G.R. No.

L-33006 December 8, 1982
NICANOR NACAR, petitioner,
vs.
CLAUDIO A. NISTAL as Municipal Judge of Esperanza,
Agusan del Sur, PROVINCIAL SHERIFF of Agusan del Sur,
ILDEFONSO JAPITANA and ANTONIO DOLORICON,
respondents.
Tranquilino O. Calo, Jr. for petitioner.
Ildefonso Japitana and Antonio Boloricon for respondents.
(4) carabaos were attached because three (3) carabaos had
earlier been slaughtered during the rites preceding the burial
of the late Isabelo Nacar.
Nicanor Nacar filed a motion to dismiss, to dissolve writ of
preliminary attachment, and to order the return of the
carabaos. Private respondent Japitana filed an opposition to
this motion while intervenor Antonio Doloricon filed a complaint
in intervention asserting that he was the owner of the attached
carabaos and that the certificates of ownership of large cattle
were in his name.
The respondent Judge denied the motion to dismiss prompting
Mr. Nacar to come to the Supreme Court.

GUTIERREZ, JR., J.:
Nicanor Nacar filed this petition for certiorari, prohibition, and
mandamus with preliminary injunction to annul an order of the
respondent judge of the municipal court of Esperanza, Agusan
del Sur directing the attachment of seven (7) carabaos, to
effect the return of four (4) carabaos seized under the
questioned order, and to stop the respondent judge from
further proceeding in Civil Case No. 65.
Respondent Ildefonso Japitana filed the complaint in Civil
Case No. 65 and entitled it "Claim Against the Estate of the
Late Isabelo Nacar With Preliminary Attachment:" On the basis
of this complaint, including an allegation "that defendant are
(sic) about to remove and dispose the above-named property
(seven carabaos) with intent to defraud plaintiff herein", and
considering that Mr. Japitana had given security according to
the Rules of Court, Judge Nistal issued the order commanding
the provincial sheriff to attach the seven (7) heads of cattle in
the possession of petitioner Nicanor Nacar. Actually only four
In a resolution dated January 12, 1971, this Court, upon the
posting of a bond in the amount of P1,000.00, directed the
issuance of a preliminary mandatory injunction. The
respondents were enjoined from further enforcing the writ of
attachment and to return the seized carabaos. The judge was
restrained from further proceeding with Civil Case No. 65.
We find the petition meritorious.
The pertinent portions of the complaint filed by Mr. Japitana
with the municipal court read as follows:
ILDEFONSO JAPITANA Civil Case No. 65
Plaintiff,
FOR:
— Versus —
CLAIM AGAINST THE ESTATE NICANOR
NACAR THE LATE ISABELO NACAR WITH
Defendant. PRELIMINARY ATTACHMENT x
---------------------------------x
COMPLAINT
COMES NOW the undersigned plaintiff and
before this Honorable Court, respectfully avers:
xxx xxx xxx
That at various dates since the year 1968, the
defendant have (sic) incurred indebtedness to
the plaintiff in the total sum of TWO
THOUSAND SEVEN HUNDRED NINETY ONE
(P2,791.00) PESOS, which said amount had
long been overdue for payment, and which the
defendant up to this date have (sic) not been
able to pay, despite repeated demands from the
plaintiff;
That the defendant Isabelo Nacar died last
April, 1970 leaving among other things personal
property consisting seven (7) heads of
carabaos now in the possession of the
defendant Nicanor Nacar;
That plaintiff herein file a claim against the
estate of the late Isabelo Nacar to recover the
aforementioned sum of P2,791.99;
That defendant are (sic) about to remove and
dispose the above mentioned property with
intent to defraud plaintiff herein;
That plaintiff is willing to put up a bond for the
issuance of a preliminary attachment in an
amount to be fixed by the Court, not exceeding
the sum of P 2,791.00 which is the plaintiff's
claim herein;
WHEREFORE, it is respectfully prayed that
pending the hearing of this case, a writ of
preliminary attachment be issued against the
properties of the defendant to serve as security
for the payment or satisfaction of any judgment
that may be recovered herein; and that after
due hearing on the principal against the
defendant for the sum of P 2,791,00 with legal
interest from September 15, 1970 plus costs of
this suit. (Annex "A", p. 7 rollo).
In his motion to dismiss, the petitioner raised the issue of lack
of jurisdiction and absence of a cause of action. Mr. Nacar
averred that the indebtedness mentioned in the complaint was
alleged to have been incurred by the late Isabelo Nacar and
not by Nicanor Nacar. There was, therefore, no cause of action
against him. The petitioner also stated that a municipal court
has no jurisdiction to entertain an action involving a claim filed
against the estate of a deceased person.
The same grounds have been raised in this petition. Mr. Nacar
contends:
xxx xxx xxx
9. That the respondent judge acted without
jurisdiction.The municipal courts or inferior
courts have NO jurisdiction to settle the estate
of deceased persons. The proper remedy is for
the creditor to file the proper proceedings in the
 court of first instance and file the corresponding
claim. But assuming without admitting that the
respondent judge had jurisdiction, it is very
patent that he committed a very grave abuse of
discretion and totally disregarded the provisions
of the Rules of Court and decisions of this
honorable Court when he issued an ex-
parte writ of preliminary attachment, when there
is no showing that the plaintiff therein has a
sufficient cause of action, that there is no other
security for the claim sought to be enforced by
the plaintiff; or that the amount claimed in the
action is as much as the sum for which the
order is prayed for above all legal
counterclaims; There was no bond to answer
for whatever damages that herein petitioner
may suffer; (Rollo, pp. 3- 4).
xxx xxx xxx
The respondent judge tried to avoid the consequences of the
issues raised in the motion to dismiss by stating that although
the title of the complaint styled it a claim against the estate of
the late Isabelo Nacar, the allegations showed that the nature
of the action was really for the recovery of an indebtedness in
the amount of P2,791.99.
The rule cited by the judge is correctly stated but it is hardly
relevant to the contents of the complaint filed by Mr. Japitana.
It is patent from the portions of the complaint earlier cited that
the allegations are not only vague and ambiguous but
downright misleading. The second paragraph of the body of
the complaint states that the defendant (herein petitioner
Nicanor Nacar) at various dates since the year 1968 incurred
debts to the plaintiff in the sum of P2,791.00. And yet, in the
subsequent paragraphs, one clearly gathers that the debts
were actually incurred by the late Isabelo Nacar, who died
several months before the filing of the complaint. The
complaint which the respondent judge reads as one for the
collection of a sum of money and all the paragraphs of which
are incidentally unnumbered, expressly states as a material
averment:
xxx xxx xxx
That plaintiff herein file (sic) a claim against the estate of the
late Isabelo Nacar to recover the aforementioned sum of
P2,791.00;
xxx xxx xxx
Under the circumstances of this case, respondent Japitana
has no cause of action against petitioner Nacar. Mathay v.
Consolidated Bank and Trust Company (58 SCRA 559) gives
the elements of a valid cause of action:
A cause of action is an act or omission of one
party in violation of the legal right of the other.
Its essential elements are, namely: (1) the
existence of a legal right in the plaintiff, (2) a
correlative legal duty in the defendant, and (3)
an act or omission of the defendant in violation
of plaintiff's right with consequential injury or
damage to the plaintiff for which he may
maintain an action for the recovery of damages
or other appropriate relief. ( Ma-ao Sugar
Central Co., Inc. vs. Barrios, et al., 79 Phil. 666,
667; Ramitere et al. vs. Montinola Vda. de Yulo,
et al., L-19751, February 28, 1966, 16 SCRA
251, 255). On the other hand, Section 3 of Rule
6 of the Rules of Court provides that the
 complaint must state the ultimate facts
constituting the plaintiff's cause of action.
Hence, where the complaint states ultimate
facts that constitute the three essential
elements of a cause of action, the complaint
states a cause of action; (Community
Investment and Finance Corp. vs. Garcia, 88
Phil. 215, 218) otherwise, the complaint must
succumb to a motion to dismiss on that ground.
Indeed, although respondent Japitana may have a legal right
to recover an indebtedness due him, petitioner Nicanor Nacar
has no correlative legal duty to pay the debt for the simple
reason that there is nothing in the complaint to show that he
incurred the debt or had anything to do with the creation of the
liability. As far as the debt is concerned, there is no allegation
or showing that the petitioner had acted in violation of Mr.
Japitana's rights with consequential injury or damage to the
latter as would create a cause of action against the former.
It is also patent from the complaint that respondent Japitana
filed the case against petitioner Nacar to recover seven (7)
heads of carabaos allegedly belonging to Isabelo Nacar which
Japitana wanted to recover from the possession of the
petitioner to answer for the outstanding debt of the late Isabelo
Nacar. This matter, however, is only ancillary to the main
action. The ancillary matter does not cure a fatal defect in the
complaint for the main action is for the recovery of an
outstanding debt of the late lsabelo Nacar due respondent
Japitana, a cause of action about which petitioner Nacar has
nothing to do.
In fact the fatal defect in the complaint was noticed by the
respondent court when it advised respondent Japitana to
amend his complaint to conform with his evidence and from
the court's admission that it was inclined to dismiss the case
were it not for the complaint in intervention of respondent
Doloricon. Respondent Doloricon filed his complaint for
intervention on the ground that the four carabaos, subject of
the writ of attachment, were actually his carabaos. Thus, the
respondent court in its Order denying the petitioner's motion to
dismiss, to dissolve writ of preliminary attachment and in order
the return of the carabaos said:
... Antonio Doloricon manifested before this
Court that he is filing a third-party complaint
alleging that he is the true and lawful owner of
the carabaos in questions.
IN VIEW OF ALL THE FOREGOING, this Court
for the interest of both parties will not for the
meantime dismiss this case. Antonio Doloricon
is hereby given 10 days from receipt hereof
within which to file his third-party complaint. The
plaintiff who in his opposition to defendant's
motion to dismiss pray (sic) for the custody of
the carabaos. This Court further requires
plaintiff to put up the additional bond of P
I,000.00 after which the latter may be entitled of
(sic) the custody of the carabaos subject of
litigation pending final termination of this case.
(Rollo, pp. 18-19)
The respondent court's reason for not dismissing the case is
contrary to applicable precedents on the matter. We ruled
in Mathay v. Consolidated Bank and Trust Company, supra:
Section I, Rule 16 of the Rules of Court,
providing in part that:
Within the time for pleading a
motion to dismiss may be made
 on any of the following
grounds; ...
(g) That the complaint states no
cause of action. ...
explicitly requires that the sufficiency of the complaint must be
tested exclusively on the basis of the complaint itself and no
other should be considered when the ground for motion to
dismiss is that the complaint states no cause of action.
Pursuant thereto this Court has ruled that:
As a rule the sufficiency of the
complaint, when challenged in a
motion to dismiss, must be
determined exclusively on the
basis of the facts alleged therein'
(Uy Chao vs. De La Rama
Steamship Co., Inc., L-14495,
September 29, 1962, 6 SCRA
69, 72. See also De Jesus, et al.
vs. Belarmino et al., 95 Phil. 365,
371; Dalandan, et at. vs. Julio, et
al., L- 19101, February 29, 1964,
10 SCRA 400; Ramitere et al. vs.
Montinola Vda. de Yulo, et al., L-
19751, February 28, 1966, 16
SCRA 250, 254; Acuna vs. Batac
Producers Cooperative
Marketing Association, Inc., et
al., L-20338, June 30, 1967, 20
SCRA 526, 531)
Hence, it was error for the respondent court not to dismiss the
case simply because respondent Doloricon filed the complaint
for intervention alleging that he owned the carabaos.
Moreover, even assuming that respondent Japitana had a
legal right to the carabaos which were in the possession of
petitioner Nacar, the proper procedure would not be to file an
action for the recovery of the outstanding debts of the late
Isabelo Nacar against his stepfather, the petitioner Nacar as
defendant. As we said in Maspil v. Romero (61 SCRA 197):
Appropriate actions for the enforcement or
defense of rights must be taken in accordance
with procedural rules and cannot be left to the
whims or caprices of litigants. It cannot even be
left to the untrammeled discretion of the courts
of justice without sacrificing uniformity and
equality in the application and effectivity thereof.
Considering the foregoing, the respondent court's denial of the
motion to dismiss the complaint and its issuance of a writ of
attachment based on the allegations of the complaint are
improper. With this conclusion, we find no need to discuss the
other issue on whether or not the procedural rules on the
issuance of a writ of attachment were followed by the
respondent court in issuing the subject writ of attachment.
WHEREFORE, the petition is hereby granted. The preliminary
mandatory injunction issued on January 13, 1971 is made
permanent and the cash bond filed by the petitioner in
connection therewith is ordered returned to him.
SO ORDERED.
Teehankee (Chairman), Melencio-Herrera, Plana and Relova,
JJ., concur.
Separate Opinions
VASQUEZ, J., concurring:
I concur in the result.
The fundamental error committed by the private respondents
was in pursuing their claim in an ordinary action; and that by
the respondent municipal judge in entertaining the same.
As can be seen from the caption and the body of the complaint
filed in Civil Case No. 65, the claim of the private respondents
was not against herein petitioner Nicanor Nacar but against
the estate of the deceased Isabelo Nacar. It is a claim for
money arising from unpaid indebtedness granted on various
dates. Isabelo Nacar died before the said complaint was filed.
It does not appear that any proceeding has been filed to settle
his estate.
Under these facts, the filing of an ordinary action to recover
said claim is not allowed in any court. Even if settlement
proceedings had been taken to settle the estate of Isabelo
Nacar, the suit to recover the claim of the private respondents
may not be filed against the administrator or executor of his
estate. This is expressly provided for in Section 1 of Rule 87 of
the Rules of Court, as follows:
No action upon a claim for the recovery of
money or debt or interest thereon shall be
commenced against the executor or
administrator; ... .
The claim of private respondents, being one arising from a
contract, may be pursued only by filing the same in the
administration proceedings that may be taken to settle the
estate of the deceased Isabelo Nacar. If such a proceeding is
instituted and the subject claim is not filed therein within the
period prescribed, the same shall be deemed "barred forever."
(Sec. 5, Rule 86, Rules of Court). Even if this action were
commenced during the lifetime of Isabelo Nacar, the same
shall have to be dismissed, and the claim prosecuted in the
proper administration proceedings (Sec. 21, Rule 3, Ibid.).
It would seem that the main purpose of the private
respondents in filing Civil Case No. 65 was to attach the seven
carabaos owned by Isabelo Nacar. A case had to be filed in
order to justify the issuance of a writ of attachment,
unfortunately, said remedy may not be allowed. The carabaos,
if really owned by Isabelo Nacar, pertained to his estate upon
his death. The claim of the private respondents may only be
satisfied by a voluntary act on the part of the heirs of Isabelo
Nacar, or pursued in the appropriate settlement proceedings. A
municipal court may not entertain such a proceeding, it not
being vested, under the law then in force, with probate
jurisdiction.
Civil Case No. 65 should accordingly be dismissed and the
writ of attachment issued therein dissolved.
Separate Opinions
VASQUEZ, J., concurring:
I concur in the result.
The fundamental error committed by the private respondents
was in pursuing their claim in an ordinary action; and that by
the respondent municipal judge in entertaining the same.
As can be seen from the caption and the body of the complaint
filed in Civil Case No. 65, the claim of the private respondents
was not against herein petitioner Nicanor Nacar but against
the estate of the deceased Isabelo Nacar. It is a claim for
money arising from unpaid indebtedness granted on various
dates. Isabelo Nacar died before the said complaint was filed.
It does not appear that any proceeding has been filed to settle
his estate.
Under these facts, the filing of an ordinary action to recover
said claim is not allowed in any court. Even if settlement
proceedings had been taken to settle the estate of Isabelo
Nacar, the suit to recover the claim of the private respondents
may not be filed against the administrator or executor of his
estate. This is expressly provided for in Section 1 of Rule 87 of
the Rules of Court, as follows:
order to justify the issuance of a writ of attachment,
unfortunately, said remedy may not be allowed. The carabaos,
if really owned by Isabelo Nacar, pertained to his estate upon
his death. The claim of the private respondents may only be
satisfied by a voluntary act on the part of the heirs of Isabelo
Nacar, or pursued in the appropriate settlement proceedings. A
municipal court may not entertain such a proceeding, it not
being vested, under the law then in force, with probate
jurisdiction.
Civil Case No. 65 should accordingly be dismissed and the
writ of attachment issued therein dissolved.

No action upon a claim for the recovery of

money or debt or interest thereon shall be
commenced against the executor or
administrator; ... .

The claim of private respondents, being one arising from a

contract, may be pursued only by filing the same in the
administration proceedings that may be taken to settle the
estate of the deceased Isabelo Nacar. If such a proceeding is
instituted and the subject claim is not filed therein within the
period prescribed, the same shall be deemed "barred forever."
(Sec. 5, Rule 86, Rules of Court). Even if this action were
commenced during the lifetime of Isabelo Nacar, the same
shall have to be dismissed, and the claim prosecuted in the
proper administration proceedings (Sec. 21, Rule 3, Ibid.).

It would seem that the main purpose of the private

respondents in filing Civil Case No. 65 was to attach the seven
carabaos owned by Isabelo Nacar. A case had to be filed in
G.R. No. L-15388 January 31, 1961
DORA PERKINS ANDERSON, petitioner-appellee,
vs.
IDONAH SLADE PERKINS, oppositor-appellant.
Ponce Enrile, S. Reyna, Montecillo and Belo for petitioner-
appellee.
Lazaro A. Marquez and J. D. Quirino for oppositor-appellant.
REYES, J.B.L., J.:
Appeal against an order of the Court of First Instance of
Manila in Special Proceedings No. 29636 authorizing the
special administrator of the testate estate of the late Eugene
Arthur Perkins to sell at public auction certain personal
properties left by the deceased.
It appears that said special proceedings were commenced on
May 10, 1956, by a petition presented by Dora Perkin
Anderson for the probate of the supposed last will and
testament of the late Eugene Arthur Perkins, who died in
Manila on April 28, 1956 allegedly possessed of personal and
real properties with a probable value of P5,000,000. On the
same date of the filing of the aforesaid petition, petitioner Dora
Perkins Anderson also filed a urgent petition for the
appointment of Alfonso Ponce Enrile as special administrator
of the estate, and on the same day, the court issued an order
appointing Alfonso Ponce Enrile as such special administrator
upon his posting of a bond in the amount of P50,000. On July
9, 1956, Idonah Slade Perkins, surviving spouse of the
deceased entered an opposition to the probate of the will
presented by petitioner Dora Perkins Anderson. On September
28, 1956 the special administrator submitted an inventory of all
the assets which have come to his knowledge as belonging to
the deceased Eugene Arthur Perkins at the time of his death.
About two years later, or on September 4, 1958, the special
administrator submitted to the court a petition seeking
authority to sell, or give away to some charitable or
educational institution or institutions, certain personal effects
left by the deceased, such as clothes, books, gadgets,
electrical appliances, etc., which were allegedly deteriorating
both physically and in value, in order to avoid their further
deterioration and to save whatever value migh be obtained in
their disposition. When the motion was heard on September
25, 1958, the court required the administrator to submit a
specification of the properties sought to be sold, and in
compliance therewith, the special administrator, on October
21, 1958, submitted to the court, in place of a specification, a
copy of the inventory of the personal properties belonging to
the estate with the items sought to be sold marked with a
check in red pencil, with the statement that said items were too
voluminous to enumerate.
On July 9, 1956, Idonah Slade Perkins filed an opposetion to
the proposed sale. Reasons, for the opposition were that (1)
most of the properties sought to be sold were conjugal
properties of herself and her deceased husband; and (2) that
unauthorized removal of fine pieces of furniture belonging to
the estate had been made.
The opposition notwithstanding, the lower court, on December
2, 1958, approved the proposed sale, authorizing the Sheriff of
Manila to conduct the same. Oppositor Idonah Slade Perkins
moved to reconsider this order on the grounds (1) that said
order in effect authorized the special administrator to sell the
entire personal estate of the deceased, contrary to Rule 81,
section 2. Rules of Court; (2) that said order was issued
without a showing that the goods and chattels sought to be
sold were perishable, pursuant to Rule 81, section 2, Rules of
Court; (3) that the personalty sought to be sold represented
the lifetime savings and collections of oppositor; (4) that there
is evidence on record showing unauthorized withdrawals from
the properties of the estate, and the sale of the inventoried lot
would prevent identification and recovery of the articles
removed; and (5) that there is also evidence showing
oppositor's separate rights to a substantial part of the personal
estate.
On February 23, 1959, the lower court denied the above
motion for reconsideration. Whereupon, oppositor Idonah
Slade Perkins appealed to this court.
Appellant first claims that the personal properties sought to be
sold not being perishable, the special administrator has no
legal authority to sell them. This argument is untenable,
because section 2, Rule 81, of the Rules of Court, specifically
provides that the special administrator "may sell such
perishable and other property as the court orders sold", which
shows that the special administrator's power to sell is not
limited to "perishable" property only.
It is true that the function of a special administrator is only to
collect and preserve the property of the deceased until a
regular administrator is appointed (sec. 2, Rule 81; De Gala v.
Gonzales, 53 Phil. 104; Collins v. Henry, 118 S.E. 729, 155
Ga. 886; Sqydelko v. Smith's Estate, 244 N.W. 149, 259 Mich.
519). But it is not alone the specific property of the estate
which is to be preserved, but its value as well, as shown by the
legal provision for the sale by a special administrator of
perishable property (Cao vs. Cascade Silver Mines & Mills, et
al., 213 P. 109 66 Mont. 488). It is in line with this general
power of the special administrator to preserve not only the
property of the estate but also its value, that section 2, Rule
81, also empowers such administrator to sell "other proerty as
the court ordered sold;" .
There is, however, a serious obstacle to the proposed sale,
namely, the vigorous opposition presented thereto the
appellant, the surviving spouse of the deceased, on the
ground that she is allegedly entitled to a large portion of the
personal properties in question, either because the were
conjugal property of herself and the deceased, or because
they are her own, exclusive, personal property. Indeed the
records show that up to the time the propose sale was asked
for and judicially approved, no proceeding had as yet been
taken, or even started, to segregate the alleged exclusive
property of the oppositor-appellant from the mass of the estate
supposedly left by the deceased or to liquidate the conjugal
partnership property of the oppositor-appellant and the
deceased. Until, therefore the issue of the ownership of the
properties sought to be sold is heard and decided, and the
conjugal partnership liquidated; or, at least, an agreement be
reached with a appellant as to which properties of the conjugal
partnership she would not mind being sold to preserve their
value the proposed sale is clearly premature. After all, most of
the items sought to be sold — pieces of furniture, kitchen and
dinner ware, electrical appliances, various gadget and books
— can easily be protected and preserved with proper care and
storage measures in either or both of two residential houses
(in Manila and in Baguio City left by the deceased, so that no
reasons of extreme urgency justify the proposed sale at this
time over the strong opposition and objection of oppositor-
appellant who may later be adjudged owner of a substantial
portion of the personal estate in question.
The special administrator claims in his brief that t oppositor-
appellant should have indicated the alleged "fine furniture"
which she did not want sold and that her refusal to do so is an
indication of her unmeritorious claim. But it does not appear
that appellant was given a reasonable opportunity to point out
which items in the inventory she did not want sold. In fact, her
opposition to the proposed sale and later her motion for
reconsideration to the order approving the same were
overruled by the court without so much as stating reasons why
the grounds for her opposition were not well-founded; the
records do not even show that an inquiry was made as to the
validity of the grounds of her opposition.

WHEREFORE, the lower court's order of December 2, 1958

authorizing the special administrator to sell certain personal
properties of the estate is set aside, with costs against the
special administrator Alfonso Ponce Enrile and petition-
appellee Dora Perkins Anderson.

Paras, C.J., Bengzon, Bautista Angelo, Labrador, Concepcion,

Barrera, Paredes and Dizon, JJ., concur.
Gutierrez David, J., took no part.
G.R. No. 92436 July 26, 1991
MARIA VDA. DE REYES, EFREN REYES, ELVIRA REYES-
TIMBOL, ERLINDA REYES-VALERIO, ERNESTO REYES,
ELIZABETH REYES, ALEX, RAFAEL II, EMELINA and
EVELYN, all surnamed REYES, represented by their
mother, MARIA VDA. DE REYES, petitioners,
vs.
THE COURT OF APPEALS AND SPOUSES DALMACIO
GARDIOLA and ROSARIO MARTILLANO respondents.
De Lara, De Lunas & Rosales for petitioners.
Santos, Pilapil & Associates for private respondents.
DAVIDE, JR., J.:
Assailed before Us in this appeal by certiorari under Rule 45 of
the Rules of Court is the decision of the respondent Court of
Appeals in C.A.-G.R. CV No. 11934, promulgated on 20
October 1989,1 reversing the decision of 1 October 1986 of
Branch 21 (Imus, Cavite) of the Regional Trial Court of the
Fourth Judicial Region in Civil Case No. RTC-BCV-83-17
entitled Maria vda. de Reyes, et al. vs. Spouses Dalmacio
Gardiola and Rosario Martillano, and Spouses Ricardo M.
Gardiola and Emelita Gardiola,2 and the resolution of 1 March
1990 denying the petitioner's motion for reconsideration.
As culled from both decisions and the pleadings of the parties,
the following facts have been preponderantly established:
During his lifetime, one Gavino Reyes owned a parcel of land
of approximately 70 hectares, more or less, located at
Sangayad, Ulong-Tubig, Carmona, Cavite. He sought to bring
said land under the operation of the Torrens System of
registration of property. Unfortunately, he died in 1921 without
the title having been issued to him. The application was
prosecuted by his son, Marcelo Reyes, who was the
administrator of his property.
In 1936 the above property was surveyed and subdivided by
Gavino's heirs (Exh. "6"). In the subdivision plan, each
resultant lot was earmarked, indicated for and assigned to a
specific heir. It appears therein that two lots, one of which is
Lot No. I A-14 (Exh. "6-A"), were allotted to Rafael Reyes, Sr.,
one of Gavino's children. Per testimony of Juan Poblete, the
children thereafter secured tax declarations for their respective
shares.
In 1941, or about twenty (20) years after the death of Gavino,
the original certificate of title for the whole property — OCT
No. 255 — was issued. It was, however, kept by Juan Poblete,
son-in-law of Marcelo Reyes, who was by then already
deceased. The heirs of Gavino were not aware of this fact.
On 3 December 1943, Rafael Reyes, Sr. sold a parcel of land
with an area of 23,431 square meters, more or less, to private
respondent Dalmacio Gardiola (Exh. "5"). According to the
vendee, this parcel corresponds to Lot No. 1-A-14 of the
subdivision plan aforestated. The deed of sale, however, did
not specifically mention Lot No. 1-A-14. The vendee
immediately took possession of the property and started
paying the land taxes therein.
In 1945 or thereabouts, Juan Poblete "revalidated" the original
Certificate of Title. As reconstituted, the new title is OCT (0-
4358) RO-255 (Exhs. "4" to "4-A").
On 21 October 1967, when the heirs of Gavino Reyes
executed a Deed of Extrajudicial Settlement of Estate (Exh.
"D") based on the aforestated subdivision plan (Exh. "6"), the
lot that was intended for Rafael Reyes, Sr., who was already
deceased, was instead adjudicated to his only son and heir,
Rafael Reyes, Jr. (the predecessor-in-interest of the petitioners
herein). Private respondent Rosario Martillano signed the deed
in representation of her mother, Marta Reyes, one of the
children of Gavino Reyes.
As a result of the Extrajudicial Settlement, OCT RO-255 was
cancelled and in lieu thereof, several transfer certificates of
title covering the subdivided lots were issued in the names of
the respective adjudicatees. One of them is TCT No. 27257 in
the name of Rafael Reyes, Jr. covering Lot No. 1-A-14. The
Transfer Certificates of Title were, however, kept by one
Candido Hebron. On 10 January 1969, some of the heirs of
Gavino Reyes filed a case of Annulment of Partition and
Recovery of Possession before the Court of First Instance of
Cavite City, which was docketed therein as Civil Case No.
1267. One of the defendants in said case is herein private
respondent Rosario Martillano. The case was dismissed on 18
September 1969, but Candido Hebron was ordered by the trial
court to deliver to the heirs concerned all the transfer
certificates of title in his possession.3
After obtaining the Transfer Certificate of Title for Lot No. 1-A-
14 from Hebron, pursuant to the aforesaid order in Civil Case
No. 1267, petitioners herein, as successors-in-interest of
Rafael Reyes, Jr., filed on 14 March 1983 with the Regional
Trial Court the above-mentioned Civil Case No. RTC-BCV-83-
17 against private respondents (defendants therein) for
recovery of possession or, in the alternative, for
indemnification, accounting and damages. They allege therein
that after "having definitely discovered that they are the lawful
owners of the property," (Lot No. 1-A-14), they, "including
Rafael Reyes, Jr., during his lifetime, made repeated demands
to (sic) defendants to surrender the possession of and vacate
the parcel of land belonging to the former, but defendants
refused to vacate and surrender the possession of the said
land to herein plaintiffs;" the last of the demands was allegedly
made on 8 October 1982. They further allege that they have
been deprived by said defendants of the rightful possession
and enjoyment of the property since September 1969 — which
coincides with the date of the order in Civil Case No. 1267.4
In their answer, private respondents deny the material
averments in the complaint and assert that they are the
owners of the lot in question, having bought the same from
Rafael Reyes, Sr., that the issuance of TCT No. 27257 is null
and void, for such sale was known to Rafael Reyes, Jr.; that
they have been in possession of the property and have been
paying the land taxes thereon; and that petitioners are barred
by prescription and/or laches.5
Petitioners amended their complaint on 21 March 1985 to
implead as additional defendants the spouses Ricardo M.
Gardiola and Emerita Gardiola, on the basis of the following
claims:
xxx xxx xxx
9. Meanwhile, during the presentation of the
defendants spouses Dalmacio Gardiola and Rosario
Martillano's evidence the former testified that they
mortgaged the subject land to the Rural Bank of
Carmona Inc. For their failure to redeem the mortgage
the same was foreclosed by the bank.
10. However, within the period of one(1) year from
such foreclosure the questioned land was redeemed by
the original defendants' son in the person of Ricardo M.
 Gardiola, who was knowledgeable/aware of the
pendency of the above captioned case. The
corresponding redemption was effected through a deed
of conveyance, . . . .6
The prayer of the amended complaint now contains the
alternative relief for indemnification for the reasonable value of
the property "in the event restitution of the property is no
longer possible."7
In its decision of 1 October 1986,8 the trial court concluded that
petitioners' "title over the subject property is valid and regular
and thus they are entitled to its possession and enjoyment,"
and accordingly decided thus:
WHEREFORE, the defendants or anyone acting for
and in their behalf are hereby ordered to relinguish
possession or vacate the property in question which is
covered by Transfer Certificate of Title No. T-27257 in
favor of the plaintiffs.
All other claims and/or counterclaims of the parties
relative to this case are dismissed for lack of proper
substantiation.
The conclusion of the trial court is based on its finding that (a)
there is no evidence that the heirs of Gavino Reyes entered
into any written agreement of partition in 1936 based on the
subdivision plan; (b) there is no identity between Lot No. 1-14-
A and the land sold to private respondents by Rafael Reyes,
Sr., or otherwise stated, the description of the latter as
indicated in the deed of sale (Exh. "5") does not tally with the
description of the former; and (c) moreover:
Granting, arguendo, that the sale made by Rafael
Reyes, Sr. to the defendants covered the land in
question — Lot No. 1-A-14 — and that Transfer
Certificate of Title No. T-27257 was obtained by means
of fraud, the claim of the defendants over the said
property is already barred. Action for reconveyance
prescribes in four (4) years from the discovery thereof.
If there was fraud, the defendant could have
discovered the same in 1967 when the partition was
made in as much as defendant Rosario Martillano was
a party to that partition. Let us grant further that the
issuance of Transfer Certificate of Title No. T-27257 to
Rafael Reyes, Jr. created a constructive or implied trust
in favor of the defendants, again, the claim of the
defendants is also barred. From 1967 to the filing of
their answer (let us consider this as an action for
reconveyance) to this case sometime in July, 1983, a
period of about sixteen (16) years had already elapsed.
Prescriptibility of an action for reconveyance based on
implied or constructive trust is ten (10) years.
The trial court further held that the continued possession by
private respondents, which it found to have started in 1943, did
not ripen into ownership because at that time, the property
was already registered, hence it cannot be acquired by
prescription or adverse possession.9
Private respondents appealed the said decision to the Court of
Appeals which docketed the appeal as C.A.-G.R. CV No.
11934. In its decision of 20 October 1989, the respondent
Court of Appeals formulated the issues before it as follows:
I
Whether or not the lower court erred in declaring that
the property of the late Gavino Reyes consisting of 70
hectares was partitioned only in 1967 by his
grandchildren after discovery of the existence of OCT
 No. 255 and that no actual partition was made in 1936
by the decedent's children.
II
Whether or not the lower court erred in concluding that
the parcel of land sold by the appellees' predecessor-
in-interest, the late Rafael Reyes, Sr. to appellant
Dalmacio Gardiola was not the same parcel of land
under litigation.10
and resolved such issues, thus:
On the first issue, We believe that the lower court
committed a reversible error when it declared that the
landed estate of the late Gavino Reyes was partitioned
only in 1967 by the latter's grandchildren; and that no
actual partition was made in 1936 by the decedents'
(sic) children. The evidence on record bears out the
existence of a subdivision plan (Exh. 6) which was not
controverted nor denied by the appellees. In like
manner, the lower court itself recognized the fact that
the property of the late Gavino Reyes consisting of 70
hectares was surveyed and subdivided in 1936 as
evidenced by the said subdivision plan (Exh. 6). With
the existence of a subdivision plan, and from the
uncontroverted testimony of appellants' witness, We
can only infer that at least an oral partition, which under
the law is valid and binding, was entered into by the
heirs of Gavino Reyes regarding his properties in 1936.
As held in a long line of decisions, extrajudicial partition
can be done orally, and the same would be valid if
freely entered into (Belen v. Belen, 49 O.G. 997, March
1953). The reason for this is because a partition is not
exactly a conveyance for the reason that it does not
involve transfer of property from one to the other but
rather a confirmation by them of their ownership of the
property. It must also be remembered that when
Gavino Reyes died on March 7, 1921, his property was
admittedly not yet covered by a torrens title, as it was
only in 1941 when said properties were brought into
the application of the torrens system. With this factual
milieu, it can also be concluded that his heirs have
indeed settled, subdivided and partitioned Gavino
Reyes' landed estate without formal requirements of
Rule 74 of the Rules of Court when a parcel of land is
covered by a torrens title. As told earlier, the
Subdivision Plan (Exh. 6) undisputedly showed on its
face that the 70 hectares of land belonging to the late
Gavino Reyes was subdivided and partitioned by his
children in 1936. On this score, the partition of the said
property even without the formal requirements under
the rule is valid as held in the case of Hernandez vs.
Andal, 78 Phil. 176, which states:
xxx xxx xxx
Moreover, in the Deed of Sale dated December 3, 1943
(Exh. 5) executed by Rafael Reyes, Sr. in favor of
appellant Dalmacio Gardiola, the land sold therein was
described as "na aking minana sa aking ama." This
alone would confirm the contention of the appellants
that there was already an actual partition (at least an
oral partition) of the property of Gavino Reyes in 1936.
As aforestated, the presence of the Subdivision Plan
(Exh. 6) is an (sic) evidence of such partition which
appellees failed to controvert not to mention the fact
that the lower court itself recognized the existence of
said plan, in the same manner that it concluded that
the property was already surveyed and actually
subdivided in 1936 (page 3, pars. 3 and 4, Decision).
From the foregoing considerations it is evident that the
Deed of Extrajudicial Settlement of Estate (Exh. D)
executed by the grandchildren of the late Gavino
Reyes in 1967 is of no moment considering that the
property subject of the partition in the deed was
already partitioned in 1936 by the children of Gavino
Reyes. It is for this reason that the lots supposedly
inherited by the grandchildren named in the deed of
1967 were the same lots inherited and given to their
respective fathers or mothers in 1936 while the land
was not yet covered by the torrens system. Hence, in
the case of Rafael Reyes, Sr., the land inherited by him
was two (2) parcels of land known as Lots Nos. 1-A-3
and 1-A-14 described in the Subdivision plan of 1936
(Exh. 6), which were the same parcels of land allegedly
inherited by Rafael Reyes, Jr. from Gavino Reyes in
representation of his father, pursuant to the Deed of
Extrajudicial Settlement of Estate for which TCT No.
27257 was issued.
Coming to the second issue, the lower court likewise
erred when it concluded that the parcel of land sold by
appellee's predecessor-in-interest to appellant
Dalmacio Gardiola was not the same parcel of land
under litigation. It must be pointed out that the identity
of the parcel of land which the appellees sought to
recover from the appellants was never an issue in the
lower court, because the litigants had already
conceded that the parcel identified as Lot No. 1-A-14 in
TCT No. 27257 was the same parcel of land identified
as Cadastral Lot No. 1228 and 1235 described in Tax
Declaration No. 4766. Despite this admission, however,
the lower court declared that "as described in the deed
of sale (Exh. 5), the land's description does not tally
with the description of Lot No. 1-A-14, the land in
litigation." As correctly pointed out by the appellants
however, the discrepancy in the description was due to
the fact that the description of the land sold in the Deed
of Sale was expressed in layman's language whereas
the description of Lot No. 1-A-14 in TCT No. 27257
was done in technical terms. This was so because,
when Rafael Reyes, Sr. sold the property in dispute to
appellant Dalmacio Gardiola on December 3, 1943, the
only evidence of title to the land then available in so far
as Rafael Reyes, Sr. was concerned was Tax
Declaration No. 4766, because at that time, neither he
nor appellant Dalmacio Gardiola was aware of the
existence of OCT No. 255 as in fact TCT No. 27257
was issued only in 1967. Consequently, the land
subject of the Deed of Sale was described by the
vendor in the manner as described in Tax Declaration
No. 4766. However, the description of the land
appearing in the Deed of Sale (Exh. 5) was exactly the
same land identified as Lot No. 1-A-14 in the
Subdivision Plan (Exh. 6) of 1936. Accordingly, the
assumption of the lower court that "if the land sold by
Rafael Reyes, Sr. was the one now in litigation, he
could have easily indicated Lot No. 1-A-14" is bereft of
merit under the foregoing circumstances. Interestingly
enough, the appellees never denied the identity of the
subject lot during the hearing at the lower court. What
they were denying only was the sale made by Rafael
Reyes, Sr. to appellant Dalmacio Gardiola which does
not hold true because of the document denominated as
Deed of Sale (Exh. 5).11
It concluded that the trial court erred when it ordered the
private respondents or anyone acting in their behalf to
relinquish the possession or vacate the property in question. It
thus decreed:
 WHEREFORE, the appealed Judgment is ordered
REVERSED and SET ASIDE and a new one is
rendered declaring appellants to be the lawful owners
of the lot identified as Lot No. 1-A-14 in TCT No.
27257. No
costs.12
Their motion to reconsider the above decision having been
denied by the Court of Appeals in its resolution of 1 March
1990,13 petitioners filed the instant petition on 6 April 1990 after
having obtained an extension of time within which to file it.
The petition does not implead original new defendants Ricardo
Gardiola and Emelita Gardiola.
As ground for their plea for the review of the decision of the
Court of Appeals, petitioners allege that said court has decided
questions of substance in a way not in accord with law or
applicable jurisprudence when it held that "the deed of
extrajudicial settlement of estate (Exh. "D") executed by the
grandchildren of the late Gavino Reyes in 1967 is of no
moment considering that the property subject of the partition
was already partitioned in 1936 by the children of Gavino
Reyes." In support thereof, they claim that (a) TCT No. 27257
covers two parcels of land; the lot described in paragraph 1
thereof is owned by petitioners and that ownership was
confirmed by this Court in G.R. No. 79882, hence, the Court of
Appeals should have affirmed the decision of the trial court; (b)
private respondent Rosario Martillano was a party to the
extrajudicial settlement of estate which was duly registered in
the Registry of Deeds in 1967; said registration is the
operative act that gives validity to the transfer or creates a lien
upon the land and also constituted constructive notice to the
whole world. The court cannot disregard the binding effect
thereof Finally, the pronouncement of the Court of Appeals that
private respondents are the lawful owners of the lot in question
"militates against the indefeasible and incontrovertible
character of the torrens title,"14 and allows reconveyance which
is not tenable since the action therefor had already prescribed,
as stated in the decision of the trial court.
In the resolution of 7 May 1990, We required respondents to
comment on the petition. But even before it could do so,
petitioner, without obtaining prior leave of the Court, filed on 29
May 1990 a so-called Supplemental Arguments in Support of
The Petition For Review On certiorari15 wherein they assert,
among others, that: (a) the findings of facts of respondent
Court are contrary to those of the trial court and appear to be
contradicted by the evidence on record thus calling for the
review by this Court;16 (b) it also committed misapprehension
of the facts in this case and its findings are based on
speculation, conjecture and surmises; (c) private respondents'
attack on petitioners' title is a collateral attack which is not
allowed; even if it is allowed, the same had already prescribed
and is now barred.
It was only on 15 June 1990 that private respondents filed their
Comment.17 We required petitioners to reply thereto, which
they complied with on 8 August 1990.18 A rejoinder was filed by
private respondents on 29 August 1990.
We gave due course to the petition on 19 September 1990
and required the parties to submit simultaneously their
respective memoranda which they complied with.
Attached as Annex "A" to private respondent's Memorandum,
which was filed on 10 December 1990, is the Resolution of this
Court (Third Division) of 20 August 1990 in G.R. No. 92811
entitled Spouses Artemio Durumpili and Angustia Reyes vs.
The Court of Appeals and Spouses Dalmacio Gardiola and
Rosario Martillano, which also involves the property of Gavino
Reyes, the partition thereof among his children in 1936, and
the extrajudicial settlement in 1967.
In said resolution, this Court held:
. . . The partition made in 1936, although oral, was
valid. The requirement in Article 1358 of the Civil Code
that acts which have for their object the creation,
transmission, modification or extinguishment of real
rights over immovable property must appear in a public
instrument is only for convenience and not for validity
or enforceability as between the parties themselves.
[Thunga Hui vs. Que Bentec, 2 Phil. 561 (1903)] The
subsequent execution by the heirs of the Extrajudicial
Partition in 1967 did not alter the oral partition as in fact
the share pertaining to Angustia Reyes corresponded
to that previously assigned to her father. Considering
that Angel Reyes sold this property to Basilio de
Ocampo who, in turn, sold the same to respondents,
we agree with the Court of Appeals that the latter
lawfully acquired the property and are entitled to
ownership and possession thereof.
In answer to the charge of private respondents that petitioners
deliberately failed to cite this resolution, the latter, in their
reply-memorandum dated 15 March 1991 and filed three days
thereafter, allege:
Our failure to mention the aforementioned resolution
before this Honorable Court is not deliberate nor with
malice aforethought. The reason is that to date, we
have not yet received any resolution to our Motion For
Leave of Court To Refer Case To The Honorable
Supreme Court En Banc. Moreover, we honestly feel
that the resolution that will be issued therein will not be
applicable to the case before this Honorable Court's
Second Division. It should be mentioned that in the
Durumpili case before the Third Division, the Court of
Appeals relied on the alleged confirmation of the sale
executed by Angustia Reyes, while in the Reyes case
before this Second Division, there was no sale that was
executed by the petitioners Reyes' predecessor-in-
interest, Rafael Reyes, Jr.
The foregoing claim is not supported by the rollo of G.R. No.
92811, which reveals the following: (a) On 18 September
1990, petitioners therein, represented by De Lara, De Lunas
and Rosales, who are the lawyers of petitioners in the instant
case, filed a motion for the reconsideration of the resolution of
20 August 1990.19 b) This motion was denied in the resolution
of 1 October 1990.20 c) On 17 November 1990, petitioners
therein, through the same lawyers, filed a Motion For Leave Of
Court To Refer Case To The Honorable Supreme
Court En Banc And/Or Motion For Reconsideration21 wherein
they specifically admit that said case and the instant petition
have "identity and/or similarity of the parties, the facts, the
issues raised," even going to the extent of "graphically"
illustrating where such similarities lie.22 d) This motion was
denied in the resolution of 28 November 1990. Copy thereof
was furnished the attorneys for petitioners.23 e) Entry of
judgment had already been made therein and a copy thereof
was sent to petitioner's counsel per Letter of Transmittal of the
Deputy Court and Chief of the Judicial Records Office dated
20 December 1990.
What comes out prominently from the disquisitions of the
parties is this simple issue: whether or not respondent Court of
Appeals committed any reversible error in setting aside the
decision of the trial court.
We find none. The reversal of the trial court's decision is
inevitable and unavoidable because the legal and factual
conclusions made by the trial court are unfounded and clearly
erroneous. The Court of Appeals was not bound to agree to
such conclusions. The trial court erred in holding that: (a) there
was no partition among the children of Gavino Reyes in 1936
since there is no written evidence in support thereof; yet, it
admits that there was a survey and subdivision of the property
and the adjudication of specific subdivision lots to each of the
children of Gavino; (b) the land sold by Rafael Reyes, Sr. to
private respondents is not identical to Lot No. 1-A-14, the lot
specified for and adjudicated to Rafael Reyes, Jr. in the
partition agreement; and (c) if the land sold by Rafael Reyes,
Sr. to private respondent Dalmacio Gardiola is indeed Lot No.
1-A-14 and that TCT No. T-27257 was obtained through fraud,
the remedy open to the vendee was an action for
reconveyance, which should have been brought within four (4)
years from the discovery thereof in 1967 when the
Extrajudicial Settlement was executed since private
respondent Rosario Martillano, wife of Dalmacio, was a party
thereto.
The Court of Appeals correctly held that the partition made by
the children of Gavino Reyes in 1936, although oral, was valid
and binding. There is no law that requires partition among
heirs to be in writing to be valid.24 In Hernandez vs. Andal,
supra, this Court, interpreting Section 1 of Rule 74 of the Rules
of Court, held that the requirement that a partition be put in a
public document and registered has for its purpose the
protection of creditors and at the same time the protection of
the heirs themselves against tardy claims. The object of
registration is to serve as constructive notice to others. It
follows then that the intrinsic validity of partition not executed
with the prescribed formalities does not come into play when
there are no creditors or the rights of creditors are not affected.
Where no such rights are involved, it is competent for the heirs
of an estate to enter into an agreement for distribution in a
manner and upon a plan different from those provided by law.
There is nothing in said section from which it can be inferred
that a writing or other formality is an essential requisite to the
validity of the partition. Accordingly, an oral partition is valid.
Barcelona, et al. vs. Barcelona, et al., supra, provides the
reason why oral partition is valid and why it is not covered by
the Statute of Frauds: partition among heirs or renunciation of
an inheritance by some of them is not exactly a conveyance of
real property for the reason that it does not involve transfer of
property from one to the other, but rather a confirmation or
ratification of title or right of property by the heir renouncing in
favor of another heir accepting and receiving the inheritance.
Additionally, the validity of such oral partition in 1936 has been
expressly sustained by this Court in the Resolution of 20
August 1990 in G.R. No. 92811.25
But even if We are to assume arguendo that the oral partition
executed in 1936 was not valid for some reason or another,
We would still arrive at the same conclusion for upon the death
of Gavino Reyes in 1921, his heirs automatically became co-
owners of his 70-hectare parcel of land. The rights to the
succession are transmitted from the moment of death of the
decedent.26 The estate of the decedent would then be held in
co-ownership by the heirs. The co-heir or co-owner may validly
dispose of his share or interest in the property subject to the
condition that the portion disposed of is eventually allotted to
him in the division upon termination of the co-ownership.
Article 493 of the Civil Code provides:
Each co-owner shall have the full ownership of his part
and the fruits and benefits pertaining thereto, and he
may even substitute another person in its enjoyment,
except when personal rights are involved. But the
effect of the alienation or the mortgage, with respect to
the co-owners, shall be limited to the portion which
 may be allotted to him in the division upon the
termination of the co-ownership.
In Ramirez vs. Bautista,27 this Court held that every co-heir
has the absolute ownership of his share in the community
property and may alienate, assign, or mortgage the same,
except as to purely personal rights, but the effect of any such
transfer is limited to the portion which may be awarded to him
upon the partition of the property.
In the case at bar, the lot sold by Rafael Reyes, Sr. to private
respondent Dalmacio Gardiola is his share in the estate of his
deceased father, Gavino Reyes. It is the same property which
was eventually adjudicated to his son and heir, Rafael Reyes,
Jr., represented in turn by his heirs-petitioners herein-in the
extrajudicial settlement of 1967.
In respect to the issue as to whether the property sold by
Rafael Reyes, Sr. is identical to Lot No. 1-14-A, the trial court
based its conclusion that it is not, on his observation that the
description of the former does not tally with that of the latter,
moreover, if Rafael did intend to sell Lot No. 1-14-A, he should
have specifically stated it in the deed since at that time, the
property had already been partitioned and said lot was
adjudicated to him. In addition to the contrary findings and
conclusion of the respondent Court on this issue to which We
fully agree, it is to be stressed that Rafael had this property
declared for taxation purposes and the tax declaration issued
was made the basis for the description of the property in the
deed of sale. Upon the execution of the deed of sale, vendee
— herein private respondent Dalmacio Gardiola —
immediately took possession of the property. This is the very
same property which is the subject matter of this case and
which petitioners seek to recover from the private
respondents. The main evidence adduced for their claim of
ownership and possession over it is TCT No. T-27257, the
certificate of title covering Lot No. 1-14-A. They therefore
admit and concede that the property claimed by private
respondent, which was acquired by sale from Rafael Reyes,
Sr., is none other than Lot No. 1-14-A.
The participation of private respondent Rosario Gardiola in the
Extrajudicial Settlement did not place private respondents in
estoppel to question the issuance of TCT No. T-27257. As
correctly maintained by private respondents, she signed it in
representation of her deceased mother, Marta Reyes, a
daughter and an heir of Gavino Reyes. She did not sign for
and in behalf of her husband, Dalmacio Gardiola, vendee of
the share of Rafael Reyes, Sr.
The same did not operate to divest the vendee of the share of
Rafael Reyes, Sr. in the estate of Gavino.1âwphi1Petitioners,
as mere successors-in-interest of Rafael Reyes, Jr., son of
Rafael Reyes, Sr., can only acquire that which Rafael, Jr.
could transmit to them upon his death. The latter never
became the owner of Lot No. 1-A-14 because it was sold by
his father in 1943. The issuance of TCT No. T-27257 in the
name of Rafael Reyes, Jr., in so far as Lot No. 1-14-A is
concerned, was clearly erroneous because he never became
its owner. An extrajudicial settlement does not create a light in
favor of an heir. As this Court stated in the Barcelona case,28 it
is but a confirmation or ratification of title or right to property.
Thus, since he never had any title or right to Lot No. 1-14-A,
the mere execution of the settlement did not improve his
condition, and the subsequent registration of the deed did not
create any right or vest any title over the property in favor of
the petitioners as heirs of Rafael Reyes, Jr. The latter cannot
give them what he never had before. Nemo dare potest quod
non habet.
There is one more point that should be stressed here.
Petitioners' immediate predecessor-in-interest, Rafael Reyes,
Jr., never took any action against private respondents from the
time his father sold the lot to the latter. Neither did petitioners
bring any action to recover from private respondents the
ownership and possession of the lot from the time Rafael
Reyes, Jr. died. As categorically admitted by petitioners in their
complaint and amended complaint, it was only in or about
September 1969 when, after the delivery of TCT No. 27257 by
Candido Hebron to them, that they definitely discovered that
they were the owners of the property in question. And yet,
despite full knowledge that private respondents were in actual
physical possession of the property, it was only about thirteen
and one-half (13 1/2) years later that they decided to file an
action for recovery of possession. As stated earlier, the original
complaint was filed in the trial court on 14 March 1983. There
was then absolutely no basis for the trial court to place the
burden on private respondents to bring an action for
reconveyance within four (4) years from their discovery of the
issuance of the transfer certificate of title in the name of Rafael
Reyes, Jr.

