the appointment of an executor or administrator and the court
may appoint guardian ad litem for the minor heirs.
PETRA BORROMEO, VITALIANA BORROMEO, AMELINDA
BORROMEO, and JOSE CUENCO BORROMEO, petitioners,
vs.
HONORABLE FRANCISCO P. BURGOS, Presiding Judge of Branch
XV, Regional Trial Court of Cebu; RICARDO V. REYES, Administrator
of the Estate of VITO BORROMEO in Sp. Proc. No. 916-R; and
DOMINGO L. ANTIGUA, respondents.
GUTIERREZ, JR., J.:
1. CIVIL LAW; SUCCESSION; HEIRS ACQUIRE A RIGHT TO SUCCESSION FROM THE
MOMENT OF THE DEATH OF THE DECEASED; HEREDITARY RIGHTS MAY BE WAIVED
PRIOR TO THE PARTITION OF THE ESTATE. The prevailing jurisprudence on
waiver of hereditary rights is that "the properties included in an existing inheritance
cannot be considered as belonging to third persons with respect to the heirs, who
by fiction of law continue the personality of the former. Nor do such properties have
the character of future property, because the heirs acquire a right to succession
from the moment of the death of the deceased, by principle established in article
657 and applied by article 661 of the Civil Code. according to which the heirs
succeed the deceased by the mere fact of death. More or less, time may elapse
from the moment of the death of the deceased until the heirs enter into possession
of the hereditary property, but the acceptance in any event retroacts to the moment
of the death, in accordance with article 989 of the Civil Code. The right is vested,
although conditioned upon the adjudication of the corresponding hereditary
portion." (Osorio v. Osorio and Ynchausti Steamship Co., 41 Phil., 531). The heirs,
therefore, could waive their hereditary rights in 1967 even if the order to partition
the estate was issued only in 1969.
2. ID.; ID.; WAIVER OF HEREDITARY RIGHTS, ESSENTIAL ELEMENTS. For a
waiver to exist, three elements are essential: (1) the existence of a right; (2) the
knowledge of the existence thereof; and (3) an intention to relinquish such right.
(People v. Salvador, (CA) 53 O.G. No. 22, p. 8116, 8120). The intention to waive a
right or advantage must be shown clearly and convincingly, and when the only
proof of intention rests in what a party does, his act should be so manifestly
consistent with, and indicative of an intent to, voluntarily relinquish the particular
right or advantage that no other reasonable explanation of his conduct is possible

(67 C.J., 311). (Fernandez v. Sebido, Et Al., 70 Phil., 151, 159).
3. REMEDIAL LAW; JURISDICTION; TRIAL COURT HAS JURISDICTION TO PASS
UPON THE VALIDITY OF THE WAIVER AGREEMENT; EXTENDS TO MATTERS
INCIDENTAL AND COLLATERAL TO THE EXERCISE OF ITS POWERS IN HANDLING
SETTLEMENT OF ESTATE. With respect to the issue of jurisdiction, we hold that
the trial court had jurisdiction to pass upon the validity of the waiver agreement. It
must be noted that in Special Proceedings No. 916-R the lower court disallowed the
probate of the will and declared it as fake. Upon appeal, this Court affirmed the
decision of the lower court on March 30, 1967, in G.R. No. L-18498. Subsequently,
several parties came before the lower court filing claims or petitions alleging
themselves as heirs of the intestate estate of Vito Borromeo. We see no
impediment to the trial court in exercising jurisdiction and trying the said claims or
petitions. Moreover, the jurisdiction of the trial court extends to matters incidental
and collateral to the exercise of its recognized powers in handling the settlement of
the estate.
4. JUDICIAL ETHICS; JUDGES; SUSPECION OF PARTIALITY ON THE PART OF A
TRIAL JUDGE MUST BE AVOIDED AT ALL COSTS; SHOULD INHIBIT HIMSELF FROM
HEARING A CASE AT THE VERY FIRST SIGN OF LACK OF FAITH AND TRUST TO HIS
ACTIONS WHETHER WELL-GROUNDED OR NOT. The allegations of the private
respondents in their motion for inhibition, more specifically the insistence of the
trial judge to sell the entire estate at P6,700,000.00, where 4/9 group of heirs
objected, cannot easily be ignored. Suspicion of partiality on the part of a trial
judge must be avoided at all costs. In the case of Bautista v. Rebueno (81 SCRA
535), this Court stated: ". . . The Judge must maintain and preserve the trust and
faith of the parties litigants. He must hold himself above reproach and suspicion. At
the very first sign of lack of faith and trust to his actions, whether well grounded or
not, the Judge has no other alternative but inhibit himself from the case. A judge
may not be legally prohibited from sitting in a litigation, but when circumstances
appear that will induce doubt to his honest actuations and probity in favor of either
party, or incite such state of mind, he should conduct a careful self-examination. He
should exercise his discretion in a way that the peoples faith in the Courts of
Justice is not impaired. The better course for the Judge under such circumstances is
to disqualify himself. That way, he avoids being misunderstood, his reputation for
probity and objectivity is preserved. What is more important, the ideal of impartial
administration of justice is lived up to." In this case, the fervent distrust of the
private respondents is based on sound reasons.
5. CIVIL LAW; ATTORNEYS FEES; OBLIGATION OF THE INDIVIDUAL HEIRS AND
NOT THAT OF THE ESTATE OF THE DECEASED. We agree with the petitioners
contention that attorneys fees are not the obligation of the estate but of the
individual heirs who individually hired their respective lawyers. The portion,
therefore, of the Order of August 15, 1969, segregating the exhorbitantly excessive
amount of 40% of the market value of the estate from which attorneys fees shall
be taken and paid should be deleted.
These cases before us all stem from SP. PROC. NO. 916-R of the then
Court of First Instance of Cebu.
G.R. No. 41171
Vito Borromeo, a widower and permanent resident of Cebu City, died on
March 13, 1952, in Paranaque, Rizal at the age of 88 years, without forced
heirs but leaving extensive properties in the province of Cebu.
On April 19, 1952, Jose Junquera filed with the Court of First Instance of
Cebu a petition for the probate of a one page document as the last will and
testament left by the said deceased, devising all his properties to Tomas,
Fortunato and Amelia, all surnamed Borromeo, in equal and undivided
shares, and designating Junquera as executor thereof. The case was
docketed as Special Proceedings No. 916-R. The document, drafted in
Spanish, was allegedly signed and thumbmarked by the deceased in the
presence of Cornelio Gandionco, Eusebio Cabiluna, and Felixberto
Leonardo who acted as witnesses.
Oppositions to the probate of the will were filed. On May 28, 1960, after
due trial, the probate court held that the document presented as the will of
the deceased was a forgery.
On appeal to this Court, the decision of the probate court disallowing the
probate of the will was affirmed in Testate Estate of Vito Borromeo, Jose H.
Junquera et al. v. Crispin Borromeo et al. (19 SCRA 656).
The testate proceedings was converted into an intestate proceedings.
Several parties came before the court filing claims or petitions alleging
themselves as heirs of the intestate estate of Vito Borromeo.
The following petitions or claims were filed:
1. On August 29, 1967, the heirs of Jose Ma. Borromeo and Cosme
Borromeo filed a petition for declaration of heirs and determination of
heirship. There was no opposition filed against said petition.
2. On November 26, 1967, Vitaliana Borromeo also filed a petition for
declaration as heir. The heirs of Jose Ma. Borromeo and Cosme Borromeo
filed an opposition to this petition.
3. On December 13, 1967, Jose Barcenilla, Jr., Anecita Ocampo de Castro,
Ramon Ocampo, Lourdes Ocampo, Elena Ocampo, Isagani Morre, Rosario
Morre, Aurora Morre, Lila Morre, Lamberto Morre, and Patricia Morre, filed
a petition for declaration of heirs and determination of shares. The petition
was opposed by the heirs of Jose and Cosme Borromeo.
4. On December 2, 1968, Maria Borromeo Atega, Luz Borromeo,
Hermenegilda Borromeo Nonnenkamp, Rosario Borromeo, and Fe
Borromeo Queroz filed a claim. Jose Cuenco Borromeo, Crispin Borromeo,

Vitaliana Borromeo and the heirs of Carlos Borromeo represented by Jose
Talam filed oppositions to this claim.
When the aforementioned petitions and claims were heard jointly, the
following facts were established:
1. Maximo Borromeo and Hermenegilda Galan, husband and wife (the
latter having predeceased the former), were survived by their eight (8)
children, namely,
Jose Ma. Borromeo
Cosme Borromeo
Pantaleon Borromeo
Vito Borromeo
Paulo Borromeo
Anecita Borromeo
Quirino Borromeo and
Julian Borromeo
2. Vito Borromeo died a widower on March 13, 1952, without any issue,
and all his brothers and sisters predeceased him.
3. Vito's brother Pantaleon Borromeo died leaving the following children:
a. Ismaela Borromeo,who died on Oct. 16, 1939
b. Teofilo Borromeo, who died on Aug. 1, 1955, or 3 years after the death of
Vito Borromeo. He was married to Remedios Cuenco Borromeo, who died
on March 28, 1968. He had an only son-Atty. Jose Cuenco Borromeo one
of the petitioners herein.
c. Crispin Borromeo, who is still alive.
4. Anecita Borromeo, sister of Vito Borromeo, died ahead of him and left an
only daughter, Aurora B. Ocampo, who died on Jan. 30, 1950 leaving the
following children:
a. Anecita Ocampo Castro
b. Ramon Ocampo
c. Lourdes Ocampo
d. Elena Ocampo, all living, and
e. Antonieta Ocampo Barcenilla (deceased), survived by claimant Jose
Barcenilla, Jr.
5. Cosme Borromeo, another brother of Vito Borromeo, died before the war
and left the following children:
a. Marcial Borromeo
b. Carlos Borromeo,who died on Jan. 18, 1965,survived by his wife,
Remedios Alfonso, and his only daughter, Amelinda Borromeo Talam
c. Asuncion Borromeo
d. Florentina Borromeo, who died in 1948.