The instant petition then is without merit.

WHEREFORE, judgment is hereby rendered DENYING the

petition with costs against petitioners.

SO ORDERED.

Fernan, C.J., Gutierrez, Jr., Feliciano and Bidin, JJ., concur.

 SECOND DIVISION
[G.R. No. 94918. September 2, 1992.]
DANILO I. SUAREZ, EUFROCINA SUAREZ-ANDRES,
MARCELO I. SUAREZ, JR., EVELYN SUAREZ-DE LEON
and REGINIO I. SUAREZ, Petitioners, v. THE COURT OF
APPEALS, VALENTE RAYMUNDO, VIOLETA RAYMUNDO,
MA. CONCEPCION VITO and VIRGINIA
BANTA, Respondents.
Villareal Law Offices, for Petitioners.
Nelson Loyola for Private Respondent.
SYLLABUS
1. CIVIL LAW; WILLS AND SUCCESSION; LEGITIME;
PROPRIETARY INTEREST OF THE CHILDREN, DIFFERENT
AND ADVERSE FROM THEIR MOTHER. — The legitime of
the surviving spouse is equal to the legitime of each child. The
proprietary interest of petitioners in the levied and auctioned
property is different from and adverse to that of their mother.
Petitioners became co-owners of the property not because of
their mother but through their own right as children of their
deceased father. Therefore, petitioners are not barred in any
way from instituting the action to annul the auction sale to
protect their own interest.
DECISION
NOCON, J.:
The ultimate issue before Us is whether or not private
respondents can validly acquire all the five (5) parcels of land
co-owned by petitioners and registered in the name of
petitioner’s deceased father. Marcelo Suarez, whose estate
has not been partitioned or liquidated, after the said properties
were levied and publicly sold en masse to private respondents
to satisfy the personal judgment debt of Teofista Suarez, the
surviving spouse of Marcelo Suarez, mother of herein
petitioners.chanrobles law library
The undisputed facts of the case are as follows:chanrob1es
virtual 1aw library
Herein petitioners are brothers and sisters. Their father died in
1955 and since then his estate consisting of several valuable
parcels of land in Pasig, Metro Manila has lot been liquidated
or partitioned. In 1977, petitioners’ widowed mother and Rizal
Realty Corporation lost in the consolidated cases for
rescission of contract and for damages, and were ordered by
Branch 1 of the then Court of First Instance of Rizal (now
Branch 151, RTC of Pasig) to pay, jointly and severally, herein
respondents the aggregate principal amount of about P70,000
as damages. 1
The judgment against petitioner’s mother and Rizal Realty
Corporation having become final and executory, five (5)
valuable parcel of land in Pasig, Metro Manila, (worth to be
millions then) were levied and sold on execution on June 24,
1983 in favor of the private respondents as the highest bidder
for the amount of P94,170.000. Private respondents were then
issued a certificate of sale which was subsequently registered
or August 1, 1983.
On June 21, 1984 before the expiration of the redemption
period, petitioners filed a reinvindicatory action 2 against
private respondents and the Provincial Sheriff of Rizal,
thereafter docketed as Civil Case No. 51203, for the
annulment of the auction sale and the recovery of the
ownership of the levied pieces of property. Therein, they
alleged, among others, that being strangers to the case
decided against their mother, they cannot be held liable
therefor and that the five (5) parcels of land, of which they are
co-owners, can neither be levied nor sold on execution.
On July 31, 1984, the Provincial Sheriff of Rizal issued to
private respondents a final deed of sale 3 over the properties.
On October 22, 1984, Teofista Suarez joined by herein
petitioners filed with Branch 151 a Motion for Reconsideration
4 of the Order dated October 10, 1984, claiming that the
parcels of land are co-owned by them and further informing
the Court the filing and pendency of an action to annul the
auction sale (Civil Case No. 51203), which motion however,
was denied.chanrobles.com:cralaw:red
On February 25, 1985, a writ of preliminary injunction was
issued enjoining private respondents from transferring to third
parties the levied parcels of land based on the finding that the
auctioned lands are co-owned by petitioners.
On March 1, 1985, private respondent Valente Raymundo filed
in Civil Case No. 51203 a Motion to Dismiss for failure on the
part of the petitioners to prosecute, however, such motion was
later denied by Branch 155, Regional Trial Court, Pasig.
On December 1985, Raymundo filed in Civil Case No. 51203
an Ex-Parte Motion to Dismiss complaint for failure to
prosecute. This was granted by Branch 155 through an Order
dated May 29, 1986, notwithstanding petitioner’s pending
motion for the issuance of alias summons to be served upon
the other defendants in the said case. A motion for
reconsideration was filed but was later denied.
On October 10, 1984, RTC Branch 151 issued in Civil Case
Nos. 21736-21739 an Order directing Teofista Suarez and all
persons claiming right under her to vacate the lots subject of
the judicial sale; to desist from removing or alienating
improvements thereon; and to surrender to private
respondents the owner’s duplicate copy of the torrens title and
other pertinent documents.
Teofista Suarez then filed with the then Court of Appeals a
petition for certiorari to annul the Orders of Branch 151 dated
October 10, 1984 and October 14, 1986 issued in Civil Case
Nos. 21736-21739.
On December 4, 1986 petitioners filed with Branch 155 a
Motion for reconsideration of the Order 5 dated September 24,
1986. In an Order dated June 10, 1987, 6 Branch 155 lifted its
previous order of dismissal and directed the issuance of alias
summons.chanrobles law library : red
Respondents then appealed to the Court of Appeals seeking to
annul the orders dated February 25, 1985, 7 May 19, 1989 8
and February 26, 1990 9 issued in Civil Case No. 51203 and
further ordering respondent Judge to dismiss Civil Case No.
51203. The appellate court rendered its decision on July 27,
1990, 10 the dispositive portion of which
reads:jgc:chanrobles.com.ph
"WHEREFORE, the petition for certiorari is hereby granted
and the questioned orders dated February 25, 1985, May 19,
1989 and February 26, 1990 issued in Civil Case No. 51203
are hereby annulled, further respondent Judge is ordered to
dismiss Civil Case No. 51203." 11
Hence, this appeal.
Even without touching on the incidents and issues raised by
both petitioner and private respondents and the developments
subsequent to the filing of the complaint, We cannot but notice
the glaring error committed by the trial court.
It would be useless to discuss the procedural issue on the
validity of the execution and the manner of publicly selling en
masse the subject properties for auction. To start with, only
one-half of the 5 parcels of land should have been the subject
of the auction sale.
The law in point is Article 777 of the Civil Code, the law
applicable at the time of the institution of the case.
"The rights to the succession are transmitted from the moment
of the death of the decedent."cralaw virtua1aw library
Thus, from the foregoing, the legitime of the surviving spouse
is equal to the legitime of each child.
The proprietary interest of petitioners in the levied and
auctioned property is different from and adverse to that of their
mother. Petitioners became co-owners of the property not
because of their mother but through their own right as children
of their deceased father. Therefore, petitioners are not barred
in any way from instituting the action to annul the auction sale
to protect their own interest.
WHEREFORE, the decision of the Court of Appeals dated July
27, 1990 as well as its Resolution of August 28, 1990 are
hereby REVERSED and set aside; and Civil Case No. 51203
is reinstated only to determine that portion which belongs to
petitioners and to annul the sale with regard to said
portion.chanrobles law library

Article 888 further provides:chanrobles.com.ph : virtual law SO ORDERED.

library
Narvasa, C.J., Padilla and Regalado, JJ., concur.
"The legitime of the legitimate children and descendants
consists of one-half of the hereditary estate of the father and of Melo, J., took no part.
the mother.

The latter may freely dispose of the remaining half, subject to

the rights of illegitimate children and of the surviving spouse as
hereinafter provided."cralaw virtua1aw library

Article 892 par. 2 likewise provides:jgc:chanrobles.com.ph

"If there are two or more legitimate children or descendants,

the surviving spouse shall be entitled to a portion equal to the
legitime of each of the legitimate children or
descendants."cralaw virtua1aw library
 FIRST DIVISION
[G.R. No. 116018. November 13, 1996]
NELIA A. CONSTANTINO, petitioner, vs. COURT OF
APPEALS, AURORA S. ROQUE, PRISCILLA S.
LUNA and JOSEFINA S. AUSTRIA, respondents.
DECISION
BELLOSILLO, J.:
JOSEFA TORRES died intestate leaving a parcel of land
located at Balagtas, Bulacan. Among her heirs are
respondents Aurora S. Roque, Priscilla S. Luna and Josefina
S. Austria. Sometime in 1984, the heirs of Josefa Torres, as
vendors, and petitioner Nelia A. Constantino, as vendee,
entered into a contract to sell a parcel of land with a total land
area of two hundred and fifty (250) square meters. The lot,
owned in common by the Torres heirs, is being occupied by
petitioners mother and sister. An adjoining lot, also co-owned
by the heirs, is being occupied by spouses Severino and
Consuelo Lim. Pursuant to their agreement, the heirs
authorized petitioner to prepare the necessary Deed of
Extrajudicial Settlement of Estate with Sale.
After having the document drafted - with several spaces
left blank including the specification as to the metes and
bounds of the land - petitioner asked the heirs to affix their
signatures on the document. The heirs signed the document
with the understanding that respondent Aurora S. Roque, one
of the heirs, would be present when the latter would seek
permission from the Bureau of Lands and have the land
surveyed.
However, without the participation of any of the Torres
heirs, the property was subsequently surveyed, subdivided
and then covered by TCT Nos. T-292265 and T-292266.
Petitioner did not furnish the heirs with copies of the Deed of
Extrajudicial Settlement of Estate with Sale nor of the
subdivision plan and the certificates of title. Upon securing a
copy of the deed from the Registry of Deeds, the respondents
learned that the area of the property purportedly sold to
petitioner was much bigger than that agreed upon by the
parties. It already included the portion being occupied by the
spouses Severino and Consuelo Lim.
On 2 June 1986, private respondents sent a letter to
petitioner demanding the surrender to them of the deed of
settlement and conveyance, the subdivision plan and the
certificates of title; but to no avail. On 25 June
1986 respondents filed with the Regional Trial Court of
Bulacan an action for annulment of the deed and cancellation
of the certificates of title, with prayer for recovery of damages,
attorneys fees and costs of suit.[1]
Petitioner controverted the allegations of respondents by
presenting the Deed of Extrajudicial Settlement of Estate
with Sale dated 10 October 1984 wherein respondents agreed
to divide and adjudicate among themselves the inherited
property with an area of one thousand five hundred and three
(1,503) square meters. In the same document, they caused
the subdivision of the property into two (2) lots according to
Plan No. PSD-03-009105 identified as Lot 4-A with an area of
one thousand ninety-six (1,096) square meters, and Lot 4-B
with an area of four hundred and seven (407) square meters,
and acknowledged the sale to petitioner of said Lot 4-B. As a
consequence, on 18 March 1985, the Register of Deeds
issued TCT No. T-292265 in the name of the heirs of Josefa
Torres and TCT No. T-292266 in the name of petitioner.
In reply, private respondents reiterated that all the heirs
signed the document before the land was surveyed and
subdivided, hence, there was as yet no definite area to be sold
that could be indicated in the deed at the time of the
signing. They also claimed that they were not notified about
the survey and the subdivision of the lot and therefore they
could not have agreed on the area supposedly sold to
petitioner. The respondent heirs insist that they could not have
agreed to the extent of the area actually reflected in the deed
because it included the portion being occupied by the Lim
spouses, which was already the subject of a previous
agreement to sell between them and their predecessor.
The trial court entertained serious doubts with respect to
the preparation and due execution of the Deed of Extrajudicial
Settlement of Estate with Sale taking into account that (a)
while petitioner claimed that all the heirs signed before the
notary public and in her presence, she was not able to
enumerate all the signatories to the document; (b) while
petitioner claimed that the document was signed only after the
survey of the land was completed, or on 10 October 1984,
such fact was negated by her own witness who testified that
the survey was conducted only on 16 October 1984; and, (c)
while petitioner alleged that the document was signed and
notarized in Manila no explanation was offered why the same
could not have been signed and notarized in Bulacan where
notaries public abound which could have been less
inconvenient to the parties concerned. Additionally, the trial
court relied heavily on the assertions of respondents as
reflected in their demand letter that they did not give their
consent to the sale of Lot 4-B.
Thus, on the basis of the evidence on record, the trial
court on 27 September 1990 ordered the annulment and
cancellation of the Deed of Extrajudicial Settlement of Estate
with Sale, TCT Nos. T-292265 and T-292266 and Subdivision
Plan No. PSD-03-009105. It also ordered petitioner to pay
private respondents P50,000.00 for moral
damages, P15,000.00 for attorneys fees, and to pay the costs
of suit.[2]
On 16 March 1994 respondent Court of Appeals sustained
the decision of the trial court, [3] and on 20 June 1994 denied
the motion to reconsider its decision.[4]
Petitioner faults respondent Court of Appeals: (a) for
disregarding documentary evidence already presented,
marked and identified on a purely technical ground, and (b) for
concluding that the Deed of Extrajudicial Settlement of Estate
with Sale did not reflect the true intent of the parties.
Petitioner argues that the trial court should not have
denied her motion to admit formal offer of evidence merely on
the basis of technicality such as late filing, citing Siguenza v.
Court of Appeals.[5] We are not persuaded. Indeed, we held in
Siguenza that rules of procedure are not to be applied in a
very rigid and technical sense as they are used only to help
secure, not override, substantial justice. Yet the holding is
inapplicable to the present case as the trial court had a
reasonable basis for denying petitioners motion -
On February 6, 1990, Atty. Ponciano Mercado, defendants
counsel, manifested in Court that he has (sic) no more witness
to present. He asked that he be given 15 days to make a
formal offer of evidence and which the Court granted. At the
scheduled hearing of April 03, 1990, Atty. Ponciano Mercado x
x x x was not in Court. Atty. Veneracion, plaintiffs counsel,
called the attention of the Court that Atty. Mercado has (sic)
not yet filed and/or complied with the Court Order
dated February 06, 1990, which is to file his formal offer of
evidence. On motion of Atty. Veneracion, defendants right to
file a formal offer of evidence was deemed waived. Atty.
Veneracion waived the presentation of rebuttal evidence
considering that the defendant can (sic) no longer make a
formal offer of evidence.
On May 11, 1990, the Court was in receipt of a motion to admit
formal offer of exhibits filed by the defendant thru counsel, Atty.
Ponciano Mercado, on May 02, 1990. Considering that the
same was filed out of time and the plaintiffs having filed their
memorandum already, the motion to admit formal offer of
exhibits was denied (underscoring supplied).
The trial court was correct in holding that petitioner waived
the right to formally offer his evidence. A considerable lapse of
time, about three (3) months, had already passed before
petitioners counsel made effort to formally offer his
evidence. For the trial court to grant petitioners motion to admit
her exhibits would be to condone an inexcusable laxity if not
non-compliance with a court order which, in effect, would
encourage needless delays and derail the speedy
administration of justice.
Petitioner also insists that the real intent of the parties was
to make the entire Lot 4-B the subject matter of the sale. She
claims that during cross-examination respondent Aurora S.
Roque admitted that she signed in behalf of her co-heirs a
receipt for P30,000.00 as partial payment for the lot occupied
by Ka Baring and Lina (relatives of petitioner) and Iling
(Consuelo Lim). Moreover, according to petitioner, the
assertions of private respondents to petitioner contained in the
demand letter should not necessarily be true and that the
validity of the Deed of Extrajudicial Settlement of Estate with
Sale was not affected by the fact that it was notarized in a
place other than where the subject matter thereof was
situated, citing Sales v. Court of Appeals.[6]
These other arguments of petitioner are barren and
futile. The admission of respondent Roque cannot prevail in
the face of the clear evidence that there was as yet no meeting
of the minds on the land area to be sold since private
respondents were still awaiting the survey to be conducted on
the premises. Obviously, the trial court only lent credence to
the assertions in the demand letter after having weighed the
respective evidence of the parties. But even without the letter,
the evidence of respondents had already amply substantiated
their claims.
We ruled in the Sales case that the extrinsic validity of a
document was not affected by the fact that it was notarized in
a place other than where the subject matter thereof was
located. What is more important under the Notarial Law is that
the notary public has authority to acknowledge the document
executed within his territorial jurisdiction. The ruling in Sales is
not applicable to the present case. Our concern here is not
whether the notary public had the authority to acknowledge the
document executed within his territorial jurisdiction but whether
respondents indeed appeared before him and signed the
deed. However, the quantum of evidence shows that they did
not.
The trial court correctly appreciated the fact that the deed
was notarized in Manila when it could have been notarized in
Bulacan. This additional detail casts doubt on the procedural
regularity in the preparation, execution and signing of the
deed. It is not easy to believe that petitioner and the ten (10)
Torres heirs traveled all the way to Manila to have their
questioned document notarized considering that they, with the
exception of respondent Roque, are residents of Balagtas,
Bulacan, where notaries public are easy to find. Consequently,
the claim of private respondents that they did not sign the
document before a notary public is more plausible than
petitioners feeble claim to the contrary.
Likewise, we find the allegation of respondents that they
signed the deed prior to the survey, or before determination of
the area to be sold, worthy of credit as against the contention
of petitioner that they signed after the survey or on 10 October
1984. As found by the trial court, such contention was of Appeals, which affirmed the decision of the Regional Trial
contradicted by petitioners own witness who positively Court of Malolos, Bulacan, Br. 22, the instant petition is
asserted in court that the survey was conducted only on 16 DENIED.
October 1984 or six (6) days after the signing. Quite obviously,
when respondents affixed their signatures on the deed, it was SO ORDERED.
still incomplete since petitioner who caused it to be prepared Padilla (Chairman), Vitug, Kapunan, and Hermosisima,
left several spaces blank, more particularly as regards the Jr., JJ., concur.
dimensions of the property to be sold. The heirs were
persuaded to sign the document only upon the assurance of
petitioner that respondent Roque, pursuant to their
understanding, would be present when the property would be
surveyed after obtaining permission from the Bureau of
Lands. As it surfaced, the supposed understanding was
merely a ruse of petitioner to induce respondents to sign the
deed without which the latter would not have given their
conformity thereto.[7] Apparently, petitioner deceived
respondents by filling the blank spaces in the deed, having the
lots surveyed and subdivided, and then causing the issuance
of transfer certificates of title without their knowledge, much
less consent. Thus all the elements of fraud vitiating consent
for purposes of annulling a contract concur: (a) It was
employed by a contracting party upon the other; (b) It induced
the other party to enter into the contract; (c) It was serious;
and, (d) It resulted in damages and injury to the party seeking
annulment.[8]
Perhaps, another compelling reason for the annulment of
the document of settlement and conveyance is that the second
page thereof clearly manifests that the number of the
subdivision plan and the respective areas of Lots 4-A and 4-B
were merely handwritten while all the rest of the statements
therein were typewritten, which leads us to the conclusion that
handwritten figures thereon were not available at the time the
document was formalized.
WHEREFORE, there being no error to warrant a reversal
of the decision and resolution in question of respondent Court
 THIRD DIVISION At bar is a Petition for Certiorari under Rule 65 of the
Revised Rules of Court assailing the Orders dated October 25,
1995 and February 23, 1996, respectively, of Branch 21 of the
Regional Trial Court in Imus, Cavite (RTC).
[G.R. No. 124320. March 2, 1999]
The facts that matter are, as follows:
Petitioners claim that they are the legal heirs of the late
Guido and Isabel Yaptinchay, the owners-claimants of Lot No.
HEIRS OF GUIDO YAPTINCHAY AND ISABEL
1131 with an area of 520,638 and Lot No. 1132 with an area of
YAPTINCHAY, NAMELY: LETICIA ENCISO-
96,235 square meters, more or less situated in Bancal,
GADINGAN, EMILIO ENCISO, AURORA ENCISO,
Carmona, Cavite.
AND NORBERTO ENCISO, REPRESENTED BY
LETICIA ENCISO-GADINGAN, ATTORNEY-IN- On March 17, 1994, petitioners executed an Extra-Judicial
FACT, petitioners, vs. HON. ROY S. DEL ROSARIO, Settlement of the estate of the deceased Guido and Isabel
PRESIDING JUDGE, RTC, BRANCH 21, IMUS, Yaptinchay.
CAVITE; THE REGISTER OF DEEDS FOR TRECE
MARTIRES CITY, GEORGE T. CHUA, SPS. On August 26, 1994, petitioners discovered that a portion,
ALFONSO NG AND ANNABELLE CHUA, SPS. if not all, of the aforesaid properties were titled in the name of
ROSENDO L. DY AND DIANA DY, SPS. ALEXANDER respondent Golden Bay Realty and Development Corporation
NG AND CRISTINA NG, SPS. SAMUEL MADRID (Golden Bay) under Transfer Certificate of Title Nos. (TCT)
AND BELEN MADRID, SPS. JOSE MADRID AND 225254 and 225255. With the discovery of what happened to
BERNARDA MADRID, SPS. DAVID MADRID AND subject parcels of land, petitioners filed a complaint for
VIOLETA MADRID, JONATHAN NG, SPS. ANNULMENT and/or DECLARATION OF NULLITY OF TCT
VICTORIANO CHAN, JR. AND CARMELITA CHAN, NO. 493363, 493364, 493665, 493366, 493367; and its
SPS. MARIE TES C. LEE AND GREGORIE W.C. LEE, Derivatives; As Alternative Reconveyance of Realty WITH A
JACINTO C. NG, JR., SPS. ADELAIDO S. DE PRAYER FOR A WRIT OF PRELIMINARY INJUNCTION
GUZMAN AND ROSITA C. DE GUZMAN, SPS. and/or RESTRAINING ORDER WITH DAMAGES, docketed
RICARDO G. ONG AND JULIE LIM-IT, SPS. MISAEL as RTC BCV-94-127 before Branch 21 of the Regional Trial
ADELAIDA P. SOLIMAN AND FERDINAND Court in Imus, Cavite.
SOLIMAN, SPS. MYLENE T. LIM AND ARTHUR LIM, Upon learning that Golden Bay sold portions of the
EVELYN K. CHUA, GOLDEN BAY REALTY AND parcels of land in question, petitioners filed with the RTC an
DEVELOPMENT CORPORATION, respondents. Amended Complaint to implead new and additional defendants
and to mention the TCTs to be annulled. But the respondent
DECISION court dismissed the Amended Complaint.
PURISIMA, J.: Petitioners moved for reconsideration of the Order
dismissing the Amended Complaint. The motion was granted
by the RTC in an Order [1] dated July 7, 1995, which further
allowed the herein petitioners to file a Second Amended
Complaint,[2] which they promptly did.
On August 12, 1995, the private respondents presented a
Motion to Dismiss[3] on the grounds that the complaint failed to
state a cause of action, that plaintiffs did not have a right of
action, that they have not established their status as heirs, that
the land being claimed is different from that of the defendants,
and that plaintiffs claim was barred by laches. The said Motion
to Dismiss was granted by the respondent court in its
Order[4] dated October 25, 1995, holding that petitioners have
not shown any proof or even a semblance of it - except the
allegations that they are the legal heirs of the above-named
Yaptinchays - that they have been declared the legal heirs of
the deceased couple.
Petitioners interposed a Motion for Reconsideration [5] but
to no avail. The same was denied by the RTC in its Order [6] of
February 23, 1996.
Undaunted, petitioners have come before this Court to
seek relief from respondent courts Orders under attack.
Petitioners contend that the respondent court acted with
grave abuse of discretion in ruling that the issue of heirship
should first be determined before trial of the case could
proceed. It is petitioners submission that the respondent court
should have proceeded with the trial and simultaneously
resolved the issue of heirship in the same case.
The petition is not impressed with merit.
To begin with, petitioners Petition for Certiorari before this
Court is an improper recourse. Their proper remedy should
have been an appeal. An order of dismissal, be it right or
wrong, is a final order, which is subject to appeal and not a
proper subject of certiorari[7]. Where appeal is available as a
remedy, certiorari will not lie[8].
Neither did the respondent court commit grave abuse of
discretion in issuing the questioned Order dismissing the
Second Amended Complaint of petitioners, as it aptly
ratiocinated and ruled:
But the plaintiffs who claimed to be the legal heirs of the said
Guido and Isabel Yaptinchay have not shown any proof or
even a semblance of it - except the allegations that they are
the legal heirs of the aforementioned Yaptinchays - that
they have been declared the legal heirs of the deceased
couple. Now, the determination of who are the legal heirs of
the deceased couple must be made in the proper special
proceedings in court, and not in an ordinary suit for
reconveyance of property. This must take precedence over the
action for reconveyance (Elena C. Monzon, et. al., v. Angelita
Taligato, CA-G-R No. 33355, August 12, 1992).
In Litam, etc., et. al. v. Rivera[9], this court opined that the
declaration of heirship must be made in an administration
proceeding, and not in an independent civil action. This
doctrine was reiterated in Solivio v. Court of Appeals[10] where
the court held:
"In Litam, et al. v. Rivera, 100 Phil. 364, where despite the
pendency of the special proceedings for the settlement of the
intestate estate of the deceased Rafael Litam, the plaintiffs-
appellants filed a civil action in which they claimed that they
were the children by a previous marriage of the deceased to a
Chinese woman, hence, entitled to inherit his one-half share of
the conjugal properties acquired during his marriage to
Marcosa Rivera, the trial court in the civil case declared that
the plaintiffs-appellants were not children of the deceased, that
the properties in question were paraphernal properties of his
wife, Marcosa Rivera, and that the latter was his only heir. On
appeal to this Court, we ruled that such declarations (that
Marcosa Rivera was the only heir of the decedent) is improper,
in Civil Case No. 2071, it being within the exclusive
competence of the court in Special Proceedings No. 1537, in
which it is not as yet, in issue, and, will not be, ordinarily, in
issue until the presentation of the project of partition. (p. 378).

The trial court cannot make a declaration of heirship in the

civil action for the reason that such a declaration can only be
made in a special proceeding. Under Section 3, Rule 1 of the
1997 Revised Rules of Court, a civil action is defined as one
by which a party sues another for the enforcement or
protection of a right, or the prevention or redress of a wrong
while a special proceeding is a remedy by which a party seeks
to establish a status, a right, or a particular fact. It is then
decisively clear that the declaration of heirship can be made
only in a special proceeding inasmuch as the petitioners here
are seeking the establishment of a status or right.
We therefore hold that the respondent court did the right
thing in dismissing the Second Amended Complaint, which
stated no cause of action. In Travel Wide Associated Sales
(Phils.), Inc. v. Court of Appeals[11], it was ruled that:

xxx If the suit is not brought in the name of or against the real
party in interest, a motion to dismiss may be filed on the
ground that the complaint states no cause of action.