e. Amilio Borromeo, who died in 1944.
f. Carmen Borromeo, who died in 1925.
The last three died leaving no issue.
6. Jose Ma. Borromeo, another brother of Vito Borromeo, died before the
war and left the following children:
a. Exequiel Borromeo,who died on December 29, 1949
b. Canuto Borromeo, who died on Dec. 31, 1959, leaving the following
children:
aa. Federico Borromeo
bb. Marisol Borromeo (Maria B. Putong, Rec. p. 85)
cc. Canuto Borromeo, Jr.
dd. Jose Borromeo
ee. Consuelo Borromeo
ff. Pilar Borromeo
gg. Salud Borromeo
hh. Patrocinio Borromeo Herrera
c. Maximo Borromeo, who died in July, 1948
d. Matilde Borromeo, who died on Aug. 6, 1946
e. Andres Borromeo, who died on Jan. 3, 1923, but survived by his
children:
aa. Maria Borromeo Atega
bb. Luz Borromeo
cc. Hermenegilda Borromeo Nonnenkamp
dd. Rosario Borromeo
ee. Fe Borromeo Queroz
On April 10, 1969, the trial court, invoking Art. 972 of the Civil Code, issued
an order declaring the following, to the exclusion of all others, as the
intestate heirs of the deceased Vito Borromeo:
1. Jose Cuenco Borromeo
2. Judge Crispin Borromeo
3. Vitaliana Borromeo
4. Patrocinio Borromeo Herrera
5. Salud Borromeo
6. Asuncion Borromeo
7. Marcial Borromeo
8. Amelinda Borromeo de Talam, and
9. The heirs of Canuto Borromeo
The court also ordered that the assets of the intestate estate of Vito
Borromeo shall be divided into 4/9 and 5/9 groups and distributed in equal
and equitable shares among the 9 abovenamed declared intestate heirs.
On April 21 and 30, 1969, the declared heirs, with the exception of
Patrocinio B. Herrera, signed an agreement of partition of the properties of
the deceased Vito Borromeo which was approved by the trial court, in its
order of August 15, 1969. In this same order, the trial court ordered the
administrator, Atty Jesus Gaboya, Jr., to partition the properties of the
deceased in the way and manner they are divided and partitioned in the
said Agreement of Partition and further ordered that 40% of the market
value of the 4/9 and 5/9 of the estate shall be segregated. All attorney's
fees shall be taken and paid from this segregated portion.
On August 25, 1972, respondent Fortunato Borromeo, who had earlier
claimed as heir under the forged will, filed a motion before the trial court
praying that he be declared as one of the heirs of the deceased Vito
Borromeo, alleging that he is an illegitimate son of the deceased and that in
the declaration of heirs made by the trial court, he was omitted, in disregard
of the law making him a forced heir entitled to receive a legitime like all
other forced heirs. As an acknowledged illegitimate child, he stated that he
was entitled to a legitime equal in every case to four-fifths of the legitime of
an acknowledged natural child.
Finding that the motion of Fortunato Borromeo was already barred by the
order of the court dated April 12, 1969 declaring the persons named therein
as the legal heirs of the deceased Vito Borromeo, the court dismissed the
motion on June 25, 1973.
Fortunato Borromeo filed a motion for reconsideration. In the memorandum
he submitted to support his motion for reconsideration, Fortunato changed
the basis for his claim to a portion of the estate. He asserted and
incorporated a Waiver of Hereditary Rights dated July 31, 1967,
supposedly signed by Pilar N. Borromeo, Maria B. Putong, Jose Borromeo,
Canuto V. Borromeo, Jr., Salud Borromeo, Patrocinio Borromeo-Herrera,
Marcial Borromeo, Asuncion Borromeo, Federico V. Borromeo, Consuelo B.
Morales, Remedios Alfonso and Amelinda B. Talam In the waiver, five of
the nine heirs relinquished to Fortunato their shares in the disputed estate.
The motion was opposed on the ground that the trial court, acting as a
probate court, had no jurisdiction to take cognizance of the claim; that
respondent Fortunato Borromeo is estopped from asserting the waiver
agreement; that the waiver agreement is void as it was executed before the
declaration of heirs; that the same is void having been executed before the
distribution of the estate and before the acceptance of the inheritance; and
that it is void ab initio and inexistent for lack of subject matter.
On December 24, 1974, after due hearing, the trial court concluding that
the five declared heirs who signed the waiver agreement assigning their
hereditary rights to Fortunato Borromeo had lost the same rights, declared
the latter as entitled to 5/9 of the estate of Vito Borromeo.
A motion for reconsideration of this order was denied on July 7, 1975.
In the present petition, the petitioner seeks to annul and set aside the trial
court's order dated December 24, 1974, declaring respondent Fortunato
Borromeo entitled to 5/9 of the estate of Vito Borromeo and the July 7,
1975 order, denying the motion for reconsideration.
The petitioner argues that the trial court had no jurisdiction to take
cognizance of the claim of respondent Fortunato Borromeo because it is
not a money claim against the decedent but a claim for properties, real and
personal, which constitute all of the shares of the heirs in the decedent's
estate, heirs who allegedly waived their rights in his favor. The claim of the
private respondent under the waiver agreement, according to the petitioner,
may be likened to that of a creditor of the heirs which is improper. He
alleges that the claim of the private respondent under the waiver
agreement was filed beyond the time allowed for filing of claims as it was
filed only sometime in 1973, after there had been a declaration of heirs
(April 10, 1969), an agreement of partition (April 30, 1969), the approval of
the agreement of partition and an order directing the administrator to
partition the estate (August 15, 1969), when in a mere memorandum, the
existence of the waiver agreement was brought out.
It is further argued by the petitioner that the document entitled " waiver of
Hereditary Rights" executed on July 31, 1967, aside from having been
cancelled and revoked on June 29, 1968, by Tomas L. Borromeo,
Fortunato Borromeo and Amelia Borromeo, is without force and effect
because there can be no effective waiver of hereditary rights before there
has been a valid acceptance of the inheritance the heirs intend to transfer.
Pursuant to Article 1043 of the Civil Code, to make acceptance or
repudiation of inheritance valid, the person must be certain of the death of
the one from whom he is to inherit and of his right to the inheritance. Since
the petitioner and her co-heirs were not certain of their right to the
inheritance until they were declared heirs, their rights were, therefore,
uncertain. This view, according to the petitioner, is also supported by Article
1057 of the same Code which directs heirs, devicees, and legatees to
signify their acceptance or repudiation within thirty days after the court has
issued an order for the distribution of the estate.
Respondent Fortunato Borromeo on the other hand, contends that under

Article 1043 of the Civil Code there is no need for a person to be first
declared as heir before he can accept or repudiate an inheritance. What is
required is that he must first be certain of the death of the person from
whom he is to inherit and that he must be certain of his right to the
inheritance. He points out that at the time of the signing of the waiver
document on July 31, 1967, the signatories to the waiver document were
certain that Vito Borromeo was already dead as well as of their rights to the
inheritance as shown in the waiver document itself.
With respect to the issue of jurisdiction of the trial court to pass upon the
validity of the waiver of hereditary rights, respondent Borromeo asserts that
since the waiver or renunciation of hereditary rights took place after the
court assumed jurisdiction over the properties of the estate it partakes of
the nature of a partition of the properties of the estate needing approval of
the court because it was executed in the course of the proceedings. lie
further maintains that the probate court loses jurisdiction of the estate only
after the payment of all the debts of the estate and the remaining estate is
distributed to those entitled to the same.
The prevailing jurisprudence on waiver of hereditary rights is that "the
properties included in an existing inheritance cannot be considered as
belonging to third persons with respect to the heirs, who by fiction of law
continue the personality of the former. Nor do such properties have the
character of future property, because the heirs acquire a right to succession
from the moment of the death of the deceased, by principle established in
article 657 and applied by article 661 of the Civil Code, according to which
the heirs succeed the deceased by the mere fact of death. More or less,
time may elapse from the moment of the death of the deceased until the
heirs enter into possession of the hereditary property, but the acceptance in
any event retroacts to the moment of the death, in accordance with article
989 of the Civil Code. The right is vested, although conditioned upon the
adjudication of the corresponding hereditary portion." (Osorio v. Osorio and
Ynchausti Steamship Co., 41 Phil., 531). The heirs, therefore, could waive
their hereditary rights in 1967 even if the order to partition the estate was
issued only in 1969.
In this case, however, the purported "Waiver of Hereditary Rights" cannot
be considered to be effective. For a waiver to exist, three elements are
essential: (1) the existence of a right; (2) the knowledge of the existence
thereof; and (3) an intention to relinquish such right. (People v. Salvador,
(CA) 53 O.G. No. 22, p. 8116, 8120). The intention to waive a right or
advantage must be shown clearly and convincingly, and when the only
proof of intention rests in what a party does, his act should be so manifestly
consistent with, and indicative of an intent to, voluntarily relinquish the
particular right or advantage that no other reasonable explanation of his
conduct is possible (67 C.J., 311). (Fernandez v. Sebido, et al., 70 Phil.,
151, 159).
The circumstances of this case show that the signatories to the waiver
document did not have the clear and convincing intention to relinquish their
rights, Thus: (1) On October 27, 1967. Fortunato, Tomas, and Amelia
Borromeo filed a pleading entitled "Compliance" wherein they submitted a
proposal for the amicable settlement of the case. In that Compliance, they
proposed to concede to all the eight (8) intestate heirs of Vito Borromeo all
properties, personal and real, including all cash and sums of money in the
hands of the Special Administrator, as of October 31, 1967, not contested
or claimed by them in any action then pending in the Court of First Instance
of Cebu. In turn, the heirs would waive and concede to them all the 14
contested lots. In this document, the respondent recognizes and concedes
that the petitioner, like the other signatories to the waiver document, is an
heir of the deceased Vito Borromeo, entitled to share in the estate. This
shows that the "Waiver of Hereditary Rights" was never meant to be what
the respondent now purports it to be. Had the intent been otherwise, there
would not be any reason for Fortunato, Tomas, and Amelia Borromeo to
mention the heirs in the offer to settle the case amicably, and offer to
concede to them parts of the estate of the deceased; (2) On April 21 and
30, 1969, the majority of the declared heirs executed an Agreement on how
the estate they inherited shall be distributed. This Agreement of Partition
was approved by the trial court on August 15, 1969; (3) On June 29, 1968,
the petitioner, among others, signed a document entitled Deed of
Assignment" purporting to transfer and assign in favor of the respondent
and Tomas and Amelia Borromeo all her (Patrocinio B. Herrera's) rights,
interests, and participation as an intestate heir in the estate of the
deceased Vito Borromeo. The stated consideration for said assignment
was P100,000.00; (4) On the same date, June 29, 1968, the respondent
Tomas, and Amelia Borromeo (assignees in the aforementioned deed of
assignment) in turn executed a "Deed of Reconveyance" in favor of the
heirs-assignors named in the same deed of assignment. The stated
consideration was P50,000.00; (5) A Cancellation of Deed of Assignment
and Deed of Reconveyance was signed by Tomas Borromeo and Amelia
Borromeo on October 15, 1968, while Fortunato Borromeo signed this
document on March 24, 1969.
With respect to the issue of jurisdiction, we hold that the trial court had
jurisdiction to pass upon the validity of the waiver agreement. It must be
noted that in Special Proceedings No. 916-R the lower court disallowed the
probate of the will and declared it as fake. Upon appeal, this Court affirmed
the decision of the lower court on March 30, 1967, in G.R. No. L-18498.
Subsequently, several parties came before the lower court filing claims or
petitions alleging themselves as heirs of the intestate estate of Vito
Borromeo. We see no impediment to the trial court in exercising jurisdiction
and trying the said claims or petitions. Moreover, the jurisdiction of the trial
court extends to matters incidental and collateral to the exercise of its
recognized powers in handling the settlement of the estate.
In view of the foregoing, the questioned order of the trial court dated
December 24, 1974, is hereby SET ASIDE.
G.R. No. 55000
This case was originally an appeal to the Court of Appeals from an order of
the Court of First Instance of Cebu, Branch 11, dated December 24, 1974,
declaring the waiver document earlier discussed in G.R. No. 41171 valid.
The appellate court certified this case to this Court as the questions raised
are all of law.
The appellants not only assail the validity of the waiver agreement but they
also question the jurisdiction of the lower court to hear and decide the
action filed by claimant Fortunato Borromeo.
The appellants argue that when the waiver of hereditary right was executed
on July 31, 1967, Pilar Borromeo and her children did not yet possess or
own any hereditary right in the intestate estate of the deceased Vito
Borromeo because said hereditary right was only acquired and owned by
them on April 10, 1969, when the estate was ordered distributed.
They further argue that in contemplation of law, there is no such contract of
waiver of hereditary right in the present case because there was no object,
which is hereditary right, that could be the subject matter of said waiver,
and, therefore, said waiver of hereditary right was not only null and void ab
initio but was inexistent.
With respect to the issue of jurisdiction, the appellants contend that without
any formal pleading filed by the lawyers of Fortunato Borromeo for the
approval of the waiver agreement and without notice to the parties
concerned, two things which are necessary so that the lower court would
be vested with authority and jurisdiction to hear and decide the validity of
said waiver agreement, nevertheless, the lower court set the hearing on
September 25, 1973 and without asking for the requisite pleading. This
resulted in the issuance of the appealed order of December 24, 1974,
which approved the validity of the waiver agreement. The appellants