WHEREFORE, for lack of merit, the Petition under

consideration is hereby DISMISSED. No pronouncement as to
costs.
SO ORDERED.
Romero, (Chairman), and Gonzaga-Reyes, JJ., concur.
Vitug, J., abroad on official business.
Panganiban, J., on leave.
G.R. No. 149017 November 28, 2008
estate, thus:
VALENTE RAYMUNDO,petitioner,
vs.
TEOFISTA ISAGON VDA. DE SUAREZ, DANILO I. SUAREZ,
EUFROCINA SUAREZ, MARCELO I. SUAREZ, JR, EVELYN
SUAREZ, ET AL., respondents.
DECISION
NACHURA, J.:
This petition, filed under Rule 65 of the Rules of Court, assails
the Court of Appeals (CA) Decision1 and Resolution2 in CA-
G.R. SP No. 58090 which reversed, set aside and recalled the
Regional Trial Court (RTC) Orders3 in Civil Case No. 51203.
First, the long settled facts.
Marcelo and Teofista Isagon Suarez'4 marriage was blessed
with both material wealth and progeny in herein respondents,
namely, Danilo,5 Eufrocina, Marcelo Jr., Evelyn, and
Reggineo,6 all surnamed Suarez. During their marriage,
governed by the conjugal partnership of gains regime, they
acquired numerous properties, which included the following:
(1) a parcel of land situated in Barrio Caniogan, Pasig with an
area of 348 square meters covered by Transfer Certificate of
Title (TCT) No. 30680; (2) property located in Pinagbuhatan,
Pasig, with an area of 1,020 square meters under Tax
Declaration No. A-016-01003; and (3) Lot Nos. 5, 6 & 7, Block
2 covered by Tax Declaration No. A-01700723 (subject
properties).
After the death of Marcelo Sr. in 1955, Teofista and herein
respondents, as well as Elpidio Suarez,7 executed an
Extrajudicial Settlement of Estate,8 partitioning Marcelo Sr.'s
WHEREAS, the said deceased is survived by the
parties hereto who are his only legal heirs: TEOFISTA
ISAGON, being the surviving spouse, and
EUFROCINA S. ANDRES, ELPIDIO SUAREZ,
DANILO SUAREZ, EVELYN SUAREZ, MARCELO
SUAREZ, JR. and REGGINEO SUAREZ, being the
legitimate children of the deceased with the said
TEOFISTA ISAGON;
WHEREAS, the minors ELPIDIO, SUAREZ, DANILO
SUAREZ, EVELYN SUAREZ, MARCELO SUAREZ,
JR. and REGGINEO SUAREZ are represented herein
by EUFROCINA S. ANDRES, in her capacity as the
guardian and legal administrator of the property of the
said minors;
WHEREAS, there are no known debts or financial
obligations of whatever nature and amount against the
estate of the deceased;
NOW, THEREFORE, in consideration of the foregoing
premises, the Parties have agreed to settle and
liquidate the assets of the conjugal partnership
between the deceased and TEOFISTA ISAGON, and to
settle and adjudicate the estate of the said deceased,
by and pursuance to these presents, in the following
manner, to wit:
1. That TEOFISTA ISAGON, as the surviving spouse
and partner of the deceased, shall receive in absolute
and exclusive ownership the following properties as her
lawful share in the assets of the conjugal partnership of
gains between her and the deceased, to wit:
(a) Half (1/2) interest and participation in the
parcel of land covered by Tax Declaration No.
6938, situated at Sitio Pantayan, Municipality of
Taytay, Province of Rizal;
(b) Half (1/2) interest and participation in the
parcel of land covered by Tax Declaration No.
6939, situated at Sitio Pantayan, Municipality of
Taytay, Province of Rizal;
(c) Half (1/2) interest and participation in the
parcel of land covered by TCT No. 38291,
situated at Barrio Rosario, Municipality of Pasig,
Province of Rizal;
(d) Half (1/2) interest and participation in the
parcel of land covered by TCT No. 38290,
situated at Barrio Rosario, Municipality of Pasig,
Province of Rizal;
(e) TWELVE THOUSAND FIVE HUNDRED
THIRTY PESOS AND NINETY (P12,530.90)
deposited with the Commercial Bank and Trust
Company of the Philippines, and THIRTY-NINE
PESOS (P39.00) deposited with Prudential
Bank.
2. That the Parties TEOFISTA ISAGON, EUFROCINA
S. ANDRES, ELPIDIO SUAREZ, DANILO SUAREZ,
EVELYN SUAREZ, MARCELO SUAREZ, JR. and
REGGINEO SUAREZ, shall each and all receive and
be entitled to a share equivalent to one-seventh (1/7) of
the estate of the deceased MARCELO SUAREZ, which
estate is comprised of the following properties, to wit:
(a) A parcel of land covered by TCT No. 30680,
situated at Barrio Kaniogan, Municipality of
Pasig, Province of Rizal, with an assessed
value of P4,150.00.
(b) Three (3) parcels of land covered by TCT
Nos. 33982, 33983 and 33984, situated at
Barrio Pineda, Municipality of Pasig, Province
of Rizal, with an assessed value of P560.00.
(c) A parcel of land covered by TCT 33986,
situated at Barrio Pineda, Municipality of Pasig,
Province of Rizal, with an assessed value
of P440.00.
(d) Two (2) parcels of land, being Lots Nos. 42
and 44 of the amendment-subdivision plan TY-
4653-Amd., being a portion of Lot 2 described
on the original plan II-4653, G.L.R.O. Record
No. _____, situated at Barrio Santolan,
Municipality of Pasig, Province of Rizal, with a
total assessed value of P590.00.
(e) Two parcels of land, being Lots Nos. 43 and
45 of the amendment-subdivision plan TY-4653-
Amd., being a portion of Lot 2 described on the
original plan II-4653, G.L.R.O. Record No.
_______, situated at Barrio Santolan,
Municipality of Pasig, Province of Rizal, with a
total assessed value of P1,190.00.
(f) A parcel of land, being Lot No. 6, Block 269
of the subdivision plan pos-112, being a portion
 of Lot 2, Block 348, Psd-3188, G.L.R.O. Record
Nos. 375,699 and 917, situated at San Felipe
Neri, Province of Rizal, with an assessed value
of P6,340.00.
(g) A parcel of land covered by OCT No. 391,
situated in the Municipality of Taytay, Province
of Rizal, with an assessed value of P1,840.00.
(h) TWELVE THOUSAND (12,000) shares of
stock of the Consolidated Mines, Inc.
represented by Certificate No. 71-5-B (for 1,000
shares) and Certificate No. 12736 (for 11,000
shares).
PROVIDED, that their title to the properties
hereinabove mentioned shall be in common and the
share of each heir being pro indiviso.
Curiously, despite the partition, title to the foregoing properties,
explicitly identified in the Extrajudicial Settlement of Estate as
forming part of Marcelo's and Isagon's property regime,
remained in the couple's name. Not surprisingly, Teofista
continued to administer and manage these properties. On the
whole, apart from those now owned exclusively by Teofista, all
the properties were held pro indiviso by Teofista and her
children; and respective titles thereto were not changed, with
Teofista as de facto administrator thereof.
In 1975, Rizal Realty Corporation (Rizal Realty) and Teofista,
the latter owning ninety percent (90%) of the former's shares
of stock, were sued by petitioner Valente Raymundo, his wife
Violeta, Virginia Banta and Maria Concepcion Vito (plaintiffs) in
consolidated cases for Rescission of Contract and Damages,
docketed as Civil Case Nos. 21736 to 21739. Thereafter, in
1975, the then Court of First Instance (CFI) of Rizal, Branch 1,
rendered judgment: (1) rescinding the respective contracts of
plaintiffs with Rizal Realty and Teofista, and (2) holding the two
defendants solidarily liable to plaintiffs for damages in the
aggregate principal amount of about P70,000.00.9
When the judgment of the CFI became final and executory,
herein subject properties were levied and sold on execution on
June 24, 1983 to satisfy the judgment against Teofista and
Rizal Realty. The aforementioned plaintiffs were the highest
bidder, and bought the levied properties for the amount
of P94,170.00. As a result, a certificate of sale was issued to
them and registered in their favor on August 1, 1983. On July
31, 1984, the Provincial Sheriff of Rizal issued a final deed of
sale over the subject properties.
Parenthetically, before expiration of the redemption period, or
on June 21, 1984, herein respondents filed a revindicatory
action against petitioner Valente, Violeta, Virginia and Maria
Concepcion, docketed as Civil Case No. 51203, for the
annulment of the auction sale and recovery of ownership of
the levied properties. Essentially, respondents alleged in their
complaint that they cannot be held liable for the judgment
rendered against their mother, Teofista, not having been
impleaded therein; and consequently, the subject properties,
which they own pro indiviso with their mother, can neither be
levied nor be sold on execution.
Meanwhile, the RTC, Branch 151, formerly the CFI, Branch 1,
in Civil Case Nos. 21376 to 21379, issued an Order10 directing
Teofista: (1) to vacate the subject properties, (2) to desist from
despoiling, dismantling, removing or alienating the
improvements thereon, (3) to place petitioner Valente, Violeta,
Virginia and Maria Concepcion in peaceful possession thereof,
and (4) to surrender to them the owner's duplicate copy of the
torrens title and other pertinent documents. Herein
respondents, joined by their mother, Teofista, filed a Motion for
Reconsideration arguing that the subject properties are co-
owned by them and further informing the RTC of the filing and
pendency of Civil Case No. 51203. Nonetheless, the trial court
denied Teofista's and herein respondents' motion, reiterated its
previous order, which included, among others, the order for
Teofista and all persons claiming right under her, to vacate the
lots subject of the judicial sale.
Undaunted, Teofista and herein respondents filed a petition
for certiorari before the CA to annul the foregoing orders. The
appellate court, on July 6, 1987, dismissed Teofista's and
herein respondents' petition, thus:
We believe this petition cannot prosper for two
reasons. First, as purported case for certiorari it fails to
show how the respondent judge had acted without or in
excess of jurisdiction or with grave abuse of discretion.
The two orders being assailed were preceded by a final
judgment, a corresponding writ of execution, a levy on
execution and a judicial sale, all of which enjoy a
strong sense presumption of regularity.
Secondly, as far as [petitioner] Teofista Suarez is
concerned, she cannot complain about the levy
because she was a party in the consolidated cases
where judgment was rendered against her in her
personal capacity. Since she did not appeal from the
decision, she cannot say that the judgment is
erroneous for an obligation that belong to the
corporation. And with respect to the children of Teofista
Suarez, who are co-petitioners in this proceedings
[herein respondents], suffice it to point out that not
being parties in the consolidated cases, what they
should have done was to immediately file a third party
claim. The moment levy was made on the parcels of
land, which they claim are theirs by virtue of hereditary
succession, they should have seasonably filed such
claim to protect their rights. As the record discloses,
however, the children chose to remain silent, and even
allowed the auction sale to be held, filing almost a year
later a half-hearted complaint to annul the proceedings
which they allowed to be dismissed by not diligently
prosecuting it.
In Santos v. Mojica (10 SCRA 318), a partition case
with third- party claimants, the Supreme Court came
out with the following ruling: "The procedure (a petition
for certiorari) followed by him (a petitioner not party to
the original partition case) in vindicating his right is not
the one sanctioned by law, for he should have filed a
separate and independent action making parties
therein the sheriff and the plaintiffs responsible for the
execution xxx. It can, therefore, be said that (he) acted
improperly in filing the present petition because his
remedy was to file a separate and independent action
to vindicate his ownership over the land.
WHEREFORE, the petition is denied and the
restraining order previously issued is DISSOLVED, with
costs against petitioners.11
On the other litigation front concerning Civil Case No. 51203, a
writ of preliminary injunction was issued by the RTC Pasig,
Branch 155, on February 25, 1985, enjoining petitioner
Valente, Violeta, Virginia and Maria Concepcion from
transferring to third parties the levied properties based on its
preliminary finding that the auctioned properties are co-owned
by Teofista and herein respondents. Subsequently, however,
Civil Case No. 51203 was dismissed by the RTC, Branch 155,
at the instance of petitioner Valente for failure of herein
respondents to prosecute. But in yet another turn of events,
the RTC, Branch 155, lifted its previous order of dismissal and
directed the issuance of alias summons.
Thus, it was now petitioner Valente's, Violeta's, Virginia's and
Maria Concepcion's turn to file a petition for certiorari with the
CA, assailing the various orders of the RTC, Branch 155,
which all rejected their bid to dismiss Civil Case No. 51203.
The CA granted their petition, thus:
And the fact that herein private respondents, as the
legal heirs of Teofista Vda. de Suarez and supposedly
not parties in Civil Case Nos. 21376 - 21379 does not
preclude the application of the doctrine of res
judicata since, apart from the requisites constitutive of
this procedural tenet, they were admittedly the children
of Teofista Suarez, who is the real party-in-interest in
the previous final judgment. As successors-in-interest
of Teofista Suarez, private respondents merely stepped
into the shoes of their mother in regard to the levied
pieces of property. Verily, there is identity of parties, not
only where the parties in both actions are the same,
but where there is privity with them as in the cases of
successors-in-interest by title subsequent to the
commencement of the action or where there is
substantial identity.
Finally, the action to annul the judicial sale filed by
herein private respondents is not the reinvindicatory
suit, much less the third party claim contemplated by
Section 17 of Rule 39.
WHEREFORE, the petition for certiorari is hereby
granted and the questioned orders dated February 25,
1985, May 19, 1989 and February 26, 1990 issued in
Civil Case No. 51203 are hereby annulled; further
respondent judge is ordered to dismiss Civil Case No.
51203.12
From this ruling, herein respondents appealed to the Supreme
Court. In Suarez v. Court of Appeals,13 we reversed the
appellate court, thus:
Even without touching on the incidents and issues
raised by both petitioner [herein respondents] and
private respondents [petitioner Valente, Violeta, Virginia
and Maria Concepcion] and the developments
subsequent to the filing of the complaint, [w]e cannot
but notice the glaring error committed by the trial court.
It would be useless to discuss the procedural issue on
the validity of the execution and the manner of publicly
selling en masse the subject properties for auction. To
start with, only one-half of the 5 parcels of land [subject
properties] should have been the subject of the auction
sale.
The law in point is Article 777 of the Civil Code, the law
applicable at the time of the institution of the case:
The rights to the succession are transmitted from the
moment of the death of the decedent."
Article 888 further provides:
"The legitime of the legitimate children and
descendants consists of one-half of the
hereditary estate of the father and of the
mother.
 The latter may freely dispose of the remaining half,
subject to the rights of illegitimate children and of the
surviving spouse as hereinafter provided."
Article 892, par. 2 likewise provides:
"If there are two or more legitimate children or
descendants, the surviving spouse shall be
entitled to a portion equal to the legitime of
each of the legitimate children or descendants."
Thus, from the foregoing, the legitime of the surviving
spouse is equal to the legitime of each child.
The proprietary interest of petitioners [herein
respondents] in the levied and auctioned property is
different from and adverse to that of their mother
[Teofista]. Petitioners [herein respondents] became co-
owners of the property not because of their mother
[Teofista] but through their own right as children of their
deceased father [Marcelo Sr.]. Therefore, petitioners
[herein respondents] are not barred in any way from
instituting the action to annul the auction sale to protect
their own interest.
WHEREFORE, the decision of the Court of Appeals
dated July 27, 1990 as well as its Resolution of August
28, 1990 are hereby REVERSED and set aside; and
Civil Case No. 51203 is reinstated only to determine
that portion which belongs to petitioners and to annul
the sale with regard to said portion.
It was at this point when another series of events transpired,
culminating in the present petition.
Upon our reinstatement of Civil Case No. 51203, each and
every pleading filed by herein respondents, as plaintiffs
therein, was hotly contested and opposed by therein
defendants, including petitioner Valente. Moreover, even at
that stage, when the case had been remanded with a directive
to "determine that portion which belongs to [herein
respondents] and to annul the sale with regard to said portion,"
Civil Case No. 51203 had to be re-raffled and transferred, for
varied reasons, to the different court branches in Pasig City. In
between all these, petitioner Valente, along with the other
defendants, repeatedly filed a Motion to Dismiss Civil Case
No. 51203 for the purported failure of herein respondents to
prosecute the case. Most of these Motions to Dismiss were
denied.
With each transfer of Civil Case No. 51203, the judge to which
the case was raffled had to study the records anew.
Expectedly, part of the records went missing and were lost. On
April 12, 1993, the Clerk of Court of RTC, Branch 71, to which
Civil Case No. 51203 was remanded, filed a report on the
records of the case, to wit:
1. The first volume of the record in the above-entitled
case was recorded as received on June 20, 1990, by
Sheriff Alejandro O. Loquinario;
2. That the staff of Branch 71 at this time was sharing a
small room with Branch 161 at the First Floor of the
Justice Hall, and as the Branch was newly formed, it
had no equipment or furniture of its own, and was still
undermanned;
3. That sometime in August 1990, Branch 71 moved to
the staffroom of Branch 159 at the Second Floor of the
Justice Hall;
4. That on October 25, 1990, this Court received a
Notice of Judgment dated October 22, 1990 from the
Court of Appeals that ruled the dismissal of the above-
entitled case, and as per standing instructions of Judge
Graduacion A. Reyes-Claravall, the same was bound
as volume 2 of the case;
5. That just before the Christmas vacation in 1991, the
branch was forced to hastily move all of its records and
equipment to branch 69, because of the unexpected
notice we received that the room we were occupying
was to be demolished in order to meet the schedule for
the renovation of the building;
6. That unfortunately, the room was demolished before
the undersigned could make a last check to see if
everything was transferred;
7. That it was only later on that this office discovered
that important documents were indeed lost, including
transcripts of stenographic notes in a case that was
submitted for decision;
8. That sometime in May 1992, the branch moved its
Office to its present location;
9. That on March 8, 1993, this Court received a copy of
a Decision of the Supreme Court reversing the earlier
ruling of the Court of Appeals;
10. That it was at this time that the first volume of this
case, which was bundled along with other cases which
were decided and/or archived, was reported as
missing;
11. That from the time the same was found to be
missing, Judge Claravall ordered that a search for the
same be made in all of the offices wherein this branch
was forced to share a room with, as well as the Court
of Appeals, in the event that the same was transmitted
to said Court;
12. That all the efforts were in vain, as said record
could not be located anywhere;
13. That the undersigned now concludes that the first
volume of the above-entitled case was probably lost
during the renovation of the Justice Hall Building, and
will have to be reconstituted with the use of documents
in the possession of the parties, or documents entered
as exhibits in other Courts.14
In this regard, herein respondents filed a Motion for
Reconstitution of Records15 of the case. Initially, petitioner
Valente, and the other defendants -- Violeta, Virginia and
Maria Concepcion -- opposed the motion.16 However, the trial
court eventually granted the motion for reconstitution, and
ordered petitioner Valente and the other defendants to submit
a copy of their Answer filed thereat and copies of other
pleadings pertinent to the case.17
Thereafter, three (3) incidents, among numerous others, set off
by the parties' pleadings, are worth mentioning, to wit:
1. A Motion for Leave to File and Admit Supplemental
Complaint18 filed by herein respondents. The Supplemental
Complaint additionally prayed that the levy and sale at public
auction of the subject properties be annulled and set aside, as
the bid price was unconscionable and grossly inadequate to
the current value of the subject properties. The Supplemental
Complaint further sought a re-bidding with respect to Teofista's
share in the subject properties. Finally, it prayed that TCT No.
6509 in the name of petitioner Valente, Violeta, Virginia and
Maria Concepcion be cancelled and TCT No. 30680 in the
name of Marcelo Suarez, married to Teofista Isagon, be
reinstated.
2. A Manifestation and Motion (to Execute/Enforce Decision
dated September 4, 1992 of the Supreme Court)19 filed by
herein respondents pointing out that the Supreme Court itself
had noted the current increased value of the subject properties
and that petitioner Valente, Violeta, Virginia and Maria
Concepcion unjustly enriched themselves in appropriating the
subject properties worth millions then, for a measly bid price
of P94,170.00, for a judgment obligation worth
only P70,000.00.
3. An Urgent Motion [to direct compliance by plaintiffs (herein
respondents) with Supreme Court Decision or to consider the
matter submitted without evidence on the part of
plaintiffs]20 filed by therein defendants, including herein
petitioner Valente, pointing out that plaintiffs (herein
respondents) have yet to comply with the RTC, Branch 67
Order commanding them to submit (to the RTC) any evidence
showing settlement of the estate of the deceased Marcelo
Suarez, in order for the court to determine the portion in the
estate which belongs to Teofista. The Urgent Motion stated in
paragraph 2, thus:
2. The defendants [including herein petitioner Valente]
did everything possible to expedite the disposition of
this case while the plaintiffs [herein respondents] did
everything possible to DELAY the disposition of the
same obviously because the plaintiffs [herein
respondents] are in full possession and enjoyment of
the property in dispute. In its decision of September 4,
1992, the SUPREME COURT nullified TWO final and
executory DECISIONS of the Court of Appeals in an
unprecedented action. In said decision, the Supreme
Court ordered the plaintiffs [herein respondents] to
establish with evidence their personality as heirs of
Marcelo Suarez, and after being able to do so, to
adduce evidence that would determine what portion
belongs to plaintiffs hence the above matters need be
litigated upon before the RTC can "annul the sale with
regard to said portion" (belonging to the plaintiffs
alleged heirs).
On these incidents, the records reveal the following Orders
issued by the different branches of the RTC:
1. Order dated March 17, 1995, issued by Presiding Judge
Rodrigo B. Lorenzo of Branch 266, Pasig City, admitting herein
respondents' Supplemental Complaint.21
2. Order dated January 22, 1996, issued by Judge Apolinario
B. Santos resolving: (a) herein respondents' Manifestation and
Motion (to execute/enforce Decision dated September 4, 1992
of the Supreme Court), and (b) therein defendants' (including
herein petitioner Valente's) Request for Answer to Written
Interrogatories.22 The RTC, Branch 67, resolved the incidents,
thus:
From the foregoing uncontroverted facts, this Court is
convinced beyond a shadow of doubt that the Decision
of the Supreme Court of September 4, 1992, being the
final arbiter in any judicial dispute, should be
implemented for the following reasons:
xxxx
On the request for Answers to Written Interrogatories
filed by the defendants, it is obvious that at this stage
of the proceedings where the Supreme Court had
already pronounced the undisputed facts, which binds
this court, the answer sought to be elicited through
written interrogatories, therefore, are entirely irrelevant,
aside from having been filed way out of time.
WHEREFORE, premises considered, this court,
implements the decision of the Supreme Court dated
September 4, 1992 which mandates that:
"xxx and Civil Case No. 51203 is reinstated only
to determine that portion which belongs to
petitioner and to annul the sale with regard to
said portion."
In order to enforce such mandate of the
Supreme Court, this court orders that:
a. The auction sale of the five (5) parcels of
land and all prior and subsequent proceedings
in relation thereto are declared null and void.
b. Transfer Certificate of Title No. 6509 in the
name of defendant Valente Raymundo is also
declared null and void, and the Register of
Deeds of Rizal, Pasig City, is ordered to issue a
new one in the name of the deceased Marcelo
Suarez or to reinstate Transfer Certificate of
Title No. 30680 in the name of Marcelo Suarez.
c. Teofista Suarez is ordered to reimburse the
amount of P94,170.00, plus legal interest from
the date of issuance of this order, and failing
which, the portion of the estate of Marcelo
Suarez belonging to the surviving spouse,
Teofista Suarez, may be levied on execution.
d. [Herein respondents], including Teofista
Suarez, are hereby ordered to submit to this
court any evidence showing settlement of the
estate of the deceased, Marcelo Suarez, in
order for this court to determine the portion in
the estate which belongs to Teofista Suarez.
Therein defendants, including petitioner Valente, filed a Motion
for Reconsideration which the trial court denied on May 29,
1996.
3. Order dated September 10, 1996, issued by Judge Santos
denying the appeal interposed by petitioner Valente from the
January 22, 1996 and May 29, 1996 Orders, ruling that these
are interlocutory orders, and, therefore, not appealable.23
4. Order dated April 8, 1999, issued by Pairing Judge Santiago
Estrella which declared, thus:
Considering that counsel for the plaintiffs does not have the
birth certificates of the heirs of the plaintiff to prove their
affiliation with the deceased which is one of the matters written
in the decision of the higher court which must be complied
with, and in order for counsel for the plaintiffs [herein
respondents] to have the opportunity to complete all
documentary evidence and in view of abbreviating the
proceedings and as prayed for, today's scheduled pre-trial is
re-set for the last time to May 19, 1999 at 8:30 a.m.
In this connection, counsel for plaintiffs [herein
respondents] is advised to secure all the documentary
evidence she needs material to this case which will
expedite the disposition of this case.24
This last Order and therein defendants' Urgent Motion
spawned another contentious issue between the parties. In
this connection, Judge Estrella issued an Order25 requiring the
parties to file their respective position papers due to the
"divergent views on the nature of the hearing that should be
conducted in compliance with" our decision in Suarez. Both
parties duly filed their position papers, with herein respondents
attaching thereto a copy of the Extrajudicial Settlement of
Estate executed by the heirs of Marcelo Suarez in 1957.
In resolving this latest crossfire between the parties, the RTC,
Branch 67, issued an Order dated January 11, 2000, which
reads, in part:
This Court is of the view that the Honorable Supreme
Court is not a trier of facts, precisely it directed that the
records of this case be remanded to the Regional Trial
Court for further proceedings.
xxxx
It is a matter of record that there was no trial on the
merits completed in the Regional Trial Court. xxx The
Supreme Court reversed the judgment of the Court of
Appeals and ordered the reinstatement of Civil Case
No. 51203. Naturally, there was no trial on the merits
before this Court that allowed the parties to adduce
evidence to establish their respective claims in the
plaintiffs' [herein respondents] complaint and in the
defendants' [including petitioner Valente] counter-claim,
respectively. It is in this context that the Honorable
Supreme Court reinstated the "action [of herein
respondents] to annul the auction sale to protect their
[herein respondents] own interest.
While this Court is of the view that trial on the merits is
necessary for the purpose of giving the plaintiffs [herein
respondents] a chance to adduce evidence to sustain
their complaint and the defendants [including petitioner
Valente] to prove their defense, consistent with the
directive of the Honorable Supreme Court (in its
Decision promulgated on September 4, 1992), the
Court is, however, confronted with the very recent
decision of the Honorable Supreme Court in "Heirs of
Guido Yaptinchay, et al. vs. Del Rosario, et al., G.R.
No. 124320, March 2, 1999" where it held that -
The declaration of heirship must be made in an
administration proceeding, and not in an
independent civil action. This doctrine was
reiterated in Solve vs. Court of Appeals (182
SCRA 119, 128). The trial court cannot make a
declaration of heirship in the civil action for the
reason that such a declaration can only be
made in a special proceeding. Under Section 3,
Rule 1 of the 1997 Revised Rules of Court, a
civil action is defined as "one by which a party
sues another for the enforcement or protection
of a right, or the prevention or redress of a
wrong" while a special proceeding is "a remedy
by which a party seeks to establish a status, a
right, or a particular fact." It is then decisively
clear that the declaration of heirship can be
made only in a special proceeding inasmuch as
the petitioners here are seeking the
establishment of a status or right.
In as much as the leading case on the matter is that of
"Heirs of Yaptinchay v. Del Rosario, G.R. No. 124320,
March 2, 1999" it is left with no choice but to obey said
latter doctrine.
WHEREFORE, the foregoing premises considered, this
Court holds that in the light of the doctrine laid down in
 the case of "Heirs of Yaptinchay vs. Del Rosario, G.R.
No. 124320, March 2, 1999" this case is dismissed
without prejudice to the plaintiffs' [herein respondents']
filing a special proceeding consistent with said latest
ruling.26
Herein respondents moved for reconsideration thereof which,
however, was denied by the RTC, Branch 67 on March 14,
2000.27
Consequently, herein respondents filed a petition
for certiorari before the CA alleging grave abuse of discretion
in the trial court's order dismissing Civil Case No. 51203
without prejudice. All the defendants in the trial court were
impleaded as private respondents in the petition. Yet,
curiously, only petitioner Valente filed a Comment thereto. The
appellate court granted the petition, recalled and set aside
RTC, Branch 67's Orders dated January 11, 2000 and March
14, 2000, and reinstated Judge Santos' Orders dated May 29,
1996 and September 6, 1996. It disposed of the petition, thus:
We agree with [herein respondents].
On September 4, 1992, the Supreme Court (G.R. No.
94918) reversed the decision of the Court of Appeals
and mandates that Civil Case No. 51203 be reinstated
in order to determine the portion in the estate which
belongs to Teofista Suarez. The sale of the parcels of
land was declared null and void. Necessarily, the title
(TCT No. 5809) in the name of respondents was also
declared null and void. xxx
xxxx
Hon. Apolinario Santos of Br. 67, Regional Trial Court,
Pasig City, on January 22, 1996 and on motion of
[herein respondents], issued an order to
execute/enforce the decision of the Supreme Court
xxx.
xxxx
[Petitioner Valente, Violeta, Virginia and Maria
Concepcion] filed a notice of appeal on the order of
Judge Santos. The appeal, on motion of [herein
respondents] was denied on September 10,
1996. Obviously, the decision of the Supreme Court
had become final and executory. Likewise, both orders
of Judge Santos dated May 29, 1996 denying the
motion for reconsideration and the denial of the notice
of appeal dated September 6, 1996 had also become
final and executory.
The denial of petitioner Valente's Motion for Reconsideration
prompted the filing of this present petition for certiorari.
Petitioner Valente posits that the appellate court committed
grave abuse of discretion in recalling and setting aside the
Orders of Judge Estrella and reinstating those of Judge
Santos because:
1. The CA ruled that the Orders dated May 29, 1996
and September 6, 1996 issued by Judge Santos were
final and executory, and yet the latter did not allow an
appeal to be taken therefrom ratiocinating that the
questioned orders were interlocutory, and therefore,
not appealable; and
2. The CA ignored and violated the Supreme Court's
ruling in Heirs of Yaptinchay v. Del Rosario28 which held
that a declaration of heirship must be made in a special
proceeding and not in a civil action.
We find the petition bereft of merit.
At the outset, we note that petitioner Valente incorrectly filed a
petition for certiorari to appeal the CA decision. Petitioner
should have filed a petition for review on certiorari under Rule
45 of the Rules of Court. Simply imputing in a petition that the
decision sought to be reviewed is tainted with grave abuse of
discretion does not magically transform a petition into a special
civil action for certiorari. The CA decision disposed of the
merits of a special civil action, an original petition, filed thereat
by herein respondents. That disposition is a final and
executory order, appealable to, and may be questioned before,
this Court by persons aggrieved thereby, such as petitioner
Valente, via Rule 45.
On this score alone, the petition should have been dismissed
outright. However, we have disregarded this procedural flaw
and now resolve this case based on the merits or lack thereof.
Petitioner asseverates that the assailed CA ruling "is unfair
and it amounts to a trickery to prevent an appeal against a
final order by claiming that the appealed order is merely
interlocutory and later maintain that the same order has
become final after declaring it to be interlocutory."
We reject petitioner's paltry contention. Petitioner apparently
does not comprehend the distinction between an interlocutory
order which is final and executory, and a final order which
disposes of the controversy or case; much less, understand
the available remedies therefrom.
We have defined an interlocutory order as referring to
something between the commencement and the end of the
suit which decides some point or matter but it is not the final
decision on the whole controversy.29 It does not terminate or
finally dismiss or finally dispose of the case, but leaves
something to be done by the court before the case is finally
decided on the merits.30Upon the other hand, a final order is
one which leaves to the court nothing more to do to resolve
the case.31
On more than one occasion, we laid down the test to ascertain
whether an order is interlocutory or final i.e., "Does it leave
something to be done in the trial court with respect to the
merits of the case?" If it does, it is interlocutory; if it does not, it
is final. The key test to what is interlocutory is when there is
something more to be done on the merits of the case.32 The
Orders dated May 29, 1996 and September 6, 1996 issued by
Judge Santos are interlocutory, and therefore, not appealable,
as they leave something more to be done on the merits of the
case. In fact, in paragraph (d) of Judge Santos' Order dated
May 29, 1996, herein respondents were directed to submit
evidence showing settlement of the estate of the deceased
Marcelo Sr.
Contrary to petitioner Valente's stance, there is no trickery or
chicanery in the CA's distinction between an interlocutory and
a final order. Indeed, as ruled by the CA, the RTC Order
denying petitioner Valente's Notice of Appeal attained finality
when he failed to file a petition for certiorari under Rule 65 of
the Rules of Court.
We cannot overemphasize the rule that the correct
identification of the nature of an assailed order determines the
remedies available to an aggrieved party. The old Rules of
Court in Section 2, Rule 41 reads, thus:
 SEC. 2. Judgments or orders subject to appeal.-Only
final judgments or orders shall be subject to appeal. No
interlocutory or incidental judgment or order shall stay
the progress of an action, nor shall it be the subject of
appeal until final judgment or order is rendered for one
party or the other.
xxxx
With the advent of the 1997 Rules of Civil Procedure, Section
1, Rule 41 now provides for the appropriate remedy to be
taken from an interlocutory order, thus:
SECTION 1. Subject of appeal. - An appeal may be
taken from a judgment or final order that completely
disposes of the case, or of a particular matter therein
when declared by these Rules to be appealable.
No appeal may be taken from:
xxx
(c) An interlocutory order;
xxx
In all the above instances where the judgment or final
order is not appealable, the aggrieved party may file an
appropriate special civil action under Rule 65.
Clearly, the denial of therein defendants' (including petitioner
Valente's) appeal from the Orders dated May 29, 1996 and
September 6, 1996 was in order. Thus, the CA decision
affirming the RTC's denial was correct.
Further, on this crucial distinction as applied to this case,
petitioner Valente filed a petition for certiorari from the CA
decision in CA-G.R. SP No. 58090, which is not an
interlocutory order. It is a final order which completely
disposed of the merits of the case with nothing more left to be
done therein. The correct and available remedy available to
petitioner Valente was, as previously discussed, a petition for
review on certiorari under Rule 45 of the Rules of Court.
In fine, petitioner Valente erroneously sought relief through
reversed remedies. He tried to appeal the interlocutory orders
of the RTC which are unappealable. Thus, the RTC properly
denied his Notice of Appeal, and the CA correctly upheld the
RTC. He should have filed a petition for certiorari; under Rule
65. On the other hand, from the final order of the CA, he
comes before this Court on a petition for certiorari under Rule
65, when the proper remedy is an appeal by certiorari under
Rule 45.
In the recent case of Jan-Dec Construction Corporation v.
Court of Appeals33 we ruled in this wise:
As a rule, the remedy from a judgment or final order of
the CA is appeal via petition for review under Rule 45
of the Rules.
Under Rule 45, decisions, final orders or resolutions of
the CA in any case, i.e., regardless of the nature of the
action or proceedings involved, may be appealed to the
Court by filing a petition for review, which would be but
a continuation of the appellate process over the original
case. It seeks to correct errors of judgment committed
by the court, tribunal, or officer. In contrast, a special
civil action for certiorari under Rule 65 is an
independent action based on the specific grounds
therein provided and proper only if there is no appeal
 or any plain, speedy and adequate remedy in the
ordinary course of law. It is an extraordinary process
for the correction of errors of jurisdiction and cannot be
availed of as a substitute for the lost remedy of an
ordinary appeal.
Independently of this procedural infirmity, even on the merits of
the case, the petition does not fare otherwise. It must be
dismissed for lack of merit.
Petitioner Valente insists that, following our ruling in Heirs of
Yaptinchay v. Del Rosario,34 herein respondents must first be
declared heirs of Marcelo Sr. before they can file an action to
annul the judicial sale of what is, undisputedly, conjugal
property of Teofista and Marcelo Sr.
We disagree. Our ruling in Heirs of Yaptinchay is not
applicable.
Herein respondents' status as legitimate children of Marcelo
Sr. and Teofista ― and thus, Marcelo Sr.'s heirs ― has been
firmly established, and confirmed by this Court in Suarez v.
Court of Appeals.35 True, this Court is not a trier of facts,36 but
as the final arbiter of disputes,37 we found and so ruled that
herein respondents are children, and heirs of their deceased
father, Marcelo Sr. This having been settled, it should no
longer have been a litigated issue when we ordered a remand
to the lower court. In short, petitioner Valente's, Violeta's,
Virginia's, and Maria Concepcion's representation in the RTC
that our ruling in Suarez required herein respondents to
present evidence of their affiliation with the deceased, Marcelo
Sr., is wrong.
As was set forth in the dispositive portion of Suarez, "Civil
Case No. 51203 is reinstated only to determine that portion
which belongs to [herein respondents] and to annul the sale
with regard to said portion." There is clearly no intimation in
our decision for the RTC to have to determine an already
settled issue i.e., herein respondents' status as heirs of
Marcelo Sr.
Moreover, petitioner Valente cannot assail, directly or
indirectly, the status of herein respondents as legitimate
children of Marcelo Sr. and Teofista, and likewise demand that
herein respondents first prove their filiation to Marcelo Sr. The
following records bear out Marcelo, Sr.'s and Teofista's
paternity of herein respondents, and the latter's status as
legitimate children:
1. The CA decision in CA-G.R. SP Nos. 10646 to 10649 where
Teofista, along with herein respondents, questioned the RTC,
Branch 151's Orders dated October 10, 1984 and October 14,
1986. Although the CA ruled against Teofista and herein
respondents, it explicitly recognized the latter's status as
legitimate children of Teofista and Marcelo Sr.; and38
2. The CA decision in CA-G.R. SP No. 20320 which incorrectly
ruled that herein respondents were, as children of Teofista,
merely successors-in-interest of the latter to the property and
by virtue thereof, bound by the judgment in Civil Case Nos.
21376 to 21379 consistent with the doctrine of res
judicata.39 We subsequently reversed this ruling on the wrong
application of res judicata in the conclusive case of Suarez.
We retained and affirmed, however, the CA's factual finding of
herein respondents' status as heirs of Marcelo Sr. We
categorically held therein that "the proprietary interest of
[herein respondents] in the levied and auctioned [properties] is
different from and adverse to that of [Teofista]. [Herein
respondents] became co-owners of the property not because
of [Teofista] but through their own right as children of their
deceased father [, Marcelo Sr.]."
Clearly, herein respondents' long possessed status of
legitimate children of Marcelo Sr. and Teofista cannot be
indirectly or directly attacked by petitioner Valente in an action
to annul a judicial sale.
Articles 262,40 263,41 265 and 26642 of the Civil Code, the
applicable law at the time of Marcelo's death, support the
foregoing conclusion, to wit:
Art. 262. The heirs of the husband may impugn the
legitimacy of the child only in the following cases:
(1) If the husband should die before the
expiration of the period fixed for bringing his
action;
(2) If the husband should die after the filing of
the complaint, without having desisted from the
same;
(3) If the child was born after the death of the
husband.
Art. 263. The action to impugn the legitimacy of the
child shall be brought within one year from the
recording of birth in the Civil Register, if the husband
should be in the same place, or in a proper case, any
of his heirs.
If he or his heirs are absent, the period shall be
eighteen months if they should reside in the
Philippines; and two years if abroad. If the birth of the
child has been concealed, the term shall be counted
from the discovery of the fraud.
Art. 265. The filiation of legitimate children is proved by
the record of birth appearing in the Civil Register, or by
an authentic document or a final judgment.
Art. 266. In the absence of the titles indicated in the
preceding article, the filiation shall be proved by the
continuous possession of status of a legitimate child.
In Heirs of Yaptinchay, the complaint for annulment and/or
declaration of nullity of certain TCT's was dismissed for failure
of the petitioners to demonstrate "any proof or even a
semblance of it" that they had been declared the legal heirs of
the deceased couple, the spouses Yaptinchay. In stark
contrast, the records of this case reveal a document, an
Extrajudicial Settlement of Marcelo Sr.'s estate, which explicitly
recognizes herein respondents as Marcelo Sr.'s legitimate
children and heirs. The same document settles and partitions
the estate of Marcelo Sr. specifying Teofista's paraphernal
properties, and separates the properties she owns in common
with her children, herein respondents. Plainly, there is no need
to re-declare herein respondents as heirs of Marcelo Sr., and
prolong this case interminably.
Petitioner Valente, along with Violeta, Virginia and Maria
Concepcion, became owners of the subject properties only by
virtue of an execution sale to recover Teofista's judgment
obligation. This judgment obligation is solely Teofista's, and
payment therefor cannot be made through an execution sale
of properties not absolutely owned by her. These properties
were evidently conjugal properties and were, in fact, even
titled in the name of Marcelo, Sr. married to Teofista. Thus,
upon Marcelo Sr.'s death, by virtue of compulsory succession,
Marcelo Sr.'s share in the conjugal partnership was transmitted
by operation of law to his compulsory heirs.
Compulsory succession is a distinct kind of succession, albeit
not categorized as such in Article 77843 of the Civil Code. It
reserves a portion of the net estate of the decedent in favor of
certain heirs, or group of heirs, or combination of heirs,
prevailing over all kinds of succession.44 The portion that is so
reserved is the legitime. Article 886 of the Civil Code defines
legitime as "that part of the testator's property which he cannot
dispose of because the law has reserved it for certain heirs
who are, therefore, called compulsory heirs." Herein
respondents are primary compulsory heirs,45 excluding
secondary compulsory heirs,46 and preferred over concurring
compulsory heirs in the distribution of the decedent's estate.47
Even without delving into the Extrajudicial Settlement of
Marcelo Sr.'s estate in 1957, it must be stressed that herein
respondents' rights to the succession vested from the moment
of their father's death.48 Herein respondents' ownership of the
subject properties is no longer inchoate; it became absolute
upon Marcelo's death, although their respective shares therein
remained pro indiviso. Ineluctably, at the time the subject
properties were sold on execution sale to answer for Teofista's
judgment obligation, the inclusion of herein respondents' share
therein was null and void.
In fine, Teofista's ownership over the subject properties is not
absolute. Significantly, petitioner Valente does not even
attempt to dispute the conjugal nature of the subject
properties. Since Teofista owns only a portion of the subject
properties, only that portion could have been, and was
actually, levied upon and sold on auction by the provincial
sheriff of Rizal. Thus, a separate declaration of heirship by
herein respondents is not necessary to annul the judicial sale
of their share in the subject properties.
We note the recent case of Portugal v. Portugal-
Beltran,49 where we scrutinized our rulings in Heirs of
Yaptinchay and the cited cases of Litam v. Rivera50 and Solivio
v. Court of Appeals,51 and Guilas v. CFI Judge of
Pampanga52 cited in Solivio. We ruled thus:
The common doctrine in Litam, Solivio and Guilas in
which the adverse parties are putative heirs to the
estate of a decedent or parties to the special
proceedings for its settlement is that if the special
proceedings are pending, or if there are no special
proceedings filed but there is, under the circumstances
of the case, a need to file one, then the determination
of, among other issues, heirship should be raised and
settled in said special proceedings. Where special
proceedings had been instituted but had been finally
closed and terminated, however, or if a putative heirs
has lost the right to have himself declared in the
special proceedings as co-heir and he can no longer
ask for its re-opening, then an ordinary civil action can
be filed for his declaration as heir in order to bring
about the annulment of the partition or distribution or
adjudication of a property or properties belonging to the
estate of the deceased.
In the case at bar, respondent, believing rightly or
wrongly that she was the sole heir to Portugal's estate,
executed on February 15, 1988 the questioned Affidavit
of Adjudication under the second sentence of Rule 74,
Section of the Revised Rules of Court. Said rule is an
exception to the general rule that when a person dies
leaving property, it should be judicially administered
and the competent court should appoint a qualified
administrator, in the order established in Sec. 6, Rule
78 in case the deceased left no will, or in case he did,
he failed to name an executor therein.
xxx
 It appearing, however, that in the present case the only
property of the intestate estate of Portugal is the
Caloocan parcel of land, to still subject it, under the
circumstances of the case, to a special proceeding
which could be long, hence, not expeditious, just to
establish the status of petitioners as heirs is not only
impractical; it is burdensome to the estate with the
costs and expenses of an administration proceedings.
And it is superfluous in light of the fact that the parties
to the civil case-subject of the present case, could and
had already in fact presented evidence before the trial
court which assumed jurisdiction over the case upon
the issues it defined during pre-trial.

In fine, under the circumstances of the present

case, there being no compelling reason to still
subject Portugal's estate to administration
proceedings since a determination of petitioners'
status as heirs could be achieved in the civil case
filed by petitioners xxx.53

All told, under the circumstances, in addition to the already

settled status of herein respondents as heirs of Marcelo Sr.,
there is no need to dismiss Civil Case No. 51203 and require
herein respondents to institute a separate special proceeding
for a declaration of their heirship.

WHEREFORE, premises considered, the petition is DENIED.

The Decision of the Court of Appeals in CA-G.R. SP No.
58090 is AFFIRMED. The Orders dated May 29, 1996 and
September 6, 1996 issued by Judge Santos
are REINSTATED. Costs against the petitioner.

SO ORDERED.
DEVELOPMENT BANK OF G.R. No. 172248
THE PHILIPPINES, The spouses Dionesio and Matea S. Asok owned
Petitioner,
Present: several parcels of land. Upon their death on September 14,

PUNO, C. 1973 and February 22, 1982, respectively, their eleven

J., Chairp
erson, children inherited the properties. One of the lands inherited
CORONA,
was a lot covered by Original Certificate of Title (OCT) No. P-
- v e r s u s - CARPIO MORALES,*
AZCUNA and 4272, a free patent issued on July 19, 1967, located at
LEONARDO-DE CASTRO, JJ.
Pagawan, Manticao, Misamis Oriental with an area of 39,552
ELLA GAGARANI, ISAGANI,
ADRIAN, NATHANIEL, NIEVA, sq. m.[4]
JONATHAN, DIONESIO,
FLORENCE and JEREMIAS, Pursuant to the extrajudicial settlement of the estate with
all surnamed ASOK,
Respondents. Promulgated: quitclaim executed by the spouses children, the subject
September
17, 2008 property was inherited by Denison Asok (Asok). As a result,

x--------------------------------------------- OCT No. P-4272 was cancelled and Transfer Certificate of

------x
Title (TCT) No. T-9626 was issued and registered in his name

RESOLUTION on November 17, 1987.[5]

CORONA, J.:
On August 31, 1989, Asok and his wife, respondent

Ella Gagarani Asok, borrowed P100,000 from petitioner

This is a petition for review on certiorari [1] of the December 14,
Development Bank of the Philippines, a government financial
2005 decision[2] and March 28, 2006 resolution[3] of the Court
institution created and operating under EO 81,[6] as amended
of Appeals (CA) in CA-G.R. CV No. 64259.
by RA 8523. They mortgaged the subject lot as collateral to
guarantee payment of the loan. On due date, however, they
failed to pay the loan and the mortgage was extrajudicially
foreclosed pursuant to Act 3135.[7] Petitioner emerged as the
highest bidder with a bid of P163,297.[8]
On November 28, 1991, a certificate of sale was issued in
favor of petitioner. This was registered on December 24, 1992.
[9]
On March 25, 1998, petitioners ownership over the property
was consolidated and TCT No. T-27172 was issued in its
name.[10]
Meanwhile, Asok died on October 24, 1993 and was
succeeded by his surviving spouse and children
(respondents).[11]
On May 15, 1998, respondents filed a complaint for
repurchase against petitioner in the Regional Trial Court (RTC)
of Initao, Misamis Oriental, Branch 44, docketed as Civil Case
No. 98-68. On July 3, 1998, they filed an amended complaint
on learning that TCT No. T-9626 had been cancelled by TCT
No. T-27172 issued in the name of petitioner. They invoked
their right to repurchase the property under Sec. 119 of CA
141, as amended:[12]
Sec. 119. Every conveyance of land acquired
under the free patent or homestead provisions,
when proper, shall be subject to repurchase by
the applicant, his widow, or legal heirs, within a
period of five years from date of the
conveyance.
In a decision dated January 7, 1999, the RTC
dismissed the complaint. Reconsideration was denied on
February 3, 1999.[13] It ruled that the one-year period for
redemption should be reckoned from the date of sale, i.e.,
November 28, 1991. Then the five-year period provided under
Sec. 119 of CA 141 should be counted from the expiration of
the redemption period, i.e., November 28, 1992. Therefore,
respondents had until November 28, 1997 to exercise their
right to repurchase. However, the complaint was filed on May
15, 1998 which was beyond the prescribed period.[14]
Aggrieved, respondents appealed to the CA. In a decision
dated December 14, 2005, the CA reversed and set aside the
RTC decision. Reconsideration was denied in a resolution
dated March 28, 2006. It held that the period of redemption
started from the date of registration of the certificate of
sale, i.e., December 24, 1992, and not from the date of
sale.Thus, respondents had until December 24, 1998 to
repurchase the property and the complaint was seasonably
filed.[15]
Hence this petition.
Petitioner raises the following issues: (1) whether Sec.
119 of CA 141 is applicable in this case; (2) whether
respondents are the legal heirs of the patentees and (3)
whether the right to repurchase has already prescribed.
The petition lacks merit.
Petitioner contends that respondents cannot claim the
right under Sec. 119 which covers homesteads and free
patents because the free patent issued to Asoks parents had
already been cancelled and a new TCT had in fact been
issued to him. Thus, the property mortgaged to it was no
longer covered by a free patent but by a TCT.[16]
This contention deserves scant consideration.
The plain intent of Sec. 119 is to give the homesteader
or patentee every chance to preserve and keep in the family
the land that the State has gratuitously given him as a reward
for his labor in cleaning, developing and cultivating it.
[17]
Hence, the fact that the land had been inherited by the
patentees son (and a new title in his name issued) does not
bring it outside the purview of Sec. 119. In fact, the policy
behind the law is fulfilled because the land remains in the
family of the patentee. As we explained in Ferrer v. Mangente:
[18]
The applicant for a homestead is to be given all
the inducement that the law offers and is
entitled to its full protection. Its blessings,
however, do not stop with him. This is
particularly so in this case as the appellee is the
son of the deceased. There is no question then
as to his status of being a legal heir. The policy
of the law is not difficult to understand. The
incentive for a pioneer to venture into
 developing virgin land becomes more attractive
if he is assured that his effort will not go for
naught should perchance his life be cut short.
This is merely a recognition of how closely
bound parents and children are in a Filipino
family. Logic, the sense of fitness and of right,
as well as pragmatic considerations thus call for
continued adherence to the policy that not the
individual applicant alone but those so closely
related to him as are entitled to legal
succession may take full advantage of the
benefits the law confers.[19]
Having ruled that Sec. 119 is applicable to this case, we now
go to the next issue: are respondents the legal heirs
contemplated in the provision?
Petitioner argues that respondents are not the legal
heirs of the patentees because respondents are merely their
daughter-in-law and grandchildren.
We disagree. In line with the rationale behind Sec. 119,
we reject a restricted definition of legal heirs. It is used in a
broad sense and the law makes no distinctions.
[20]
In Madarcos v. de la Merced,[21] we held that:
The term legal heirs is used in Section
119 in a generic sense. It is broad enough to
cover any person who is called to the
succession either by provision of a will or by
operation of law. Thus, legal heirs include both
testate and intestate heirs depending upon
whether succession is by the will of the testator
or by law. Legal heirs are not necessarily
compulsory heirs but they may be so if the law
reserves a legitime for them.
xxx xxx xxx
Verily, petitioners are legal heirs. Having
been decreed under the rules on intestacy as
entitled to succeed to the estate of the Catain
spouses due to the absence of compulsory
heirs, they now step into the shoes of the
decedents. They should be considered as
among the legal heirs contemplated by Section
119 as entitled to redeem the homestead.
The above interpretation of "legal heirs"
as contra-distinguished from the restrictive
construction given it by the lower court is more
in keeping with the salutary purpose behind the
enactment of Section 119 and the jurisprudence
laid down on the matter. Indeed, it is not far-
fetched to arrive at a more liberal conclusion if
the section is analyzed in accordance with its
purpose xxxx[22]
Respondents inherited the property from Asok, their
husband and father, who in turn inherited it from his
parents. Respondent Ella Gagarani Asok, as daughter-in-law

of the patentees, can be considered as among the legal heirs
who can repurchase the land in accordance with Salenillas v.
CA.[23] In that case, we allowed the daughter and son-in-law of
the patentees to repurchase the property because this would
be more in keeping with the spirit of the law. We have time and
again said that between two statutory interpretations, that
which better serves the purpose of the law should prevail.
[24]
Furthermore, the law must be liberally construed in order to
[25]
carry out its purpose.
Finally, petitioner asserts that even if respondents
could be considered as being entitled to the right under Sec.
119, this had already prescribed because the period should be
counted from the date of conveyance which means the date of
sale and not the date of registration of the certificate of sale.
This argument lacks merit.
This is far from a novel issue. It was already resolved
in Rural Bank of Davao City, Inc. v. CA:[26]
Thus, the rules on redemption in the
case of an extrajudicial foreclosure of land
acquired under free patent or homestead
statutes may be summarized as follows: xxx If
the land is mortgaged to parties other than rural
banks, the mortgagor may redeem the property
within one (1) year from the registration of the
certificate of sale pursuant to Act No. 3135. If
he fails to do so, he or his heirs may
repurchase the property within five (5) years
from the expiration of the redemption period
also pursuant to Section 119 of the Public Land
Act.[27]
There is no dispute that in extrajudicial foreclosures
under Act 3135, the debtor or his or her successors-in-interest
may redeem the property within one year. This redemption
period should be reckoned from the date of registration of the
certificate of sale.[28] The five-year period fixed in Sec. 119
begins to run from the expiration of the one-year redemption
period.[29] Here, the certificate of sale was registered on
December 24, 1992 and the one-year redemption period
expired on December 24, 1993. Reckoned from that day,
respondents had a five-year period, or until December 24,
1998, to exercise their right to repurchase under Sec. 119 of
CA 141. Consequently, the CA was correct in holding that the

complaint filed on May 15, 1998 was on time.

WHEREFORE, the petition is

hereby DENIED. Petitioner Development Bank of the

Philippines is ordered to execute a deed of reconveyance in

favor of respondents upon payment by the latter of the

redemption price.

No costs.

SO ORDERED.
 PAZ SAMANIEGO- G.R. No. 145545 This is a petition for review under Rule 45 of the 1997
CELADA, Rules of Civil Procedure seeking to reverse the
Decision[1] dated October 13, 2000 of the Court of Appeals in
Petitioner,
Present: CA-G.R. CV No. 41756, which affirmed the
[2]
Decision dated March 2, 1993 of the Regional Trial Court
(RTC), Branch 66, Makati City. The RTC had declared the last
will and testament of Margarita S. Mayores probated and
QUISUMBING, J.,
Chairperson, designated respondent Lucia D. Abena as the executor of her
will. It also ordered the issuance of letters testamentary in
- versus - CARPIO MORALES, favor of respondent.

TINGA,
The facts are as follows:
VELASCO, JR., and
Petitioner Paz Samaniego-Celada was the first cousin
BRION, JJ.
of decedent Margarita S. Mayores (Margarita) while
respondent was the decedents lifelong companion since 1929.

LUCIA D. ABENA, Promulgated:

On April 27, 1987, Margarita died single and
Respondent. without any ascending nor descending heirs as her parents,
grandparents and siblings predeceased her. She was survived
June 30, 2008 by her first cousins Catalina Samaniego-
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Bombay, Manuelita Samaniego Sajonia, Feliza Samaniego,
- - - - - -x and petitioner.

DECISION Before her death, Margarita executed a Last Will and

Testament[3] on February 2, 1987 where she bequeathed one-
half of her undivided share of a real property located at
QUISUMBING, J.: Singalong Manila, consisting of 209.8 square meters, and
covered by Transfer Certificate of Title (TCT) No. 1343 to
respondent, Norma A. Pahingalo, and Florentino M. Abena in
equal shares or one-third portion each. She likewise such without a bond as stated in
bequeathed one-half of her undivided share of a real property paragraph VI of the probated will;
located at San Antonio Village, Makati, consisting of 225
square meters, and covered by TCT No. 68920 to 3) ordering the issuance of letters
respondent, Isabelo M. Abena, and Amanda M. Abena in equal testamentary in favor of
shares or one-third portion each. Margarita also left all her Lucia Abena.
personal properties to respondent whom she likewise
So ordered.[4]
designated as sole executor of her will.

On August 11, 1987, petitioner filed a petition for letters Petitioner appealed the RTC decision to the Court of
of administration of the estate of Margarita before the RTC of Appeals. But the Court of Appeals, in a decision dated October
Makati. The case was docketed as SP Proc. No. M-1531. 13, 2000, affirmed in toto the RTC ruling. The dispositive
portion of the Court of Appeals decision states:
On October 27, 1987, respondent filed a petition for WHEREFORE, foregoing premises
probate of the will of Margarita before the RTC of Makati. The considered, the appeal having no merit in fact
case was docketed as SP Proc. No. M-1607 and consolidated and in law, is hereby ORDERED
with SP Proc. No. M-1531. DISMISSED and the appealed Decision of the
trial court AFFIRMED IN TOTO, with cost
On March 2, 1993, the RTC rendered a decision to oppositors-appellants.
declaring the last will and testament of Margarita probated and SO ORDERED.[5]
respondent as the executor of the will. The dispositive portion
of the decision states:
Hence, the instant petition citing the following issues:
In view of the foregoing, judgment is
I.
hereby rendered:
WHETHER OR NOT THE COURT OF
1) declaring the will as probated;
APPEALS COMMITTED A REVERSIBLE
ERROR IN NOT INVALIDATING THE WILL
2) declaring Lucia Abena as the
SINCE IT DID NOT CONFORM TO THE
executor of the will who will serve as
FORMALITIES REQUIRED BY LAW;

II.
WHETHER OR NOT THE COURT OF
APPEALS COMMITTED ERROR IN NOT
INVALIDATING THE WILL BECAUSE IT WAS
PROCURED THROUGH UNDUE INFLUENCE
AND PRESSURE[;] AND
III.
WHETHER OR NOT THE COURT OF
APPEALS GRAVELY ERRED IN NOT
DECLARING PETITIONER, HER SIBLINGS
AND COUSIN AS THE LEGAL HEIRS OF
MARGARITA S. MAYORES AND IN NOT
ISSUING LETTERS OF ADMINISTRATION TO
HER.[6]
Briefly stated, the issues are (1) whether the Court of
Appeals erred in not declaring the will invalid for failure to
comply with the formalities required by law, (2) whether said
court erred in not declaring the will invalid because it was
procured through undue influence and pressure, and (3)
whether it erred in not declaring petitioner and her siblings as
the legal heirs of Margarita, and in not issuing letters of
administration to petitioner.
Petitioner, in her Memorandum,[7] argues that
Margaritas will failed to comply with the formalities required
under Article 805[8] of the Civil Code because the will was not
signed by the testator in the presence of the instrumental
witnesses and in the presence of one another. She also
argues that the signatures of the testator on pages A, B, and C
of the will are not the same or similar, indicating that they were
not signed on the same day. She further argues that the will
was procured through undue influence and pressure because
at the time of execution of the will, Margarita was weak, sickly,
jobless and entirely dependent upon respondent and her
nephews for support, and these alleged handicaps allegedly
affected her freedom and willpower to decide on her
own. Petitioner thus concludes that Margaritas total
dependence on respondent and her nephews compelled her to
sign the will. Petitioner likewise argues that the Court of
Appeals should have declared her and her siblings as the legal
heirs of Margarita since they are her only living collateral
relatives in accordance with Articles 1009[9] and 1010[10] of the
Civil Code.
Respondent, for her part, argues in her
[11]
Memorandum that the petition for review raises questions of
fact, not of law and as a rule, findings of fact of the Court of
Appeals are final and conclusive and cannot be reviewed on
appeal to the Supreme Court. She also points out that
although the Court of Appeals at the outset opined there was
no compelling reason to review the petition, the Court of
Appeals proceeded to tackle the assigned errors and rule that
the will was validly executed, sustaining the findings of the trial
court that the formalities required by law were duly complied
with. The Court of Appeals also concurred with the findings of
the trial court that the testator, Margarita, was of sound mind
when she executed the will.
 After careful consideration of the parties contentions,
we rule in favor of respondent.
We find that the issues raised by petitioner concern
pure questions of fact, which may not be the subject of a
petition for review on certiorari under Rule 45 of the Rules of
Civil Procedure.
The issues that petitioner is raising now i.e., whether or
not the will was signed by the testator in the presence of the
witnesses and of one another, whether or not the signatures of
the witnesses on the pages of the will were signed on the
same day, and whether or not undue influence was exerted
upon the testator which compelled her to sign the will, are all
questions of fact.
This Court does not resolve questions of fact in a
petition for review under Rule 45 of the 1997 Rules of Civil
Procedure. Section 1[12] of Rule 45 limits this Courts review to
questions of law only.
Well-settled is the rule that the Supreme Court is not a
trier of facts. When supported by substantial evidence, the
findings of fact of the Court of Appeals are conclusive and
binding on the parties and are not reviewable by this Court,
unless the case falls under any of the following recognized
exceptions:
(1) When the conclusion is a finding grounded
entirely on speculation, surmises and
conjectures;
(2) When the inference made is manifestly
mistaken, absurd or impossible;
(3) Where there is a grave abuse of discretion;
(4) When the judgment is based on a
misapprehension of facts;
(5) When the findings of fact are conflicting;
(6) When the Court of Appeals, in making its
findings, went beyond the issues of the
case and the same is contrary to the
admissions of both appellant and
appellee;
(7) When the findings are contrary to those of
the trial court;
(8) When the findings of fact are conclusions
without citation of specific evidence on
which they are based;
(9) When the facts set forth in the petition as
well as in the petitioners main and reply
briefs are not disputed by the
respondents; and
(10) When the findings of fact of the Court of
Appeals are premised on the supposed
absence of evidence and contradicted by
the evidence on record.[13]
 We find that this case does not involve any of the
abovementioned exceptions.
Nonetheless, a review of the findings of the RTC as
upheld by the Court of Appeals, reveal that petitioners
arguments lack basis. The RTC correctly held:
With [regard] to the contention of the
oppositors [Paz Samaniego-Celada, et al.] that
the testator [Margarita Mayores] was not
mentally capable of making a will at the time of
the execution thereof, the same is without
merit. The oppositors failed to establish, by
preponderance of evidence, said allegation and
contradict the presumption that the testator was
of sound mind (See Article 800 of the Civil
Code). In fact, witness for the oppositors, Dr.
Ramon Lamberte, who, in some occasions,
attended to the testator months before her
death, testified that Margarita Mayores could
engage in a normal conversation and he even
stated that the illness of the testator does not
warrant hospitalization. Not one of the
oppositors witnesses has mentioned any
instance that they observed act/s of the testator
during her lifetime that could be construed as a
manifestation of mental incapacity. The testator
may be admitted to be physically weak but it
does not necessarily follow that she was not of
sound mind. [The] testimonies of contestant
witnesses are pure aforethought.
Anent the contestants submission that
the will is fatally defective for the reason that its
attestation clause states that the will is
composed of three (3) pages while in truth and
in fact, the will consists of two (2) pages only
because the attestation is not a part of the
notarial will, the same is not accurate. While it is
true that the attestation clause is not a part of
the will, the court, after examining the totality of
the will, is of the considered opinion that error in
the number of pages of the will as stated in the
attestation clause is not material to invalidate
the subject will. It must be noted that the
subject instrument is consecutively lettered with
pages A, B, and C which is a sufficient
safeguard from the possibility of an omission of
some of the pages. The error must have been
brought about by the honest belief that the will
is the whole instrument consisting of three (3)
pages inclusive of the attestation clause and
the acknowledgement. The position of the court
is in consonance with the doctrine of liberal
interpretation enunciated in Article 809 of the
Civil Code which reads:
In the absence of bad faith,
forgery or fraud, or undue
[and] improper pressure and
influence, defects and
imperfections in the form of
attestation or in the language
used therein shall not render
 the will invalid if it is proved presented to the court is the same notarial will
that the will was in fact that was executed and that all the formal
executed and attested in requirements (See Article 805 of the Civil Code)
substantial compliance with all in the execution of a will have been
the requirements of Article substantially complied with in the subject
805. notarial will.[14] (Emphasis supplied.)

The court also rejects the contention of

the oppositors that the signatures of the testator
were affixed on different occasions based on
their observation that the signature on the first
page is allegedly different in size, texture and
appearance as compared with the signatures in
the succeeding pages. After examination of the
signatures, the court does not share the same
observation as the oppositors. The picture
(Exhibit H-3) shows that the testator was
affixing her signature in the presence of the
instrumental witnesses and the notary. There is
no evidence to show that the first signature was
procured earlier than February 2, 1987.
Thus, we find no reason to disturb the abovementioned
findings of the RTC. Since, petitioner and her siblings are not
compulsory heirs of the decedent under Article 887[15] of the
Civil Code and as the decedent validly disposed of her
properties in a will duly executed and probated, petitioner has
no legal right to claim any part of the decedents estate.
WHEREFORE, the petition is DENIED. The assailed
Decision dated October 13, 2000 of the Court of Appeals in
CA-G.R. CV No. 41756 is AFFIRMED.
Costs against petitioner.

Finally, the court finds that no pressure SO ORDERED.

nor undue influence was exerted on the testator
to execute the subject will. In fact, the picture
reveals that the testator was in a good mood
and smiling with the other witnesses while
executing the subject will (See Exhibit H).

In fine, the court finds that the testator

was mentally capable of making the will at the
time of its execution, that the notarial will
MANUEL L. LEE, A.C. No. 5281
Complainant, signatures of Cayetano Noynay and Loreto Grajo, the
Present:
PUNO, C.J., Chairperson, purported witnesses to its execution.
SANDOVAL-GUTIERREZ,
- v e r s u s - CORONA,
AZCUNA In the said will, the decedent supposedly bequeathed
and
LEONARDO-DE his entire estate to his wife Lim Hock Lee, save for a parcel of
CASTRO, JJ.
land which he devised to Vicente Lee, Jr. and Elena Lee, half-
ATTY. REGINO B. TAMBAGO, siblings of complainant.
Respondent. Promulgated:
February 12, 2008
The will was purportedly executed and acknowledged
x--------------------------------------------
- - - - - - -x before respondent on June 30, 1965.[1] Complainant, however,

pointed out that the residence certificate[2] of the testator noted

RESOLUTION
CORONA, J.:
In a letter-complaint dated April 10, 2000, complainant
Manuel L. Lee charged respondent Atty. Regino B. Tambago
with violation of the Notarial Law and the ethics of the legal
profession for notarizing a spurious last will and testament.
in the acknowledgment of the will was dated January 5, 1962.
[3]
Furthermore, the signature of the testator was not the same
as his signature as donor in a deed of donation [4] (containing
his purported genuine signature). Complainant averred that
the signatures of his deceased father in the will and in the
deed of donation were in any way (sic) entirely and

diametrically opposed from (sic) one another in all angle[s].[5]

In his complaint, complainant averred that his father,

the decedent Vicente Lee, Sr., never executed the contested

will. Furthermore, the spurious will contained the forged

 Complainant also questioned the absence of notation spurious. He alleged that complainant was not a legitimate son

of the residence certificates of the purported witnesses of Vicente Lee, Sr. and the last will and testament was validly

Noynay and Grajo. He alleged that their signatures had executed and actually notarized by respondent per

likewise been forged and merely copied from their respective affidavit[7] of Gloria Nebato, common-law wife of Vicente Lee,

voters affidavits. Sr. and corroborated by the joint affidavit[8] of the children of

Vicente Lee, Sr., namely Elena N. Lee and Vicente N. Lee, Jr.
Complainant further asserted that no copy of such
xxx.[9]
purported will was on file in the archives division of the

Records Management and Archives Office of the National Respondent further stated that the complaint was filed

Commission for Culture and the Arts (NCCA). In this simply to harass him because the criminal case filed by

connection, the certification of the chief of the archives division complainant against him in the Office of the Ombudsman did

dated September 19, 1999 stated: not prosper.

Doc. 14, Page No. 4, Book No. 1, Series of

1965 refers to an AFFIDAVIT executed by Respondent did not dispute complainants contention
BARTOLOME RAMIREZ on June 30, 1965 and
is available in this Office[s] files.[6] that no copy of the will was on file in the archives division of

the NCCA. He claimed that no copy of the contested will could

Respondent in his comment dated July 6, 2001 be found there because none was filed.

claimed that the complaint against him contained false

Lastly, respondent pointed out that complainant had no
allegations: (1) that complainant was a son of the decedent
valid cause of action against him as he (complainant) did not
Vicente Lee, Sr. and (2) that the will in question was fake and

first file an action for the declaration of nullity of the will and
demand his share in the inheritance.
In a resolution dated October 17, 2001, the Court
referred the case to the Integrated Bar of the Philippines (IBP)
for investigation, report and recommendation.[10]
In his report, the investigating commissioner found respondent
guilty of violation of pertinent provisions of the old Notarial Law
as found in the Revised Administrative Code. The violation
constituted an infringement of legal ethics, particularly Canon
1[11] and Rule 1.01[12] of the Code of Professional Responsibility
(CPR).[13] Thus, the investigating commissioner of the IBP
Commission on Bar Discipline recommended the suspension
of respondent for a period of three months.
The IBP Board of Governors, in its Resolution No.
XVII-2006-285 dated May 26, 2006, resolved:
[T]o ADOPT and APPROVE, as it is hereby
ADOPTED and APPROVED, with
modification, the Report and Recommendation
of the Investigating Commissioner of the above-
entitled case, herein made part of this
Resolution as Annex A; and, finding the
recommendation fully supported by the
evidence on record and the applicable laws and
rules, and considering Respondents failure to
comply with the laws in the discharge of his
function as a notary public, Atty. Regino B.
Tambago is hereby suspended from the
practice of law for one year and Respondents
notarial commission is Revoked and
Disqualified from reappointment as Notary
Public for two (2) years.[14]
We affirm with modification.
A will is an act whereby a person is permitted, with the
formalities prescribed by law, to control to a certain degree the
disposition of his estate, to take effect after his death. [15] A will
may either be notarial or holographic.
The law provides for certain formalities that must be
followed in the execution of wills. The object of solemnities
surrounding the execution of wills is to close the door on bad
faith and fraud, to avoid substitution of wills and testaments
and to guarantee their truth and authenticity.[16]
 A notarial will, as the contested will in this case, is An acknowledgment is the act of one who has

required by law to be subscribed at the end thereof by the executed a deed in going before some competent officer or

testator himself. In addition, it should be attested and court and declaring it to be his act or deed. It involves an extra

subscribed by three or more credible witnesses in the step undertaken whereby the signatory actually declares to the

presence of the testator and of one another.[17] notary public that the same is his or her own free act and

deed.[21] The acknowledgment in a notarial will has a two-fold

The will in question was attested by only two
purpose: (1) to safeguard the testators wishes long after his
witnesses, Noynay and Grajo. On this circumstance alone, the
demise and (2) to assure that his estate is administered in the
will must be considered void.[18] This is in consonance with the
manner that he intends it to be done.
rule that acts executed against the provisions of mandatory or

prohibitory laws shall be void, except when the law itself A cursory examination of the acknowledgment of the

authorizes their validity. will in question shows that this particular requirement was

neither strictly nor substantially complied with. For one, there

The Civil Code likewise requires that a will must be
was the conspicuous absence of a notation of the residence
acknowledged before a notary public by the testator and the
certificates of the notarial witnesses Noynay and Grajo in the
witnesses.[19] The importance of this requirement is highlighted
acknowledgment. Similarly, the notation of the testators old
by the fact that it was segregated from the other requirements
residence certificate in the same acknowledgment was a clear
under Article 805 and embodied in a distinct and separate
breach of the law. These omissions by respondent invalidated
provision.[20]
the will.

As the acknowledging officer of the contested will,
respondent was required to faithfully observe the formalities of
a will and those of notarization. As we held in Santiago v.
Rafanan:[22]
The Notarial Law is explicit on the
obligations and duties of notaries public. They
are required to certify that the party to every
document acknowledged before him had
presented the proper residence certificate (or
exemption from the residence tax); and to enter
its number, place of issue and date as part of
such certification.
These formalities are mandatory and cannot be
disregarded, considering the degree of importance and
evidentiary weight attached to notarized documents.[23] A
notary public, especially a lawyer,[24] is bound to strictly
observe these elementary requirements.
The Notarial Law then in force required the exhibition
of the residence certificate upon notarization of a document or
instrument:
Section 251. Requirement as to notation of
payment of [cedula] residence tax. Every
contract, deed, or other document
acknowledged before a notary public shall have
certified thereon that the parties thereto have
presented their proper [cedula] residence
certificate or are exempt from the [cedula]
residence tax, and there shall be entered by the
notary public as a part of such certificate the
number, place of issue, and date of each
[cedula] residence certificate as aforesaid.[25]
The importance of such act was further reiterated by
Section 6 of the Residence Tax Act[26] which stated:
When a person liable to the taxes prescribed in
this Act acknowledges any document before a
notary public xxx it shall be the duty of such
person xxx with whom such transaction is had
or business done, to require the exhibition of
the residence certificate showing payment of
the residence taxes by such person xxx.
In the issuance of a residence certificate, the law seeks
to establish the true and correct identity of the person to whom
it is issued, as well as the payment of residence taxes for the
current year. By having allowed decedent to exhibit an expired
residence certificate, respondent failed to comply with the
requirements of both the old Notarial Law and the Residence 1. nature of each instrument executed,
sworn to, or acknowledged before him;
Tax Act. As much could be said of his failure to demand the 2. person executing, swearing to, or
acknowledging the instrument;
exhibition of the residence certificates of Noynay and Grajo. 3. witnesses, if any, to the signature;
4. date of execution, oath, or
acknowledgment of the instrument;
5. fees collected by him for his services as
On the issue of whether respondent was under the notary;
6. give each entry a consecutive number;
legal obligation to furnish a copy of the notarized will to the
and
archives division, Article 806 provides: 7. if the instrument is a contract, a brief
description of the substance of the
Art. 806. Every will must be instrument.[27]
acknowledged before a notary public by the
testator and the witness. The notary public
shall not be required to retain a copy of the
In an effort to prove that he had complied with the
will, or file another with the office of the
Clerk of Court. (emphasis supplied) abovementioned rule, respondent contended that he had

crossed out a prior entry and entered instead the will of the
Respondents failure, inadvertent or not, to file in the archives decedent. As proof, he presented a photocopy of his notarial
division a copy of the notarized will was therefore not a cause register. To reinforce his claim, he presented a photocopy of a
for disciplinary action. certification[28] stating that the archives division had no copy of

the affidavit of Bartolome Ramirez.

Nevertheless, respondent should be faulted for having

failed to make the necessary entries pertaining to the will in his A photocopy is a mere secondary evidence. It is not
notarial register. The old Notarial Law required the entry of the admissible unless it is shown that the original is unavailable.
following matters in the notarial register, in chronological order: The proponent must first prove the existence and cause of the
unavailability of the original, [29] otherwise, the evidence carelessness cannot be taken lightly in view of the importance

presented will not be admitted. Thus, the photocopy of and delicate nature of a will, considering that the testator and

respondents notarial register was not admissible as evidence the witnesses, as in this case, are no longer alive to identify

of the entry of the execution of the will because it failed to the instrument and to confirm its contents. [34] Accordingly,

comply with the requirements for the admissibility of secondary respondent must be held accountable for his acts. The validity

evidence. of the will was seriously compromised as a consequence of his

breach of duty.[35]
In the same vein, respondents attempt to controvert the

certification dated September 21, 1999[30] must fail. Not only In this connection, Section 249 of the old Notarial Law

did he present a mere photocopy of the certification dated provided:

March 15, 2000;[31] its contents did not squarely prove the fact Grounds for revocation of commission. The
following derelictions of duty on the part of a
of entry of the contested will in his notarial register. notary public shall, in the discretion of the
proper judge of first instance, be sufficient
ground for the revocation of his commission:
Notaries public must observe with utmost care [32] and
xxx xxx xxx
utmost fidelity the basic requirements in the performance of
(b) The failure of the notary to make the proper
their duties, otherwise, the confidence of the public in the
entry or entries in his notarial register
integrity of notarized deeds will be undermined.[33] touching his notarial acts in the manner
required by law.

Defects in the observance of the solemnities xxx xxx xxx

prescribed by law render the entire will invalid. This (f) The failure of the notary to make the proper
notation regarding cedula certificates.[36]
 These gross violations of the law also made The practice of law is a privilege burdened with

respondent liable for violation of his oath as a lawyer and conditions.[44] A breach of these conditions justifies disciplinary

constituted transgressions of Section 20 (a), Rule 138 of the action against the erring lawyer. A disciplinary sanction is

Rules of Court[37] and Canon 1[38] and Rule 1.01[39] of the CPR. imposed on a lawyer upon a finding or acknowledgment that

he has engaged in professional misconduct. [45] These

sanctions meted out to errant lawyers include disbarment,

The first and foremost duty of a lawyer is to maintain
suspension and reprimand.
allegiance to the Republic of the Philippines, uphold the

Constitution and obey the laws of the land.[40] For a lawyer is

Disbarment is the most severe form of disciplinary
the servant of the law and belongs to a profession to which
sanction.[46] We have held in a number of cases that the power
society has entrusted the administration of law and the
to disbar must be exercised with great caution[47] and should
dispensation of justice.[41]
not be decreed if any punishment less severe such as

reprimand, suspension, or fine will accomplish the end

While the duty to uphold the Constitution and obey the
desired.[48] The rule then is that disbarment is meted out only in
law is an obligation imposed on every citizen, a lawyer
clear cases of misconduct that seriously affect the standing
assumes responsibilities well beyond the basic requirements
and character of the lawyer as an officer of the court.[49]
of good citizenship. As a servant of the law, a lawyer should

moreover make himself an example for others to emulate.

Respondent, as notary public, evidently failed in the
[42]
Being a lawyer, he is supposed to be a model in the
performance of the elementary duties of his office. Contrary to
community in so far as respect for the law is concerned.[43]
his claims that he exercised his duties as Notary Public with commission REVOKED. Because he has not lived up to the

due care and with due regard to the provision of existing law trustworthiness expected of him as a notary public and as an

and had complied with the elementary formalities in the officer of the court, he is PERPETUALLY DISQUALIFIED from

performance of his duties xxx, we find that he acted very reappointment as a notary public.

irresponsibly in notarizing the will in question. Such

Let copies of this Resolution be furnished to all the
recklessness warrants the less severe punishment of
courts of the land, the Integrated Bar of the Philippines and the
suspension from the practice of law. It is, as well, a sufficient
Office of the Bar Confidant, as well as made part of the
basis for the revocation of his commission [50] and his perpetual
personal records of respondent.
disqualification to be commissioned as a notary public.[51]
SO ORDERED.

WHEREFORE, respondent Atty. Regino B. Tambago is

hereby found guilty of professional misconduct. He violated (1)

the Lawyers Oath; (2) Rule 138 of the Rules of Court; (3)

Canon 1 and Rule 1.01 of the Code of Professional

Responsibility; (4) Art. 806 of the Civil Code and (5) the

provisions of the old Notarial Law.

Atty. Regino B. Tambago is hereby SUSPENDED from

the practice of law for one year and his notarial

DANILO ALUAD, LEONORA ALUAD, G.R. No. 176943 of Donation) in favor of petitioners mother Maria [3] covering all
DIVINA ALUAD, PROSPERO ALUAD,
and CONNIE ALUAD, Present: the six lots which Matilde inherited from her husband
Petitioners, Crispin. The Deed of Donation provided:
QUISUMBING, J.,
CARPIO MORALES,
TINGA, That, for and in consideration of the love
- versus - VELASCO, JR., and and affection of the DONOR [Matilde] for the
BRION, JJ. DONEE [Maria], the latter being adopted and
hav[ing] been brought up by the former the
DONOR, by these presents, transfer and
ZENAIDO ALUAD, Promulgated: convey, BY WAY OF DONATION, unto
Respondent. October 17, 2008 the DONEE the property above-described, to
become effective upon the death of the
x-------------------------------------------- DONOR, but in the event that the DONEE
------x should die before the DONOR, the present
donation shall be deemed rescinded and [of]
DECISION no further force and effect; Provided, however,
that anytime during the lifetime of the DONOR
or anyone of them who should survive, they
CARPIO MORALES, J.: could use[,] encumber or even dispose of any
or even all of the parcels of land herein
Petitioners mother, Maria Aluad (Maria), and donated.[4] (Emphasis and underscoring
respondent Zenaido Aluad were raised by the childless supplied)
spouses Matilde Aluad (Matilde) and Crispin Aluad (Crispin).

On September 30, 1986, Original Certificates of Title

Crispin was the owner of six lots identified as Lot Nos.
over Lot Nos. 674 and 676 were issued in Matildes name.
674, 675, 676, 677, 680, and 682 of the Pilar Cadastre, Capiz.
After Crispin died, his wife Matilde adjudicated the lots to
On August 26, 1991, Matilde sold Lot No. 676 to
herself.[1]
respondent by a Deed of Absolute Sale of Real Property.[5]

On November 14, 1981, Matilde executed a document

entitled Deed of Donation of Real Property Inter Vivos[2] (Deed
 Subsequently or on January 14, 1992, Matilde executed
a last will and testament,[6] devising Lot Nos. 675, 677, 682,
and 680 to Maria, and her remaining properties including Lot
No. 674 to respondent.
Matilde died on January 25, 1994, while Maria died on
September 24 of the same year.[7]
On August 21, 1995, Marias heirs-herein petitioners
filed before the Regional Trial Court (RTC) of Roxas City a
[8]
Complaint, for declaration and recovery of ownership and
possession of Lot Nos. 674 and 676, and damages against
respondent, alleging:
That in 1978, plaintiff[s] possessed the
two (2) parcels of land above-described until
January 1991 when defendant entered and
possessed the two (2) parcels of land claiming
as the adopted son of Crispin Aluad who
refused to give back possession until Matilde
Aluad died in [1994] and then retained the
possession thereof up to and until the present
time, thus, depriving the plaintiffs of the
enjoyment of said parcels of land x x x;
That after the death of Matilde R. Aluad,
the plaintiffs succeeded by inheritance by right
of representation from their deceased mother,
Maria Aluad who is the sole and only daughter
of Matilde Aluad[.][9]
To the complaint respondent alleged in his Answer.[10]
That Lot 674 is owned by the defendant
as this lot was adjudicated to him in the Last
Will and Testament of Matilde Aluad x x x
while Lot 676 was purchased by him from
Matilde Aluad. These two lots are in his
possession as true owners thereof.
[11]
(Underscoring supplied)
Petitioners later filed a Motion for Leave to Amend
Complaint Already Filed to Conform to Evidence [12] to which it
annexed an Amended Complaint[13] which cited the donation of
the six lots via Deed of Donation in favor of their mother
Maria. Branch 15 of the RTC granted the motion and admitted
the Amended Complaint.[14]
Respondent filed an Amended
Answer [15]
contending, inter alia, that the Deed of Donation is
forged and falsified and petitioners change of theory showed
that said document was not existing at the time they filed their
complaint and was concocted by them after realizing that their
false claim that their mother was the only daughter of Matild[e]
Aluad cannot in anyway be established by them; [16] and
that if ever said document does exist, the same was already
revoked by Matilde when [she] exercised all acts of dominion
over said properties until she sold Lot 676 to defendant and plaintiffs, together with the
interest thereof at the legal rate
until her death with respect to the other lots without any until fully paid;
opposition from Maria Aluad.[17]
c. Ten thousand pesos
(P10,000.00), representing the
The trial court, by Decision[18] of September 20, 1996, income from the subject Lot No.
674, a year from 1991 up to the
held that Matilde could not have transmitted any right over Lot
time said lot is delivered to the
Nos. 674 and 676 to respondent, she having previously plaintiffs, plus legal interest
alienated them to Maria via the Deed of Donation. Thus it thereof at the legal rate until fully
paid; and
disposed:
d. The costs of the suit.
WHEREFORE, in view of the foregoing,
judgment is hereby rendered: Defendants counterclaim is ordered
dismissed for lack of merit.
1. Declaring the plaintiffs as the
rightful owners of the subject Lots SO ORDERED.[19]
Nos. 674 and 676, Pilar Cadastre;

2. Ordering the defendant to deliver

the possession of the subject lots to On petitioners motion, the trial court directed the
the plaintiffs; issuance of a writ of execution pending appeal.[20] Possession
of the subject lots appears to have in fact been taken by
3. Ordering the defendant to pay the
plaintiffs: petitioners.
By Decision[21] of August 10, 2006, the Court of Appeals
a. Thirty thousand pesos
(P30,000.00) as attorneys fees; reversed the trial courts decision, it holding that the Deed of
Donation was actually a donation mortis causa, not inter vivos,
b. Twenty thousand pesos
(P20,000.00), representing the and as such it had to, but did not, comply with the formalities
income from subject Lot 676, a of a will. Thus, it found that the Deed of Donation was
year from 1991 up to the time witnessed by only two witnesses and had no attestation clause
said lot is delivered to the
which is not in accordance with Article 805 of the Civil Code,
reading:
Art. 805. Every will, other than a
holographic will, must be subscribed at the end
thereof by the testator himself or by the
testators name written by some other person in
his presence, and by his express direction, and
attested and subscribed by three or more
credible witnesses in the presence of the
testator and of one another.
The testator or the person requested by
him to write his name and the instrumental
witnesses of the will shall, also sign, as
aforesaid, each and every page thereof, except
the last on the left margin and all the pages
shall be numbered correlatively in letters placed
on the upper part of each page.
The attestation shall state the number of
pages used upon which the will is written, and
the fact that that testator signed the will and
every page thereof, or caused some other
person to write his name, under his express
direction, in the presence of the instrumental
witnesses, and that the latter witnessed and
signed the will and all the pages thereof in the
presence of the testator, and of one another.
If the attestation clause is in a language
not known to the witnesses, it shall be
interpreted to them.
While the appellate court declared respondent as the
rightful owner of Lot No. 676, it did not so declare with respect
to Lot No. 674, as Matildes last will and testament had not yet
been probated. Thus the Court of Appeals disposed:
WHEREFORE, finding the instant
petition worthy of merit, the same is
hereby GRANTED and the Decision of
the Regional Trial Court of Roxas City, Branch
15, dated 20 September 1996, in Civil Case No.
V-6686 for declaration of ownership, recovery of
ownership and possession, and damages
is REVERSED and SET ASIDE.
A new one is entered in its
stead declaring defendant-appellant as the
lawful owner of Lot [No.] 676 of the Pilar
Cadastre. Accordingly, plaintiffs-appellees are
directed to return the possession of the said lot
to the defendant-appellant.
Moreover, plaintiffs-appellees are
ordered to pay P40,000.00 to defendant-
appellant as attorneys fees and litigation
expenses.
Costs against plaintiffs-appellees.
SO ORDERED.[22] (Emphasis in the
original; underscoring supplied)
 Their Motion for Reconsideration[23] having been denied,
[24]
petitioners filed the present Petition for Review,
[25]
contending that the Court of Appeals erred
I
X X X WHEN IT REVERSED THE DECISION
OF THE COURT BELOW (RTC, Branch
15, Roxas City) HOLDING THAT THE DEED
OF DONATION INTER VIVOS IN FAVOR OF
PETITIONERS MOTHER IS IN FACT A
DONATION MORTIS CAUSA.
II
X X X WHEN IT RULED THAT RESPONDENT
IS THE RIGHTFUL OWNER OF LOT NO. 676
AS LOT BUYER ON THE BASIS OF A DEED
OF SALE EXECUTED BY THE DONOR WHO
HAD NO MORE RIGHT TO SELL THE SAME.
III
X X X WHEN IT FAILED TO DECLARE
PETITIONERS THE RIGHTFUL OWNER
OF LOT NO. 674 AFTER HAVING RULED
WHEN IT HELD THAT RESPONDENT
CANNOT BE DECLARED OWNER THEREOF.
IV
X X X WHEN IT HELD THAT THE ISSUANCE
OF A WRIT OF EXECUTION PENDING
APPEAL IS IN VIOLATION OF PARAGRAPH
(a) SECTION 2, RULE 39, OF THE RULES OF
COURT (AND ORDERING PETITIONERS TO
RETURN POSSESSION OF LOT 676 TO
RESPONDENT) AND ORDERING
PETITIONERS TO PAY ATTORNEYS FEES
AND COST[S] OF SUIT.[26]
As did the appellate court, the Court finds the donation
to petitioners mother one of mortis causa, it having the
following characteristics:
(1) It conveys no title or ownership to the
transferee before the death of the
transferor; or what amounts to the same
thing, that the transferor should retain the
ownership (full or naked) and control of
the property while alive;
(2) That before the death of the transferor,
the transfer should be revocable by the
transferor at will, ad nutum; but
revocability may be provided for indirectly
by means of a reserved power in the
donor to dispose of the properties
conveyed; and
(3) That the transfer should be void if the
transferor should survive the transferee.
[27]
(Emphasis and underscoring supplied)
The phrase in the earlier-quoted Deed of Donation to
become effective upon the death of the DONOR admits of no
other interpretation than to mean that Matilde did not intend to
transfer the ownership of the six lots to petitioners mother
during her (Matildes) lifetime.[28]
The statement in the Deed of Donation reading anytime
during the lifetime of the DONOR or anyone of them who
should survive, they could use, encumber or even dispose of
any or even all the parcels of land herein donated [29] means
that Matilde retained ownership of the lots and reserved in her
the right to dispose them. For the right to dispose of a thing
without other limitations than those established by law is an
attribute of ownership.[30] The phrase in the Deed of Donation
or anyone of them who should survive is of course out of
sync. For the Deed of Donation clearly stated that it would take
effect upon the death of the donor, hence, said phrase could
only have referred to the donor Matilde. Petitioners themselves
concede that such phrase does not refer to the donee, thus:
x x x [I]t is well to point out that the last
provision (sentence) in the disputed
paragraph should only refer to Matilde Aluad,
the donor, because she was the only surviving
spouse at the time the donation was
executed on 14 November 1981, as her
husband Crispin Aluad [] had long been dead
as early as 1975.[31]
The trial court, in holding that the donation was inter
Court, however, thus:
vivos, reasoned:
x x x The donation in question is
subject to a resolutory term or period when
the donor provides in the aforequoted
provisions, but in the event that the DONEE
should die before the DONOR, the present
donation shall be deemed rescinded and [of]
no further force and effect. When the donor
provides that should the DONEE xxx die
before the DONOR, the present donation
shall be deemed rescinded and [of] no
further force and effect the logical
construction thereof is that after the
execution of the subject donation, the same
became effective immediately and shall be
deemed rescinded and [of] no further force
and effect upon the arrival of a resolutory
term or period, i.e., the death of the donee
which shall occur before that of the
donor. Understandably, the arrival of this
resolutory term or period cannot rescind and
render of no further force and effect a
donation which has never become effective,
because, certainly what donation is there to
be rescinded and rendered of no further
force and effect upon the arrival of said
resolutory term or period if there was no
donation which was already effective at the
time when the donee died?[32] (Underscoring
supplied)
A similar ratio in a case had been brushed aside by this
 x x x [P]etitioners contend that the
stipulation on rescission in case petitioners
[donee] die ahead of [donor] Cabatingan is a
resolutory condition that confirms the nature of
the donation as inter vivos.
Petitioners arguments are bereft of
[33]
merit.
xxxx
x x x The herein subject deeds
expressly provide that the donation shall be
rescinded in case [donees] the petitioners
predecease [the donor] Conchita
Cabatingan. As stated in Reyes v.
Mosqueda, one of the decisive characteristics
of a donation mortis causa is that the transfer
should be considered void if the donor should
survive the donee. This is exactly what
Cabatingan provided for in her donations. If she
really intended that the donation should take
effect during her lifetime and that the ownership
of the properties donated to the donee or
independently of, and not by reason of her
death, she would not have expressed such
proviso in the subject deeds.[34] (Underscoring
supplied)
As the Court of Appeals observed, x x x [t]hat the
donation is mortis causa is fortified by Matildes acts of
possession as she continued to pay the taxes for the said
properties which remained under her name; appropriated the
produce; and applied for free patents for which OCTs were
issued under her name.[35]
The donation being then mortis causa, the formalities of
a will should have been observed[36] but they were not, as it was
witnessed by only two, not three or more witnesses following
Article 805 of the Civil Code.[37]
Further, the witnesses did not even sign the attestation
clause[38] the execution of which clause is a
requirement separate from the subscription of the will and the
affixing of signatures on the left-hand margins of the pages of
the will. So the Court has emphasized:
x x x Article 805 particularly segregates
the requirement that the instrumental witnesses
sign each page of the will from the requisite that
the will be attested and subscribed by [the
instrumental witnesses]. The respective intents
behind these two classes of signature[s] are
distinct from each other. The signatures on the
left-hand corner of every page signify, among
others, that the witnesses are aware that the
page they are signing forms part of the will. On
the other hand, the signatures to the attestation
clause establish that the witnesses are referring
to the statements contained in the attestation
clause itself. Indeed, the attestation clause is
separate and apart from the disposition of the
will. An unsigned attestation clause results
in an unattested will. Even if the instrumental
 witnesses signed the left-hand margin of the The Deed of Donation which is, as already discussed,
page containing the unsigned attestation
clause, such signatures cannot demonstrate one of mortis causa, not having followed the formalities of a
these witnesses undertakings in the clause, will, it is void and transmitted no right to petitioners mother. But
since the signatures that do appear on the page
were directed towards a wholly different avowal. even assuming arguendo that the formalities were observed,
x x x It is the witnesses, and not the since it was not probated, no right to Lot Nos. 674 and 676
testator, who are required under Article 805 to
was transmitted to Maria.[42] Matilde thus validly disposed of
state the number of pages used upon which the
will is written; the fact that the testator had Lot No. 674 to respondent by her last will and testament,
signed the will and every page thereof; and that subject of course to the qualification that her (Matildes) will
they witnessed and signed the will and all the
pages thereof in the presence of the testator must be probated. With respect to Lot No. 676, the same had,
and of one another. The only proof in the will as mentioned earlier, been sold by Matilde to respondent on
that the witnesses have stated these elemental
facts would be their signatures on the August 26, 1991.
attestation clause.[39] (Emphasis and
underscoring supplied)
Petitioners nevertheless argue that assuming that the
donation of Lot No. 674 in favor of their mother is
indeed mortis causa, hence, Matilde could devise it to
Furthermore, the witnesses did not acknowledge the
respondent, the lot should nevertheless have been awarded to
will before the notary public,[40] which is not in accordance with
them because they had acquired it by acquisitive prescription,
the requirement of Article 806 of the Civil Code that every will
they having been in continuous, uninterrupted, adverse, open,
must be acknowledged before a notary public by the testator
and public possession of it in good faith and in the concept of
and the witnesses.
an owner since 1978.[43]

More. The requirement that all the pages of the will

Petitioners failed to raise the issue of acquisitive
must be numbered correlatively in letters placed on the upper
prescription before the lower courts, however, they having laid
part of each page was not also followed.[41]
their claim on the basis of inheritance from their mother.As a
general rule, points of law, theories, and issues not brought to
the attention of the trial court cannot be raised for the first time
on appeal.[44] For a contrary rule would be unfair to the adverse
party who would have no opportunity to present further
evidence material to the new theory, which it could have done
had it been aware of it at the time of the hearing before the
trial court.[45]

WHEREFORE, the petition is DENIED.

SO ORDERED.
G.R. No. L-33592 March 31, 1931
Estate of the deceased Victorina Villaranda.
EUSEBIA LIM, petitioner-appellant,
vs.
JULIANA CHINCO, oppositor-appellee.
Perfecto Gabriel and Eusebio Orense for appellant.
Camus and Delgado for appellee.
STREET, J.:
This is a contest over the probate of a paper writing purporting
to be the will of Victorina Villaranda y Diaz, a former resident of
the municipality of Meycauayan, Province of Bulacan, who
died in the Hospital of San Juan de Dios, in the City of Manila,
on June 9, 1929. The deceased left no descendants or
ascendants, and the document produced as her will purports
to leave her estate, consisting of properties valued at P50,000,
more or less, chiefly to three collateral relatives, Eusebia,
Crispina, and Maria, of the surname of Lim. This instrument
was offered for probate by Eusebia Lim, named in the
instrument as executrix Opposition was made by Juliana
Chinco, a full sister of the deceased. Upon hearing the cause
the trial court sustained the opposition and disallowed the will
on the ground that the testatrix did not have testamentary
capacity at the time the instrument purports to have been
executed by her From this judgment the proponent of the will
appealed.
The deceased was a resident of Mercauayan, Province of
Bulacan, and was about 80 years of age at the time of her
death. On the morning of June 2, 1929, she was stricken with
apoplexy, incident to cerebral hemorrhage, and was taken in
an unconscious condition, seated in a chair, to her room.
Doctor Geronimo Z. Gaanan, a local physician of
Meycauayan, visited the old lady, with whom he was well
acquianted, three or four times, the first visit having occurred
between 6 and 7 p. m. of June 3d. Upon examining the
patient, he found her insensible and incapable of talking or
controlling her movements. On the same day the parish priest
called for the purpose of administering the last rites of the
church, and being unable to take her confession, he limited
himself to performing the office of extreme unction. Doctor
Isidoro Lim, of Manila, was also called upon to visit the patient
and he came to see her two or three times. With his approval,
it was decided to take the woman to the hospital of San Juan
de Dios in Manila, and on the morning of June 5, 1929, the
ambulance from this hospital arrived, in charge of Doctor
Guillermo Lopez del Castillo, a resident physician of the
hospital. At about 11 c'clock a.m. on that day she was
embarked on the ambulance and taken to the hospital, where
she died four days later.
The purported will, which is the subject of this proceeding, was
prepared by Perfecto Gabriel, a practicing attorney of Manila,
whose wife appears to be related to the chief beneficiaries
named in the will. This gentlemen arrived upon the scene at 9
o'clock on the forenoon of June 5, 1929. After informing
himself of the condition of the testatrix, he went into a room
adjacent to that occupied by the patient and, taking a sheet
from an exercise book, wrote the instrument in question. He
then took it into the sick room for execution. With this end in
view Gabriel suggested to Doctor Lopez del Castillo that he
would be pleased to have Doctor Castillo sign as a witness,
but the latter excused himself for the reason that he
considered the old lady to be lacking in testamentary capacity.
Another person present was Marcos Ira, a first cousin of the
deceased, and attorney Gabriel asked him also whether or not
he was willing to sign as one of the witnesses. Ira replied in a
discouraging tone, and the attorney turned away without instrument over to her clause by clause and asked her
pressing the matter. In the end three persons served as whether it expressed her wishes. He says that she made signs
witnesses, all of whom were in friendly relations with the that enabled him to understand that she concurred in what
lawyer, and two relatives of his wife. The intended testatrix was written. But it is clear, even upon the statement of this
was not able to affix her signature to the document, and it was witness, that the patient was unable to utter intelligent speech.
signed for her by the attorney. Upon the authority of Perry vs. Elio (29 Phil., 134), the paper
offered for probate was properly disallowed.
The vital question in the case is whether the supposed
testatrix had testamentary capacity at the time the paper The judgment appealed from will therefore be affirmed, and it
referred to was signed. Upon this point we are of the opinion, is so ordered, with costs against the appellant.
as was the trial judge, that the deceased, on the morning of
June 5, 1929, was in a comatose condition and incapable of Avanceña, C.J., Johnson, Villamor and Villa-Real, JJ., concur.
performing any conscious and valid act. The testimony of Malcolm and Johns, JJ., concurred, but being absent at the
Doctor Gaanan and Doctor Lopez del Castillo is sufficient date of the promulgation of the opinion, their names do not
upon this point, and this testimony is well corroborated by appear signed thereto. — AVANCEÑA, C.J.
Paciana Diaz and Irene Ahorro. The first of these witnesses
was the one who chiefly cared for the deceased during her last
illness in Meycauayan until she was carried away to the
hospital in Manila; and the second was a neighbor, who was
called in when the stroke of apoplexy first occurred and who Separate Opinions
visited the patient daily until she was removed from
Meycauayan.
ROMUALDEZ, J., dissenting:
The testimony of these witnesses is convincing to the effect
I am of opinion that the will in question is genuine and that it
that the patient was in a continuous state of coma during the
was drawn up and signed with all the legal requisites;
entire period of her stay in Meycauayan, subsequent to the
therefore, I vote for its allowance, and the consequent reversal
attack, and that on the forenoon of June 5, 1929, she did not
of the judgment appealed from.
have sufficient command of her faculties to enable her to do
any valid act. Doctor Lim, the physician from Manila, testified
for the proponent of the will. His testimony tends to show that
the patient was not suffering from cerebral hemorrhage but
from uræmic trouble, and that, after the first attack, the patient
was much relieved and her mind so far cleared up that she
might have made a will on the morning of June 5th. The
attorney testified that he was able to communicate with the
deceased when the will was made, and that he read the
G.R. No. L-5263 February 17, 1954
AGUSTIN BARRERA, ET AL., proponents-appellants,
vs.
JOSE TAMPOCO, ET AL., oppositors-appellees.
Jesus G. Barrera for appellants.
Filemon Cajator for appellees.
PARAS, C.J.:
Olivia Villapaña died in Tarlac, Tarlac, on December 13, 1948.
On December 31, 1948, a petition was filed by Agustin Barrera
in the Court of First Instance of Tarlac for the probate of the
will executed by Olivia Villapaña on July 17, 1948, and for the
appointment of the petitioner as executor. According to the
petition the properties left by the testatrix are worth
P94,852.96, and the heirs instituted are nephews and nieces
and grandchildren in the collateral line. Jose Tampoco and
Victoriano Tampoco, alleged grandchildren of the testatrix in
the direct line, filed an opposition, claiming that the will was not
executed and attested in accordance with the law, that the
testatrix lacked testamentary capacity, that there was undue
influence and pressure in its execution, that the signature of
Olivia Villapaña was obtained by fraud and trickery, and that
the testamentary provisions are illegal. Consorcia Lintang,
Nemesio Villapaña, Marcos Villapaña, Jesus Villapaña,
Vicente Villapaña, Ursulo Villapaña, Avelina Villapaña, and
Rosario Villapaña, alleged nephews and nieces, also filed an
opposition on substantially the same grounds on which the
opposition of Jose and Victoriano Tampoco was based. After
protracted trial, and more than a year after submission of the
case, a decision was rendered by the Court of First Instance of
Tarlac on August 11, 1951, disallowing the will. The court found
that Olivia Villapaña had testamentary capacity, that there was
no forgery, fraud, trickery or undue influence in the execution
of the will, and that petition of forced heirs is not a ground for
denying probate; but the will was disallowed because it was
not the personal last will and testament of the deceased and it
was not based on the finding that Olivia Villapaña did not
furnish the names of the persons instituted as heirs and that
the will was not read to her before she signed it. The second
ground is premised on the conclusion that attesting witness
Laureano Antonio was not present when Olivia Villapaña and
attesting witness Honorio Lacson signed the will; that Antonio
only partially saw the signing by attesting witness Modesto
Puno; and that Olivia Villapaña saw Antonio sign only two or
three times. From this decision the petitioner has appealed.
According to appellant's evidence, two or three days before
July 10, 1948, Pilar Tañedo called on Modesto Puno, a lawyer
and justice of the peace of Concepcion, Tarlac, and requested
the latter to come to Manila for a conference with Olivia
Villapaña, aunt of Pilar. On July 10, 1948, Atty. Puno,
complying with the request, went to the house of Pilar Tañedo
in Singalong Street where Olivia was staying. The latter, after
preliminary greetings and courtesies, informed Atty. Puno that
she wanted him to prepare her will, giving the names of the
heirs and the properties to be left. Olivia Villapaña asked Atty.
Puno to get the description of the properties from the herein
appellant, Agustin Barrera, husband of Pilar Tañedo. Atty.
Puno noted the wishes of Olivia, and, as there was then no
available typewriter, he informed the old woman that he would
prepare the will in his office in Concepcion and come back with
it on the following Saturday. As promised, on or July 17, 1948,
Atty. Puno returned to the house of Olivia Villapaña in
Singalong, carrying with him one original and three copies, in
typewritten form, of the will he drafted in accordance with the
instructions of Olivia Villapaña. Atty. Puno arrived about noon.
He read the will to Olivia to find out whether it conformed to
her wishes, and she indicated that it was all right. After lunch
Atty. Puno manifested that two other witnesses were
necessary, whereupon Pilar Tañedo requested Honorio Lacson
and Laureano Antonio, who were then living in the first floor of
the house, to come up. Lacson and Antonio did as requested.
Olivia Villapaña, Atty. Puno, Lacson and Antonio were then
seated around a small rectangular table in sala, and at this
juncture Atty. Puno gave a copy of the will to Olivia, Lacson
and Antonio, while he retained one. The Attorney again read
the will aloud, advising the rest to check their respective
copies. As Olivia Villapaña agreed to the will, she proceeded
to sign all the four copies, on the lines previously placed by
Atty. Puno, followed successively by Lacson, Atty. Puno and
Antonio, all in the presence of each other. After the signing,
Atty. Puno gave the original and a copy to Olivia, and retained
the other two copies. Atty. Puno , Lacson and Antonio stayed
for a while even ate merienda prepared by the sisters Pilar and
Beatriz Tañedo. Olivia Villapaña delivered her will to Agustin
Barrera for safekeeping on October 17, 1948 when she was
taken to the U.S.T. Hospital where she remained until
November 7, 1948. On this date her doctors lost all hope for
her recovery and Olivia Villapaña was brought to Tarlac,
Tarlac, her hometown, where, as already stated, she died on
December 13, 1948.
According to the evidence for the oppositors-appellees, the will
presented in the court by the petitioner was not executed in
accordance with law, in that attesting witness Laureano
Antonio did not see the testatrix and attesting witness Lacson
sign the will or any of its copies, that he saw Atty. Puno when
the latter was already half thru signing the document, and that
the testatrix did not see Antonio sign all the copies.
After a thorough study of the record and mature reflection on
the conflicting evidence, we are constrained to conclude that
the trial court erred in denying probate of the will.
Of the three attesting witnesses, namely, Atty. Modesto Puno,
Honorio Lacson, and Laureano Antonio, the first two testified
positively that the will was signed by the testatrix and the three
witnesses in the presence of each other, and that it was read
to the testatrix before being signed. In view of the opposition
filed by the two sets of oppositors , the third attesting witness,
Laureano Antonio, had to be presented by the petitioner but,
contrary to expectations, Antonio testified that he arrived at the
scene of the execution of the will after testatrix and Honorio
Lacson had already signed and after Atty. Puno was half
through affixing his signatures, and that the testatrix left before
Antonio finished signing all the copies. By numerical
superiority alone, the weight of the testimony of Atty. Puno and
Honorio Lacson outbalances the probative value of the
testimony of Laureano Antonio. Intrinsically, we cannot state
that Laureano Antonio spoke the truth on the witness stand,
since, in the first place, the attestation clause signed by him
contradicts his pretense and, in the second place, there is
enough evidence on the record to show that in his conferences
with Atty. Barrera before taking the witness stand, Antonio
never gave the slightest indication that he was not present
when the testatrix left before Antonio finished signing. Modesto
Puno is a lawyer and at the time a justice of the peace, and it
is improbable that he would unnecessarily risk his honor and
reputation. Indeed, the trial court gave the impression that Atty.
Puno was anxious to strictly meet the requirements of the law
and in the absence, as in the case at bar, of any reason for a
hasty completion, we do not believe that Atty. Puno would
have allowed the signing of the will to be proceeded with
unless three attesting witnesses were already present. On the
other hand, we can fairly state that there was in fact no hurry
on the part of any of the participants in the will, because the
testatrix Olivia Villapaña was not dying (she died some five
months after the execution of the will) and the parties could
therefore take all the time that they wanted, Indeed, none of
the three witnesses, left the house of Olivia Villapaña and they
even stayed therein until after merienda time.
The fact that Atty. Puno id the brother of Jose Puno who is the
husband of Carmen Tañedo, one of the beneficiaries of the
will, and that Honorio Lacson is the husband of Bibiana
Lacson who is a first cousin of Agustin Barrera, herein
petitioner and husband of Pilar Tañedo, is not sufficient to
make then biased witnesses. If Atty. Puno had any material
interest, this fact should have caused him to be more careful in
seeing to it that the formalities of the law were strictly complied
with, and this should be true with respect to Honorio Lacson.
In deciding against the probate of the will, the trial court
believed the testimony of Laureano Antonio to the effect that
he arrived at the place of the signing at about 2:30 in the
afternoon, and thereby found that a greater part of the
proceeding was finished, because Atty. Puno declared in one
place that "the signing of the testament commenced around
between one o'clock and two o'clock" and in another place that
the signing took place "around two and three o'clock," and
Honorio Lacson declared that he was called by Pilar Tañedo to
act as witness at around two o'clock or two thirty. From the
testimony of Atty. Puno and Honorio Lacson the court
concluded that the signing actually commenced between one
and two o'clock. We are of the opinion that the specification of
the time of the signing refers to an immaterial or unimportant
detail which, in view of the lapse of time, might have been a
mistake by one or the other participant in the execution of
Oliva's will. What is important and decisive — and this should
be impressed in the mind of an attorney preparing and taking
charge of the signing of will, — is that the testatrix and each of
the three attesting witnesses must affix their signatures in the
presence of one another. In the case before us, Atty. Puno and
Honorio
Lacson both attesting witnesses, categorically affirmed that
this procedure was followed. At any rate, even under the
testimony of Atty. Puno and Honorio Lacson, the signing could
have taken place at about or after two thirty, since the former
declared that it took place between two and three o'clock and
Honorio Lacson stated that the time was two or two thirty.
another point invoked by the trial court against the probate of
the will is the circumstance that, while Atty. Puno testified that
he placed the lines on which the testatrix and the witnesses
were to sign before he read the document to the testatrix
whom he gave the original witness Lacson testify that Atty.
Puno read the original after giving a copy to the testatrix, and
after reading Atty. Puno placed the lines for signatures. The
discrepancy again refers to a minor detail which is not
sufficient to negative the truthfulness of Atty. Puno and Honorio
Lacson on the main and important fact that the will was signed
by the testatrix and the three attesting witnesses in the
presence of each other.
Oppositors-appellees presented in corroboration of the
testimony of Laureano Antonio, Joaquin Villapaña and
Consolacion del Mundo. Joaquin Villapaña, a painter allegedly
was then the maid of Oliva Villapaña. Apart from the fact that
there is evidence to show that both Joaquin Villapaña and
Consolacion del Mundo were not yet employed in the house of
Oliva when the latter's will was executed, there is little or no
reason for their version to prevail over the positive testimony is
even corroborated by two other witnesses, Bibiana Lacson
and Beatriz Tañedo. Certainly the story of Joaquin Villapaña
and Consolacion del Mundo can have no greater weight than
that of Laureano Antonio.
In the holding that the will was not that of Oliva Villapaña, the
trial court found that it was not read to her; and this finding was
premised on the alleged contradiction of Atty. Puno and
Honorio Lacson regarding the sequence of the reading of the
will and the placing of the lines for signatures, and regarding
the question whether a copy or the original was handed to the
testatrix. As we have already observed, the discrepancy
relates to an insignificant matter which cannot vitally detract
from the credibility of Atty. Puno to the effect that upon arrival
at the house of Oliva Villapaña at about noon, he read the will
to her with a view to finding whether she was agreeable
thereto. It is not necessary that said will be read upon its
signing and in the presence of the witnesses.
testamentary capacity; and in such a situation it becomes our
duty to give expression to her will.
Wherefore, the appealed order is reversed and the will
executed by Oliva Villapaña on July 17, 1948, is hereby
allowed. So ordered without costs.
Pablo, Bengzon, Padilla, Montemayor, Reyes, Jugo, Bautista
Angelo, and Labrador, JJ., concur.