contend that this constitutes an error in the exercise of jurisdiction.
The appellee on the other hand, maintains that by waiving their hereditary
rights in favor of Fortunato Borromeo, the signatories to the waiver
document tacitly and irrevocably accepted the inheritance and by virtue of
the same act, they lost their rights because the rights from that moment on
became vested in Fortunato Borromeo.
It is also argued by the appellee that under Article 1043 of the Civil Code
there is no need for a person to be declared as heir first before he can
accept or repudiate an inheritance. What is required is that he is certain of
the death of the person from whom he is to inherit, and of his right to the
inheritance. At the time of the signing of the waiver document on July 31,
1967, the signatories to the waiver document were certain that Vito
Borromeo was already dead and they were also certain of their right to the
inheritance as shown by the waiver document itself.
On the allegation of the appellants that the lower court did not acquire
jurisdiction over the claim because of the alleged lack of a pleading
invoking its jurisdiction to decide the claim, the appellee asserts that on
August 23, 1973, the lower court issued an order specifically calling on all
oppositors to the waiver document to submit their comments within ten
days from notice and setting the same for hearing on September 25, 1973.
The appellee also avers that the claim as to a 5/9 share in the inheritance
involves no question of title to property and, therefore, the probate court
can decide the question.
The issues in this case are similar to the issues raised in G.R. No. 41171.
The appellants in this case, who are all declared heirs of the late Vito
Borromeo are contesting the validity of the trial court's order dated
December 24, 1974, declaring Fortunato Borromeo entitled to 5/9 of the
estate of Vito Borromeo under the waiver agreement.
As stated in G.R. No. 41171, the supposed waiver of hereditary rights can
not be validated. The essential elements of a waiver, especially the clear
and convincing intention to relinquish hereditary rights, are not found in this
case.
The October 27, 1967 proposal for an amicable settlement conceding to all
the eight (8) intestate heirs various properties in consideration for the heirs
giving to the respondent and to Tomas, and Amelia Borromeo the fourteen
(14) contested lots was filed inspite of the fact that on July 31, 1967, some
of the heirs had allegedly already waived or sold their hereditary rights to
the respondent.
The agreement on how the estate is to be distributed, the June 29, 1968
deed of assignment, the deed of reconveyance, and the subsequent
cancellation of the deed of assignment and deed of reconveyance all argue
against the purported waiver of hereditary rights.
Concerning the issue of jurisdiction, we have already stated in G.R. No.
41171 that the trial court acquired jurisdiction to pass upon the validity of
the waiver agreement because the trial court's jurisdiction extends to
matters incidental and collateral to the exercise of its recognized powers in
handling the settlement of the estate.
The questioned order is, therefore, SET ASIDE.
G.R. No. 62895
A motion dated April 28, 1972, was filed by Atty. Raul M. Sesbreno,
representative of some of the heirs-distributees, praying for the immediate
closure of Special Proceeding No. 916-R. A similar motion dated May 29,
1979 was filed by Atty. Jose Amadora. Both motions were grounded on the
fact that there was nothing more to be done after the payment of all the
obligations of the estate since the order of partition and distribution had
long become final.
Alleging that respondent Judge Francisco P. Burgos failed or refused to
resolve the aforesaid motions, petitioner Jose Cuenco Borromeo-filed a
petition for mandamus before the Court of Appeals to compel the
respondent judge to terminate and close Special Proceedings No. 916-R.
Finding that the inaction of the respondent judge was due to pending
motions to compel the petitioner, as co-administrator, to submit an
inventory of the real properties of the estate and an accounting of the cash
in his hands, pending claims for attorney's fees, and that mandamus will
not lie to compel the performance of a discretionary function, the appellate
court denied the petition on May 14, 1982. The petitioner's motion for
reconsideration was likewise denied for lack of merit. Hence, this petition.
The petitioner's stand is that the inaction of the respondent judge on the
motion filed on April 28, 1972 for the closure of the administration
proceeding cannot be justified by the filing of the motion for inventory and
accounting because the latter motion was filed only on March 2, 1979. He
claimed that under the then Constitution, it is the duty of the respondent
judge to decide or resolve a case or matter within three months from the
date of its submission.
The respondents contend that the motion to close the administration had
already been resolved when the respondent judge cancelled all settings of
all incidents previously set in his court in an order dated June 4, 1979,
pursuant to the resolution and restraining order issued by the Court of

Appeals enjoining him to maintain status quo on the case.
As stated in G.R. No. 41171, on April 21 and 30, 1969, the declared heirs,
with the exception of Patrocinio B. Herrera, signed an agreement of
partition of the properties of the deceased Vito Borromeo which was
approved by the trial court, in its order dated August 15, 1969. In this same
order, the trial court ordered the administrator, Atty. Jesus Gaboya, Jr., to
partition the properties of the deceased in the way and manner they are
divided and partitioned in the said Agreement of Partition and further
ordered that 40% of the market value of the 4/9 and 5/9 of the estate shall
be segregated and reserved for attorney's fees.
According to the manifestation of Judge Francisco Burgos dated July 5,
1982, (p. 197, Rollo, G. R. No. 41171) his court has not finally distributed to
the nine (9) declared heirs the properties due to the following
circumstances:
1. The court's determination of the market value of the estate in order to
segregate the 40% reserved for attorney's fees;
2. The order of December 24, 1974, declaring Fortunato Borromeo as
beneficiary of the 5/9 of the estate because of the waiver agreement signed
by the heirs representing the 5/9 group which is still pending resolution by
this Court (G.R. No. 4117 1);
3. The refusal of administrator Jose Cuenco Borromeo to render his
accounting; and
4. The claim of Marcela Villegas for 1/2 of the estate causing annotations of
notices of lis pendens on the different titles of the properties of the estate.
Since there are still real properties of the estate that were not vet
distributed to some of the declared heirs, particularly the 5/9 group of heirs
due to the pending resolution of the waiver agreement, this Court in its
resolution of June 15, 1983, required the judge of the Court of First
Instance of Cebu, Branch 11, to expedite the determination of Special
Proceedings No. 916-R and ordered the co-administrator Jose Cuenco
Borromeo to submit an inventory of real properties of the estate and to
render an accounting of cash and bank deposits realized from rents of
several properties.
The matter of attorney's fees shall be discussed in G.R. No. 65995.
Considering the pronouncements stated in:
1. G.R. No. 41171 & G.R. No. 55000, setting aside the Order of the trial
court dated December 24, 1974;
2. G.R. No. 63818, denying the petition for review seeking to modify the
decision of the Intermediate Appellate Court insofar as it disqualifies and
inhibits Judge Francisco P. Burgos from further hearing the Intestate Estate
of Vito Borromeo and ordering the remand of the case to the
Executive,Judge of the Regional trial Court of Cebu for re-raffling; and
3. G.R. No. 65995, granting the petition to restrain the respondents from
further acting on any and all incidents in Special proceedings No. 916-11
because of the affirmation of the decision of the Intermediate Appellate
Court in G.R. No. 63818.
the trial court may now terminate and close Special Proceedings No. 916R, subject to the submission of an inventory of the real properties of the
estate and an accounting of the call and bank deposits of the petitioner, as
co-administrator of the estate, if he has not vet done so, as required by this
Court in its Resolution dated June 15, 1983. This must be effected with all
deliberate speed.
G.R. No. 63818
On June 9, 1979, respondents Jose Cuenco Borromeo and Petra 0.
Borromeo filed a motion for inhibition in the Court of First Instance of Cebu,
Branch 11, presided over by Judge Francisco P. Burgos to inhibit the judge
from further acting in Special Proceedings No. 916-R. 'The movants
alleged, among others, the following:
xxx
xxx
xxx
6. To keep the agitation to sell moving, Atty. Antigua filed a motion for the
production of the certificates of title and to deposit the same with the
Branch Clerk of Court, presumably for the ready inspection of interested
buyers. Said motion was granted by the Hon. Court in its order of October
2, 1978 which, however, became the subject of various motions for
reconsideration from heirs-distributees who contended that as owners they
cannot be deprived of their titles for the flimsy reasons advanced by Atty,
Antigua. In view of the motions for reconsideration, Atty Antigua ultimately
withdraw his motions for production of titles.
7. The incident concerning the production of titles triggered another incident
involving Atty. Raul H. Sesbreno who was then the counsel of herein
movants Petra O. Borromeo and Amelinda B. Talam In connection with said
incident, Atty. Sesbreno filed a pleading which the tion. presiding, Judge
Considered direct contempt because among others, Atty. Sesbreno
insinuated that the Hon. Presiding Judge stands to receive "fat
commission" from the sale of the entire property. Indeed, Atty. Sesbreno
was seriously in danger of being declared in contempt of court with the dim
prospect of suspension from the practice of his profession. But obviously to
extricate himself from the prospect of contempt and suspension. Atty.
Sesbreno chose rapproachment and ultimately joined forces with Atty.