The trial court also concluded that the testatrix could not have
furnished the names of the heirs instituted under the will,
because (1) Salvador Tañedo, one of such heirs, was long
dead and (2) Marcelo Villapaña, another instituted heir, was
non-existent, since Oliva Villapaña did not have a grandson by
such name. It is true that Salvador Tañedo was already dead
and the testatrix knew about it, but it is not uncommon for a
woman of old age, confused by the big number of her
relatives, to commit the mistake of unwittingly mentioning a
dead one. With respect to the instituted heir, Marcelo
Villapaña, while it appears that Oliva did not have a grandson
answering to that name, there is evidence tending to show that
Pioquinto Villapaña, a child of Ruperta Pineda, must have
been reffered to, because Oliva, who was the child's god-
mother, originally wanted said child to be baptized as Marcelo,
after his father. Moreover, if Atty. Puno had supplied the names
instituted as heirs, he would have consulted all the interested
parties and would be sure that no mistake of the kind was
made.

As a closing observation, it is not for us to discover the

motives of Oliva Villapaña in leaving her properties to the
person named in the will, and omitting therefrom the
oppositors-appellees. Suffice it to state that the trial court itself
found the will to have been executed free from falsification,
fraud, trickery or undue influence, with Oliva having
G.R. No. 76648 February 26, 1988
THE HEIRS OF THE LATE MATILDE MONTINOLA-
SANSON, petitioners,
vs.
COURT OF APPEALS and EDUARDO F.
HERNANDEZ, respondents.
GANCAYCO, J.:
This is a petition for review on certiorari of the decision of the
Court of Appeals 1 promulgated August 29,1986 affirming in
toto the decision of the Regional Trial Court of Manila, Branch
XXII 2 dated March 21, 1985, the dispositive part of which
reads:
WHEREFORE, the Court renders judgment
declaring the holographic will marked in
evidence as Exhibit "H" as one wholly written,
dated, and signed freely by the late Herminia
Montinola in accordance with law while in
possession of full testamentary capacity, and
allowing and admitting the same to probate.
Upon the finality of the decision, let letters
testamentary issue to the executor, Eduardo F.
Hernandez, as well as the certificate of probate
prescribed under Section 13 of Rule 76 of the
Rules of Court.
SO ORDERED. 3
This case arose from a petition filed by private respondent
Atty. Eduardo F. Hernandez on April 22, 1981 with the Court of
First Instance of Manila (now Regional Trial Court) seeking the
probate of the holographic will of the late Herminia Montinola
executed on January 28, 1980. 4 The testatrix, who died
single, parentless and childless on March 29,1981 at the age
of 70 years, devised in this will several of her real properties to
specified persons.
On April 29,1981, private respondent who was named
executor in the will filed an urgent motion for appointment of
special administrator. 5 With the conformity of all the relatives
and heirs of the testatrix except oppositor, the court in its order
of May 5, 1981 6 appointed private respondent as Special
Administrator of the testate estate of deceased.
On June 29,1981, Matilde Montinola Sanson (petitioner), the
only surviving sister of the deceased but who was not named
in the said win, filed her Opposition to Probate of
Will, 7 alleging inter alia: that the subject will was not entirely
written, dated and signed by the testatrix herself and the same
was falsely dated or antedated; that the testatrix was not in full
possession of her mental faculties to make testamentary
dispositions; that undue influence was exerted upon the
person and mind of the testatrix by the beneficiaries named in
the win; and that the will failed to institute a residual heir to the
remainder of the estate.
After a hearing on the merits, the probate court, finding the
evidence presented in support of the petition to be conclusive
and overwhelming, rendered its decision allowing the probate
of the disputed will.
Petitioner thus appealed the decision of the probate court to
the Court of Appeals which affirmed in toto the decision. 8
On September 24,1986, petitioner filed with the respondent II
court a motion for new trial. 9 Attached to her motion was the
Affidavit of Merit of Gregorio Montinola Sanson, petitioner's THE SAID COURT ERRED IN DENYING
son, alleging that witnesses have been located whose PETITIONERS' MOTION FOR
testimonies could shed light as to the ill health of the testatrix RECONSIDERATION OF THE RESOLUTION
as well as undue influence exerted on the latter. DENYING THE AFORESAID MOTION FOR
NEW TRIAL.
The appellate court in its resolution of October 13,
1986, 10 denied the motion for new trial of petitioner on the III
following grounds: (1) the Affidavit of merit attached to the
motion alleged that efforts were exerted to locate unnamed AT ANY RATE, THE SAID COURT ERRED IN
witnesses only after the court's decision was handed down, HOLDING THAT THE HOLOGRAPHIC WILL IN
and (2) the unnamed witnesses would allegedly shed light on QUESTION WAS WHOLLY WRITTEN, DATED
the fact of grave illness of the testatrix as well as the undue AND SIGNED BY THE LATE HERMINIA
influence exerted on her which are merely corroborative or MONTINOLA.
cumulative since these facts were brought to light during the
trial. IV

The motion for reconsideration of petitioner dated October 27,
1986 11 was likewise denied by the appellate court in its
resolution of November 20, 1986 12 on the ground that the
affidavit of one Patricia Delgado submitted with the motion
constitutes cumulative evidence and the motion being in reality
a second motion for reconsideration which is prescribed by
law.
In the petition now before Us, petitioner assigned the following
errors:
THE SAID COURT ERRED IN NOT FINDING
THAT THE ALLEGED WILL WAS
FRAUDULENTLY ANTEDATED TO CONCEAL
ITS ACTUAL DATE OF EXECUTION AND TO
SHIELD IT FROM PROBABLE DISPUTES AS
TO THE TESTAMENTARY CAPACITY ON THE
PART OF THE ALLEGED TESTATRIX AT THE
TIME OF ITS ACTUAL EXECUTION.
V

I THE SAID COURT ERRED IN HOLDING THAT

THE RESPONDENT COURT OF APPEALS
ERRED IN DENYING PETITIONERS' MOTION
FOR NEW TRIAL ON THE GROUND THAT
THE EVIDENCE SOUGHT TO BE
PRESENTED IS MERELY CUMULATIVE.
THE LATE HERMINIA MONTINOLA WAS NOT
SUBJECTED TO UNDUE PRESSURE AND
IMPROPERIMPORTUNINGS ON THE PART
OF THOSE STANDING TO BENEFIT FROM
THE ALLEGED WILL.
 VI
THE SAID COURT ERRED IN ALLOWING THE
HOLOGRAPHIC WILL IN QUESTION TO
PROBATE.
In the meantime, petitioner who passed away on November 3,
1986, was substituted by her heirs.
In the first and second assigned errors, petitioners maintain
that the appellate court erred in denying the motion for new
trial insisting that the new evidence sought to be presented is
not merely corroborative or cumulative.
On the other hand, the contention of private respondent is that
the motion for new trial was a pro-forma motion because it was
not in accordance with Sec. 1, Rule 53 of the Rules of Court.
We find merit in this contention.
Section 1, Rule 53 provides —
Before a final order or judgment rendered by
the Court of appeals becomes executory, a
motion for new trial may be filed on the ground
of newly discovered evidence which could not
have been discovered prior to the trial in the
court below by the exercise of the diligence and
which is of such a character as would probably
change the result. The motion shall be
accompanied by affidavits showing the facts
constituting the grounds therefor and the newly
discovered evidence.
The affidavit of merit executed by Gregorio Montinola Sanson
alleged the following:
xxx xxx xxx
3. That in her plea for new trial in the said case,
I have exerted efforts to locate witnesses whose
whereabouts were not known to us during the
trial in the lower court, but I have finally
succeeded in tracking them down;
4. That despite their initial reluctance to testify
in this case,I am convinced that they would
testify under proper subpoena for purposes of
shedding light on the fact that the testatrix was
gravely ill at or but the time that the questioned
will was allegedly executed;
5. That they had the clear opportunity to know
the circumstances under which the purported
will was executed; and that they know for a fact
that there was 'undue influence' exerted by
petitioner and other relatives to procure
improper favors from the testatrix;
xxx xxx xxx 13
Said motion for new trial is not in substantial compliance with
the requirements of Rule 53. The lone affidavit of a witness
who was already presented said the hearing is hardly sufficient
to justify the holding of new trial. The alleged new witnesses
were unnamed without any certainty as, to their appearance
before the court to testify. Affiant attests only on his belief that
they would testify if and when they are subpoenaed by the
court. Furthermore, the allegations in the affidavit as to the
undue influence exerted on the testatrix are mere conclusions
and not statement of facts. The requisite affidavits must state
facts and not mere conclusions or opinions, otherwise they are
not valid. 14 The affidavits are required to avoid waste of the
court's time if the newly discovered evidence turns out to be
immaterial or of any evidentiary weight.
Moreover, it could not be said that the evidence sought to be
presented is new having been discovered only after the trial. It
is apparent from the allegations of affiant that efforts to locate
the witnesses were exerted only after the decision of the
appellate court was handed down. The trial lasted for about
four years so that petitioner had ample time to find said
alleged witnesses who were admittedly known to her. The
evidence which the petitioner now propose to present could
have been discovered and presented during the hearing of the
case, and there is no sufficient reason for concluding that had
the petitioner exercised proper diligence she would not have
been able to discover said evidence. 15
In addition, We agree with the appellate court that since the
alleged illness of the testatrix as well as the charges of undue
influence exerted upon her had been brought to light during
the trial, and new evidence on this point is merely
corroborative and cumulative which is generally not a ground
for new trial. 16 Accordingly, such evidence even if presented
win not carry much probative weight which can alter the
judgment. 17
It is very patent that the motion for new trial was filed by
petitioner only for the purpose of delaying the proceedings. In
fact, petitioners son in his manifestation admitted that he had
to request a new law firm to do everything legally possible to
meet the deadline for the filing of a motion for reconsideration
and/or for new trial. 18 This would explain the haphazard
preparation of the motion, thus failing to comply with the
requirements of rule 53, which was filed on the last day of the
reglementary period of appeal so that the veracity of the
ground relied upon is questionable. The appellate court
correctly denied the motion for new trial.
The motion for new trial being pro-forma, it does not interrupt
the running of the period for appeal. 19 Since petitioner's
motion was filed on September 24,1986, the fifteenth or last
day of the period to appeal, the decision of the respondent
court became final on the following day, September 25. And
when the motion for reconsideration of petitioner was filed on
October 30,1986, it was obviously filed out of time.
Since the questioned decision has already become final and
executory, it is no longer within the province of this Court to
review it. This being so, the findings of the probate court as to
the due execution of the will and the testamentary capacity of
testatrix are now conclusive. 20
At any rate, even assuming that We can still review this case
on its merits, the petition will also have to fail.
During the hearing before the probate court, not only were
three (3) close relatives of the testatrix presented but also two
(2) expert witnesses who declared that the contested will and
signature are in the handwriting of the testatrix. These
testimonies more than satisfy the requirements of Art. 811 of
the Civil Code 21 in conjunction with Section 11 of Rule 76,
Revised Rules of Court, 22 or the probate of holographic wills.
As regards the alleged antedating of the will, petitioner failed
to present competent proof that the will was actually executed
sometime in June 1980 when the testatrix was already
seriously ill and dying of terminal lung cancer. She relied only
on the supposed inconsistencies in the testimony of Asuncion
Gemperle, niece and constant companion of testatrix, which
upon careful examination did not prove such claim of
antedating.
The factual findings of the probate court and the Court of
Appeals that the will in question was executed according to the
formalities required by law are conclusive on the Supreme
Court when supported by evidence. 23 We have examined the
records of this case and find no error in the conclusion arrived
at by the respondent court that the contested will was duly
executed in accordance with law.
Petitioner alleges that her exclusion from the alleged
holographic will was without rhyme or reason, being the only
surviving sister of the testatrix with whom she shares an
intimate relationship, thus demonstrating the lack of
testamentary capacity of testatrix.
In the case of Pecson v. Coronel, 24 it was held —
The appellants emphasize the fact that family
ties in this country are very strongly knit and
that the exclusion of a relative from one's estate
is an exceptional case. It is true that the ties of
relationship in the Philippines are very strong,
but we understand that cases of preterition of
relatives from the inheritance are not rare. The
liberty to dispose of one's estate by will when
there are no forced heirs is rendered sacred by
the Civil Code in force in the Philippines since
1889...
Article 842 of the Civil Code provides that one who has no
compulsory heirs may dispose by will of all his estate or any
part of it in favor of any person having capacity to succeed.
It is within the right of the testatrix not to include her only sister
who is not a compulsory heir in her will. Nevertheless, per
testimony of Asuncion Gemperle, the latter had reserved two
boxes of jewelry worth P850,000.00 for petitioner.
Furthermore, petitioner's son Francis was instituted as an heir
in the contested will.
Petitioner still insists that the fact that in her holographic will
the testatrix failed to dispose of all of her estate is an indication
of the unsoundness of her mind.
We cannot subscribe to this contention. Art. 841 of the Civil
Code provides —
A will shall be valid even though it should not
contain an institution of an heir, or such
institution should not comprise the entire estate,
and even though the person so instituted
should not accept the inheritance or should be
incapacitated to succeed.
In such cases, the testamentary dispositions
made in accordance with law shall be complied
with and the remainder of the estate shall pass
to the legal heirs.
Thus, the fact that in her holographic will, testatrix disposed of
only eleven (11) of her real properties does not invalidate the
will, or is it an indication that the testatrix was of unsound
mind. The portion of the estate undisposed of shall pass on to
the heirs of the deceased in intestate succession.
Neither is undue influence present just because blood
relatives, other than compulsory heirs have been omitted, for
while blood ties are strong in the Philippines, it is the testator's
right to disregard non-compulsory heirs. 25 The fact that some
heirs are more favored than others is proof of neither fraud or
undue influence. 26 Diversity of apportionment is the usual
reason for making a testament, otherwise, the decedent might
as well die intestate. 27
The contention of the petitioner that the will was obtained by
undue influence or improper pressure exerted by the
beneficiaries of the will cannot be sustained on mere
conjecture or suspicion; as it is not enough that there was
opportunity to exercise undue influence or a possibility that it
may have been exercised. 28 The exercise of improper
pressure and undue influence must be supported by
substantial evidence that it was actually exercised. 29
petitioner. The decision of respondent court dated August 29,
1986 in toto the decision of the Regional Trial Court of Manila
dated March 21, 1985 is hereby declared to be immediately
executory.
SO ORDERED.

Finally, We quote with approval the observation of the Teehankee, C.J., Narvasa, Cruz and Grino-Aquino, JJ.,
respondent court — concur.

There is likewise no question as to the due

execution of the subject Will. To Our minds, the
most authentic proof that decreased had
testamentary capacity at the time of the
execution of the Will, is the Will itself which
according to a report of one of the two expert
witnesses (Exhibits X to X-3) reveals the
existence of significant handwriting
characteristics such as:

1. Spontaneity, freedom, and speed of writing

xxx xxx xxx

3. good line quality.

4. presence of natural variation... (Exhibit X).

The characteristics of spontaneity, freedom and

good line quality could not be achieved by the
testatrix if it was true that she was indeed of
unsound mind and/or under undue influence or
improper pressure when she the Will.

IN VIEW OF THE FOREGOING CONSIDERATIONS, the

petition is DENIED for lack of merit with costs against
G.R. No. 106720 September 15, 1994
SPOUSES ROBERTO AND THELMA AJERO, petitioners,
vs.
THE COURT OF APPEALS AND CLEMENTE
SAND, respondents.
Miguel D. Larida for petitioners.
Montilla Law Office for private respondent.
PUNO, J.:
This is an appeal by certiorari from the Decision of the Court
of
Appeals 1 in CA-G.R. CV No. 22840, dated March 30, 1992,
the dispositive portion of which reads;
PREMISES CONSIDERED, the questioned
decision of November 19, 1988 of the trial court
is hereby REVERSED and SET ASIDE, and the
petition for probate is hereby DISMISSED. No
costs.
The earlier Decision was rendered by the RTC of
Quezon City, Branch 94, 2 in Sp. Proc. No. Q-37171,
and the instrument submitted for probate is the
holographic will of the late Annie Sand, who died on
November 25, 1982.
In the will, decedent named as devisees, the following:
petitioners Roberto and Thelma Ajero, private respondent
Clemente Sand, Meriam S. Arong, Leah Sand, Lilia Sand,
Edgar Sand, Fe Sand, Lisa S. Sand, and Dr. Jose Ajero, Sr.,
and their children.
On January 20, 1983, petitioners instituted Sp. Proc. No. Q-
37171, for allowance of decedent's holographic will. They
alleged that at the time of its execution, she was of sound and
disposing mind, not acting under duress, fraud or undue
influence, and was in every respect capacitated to dispose of
her estate by will.
Private respondent opposed the petition on the grounds that:
neither the testament's body nor the signature therein was in
decedent's handwriting; it contained alterations and
corrections which were not duly signed by decedent; and, the
will was procured by petitioners through improper pressure
and undue influence. The petition was likewise opposed by Dr.
Jose Ajero. He contested the disposition in the will of a house
and lot located in Cabadbaran, Agusan Del Norte. He claimed
that said property could not be conveyed by decedent in its
entirety, as she was not its sole owner.
Notwithstanding the oppositions, the trial court admitted the
decedent's holographic will to probate. It found, inter alia:
Considering then that the probate proceedings
herein must decide only the question of identity
of the will, its due execution and the
testamentary capacity of the testatrix, this
probate court finds no reason at all for the
disallowance of the will for its failure to comply
with the formalities prescribed by law nor for
lack of testamentary capacity of the testatrix.
For one, no evidence was presented to show
that the will in question is different from the will
actually executed by the testatrix. The only
objections raised by the oppositors . . . are that
the will was not written in the handwriting of the
testatrix which properly refers to the question of
its due execution, and not to the question of
identity of will. No other will was alleged to have
been executed by the testatrix other than the
will herein presented. Hence, in the light of the
evidence adduced, the identity of the will
presented for probate must be accepted, i.e.,
the will submitted in Court must be deemed to
be the will actually executed by the testatrix.
xxx xxx xxx
While the fact that it was entirely written, dated
and signed in the handwriting of the testatrix
has been disputed, the petitioners, however,
have satisfactorily shown in Court that the
holographic will in question was indeed written
entirely, dated and signed in the handwriting of
the testatrix. Three (3) witnesses who have
convincingly shown knowledge of the
handwriting of the testatrix have been
presented and have explicitly and categorically
identified the handwriting with which the
holographic will in question was written to be
the genuine handwriting and signature of the
testatrix. Given then the aforesaid evidence, the
requirement of the law that the holographic will
be entirely written, dated and signed in the
handwriting of the testatrix has been complied
with.
xxx xxx xxx
As to the question of the testamentary capacity
of the testratix, (private respondent) Clemente
Sand himself has testified in Court that the
testatrix was completely in her sound mind
when he visited her during her birthday
celebration in 1981, at or around which time the
holographic will in question was executed by
the testatrix. To be of sound mind, it is sufficient
that the testatrix, at the time of making the will,
knew the value of the estate to be disposed of,
the proper object of her bounty, and
the characterof the testamentary act . . . The
will itself shows that the testatrix even had
detailed knowledge of the nature of her estate.
She even identified the lot number and square
meters of the lots she had conveyed by will.
The objects of her bounty were likewise
identified explicitly. And considering that she
had even written a nursing book which
contained the law and jurisprudence on will and
succession, there is more than sufficient
showing that she knows the character of the
testamentary act.
In this wise, the question of identity of the will,
its due execution and the testamentary capacity
of the testatrix has to be resolved in favor of the
allowance of probate of the will submitted
herein.
Likewise, no evidence was presented to show
sufficient reason for the disallowance of herein
holographic will. While it was alleged that the
said will was procured by undue and improper
pressure and influence on the part of the
beneficiary or of some other person, the
evidence adduced have not shown any
instance where improper pressure or influence
was exerted on the testatrix. (Private
respondent) Clemente Sand has testified that
the testatrix was still alert at the time of the
execution of the will, i.e., at or around the time
of her birth anniversary celebration in 1981. It
was also established that she is a very
intelligent person and has a mind of her own.
Her independence of character and to some
extent, her sense of superiority, which has been
testified to in Court, all show the unlikelihood of
her being unduly influenced or improperly
pressured to make the aforesaid will. It must be
noted that the undue influence or improper
pressure in question herein only refer to the
making of a will and not as to the specific
testamentary provisions therein which is the
proper subject of another proceeding. Hence,
under the circumstances, this Court cannot find
convincing reason for the disallowance of the
will herein.
Considering then that it is a well-established
doctrine in the law on succession that in case of
doubt, testate succession should be preferred
over intestate succession, and the fact that no
convincing grounds were presented and proven
for the disallowance of the holographic will of
the late Annie Sand, the aforesaid will
submitted herein must be admitted to
probate. 3 (Citations omitted.)
On appeal, said Decision was reversed, and the petition for
probate of decedent's will was dismissed. The Court of
Appeals found that, "the holographic will fails to meet the
requirements for its validity." 4 It held that the decedent did not
comply with Articles 813 and 814 of the New Civil Code, which
read, as follows:
Art. 813: When a number of dispositions
appearing in a holographic will are signed
without being dated, and the last disposition
has a signature and date, such date validates
the dispositions preceding it, whatever be the
time of prior dispositions.
Art. 814: In case of insertion, cancellation,
erasure or alteration in a holographic will, the
testator must authenticate the same by his full
signature.
It alluded to certain dispositions in the will which were either
unsigned and undated, or signed but not dated. It also found
that the erasures, alterations and cancellations made thereon
had not been authenticated by decedent.
Thus, this appeal which is impressed with merit.
Section 9, Rule 76 of the Rules of Court provides that will shall
be disallowed in any of the following cases:
(a) If not executed and attested as required by
law;
(b) If the testator was insane, or otherwise
mentally incapable to make a will, at the time of
its execution;
 (c) If it was executed under duress, or the
influence of fear, or threats;
(d) If it was procured by undue and improper
pressure and influence, on the part of the
beneficiary, or of some other person for his
benefit;
(e) If the signature of the testator was procured
by fraud or trick, and he did not intend that the
instrument should be his will at the time of fixing
his signature thereto.
In the same vein, Article 839 of the New Civil Code
reads:
Art. 839: The will shall be disallowed in any of
the following cases;
(1) If the formalities required by
law have not been complied
with;
(2) If the testator was insane, or
otherwise mentally incapable of
making a will, at the time of its
execution;
(3) If it was executed through
force or under duress, or the
influence of fear, or threats;
(4) If it was procured by undue
and improper pressure and
influence, on the part of the
beneficiary or of some other
person;
(5) If the signature of the testator
was procured by fraud;
(6) If the testator acted by
mistake or did not intend that the
instrument he signed should be
his will at the time of affixing his
signature thereto.
These lists are exclusive; no other grounds can serve to
disallow a will. 5 Thus, in a petition to admit a holographic will
to probate, the only issues to be resolved are: (1) whether the
instrument submitted is, indeed, the decedent's last will and
testament; (2) whether said will was executed in accordance
with the formalities prescribed by law; (3) whether the
decedent had the necessary testamentary capacity at the time
the will was executed; and, (4) whether the execution of the
will and its signing were the voluntary acts of the decedent. 6
In the case at bench, respondent court held that the
holographic will of Anne Sand was not executed in accordance
with the formalities prescribed by law. It held that Articles 813
and 814 of the New Civil Code, ante, were not complied with,
hence, it disallowed the probate of said will. This is erroneous.
We reiterate what we held in Abangan vs. Abangan, 40 Phil.
476, 479 (1919), that:
The object of the solemnities surrounding the
execution of wills is to close the door against
bad faith and fraud, to avoid substitution of wills
and testaments and to guaranty their truth and
authenticity. Therefore, the laws on this subject
 should be interpreted in such a way as to attain
these primordial ends. But, on the other hand,
also one must not lose sight of the fact that it is
not the object of the law to restrain and curtail
the exercise of the right to make a will. So when
an interpretation already given assures such
ends, any other interpretation whatsoever, that
adds nothing but demands more requisites
entirely unnecessary, useless and frustrative of
the testator's last will, must be disregarded.
For purposes of probating non-holographic wills, these formal
solemnities include the subscription, attestation, and
acknowledgment requirements under Articles 805 and 806 of
the New Civil Code.
In the case of holographic wills, on the other hand, what
assures authenticity is the requirement that they be totally
autographic or handwritten by the testator himself, 7 as
provided under Article 810 of the New Civil Code, thus:
A person may execute a holographic will which
must be entirely written, dated, and signed by
the hand of the testator himself. It is subject to
no other form, and may be made in or out of the
Philippines, and need not be witnessed.
(Emphasis supplied.)
Failure to strictly observe other formalities will not
result in the disallowance of a holographic will that is
unquestionably handwritten by the testator.
A reading of Article 813 of the New Civil Code shows that its
requirement affects the validity of the dispositions contained in
the holographic will, but not its probate. If the testator fails to
sign and date some of the dispositions, the result is that these
dispositions cannot be effectuated. Such failure, however,
does not render the whole testament void.
Likewise, a holographic will can still be admitted to probate,
notwithstanding non-compliance with the provisions of Article
814. In the case of Kalaw vs. Relova 132 SCRA 237
242 (1984), this Court held:
Ordinarily, when a number of erasures,
corrections, and interlineations made by the
testator in a holographic Will have not been
noted under his signature, . . . the Will is not
thereby invalidated as a whole, but at most only
as respects the particular words erased,
corrected or interlined. Manresa gave an
identical commentary when he said "la omission
de la salvedad no anula el testamento, segun la
regla de jurisprudencia establecida en la
sentencia de 4 de Abril de 1985." 8 (Citations
omitted.)
Thus, unless the unauthenticated alterations, cancellations or
insertions were made on the date of the holographic will or on
testator's signature, 9 their presence does not invalidate the
will itself. 10 The lack of authentication will only result in
disallowance of such changes.
It is also proper to note that the requirements of authentication
of changes and signing and dating of dispositions appear in
provisions (Articles 813 and 814) separate from that which
provides for the necessary conditions for the validity of the
holographic will (Article 810). The distinction can be traced to
Articles 678 and 688 of the Spanish Civil Code, from which the
present provisions covering holographic wills are taken. They
read as follows:
 Art. 678: A will is called holographic when the
testator writes it himself in the form and with the
requisites required in Article 688.
Art. 688: Holographic wills may be executed
only by persons of full age.
In order that the will be valid it must be drawn
on stamped paper corresponding to the year of
its execution, written in its entirety by the
testator and signed by him, and must contain a
statement of the year, month and day of its
execution.
If it should contain any erased, corrected, or
interlined words, the testator must identify them
over his signature.
Foreigners may execute holographic wills in
their own language.
This separation and distinction adds support to the
interpretation that only the requirements of Article 810 of the
New Civil Code — and not those found in Articles 813 and 814
of the same Code — are essential to the probate of a
holographic will.
The Court of Appeals further held that decedent Annie Sand
could not validly dispose of the house and lot located in
Cabadbaran, Agusan del Norte, in its entirety. This is correct
and must be affirmed.
As a general rule, courts in probate proceedings are limited to
pass only upon the extrinsic validity of the will sought to be
probated. However, in exceptional instances, courts are not
powerless to do what the situation constrains them to do, and
pass upon certain provisions of the will. 11 In the case at
bench, decedent herself indubitably stated in her holographic
will that the Cabadbaran property is in the name of her late
father, John H. Sand (which led oppositor Dr. Jose Ajero to
question her conveyance of the same in its entirety). Thus, as
correctly held by respondent court, she cannot validly dispose
of the whole property, which she shares with her father's other
heirs.
IN VIEW WHEREOF, the instant petition is GRANTED. The
Decision of the Court of Appeals in CA-G.R. CV No. 22840,
dated March 30, 1992, is REVERSED and SET ASIDE, except
with respect to the invalidity of the disposition of the entire
house and lot in Cabadbaran, Agusan del Norte. The Decision
of the Regional Trial Court of Quezon City, Branch 94 in Sp.
Proc. No. Q-37171, dated November 19, 1988, admitting to
probate the holographic will of decedent Annie Sand, is hereby
REINSTATED, with the above qualification as regards the
Cabadbaran property. No costs.
SO ORDERED.
Narvasa, C.J., Padilla, Regalado and Mendoza, JJ.,
concur.
G.R. No. L-16749 January 31, 1963
IN THE MATTER OF THE TESTATE ESTATE OF EDWARD
E. CHRISTENSEN, DECEASED.
ADOLFO C. AZNAR, Executor and LUCY CHRISTENSEN,
Heir of the deceased, Executor and Heir-appellees,
vs.
HELEN CHRISTENSEN GARCIA, oppositor-appellant.
M. R. Sotelo for executor and heir-appellees.
Leopoldo M. Abellera and Jovito Salonga for oppositor-
appellant.
LABRADOR, J.:
This is an appeal from a decision of the Court of First Instance
of Davao, Hon. Vicente N. Cusi, Jr., presiding, in Special
Proceeding No. 622 of said court, dated September 14, 1949,
approving among things the final accounts of the executor,
directing the executor to reimburse Maria Lucy Christensen
the amount of P3,600 paid by her to Helen Christensen Garcia
as her legacy, and declaring Maria Lucy Christensen entitled
to the residue of the property to be enjoyed during her lifetime,
and in case of death without issue, one-half of said residue to
be payable to Mrs. Carrie Louise C. Borton, etc., in
accordance with the provisions of the will of the testator
Edward E. Christensen. The will was executed in Manila on
March 5, 1951 and contains the following provisions:
3. I declare ... that I have but ONE (1) child, named
MARIA LUCY CHRISTENSEN (now Mrs. Bernard
Daney), who was born in the Philippines about twenty-
eight years ago, and who is now residing at No. 665
Rodger Young Village, Los Angeles, California, U.S.A.
4. I further declare that I now have no living
ascendants, and no descendants except my above
named daughter, MARIA LUCY CHRISTENSEN
DANEY.
xxx xxx xxx
7. I give, devise and bequeath unto MARIA HELEN
CHRISTENSEN, now married to Eduardo Garcia,
about eighteen years of age and who, notwithstanding
the fact that she was baptized Christensen, is not in
any way related to me, nor has she been at any time
adopted by me, and who, from all information I have
now resides in Egpit, Digos, Davao, Philippines, the
sum of THREE THOUSAND SIX HUNDRED PESOS
(P3,600.00), Philippine Currency the same to be
deposited in trust for the said Maria Helen Christensen
with the Davao Branch of the Philippine National Bank,
and paid to her at the rate of One Hundred Pesos
(P100.00), Philippine Currency per month until the
principal thereof as well as any interest which may
have accrued thereon, is exhausted..
xxx xxx xxx
12. I hereby give, devise and bequeath, unto my well-
beloved daughter, the said MARIA LUCY
CHRISTENSEN DANEY (Mrs. Bernard Daney), now
residing as aforesaid at No. 665 Rodger Young Village,
Los Angeles, California, U.S.A., all the income from the
rest, remainder, and residue of my property and estate,
real, personal and/or mixed, of whatsoever kind or
character, and wheresoever situated, of which I may be
possessed at my death and which may have come to
me from any source whatsoever, during her lifetime: ....
It is in accordance with the above-quoted provisions that the
executor in his final account and project of partition ratified the
payment of only P3,600 to Helen Christensen Garcia and
proposed that the residue of the estate be transferred to his
daughter, Maria Lucy Christensen.
Opposition to the approval of the project of partition was filed
by Helen Christensen Garcia, insofar as it deprives her (Helen)
of her legitime as an acknowledged natural child, she having
been declared by Us in G.R. Nos. L-11483-84 an
acknowledged natural child of the deceased Edward E.
Christensen. The legal grounds of opposition are (a) that the
distribution should be governed by the laws of the Philippines,
and (b) that said order of distribution is contrary thereto insofar
as it denies to Helen Christensen, one of two acknowledged
natural children, one-half of the estate in full ownership. In
amplification of the above grounds it was alleged that the law
that should govern the estate of the deceased Christensen
should not be the internal law of California alone, but the entire
law thereof because several foreign elements are involved,
that the forum is the Philippines and even if the case were
decided in California, Section 946 of the California Civil Code,
which requires that the domicile of the decedent should apply,
should be applicable. It was also alleged that Maria Helen
Christensen having been declared an acknowledged natural
child of the decedent, she is deemed for all purposes
legitimate from the time of her birth.
The court below ruled that as Edward E. Christensen was a
citizen of the United States and of the State of California at the
time of his death, the successional rights and intrinsic validity
of the provisions in his will are to be governed by the law of
California, in accordance with which a testator has the right to
dispose of his property in the way he desires, because the
right of absolute dominion over his property is sacred and
inviolable (In re McDaniel's Estate, 77 Cal. Appl. 2d 877, 176
P. 2d 952, and In re Kaufman, 117 Cal. 286, 49 Pac. 192, cited
in page 179, Record on Appeal). Oppositor Maria Helen
Christensen, through counsel, filed various motions for
reconsideration, but these were denied. Hence, this appeal.
The most important assignments of error are as follows:
I
THE LOWER COURT ERRED IN IGNORING THE DECISION
OF THE HONORABLE SUPREME COURT THAT HELEN IS
THE ACKNOWLEDGED NATURAL CHILD OF EDWARD E.
CHRISTENSEN AND, CONSEQUENTLY, IN DEPRIVING
HER OF HER JUST SHARE IN THE INHERITANCE.
II
THE LOWER COURT ERRED IN ENTIRELY IGNORING
AND/OR FAILING TO RECOGNIZE THE EXISTENCE OF
SEVERAL FACTORS, ELEMENTS AND CIRCUMSTANCES
CALLING FOR THE APPLICATION OF INTERNAL LAW.
III
THE LOWER COURT ERRED IN FAILING TO RECOGNIZE
THAT UNDER INTERNATIONAL LAW, PARTICULARLY
UNDER THE RENVOI DOCTRINE, THE INTRINSIC
VALIDITY OF THE TESTAMENTARY DISPOSITION OF THE
DISTRIBUTION OF THE ESTATE OF THE DECEASED
EDWARD E. CHRISTENSEN SHOULD BE GOVERNED BY
THE LAWS OF THE PHILIPPINES.
IV
THE LOWER COURT ERRED IN NOT DECLARING THAT
THE SCHEDULE OF DISTRIBUTION SUBMITTED BY THE
EXECUTOR IS CONTRARY TO THE PHILIPPINE LAWS.
V
THE LOWER COURT ERRED IN NOT DECLARING THAT
UNDER THE PHILIPPINE LAWS HELEN CHRISTENSEN
GARCIA IS ENTITLED TO ONE-HALF (1/2) OF THE ESTATE
IN FULL OWNERSHIP.
There is no question that Edward E. Christensen was a citizen
of the United States and of the State of California at the time of
his death. But there is also no question that at the time of his
death he was domiciled in the Philippines, as witness the
following facts admitted by the executor himself in appellee's
brief:
In the proceedings for admission of the will to probate,
the facts of record show that the deceased Edward E.
Christensen was born on November 29, 1875 in New
York City, N.Y., U.S.A.; his first arrival in the Philippines,
as an appointed school teacher, was on July 1, 1901,
on board the U.S. Army Transport "Sheridan" with Port
of Embarkation as the City of San Francisco, in the
State of California, U.S.A. He stayed in the Philippines
until 1904.
In December, 1904, Mr. Christensen returned to the
United States and stayed there for the following nine
years until 1913, during which time he resided in, and
was teaching school in Sacramento, California.
Mr. Christensen's next arrival in the Philippines was in
July of the year 1913. However, in 1928, he again
departed the Philippines for the United States and
came back here the following year, 1929. Some nine
years later, in 1938, he again returned to his own
country, and came back to the Philippines the following
year, 1939.
Wherefore, the parties respectfully pray that the
foregoing stipulation of facts be admitted and approved
by this Honorable Court, without prejudice to the
parties adducing other evidence to prove their case not
covered by this stipulation of facts. 1äwphï1.ñët
Being an American citizen, Mr. Christensen was
interned by the Japanese Military Forces in the
Philippines during World War II. Upon liberation, in April
1945, he left for the United States but returned to the
Philippines in December, 1945. Appellees Collective
Exhibits "6", CFI Davao, Sp. Proc. 622, as Exhibits
"AA", "BB" and "CC-Daney"; Exhs. "MM", "MM-l", "MM-
2-Daney" and p. 473, t.s.n., July 21, 1953.)
In April, 1951, Edward E. Christensen returned once
more to California shortly after the making of his last
will and testament (now in question herein) which he
executed at his lawyers' offices in Manila on March 5,
1951. He died at the St. Luke's Hospital in the City of
Manila on April 30, 1953. (pp. 2-3)
In arriving at the conclusion that the domicile of the deceased
is the Philippines, we are persuaded by the fact that he was
born in New York, migrated to California and resided there for
nine years, and since he came to the Philippines in 1913 he
returned to California very rarely and only for short visits
(perhaps to relatives), and considering that he appears never
to have owned or acquired a home or properties in that state,
which would indicate that he would ultimately abandon the
Philippines and make home in the State of California.
 Sec. 16. Residence is a term used with many shades
of meaning from mere temporary presence to the most
permanent abode. Generally, however, it is used to
denote something more than mere physical presence.
(Goodrich on Conflict of Laws, p. 29)
As to his citizenship, however, We find that the citizenship that
he acquired in California when he resided in Sacramento,
California from 1904 to 1913, was never lost by his stay in the
Philippines, for the latter was a territory of the United States
(not a state) until 1946 and the deceased appears to have
considered himself as a citizen of California by the fact that
when he executed his will in 1951 he declared that he was a
citizen of that State; so that he appears never to have intended
to abandon his California citizenship by acquiring another. This
conclusion is in accordance with the following principle
expounded by Goodrich in his Conflict of Laws.
The terms "'residence" and "domicile" might well be
taken to mean the same thing, a place of permanent
abode. But domicile, as has been shown, has acquired
a technical meaning. Thus one may be domiciled in a
place where he has never been. And he may reside in
a place where he has no domicile. The man with two
homes, between which he divides his time, certainly
resides in each one, while living in it. But if he went on
business which would require his presence for several
weeks or months, he might properly be said to have
sufficient connection with the place to be called a
resident. It is clear, however, that, if he treated his
settlement as continuing only for the particular
business in hand, not giving up his former "home," he
could not be a domiciled New Yorker. Acquisition of a
domicile of choice requires the exercise of intention as
well as physical presence. "Residence simply requires
bodily presence of an inhabitant in a given place, while
domicile requires bodily presence in that place and
also an intention to make it one's domicile." Residence,
however, is a term used with many shades of meaning,
from the merest temporary presence to the most
permanent abode, and it is not safe to insist that any
one use et the only proper one. (Goodrich, p. 29)
The law that governs the validity of his testamentary
dispositions is defined in Article 16 of the Civil Code of the
Philippines, which is as follows:
ART. 16. Real property as well as personal property is
subject to the law of the country where it is situated.
However, intestate and testamentary successions, both
with respect to the order of succession and to the
amount of successional rights and to the intrinsic
validity of testamentary provisions, shall be regulated
by the national law of the person whose succession is
under consideration, whatever may be the nature of the
property and regardless of the country where said
property may be found.
The application of this article in the case at bar requires the
determination of the meaning of the term "national law"is used
therein.
There is no single American law governing the validity of
testamentary provisions in the United States, each state of the
Union having its own private law applicable to its citizens only
and in force only within the state. The "national law" indicated
in Article 16 of the Civil Code above quoted can not, therefore,
possibly mean or apply to any general American law. So it can
refer to no other than the private law of the State of California.
The next question is: What is the law in California governing
the disposition of personal property? The decision of the court
below, sustains the contention of the executor-appellee that
under the California Probate Code, a testator may dispose of
his property by will in the form and manner he desires, citing
the case of Estate of McDaniel, 77 Cal. Appl. 2d 877, 176 P.
2d 952. But appellant invokes the provisions of Article 946 of
the Civil Code of California, which is as follows:
If there is no law to the contrary, in the place where
personal property is situated, it is deemed to follow the
person of its owner, and is governed by the law of his
domicile.
The existence of this provision is alleged in appellant's
opposition and is not denied. We have checked it in the
California Civil Code and it is there. Appellee, on the other
hand, relies on the case cited in the decision and testified to by
a witness. (Only the case of Kaufman is correctly cited.) It is
argued on executor's behalf that as the deceased Christensen
was a citizen of the State of California, the internal law thereof,
which is that given in the abovecited case, should govern the
determination of the validity of the testamentary provisions of
Christensen's will, such law being in force in the State of
California of which Christensen was a citizen. Appellant, on the
other hand, insists that Article 946 should be applicable, and in
accordance therewith and following the doctrine of the renvoi,
the question of the validity of the testamentary provision in
question should be referred back to the law of the decedent's
domicile, which is the Philippines.
The theory of doctrine of renvoi has been defined by various
authors, thus:
The problem has been stated in this way: "When the
Conflict of Laws rule of the forum refers a jural matter
to a foreign law for decision, is the reference to the
purely internal rules of law of the foreign system; i.e., to
the totality of the foreign law minus its Conflict of Laws
rules?"
On logic, the solution is not an easy one. The Michigan
court chose to accept the renvoi, that is, applied the
Conflict of Laws rule of Illinois which referred the
matter back to Michigan law. But once having
determined the the Conflict of Laws principle is the rule
looked to, it is difficult to see why the reference back
should not have been to Michigan Conflict of Laws.
This would have resulted in the "endless chain of
references" which has so often been criticized be legal
writers. The opponents of the renvoi would have looked
merely to the internal law of Illinois, thus rejecting the
renvoi or the reference back. Yet there seems no
compelling logical reason why the original reference
should be the internal law rather than to the Conflict of
Laws rule. It is true that such a solution avoids going
on a merry-go-round, but those who have accepted
the renvoi theory avoid this inextricabilis circulas by
getting off at the second reference and at that point
applying internal law. Perhaps the opponents of
the renvoi are a bit more consistent for they look
always to internal law as the rule of reference.
Strangely enough, both the advocates for and the
objectors to the renvoi plead that greater uniformity will
result from adoption of their respective views. And still
more strange is the fact that the only way to achieve
uniformity in this choice-of-law problem is if in the
dispute the two states whose laws form the legal basis
of the litigation disagree as to whether
the renvoi should be accepted. If both reject, or both
accept the doctrine, the result of the litigation will vary
with the choice of the forum. In the case stated above,
had the Michigan court rejected the renvoi, judgment
would have been against the woman; if the suit had
been brought in the Illinois courts, and they too
rejected the renvoi, judgment would be for the woman.
The same result would happen, though the courts
would switch with respect to which would hold liability,
if both courts accepted the renvoi.
The Restatement accepts the renvoi theory in two
instances: where the title to land is in question, and
where the validity of a decree of divorce is challenged.
In these cases the Conflict of Laws rule of the situs of
the land, or the domicile of the parties in the divorce
case, is applied by the forum, but any further reference
goes only to the internal law. Thus, a person's title to
land, recognized by the situs, will be recognized by
every court; and every divorce, valid by the domicile of
the parties, will be valid everywhere. (Goodrich,
Conflict of Laws, Sec. 7, pp. 13-14.)
X, a citizen of Massachusetts, dies intestate, domiciled
in France, leaving movable property in Massachusetts,
England, and France. The question arises as to how
this property is to be distributed among X's next of kin.
Assume (1) that this question arises in a
Massachusetts court. There the rule of the conflict of
laws as to intestate succession to movables calls for an
application of the law of the deceased's last domicile.
Since by hypothesis X's last domicile was France, the
natural thing for the Massachusetts court to do would
be to turn to French statute of distributions, or whatever
corresponds thereto in French law, and decree a
distribution accordingly. An examination of French law,
however, would show that if a French court were called
upon to determine how this property should be
distributed, it would refer the distribution to the national
law of the deceased, thus applying the Massachusetts
statute of distributions. So on the surface of things the
Massachusetts court has open to it alternative course
of action: (a) either to apply the French law is to
intestate succession, or (b) to resolve itself into a
French court and apply the Massachusetts statute of
distributions, on the assumption that this is what a
French court would do. If it accepts the so-
called renvoidoctrine, it will follow the latter course,
thus applying its own law.
This is one type of renvoi. A jural matter is presented
which the conflict-of-laws rule of the forum refers to a
foreign law, the conflict-of-laws rule of which, in turn,
refers the matter back again to the law of the forum.
This is renvoi in the narrower sense. The German term
for this judicial process is 'Ruckverweisung.'" (Harvard
Law Review, Vol. 31, pp. 523-571.)
After a decision has been arrived at that a foreign law
is to be resorted to as governing a particular case, the
further question may arise: Are the rules as to the
conflict of laws contained in such foreign law also to be
resorted to? This is a question which, while it has been
considered by the courts in but a few instances, has
been the subject of frequent discussion by textwriters
and essayists; and the doctrine involved has been
descriptively designated by them as the "Renvoyer" to
send back, or the "Ruchversweisung", or the
"Weiterverweisung", since an affirmative answer to the
question postulated and the operation of the adoption
of the foreign law in toto would in many cases result in
returning the main controversy to be decided according
to the law of the forum. ... (16 C.J.S. 872.)
 Another theory, known as the "doctrine of renvoi", has
been advanced. The theory of the doctrine of renvoi is
that the court of the forum, in determining the question
before it, must take into account the whole law of the
other jurisdiction, but also its rules as to conflict of
laws, and then apply the law to the actual question
which the rules of the other jurisdiction prescribe. This
may be the law of the forum. The doctrine of
the renvoi has generally been repudiated by the
American authorities. (2 Am. Jur. 296)
The scope of the theory of renvoi has also been defined and
the reasons for its application in a country explained by Prof.
Lorenzen in an article in the Yale Law Journal, Vol. 27, 1917-
1918, pp. 529-531. The pertinent parts of the article are
quoted herein below:
The recognition of the renvoi theory implies that the
rules of the conflict of laws are to be understood as
incorporating not only the ordinary or internal law of the
foreign state or country, but its rules of the conflict of
laws as well. According to this theory 'the law of a
country' means the whole of its law.
xxx xxx xxx
Von Bar presented his views at the meeting of the
Institute of International Law, at Neuchatel, in 1900, in
the form of the following theses:
(1) Every court shall observe the law of its country as
regards the application of foreign laws.
(2) Provided that no express provision to the contrary
exists, the court shall respect:
(a) The provisions of a foreign law which
disclaims the right to bind its nationals abroad
as regards their personal statute, and desires
that said personal statute shall be determined
by the law of the domicile, or even by the law of
the place where the act in question occurred.
(b) The decision of two or more foreign systems
of law, provided it be certain that one of them is
necessarily competent, which agree in
attributing the determination of a question to the
same system of law.
xxx xxx xxx
If, for example, the English law directs its judge to
distribute the personal estate of an Englishman who
has died domiciled in Belgium in accordance with the
law of his domicile, he must first inquire whether the
law of Belgium would distribute personal property upon
death in accordance with the law of domicile, and if he
finds that the Belgian law would make the distribution
in accordance with the law of nationality — that is the
English law — he must accept this reference back to
his own law.
We note that Article 946 of the California Civil Code is its
conflict of laws rule, while the rule applied in In re
Kaufman, Supra, its internal law. If the law on succession and
the conflict of laws rules of California are to be enforced jointly,
each in its own intended and appropriate sphere, the principle
cited In re Kaufman should apply to citizens living in the State,
but Article 946 should apply to such of its citizens as are not
domiciled in California but in other jurisdictions. The rule laid
down of resorting to the law of the domicile in the
determination of matters with foreign element involved is in
accord with the general principle of American law that the
domiciliary law should govern in most matters or rights which
follow the person of the owner.
When a man dies leaving personal property in one or
more states, and leaves a will directing the manner of
distribution of the property, the law of the state where
he was domiciled at the time of his death will be looked
to in deciding legal questions about the will, almost as
completely as the law of situs is consulted in questions
about the devise of land. It is logical that, since the
domiciliary rules control devolution of the personal
estate in case of intestate succession, the same rules
should determine the validity of an attempted
testamentary dispostion of the property. Here, also, it is
not that the domiciliary has effect beyond the borders
of the domiciliary state. The rules of the domicile are
recognized as controlling by the Conflict of Laws rules
at the situs property, and the reason for the recognition
as in the case of intestate succession, is the general
convenience of the doctrine. The New York court has
said on the point: 'The general principle that a
dispostiton of a personal property, valid at the domicile
of the owner, is valid anywhere, is one of the universal
application. It had its origin in that international comity
which was one of the first fruits of civilization, and it this
age, when business intercourse and the process of
accumulating property take but little notice of boundary
lines, the practical wisdom and justice of the rule is
more apparent than ever. (Goodrich, Conflict of Laws,
Sec. 164, pp. 442-443.)
Appellees argue that what Article 16 of the Civil Code of the
Philippines pointed out as the national law is the internal law of
California. But as above explained the laws of California have
prescribed two sets of laws for its citizens, one for residents
therein and another for those domiciled in other jurisdictions.
Reason demands that We should enforce the California
internal law prescribed for its citizens residing therein, and
enforce the conflict of laws rules for the citizens domiciled
abroad. If we must enforce the law of California as in comity
we are bound to go, as so declared in Article 16 of our Civil
Code, then we must enforce the law of California in
accordance with the express mandate thereof and as above
explained, i.e., apply the internal law for residents therein, and
its conflict-of-laws rule for those domiciled abroad.
It is argued on appellees' behalf that the clause "if there is no
law to the contrary in the place where the property is situated"
in Sec. 946 of the California Civil Code refers to Article 16 of
the Civil Code of the Philippines and that the law to the
contrary in the Philippines is the provision in said Article 16
that the national law of the deceased should govern. This
contention can not be sustained. As explained in the various
authorities cited above the national law mentioned in Article 16
of our Civil Code is the law on conflict of laws in the California
Civil Code, i.e., Article 946, which authorizes the reference or
return of the question to the law of the testator's domicile. The
conflict of laws rule in California, Article 946, Civil Code,
precisely refers back the case, when a decedent is not
domiciled in California, to the law of his domicile, the
Philippines in the case at bar. The court of the domicile can not
and should not refer the case back to California; such action
would leave the issue incapable of determination because the
case will then be like a football, tossed back and forth between
the two states, between the country of which the decedent was
a citizen and the country of his domicile. The Philippine court
must apply its own law as directed in the conflict of laws rule of
the state of the decedent, if the question has to be decided,
especially as the application of the internal law of California
provides no legitime for children while the Philippine law, Arts.
887(4) and 894, Civil Code of the Philippines, makes natural
children legally acknowledged forced heirs of the parent
recognizing them.