Antigua, et al., who, together, continued to harass administrator
xxx
xxx
xxx
9. The herein movants are informed and so they allege, that a brother of
the Hon. Presiding Judge is married to a sister of Atty. Domingo L. Antigua.
10. There is now a clear tug of war bet ween Atty. Antigua, et al. who are
agitating for the sale of the entire estate or to buy out the individual heirs,
on the one hand, and the herein movants, on the other, who are not willing
to sell their distributive shares under the terms and conditions presently
proposed. In this tug of war, a pattern of harassment has become apparent
against the herein movants, especially Jose Cuenco Borromeo. Among the
harassments employed by Atty Antigua et al. are the pending motions for
the removal of administrator Jose Cuenco Borromeo, the subpoena duces
tecum issued to the bank which seeks to invade into the privacy of the
personal account of Jose Cuenco Borromeo, and the other matters
mentioned in paragraph 8 hereof. More harassment motions are expected
until the herein movants shall finally yield to the proposed sale. In such a
situation, the herein movants beg for an entirely independent and impartial
judge to pass upon the merits of said incidents.
11. Should the Hon. Presiding Judge continue to sit and take cognizance of
this proceeding, including the incidents above-mentioned, he is liable to be
misunderstood as being biased in favor of Atty Antigua, et al. and
prejudiced against the herein movants. Incidents which may create this
impression need not be enumerated herein. (pp. 39-41, Rollo)
The motion for inhibition was denied by Judge Francisco P. Burgos. Their
motion for reconsideration having been denied, the private respondents
filed a petition for certiorari and/or prohibition with preliminary injunction
before the Intermediate Appellate Court.
In the appellate court, the private respondents alleged, among others, the
following:
xxx
xxx
xxx
16. With all due respect, petitioners regret the necessity of having to state
herein that respondent Hon. Francisco P. Burgos has shown undue interest
in pursing the sale initiated by Atty. Domingo L. Antigua, et al. Significantly,
a brother of respondent Hon. Francisco P. Burgos is married to a sister of
Atty. Domingo L. Antigua.
17. Evidence the proposed sale of the entire properties of the estate cannot
be legally done without the conformity of the heirs-distributees because the
certificates of title are already registered in their names Hence, in pursuit of
the agitation to sell, respondent Hon. Francisco P. Burgos urged the heirsdistributees to sell the entire property based on the rationale that proceeds
thereof deposited in the bank will earn interest more than the present
income of the so called estate. Most of the heirs-distributees, however.
have been petitioner timid to say their piece. Only the 4/9 group of heirs led
by Jose Cuenco Borromeo have had the courage to stand up and refuse
the proposal to sell clearly favored by respondent Hon. Francisco P.
Burgos.
xxx
xxx
xxx
20. Petitioners will refrain from discussing herein the merits of the shotgun
motion of Atty. Domingo L. Antigua as well as other incidents now pending
in the court below which smack of harassment against the herein
petitioners. For, regardless of the merits of said incidents, petitioners
respectfully contend that it is highly improper for respondent Hon.
Francisco P. Burgos to continue to preside over Sp. Proc. No. 916-R by
reason of the following circumstances:
(a) He has shown undue interest in the sale of the properties as initiated by
Atty. Domingo L. Antigua whose sister is married to a brother of
respondent.
(b) The proposed sale cannot be legally done without the conformity of the
heirs-distributees, and petitioners have openly refused the sale, to the great
disappointment of respondent.
(c) The shot gun motion of Atty. Antigua and similar incidents are clearly
intended to harass and embarrass administrator Jose Cuenco Borromeo in
order to pressure him into acceding to the proposed sale.
(d) Respondent has shown bias and prejudice against petitioners by failing
to resolve the claim for attorney's fees filed by Jose Cuenco Borromeo and
the late Crispin Borromeo. Similar claims by the other lawyers were
resolved by respondent after petitioners refused the proposed sale. (pp. 4143, Rollo)
On March 1, 1983, the appellate court rendered its decision granting the
petition for certiorari and/or prohibition and disqualifying Judge Francisco P.
Burgos from taking further cognizance of Special Proceedings No. 916-R.
The court also ordered the transmission of the records of the case to the
Executive Judge of the Regional Trial Court of Region VII for re-raffling.
A motion for reconsideration of the decision was denied by the appellate
court on April 11, 1983. Hence, the present petition for review seeking to
modify the decision of the Intermediate Appellate Court insofar as it
disqualifies and inhibits Judge Francisco P. Burgos from further hearing the
case of Intestate Estate of Vito Borromeo and orders the remand of the
case to the Executive Judge of the Regional Trial Court of Cebu for reraffling.
The principal issue in this case has become moot and academic because
Judge Francisco P. Burgos decided to retire from the Regional Trial Court
of Cebu sometime before the latest reorganization of the judiciary.
However, we decide the petition on its merits for the guidance of the judge
to whom this case will be reassigned and others concerned.
The petitioners deny that respondent Jose Cuenco Borromeo has been
harassed. They contend that Judge Burgos has benn shown unusual
interest in the proposed sale of the entire estate for P6,700,000.00 in favor
of the buyers of Atty. Antigua. They claim that this disinterest is shown by
the judge's order of March 2, 1979 assessing the property of the estate at
P15,000,000.00. They add that he only ordered the administrator to sell so
much of the properties of the estate to pay the attorney's fees of the
lawyers-claimants. To them, the inhibition of Judge Burgos would have
been unreasonable because his orders against the failure of Jose Cuenco
Borromeo, as administrator, to give an accounting and inventory of the
estate were all affirmed by the appellate court. They claim that the
respondent court, should also have taken judicial notice of the resolution of
this Court directing the said judge to "expedite the settlement and
adjudication of the case" in G.R. No. 54232. And finally, they state that the
disqualification of judge Burgos would delay further the closing of the
administration proceeding as he is the only judge who is conversant with
the 47 volumes of the records of the case.
Respondent Jose Cuenco Borromeo, to show that he had been harassed.
countered that Judge Burgos appointed Ricardo V. Reyes as coadministrator of the estate on October 11, 1972, yet Borromeo was singled
out to make an accounting of what t he was supposed to have received as
rentals for the land upon which the Juliana Trade Center is erected, from
January, 1977 to February 1982, inclusive, without mentioning the
withholding tax for the Bureau of Internal Revenue. In order to bolster the
agitation to sell as proposed by Domingo L. Antigua, Judge Burgos invited
Antonio Barredo, Jr., to a series of conferences from February 26 to 28,
1979. During the conferences, Atty. Antonio Barredo, Jr., offered to buy the
shares of the heirs-distributees presumably to cover up the projected sale
initiated by Atty. Antigua.
On March 2, 1979, or two days after the conferences, a motion was filed by
petitioner Domingo L. Antigua praying that Jose Cuenco Borromeo be
required to file an inventory when he has already filed one to account for
cash, a report on which the administrators had already rendered: and to
appear and be examined under oath in a proceeding conducted by Judge

Burgos lt was also prayed that subpoena duces tecum be issued for the
appearance of the Manager of the Consolidated Bank and Trust Co.,
bringing all the bank records in the name of Jose Cuenco Borromeo jointly
with his wife as well as the appearance of heirs-distributees Amelinda
Borromeo Talam and another heir distributee Vitaliana Borromeo.
Simultaneously with the filing of the motion of Domingo Antigua, Atty. Raul
H. Sesbreno filed a request for the issuance of subpoena duces tecum to
the Manager of Consolidated Bank and 'Trust Co., Inc.; Register of Deeds
of Cebu City; Register of Deeds for the Province of Cebu and another
subpoena duces tecum to Atty. Jose Cuenco Borromeo.
On the same date, the Branch Clerk of Court issued a subpoena duces
tecum to the Managert of the bank, the Register of deeds for the City of
Cebu, the Register of Deeds for the Province, of Cebu. and to Jose Cuenco
Borromeo.
On the following day, March 3, 1979, Atty Gaudioso v. Villagonzalo in behalf
of the heirs of Marcial Borromeo who had a common cause with Atty
Barredo, Jr., joined petitioner Domingo L. Antigua by filing a motion for
relief of the administrator.
On March 5, 1979, Atty. Villagonzalo filed a request for the issuance of a
subpoena duces tecum to private respondent Jose Cuenco Borromeo to
bring and produce all the owners" copies of the titles in the court presided
order by Judge Burgos.
Consequently. the Branch Clerk of Court issued a subpoena duces tecum
commanding Atty. Jose Cuenco Borromeo to bring and produce the titles in
court.
All the above-incidents were set for hearing on June 7, 1979 but on June
14, 1979, before the date of the hearing, Judge Burgos issued an order
denying the private respondents' motion for reconsideration and the motion
to quash the subpoena.
It was further argued by the private respondents that if ,judge Francisco P.
Burgos is not inhibited or disqualified from trying Sp. Proc. No. 916-R, there
would be a miscarriage of justice Because for the past twelve years, he had
not done anything towards the closure of the estate proceedings except to
sell the properties of the heirs-distributees as initiated by petitioner
Domingo L. Antigua at 6.7 million pesos while the Intestate Court had
already evaluated it at 15 million pesos.
The allegations of the private respondents in their motion for inhibition,
more specifically, the insistence of the trial judge to sell the entire estate at
P6,700,000.00, where 4/9 group of heirs objected, cannot easily be
1avvphi1
ignored. Suspicion of partiality on the part of a trial judge must be avoided

at all costs. In the case of Bautista v. Rebeuno (81 SCRA 535), this Court
stated:
... The Judge must maintain and preserve the trust and faith of the parties
litigants. He must hold himself above reproach and suspicion. At the very
first sign of lack of faith and trust to his actions, whether well grounded or
not, the Judge has no other alternative but inhibit himself from the case. A
judge may not be legally Prohibited from sitting in a litigation, but when
circumstances appear that will induce doubt to his honest actuations and
probity in favor or of either partly or incite such state of mind, he should
conduct a careful self-examination. He should exercise his discretion in a
way that the people's faith in the Courts of Justice is not impaired, "The
better course for the Judge under such circumstances is to disqualify
himself "That way he avoids being misunderstood, his reputation for probity
and objectivity is preserve ed. what is more important, the Ideal of impartial
administration of justice is lived up to.
In this case, the fervent distrust of the private respondents is based on
sound reasons. As Earlier stated, however, the petition for review seeking
to modify the decision of the Intermediate Appellate Court insofar as it
disqualifies and inhibits Judge Francisco P. Burgos from further hearing the
Intestate Estate of Vito Borromeo case and ordering the remand of the
case to the Executive Judge of the Regional Trial Court for re-raffling
should be DENIED for the decision is not only valid but the issue itself has
become moot and academic.
G.R. No. 65995
The petitioners seek to restrain the respondents from further acting on any
and all incidents in Special Proceedings No. 916-R during the pendency of
this petition and No. 63818. They also pray that all acts of the respondents
related to the said special proceedings after March 1, 1983 when the
respondent Judge was disqualified by the appellate court be declared null
and void and without force and effect whatsoever.
The petitioners state that the respondent Judge has set for hearing all
incidents in Special Proceedings No. 916-R, including the reversion from
the heirs-distributees to the estate, of the distributed properties already
titled in their names as early as 1970, notwithstanding the pending
inhibition case elevated before this Court which is docketed as G.R. No.
63818.
The petitioners further argue that the present status of Special Proceeding
No. 916-R requires only the appraisal of the attorney's fees of the lawyersclaimants who were individually hired by their respective heirs-clients, so
their attorney's fees should be legally charged against their respective

clients and not against the estate.
On the other hand, the respondents maintain that the petition is a dilatory
one and barred by res judicata because this Court on July 8, 1981, in G.R.
No. 54232 directed the respondent Judge to expedite the settlement and
liquidation of the decedent's estate. They claim that this resolution, which
was already final and executory, was in effect reversed and nullified by the
Intermediate Appellate Court in its case-AC G.R.-No. SP - 11145 when it
granted the petition for certiorari and or prohibition and disqualified Judge
Francisco P. Burgos from taking further cognizance of Special Proceedings
No. 916R as well as ordering the transmission of the records of the case to
the Executive Judge of the Regional Trial Court of Region VII for re-raffling
on March 1, 1983, which was appealed to this Court by means of a Petition
for Review (G.R. No. 63818).
We agree with the petitioners' contention that attorney's fees are not the
obligation of the estate but of the individual heirs who individually hired their
respective lawyers. The portion, therefore, of the Order of August 15, 1969,
segregating the exhorbitantly excessive amount of 40% of the market value
of the estate from which attorney's fees shall be taken and paid should be
deleted.
Due to our affirmance of the decision of the Intermediate Appellate Court in
G.R. No. 63818, we grant the petition.
WHEREFORE,
(1) In G.R. No. 41171, the order of the respondent judge dated December
24, 1974, declaring the respondent entitled to 5/9 of the estate of the late
Vito Borromeo and the order dated July 7, 1975, denying the petitioner's
motion for reconsideration of the aforementioned order are hereby SET
ASIDE for being NULL and VOID;
(2) In G.R. No. 55000, the order of the trial court declaring the waiver
document valid is hereby SET ASIDE;
(3) In G.R. No. 63818, the petition is hereby DENIED. The issue in the
decision of the Intermediate Appellate Court disqualifying and ordering the
inhibition of Judge Francisco P. Burgos from further hearing Special
Proceedings No. 916-R is declared moot and academic. The judge who
has taken over the sala of retired Judge Francisco P. Burgos shall
immediately conduct hearings with a view to terminating the proceedings.
In the event that the successor-judge is likewise disqualified, the order of
the Intermediate Appellate Court directing the Executive Judge of the
Regional Trial Court of Cebu to re-raffle the case shall be implemented:
(4) In G.R. No. 65995, the petition is hereby GRANTED. 'The issue seeking
to restrain Judge Francisco P. Burgos from further acting in G.R. No. 63818
is MOOT and ACADEMIC:
(5) In G.R, No, 62895, the trial court is hereby ordered to speedily
terminate the close Special Proceedings No. 916-R, subject to the
submission of an inventory of the real properties of the estate and an
accounting of the cash and bank deposits by the petitioner-administrator of
the estate as required by this Court in its Resolution dated June 15, 1983;
and
(6) The portion of the Order of August 15, 1969, segregating 40% of the
market value of the estate from which attorney's fees shall be taken and
paid should be, as it is hereby DELETED. The lawyers should collect from
the heirs-distributees who individually hired them, attorney's fees according
to the nature of the services rendered but in amounts which should not
exceed more than 20% of the market value of the property the latter
acquired from the estate as beneficiaries.
TEODORA A. RIOFERIO, VERONICA O.

EVANGELISTA assisted by her husband ZALDY
EVANGELISTA, ALBERTO ORFINADA, and
ROWENA O. UNGOS, assisted by her husband
BEDA UNGOS, petitioners, vs. COURT OF
APPEALS, ESPERANZA P. ORFINADA, LOURDES P.
ORFINADA, ALFONSO ORFINADA, NANCY P.
ORFINADA, ALFONSO JAMES P. ORFINADA,
CHRISTOPHER P. ORFINADA and ANGELO P.
ORFINADA, respondents.
DECISION
TINGA, J.:
Whether the heirs may bring suit to recover property of the estate
pending the appointment of an administrator is the issue in this
case.
This Petition for Review on Certiorari, under Rule 45 of the Rules
of Court, seeks to set aside the Decision
of the Court
[if !supportFootnotes][1][endif]
of Appeals in CA-G.R. SP No. 42053 dated January 31, 1997, as

well as its Resolution
dated March 26, 1997, denying
petitioners motion for reconsideration.
On May 13, 1995, Alfonso P. Orfinada, Jr. died without a will in
Angeles City leaving several personal and real properties located
in Angeles City, Dagupan City and Kalookan City.
He
also left a widow, respondent Esperanza P. Orfinada, whom he
married on July 11, 1960 and with whom he had seven children
who are the herein respondents, namely: Lourdes P. Orfinada,
Alfonso Clyde P. Orfinada, Nancy P. Orfinada-Happenden,
Alfonso James P. Orfinada, Christopher P. Orfinada, Alfonso Mike
P. Orfinada (deceased) and Angelo P. Orfinada.
Apart from the respondents, the demise of the decedent left in
mourning his paramour and their children. They are petitioner
Teodora Riofero, who became a part of his life when he entered
into an extra-marital relationship with her during the subsistence
of his marriage to Esperanza sometime in 1965, and copetitioners Veronica
, Alberto and Rowena.
On November 14, 1995, respondents Alfonso James and Lourdes
Orfinada discovered that on June 29, 1995, petitioner Teodora
Rioferio and her children executed an Extrajudicial Settlement of
Estate of a Deceased Person with Quitclaim involving the
properties of the estate of the decedent located in Dagupan City
and that accordingly, the Registry of Deeds in Dagupan issued
Certificates of Titles Nos. 63983, 63984 and 63985 in favor of
petitioners Teodora Rioferio, Veronica Orfinada-Evangelista,
Alberto Orfinada and Rowena Orfinada-Ungos. Respondents also
found out that petitioners were able to obtain a loan of
P700,000.00 from the Rural Bank of Mangaldan Inc. by executing
a Real Estate Mortgage over the properties subject of the extrajudicial settlement.
On December 1, 1995, respondent Alfonso Clyde P. Orfinada III
filed a Petition for Letters of Administration docketed as S.P. Case
No. 5118 before the Regional Trial Court of Angeles City, praying
that letters of administration encompassing the estate of Alfonso