The Philippine cases (In re Estate of Johnson, 39 Phil. 156;

Riera vs. Palmaroli, 40 Phil. 105; Miciano vs. Brimo, 50 Phil.
867; Babcock Templeton vs. Rider Babcock, 52 Phil. 130; and
Gibbs vs. Government, 59 Phil. 293.) cited by appellees to
support the decision can not possibly apply in the case at bar,
for two important reasons, i.e., the subject in each case does
not appear to be a citizen of a state in the United States but
with domicile in the Philippines, and it does not appear in each
case that there exists in the state of which the subject is a
citizen, a law similar to or identical with Art. 946 of the
California Civil Code.

We therefore find that as the domicile of the deceased

Christensen, a citizen of California, is the Philippines, the
validity of the provisions of his will depriving his acknowledged
natural child, the appellant, should be governed by the
Philippine Law, the domicile, pursuant to Art. 946 of the Civil
Code of California, not by the internal law of California..

WHEREFORE, the decision appealed from is hereby reversed

and the case returned to the lower court with instructions that
the partition be made as the Philippine law on succession
provides. Judgment reversed, with costs against appellees.

Padilla, Bautista Angelo, Concepcion, Reyes, Barrera,

Paredes, Dizon, Regala and Makalintal, JJ., concur.
Bengzon, C.J., took no part.
G.R. No. L-23678 June 6, 1967
TESTATE ESTATE OF AMOS G. BELLIS, deceased.
PEOPLE'S BANK and TRUST COMPANY, executor.
MARIA CRISTINA BELLIS and MIRIAM PALMA
BELLIS, oppositors-appellants,
vs.
EDWARD A. BELLIS, ET AL., heirs-appellees.
Vicente R. Macasaet and Jose D. Villena for oppositors
appellants.
Paredes, Poblador, Cruz and Nazareno for heirs-appellees E.
A. Bellis, et al.
Quijano and Arroyo for heirs-appellees W. S. Bellis, et al.
J. R. Balonkita for appellee People's Bank & Trust Company.
Ozaeta, Gibbs and Ozaeta for appellee A. B. Allsman.
BENGZON, J.P., J.:
This is a direct appeal to Us, upon a question purely of law,
from an order of the Court of First Instance of Manila dated
April 30, 1964, approving the project of partition filed by the
executor in Civil Case No. 37089 therein.1äwphï1.ñët
The facts of the case are as follows:
Amos G. Bellis, born in Texas, was "a citizen of the State of
Texas and of the United States." By his first wife, Mary E.
Mallen, whom he divorced, he had five legitimate children:
Edward A. Bellis, George Bellis (who pre-deceased him in
infancy), Henry A. Bellis, Alexander Bellis and Anna Bellis
Allsman; by his second wife, Violet Kennedy, who survived
him, he had three legitimate children: Edwin G. Bellis, Walter
S. Bellis and Dorothy Bellis; and finally, he had three
illegitimate children: Amos Bellis, Jr., Maria Cristina Bellis and
Miriam Palma Bellis.
On August 5, 1952, Amos G. Bellis executed a will in the
Philippines, in which he directed that after all taxes,
obligations, and expenses of administration are paid for, his
distributable estate should be divided, in trust, in the following
order and manner: (a) $240,000.00 to his first wife, Mary E.
Mallen; (b) P120,000.00 to his three illegitimate children, Amos
Bellis, Jr., Maria Cristina Bellis, Miriam Palma Bellis, or
P40,000.00 each and (c) after the foregoing two items have
been satisfied, the remainder shall go to his seven surviving
children by his first and second wives, namely: Edward A.
Bellis, Henry A. Bellis, Alexander Bellis and Anna Bellis
Allsman, Edwin G. Bellis, Walter S. Bellis, and Dorothy E.
Bellis, in equal shares.1äwphï1.ñët
Subsequently, or on July 8, 1958, Amos G. Bellis died a
resident of San Antonio, Texas, U.S.A. His will was admitted to
probate in the Court of First Instance of Manila on September
15, 1958.
The People's Bank and Trust Company, as executor of the will,
paid all the bequests therein including the amount of
$240,000.00 in the form of shares of stock to Mary E. Mallen
and to the three (3) illegitimate children, Amos Bellis, Jr., Maria
Cristina Bellis and Miriam Palma Bellis, various amounts
totalling P40,000.00 each in satisfaction of their respective
legacies, or a total of P120,000.00, which it released from time
to time according as the lower court approved and allowed the
various motions or petitions filed by the latter three requesting
partial advances on account of their respective legacies.
On January 8, 1964, preparatory to closing its administration,
the executor submitted and filed its "Executor's Final Account,
Report of Administration and Project of Partition" wherein it
reported, inter alia, the satisfaction of the legacy of Mary E.
Mallen by the delivery to her of shares of stock amounting to
$240,000.00, and the legacies of Amos Bellis, Jr., Maria
Cristina Bellis and Miriam Palma Bellis in the amount of
P40,000.00 each or a total of P120,000.00. In the project of
partition, the executor — pursuant to the "Twelfth" clause of
the testator's Last Will and Testament — divided the residuary
estate into seven equal portions for the benefit of the testator's
seven legitimate children by his first and second marriages.
On January 17, 1964, Maria Cristina Bellis and Miriam Palma
Bellis filed their respective oppositions to the project of
partition on the ground that they were deprived of their
legitimes as illegitimate children and, therefore, compulsory
heirs of the deceased.
Amos Bellis, Jr. interposed no opposition despite notice to him,
proof of service of which is evidenced by the registry receipt
submitted on April 27, 1964 by the executor.1
After the parties filed their respective memoranda and other
pertinent pleadings, the lower court, on April 30, 1964, issued
an order overruling the oppositions and approving the
executor's final account, report and administration and project
of partition. Relying upon Art. 16 of the Civil Code, it applied
the national law of the decedent, which in this case is Texas
law, which did not provide for legitimes.
Their respective motions for reconsideration having been
denied by the lower court on June 11, 1964, oppositors-
appellants appealed to this Court to raise the issue of which
law must apply — Texas law or Philippine law.
In this regard, the parties do not submit the case on, nor even
discuss, the doctrine of renvoi, applied by this Court in Aznar
v. Christensen Garcia, L-16749, January 31, 1963. Said
doctrine is usually pertinent where the decedent is a national
of one country, and a domicile of another. In the present case,
it is not disputed that the decedent was both a national of
Texas and a domicile thereof at the time of his death.2 So that
even assuming Texas has a conflict of law rule providing that
the domiciliary system (law of the domicile) should govern, the
same would not result in a reference back (renvoi) to
Philippine law, but would still refer to Texas law. Nonetheless,
if Texas has a conflicts rule adopting the situs theory (lex rei
sitae) calling for the application of the law of the place where
the properties are situated, renvoi would arise, since the
properties here involved are found in the Philippines. In the
absence, however, of proof as to the conflict of law rule of
Texas, it should not be presumed different from
ours.3 Appellants' position is therefore not rested on the
doctrine of renvoi. As stated, they never invoked nor even
mentioned it in their arguments. Rather, they argue that their
case falls under the circumstances mentioned in the third
paragraph of Article 17 in relation to Article 16 of the Civil
Code.
Article 16, par. 2, and Art. 1039 of the Civil Code, render
applicable the national law of the decedent, in intestate or
testamentary successions, with regard to four items: (a) the
order of succession; (b) the amount of successional rights; (e)
the intrinsic validity of the provisions of the will; and (d) the
capacity to succeed. They provide that —
ART. 16. Real property as well as personal property is
subject to the law of the country where it is situated.
However, intestate and testamentary successions, both
with respect to the order of succession and to the
amount of successional rights and to the intrinsic
validity of testamentary provisions, shall be regulated
 by the national law of the person whose succession is
under consideration, whatever may he the nature of the
property and regardless of the country wherein said
property may be found.
ART. 1039. Capacity to succeed is governed by the law
of the nation of the decedent.
Appellants would however counter that Art. 17, paragraph
three, of the Civil Code, stating that —
Prohibitive laws concerning persons, their acts or
property, and those which have for their object public
order, public policy and good customs shall not be
rendered ineffective by laws or judgments
promulgated, or by determinations or conventions
agreed upon in a foreign country.
prevails as the exception to Art. 16, par. 2 of the Civil Code
afore-quoted. This is not correct. Precisely,
Congress deleted the phrase, "notwithstanding the provisions
of this and the next preceding article" when they incorporated
Art. 11 of the old Civil Code as Art. 17 of the new Civil Code,
while reproducing without substantial change the second
paragraph of Art. 10 of the old Civil Code as Art. 16 in the new.
It must have been their purpose to make the second
paragraph of Art. 16 a specific provision in itself which must be
applied in testate and intestate succession. As further
indication of this legislative intent, Congress added a new
provision, under Art. 1039, which decrees that capacity to
succeed is to be governed by the national law of the decedent.
It is therefore evident that whatever public policy or good
customs may be involved in our System of legitimes, Congress
has not intended to extend the same to the succession of
foreign nationals. For it has specifically chosen to leave, inter
alia, the amount of successional rights, to the decedent's
national law. Specific provisions must prevail over general
ones.
Appellants would also point out that the decedent executed
two wills — one to govern his Texas estate and the other his
Philippine estate — arguing from this that he intended
Philippine law to govern his Philippine estate. Assuming that
such was the decedent's intention in executing a separate
Philippine will, it would not alter the law, for as this Court ruled
in Miciano v. Brimo, 50 Phil. 867, 870, a provision in a
foreigner's will to the effect that his properties shall be
distributed in accordance with Philippine law and not with his
national law, is illegal and void, for his national law cannot be
ignored in regard to those matters that Article 10 — now Article
16 — of the Civil Code states said national law should govern.
The parties admit that the decedent, Amos G. Bellis, was a
citizen of the State of Texas, U.S.A., and that under the laws of
Texas, there are no forced heirs or legitimes. Accordingly,
since the intrinsic validity of the provision of the will and the
amount of successional rights are to be determined under
Texas law, the Philippine law on legitimes cannot be applied to
the testacy of Amos G. Bellis.
Wherefore, the order of the probate court is hereby affirmed in
toto, with costs against appellants. So ordered.
Concepcion, C.J., Reyes, J.B.L., Dizon, Regala, Makalintal,
Zaldivar, Sanchez and Castro, JJ., concur.
 [G.R. No. 108581. December 8, 1999]
LOURDES L. DOROTHEO, petitioner, vs. COURT OF
APPEALS, NILDA D. QUINTANA, for Herself and as
Attorney-in-Fact of VICENTE DOROTHEO and
JOSE DOROTHEO, respondents.
DECISION
YNARES-SANTIAGO, J.:
May a last will and testament admitted to probate but
declared intrinsically void in an order that has become final
and executory still be given effect? This is the issue that arose
from the following antecedents:
Private respondents were the legitimate children of
Alejandro Dorotheo and Aniceta Reyes. The latter died in 1969
without her estate being settled. Alejandro died
thereafter. Sometime in 1977, after Alejandros death,
petitioner, who claims to have taken care of Alejandro before
he died, filed a special proceeding for the probate of the latters
last will and testament. In 1981, the court issued an order
admitting Alejandros will to probate. Private respondents did
not appeal from said order. In 1983, they filed a Motion To
Declare The Will Intrinsically Void. The trial court granted the
motion and issued an order, the dispositive portion of which
reads:
WHEREFORE, in view of the foregoing, Order is hereby
issued declaring Lourdes Legaspi not the wife of the late
Alejandro Dorotheo, the provisions of the last will and
testament of Alejandro Dorotheo as intrinsically void, and
declaring the oppositors Vicente Dorotheo, Jose Dorotheo and
Nilda Dorotheo Quintana as the only heirs of the late spouses
Alejandro Dorotheo and Aniceta Reyes, whose respective
estates shall be liquidated and distributed according to the
laws on intestacy upon payment of estate and other taxes due
to the government.[1]
Petitioner moved for reconsideration arguing that she is
entitled to some compensation since she took care of
Alejandro prior to his death although she admitted that they
were not married to each other.Upon denial of her motion for
reconsideration, petitioner appealed to the Court of Appeals,
but the same was dismissed for failure to file appellants brief
within the extended period granted.[2] This dismissal became
final and executory on February 3, 1989 and a corresponding
entry of judgment was forthwith issued by the Court of Appeals
on May 16, 1989. A writ of execution was issued by the lower
court to implement the final and executory
Order. Consequently, private respondents filed several
motions including a motion to compel petitioner to surrender to
them the Transfer Certificates of Titles (TCT) covering the
properties of the late Alejandro. When petitioner refused to
surrender the TCTs, private respondents filed a motion for
cancellation of said titles and for issuance of new titles in their
names. Petitioner opposed the motion.
An Order was issued on November 29, 1990 by Judge
Zain B. Angas setting aside the final and executory Order
dated January 30, 1986, as well as the Order directing the
issuance of the writ of execution, on the ground that the order
was merely interlocutory, hence not final in character. The
court added that the dispositive portion of the said Order even
directs the distribution of the estate of the deceased
spouses. Private respondents filed a motion for
reconsideration which was denied in an Order dated February
1, 1991. Thus, private respondents filed a petition before the
Court of Appeals, which nullified the two assailed Orders dated
November 29, 1990 and February 1, 1991.
Aggrieved, petitioner instituted a petition for review
arguing that the case filed by private respondents before the
Court of Appeals was a petition under Rule 65 on the ground
of grave abuse of discretion or lack of jurisdiction. Petitioner
contends that in issuing the two assailed orders, Judge Angas
cannot be said to have no jurisdiction because he was
particularly designated to hear the case. Petitioner likewise
assails the Order of the Court of Appeals upholding the validity
of the January 30, 1986 Order which declared the intrinsic
invalidity of Alejandros will that was earlier admitted to probate.
Petitioner also filed a motion to reinstate her as executrix
of the estate of the late Alejandro and to maintain the status
quo or lease of the premises thereon to third parties. [3] Private
respondents opposed the motion on the ground that petitioner
has no interest in the estate since she is not the lawful wife of
the late Alejandro.
The petition is without merit. A final and executory
decision or order can no longer be disturbed or reopened no
matter how erroneous it may be. In setting aside the January
30, 1986 Order that has attained finality, the trial court in effect
nullified the entry of judgment made by the Court of Appeals. It
is well settled that a lower court cannot reverse or set aside
decisions or orders of a superior court, for to do so would be to
negate the hierarchy of courts and nullify the essence of
review. It has been ruled that a final judgment on probated will,
albeit erroneous, is binding on the whole world.[4]
It has been consistently held that if no appeal is taken in
due time from a judgment or order of the trial court, the same
attains finality by mere lapse of time. Thus, the order allowing
the will became final and the question determined by the court
in such order can no longer be raised anew, either in the same
proceedings or in a different motion. The matters of due
execution of the will and the capacity of the testator acquired
the character of res judicata and cannot again be brought into
question, all juridical questions in connection therewith being
for once and forever closed.[5] Such final order makes the will
conclusive against the whole world as to its extrinsic validity
and due execution.[6]
It should be noted that probate proceedings deals
generally with the extrinsic validity of the will sought to be
probated,[7] particularly on three aspects:
whether the will submitted is indeed, the decedents last will
and testament;
compliance with the prescribed formalities for the execution of
wills;
the testamentary capacity of the testator;[8]
and the due execution of the last will and testament.[9]
Under the Civil Code, due execution includes a
determination of whether the testator was of sound and
disposing mind at the time of its execution, that he had freely
executed the will and was not acting under duress, fraud,
menace or undue influence and that the will is genuine and not
a forgery,[10] that he was of the proper testamentary age and
that he is a person not expressly prohibited by law from
making a will.[11]
The intrinsic validity is another matter and questions
regarding the same may still be raised even after the will has
been authenticated.[12] Thus, it does not necessarily follow that
an extrinsically valid last will and testament is always
intrinsically valid. Even if the will was validly executed, if the
testator provides for dispositions that deprives or impairs the
lawful heirs of their legitime or rightful inheritance according to
the laws on succession,[13] the unlawful provisions/dispositions
thereof cannot be given effect. This is specially so when the
courts had already determined in a final and executory
decision that the will is intrinsically void. Such determination
having attained that character of finality is binding on this
Court which will no longer be disturbed. Not that this Court
finds the will to be intrinsically valid, but that a final and
executory decision of which the party had the opportunity to
challenge before the higher tribunals must stand and should
no longer be reevaluated. Failure to avail of the remedies
provided by law constitutes waiver. And if the party does not
avail of other remedies despite its belief that it was aggrieved
by a decision or court action, then it is deemed to have fully
agreed and is satisfied with the decision or order. As early as
1918, it has been declared that public policy and sound
practice demand that, at the risk of occasional errors,
judgments of courts must at some point of time fixed by
law[14] become final otherwise there will be no end to
litigation. Interes rei publicae ut finis sit litium - the very object
of which the courts were constituted was to put an end to
controversies.[15] To fulfill this purpose and to do so speedily,
certain time limits, more or less arbitrary, have to be set up to
spur on the slothful.[16] The only instance where a party
interested in a probate proceeding may have a final liquidation
set aside is when he is left out by reason of circumstances
beyond his control or through mistake or inadvertence not
imputable to negligence,[17] which circumstances do not concur
herein.
Petitioner was privy to the suit calling for the declaration of
the intrinsic invalidity of the will, as she precisely appealed
from an unfavorable order therefrom. Although the final and
executory Order of January 30, 1986 wherein private
respondents were declared as the only heirs do not bind those
who are not parties thereto such as the alleged illegitimate son
of the testator, the same constitutes res judicatawith respect to
those who were parties to the probate proceedings. Petitioner
cannot again raise those matters anew for relitigation
otherwise that would amount to forum-shopping. It should be
remembered that forum shopping also occurs when the same
issue had already been resolved adversely by some other
court.[18] It is clear from the executory order that the estates of
Alejandro and his spouse should be distributed according to
the laws of intestate succession.
Petitioner posits that the January 30, 1986 Order is merely
interlocutory, hence it can still be set aside by the trial court. In
support thereof, petitioner argues that an order merely
declaring who are heirs and the shares to which set of heirs is
entitled cannot be the basis of execution to require delivery of
shares from one person to another particularly when no project
of partition has been filed.[19] The trial court declared in the
January 30, 1986 Order that petitioner is not the legal wife of
Alejandro, whose only heirs are his three legitimate children
(petitioners herein), and at the same time it nullified the will.But
it should be noted that in the same Order, the trial court also
said that the estate of the late spouses be distributed
according to the laws of intestacy. Accordingly, it has no option
but to implement that order of intestate distribution and not to
reopen and again re-examine the intrinsic provisions of the
same will.
It can be clearly inferred from Article 960 of the Civil Code,
on the law of successional rights that testacy is preferred to
intestacy.[20] But before there could be testate distribution, the
will must pass the scrutinizing test and safeguards provided by
law considering that the deceased testator is no longer
available to prove the voluntariness of his actions, aside from
the fact that the transfer of the estate is usually onerous in
nature and that no one is presumed to give - Nemo
praesumitur donare.[21] No intestate distribution of the estate
can be done until and unless the will had failed to pass both its
extrinsic and intrinsic validity. If the will is extrinsically void, the
rules of intestacy apply regardless of the intrinsic validity
thereof. If it is extrinsically valid, the next test is to determine
its intrinsic validity that is whether the provisions of the will are
valid according to the laws of succession. In this case, the
court had ruled that the will of Alejandro was extrinsically valid
but the intrinsic provisions thereof were void.Thus, the rules of
intestacy apply as correctly held by the trial court.
Furthermore, Alejandros disposition in his will of the
alleged share in the conjugal properties of his late spouse,
whom he described as his only beloved wife, is not a valid
reason to reverse a final and executory order. Testamentary
dispositions of properties not belonging exclusively to the
testator or properties which are part of the conjugal regime
cannot be given effect. Matters with respect to who owns the
properties that were disposed of by Alejandro in the void will
may still be properly ventilated and determined in the intestate
proceedings for the settlement of his and that of his late
spouses estate.
Petitioners motion for appointment as administratrix is
rendered moot considering that she was not married to the late
Alejandro and, therefore, is not an heir.
WHEREFORE, the petition is DENIED and the decision
appealed from is AFFIRMED.
SO ORDERED.
Davide, Jr., C.J., (Chairman), Puno, Kapunan, and Pardo,
JJ., concur.
G.R. No. 122880 April 12, 2006
FELIX AZUELA, Petitioner,
vs.
COURT OF APPEALS, GERALDA AIDA CASTILLO
substituted by ERNESTO G. CASTILLO, Respondents.
DECISION
TINGA, J.:
The core of this petition is a highly defective notarial will,
purportedly executed by Eugenia E. Igsolo (decedent), who
died on 16 December 1982 at the age of 80. In refusing to give
legal recognition to the due execution of this document, the
Court is provided the opportunity to assert a few important
doctrinal rules in the execution of notarial wills, all self-evident
in view of Articles 805 and 806 of the Civil Code.
A will whose attestation clause does not contain the
number of pages on which the will is written is fatally
defective. A will whose attestation clause is not signed by
the instrumental witnesses is fatally defective. And
perhaps most importantly, a will which does not contain
an acknowledgment, but a mere jurat, is fatally defective.
Any one of these defects is sufficient to deny probate. A
notarial will with all three defects is just aching for judicial
rejection.
There is a distinct and consequential reason the Civil Code
provides a comprehensive catalog of imperatives for the
proper execution of a notarial will. Full and faithful compliance
with all the detailed requisites under Article 805 of the Code
leave little room for doubt as to the validity in the due
execution of the notarial will. Article 806 likewise imposes
another safeguard to the validity of notarial wills — that they
be acknowledged before a notary public by the testator and
the witnesses. A notarial will executed with indifference to
these two codal provisions opens itself to nagging questions
as to its legitimacy.
The case stems from a petition for probate filed on 10 April
1984 with the Regional Trial Court (RTC) of Manila. The
petition filed by petitioner Felix Azuela sought to admit to
probate the notarial will of Eugenia E. Igsolo, which was
notarized on 10 June 1981. Petitioner is the son of the cousin
of the decedent.
The will, consisting of two (2) pages and written in the
vernacular Pilipino, read in full:
HULING HABILIN NI EUGENIA E. IGSOLO
SA NGALAN NG MAYKAPAL, AMEN:
AKO, si EUGENIA E. IGSOLO, nakatira sa 500 San Diego St.,
Sampaloc, Manila, pitongput siyam (79) na gulang, nasa
hustong pagi-isip, pag-unawa at memoria ay nag-hahayag na
ito na ang aking huling habilin at testamento, at binabali wala
ko lahat ang naunang ginawang habilin o testamento:
Una-Hinihiling ko na ako ay mailibing sa Sementerio del Norte,
La Loma sang-ayong sa kaugalian at patakaran ng simbahang
katoliko at ang taga-pag-ingat (Executor) ng habiling ito ay
magtatayo ng bantayog upang silbing ala-ala sa akin ng aking
pamilya at kaibigan;
Pangalawa-Aking ipinagkakaloob at isinasalin ang lahat ng
karapatan sa aking pamangkin na si Felix Azuela, na siyang
nag-alaga sa akin sa mahabang panahon, yaong mga bahay
na nakatirik sa lote numero 28, Block 24 at nakapangalan sa
Pechaten Korporasyon, ganoon din ibinibigay ko ang lahat ng
karapatan sa bahay na nakatirik sa inoopahan kong lote,
numero 43, Block 24 na pag-aari ng Pechaten Corporation.
Ipinagkakaloob kong buong buo ang lahat ng karapatan sa
bahay at lupa na nasa 500 San Diego St., Lot 42, Block 24,
Sampaloc, Manila kay Felix Azuela at ang pagkakaloob kong
ito ay walang pasubali’t at kondiciones;
Pangatlo- Na ninunumbrahan ko si VART PAGUE na siyang
nagpapatupad ng huling habiling ito at kagustuhan ko rin na
hindi na kailanman siyang mag-lagak ng piyansiya.
Aking nilagdaan ang Huling Habilin na ito dito sa Maynila ika
10 ng Hunyo, 1981.
(Sgd.)
EUGENIA E. IGSOLO
(Tagapagmana)
PATUNAY NG MGA SAKSI
Ang kasulatang ito, na binubuo ng ____ dahon pati ang huling
dahong ito, na ipinahayag sa amin ni Eugenia E. Igsolo,
tagapagmana na siya niyang Huling Habilin, ngayon ika-10 ng
Hunyo 1981, ay nilagdaan ng nasabing tagapagmana sa ilalim
ng kasulatang nabanggit at sa kaliwang panig ng lahat at
bawa’t dahon, sa harap ng lahat at bawa’t sa amin, at kami
namang mga saksi ay lumagda sa harap ng nasabing
tagapagmana at sa harap ng lahat at bawa’t isa sa amin, sa
ilalim ng nasabing kasulatan at sa kaliwang panig ng lahat at
bawa’t dahon ng kasulatan ito.
EUGENIA E. IGSOLO
address: 500 San Diego St.
Sampaloc, Manila Res. Cert. No. A-7717-37
Issued at Manila on March 10, 1981.
QUIRINO AGRAVA
address: 1228-Int. 3, Kahilum
Pandacan, Manila Res. Cert. No. A-458365
Issued at Manila on Jan. 21, 1981
LAMBERTO C. LEAÑO
address: Avenue 2, Blcok 7,
Lot 61, San Gabriel, G.MA., Cavite Res.
Cert. No. A-768277 issued at Carmona, Cavite on Feb. 7,
1981
JUANITO ESTRERA
address: City Court Compound,
City of Manila Res. Cert. No. A574829
Issued at Manila on March 2, 1981.
Nilagdaan ko at ninotario ko ngayong 10 ng Hunyo 10, 1981
dito sa Lungsod ng Maynila.
(Sgd.)
PETRONIO Y. BAUTISTA
Doc. No. 1232 ; NOTARIO PUBLIKO
Page No. 86 ; Until Dec. 31, 1981
Book No. 43 ; PTR-152041-1/2/81-Manila
Series of 1981 TAN # 1437-977-81
The three named witnesses to the will affixed their signatures
on the left-hand margin of both pages of the will, but not at the
bottom of the attestation clause.
The probate petition adverted to only two (2) heirs, legatees
and devisees of the decedent, namely: petitioner himself, and
one Irene Lynn Igsolo, who was alleged to have resided
abroad. Petitioner prayed that the will be allowed, and that
letters testamentary be issued to the designated executor, Vart
Prague.
The petition was opposed by Geralda Aida Castillo (Geralda
Castillo), who represented herself as the attorney-in-fact of
"the 12 legitimate heirs" of the decedent.2 Geralda Castillo
claimed that the will is a forgery, and that the true purpose of
its emergence was so it could be utilized as a defense in
several court cases filed by oppositor against petitioner,
particularly for forcible entry and usurpation of real property, all
centering on petitioner’s right to occupy the properties of the
decedent.3 It also asserted that contrary to the representations
of petitioner, the decedent was actually survived by 12
legitimate heirs, namely her grandchildren, who were then
residing abroad. Per records, it was subsequently alleged that
decedent was the widow of Bonifacio Igsolo, who died in
1965,4 and the mother of a legitimate child, Asuncion E. Igsolo,
who predeceased her mother by three (3) months.5
Oppositor Geralda Castillo also argued that the will was not
executed and attested to in accordance with law. She pointed
out that decedent’s signature did not appear on the second
page of the will, and the will was not properly acknowledged.
These twin arguments are among the central matters to this
petition.
After due trial, the RTC admitted the will to probate, in an
Order dated 10 August 1992.6 The RTC favorably took into
account the testimony of the three (3) witnesses to the will,
Quirino Agrava, Lamberto Leano, and Juanito Estrada. The
RTC also called to fore "the modern tendency in respect to the
formalities in the execution of a will x x x with the end in view
of giving the testator more freedom in expressing his last
wishes;"7 and from this perspective, rebutted oppositor’s
arguments that the will was not properly executed and attested
to in accordance with law.
After a careful examination of the will and consideration of the
testimonies of the subscribing and attesting witnesses, and
having in mind the modern tendency in respect to the
formalities in the execution of a will, i.e., the liberalization of
the interpretation of the law on the formal requirements of a
will with the end in view of giving the testator more freedom in
expressing his last wishes, this Court is persuaded to rule that
the will in question is authentic and had been executed by the
testatrix in accordance with law.
On the issue of lack of acknowledgement, this Court has noted
that at the end of the will after the signature of the testatrix, the
following statement is made under the sub-title, "Patunay Ng
Mga Saksi":
"Ang kasulatang ito, na binubuo ng _____ dahon pati ang
huling dahong ito, na ipinahayag sa amin ni Eugenia N. Igsolo,
tagapagmana na siya niyang Huling Habilin, ngayong ika-10
ng Hunyo 1981, ay nilagdaan ng nasabing tagapagmana sa
ilalim ng kasulatang nabanggit at sa kaliwang panig ng lahat at
bawa’t dahon, sa harap ng lahat at bawa’t sa amin, at kami
namang mga saksi ay lumagda sa harap ng nasabing
tagapagmana at sa harap ng lahat at bawa’t isa sa amin, sa
ilalim ng nasabing kasulatan at sa kaliwang panig ng lahat at
bawa’t dahon ng kasulatan ito."
The aforequoted declaration comprises the attestation clause
and the acknowledgement and is considered by this Court as
a substantial compliance with the requirements of the law.
On the oppositor’s contention that the attestation clause was
not signed by the subscribing witnesses at the bottom thereof,
this Court is of the view that the signing by the subscribing
witnesses on the left margin of the second page of the will
containing the attestation clause and acknowledgment, instead
of at the bottom thereof, substantially satisfies the purpose of
identification and attestation of the will.
With regard to the oppositor’s argument that the will was not
numbered correlatively in letters placed on upper part of each
page and that the attestation did not state the number of
pages thereof, it is worthy to note that the will is composed of
only two pages. The first page contains the entire text of the
testamentary dispositions, and the second page contains the
last portion of the attestation clause and acknowledgement.
Such being so, the defects are not of a serious nature as to
invalidate the will. For the same reason, the failure of the
testatrix to affix her signature on the left margin of the second
page, which contains only the last portion of the attestation
clause and acknowledgment is not a fatal defect.
As regards the oppositor’s assertion that the signature of the
testatrix on the will is a forgery, the testimonies of the three
subscribing witnesses to the will are convincing enough to
establish the genuineness of the signature of the testatrix and
the due execution of the will.8
The Order was appealed to the Court of Appeals by Ernesto
Castillo, who had substituted his since deceased mother-in-
law, Geralda Castillo. In a Decision dated 17 August 1995, the
Court of Appeals reversed the trial court and ordered the
dismissal of the petition for probate.9 The Court of Appeals
noted that the attestation clause failed to state the number of
pages used in the will, thus rendering the will void and
undeserving of probate.10
Hence, the present petition.
Petitioner argues that the requirement under Article 805 of the
Civil Code that "the number of pages used in a notarial will be
stated in the attestation clause" is merely directory, rather than
mandatory, and thus susceptible to what he termed as "the
substantial compliance rule."11
The solution to this case calls for the application of Articles 805
and 806 of the Civil Code, which we replicate in full.
Art. 805. Every will, other than a holographic will, must be
subscribed at the end thereof by the testator himself or by the
testator's name written by some other person in his presence,
and by his express direction, and attested and subscribed by
three or more credible witnesses in the presence of the
testator and of one another.
The testator or the person requested by him to write his name
and the instrumental witnesses of the will, shall also sign, as
aforesaid, each and every page thereof, except the last, on the
left margin, and all the pages shall be numbered correlatively
in letters placed on the upper part of each page.
The attestation shall state the number of pages used upon
which the will is written, and the fact that the testator signed
the will and every page thereof, or caused some other person
to write his name, under his express direction, in the presence
of the instrumental witnesses, and that the latter witnessed
and signed the will and all the pages thereof in the presence of
the testator and of one another.
If the attestation clause is in a language not known to the
witnesses, it shall be interpreted to them.
Art. 806. Every will must be acknowledged before a notary
public by the testator and the witnesses. The notary public
shall not be required to retain a copy of the will, or file another
with the office of the Clerk of Court.
The appellate court, in its Decision, considered only one
defect, the failure of the attestation clause to state the number
of pages of the will. But an examination of the will itself reveals
several more deficiencies.
As admitted by petitioner himself, the attestation clause fails to
state the number of pages of the will.12 There was an
incomplete attempt to comply with this requisite, a space
having been allotted for the insertion of the number of pages in
the attestation clause. Yet the blank was never filled in; hence,
the requisite was left uncomplied with.
The Court of Appeals pounced on this defect in reversing the
trial court, citing in the process Uy Coque v. Navas L.
Sioca13 and In re: Will of Andrada.14 In Uy Coque, the Court
noted that among the defects of the will in question was the
failure of the attestation clause to state the number of pages
contained in the will.15 In ruling that the will could not be
admitted to probate, the Court made the following
consideration which remains highly relevant to this day: "The
purpose of requiring the number of sheets to be stated in the
attestation clause is obvious; the document might easily be
so prepared that the removal of a sheet would completely
change the testamentary dispositions of the will and in
the absence of a statement of the total number of sheets
such removal might be effected by taking out the sheet
and changing the numbers at the top of the following
sheets or pages. If, on the other hand, the total number of
sheets is stated in the attestation clause the falsification of the
document will involve the inserting of new pages and the
forging of the signatures of the testator and witnesses in the
margin, a matter attended with much greater difficulty."16
The case of In re Will of Andrada concerned a will the
attestation clause of which failed to state the number of sheets
or pages used. This consideration alone was sufficient for the
Court to declare "unanim[ity] upon the point that the defect
pointed out in the attesting clause is fatal."17 It was further
observed that "it cannot be denied that the x x x requirement
affords additional security against the danger that the will may
be tampered with; and as the Legislature has seen fit to
prescribe this requirement, it must be considered material."18
Against these cited cases, petitioner cites Singson v.
Florentino19 and Taboada v. Hon. Rosal,20 wherein the Court
allowed probate to the wills concerned therein despite the fact
that the attestation clause did not state the number of pages of
the will. Yet the appellate court itself considered the import of
these two cases, and made the following distinction which
petitioner is unable to rebut, and which we adopt with
approval:
Even a cursory examination of the Will (Exhibit "D"), will
readily show that the attestation does not state the number of
pages used upon which the will is written. Hence, the Will is
void and undeserving of probate.
We are not impervious of the Decisions of the Supreme Court
in "Manuel Singson versus Emilia Florentino, et al., 92 Phil.
161 and Apolonio [Taboada] versus Hon. Avelino Rosal, et al.,
118 SCRA 195," to the effect that a will may still be valid even
if the attestation does not contain the number of pages used
upon which the Will is written. However, the Decisions of the
Supreme Court are not applicable in the aforementioned
appeal at bench. This is so because, in the case of "Manuel
Singson versus Emilia Florentino, et al., supra," although the
attestation in the subject Will did not state the number of
pages used in the will, however, the same was found in the
last part of the body of the Will:
"x x x
The law referred to is article 618 of the Code of Civil
Procedure, as amended by Act No. 2645, which requires that
the attestation clause shall state the number of pages or
sheets upon which the will is written, which requirement has
been held to be mandatory as an effective safeguard against
the possibility of interpolation or omission of some of the
pages of the will to the prejudice of the heirs to whom the
property is intended to be bequeathed (In re Will of Andrada,
42 Phil. 180; Uy Coque vs. Navas L. Sioca, 43 Phil., 405;
Gumban vs. Gorcho, 50 Phil. 30; Quinto vs. Morata, 54 Phil.
481; Echevarria vs. Sarmiento, 66 Phil. 611). The ratio
decidendi of these cases seems to be that the attestation
clause must contain a statement of the number of sheets or
pages composing the will and that if this is missing or is
omitted, it will have the effect of invalidating the will if the
deficiency cannot be supplied, not by evidence aliunde, but by
a consideration or examination of the will itself. But here the
situation is different. While the attestation clause does not
state the number of sheets or pages upon which the will is
written, however, the last part of the body of the will contains a
statement that it is composed of eight pages, which
circumstance in our opinion takes this case out of the rigid rule
of construction and places it within the realm of similar cases
where a broad and more liberal view has been adopted to
prevent the will of the testator from being defeated by purely
technical considerations." (page 165-165, supra)
(Underscoring supplied)
In "Apolonio Tabaoda versus Hon. Avelino Rosal, et al." supra,
the notarial acknowledgement in the Will states the number of
pages used in the:
"x x x
We have examined the will in question and noticed that the
attestation clause failed to state the number of pages used in
writing the will. This would have been a fatal defect were it not
for the fact that, in this case, it is discernible from the entire will
that it is really and actually composed of only two pages duly
signed by the testatrix and her instrumental witnesses. As
earlier stated, the first page which contains the entirety of the
testamentary dispositions is signed by the testatrix at the end
or at the bottom while the instrumental witnesses signed at the
left margin. The other page which is marked as "Pagina dos"
comprises the attestation clause and the
acknowledgment. The acknowledgment itself states that "this
Last Will and Testament consists of two pages including this
page" (pages 200-201, supra) (Underscoring supplied).
However, in the appeal at bench, the number of pages used in
the will is not stated in any part of the Will. The will does not
even contain any notarial acknowledgment wherein the
number of pages of the will should be stated.21
Both Uy Coque and Andrada were decided prior to the
enactment of the Civil Code in 1950, at a time when the
statutory provision governing the formal requirement of wills
was Section
618 of the Code of Civil Procedure.22 Reliance on these cases
remains apropos, considering that the requirement that the
attestation state the number of pages of the will is extant from
Section 618.23 However, the enactment of the Civil Code in
1950 did put in force a rule of interpretation of the
requirements of wills, at least insofar as the attestation clause
is concerned, that may vary from the philosophy that governed
these two cases. Article 809 of the Civil Code states: "In the
absence of bad faith, forgery, or fraud, or undue and improper
pressure and influence, defects and imperfections in the form
of attestation or in the language used therein shall not render
the will invalid if it is proved that the will was in fact executed
and attested in substantial compliance with all the
requirements of article 805."
In the same vein, petitioner cites the report of the Civil Code
Commission, which stated that "the underlying and
fundamental objective permeating the provisions on the [law]
on [wills] in this project consists in the [liberalization] of the
manner of their execution with the end in view of giving the
testator more [freedom] in [expressing] his last wishes. This
objective is in accord with the [modern tendency] in respect to
the formalities in the execution of wills."24 However, petitioner
conveniently omits the qualification offered by the Code
Commission in the very same paragraph he cites from their
report, that such liberalization be "but with sufficient
safeguards and restrictions to prevent the commission of fraud
and the exercise of undue and improper pressure and
influence upon the testator."25
Caneda v. Court of Appeals26 features an extensive discussion
made by Justice Regalado, speaking for the Court on the
conflicting views on the manner of interpretation of the legal
formalities required in the execution of the attestation clause in
wills.27 Uy Coque and Andrada are cited therein, along with
several other cases, as examples of the application of the rule
of strict construction.28 However, the Code Commission opted
to recommend a more liberal construction through the
"substantial compliance rule" under Article 809. A cautionary
note was struck though by Justice J.B.L. Reyes as to how
Article 809 should be applied:
x x x The rule must be limited to disregarding those defects
that can be supplied by an examination of the will itself:
whether all the pages are consecutively numbered; whether
the signatures appear in each and every page; whether the
subscribing witnesses are three or the will was notarized. All
these are facts that the will itself can reveal, and defects or
even omissions concerning them in the attestation clause can
be safely disregarded. But the total number of pages, and
whether all persons required to sign did so in the
presence of each other must substantially appear in the
attestation clause, being the only check against perjury in
the probate proceedings.29 (Emphasis supplied.)
The Court of Appeals did cite these comments by Justice
J.B.L. Reyes in its assailed decision, considering that the
failure to state the number of pages of the will in the attestation
clause is one of the defects which cannot be simply
disregarded. In Caneda itself, the Court refused to allow the
probate of a will whose attestation clause failed to state that
the witnesses subscribed their respective signatures to the will
in the presence of the testator and of each other,30 the other
omission cited by Justice J.B.L. Reyes which to his estimation
cannot be lightly disregarded.
Caneda suggested: "[I]t may thus be stated that the rule, as it
now stands, is that omission which can be supplied by an
examination of the will itself, without the need of resorting to
extrinsic evidence, will not be fatal and, correspondingly, would
not obstruct the allowance to probate of the will being assailed.
However, those omissions which cannot be supplied except by
evidence aliunde would result in the invalidation of the
attestation clause and ultimately, of the will itself."31 Thus, a
failure by the attestation clause to state that the testator signed
every page can be liberally construed, since that fact can be
checked by a visual examination; while a failure by the
attestation clause to state that the witnesses signed in one
another’s presence should be considered a fatal flaw since the
attestation is the only textual guarantee of compliance.32
The failure of the attestation clause to state the number of
pages on which the will was written remains a fatal flaw,
despite Article 809. The purpose of the law in requiring the
clause to state the number of pages on which the will is written
is to safeguard against possible interpolation or omission of
one or some of its pages and to prevent any increase or
decrease in the pages.33 The failure to state the number of
pages equates with the absence of an averment on the part of
the instrumental witnesses as to how many pages consisted
the will, the execution of which they had ostensibly just
witnessed and subscribed to. Following Caneda, there is
substantial compliance with this requirement if the will states
elsewhere in it how many pages it is comprised of, as was the
situation in Singson and Taboada. However, in this case, there
could have been no substantial compliance with the
requirements under Article 805 since there is no statement in
the attestation clause or anywhere in the will itself as to the
number of pages which comprise the will.
At the same time, Article 809 should not deviate from the need
to comply with the formal requirements as enumerated under
Article 805. Whatever the inclinations of the members of the
Code Commission in incorporating Article 805, the fact
remains that they saw fit to prescribe substantially the same
formal requisites as enumerated in Section 618 of the Code of
Civil Procedure, convinced that these remained effective
safeguards against the forgery or intercalation of notarial
wills.34 Compliance with these requirements, however
picayune in impression, affords the public a high degree of
comfort that the testator himself or herself had decided to
convey property post mortem in the manner established in the
will.35 The transcendent legislative intent, even as
expressed in the cited comments of the Code
Commission, is for the fruition of the testator’s
incontestable desires, and not for the indulgent admission
of wills to probate.
The Court could thus end here and affirm the Court of
Appeals. However, an examination of the will itself reveals a
couple of even more critical defects that should necessarily
lead to its rejection.
For one, the attestation clause was not signed by the
instrumental witnesses. While the signatures of the
instrumental witnesses appear on the left-hand margin of the
will, they do not appear at the bottom of the attestation clause
which after all consists of their averments before the notary
public.
Cagro v. Cagro36 is material on this point. As in this case, "the
signatures of the three witnesses to the will do not appear at
the bottom of the attestation clause, although the page
containing the same is signed by the witnesses on the left-
hand margin."37 While three (3) Justices38 considered the
signature requirement had been substantially complied with, a
majority of six (6), speaking through Chief Justice Paras, ruled
that the attestation clause had not been duly signed, rendering
the will fatally defective.
There is no question that the signatures of the three witnesses
to the will do not appear at the bottom of the attestation
clause, although the page containing the same is signed by
the witnesses on the left-hand margin.
We are of the opinion that the position taken by the appellant
is correct. The attestation clause is "a memorandum of the
facts attending the execution of the will" required by law to be
made by the attesting witnesses, and it must necessarily bear
their signatures. An unsigned attestation clause cannot be
considered as an act of the witnesses, since the omission of
their signatures at the bottom thereof negatives their
participation.
The petitioner and appellee contends that signatures of the
three witnesses on the left-hand margin conform substantially
to the law and may be deemed as their signatures to the
attestation clause. This is untenable, because said signatures
are in compliance with the legal mandate that the will be
signed on the left-hand margin of all its pages. If an attestation
clause not signed by the three witnesses at the bottom thereof,
be admitted as sufficient, it would be easy to add such clause
to a will on a subsequent occasion and in the absence of the
testator and any or all of the witnesses.39
The Court today reiterates the continued efficacy of Cagro.
Article 805 particularly segregates the requirement that the
instrumental witnesses sign each page of the will, from the
requisite that the will be "attested and subscribed by [the
instrumental witnesses]." The respective intents behind these
two classes of signature are distinct from each other. The
signatures on the left-hand corner of every page signify,
among others, that the witnesses are aware that the page they
are signing forms part of the will. On the other hand, the
signatures to the attestation clause establish that the
witnesses are referring to the statements contained in the
attestation clause itself. Indeed, the attestation clause is
separate and apart from the disposition of the will. An
unsigned attestation clause results in an unattested will. Even
if the instrumental witnesses signed the left-hand margin of the
page containing the unsigned attestation clause, such
signatures cannot demonstrate these witnesses’ undertakings
in the clause, since the signatures that do appear on the page
were directed towards a wholly different avowal.
The Court may be more charitably disposed had the witnesses
in this case signed the attestation clause itself, but not the left-
hand margin of the page containing such clause. Without
diminishing the value of the instrumental witnesses’ signatures
on each and every page, the fact must be noted that it is the
attestation clause which contains the utterances reduced into
writing of the testamentary witnesses themselves. It is the
witnesses, and not the testator, who are required under Article
805 to state the number of pages used upon which the will is
written; the fact that the testator had signed the will and every
page thereof; and that they witnessed and signed the will and
all the pages thereof in the presence of the testator and of one
another. The only proof in the will that the witnesses have
stated these elemental facts would be their signatures on the
attestation clause.
Thus, the subject will cannot be considered to have been
validly attested to by the instrumental witnesses, as they failed
to sign the attestation clause.
Yet, there is another fatal defect to the will on which the denial
of this petition should also hinge. The requirement under
Article 806 that "every will must be acknowledged before a
notary public by the testator and the witnesses" has also not
been complied with. The importance of this requirement is
highlighted by the fact that it had been segregated from the
other requirements under Article 805 and entrusted into a
separate provision, Article 806. The non-observance of Article
806 in this case is equally as critical as the other cited flaws in
compliance with Article 805, and should be treated as of
equivalent import.
In lieu of an acknowledgment, the notary public, Petronio Y.
Bautista, wrote "Nilagdaan ko at ninotario ko ngayong 10 ng
Hunyo 10 (sic), 1981 dito sa Lungsod ng Maynila."40 By no
manner of contemplation can those words be construed as an
acknowledgment. An acknowledgment is the act of one who
has executed a deed in going before some competent officer
or court and declaring it to be his act or deed.41 It involves an
extra step undertaken whereby the signor actually declares to
the notary that the executor of a document has attested to the
notary that the same is his/her own free act and deed.
It might be possible to construe the averment as a jurat, even
though it does not hew to the usual language thereof. A jurat is
that part of an affidavit where the notary certifies that before
him/her, the document was subscribed and sworn to by the
executor.42 Ordinarily, the language of the jurat should avow
that the document was subscribed and sworn before the
notary public, while in this case, the notary public averred that
he himself "signed and notarized" the document. Possibly
though, the word "ninotario" or "notarized" encompasses the
signing of and swearing in of the executors of the document,
which in this case would involve the decedent and the
instrumental witnesses.
Yet even if we consider what was affixed by the notary public
as a jurat, the will would nonetheless remain invalid, as the
express requirement of Article 806 is that the will be
"acknowledged", and not merely subscribed and sworn to. The
will does not present any textual proof, much less one under
oath, that the decedent and the instrumental witnesses
executed or signed the will as their own free act or deed. The
acknowledgment made in a will provides for another all-
important legal safeguard against spurious wills or those made
beyond the free consent of the testator. An acknowledgement
is not an empty meaningless act.43 The acknowledgment
coerces the testator and the instrumental witnesses to declare
before an officer of the law that they had executed and
subscribed to the will as their own free act or deed. Such
declaration is under oath and under pain of perjury, thus
allowing for the criminal prosecution of persons who
participate in the execution of spurious wills, or those executed
without the free consent of the testator. It also provides a
further degree of assurance that the testator is of certain
mindset in making the testamentary dispositions to those
persons he/she had designated in the will.
It may not have been said before, but we can assert the rule,
self-evident as it is under Article 806. A notarial will that is
not acknowledged before a notary public by the testator
and the witnesses is fatally defective, even if it is
subscribed and sworn to before a notary public.
There are two other requirements under Article 805 which
were not fully satisfied by the will in question. We need not
discuss them at length, as they are no longer material to the
disposition of this case. The provision requires that the testator
and the instrumental witnesses sign each and every page of
the will on the left margin, except the last; and that all the
pages shall be numbered correlatively in letters placed on the
upper part of each page. In this case, the decedent, unlike the
witnesses, failed to sign both pages of the will on the left
margin, her only signature appearing at the so-called "logical
end"44 of the will on its first page. Also, the will itself is not
numbered correlatively in letters on each page, but instead
numbered with Arabic numerals. There is a line of thought that
has disabused the notion that these two requirements be
construed as mandatory.45Taken in isolation, these omissions,
by themselves, may not be sufficient to deny probate to a will.
Yet even as these omissions are not decisive to the
adjudication of this case, they need not be dwelt on, though
indicative as they may be of a general lack of due regard for
the requirements under Article 805 by whoever executed the
will.
All told, the string of mortal defects which the will in question
suffers from makes the probate denial inexorable.
WHEREFORE, the petition is DENIED. Costs against
petitioner.