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

deceased is the estate of the decedent and not the respondents.
[if !
supportFootnotes][18][endif]
The Court of Appeals rendered the assailed Decision

dated January 31, 1997, stating that it discerned no grave abuse
of discretion amounting to lack or excess of jurisdiction by the
public respondent judge when he denied petitioners motion to set
affirmative defenses for hearing in view of its discretionary nature.
A Motion for Reconsideration was filed by petitioners but it was
denied.
Hence, the petition before this Court.
The issue presented by the petitioners before this Court is
whether the heirs have legal standing to prosecute the rights
belonging to the deceased subsequent to the commencement of
the administration proceedings.
Petitioners vehemently fault the lower court for denying their
motion to set the case for preliminary hearing on their affirmative
defense that the proper party to bring the action is the estate of
the decedent and not the respondents. It must be stressed that
the holding of a preliminary hearing on an affirmative defense lies
in the discretion of the court. This is clear from the Rules of Court,
thus:
SEC.5.Pleadingsgroundsasaffirmativedefenses.Anyofthegrounds
fordismissalprovidedforinthisrule,exceptimpropervenue,maybe
pleadedasanaffirmativedefense,andapreliminaryhearingmaybehad
thereonasifamotiontodismisshadbeenfiled.
(Emphasis
supplied.)
Certainly, the incorporation of the word may in the provision is
clearly indicative of the optional character of the preliminary
hearing. The word denotes discretion and cannot be construed as
having a mandatory effect.
Subsequently, the
electivity of the proceeding was firmed up beyond cavil by the
1997 Rules of Civil Procedure with the inclusion of the phrase in
the discretion of the Court, apart from the retention of the word
may in Section 6,
in Rule 16 thereof.
[if!supportFootnotes][22][endif]
Just as no blame of abuse of discretion can be laid on the lower

courts doorstep for not hearing petitioners affirmative defense, it
cannot likewise be faulted for recognizing the legal standing of the
respondents as heirs to bring the suit.
Pending the filing of administration proceedings, the heirs without
doubt have legal personality to bring suit in behalf of the estate of
the decedent in accordance with the provision of Article 777 of the
New Civil Code that (t)he rights to succession are transmitted
from the moment of the death of the decedent. The provision in
turn is the foundation of the principle that the property, rights and
obligations to the extent and value of the inheritance of a person
are transmitted through his death to another or others by his will
or by operation of law.
Even if administration proceedings have already been
commenced, the heirs may still bring the suit if an administrator
has not yet been appointed. This is the proper modality despite
the total lack of advertence to the heirs in the rules on party
representation, namely Section 3, Rule 3
and Section
2, Rule 87
of the Rules of Court. In fact, in the case
of Gochan v. Young,
this Court recognized the legal
standing of the heirs to represent the rights and properties of the
decedent under administration pending the appointment of an
administrator. Thus:
Theabovequotedrules,
whilepermittinganexecutoror
administratortorepresentortobringsuitsonbehalfofthedeceased,do
notprohibittheheirsfromrepresentingthedeceased.Theserulesare
easilyapplicabletocasesinwhichanadministratorhasalready
beenappointed.Butnorulecategoricallyaddressesthesituationin
whichspecialproceedingsforthesettlementofanestatehave
alreadybeeninstituted,yetnoadministratorhasbeenappointed.In
suchinstances,theheirscannotbeexpectedtowaitfortheappointment
ofanadministrator;thenwaitfurthertoseeiftheadministrator
appointedwouldcareenoughtofileasuittoprotecttherightsandthe
[if!supportFootnotes][29][endif]
interestsofthedeceased;andinthemeantimedonothingwhilethe
rightsandthepropertiesofthedecedentareviolatedordissipated.
Even if there is an appointed administrator, jurisprudence
recognizes two exceptions, viz: (1) if the executor or administrator
is unwilling or refuses to bring suit;
and (2) when the
administrator is alleged to have participated in the act complained
of
and he is made a party defendant.
Evidently, the necessity for the heirs to seek judicial relief to
recover property of the estate is as compelling when there is no
appointed administrator, if not more, as where there is an
appointed administrator but he is either disinclined to bring suit or
is one of the guilty parties himself.
All told, therefore, the rule that the heirs have no legal standing to
sue for the recovery of property of the estate during the pendency
of administration proceedings has three exceptions, the third
being when there is no appointed administrator such as in this
case.
As the appellate court did not commit an error of law in upholding
the order of the lower court, recourse to this Court is not
warranted.
WHEREFORE, the petition for review is DENIED. The
assailed decision and resolution of the Court of Appeals are
hereby AFFIRMED. No costs.
SO ORDERED.
POLLY CAYETANO, petitioner,

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

This is a petition for review on certiorari, seeking to annul the order of the
respondent judge of the Court of First Instance of Manila, Branch XXXVIII,
which admitted to and allowed the probate of the last will and testament of
Adoracion C. Campos, after an ex-parte presentation of evidence by herein
private respondent.
On January 31, 1977, Adoracion C. Campos died, leaving her father,
petitioner Hermogenes Campos and her sisters, private respondent Nenita
C. Paguia, Remedios C. Lopez and Marieta C. Medina as the surviving
heirs. As Hermogenes Campos was the only compulsory heir, he executed
an Affidavit of Adjudication under Rule 74, Section I of the Rules of Court
whereby he adjudicated unto himself the ownership of the entire estate of
the deceased Adoracion Campos.
Eleven months after, on November 25, 1977, Nenita C. Paguia filed a
petition for the reprobate of a will of the deceased, Adoracion Campos,
which was allegedly executed in the United States and for her appointment
as administratrix of the estate of the deceased testatrix.
In her petition, Nenita alleged that the testatrix was an American citizen at
the time of her death and was a permanent resident of 4633 Ditman Street,
Philadelphia, Pennsylvania, U.S.A.; that the testatrix died in Manila on
January 31, 1977 while temporarily residing with her sister at 2167
Leveriza, Malate, Manila; that during her lifetime, the testatrix made her last
wig and testament on July 10, 1975, according to the laws of Pennsylvania,
U.S.A., nominating Wilfredo Barzaga of New Jersey as executor; that after
the testatrix death, her last will and testament was presented, probated,
allowed, and registered with the Registry of Wins at the County of
Philadelphia, U.S.A., that Clement L. McLaughlin, the administrator who
was appointed after Dr. Barzaga had declined and waived his appointment
as executor in favor of the former, is also a resident of Philadelphia, U.S.A.,
and that therefore, there is an urgent need for the appointment of an
administratrix to administer and eventually distribute the properties of the
estate located in the Philippines.
On January 11, 1978, an opposition to the reprobate of the will was filed by
herein petitioner alleging among other things, that he has every reason to
believe that the will in question is a forgery; that the intrinsic provisions of
the will are null and void; and that even if pertinent American laws on
intrinsic provisions are invoked, the same could not apply inasmuch as they
would work injustice and injury to him.
On December 1, 1978, however, the petitioner through his counsel, Atty.

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

the lawyer who filed the withdrawal of the opposition was not his counselof-record in the special proceedings case.
The petition for relief was set for hearing but the petitioner failed to appear.
He made several motions for postponement until the hearing was set on
May 29, 1980.
On May 18, 1980, petitioner filed another motion entitled "Motion to Vacate
and/or Set Aside the Order of January 10, 1979, and/or dismiss the case
for lack of jurisdiction. In this motion, the notice of hearing provided:
Please include this motion in your calendar for hearing on May 29, 1980 at
8:30 in the morning for submission for reconsideration and resolution of the
Honorable Court. Until this Motion is resolved, may I also request for the
future setting of the case for hearing on the Oppositor's motion to set aside
previously filed.
The hearing of May 29, 1980 was re-set by the court for June 19, 1980.
When the case was called for hearing on this date, the counsel for
petitioner tried to argue his motion to vacate instead of adducing evidence
in support of the petition for relief. Thus, the respondent judge issued an
order dismissing the petition for relief for failure to present evidence in
support thereof. Petitioner filed a motion for reconsideration but the same
was denied. In the same order, respondent judge also denied the motion to
vacate for lack of merit. Hence, this petition.
Meanwhile, on June 6,1982, petitioner Hermogenes Campos died and left
a will, which, incidentally has been questioned by the respondent, his
children and forced heirs as, on its face, patently null and void, and a
fabrication, appointing Polly Cayetano as the executrix of his last will and
testament. Cayetano, therefore, filed a motion to substitute herself as
petitioner in the instant case which was granted by the court on September
13, 1982.
A motion to dismiss the petition on the ground that the rights of the
petitioner Hermogenes Campos merged upon his death with the rights of
the respondent and her sisters, only remaining children and forced heirs
was denied on September 12, 1983.
Petitioner Cayetano persists with the allegations that the respondent judge
acted without or in excess of his jurisdiction when:
1) He ruled the petitioner lost his standing in court deprived the Right to
Notice (sic) upon the filing of the Motion to Dismiss opposition with waiver
of rights or interests against the estate of deceased Adoracion C. Campos,
thus, paving the way for the hearing ex-parte of the petition for the probate
of decedent will.
2) He ruled that petitioner can waive, renounce or repudiate (not made in a

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

by law. The intrinsic validity of the will normally comes only after the court
has declared that the will has been duly authenticated. However, where
practical considerations demand that the intrinsic validity of the will be
passed upon, even before it is probated, the court should meet the issue.
(Maninang vs. Court of Appeals, 114 SCRA 478).
In the case at bar, the petitioner maintains that since the respondent judge
allowed the reprobate of Adoracion's will, Hermogenes C. Campos was
divested of his legitime which was reserved by the law for him.
This contention is without merit.
Although on its face, the will appeared to have preterited the petitioner and
thus, the respondent judge should have denied its reprobate outright, the
private respondents have sufficiently established that Adoracion was, at the
time of her death, an American citizen and a permanent resident of
Philadelphia, Pennsylvania, U.S.A. Therefore, under Article 16 par. (2) and
1039 of the Civil Code which respectively provide:
Art. 16 par. (2).
xxx xxx xxx
However, intestate and testamentary successions, both with respect to the
order of succession and to the amount of successional rights and to the
intrinsic validity of testamentary provisions, shall be regulated by the
national law of the person whose succession is under consideration,
whatever may be the nature of the property and regardless of the country
wherein said property may be found.
Art. 1039.
Capacity to succeed is governed by the law of the nation of the decedent.
the law which governs Adoracion Campo's will is the law of Pennsylvania,
U.S.A., which is the national law of the decedent. Although the parties
admit that the Pennsylvania law does not provide for legitimes and that all
the estate may be given away by the testatrix to a complete stranger, the
petitioner argues that such law should not apply because it would be
contrary to the sound and established public policy and would run counter
to the specific provisions of Philippine Law.
It is a settled rule that as regards the intrinsic validity of the provisions of
the will, as provided for by Article 16(2) and 1039 of the Civil Code, the
national law of the decedent must apply. This was squarely applied in the
case of Bellis v. Bellis (20 SCRA 358) wherein we ruled:
It is therefore evident that whatever public policy or good customs may be
involved in our system of legitimes, Congress has not intended to extend
the same to the succession of foreign nationals. For it has specifically
chosen to leave, inter alia, the amount of successional rights, to the

decedent's national law. Specific provisions must prevail over general ones.
xxx xxx xxx
The parties admit that the decedent, Amos G. Bellis, was a citizen of the
State of Texas, U.S.A., and under the law of Texas, there are no forced
heirs or legitimes. Accordingly, since the intrinsic validity of the provision of
the will and the amount of successional rights are to be determined under
Texas law, the Philippine Law on legitimes cannot be applied to the testacy
of Amos G. Bellis.
As regards the alleged absence of notice of hearing for the petition for
relief, the records wig bear the fact that what was repeatedly scheduled for
hearing on separate dates until June 19, 1980 was the petitioner's petition
for relief and not his motion to vacate the order of January 10, 1979. There
is no reason why the petitioner should have been led to believe otherwise.
The court even admonished the petitioner's failing to adduce evidence
when his petition for relief was repeatedly set for hearing. There was no
denial of due process. The fact that he requested "for the future setting of
the case for hearing . . ." did not mean that at the next hearing, the motion
to vacate would be heard and given preference in lieu of the petition for
relief. Furthermore, such request should be embodied in a motion and not
in a mere notice of hearing.
Finally, we find the contention of the petition as to the issue of jurisdiction
utterly devoid of merit. Under Rule 73, Section 1, of the Rules of Court, it is
provided that:
SECTION 1. Where estate of deceased persons settled. If the decedent
is an inhabitant of the Philippines at the time of his death, whether a citizen
or an alien, his will shall be proved, or letters of administration granted, and
his estate settled, in the Court of First Instance in the province in which he
resided at the time of his death, and if he is an inhabitant of a foreign
country, the Court of First Instance of any province in which he had estate.
The court first taking cognizance of the settlement of the estate of a
decedent, shall exercise jurisdiction to the exclusion of all other courts. The
jurisdiction assumed by a court, so far as it depends on the place of
residence of the decedent, or of the location of his estate, shall not be
contested in a suit or proceeding, except in an appeal from that court, in the
original case, or when the want of jurisdiction appears on the record.
Therefore, the settlement of the estate of Adoracion Campos was correctly
filed with the Court of First Instance of Manila where she had an estate
since it was alleged and proven that Adoracion at the time of her death was
a citizen and permanent resident of Pennsylvania, United States of America
and not a "usual resident of Cavite" as alleged by the petitioner. Moreover,

petitioner is now estopped from questioning the jurisdiction of the probate
court in the petition for relief. It is a settled rule that a party cannot invoke
the jurisdiction of a court to secure affirmative relief, against his opponent
and after failing to obtain such relief, repudiate or question that same
jurisdiction. (See Saulog Transit, Inc. vs. Hon. Manuel Lazaro, et al., G. R.
No. 63 284, April 4, 1984).
WHEREFORE, the petition for certiorari and prohibition is hereby
dismissed for lack of merit.
TESTATE ESTATE OF THE LATE REVEREND FATHER PASCUAL

RIGOR. THE PARISH PRIEST OF THE ROMAN CATHOLIC CHURCH OF
VICTORIA, TARLAC, petitioner-appellant,
vs.
BELINA RIGOR, NESTORA RIGOR, FRANCISCA ESCOBAR DE RIGOR
and JOVITA ESCOBAR DE FAUSTO, respondents-appellees.
D. Taedo, Jr. for appellants.
J. Palanca, Sr. for appellee.
AQUINO, J.:
This case is about the efficaciousness or enforceability of a devise of
ricelands located at Guimba, Nueva Ecija, with a total area of around fortyfour hectares That devise was made in the will of the late Father Pascual
Rigor, a native of Victoria Tarlac, in favor of his nearest male relative who
would study for the priesthood.
The parish priest of Victoria, who claimed to be a trustee of the said lands,
appealed to this Court from the decision of the Court of Appeals affirming
the order of the probate court declaring that the said devise was inoperative
(Rigor vs. Parish Priest of the Roman Catholic Church of Victoria, Tarlac,
CA-G.R. No. 24319-R, August 1, 1963).
The record discloses that Father Rigor, the parish priest of Pulilan,
Bulacan, died on August 9, 1935, leaving a will executed on October 29,
1933 which was probated by the Court of First Instance of Tarlac in its
order of December 5, 1935. Named as devisees in the will were the
testators nearest relatives, namely, his three sisters: Florencia RigorEscobar, Belina Rigor-Manaloto and Nestora Rigor-Quiambao. The testator
gave a devise to his cousin, Fortunato Gamalinda.
In addition, the will contained the following controversial bequest

(paragraphing supplied to facilitate comprehension of the testamentary
provisions):
Doy y dejo como legado CUATRO (4) PARCELAS de terreno palayeros
situados en el municipiooo de Guimba de la provinciaaa de NUEVA ECIJA,
cuyo num. de CERTIFICADO DE TRANSFERENCIA DE TITULO SON;
Titulo Num. 6530, mide 16,249 m. cuadrados de superficie Titulo Num.
6548, mide 242,998 m. cuadrados de superficie y annual 6525, mide
62,665 m. cuadrados de superficie; y Titulo Num. 6521, mide 119,251 m.
cuadrados de superficie; a cualquier pariente mio varon mas cercano que
estudie la carrera eclesiatica hasta ordenarse de Presbiterado o sea
Sacerdote; las condiciones de estate legado son;
(1.a) Prohibe en absoluto la venta de estos terrenos arriba situados
objectos de este legado;
(2.a) Que el legatario pariente mio mas cercano tendra derecho de
empezar a gozar y administrar de este legado al principiar a curzar la
Sagrada Teologio, y ordenado de Sacerdote, hasta su muerte; pero que
pierde el legatario este derecho de administrar y gozar de este legado al
dejar de continuar sus estudios para ordenarse de Presbiterado
(Sacerdote).
Que el legatario una vez Sacerdote ya estara obligado a celebrar cada ao
VEINTE (20) Misas rezadas en sufragio de mi alma y de mis padres
difuntos, y si el actual legatario, quedase excomulgado, IPSO FACTO se le
despoja este legado, y la administracion de esto pasara a cargo del actual
Parroco y sus sucesores de la Iglecia Catolica de Victoria, Tarlac.
Y en intervalo de tiempo que no haya legatario acondicionado segun lo
arriba queda expresado, pasara la administracion de este legado a cargo
del actual Parroco Catolico y sus sucesores, de Victoria, Tarlac.
El Parroco administrador de estate legado, acumulara, anualmente todos
los productos que puede tener estate legado, ganando o sacando de los
productos anuales el CINCO (5) por ciento para su administracion, y los
derechos correspondientes de las VEINTE (20) Misas rezadas que debiera
el Parroco celebrar cada ao, depositando todo lo restante de los
productos de estate legado, en un banco, a nombre de estate legado.
To implement the foregoing bequest, the administratix in 1940 submitted a
project containing the following item:
5. LEGACY OF THE CHURCH
That it be adjudicated in favor of the legacy purported to be given to the
nearest male relative who shall take the priesthood, and in the interim to be
administered by the actual Catholic Priest of the Roman Catholic Church of

Victoria, Tarlac, Philippines, or his successors, the real properties
hereinbelow indicated, to wit:
Title No.
Lot No.
Area in Has.
Tax Dec.
Ass. Value
T-6530
3663
1.6249
18740
P 340.00
T-6548
3445-C
24.2998
18730
7,290.00
T-6525
3670
6.2665
18736
1,880.00
T-6521
3666
11.9251
18733
3,580.00
Total amount and value 44.1163 P13,090.00
Judge Roman A. Cruz in his order of August 15, 1940, approving the
project of partition, directed that after payment of the obligations of the
estate (including the sum of P3,132.26 due to the church of the Victoria
parish) the administratrix should deliver to the devisees their respective
shares.
It may be noted that the administratrix and Judge Cruz did not bother to
analyze the meaning and implications of Father Rigor's bequest to his
nearest male relative who would study for the priesthood. Inasmuch as no
nephew of the testator claimed the devise and as the administratrix and the
legal heirs believed that the parish priest of Victoria had no right to
administer the ricelands, the same were not delivered to that ecclesiastic.
The testate proceeding remained pending.
About thirteen years after the approval of the project of partition, or on
February 19, 1954, the parish priest of Victoria filed in the pending testate
proceeding a petition praying for the appointment of a new administrator
(succeeding the deceased administration Florencia Rigor), who should
deliver to the church the said ricelands, and further praying that the
possessors thereof be ordered to render an accounting of the fruits. The
probate court granted the petition. A new administrator was appointed. On
January 31, 1957 the parish priest filed another petition for the delivery of
the ricelands to the church as trustee.
The intestate heirs of Father Rigor countered with a petition dated March
25, 1957 praying that the bequest be d inoperative and that they be
adjudged as the persons entitled to the said ricelands since, as admitted by
the parish priest of Victoria, "no nearest male relative of" the testator "has
ever studied for the priesthood" (pp. 25 and 35, Record on Appeal). That
petition was opposed by the parish priest of Victoria.
Finding that petition to be meritorious, the lower court, through Judge
Bernabe de Aquino, declared the bequest inoperative and adjudicated the
ricelands to the testator's legal heirs in his order of June 28, 1957. The
parish priest filed two motions for reconsideration.
Judge De Aquino granted the respond motion for reconsideration in his
order of December 10, 1957 on the ground that the testator had a
grandnephew named Edgardo G. Cunanan (the grandson of his first
cousin) who was a seminarian in the San Jose Seminary of the Jesuit
Fathers in Quezon City. The administrator was directed to deliver the
ricelands to the parish priest of Victoria as trustee.
The legal heirs appealed to the Court of Appeals. It reversed that order. It
held that Father Rigor had created a testamentary trust for his nearest male
relative who would take the holy orders but that such trust could exist only
for twenty years because to enforce it beyond that period would violate "the
rule against perpetuities. It ruled that since no legatee claimed the ricelands
within twenty years after the testator's death, the same should pass to his
legal heirs, citing articles 888 and 912(2) of the old Civil Code and article
870 of the new Civil Code.
The parish priest in this appeal contends that the Court of Appeals erred in
not finding that the testator created a public charitable trust and in not
liberally construing the testamentary provisions so as to render the trust
operative and to prevent intestacy.
As refutation, the legal heirs argue that the Court of Appeals d the bequest
inoperative because no one among the testator's nearest male relatives
had studied for the priesthood and not because the trust was a private
charitable trust. According to the legal heirs, that factual finding is binding
on this Court. They point out that appellant priest's change of theory cannot
be countenanced in this appeal .
In this case, as in cases involving the law of contracts and statutory
construction, where the intention of the contracting parties or of the
lawmaking body is to be ascertained, the primary issue is the determination
of the testator's intention which is the law of the case (dicat testor et erit lex.
Santos vs. Manarang, 27 Phil. 209, 215; Rodriguez vs. Court of Appeals, L28734, March 28, 1969, 27 SCRA 546).
The will of the testator is the first and principal law in the matter of
testaments. When his intention is clearly and precisely expressed, any
interpretation must be in accord with the plain and literal meaning of his
words, except when it may certainly appear that his intention was different
from that literally expressed (In re Estate of Calderon, 26 Phil. 333).
The intent of the testator is the cardinal rule in the construction of wills." It is
"the life and soul of a will It is "the first greatest rule, the sovereign guide,
the polestar, in giving effect to a will". (See Dissent of Justice Moreland in
Santos vs. Manarang, 27 Phil. 209, 223, 237-8.)
One canon in the interpretation of the testamentary provisions is that "the
testator's intention is to be ascertained from the words of the wilt taking into
consideration the circumstances under which it was made", but excluding
the testator's oral declarations as to his intention (Art. 789, Civil Code of the
Philippines).
To ascertain Father Rigor's intention, it may be useful to make the following
re-statement of the provisions of his will.
1. that he bequeathed the ricelands to anyone of his nearest male relatives
who would pursue an ecclesiastical career until his ordination as a priest.
2. That the devisee could not sell the ricelands.
3. That the devisee at the inception of his studies in sacred theology could
enjoy and administer the ricelands, and once ordained as a priest, he could
continue enjoying and administering the same up to the time of his death
but the devisee would cease to enjoy and administer the ricelands if he
discontinued his studies for the priesthood.
4. That if the devisee became a priest, he would be obligated to celebrate
every year twenty masses with prayers for the repose of the souls of Father
Rigor and his parents.
5. That if the devisee is excommunicated, he would be divested of the