SO ORDERED.
G.R. No. 74695 September 14, 1993
In the Matter of the Probate of the Last Will and Testament
of the Deceased Brigido Alvarado, CESAR
ALVARADO, petitioner,
vs.
HON. RAMON G. GAVIOLA, JR., Presiding Justice, HON.
MA. ROSARIO QUETULIO LOSA and HON. LEONOR INES
LUCIANO, Associate Justices, Intermediate Appellate
Court, First Division (Civil Cases), and BAYANI MA.
RINO, respondents.
Vicente R. Redor for petitioner.
Bayani Ma. Rino for and in his own behalf.
BELLOSILLO, J.:
Before us is an appeal from the Decision dated 11 April
19861 of the First Civil Cases Division of the then Intermediate
Appellate Court, now Court of Appeals, which affirmed the
Order dated 27 June 19832 of the Regional Trial Court of Sta.
Cruz, Laguna, admitting to probate the last will and
testament3 with codicil4 of the late Brigido Alvarado.
On 5 November 1977, the 79-year old Brigido Alvarado
executed a notarial will entitled "Huling Habilin" wherein he
disinherited an illegitimate son (petitioner) and expressly
revoked a previously executed holographic will at the time
awaiting probate before Branch 4 of the Regional Trial Court of
sta. Cruz, Laguna.
As testified to by the three instrumental witnesses, the notary
public and by private respondent who were present at the
execution, the testator did not read the final draft of the will
himself. Instead, private respondent, as the lawyer who drafted
the eight-paged document, read the same aloud in the
presence of the testator, the three instrumental witnesses and
the notary public. The latter four followed the reading with their
own respective copies previously furnished them.
Meanwhile, Brigido's holographic will was subsequently
admitted to probate on 9 December 1977. On the 29th day of
the same month, a codicil entitled "Kasulatan ng Pagbabago
sa Ilang Pagpapasiya na Nasasaad sa Huling Habilin na may
Petsa Nobiembre 5, 1977 ni Brigido Alvarado" was executed
changing some dispositions in the notarial will to generate
cash for the testator's eye operation. Brigido was then
suffering from glaucoma. But the disinheritance and revocatory
clauses were unchanged. As in the case of the notarial will, the
testator did not personally read the final draft of the codicil.
Instead, it was private respondent who read it aloud in his
presence and in the presence of the three instrumental
witnesses (same as those of the notarial will) and the notary
public who followed the reading using their own copies.
A petition for the probate of the notarial will and codicil was
filed upon the testator's death on 3 January 1979 by private
respondent as executor with the Court of First Instance, now
Regional Trial Court, of Siniloan, Laguna.5Petitioner, in turn,
filed an Opposition on the following grounds: that the will
sought to be probated was not executed and attested as
required by law; that the testator was insane or otherwise
mentally incapacitated to make a will at the time of its
execution due to senility and old age; that the will was
executed under duress, or influence of fear and threats; that it
was procured by undue and improper pressure and influence
on the part of the beneficiary who stands to get the lion's share
of the testator's estate; and lastly, that the signature of the
testator was procured by fraud or trick.
When the oppositor (petitioner) failed to substantiate the
grounds relied upon in the Opposition, a Probate Order was
issued on 27 June 1983 from which an appeal was made to
respondent court. The main thrust of the appeal was that the
deceased was blind within the meaning of the law at the time
his "Huling Habilin" and the codicil attached thereto was
executed; that since the reading required by Art. 808 of the
Civil Code was admittedly not complied with, probate of the
deceased's last will and codicil should have been denied.
On 11 April 1986, the Court of Appeals rendered the decision
under review with the following findings: that Brigido Alvarado
was not blind at the time his last will and codicil were
executed; that assuming his blindness, the reading
requirement of Art. 808 was substantially complied with when
both documents were read aloud to the testator with each of
the three instrumental witnesses and the notary public
following the reading with their respective copies of the
instruments. The appellate court then concluded that although
Art. 808 was not followed to the letter, there was substantial
compliance since its purpose of making known to the testator
the contents of the drafted will was served.
The issues now before us can be stated thus: Was Brigido
Alvarado blind for purpose of Art, 808 at the time his "Huling
Habilin" and its codicil were executed? If so, was the double-
reading requirement of said article complied with?
Regarding the first issue, there is no dispute on the following
facts: Brigido Alvarado was not totally blind at the time the will
and codicil were executed. However, his vision on both eyes
was only of "counting fingers at three (3) feet" by reason of the
glaucoma which he had been suffering from for several years
and even prior to his first consultation with an eye specialist
on
14 December 1977.
The point of dispute is whether the foregoing circumstances
would qualify Brigido as a "blind" testator under Art. 808 which
reads:
Art. 808. If the testator is blind, the will shall be
read to him twice; once, by one of the
subscribing witnesses, and again, by the notary
public before whom the will is acknowledged.
Petitioner contends that although his father was not totally
blind when the will and codicil were executed, he can be so
considered within the scope of the term as it is used in Art.
808. To support his stand, petitioner presented before the trial
court a medical certificate issued by Dr. Salvador R. Salceda,
Director of the Institute of Opthalmology (Philippine Eye
Research Institute),6 the contents of which were interpreted in
layman's terms by Dr. Ruperto Roasa, whose expertise was
admitted by private respondent.7 Dr. Roasa explained that
although the testator could visualize fingers at three (3) feet,
he could no longer read either printed or handwritten matters
as of 14 December 1977, the day of his first consultation.8
On the other hand, the Court of Appeals, contrary to the
medical testimony, held that the testator could still read on the
day the will and the codicil were executed but chose not to do
so because of "poor eyesight."9 Since the testator was still
capable of reading at that time, the court a quo concluded that
Art. 808 need not be complied with.
We agree with petitioner in this respect.
Regardless of respondent's staunch contention that the
testator was still capable of reading at the time his will and
codicil were prepared, the fact remains and this was testified
to by his witnesses, that Brigido did not do so because of his
"poor," 10 "defective," 11 or "blurred"12 vision making it
necessary for private respondent to do the actual reading for
him.
The following pronouncement in Garcia
vs. Vasquez 13 provides an insight into the scope of the term
"blindness" as used in Art. 808, to wit:
The rationale behind the requirement of reading
the will to the testator if he is blind or incapable
of reading the will himself (as when he is
illiterate), is to make the provisions thereof
known to him, so that he may be able to object
if they are not in accordance with his wishes . . .
Clear from the foregoing is that Art. 808 applies not only to
blind testators but also to those who, for one reason or
another, are "incapable of reading the(ir) will(s)." Since Brigido
Alvarado was incapable of reading the final drafts of his will
and codicil on the separate occasions of their execution due to
his "poor," "defective," or "blurred" vision, there can be no
other course for us but to conclude that Brigido Alvarado
comes within the scope of the term "blind" as it is used in Art.
808. Unless the contents were read to him, he had no way of
ascertaining whether or not the lawyer who drafted the will and
codicil did so confortably with his instructions. Hence, to
consider his will as validly executed and entitled to probate, it
is essential that we ascertain whether Art. 808 had been
complied with.
Article 808 requires that in case of testators like Brigido
Alvarado, the will shall be read twice; once, by one of the
instrumental witnesses and, again, by the notary public before
whom the will was acknowledged. The purpose is to make
known to the incapacitated testator the contents of the
document before signing and to give him an opportunity to
object if anything is contrary to his instructions.
That Art. 808 was not followed strictly is beyond cavil. Instead
of the notary public and an instrumental witness, it was the
lawyer (private respondent) who drafted the eight-paged will
and the five-paged codicil who read the same aloud to the
testator, and read them only once, not twice as Art. 808
requires.
Private respondent however insists that there was substantial
compliance and that the single reading suffices for purposes of
the law. On the other hand, petitioner maintains that the only
valid compliance or compliance to the letter and since it is
admitted that neither the notary public nor an instrumental
witness read the contents of the will and codicil to Brigido,
probate of the latter's will and codicil should have been
disallowed.
We sustain private respondent's stand and necessarily, the
petition must be denied.
This Court has held in a number of occasions that substantial
compliance is acceptable where the purpose of the law has
been satisfied, the reason being that the solemnities
surrounding the execution of wills are intended to protect the
testator from all kinds of fraud and trickery but are never
intended to be so rigid and inflexible as to destroy the
testamentary privilege. 14
In the case at bar, private respondent read the testator's will
and codicil aloud in the presence of the testator, his three
instrumental witnesses, and the notary public. Prior and
subsequent thereto, the testator affirmed, upon being asked,
that the contents read corresponded with his instructions. Only
then did the signing and acknowledgement take place. There
is no evidence, and petitioner does not so allege, that the
contents of the will and codicil were not sufficiently made
known and communicated to the testator. On the contrary, with
respect to the "Huling Habilin," the day of the execution was
not the first time that Brigido had affirmed the truth and
authenticity of the contents of the draft. The uncontradicted
testimony of Atty. Rino is that Brigido Alvarado already
acknowledged that the will was drafted in accordance with his
expressed wishes even prior to 5 November 1977 when Atty.
Rino went to the testator's residence precisely for the purpose
of securing his conformity to the draft. 15
Moreover, it was not only Atty. Rino who read the documents
on
5 November and 29 December 1977. The notary public and
the three instrumental witnesses likewise read the will and
codicil, albeit silently. Afterwards, Atty. Nonia de la Pena (the
notary public) and Dr. Crescente O. Evidente (one of the three
instrumental witnesses and the testator's physician) asked the
testator whether the contents of the document were of his own
free will. Brigido answered in the affirmative. 16 With four
persons following the reading word for word with their own
copies, it can be safely concluded that the testator was
reasonably assured that what was read to him (those which he
affirmed were in accordance with his instructions), were the
terms actually appearing on the typewritten documents. This is
especially true when we consider the fact that the three
instrumental witnesses were persons known to the testator,
one being his physician (Dr. Evidente) and another
(Potenciano C. Ranieses) being known to him since childhood.
The spirit behind the law was served though the letter was not.
Although there should be strict compliance with the substantial
requirements of the law in order to insure the authenticity of
the will, the formal imperfections should be brushed aside
when they do not affect its purpose and which, when taken
into account, may only defeat the testator's will. 17
As a final word to convince petitioner of the propriety of the
trial court's Probate Order and its affirmance by the Court of
Appeals, we quote the following pronouncement in Abangan
v. Abangan, 18 to wit:
The object of the solemnities surrounding the
execution of wills is to close the door against
bad faith and fraud, to avoid the substitution of
wills and testaments and to guaranty their truth
and authenticity. Therefore the laws on the
subject should be interpreted in such a way as
to attain these primordial ends. But, on the
other hand, also one must not lose sight of the
fact that it is not the object of the law to restrain
and curtail the exercise of the right to make a
will. So when an interpretation already given
assures such ends, any other interpretation
whatsoever, that adds nothing but demands
more requisites entirely unnecessary, useless
and frustrative of the testator's will, must be
disregarded(emphasis supplied).
Brigido Alvarado had expressed his last wishes in clear and
unmistakable terms in his "Huling Habilin" and the codicil
attached thereto. We are unwilling to cast these aside fro the
mere reason that a legal requirement intended for his
protection was not followed strictly when such compliance had
been rendered unnecessary by the fact that the purpose of the
law, i.e., to make known to the incapacitated testator the
contents of the draft of his will, had already been
accomplished. To reiterate, substantial compliance suffices
where the purpose has been served.

WHEREFORE, the petition is DENIED and the assailed

Decision of respondent Court of Appeals dated 11 April 1986 is
AFFIRMED. Considering the length of time that this case has
remained pending, this decision is immediately executory.
Costs against petitioner.

SO ORDERED.

Cruz, Griño-Aquino, Davide, Jr. and Quiason, JJ., concur.

G.R. No. 76714 June 2, 1994
SALUD TEODORO VDA. DE PEREZ, petitioner,
vs.
HON. ZOTICO A. TOLETE in his capacity as Presiding
Judge, Branch 18, RTC, Bulacan, respondent.
Natividad T. Perez for petitioner.
Benedicto T. Librojo for private respondents.
QUIASON, J.:
This is a petition for certiorari under Rule 65 of the Revised
Rules of Court to set aside the Order dated November 19,
1986 of the Regional Trial Court, Branch 18, Bulacan presided
by respondent Judge Zotico A. Tolete, in Special Proceedings
No. 1793-M.
We grant the petition.
II
Dr. Jose F. Cunanan and his wife, Dr. Evelyn Perez-Cunanan,
who became American citizens, established a successful
medical practice in New York, U.S.A. The Cunanans lived at
No. 2896 Citation Drive, Pompey, Syracuse, New York, with
their children, Jocelyn, 18; Jacqueline, 16; and Josephine, 14.
On August 23, 1979, Dr. Cunanan executed a last will and
testament, bequeathing to his wife "all the remainder" of his
real and personal property at the time of his death
"wheresoever situated" (Rollo, p. 35). In the event he would
survive his wife, he bequeathed all his property to his children
and grandchildren with Dr. Rafael G. Cunanan, Jr. as trustee.
He appointed his wife as executrix of his last will and
testament and Dr. Rafael G. Cunanan, Jr. as substitute
executor. Article VIII of his will states:
If my wife, EVELYN PEREZ-CUNANAN, and I
shall die under such circumstances that there is
not sufficient evidence to determine the order of
our deaths, then it shall be presumed that I
predeceased her, and my estate shall be
administered and distributed, in all respects, in
accordance with such presumption (Rollo, p.
41).
Four days later, on August 27, Dr. Evelyn P. Cunanan
executed her own last will and testament containing the same
provisions as that of the will of her husband. Article VIII of her
will states:
If my husband, JOSE F. CUNANAN, and I shall
die under such circumstances that there is not
sufficient evidence to determine the order of our
deaths, then it shall be presumed that he
predeceased me, and my estate shall be
administered and distributed in all respects, in
accordance with such presumption. (Rollo, p.
31).
On January 9, 1982, Dr. Cunanan and his entire family
perished when they were trapped by fire that gutted their
home. Thereafter, Dr. Rafael G. Cunanan, Jr. as trustee and
substitute executor of the two wills, filed separate proceedings
for the probate thereof with the Surrogate Court of the County
of Onondaga, New York. On April 7, these two wills were
admitted to probate and letters testamentary were issued in
his favor.
On February 21, 1983, Salud Teodoro Perez, the mother of Dr.
Evelyn P. Cunanan, and petitioner herein, filed with the
Regional P. Cunanan, and petitioner herein, filed with the
Regional Trial Court, Malolos, Bulacan a petition for the
reprobate of the two bills ancillary to the probate proceedings
in New York. She also asked that she be appointed the special
administratrix of the estate of the deceased couple consisting
primarily of a farm land in San Miguel, Bulacan.
On March 9, the Regional Trial Court, Branch 16, Malolos,
Bulacan, presided by Judge Gualberto J. de la Llana, issued
an order, directing the issuance of letters of special
administration in favor of petitioner upon her filing of a
P10,000.00 bond. The following day, petitioner posted the
bond and took her oath as special administration.
As her first act of administration, petitioner filed a motion,
praying that the Philippine Life Insurance Company be
directed to deliver the proceeds in the amount of P50,000.00
of the life insurance policy taken by Dr. Jose F. Cunanan with
Dr. Evelyn Perez-Cunanan and their daughter Jocelyn as
beneficiaries. The trial court granted the motion.
Counsel for the Philippine American Life Insurance Company
then filed a manifestation, stating that said company then filed
a manifestation, stating that said company had delivered to
petitioner the amount of P49,765.85, representing the
proceeds of the life insurance policy of Dr. Jose F. Cunanan.
In a motion dated May 19, 1983, petitioner asked that Dr.
Rafael Cunanan, Sr. be ordered to deliver to her a Philippine
Trust Company passbook with P25,594.00 in savings deposit,
and the Family Savings Bank time deposit certificates in the
total amount of P12,412.52.
On May 31, Atty. Federico Alday filed a notice of appearance
as counsel for the heirs of Dr. Jose F. Cunanan, namely, Dr.
Rafael Cunanan, Sr., Priscilla Cunanan Bautista, Lydia
Cunanan Ignacio, Felipe F. Cunanan and Loreto Cunanan
Concepcion (Cunanan heirs). He also manifested that before
receiving petitioner's motion of May 19, 1983, his clients were
unaware of the filing of the testate estate case and therefore,
"in the interest of simple fair play," they should be notified of
the proceedings (Records, p. 110). He prayed for deferment of
the hearing on the motions of May 19, 1983.
Petitioner then filed a counter manifestation dated June 13,
1983, asserting: (1) that the "Cunanan collaterals are neither
heirs nor creditors of the late Dr. Jose F. Cunanan" and
therefore, they had "no legal or proprietary interests to protect"
and "no right to intervene"; (2) that the wills of Dr. Jose F.
Cunanan and Dr. Evelyn Perez-Cunanan, being American
citizens, were executed in accordance with the solemnities
and formalities of New York laws, and produced "effects in this
jurisdiction in accordance with Art. 16 in relation to Art. 816 of
the Civil Code"; (3) that under Article VIII of the two wills, it was
presumed that the husband predeceased the wife; and (4) that
"the Cunanan collaterals are neither distributees, legatees or
beneficiaries, much less, heirs as heirship is only by institution"
under a will or by operation of the law of New York (Records,
pp. 112-113).
On June 23, the probate court granted petitioner's motion of
May 19, 1983. However, on July 21, the Cunanan heirs filed a
motion to nullify the proceedings and to set aside the
appointment of, or to disqualify, petitioner as special
administratrix of the estates of Dr. Jose F. Cunanan and Dr.
Evelyn Perez-Cunanan. The motion stated: (1) that being the
"brothers and sisters and the legal and surviving heirs" of Dr.
Jose F. Cunanan, they had been "deliberately excluded" in the
petition for the probate of the separate wills of the Cunanan
spouses thereby misleading the Bulacan court to believe that
petitioner was the sole heir of the spouses; that such
"misrepresentation" deprived them of their right to "due
process in violation of Section 4, Rule 76 of the Revised Rules
of Court; (2) that Dr. Rafael G. Cunanan, Jr., the executor of
the estate of the Cunanan spouses, was likewise not notified
of the hearings in the Bulacan court; (3) that the
"misrepresentation and concealment committed by" petitioner
rendered her unfit to be a special administratrix; (4) that Dr.
Rafael G. Cunanan, Jr. had, by virtue of a verified power of
attorney, authorized his father,
Dr. Rafael Cunanan, Sr., to be his attorney-in-fact; and (5) that
Dr. Rafael Cunanan, Sr. is qualified to be a regular
administrator "as practically all of the subject estate in the
Philippines belongs to their brother, Dr. Jose F. Cunanan"
(Records, pp. 118-122). Hence, they prayed: (1) that the
proceedings in the case be declared null and void; (2) that the
appointment of petitioner as special administratrix be set
aside; and (3) that Dr. Rafael Cunanan, Sr. be appointed the
regular administrator of the estate of the deceased spouses.
Thereafter, the Cunanan heirs filed a motion requiring
petitioner to submit an inventory or accounting of all monies
received by her in trust for the estate.
In her opposition, petitioner asserted: (1) that she was the
"sole and only heir" of her daughter, Dr. Evelyn Perez-
Cunanan to the exclusion of the "Cunanan collaterals"; hence
they were complete strangers to the proceedings and were not
entitled to notice; (2) that she could not have "concealed" the
name and address of Dr. Rafael G. Cunanan, Jr. because his
name was prominently mentioned not only in the two wills but
also in the decrees of the American surrogate court; (3) that
the rule applicable to the case is Rule 77, not Rule 76,
because it involved the allowance of wills proved outside of the
Philippines and that nowhere in Section 2 of Rule 77 is there a
mention of notice being given to the executor who, by the
same provision, should himself file the necessary ancillary
proceedings in this country; (4) that even if the Bulacan estate
came from the "capital" of Dr. Jose F. Cunanan, he had willed
all his worldly goods to his wife and nothing to his brothers and
sisters; and (5) that Dr. Rafael G. Cunanan, Jr. had unlawfully
disbursed $215,000.00 to the Cunanan heirs, misappropriated
$15,000.00 for himself and irregularly assigned assets of the
estates to his American lawyer (Records, pp. 151-160).
In their reply, the Cunanan heirs stressed that on November
24, 1982, petitioner and the Cunanan heirs had entered into
an agreement in the United States "to settle and divide equally
the estates," and that under Section 2 of Rule 77 the "court
shall fix a time and place for the hearing and cause notice
thereof to be given as in case of an original will presented for
allowance" (Records, pp. 184-185).
Petitioner asked that Dr. Rafael G. Cunanan, Jr. be cited for
contempt of court for failure to comply with the Order of June
23, 1983 and for appropriating money of the estate for his own
benefit. She also alleged that she had impugned the
agreement of November 24, 1982 before the Surrogate Court
of Onondaga, New York which rendered a decision on April 13,
1983, finding that "all assets are payable to Dr. Evelyn P.
Cunanan’s executor to be then distributed pursuant to EPTL4-
1.1 subd [a] par [4]" (Rollo, p. 52).
On their part, the Cunanan heirs replied that petitioner was
estopped from claiming that they were heirs by the agreement
to divide equally the estates. They asserted that by virtue of
Section 2 of Rule 77 of the Rules of Court, the provisions of
Sections 3, 4 and 5 of Rule 76 on the requirement of notice to
all heirs, executors, devisees and legatees must be complied
with. They reiterated their prayer: (1) that the proceedings in
the case be nullified; (2) that petitioner be disqualified as
special administratrix; (3) that she be ordered to submit an
inventory of all goods, chattels and monies which she had
received and to surrender the same to the court; and (4) that
Dr. Rafael Cunanan, Sr. be appointed the regular
administrator.
Petitioner filed a rejoinder, stating that in violation of the April
13, 1983 decision of the American court Dr. Rafael G.
Cunanan, Jr. made "unauthorized disbursements from the
estates as early as July 7, 1982" (Records, p. 231). Thereafter,
petitioner moved for the suspension of the proceedings as she
had "to attend to the settlement proceedings" of the estate of
the Cunanan spouses in New York (Records, p. 242). The
Cunanans heirs opposed this motion and filed a manifestation,
stating that petitioner had received $215,000.00 "from the
Surrogate’s Court as part of legacy" based on the aforesaid
agreement of November 24, 1982 (Records, p. 248).
On February 21, 1984, Judge de la Llana issued an order,
disallowing the reprobate of the two wills, recalling the
appointment of petitioner as special administratrix, requiring
the submission of petitioner of an inventory of the property
received by her as special administratrix and declaring all
pending incidents moot and academic. Judge de la Llana
reasoned out that petitioner failed to prove the law of New York
on procedure and allowance of wills and the court had no way
of telling whether the wills were executed in accordance with
the law of New York. In the absence of such evidence, the
presumption is that the law of succession of the foreign
country is the same as the law of the Philippines. However, he
noted, that there were only two witnesses to the wills of the
Cunanan spouses and the Philippine law requires three
witnesses and that the wills were not signed on each and
every page, a requirement of the Philippine law.
On August 27, 1985, petitioner filed a motion for
reconsideration of the Order dated February 21, 1984, where
she had sufficiently proven the applicable laws of New York
governing the execution of last wills and testaments.
On the same day, Judge de la Llana issued another order,
denying the motion of petitioner for the suspension of the
proceedings but gave her 15 days upon arrival in the country
within which to act on the other order issued that same day.
Contending that the second portion of the second order left its
finality to the discretion of counsel for petitioner, the Cunanans
filed a motion for the reconsideration of the objectionable
portion of the said order so that it would conform with the
pertinent provisions of the Judiciary Reorganization Act of
1980 and the Interim Rules of Court.
On April 30, 1985, the respondent Judge of Branch 18 of the
Regional Trial Court, Malolos, to which the reprobate case was
reassigned, issued an order stating that "(W)hen the last will
and testament . . . was denied probate," the case was
terminated and therefore all orders theretofore issued should
be given finality. The same Order amended the February 21,
1984 Order by requiring petitioner to turn over to the estate the
inventoried property. It considered the proceedings for all
intents and purposes, closed (Records,
p. 302).
On August 12, petitioner filed a motion to resume proceedings
on account of the final settlement and termination of the
probate cases in New York. Three days later, petitioner filed a
motion praying for the reconsideration of the Order of April 30,
1985 on the strength of the February 21, 1984 Order granting
her a period of 15 days upon arrival in the country within which
to act on the denial of probate of the wills of the Cunanan
spouses. On August 19, respondent Judge granted the motion
and reconsidered the Order of April 30, 1985.
On August 29, counsel for petitioner, who happens to be her
daughter, Natividad, filed a motion praying that since petitioner
was ailing in Fort Lee, New Jersey, U.S.A. and therefore
incapacitated to act as special administratrix, she (the counsel)
should be named substitute special administratrix. She also
filed a motion for the reconsideration of the Order of February
21, 1984, denying probate to the wills of the Cunanan
spouses, alleging that respondent Judge "failed to appreciate
the significant probative value of the exhibits . . . which all refer
to the offer and admission to probate of the last wills of the
Cunanan spouses including all procedures undertaken and
decrees issued in connection with the said probate" (Records,
pp. 313-323).
Thereafter, the Cunanans heirs filed a motion for
reconsideration of the Order of August 19, 1985, alleging lack
of notice to their counsel.
On March 31, 1986, respondent Judge to which the case was
reassigned denied the motion for reconsideration holding that
the documents submitted by petitioner proved "that the wills of
the testator domiciled abroad were properly executed, genuine
and sufficient to possess real and personal property; that
letters testamentary were issued; and that proceedings were
held on a foreign tribunal and proofs taken by a competent
judge who inquired into all the facts and circumstances and
being satisfied with his findings issued a decree admitting to
probate the wills in question." However, respondent Judge said
that the documents did not establish the law of New York on
the procedure and allowance of wills (Records, p. 381).
On April 9, 1986, petitioner filed a motion to allow her to
present further evidence on the foreign law. After the hearing
of the motion on April 25, 1986, respondent Judge issued an
order wherein he conceded that insufficiency of evidence to
prove the foreign law was not a fatal defect and was curable
by adducing additional evidence. He granted petitioner 45
days to submit the evidence to that effect.
However, without waiting for petitioner to adduce the additional
evidence, respondent Judge ruled in his order dated June 20,
1986 that he found "no compelling reason to disturb its ruling
of March 31, 1986" but allowed petitioner to "file anew the
appropriate probate proceedings for each of the testator"
(Records, p. 391).
The Order dated June 20, 1986 prompted petitioner to file a
second motion for reconsideration stating that she was "ready
to submit further evidence on the law obtaining in the State of
New York" and praying that she be granted "the opportunity to
present evidence on what the law of the State of New York has
on the probate and allowance of wills" (Records, p. 393).
On July 18, respondent Judge denied the motion holding that
to allow the probate of two wills in a single proceeding "would
be a departure from the typical and established mode of
probate where one petition takes care of one will." He pointed
out that even in New York "where the wills in question were
first submitted for probate, they were dealt with in separate
proceedings" (Records, p. 395).
On August 13, 1986, petitioner filed a motion for the
reconsideration of the Order of July 18, 1986, citing Section 3,
Rule 2 of the Rules of Court, which provides that no party may
institute more than one suit for a single cause of action. She
pointed out that separate proceedings for the wills of the
spouses which contain basically the same provisions as they
even named each other as a beneficiary in their respective
wills, would go against "the grain of inexpensive, just and
speedy determination of the proceedings" (Records, pp. 405-
407).
On September 11, 1986, petitioner filed a supplement to the
motion for reconsideration, citing Benigno v. De La Peña, 57
Phil. 305 (1932) (Records,
p. 411), but respondent Judge found that this pleading had
been filed out of time and that the adverse party had not been
furnished with a copy thereof. In her compliance, petitioner
stated that she had furnished a copy of the motion to the
counsel of the Cunanan heirs and reiterated her motion for a
"final ruling on her supplemental motion" (Records, p. 421).
On November 19, respondent Judge issued an order, denying
the motion for reconsideration filed by petitioner on the
grounds that "the probate of separate wills of two or more
different persons even if they are husband and wife cannot be
undertaken in a single petition" (Records, pp. 376-378).
Hence, petitioner instituted the instant petition, arguing that the
evidence offered at the hearing of April 11, 1983 sufficiently
proved the laws of the State of New York on the allowance of
wills, and that the separate wills of the Cunanan spouses need
not be probated in separate proceedings.
II
Petitioner contends that the following pieces of evidence she
had submitted before respondent Judge are sufficient to
warrant the allowance of the wills:
(a) two certificates of authentication of the
respective wills of Evelyn and Jose by the
Consulate General of the Philippines (Exhs. "F"
and "G");
(b) two certifications from the Secretary of State
of New York and Custodian of the Great Seal
on the facts that Judge Bernard L. Reagan is
the Surrogate of the Country of Onondaga
which is a court of record, that his signature and
seal of office are genuine, and that the
Surrogate is duly authorized to grant copy of
the respective wills of Evelyn and Jose
(Exhs. "F-1" and "G-1");
(c) two certificates of Judge Reagan and Chief
Clerk Donald E. Moore stating that they have in
their records and files the said wills which were
recorded on April 7, 1982 (Exhs. "F-2" and "G-
2");
(d) the respective wills of Evelyn and Jose
(Exhs. "F-3", "F-6" and Exh. "G-3" — "G-6");
(e) certificates of Judge Reagan and the Chief
Clerk certifying to the genuineness and
authenticity of the exemplified copies of the two
wills (Exhs. "F-7" and "F-7");
(f) two certificates of authentication from the
Consulate General of the Philippines in New
York (Exh. "H" and "F").
(g) certifications from the Secretary of State that
Judge Reagan is duly authorized to grant
exemplified copies of the decree of probate,
letters testamentary and all proceedings had
 and proofs duly taken
(Exhs. "H-1" and "I-1");
(h) certificates of Judge Reagan and the Chief
Clerk that letters testamentary were issued to
Rafael G. Cunanan (Exhs. "H-2" and "I-2");
(i) certification to the effect that it was during the
term of Judge Reagan that a decree admitting
the wills to probate had been issued and
appointing Rafael G. Cunanan as alternate
executor (Exhs. "H-3" and
"I-10");
(j) the decrees on probate of the two wills
specifying that proceedings were held and
proofs duly taken (Exhs. "H-4" and "I-5");
(k) decrees on probate of the two wills stating
that they were properly executed, genuine and
valid and that the said instruments were
admitted to probate and established as wills
valid to pass real and personal property (Exhs.
"H-5" and "I-5"); and
(l) certificates of Judge Reagan and the Chief
Clerk on the genuineness and authenticity of
each other’s signatures in the exemplified
copies of the decrees of probate, letters
testamentary and proceedings held in their
court (Exhs. "H-6" and "I-6") (Rollo, pp. 13-16).
Petitioner adds that the wills had been admitted to probate in
the Surrogate Court’s Decision of April 13, 1983 and that the
proceedings were terminated on November 29, 1984.
The respective wills of the Cunanan spouses, who were
American citizens, will only be effective in this country upon
compliance with the following provision of the Civil Code of the
Philippines:
Art. 816. The will of an alien who is abroad
produces effect in the Philippines if made with
the formalities prescribed by the law of the
place in which he resides, or according to the
formalities observed in his country, or in
conformity with those which this Code
prescribes.
Thus, proof that both wills conform with the formalities
prescribed by New York laws or by Philippine laws is
imperative.
The evidence necessary for the reprobate or allowance of wills
which have been probated outside of the Philippines are as
follows: (1) the due execution of the will in accordance with the
foreign laws; (2) the testator has his domicile in the foreign
country and not in the Philippines; (3) the will has been
admitted to probate in such country; (4) the fact that the
foreign tribunal is a probate court, and (5) the laws of a foreign
country on procedure and allowance of wills (III Moran
Commentaries on the Rules of Court, 1970 ed., pp. 419-429;
Suntay v. Suntay, 95 Phil. 500 [1954]; Fluemer v. Hix, 54 Phil.
610 [1930]). Except for the first and last requirements, the
petitioner submitted all the needed evidence.
The necessity of presenting evidence on the foreign laws upon
which the probate in the foreign country is based is impelled
by the fact that our courts cannot take judicial notice of them
(Philippine Commercial and Industrial Bank v. Escolin, 56
SCRA 266 [1974]).
Petitioner must have perceived this omission as in fact she
moved for more time to submit the pertinent procedural and
substantive New York laws but which request respondent
Judge just glossed over. While the probate of a will is a special
proceeding wherein courts should relax the rules on evidence,
the goal is to receive the best evidence of which the matter is
susceptible before a purported will is probated or denied
probate (Vda. de Ramos v. Court of Appeals, 81 SCRA 393
[1978]).
There is merit in petitioner’s insistence that the separate wills
of the Cunanan spouses should be probated jointly.
Respondent Judge’s view that the Rules on allowance of wills
is couched in singular terms and therefore should be
interpreted to mean that there should be separate probate
proceedings for the wills of the Cunanan spouses is too literal
and simplistic an approach. Such view overlooks the
provisions of Section 2, Rule 1 of the Revised Rules of Court,
which advise that the rules shall be "liberally construed in
order to promote their object and to assist the parties in
obtaining just, speedy, and inexpensive determination of every
action and proceeding."
A literal application of the Rules should be avoided if they
would only result in the delay in the administration of justice
(Acain v. Intermediate Appellate Court, 155 SCRA 100 [1987];
Roberts v. Leonidas, 129 SCRA 33 [1984]).
What the law expressly prohibits is the making of joint wills
either for the testator’s reciprocal benefit or for the benefit of a
third person (Civil Code of the Philippines, Article 818). In the
case at bench, the Cunanan spouses executed separate wills.
Since the two wills contain essentially the same provisions and
pertain to property which in all probability are conjugal in
nature, practical considerations dictate their joint probate. As
this Court has held a number of times, it will always strive to
settle the entire controversy in a single proceeding leaving no
root or branch to bear the seeds of future litigation (Motoomull
v. Dela Paz, 187 SCRA 743 [1990]).
This petition cannot be completely resolved without touching
on a very glaring fact — petitioner has always considered
herself the sole heir of
Dr. Evelyn Perez Cunanan and because she does not
consider herself an heir of Dr. Jose F. Cunanan, she noticeably
failed to notify his heirs of the filing of the proceedings. Thus,
even in the instant petition, she only impleaded respondent
Judge, forgetting that a judge whose order is being assailed is
merely a nominal or formal party (Calderon v. Solicitor
General, 215 SCRA 876 [1992]).
The rule that the court having jurisdiction over the reprobate of
a will shall "cause notice thereof to be given as in case of an
original will presented for allowance" (Revised Rules of Court,
Rule 27, Section 2) means that with regard to notices, the will
probated abroad should be treated as if it were an "original
will" or a will that is presented for probate for the first time.
Accordingly, compliance with Sections 3 and 4 of Rule 76,
which require publication and notice by mail or personally to
the "known heirs, legatees, and devisees of the testator
resident in the Philippines" and to the executor, if he is not the
petitioner, are required.
The brothers and sisters of Dr. Jose F. Cunanan, contrary to
petitioner's claim, are entitled to notices of the time and place
for proving the wills. Under Section 4 of Rule 76 of the Revised
Rules of Court, the "court shall also cause copies of the notice
of the time and place fixed for proving the will to be addressed
to the designated or other known heirs, legatees, and devisees
of the testator, . . . "
WHEREFORE, the questioned Order is SET ASIDE.
Respondent Judge shall allow petitioner reasonable time
within which to submit evidence needed for the joint probate of
the wills of the Cunanan spouses and see to it that the
brothers and sisters of Dr. Jose F. Cunanan are given all
notices and copies of all pleadings pertinent to the probate
proceedings.