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

construed. To construe them as referring to the testator's nearest male
relative at anytime after his death would render the provisions difficult to
apply and create uncertainty as to the disposition of his estate. That could
not have been his intention.
In 1935, when the testator died, his nearest leagal heirs were his three
sisters or second-degree relatives, Mrs. Escobar, Mrs. Manaloto and Mrs.
Quiambao. Obviously, when the testator specified his nearest male relative,
he must have had in mind his nephew or a son of his sister, who would be
his third-degree relative, or possibly a grandnephew. But since he could not
prognosticate the exact date of his death or state with certitude what
category of nearest male relative would be living at the time of his death, he
could not specify that his nearest male relative would be his nephew or
grandnephews (the son of his nephew or niece) and so he had to use the
term "nearest male relative".
It is contended by the legal heirs that the said devise was in reality intended
for Ramon Quiambao, the testator's nephew and godchild, who was the
son of his sister, Mrs. Quiambao. To prove that contention, the legal heirs
presented in the lower court the affidavit of Beatriz Gamalinda, the
maternal grandmother of Edgardo Cunanan, who deposed that after Father
Rigor's death her own son, Valentin Gamalinda, Jr., did not claim the
devise, although he was studying for the priesthood at the San Carlos
Seminary, because she (Beatriz) knew that Father Rigor had intended that
devise for his nearest male relative beloning to the Rigor family (pp. 105114, Record on Appeal).
Mrs. Gamalinda further deposed that her own grandchild, Edgardo G.
Cunanan, was not the one contemplated in Father Rigor's will and that
Edgardo's father told her that he was not consulted by the parish priest of
Victoria before the latter filed his second motion for reconsideration which
was based on the ground that the testator's grandnephew, Edgardo, was
studying for the priesthood at the San Jose Seminary.
Parenthetically, it should be stated at this juncture that Edgardo ceased to
be a seminarian in 1961. For that reason, the legal heirs apprised the Court
of Appeals that the probate court's order adjudicating the ricelands to the
parish priest of Victoria had no more leg to stand on (p. 84, Appellant's
brief).
Of course, Mrs. Gamalinda's affidavit, which is tantamount to evidence
aliunde as to the testator's intention and which is hearsay, has no probative
value. Our opinion that the said bequest refers to the testator's nephew
who was living at the time of his death, when his succession was opened
and the successional rights to his estate became vested, rests on a

judicious and unbiased reading of the terms of the will.
Had the testator intended that the "cualquier pariente mio varon mas
cercano que estudie la camera eclesiatica" would include indefinitely
anyone of his nearest male relatives born after his death, he could have so
specified in his will He must have known that such a broad provision would
suspend for an unlimited period of time the efficaciousness of his bequest.
What then did the testator mean by "el intervalo de tiempo que no haya
legatario acondicionado"? The reasonable view is that he was referring to a
situation whereby his nephew living at the time of his death, who would like
to become a priest, was still in grade school or in high school or was not yet
in the seminary. In that case, the parish priest of Victoria would administer
the ricelands before the nephew entered the seminary. But the moment the
testator's nephew entered the seminary, then he would be entitled to enjoy
and administer the ricelands and receive the fruits thereof. In that event,
the trusteeship would be terminated.
Following that interpretation of the will the inquiry would be whether at the
time Father Rigor died in 1935 he had a nephew who was studying for the
priesthood or who had manifested his desire to follow the ecclesiastical
career. That query is categorically answered in paragraph 4 of appellant
priest's petitions of February 19, 1954 and January 31, 1957. He
unequivocally alleged therein that "not male relative of the late (Father)
Pascual Rigor has ever studied for the priesthood" (pp. 25 and 35, Record
on Appeal).
Inasmuch as the testator was not survived by any nephew who became a
priest, the unavoidable conclusion is that the bequest in question was
ineffectual or inoperative. Therefore, the administration of the ricelands by
the parish priest of Victoria, as envisaged in the wilt was likewise
inoperative.
The appellant in contending that a public charitable trust was constituted by
the testator in is favor assumes that he was a trustee or a substitute
devisee That contention is untenable. A reading of the testamentary
provisions regarding the disputed bequest not support the view that the
parish priest of Victoria was a trustee or a substitute devisee in the event
that the testator was not survived by a nephew who became a priest.
It should be understood that the parish priest of Victoria could become a
trustee only when the testator's nephew living at the time of his death, who
desired to become a priest, had not yet entered the seminary or, having
been ordained a priest, he was excommunicated. Those two contingencies
did not arise, and could not have arisen in this case because no nephew of
the testator manifested any intention to enter the seminary or ever became
a priest.
The Court of Appeals correctly ruled that this case is covered by article 888
of the old Civil Code, now article 956, which provides that if "the bequest for
any reason should be inoperative, it shall be merged into the estate, except
in cases of substitution and those in which the right of accretion exists" ("el
legado ... por qualquier causa, no tenga efecto se refundira en la masa de
la herencia, fuera de los casos de sustitucion y derecho de acrecer").
This case is also covered by article 912(2) of the old Civil Code, now article
960 (2), which provides that legal succession takes place when the will
"does not dispose of all that belongs to the testator." There being no
substitution nor accretion as to the said ricelands the same should be
distributed among the testator's legal heirs. The effect is as if the testator
had made no disposition as to the said ricelands.
The Civil Code recognizes that a person may die partly testate and partly
intestate, or that there may be mixed succession. The old rule as to the
indivisibility of the testator's win is no longer valid. Thus, if a conditional
legacy does not take effect, there will be intestate succession as to the
property recovered by the said legacy (Macrohon Ong Ham vs. Saavedra,
51 Phil. 267).
We find no merit in the appeal The Appellate Court's decision is affirmed.
Costs against the petitioner.

Land Dispute Between Widow and Mistress's Children

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Land Dispute Between Widow and Mistress's Children

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MARIA USON, plaintiff-appellee,

On March 31, 1975 Fortunata Barcena, mother of minors Rosalio Bonilla

manifested before the respondent Court that Fortunata Barcena died on

IN VIEW OF THE FOREGOING, the order of the respondent Court

representative of the within a time to be specified by the court, and the

right or advantage that no other reasonable explanation of his conduct is possible

Borromeo Queroz filed a claim. Jose Cuenco Borromeo, Crispin Borromeo,

d. Florentina Borromeo, who died in 1948.

Respondent Fortunato Borromeo on the other hand, contends that under

which approved the validity of the waiver agreement. The appellants

pursuant to the resolution and restraining order issued by the Court of

Sesbreno chose rapproachment and ultimately joined forces with Atty.

appear and be examined under oath in a proceeding conducted by Judge

ignored. Suspicion of partiality on the part of a trial judge must be avoided

their attorney's fees should be legally charged against their respective

TEODORA A. RIOFERIO, VERONICA O.

of Appeals in CA-G.R. SP No. 42053 dated January 31, 1997, as

that letters of administration encompassing the estate of Alfonso

annulment of the extrajudicial settlement of the estate of the

The Court of Appeals rendered the assailed Decision

Just as no blame of abuse of discretion can be laid on the lower

POLLY CAYETANO, petitioner,

GUTIERREZ, JR., J.:

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

Development Corporation of the Philippines (CDCP). He also alleged that

2) He ruled that petitioner can waive, renounce or repudiate (not made in a

capacity and the compliance with the requisites or solemnities prescribed

chosen to leave, inter alia, the amount of successional rights, to the

and not a "usual resident of Cavite" as alleged by the petitioner. Moreover,

TESTATE ESTATE OF THE LATE REVEREND FATHER PASCUAL

In addition, the will contained the following controversial bequest

administered by the actual Catholic Priest of the Roman Catholic Church of

5. That if the devisee is excommunicated, he would be divested of the

The said testamentary provisions should be sensibly or reasonably

and the successional rights to his estate became vested, rests on a

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