SO ORDERED.

Davide, Jr., Bellosillo and Kapunan, JJ., concur.

Cruz, J., is on leave.

G.R. No. L-4067 November 29, 1951
(Sgd.) NUMERIANO EVANGELISTA
In the Matter of the will of ANTERO MERCADO, deceased.
ROSARIO GARCIA, petitioner,
vs.
JULIANA LACUESTA, ET AL., respondents.
(Sgd.) BIBIANA ILLEGIBLE
Elviro L. Peralta and Hermenegildo A. Prieto for petitioner.
Faustino B. Tobia, Juan I. Ines and Federico Tacason for
respondents.
PARAS, C.J.:
This is an appeal from a decision of the Court of Appeals
disallowing the will of Antero Mercado dated January 3, 1943.
The will is written in the Ilocano dialect and contains the
following attestation clause:
We, the undersigned, by these presents to declare that
the foregoing testament of Antero Mercado was signed
by himself and also by us below his name and of this
attestation clause and that of the left margin of the
three pages thereof. Page three the continuation of this
attestation clause; this will is written in Ilocano dialect
which is spoken and understood by the testator, and it
bears the corresponding number in letter which
compose of three pages and all them were signed in
the presence of the testator and witnesses, and the
witnesses in the presence of the testator and all and
each and every one of us witnesses.
In testimony, whereof, we sign this statement, this the
third day of January, one thousand nine hundred forty
three, (1943) A.D.
(Sgd.) "ROSENDA
CORTES
The will appears to have been signed by Atty. Florentino Javier
who wrote the name of Antero Mercado, followed below by "A
reugo del testator" and the name of Florentino Javier. Antero
Mercado is alleged to have written a cross immediately after
his name. The Court of Appeals, reversing the judgement of
the Court of First Instance of Ilocos Norte, ruled that the
attestation clause failed (1) to certify that the will was signed
on all the left margins of the three pages and at the end of the
will by Atty. Florentino Javier at the express request of the
testator in the presence of the testator and each and every
one of the witnesses; (2) to certify that after the signing of the
name of the testator by Atty. Javier at the former's request said
testator has written a cross at the end of his name and on the
left margin of the three pages of which the will consists and at
the end thereof; (3) to certify that the three witnesses signed
the will in all the pages thereon in the presence of the testator
and of each other.
In our opinion, the attestation clause is fatally defective for
failing to state that Antero Mercado caused Atty. Florentino
Javier to write the testator's name under his express direction,
as required by section 618 of the Code of Civil Procedure. The
herein petitioner (who is appealing by way of certiorari from
the decision of the Court of Appeals) argues, however, that
there is no need for such recital because the cross written by
the testator after his name is a sufficient signature and the
signature of Atty. Florentino Javier is a surplusage. Petitioner's
theory is that the cross is as much a signature as a
thumbmark, the latter having been held sufficient by this Court
in the cases of De Gala vs. Gonzales and Ona, 53 Phil., 104;
Dolar vs. Diancin, 55 Phil., 479; Payad vs. Tolentino, 62 Phil.,
848; Neyra vs. Neyra, 76 Phil., 296 and Lopez vs. Liboro, 81
Phil., 429.

It is not here pretended that the cross appearing on the will is

the usual signature of Antero Mercado or even one of the ways
by which he signed his name. After mature reflection, we are
not prepared to liken the mere sign of the cross to a
thumbmark, and the reason is obvious. The cross cannot and
does not have the trustworthiness of a thumbmark.

What has been said makes it unnecessary for us to determine

there is a sufficient recital in the attestation clause as to the
signing of the will by the testator in the presence of the
witnesses, and by the latter in the presence of the testator and
of each other.

Wherefore, the appealed decision is hereby affirmed, with

against the petitioner. So ordered.

Feria, Pablo, Bengzon, Padilla, Reyes, Jugo and Bautista

Angelo, JJ., concur.
G.R. No. 6845 September 1, 1914
YAP TUA, petitioner-appellee,
vs.
YAP CA KUAN and YAP CA KUAN, objectors-appellants.
Chicote and Miranda for appellants.
O'Brien and DeWitt for appellee.
JOHNSON, J.:
It appears from the record that on the 23d day of August,
1909, one Perfecto Gabriel, representing the petitioner, Yap
Tua, presented a petition in the Court of First Instance of the
city of Manila, asking that the will of Tomasa Elizaga Yap
Caong be admitted to probate, as the last will and testament of
Tomasa Elizaga Yap Caong, deceased. It appears that the
said Tomasa Elizaga Yap Caong died in the city of Manila on
the 11th day of August, 1909. Accompanying said petition and
attached thereto was the alleged will of the deceased. It
appears that the will was signed by the deceased, as well as
Anselmo Zacarias, Severo Tabora, and Timoteo Paez.
Said petition, after due notice was given, was brought on for
hearing on the 18th day of September, 1909. Timoteo Paez
declared that he was 48 years of age; that he had known the
said Tomasa Elizaga Yap Caong; that she had died on the 11th
day of August, 1909; that before her death she had executed a
last will and testament; that he was present at the time of the
execution of the same; that he had signed the will as a
witness; that Anselmo Zacarias and Severo Tabora had also
signed said will as witnesses and that they had signed the will
in the presence of the deceased.
Pablo Agustin also declared as a witness and said that he was
40 years of age; that he knew Tomasa Elizaga Yap Caong
during her lifetime; that she died on the 11th day of August,
1909, in the city of Manila; that before her death she had
executed a last will and testament; that he was present at the
time said last will was executed; that there were also present
Timoteo Paez and Severo Tabora and a person called
Anselmo; that the said Tomasa Elizaga Yap Caong signed the
will in the presence of the witnesses; that he had seen her sign
the will with his own eyes; that the witnesses had signed the
will in the presence of the said Tomasa Elizaga Yap Caong
and in the presence of each other; that the said Tomasa
Elizaga Yap Caong signed the will voluntarily, and in his
judgment, she was in the possession of her faculties; that
there were no threats or intimidation used to induce her to sign
the will; that she signed it voluntarily.
No further witnesses were called and there was no further
opposition presented to the legalization of the said will.
After hearing the foregoing witnesses, the Honorable A. S.
Crossfield, judge, on the 29th day of September, 1909,
ordered that the last will and testament of Tomasa Elizaga Yap
Caong be allowed and admitted to probate. The will was
attached to the record and marked Exhibit A. The court further
ordered that one Yap Tua be appointed as executor of the will,
upon the giving of a bond, the amount of which was to be fixed
later.
From the record it appears that no further proceedings were
had until the 28th of February, 1910, when Yap Ca Kuan and
Yap Ca Llu appeared and presented a petition, alleging that
they were interested in the matters of the said will and desired
to intervene and asked that a guardian ad litem be appointed
to represent them in the cause.
On the 1st day of March, 1910, the court appointed Gabriel La
O as guardian ad litem of said parties. Gabriel La O accepted
said appointment, took the oath of office and entered upon the
performance of his duties as guardian ad litem of said parties.
On the 2d day of March, 1910, the said Gabriel La O appeared
in court and presented a motion in which he alleged, in
substance:
First. That the will dated the 11th day of August, 1909, and
admitted to probate by order of the court on the 29th day of
September, 1909, was null, for the following reasons:
(a) Because the same had not been authorized nor
signed by the witnesses as the law prescribes.
(b) Because at the time of the execution of the will, the
said Tomasa Elizaga Yap Caong was not then mentally
capacitated to execute the same, due to her sickness.
(c) Because her signature to the will had been obtained
through fraud and illegal influence upon the part of
persons who were to receive a benefit from the same,
and because the said Tomasa Elizaga Yap Caong had
no intention of executing the same.
Second. That before the execution of the said will, which they
alleged to be null, the said Tomasa Elizaga Yap Caong had
executed another will, with all the formalities required by law,
upon the 6th day of August, 1909.
Third. That the said Yap Ca Kuan and Yap Ca Llu were minors
and that, even though they had been negligent in presenting
their opposition to the legalization of the will, said negligence
was excusable, on account of their age.
Upon the foregoing facts the court was requested to annul and
set aside the order of the 29th day of September, 1909, and to
grant to said minors an opportunity to present new proof
relating to the due execution of said will. Said petition was
based upon the provisions of section 113 of the Code of
Procedure in Civil Actions.
While it is not clear from the record, apparently the said minors
in their petition for a new trial, attached to said petition the
alleged will of August 6, 1909, of the said Tomasa Elizaga Yap
Caong, and the affidavits of Severo Tabora, Clotilde and
Cornelia Serrano.
Upon the 10th day of March, 1910, upon the hearing of said
motion for a rehearing, the Honorable A. S. Crossfield, judge,
granted said motion and ordered that the rehearing should
take place upon the 18th day of March, 1910, and directed that
notice should be given to the petitioners of said rehearing and
to all other persons interested in the will. At the rehearing a
number of witnesses were examined.
It will be remembered that one of the grounds upon which the
new trial was requested was that the deceased, Tomasa
Elizaga Yap Caong, had not signed the will (Exhibit A) of the
11th of August, 1909; that in support of that allegation, the
protestants, during the rehearing, presented a witness called
Tomas Puzon. Puzon testified that he was a professor and an
expert in handwriting, and upon being shown the will (of
August 11, 1909) Exhibit A, testified that the name and
surname on Exhibit A, in his judgment were written by two
different hands, though the given name is the same as that
upon Exhibit 1 (the will of August 6, 1909), because he found
in the name "Tomasa" on Exhibit A a similarity in the tracing to
the "Tomasa" in Exhibit 1; that comparing the surname on
Exhibit A with the surname on Exhibit 1 he found that the
character of the writing was thoroughly distinguished and
different by the tracing and by the direction of the letters in the
said two exhibits; that from his experience and observation he
believed that the name "Tomasa" and "Yap Caong," appearing
in the signature on Exhibit A were written by different person.
Puzon, being cross-examined with reference to his capacity as
an expert in handwriting, testified that while he was a student
in the Ateneo de Manila, he had studied penmanship; that he
could not tell exactly when that was, except that he had
concluded his course in the year 1882; that since that time he
had been a telegraph operator for seventeen years and that he
had acted as an expert in hand- writing in the courts in the
provinces.
Gabriel La O was called as a witness during the rehearing and
testified that he had drawn the will of the 6th of August, 1909,
at the request of Tomasa Elizaga Yap Caong; that it was drawn
in accordance with her request and under her directions; that
she had signed it; that the same had been signed by three
witnesses in her presence and in the presence of each other;
that the will was written in her house; that she was sick and
was lying in her bed, but that she sat up to sign the will; that
she signed the will with great difficulty; that she was signed in
her right mind.
The said Severo Tabora was also called as a witness again
during the rehearing. He testified that he knew Tomasa Elizaga
Yap Caong during her lifetime; that she was dead; that his
signature as a witness to Exhibit A (the will of August 11, 1909)
was placed there by him; that the deceased, Tomasa Elizaga
Yap Caong, became familiar with the contents of the will
because she signed it before he (the witness) did; that he did
not know whether anybody there told her to sign the will or not;
that he signed two bills; that he did not know La O; that he did
not believe that Tomasa had signed the will (Exhibit A) before
he arrived at the house; that he was not sure that he had seen
Tomasa Elizaga Yap Caong sign Exhibit A because there were
many people and there was a screen at the door and he could
not see; that he was called a a witness to sign the second will
and was told by the people there that it was the same as the
first; that the will (Exhibit A) was on a table, far from the
patient, in the house but outside the room where the patient
was; that the will was signed by Paez and himself; that
Anselmo Zacarias was there; that he was not sure whether
Anselmo Zacarias signed the will or not; that he was not sure
whether Tomasa Elizaga Yap Caong could see the table on
which the will was written at the time it was signed or not; that
there were many people in the house; that he remembered the
names of Pedro and Lorenzo; that he could not remember the
names of any others; that the will remained on the table after
he signed it; that after he signed the will he went to the room
where Tomasa was lying; that the will was left on the table
outside; that Tomasa was very ill; that he heard the people
asking Tomasa to sign the will after he was (the witness) had
signed it; that he saw Paez sign the will, that he could not
remember whether Anselmo Zacarias had signed the will,
because immediately after he and Paez signed it, he left
because he was hungry; that the place where the table was
located was in the same house, on the floor, about two steps
down from the floor on which Tomasa was.
Rufino R. Papa, was called as a witness for the purpose of
supporting the allegation that Tomasa Elizaga Yap Caong was
mentally incapacitated to make the will dated August 11, 1909
(Exhibit A). Papa declared that he was a physician; that he
knew Tomasa Elizaga Yap Caong; that he had treated her in
the month of August; that he visited her first on the 8th day of
August; that he visited her again on the 9th and 10th days of
August; that on the first visit he found the sick woman
completely weak — very weak from her sickness, in the third
stage of tuberculosis; that she was lying in bed; that on the
first visit he found her with but little sense, the second day
also, and on the third day she had lost all her intelligence; that
she died on the 11th of August; tat he was requested to issue
the death certificate; that when he asked her (Tomasa)
whether she was feeling any pain or anything of that kind, she
did not answer at all; that she was in a condition of stupor,
induced, as he believed, by the stage of uraemia from which
she was suffering.
Anselmo Zacarias, who had signed the will of August 11, 1909,
was also called as a witnesses during the rehearing. He
testified that he had known Tomasa Elizaga Yap Caong since
he was a child; that Tomasa was dead; that he had written the
will exhibit A; that it was all in his writing except the last part,
which was written by Carlos Sobaco; that he had written the
will Exhibit A at the request of the uncle of Tomasa; that
Lorenzo, the brother of the deceased, was the one who had
instructed him as to the terms of the will ; that the deceased
had not spoken to him concerning the terms of the will; that the
will was written in the dining room of the residence of the
deceased; that Tomasa was in another room different from that
in which the will was written; that the will was not written in the
presence of Tomasa; that he signed the will as a witness in the
room where Tomasa was lying; that the other witnesses signed
the will in the same room that when he went into the room
where the sick woman was (Tomasa Elizaga Yap Caong)
Lorenzo had the will in his hands; that when Lorenzo came to
the bed he showed the will to his sister (Tomasa) and
requested her to sign it; that she was lying stretched out on the
bed and two women, who were taking care of her, helped her
to sit up, supporting her by lacing their hands at her back; that
when she started to write her name, he withdrew from the bed
on account of the best inside the room; when he came back
again to the sick bed the will was signed and was again in the
hands of Lorenzo; that he did not see Tomasa sign the will
because he withdrew from the room; that he did not know
whether Tomasa had been informed of the contents of the will
or not; he supposed she must have read it because Lorenzo
turned the will over to her; that when Lorenzo asked her to
sign the will, he did not know what she said — he could not
hear her voice; that he did not know whether the sick woman
was him sign the will or not; that he believed that Tomasa died
the next day after the will had been signed; that the other two
witnesses, Timoteo Paez and Severo Tabora, had signed the
will in the room with the sick woman; that he saw them sign
the will and that they saw him sign it; that he was not sure
whether the testatrix could have seen them at the time they
signed the will or not; that there was a screen before the bed;
that he did not think that Lorenzo had been giving instructions
as to the contents of the will; that about ten or fifteen minutes
elapsed from the time Lorenzo handed the will to Tomasa
before she started to sign it; that the pen with which she
signed the will as given to her and she held it.
Clotilde Mariano testified that he was a cigarette maker; that
he knew Tomasa Elizaga Yap Caong and that she was dead;
that she had made two wills; that the first one was written by
La O and the second by Zacarias; that he was present at the
time Zacarias wrote the second one; that he was present when
the second will was taken to Tomasa for signature; that
Lorenzo had told Tomasa that the second will was exactly like
the first; that Tomasa said she could not sign it.
On cross examination he testified that there was a lot of
visitors there; that Zacarias was not there; that Paez and
Tabora were there; that he had told Tomasa that the second
will was exactly like the first.
During the rehearing Cornelia Serrano and Pedro Francisco
were also examined as witnesses. There is nothing in their
testimony, however, which in our opinion is important.
In rebuttal Julia e la Cruz was called as a witness. She
testified that she was 19 years of age; that she knew Tomasa
Elizaga Yap Caong during her lifetime; that she lived in the
house of Tomasa during the last week of her illness; that
Tomasa had made two wills; that she was present when the
second one was executed; that a lawyer had drawn the will in
the dining room and after it had been drawn and everything
finished , it was taken to where Doña Tomasa was, for her
signature; that it was taken to her by Anselmo Zacarias; that
she was present at the time Tomasa signed the will that there
were many other people present also; that she did not see
Timoteo Paez there; that she saw Severo Tabora; that
Anselmo Zacarias was present; that she did not hear Clotilde
Mariano ask Tomasa to sign the will; that she did not hear
Lorenzo say to Tomasa that the second will was the same sa
the first; that Tomasa asked her to help her to sit up and to put
a pillow to her back when Zacarias gave her some paper or
document and asked her to sign it; that she saw Tomasa take
hold of the pen and try to sign it but she did not see the place
she signed the document, for the reason that she left the
room; that she saw Tomasa sign the document but did not see
on what place on the document she signed; and that a notary
public came the next morning; that Tomasa was able to move
about in the bed; that she had seen Tomasa in the act of
starting to write her signature when she told her to get her
some water.
Yap Cao Quiang was also called as a witness in rebuttal. He
testified that he knew Tomasa Elizaga Yap Caong and knew
that she had made a will; that he saw the will at the time it was
written; that he saw Tomasa sign it on her head; that he did not
hear Lorenzo ask Tomasa to sign the will; that Lorenzo had
handed the will to Tomasa to sign; that he saw the witnesses
sign the will on a table near the bed; that the table was outside
the curtain or screen and near the entrance to the room where
Tomasa was lying.
Lorenzo Yap Caong testified as a witness on rebuttal. He said
that he knew Anselmo Zacarias and that Zacarias wrote the
will of Tomasa Elizaga Yap Caong; that Tomasa had given him
instructions; that Tomasa had said that she sign the will; that
the will was on a table near the bed of Tomasa; that Tomasa,
from where she was lying in the bed, could seethe table where
the witnesses had signed the will.
During the rehearing certain other witnesses were also
examined; in our opinion, however, it is necessary to quote
from them for the reason that their testimony in no way affects
the preponderance of proof above quoted.
At the close of the rehearing the Honorable A. S. Crossfield,
judge, in an extended opinion, reached the conclusion that the
last will and testament of Tomasa Elizaga Yap Caong, which
was attached to the record and marked Exhibit A was the last
will and testament of the said Tomasa Elizaga Yap Caong and
admitted it to probate and ordered that the administrator
therefore appointed should continue as such administrator.
From that order the protestants appealed to this court, and
made the following assignments of error:
I. The court erred in declaring that the will, Exhibit A,
was executed by the deceased Tomasa Yap Caong,
without the intervention of any external influence on the
part of other persons.
II. The court erred in declaring that the testator had
clear knowledge and knew what she was doing at the
time of signing the will.
III. The court erred in declaring that the signature of the
deceased Tomasa Yap Caong in the first will, Exhibit 1,
is identical with that which appears in the second will,
Exhibit A.
 IV. The court erred in declaring that the will, Exhibit A,
was executed in accordance with the law.
With reference to the first assignment of error, to wit, that
undue influence was brought to bear upon Tomasa Elizaga
Yap Caong in the execution of her will of August 11th, 1909
(Exhibit A), the lower court found that no undue influence had
been exercised over the mind of the said Tomasa Elizaga Yap
Caong. While it is true that some of the witnesses testified that
the brother of Tomasa, one Lorenzo, had attempted to unduly
influence her mind in the execution of he will, upon the other
hand, there were several witnesses who testified that Lorenzo
did not attempt, at the time of the execution of the will, to
influence her mind in any way. The lower court having had an
opportunity to see, to hear, and to note the witnesses during
their examination reached the conclusion that a
preponderance of the evidence showed that no undue
influence had been used. we find no good reason in the record
for reversing his conclusions upon that question.
With reference to the second assignment of error to wit, that
Tomasa Elizaga Yap Caong was not of sound mind and
memory at the time of the execution of the will, we find the
same conflict in the declarations of the witnesses which we
found with reference to the undue influence. While the
testimony of Dr. Papa is very strong relating to the mental
condition of Tomasa Elizaga Yap Caong, yet, nevertheless, his
testimony related to a time perhaps twenty-four hours before
the execution of the will in question (Exhibit A). Several
witnesses testified that at the time the will was presented to
her for her signature, she was of sound mind and memory and
asked for a pen and ink and kept the will in her possession for
ten or fifteen minutes and finally signed it. The lower court
found that there was a preponderance of evidence sustaining
the conclusion that Tomasa Elizaga Yap Caong was of sound
mind and memory and in the possession of her faculties at the
time she signed this will. In view of the conflict in the testimony
of the witnesses and the finding of the lower court, we do not
feel justified in reversing his conclusions upon that question.
With reference to the third assignment of error, to wit, that the
lower court committed an error in declaring that the signature
of Tomasa Elizaga Yap Caong, on her first will (August 6,
1909, Exhibit 1), is identical with that which appears in the
second will (August 11, 1909, Exhibit A), it may be said:
First. That whether or not Tomasa Elizaga Yap Caong
executed the will of August 6, 1909 (Exhibit 1), was not the
question presented to the court. The question presented was
whether or not she had duly executed the will of August 11,
1909 (Exhibit A).
Second. There appears to be but little doubt that Tomasa
Elizaga Yap Caong did execute the will of August 6, 1909.
Several witnesses testified to that fact. The mere fact,
however, that she executed a former will is no proof that she
did not execute a later will. She had a perfect right, by will, to
dispose of her property, in accordance with the provisions of
law, up to the very last of moment her life. She had a perfect
right to change, alter, modify or revoke any and all of her
former wills and to make a new one. Neither will the fact that
the new will fails to expressly revoke all former wills, in any
way sustain the charge that she did not make the new will.
Third. In said third assignment of error there is involved in the
statement that "The signature of Tomasa Elizaga Yap Caong,
in her first will (Exhibit 1) was not identical with that which
appears in her second will (Exhibit A)" the inference that she
had not signed the second will and all the argument of the
appellants relating to said third assignment of error is based
upon the alleged fact that Tomasa Elizaga Yap Caong did not
sign Exhibit A. Several witnesses testified that they saw her
write the name "Tomasa." One of the witnesses testified that
she had written her full name. We are of the opinion, and we
think the law sustains our conclusion, that if Tomasa Elizaga
Yap Caong signed any portion of her name tot he will, with the
intention to sign the same, that the will amount to a signature.
It has been held time and time again that one who makes a
will may sign the same by using a mark, the name having
been written by others. If writing a mark simply upon a will is
sufficient indication of the intention of the person to make and
execute a will, then certainly the writing of a portion or all of
her name ought to be accepted as a clear indication of her
intention to execute the will. (Re Goods of Savory, 15 Jur.,
1042; Addy vs. Grix, 8 Ves. Jr., 504; Baker vs. Dening, 8 Ad.
and El., 94 Long vs. Zook, 13 Penn., 400; Vernon vs. Kirk, 30
Penn., 218; Cozzen's Will, 61 Penn., 196; Re Goods of
Emerson, L. R. 9 Ir., 443; Main vs. Ryder, 84 Penn., 217.)
We find a very interesting case reported in 131 Pennsylvania
State, 220 (6 L. R. A., 353), and cited by the appellees, which
was known as "Knox's Appeal." In this case one Harriett S.
Knox died very suddenly on the 17th of October, 1888, at the
residence of her father. After her death a paper was found in
her room, wholly in her handwriting, written with a lead pencil,
upon three sides of an ordinary folded sheet of note paper and
bearing the signature simply of "Harriett." In this paper the
deceased attempted to make certain disposition of her
property. The will was presented for probate. The probation
was opposed upon the ground that the same did not contain
the signature of the deceased. That was the only question
presented to the court, whether the signature, in the form
above indicated, was a sufficient signature to constitute said
paper the last will and testament of Harriett S. Knox. It was
admitted that the entire paper was in the handwriting of the
deceased. In deciding that question, Justice Mitchell said:
The precise case of a signature by the first name only,
does not appear to have arisen either in England or the
United States; but the principle on which the decisions
already referred to were based, especially those in
regard to signing by initials only, are equally applicable
to the present case, and additional force is given to
them by the decisions as to what constitutes a binding
signature to a contract. (Palmer vs. Stephens, 1 Denio,
478; Sanborne vs. Flager, 9 Alle, 474; Weston vs.
Myers, 33 Ill., 424; Salmon Falls, etc. Co. vs. Goddard,
14 How. (U. S.), 446.)
The man who cannot write and who is obliged to make his
mark simply therefor, upon the will, is held to "sign" as
effectually as if he had written his initials or his full name. It
would seem to be sufficient, under the law requiring a
signature by the person making a will, to make his mark, to
place his initials or all or any part of his name thereon. In the
present case we think the proof shows, by a large
preponderance, that Tomasa Elizaga Yap Caong, if she did not
sign her full name, did at least sign her given name "Tomasa,"
and that is sufficient to satisfy the statute.
With reference to the fourth assignment of error, it may be said
that the argument which was preceded is sufficient to answer it
also.
During the trial of the cause the protestants made a strong
effort to show that Tomasa Elizaga Yap Caong did not sign her
name in the presence of the witnesses and that they did not
sign their names in their presence nor in the presence of each
other. Upon that question there is considerable conflict of
proof. An effort was made to show that the will was signed by
the witnesses in one room and by Tomasa in another. A plan of
the room or rooms in which the will was signed was presented
as proof and it was shown that there was but one room; that
one part of the room was one or two steps below the floor of
the other; that the table on which the witnesses signed the will
was located upon the lower floor of the room. It was also
shown that from the bed in which Tomasa was lying, it was
possible for her to see the table on which the witnesses signed
the will. While the rule is absolute that one who makes a will
must sign the same in the presence of the witnesses and that
the witnesses must sign in the presence of each other, as well
as in the presence of the one making the will, yet,
nevertheless, the actual seeing of the signatures made is not
necessary. It is sufficient if the signatures are made where it is
possible for each of the necessary parties, if they desire to
see, may see the signatures placed upon the will.

In cases like the present where there is so much conflict in the

proof, it is very difficult for the courts to reach conclusions that
are absolutely free from doubt. Great weight must be given by
appellate courts who do not see or hear the witnesses, to the
conclusions of the trial courts who had that opportunity.

Upon a full consideration of the record, we find that a

preponderance of the proof shows that Tomasa Elizaga Yap
Caong did execute, freely and voluntarily, while she was in the
right use of all her faculties, the will dated August 11, 1909
(Exhibit A). Therefore the judgment of the lower court admitting
said will to probate is hereby affirmed with costs.

Arellano, C. J., Torres, Carson, Moreland and Araullo,

JJ., concur.
G.R. No. L-13431 November 12, 1919
In re will of Ana Abangan.
GERTRUDIS ABANGAN, executrix-appellee,
vs.
ANASTACIA ABANGAN, ET AL., opponents-appellants.
Filemon Sotto for appellants.
M. Jesus Cuenco for appellee.
AVANCEÑA, J.:
On September 19, 1917, the Court of First Instance of Cebu
admitted to probate Ana Abangan's will executed July, 1916.
From this decision the opponent's appealed.
Said document, duly probated as Ana Abangan's will, consists
of two sheets, the first of which contains all of the disposition
of the testatrix, duly signed at the bottom by Martin Montalban
(in the name and under the direction of the testatrix) and by
three witnesses. The following sheet contains only the
attestation clause duly signed at the bottom by the three
instrumental witnesses. Neither of these sheets is signed on
the left margin by the testatrix and the three witnesses, nor
numbered by letters; and these omissions, according to
appellants' contention, are defects whereby the probate of the
will should have been denied. We are of the opinion that the
will was duly admitted to probate.
In requiring that each and every sheet of the will should also
be signed on the left margin by the testator and three
witnesses in the presence of each other, Act No. 2645 (which
is the one applicable in the case) evidently has for its object
(referring to the body of the will itself) to avoid the substitution
of any of said sheets, thereby changing the testator's
dispositions. But when these dispositions are wholly written on
only one sheet signed at the bottom by the testator and three
witnesses (as the instant case), their signatures on the left
margin of said sheet would be completely purposeless. In
requiring this signature on the margin, the statute took into
consideration, undoubtedly, the case of a will written on
several sheets and must have referred to the sheets which the
testator and the witnesses do not have to sign at the bottom. A
different interpretation would assume that the statute requires
that this sheet, already signed at the bottom, be signed twice.
We cannot attribute to the statute such an intention. As these
signatures must be written by the testator and the witnesses in
the presence of each other, it appears that, if the signatures at
the bottom of the sheet guaranties its authenticity, another
signature on its left margin would be unneccessary; and if they
do not guaranty, same signatures, affixed on another part of
same sheet, would add nothing. We cannot assume that the
statute regards of such importance the place where the
testator and the witnesses must sign on the sheet that it would
consider that their signatures written on the bottom do not
guaranty the authenticity of the sheet but, if repeated on the
margin, give sufficient security.
In requiring that each and every page of a will must be
numbered correlatively in letters placed on the upper part of
the sheet, it is likewise clear that the object of Act No. 2645 is
to know whether any sheet of the will has been removed. But,
when all the dispositive parts of a will are written on one sheet
only, the object of the statute disappears because the removal
of this single sheet, although unnumbered, cannot be hidden.
What has been said is also applicable to the attestation
clause. Wherefore, without considering whether or not this
clause is an essential part of the will, we hold that in the one
accompanying the will in question, the signatures of the
testatrix and of the three witnesses on the margin and the
numbering of the pages of the sheet are formalities not
required by the statute. Moreover, referring specially to the
signature of the testatrix, we can add that same is not
necessary in the attestation clause because this, as its name
implies, appertains only to the witnesses and not to the
testator since the latter does not attest, but executes, the will.
same was executed in the city of Cebu and in the dialect of
this locality where the testatrix was a neighbor is enough, in
the absence of any proof to the contrary, to presume that she
knew this dialect in which this will is written.
For the foregoing considerations, the judgment appealed from
is hereby affirmed with costs against the appellants. So
ordered.
Arellano, C.J., Torres, Johnson, Araullo, Street and Malcolm,
JJ., concur.

Synthesizing our opinion, we hold that in a will consisting of

two sheets the first of which contains all the testamentary
dispositions and is signed at the bottom by the testator and
three witnesses and the second contains only the attestation
clause and is signed also at the bottom by the three witnesses,
it is not necessary that both sheets be further signed on their
margins by the testator and the witnesses, or be paged.

The object of the solemnities surrounding the execution of wills

is to close the door against bad faith and fraud, to avoid
substitution of wills and testaments and to guaranty their truth
and authenticity. Therefore the laws on this subject should be
interpreted in such a way as to attain these primordal ends.
But, on the other hand, also one must not lose sight of the fact
that it is not the object of the law to restrain and curtail the
exercise of the right to make a will. So when an interpretation
already given assures such ends, any other interpretation
whatsoever, that adds nothing but demands more requisites
entirely unnecessary, useless and frustative of the testator's
last will, must be disregarded. lawphil.net

As another ground for this appeal, it is alleged the records do

not show that the testarix knew the dialect in which the will is
written. But the circumstance appearing in the will itself that
G.R. No. L-1787 August 27, 1948
Testacy of Sixto Lopez. JOSE S. LOPEZ, petitioner-
appellee,
vs.
AGUSTIN LIBORO, oppositor-appellant.
Tirona, Gutierrez and Adorable for appellant.
Ramon Diokno for appellee.
TUASON, J.:
In the Court of First Instance of Batangas the appellant
opposed unsuccessfully the probate of what purports to be the
last will and testament (Exhibit A) of Don Sixto Lopez, who
died at the age of 83 in Balayan, Batangas, on March 3, 1947,
almost six months after the document in question was
executed. In the court below, the present appellant specified
five grounds for his opposition, to wit: (1) that the deceased
never executed the alleged will; (2) that his signature
appearing in said will was a forgery; (3) that at the time of the
execution of the will, he was wanting in testamentary as well
as mental capacity due to advanced age; (4) that, if he did
ever execute said will, it was not executed and attested as
required by law, and one of the alleged instrumental witnesses
was incapacitated to act as such; and it was procured by
duress, influence of fear and threats and undue and improper
pressure and influence on the part of the beneficiaries
instituted therein, principally the testator's sister, Clemencia
Lopez, and the herein proponent, Jose S. Lopez; and (5) that
the signature of the testator was procured by fraud or trick.
In this instance only one of these objections is reiterated,
formulated in these words: "That the court a quo erred in
holding that the document Exhibit "A" was executed in all
particulars as required by law." To this objection is added the
alleged error of the court "in allowing the petitioner to introduce
evidence that Exhibit "A" was written in a language known to
the decedent after petitioner rested his case and over the
vigorous objection of the oppositor.
The will in question comprises two pages, each of which is
written on one side of a separate sheet. The first sheet is not
paged either in letters or in Arabic numerals. This, the
appellant believes, is a fatal defect.
The purpose of the law in prescribing the paging of wills is
guard against fraud, and to afford means of preventing the
substitution or of defecting the loss of any of its pages.
(Abangan vs. Abangan, 40 Phil., 476.) In the present case, the
omission to put a page number on the first sheet, if that be
necessary, is supplied by other forms of identification more
trustworthy than the conventional numerical words or
characters. The unnumbered page is clearly identified as the
first page by the internal sense of its contents considered in
relation to the contents of the second page. By their meaning
and coherence, the first and second lines on the second page
are undeniably a continuation of the last sentence of the
testament, before the attestation clause, which starts at the
bottom of the preceding page. Furthermore, the unnumbered
page contains the caption "TESTAMENTO," the invocation of
the Almighty, and a recital that the testator was in full use of
his testamentary faculty, — all of which, in the logical order of
sequence, precede the direction for the disposition of the
marker's property. Again, as page two contains only the two
lines above mentioned, the attestation clause, the mark of the
testator and the signatures of the witnesses, the other sheet
can not by any possibility be taken for other than page
one. Abangan vs. Abangan, supra, and Fernandez vs. Vergel
de Dios, 46 Phil., 922 are decisive of this issue.
Although not falling within the purview and scope of the first
assignment of error, the matter of the credibility of the
witnesses is assailed under this heading. On the merits we do
not believe that the appellant's contention deserves serious
consideration. Such contradictions in the testimony of the
instrumental witnesses as are set out in the appellant's brief
are incidents not all of which every one of the witnesses can
be supposed to have perceived, or to recall in the same order
in which they occurred.
Everyday life and the result of investigations made in
the field of experimental psychology show that the
contradictions of witnesses generally occur in the
details of a certain incident, after a long series of
questioning, and far from being an evidence of
falsehood constitute a demonstration of good faith.
Inasmuch as not all those who witness an incident are
impressed in like manner, it is but natural that in
relating their impressions they should not agree in the
minor details; hence, the contradictions in their
testimony. (People vs. Limbo, 49 Phil., 99.)
The testator affixed his thumbmark to the instrument instead of
signing his name. The reason for this was that the testator was
suffering from "partial paralysis." While another in testator's
place might have directed someone else to sign for him, as
appellant contends should have been done, there is nothing
curious or suspicious in the fact that the testator chose the use
of mark as the means of authenticating his will. It was a matter
of taste or preference. Both ways are good. A statute requiring
a will to be "signed" is satisfied if the signature is made by the
testator's mark. (De Gala vs. Gonzales and Ona, 53 Phil., 108;
28 R. C. L., 117.)
With reference to the second assignment of error, we do not
share the opinion that the trial court communicated an abuse
of discretion in allowing the appellant to offer evidence to
prove knowledge of Spanish by the testator, the language in
which the will is drawn, after the petitioner had rested his case
and after the opponent had moved for dismissal of the petition
on the ground of insufficiency of evidence. It is within the
discretion of the court whether or not to admit further evidence
after the party offering the evidence has rested, and this
discretion will not be reviewed except where it has clearly
been abused. (64 C. J., 160.) More, it is within the sound
discretion of the court whether or not it will allow the case
to be reopened for the further introduction of evidence after a
motion or request for a nonsuit, or a demurrer to the evidence,
and the case may be reopened after the court has announced
its intention as to its ruling on the request, motion, or demurrer,
or has granted it or has denied the same, or after the motion
has been granted, if the order has not been written, or entered
upon the minutes or signed. (64 C. J., 164.)
In this jurisdiction this rule has been followed. After the parties
have produced their respective direct proofs, they are allowed
to offer rebutting evidence only, but, it has been held, the
court, for good reasons, in the furtherance of justice, may
permit them to offer evidence upon their original case, and its
ruling will not be disturbed in the appellate court where no
abuse of discretion appears. (Siuliong and Co. vs. Ylagan, 43
Phil., 393; U. S. vs. Alviar, 36 Phil., 804.) So, generally,
additional evidence is allowed when it is newly discovered, or
where it has been omitted through inadvertence or mistake, or
where the purpose of the evidence is to the evidence is to
correct evidence previously offered. (I Moran's Comments on
the Rules of Court, 2d ed., 545; 64 C. J., 160-163.) The
omission to present evidence on the testator's knowledge of
Spanish had not been deliberate. It was due to a
misapprehension or oversight.
Although alien to the second assignment of error, the appellant
impugns the will for its silence on the testator's understanding
of the language used in the testament. There is no statutory
requirement that such knowledge be expressly stated in the
will itself. It is a matter that may be established by proof
aliunde. This Court so impliedly ruled in Gonzales vs. Laurel,
46 Phil., 781, in which the probate of a will written in Tagalog
was ordered although it did not say that the testator knew that
idiom. In fact, there was not even extraneous proof on the
subject other than the fact that the testator resided in a
Tagalog region, from which the court said "a presumption
arises that said Maria Tapia knew the Tagalog dialect.

The order of the lower court ordering the probate of the last
will and testament of Don Sixto Lopez is affirmed, with costs.

Paras, Pablo, Perfecto, Bengzon, Briones and Padilla,

JJ., concur.
G.R. No. L-36033 November 5, 1982
IN THE MATTER OF THE PETITION FOR THE PROBATE
OF THE WILL OF DOROTEA PEREZ, (deceased):
APOLONIO TABOADA, petitioner,
vs.
HON. AVELINO S. ROSAL, as Judge of Court of First
Instance of Southern Leyte, (Branch III,
Maasin), respondent.
Erasmo M. Diola counsel for petition.
Hon. Avelino S. Rosal in his own behalf.
GUTIERREZ, JR. J.:
This is a petition for review of the orders issued by the Court of
First Instance of Southern Leyte, Branch III, in Special
Proceedings No. R-1713, entitled "In the Matter of the Petition
for Probate of the Will of Dorotea Perez, Deceased; Apolonio
Taboada, Petitioner", which denied the probate of the will, the
motion for reconsideration and the motion for appointment of a
special administrator.
In the petition for probate filed with the respondent court, the
petitioner attached the alleged last will and testament of the
late Dorotea Perez. Written in the Cebuano-Visayan dialect,
the will consists of two pages. The first page contains the
entire testamentary dispositions and is signed at the end or
bottom of the page by the testatrix alone and at the left hand
margin by the three (3) instrumental witnesses. The second
page which contains the attestation clause and the
acknowledgment is signed at the end of the attestation clause
by the three (3) attesting witnesses and at the left hand margin
by the testatrix.
Since no opposition was filed after the petitioner's compliance
with the requirement of publication, the trial court
commissioned the branch clerk of court to receive the
petitioner's evidence. Accordingly, the petitioner submitted his
evidence and presented Vicente Timkang, one of the
subscribing witnesses to the will, who testified on its
genuineness and due execution.
The trial court, thru then Presiding Judge Ramon C. Pamatian
issued the questioned order denying the probate of the will of
Dorotea Perez for want of a formality in its execution. In the
same order, the petitioner was also required to submit the
names of the intestate heirs with their corresponding
addresses so that they could be properly notified and could
intervene in the summary settlement of the estate.
Instead of complying with the order of the trial court, the
petitioner filed a manifestation and/or motion, ex partepraying
for a thirty-day period within which to deliberate on any step to
be taken as a result of the disallowance of the will. He also
asked that the ten-day period required by the court to submit
the names of intestate heirs with their addresses be held in
abeyance.
The petitioner filed a motion for reconsideration of the order
denying the probate of the will. However, the motion together
with the previous manifestation and/or motion could not be
acted upon by the Honorable Ramon C. Pamatian due to his
transfer to his new station at Pasig, Rizal. The said motions or
incidents were still pending resolution when respondent Judge
Avelino S. Rosal assumed the position of presiding judge of
the respondent court.
Meanwhile, the petitioner filed a motion for the appointment of
special administrator.
Subsequently, the new Judge denied the motion for
reconsideration as well as the manifestation and/or motion
filed ex parte. In the same order of denial, the motion for the
appointment of special administrator was likewise denied
because of the petitioner's failure to comply with the order
requiring him to submit the names of' the intestate heirs and
their addresses.
The petitioner decided to file the present petition.
For the validity of a formal notarial will, does Article 805 of the
Civil Code require that the testatrix and all the three
instrumental and attesting witnesses sign at the end of the will
and in the presence of the testatrix and of one another?
Article 805 of the Civil Code provides:
Every will, other than a holographic will, must
be subscribed at the end thereof by the testator
himself or by the testator's name written by
some other person in his presence, and by his
express direction, and attested and subscribed
by three or more credible witnesses in the
presence of the testator and of one another.
The testator or the person requested by him to
write his name and the instrumental witnesses
of the will, shall also sign, as aforesaid, each
and every page thereof, except the last, on the
left margin, and all the pages shall be
numbered correlatively in letters placed on the
upper part of each page.
The attestation shall state the number of pages
used upon which the will is written, and the fact
that the testator signed the will and every page
thereof, or caused some other person to write
his name, under his express direction, in the
presence of the instrumental witnesses, and
that the lacier witnesses and signed the will and
the pages thereof in the presence of the
testator and of one another.
If the attestation clause is in a language not
known to the witnesses, it shall be interpreted
to the witnesses, it shall be interpreted to them.
The respondent Judge interprets the above-quoted provision
of law to require that, for a notarial will to be valid, it is not
enough that only the testatrix signs at the "end" but an the
three subscribing witnesses must also sign at the same place
or at the end, in the presence of the testatrix and of one
another because the attesting witnesses to a will attest not
merely the will itself but also the signature of the testator. It is
not sufficient compliance to sign the page, where the end of
the will is found, at the left hand margin of that page.
On the other hand, the petitioner maintains that Article 805 of
the Civil Code does not make it a condition precedent or a
matter of absolute necessity for the extrinsic validity of the wig
that the signatures of the subscribing witnesses should be
specifically located at the end of the wig after the signature of
the testatrix. He contends that it would be absurd that the
legislature intended to place so heavy an import on the space
or particular location where the signatures are to be found as
long as this space or particular location wherein the signatures
are found is consistent with good faith and the honest frailties
of human nature.
We find the petition meritorious.
Undoubtedly, under Article 805 of the Civil Code, the will must
be subscribed or signed at its end by the testator himself or by
the testator's name written by another person in his presence,
and by his express direction, and attested and subscribed by
three or more credible witnesses in the presence of the
testator and of one another.
It must be noted that the law uses the
terms attested and subscribed Attestation consists in
witnessing the testator's execution of the will in order to see
and take note mentally that those things are, done which the
statute requires for the execution of a will and that the
signature of the testator exists as a fact. On the other hand,
subscription is the signing of the witnesses' names upon the
same paper for the purpose of Identification of such paper as
the will which was executed by the testator. (Ragsdale v. Hill,
269 SW 2d 911).
Insofar as the requirement of subscription is concerned, it is
our considered view that the will in this case was subscribed in
a manner which fully satisfies the purpose of Identification.
The signatures of the instrumental witnesses on the left margin
of the first page of the will attested not only to the genuineness
of the signature of the testatrix but also the due execution of
the will as embodied in the attestation clause.
While perfection in the drafting of a will may be desirable,
unsubstantial departure from the usual forms should be
ignored, especially where the authenticity of the will is not
assailed. (Gonzales v. Gonzales, 90 Phil. 444, 449).
The law is to be liberally construed, "the underlying and
fundamental objective permeating the provisions on the law on
wills in this project consists in the liberalization of the manner
of their execution with the end in view of giving the testator
more freedom in expressing his last wishes but with sufficient
safeguards and restrictions to prevent the commission of fraud
and the exercise of undue and improper pressure and
influence upon the testator. This objective is in accord with the
modern tendency in respect to the formalities in the execution
of a will" (Report of the Code commission, p. 103).
Parenthetically, Judge Ramon C. Pamatian stated in his
questioned order that were not for the defect in the place of
signatures of the witnesses, he would have found the
testimony sufficient to establish the validity of the will.
The objects of attestation and of subscription were fully met
and satisfied in the present case when the instrumental
witnesses signed at the left margin of the sole page which
contains all the testamentary dispositions, especially so when
the will was properly Identified by subscribing witness Vicente
Timkang to be the same will executed by the testatrix. There
was no question of fraud or substitution behind the questioned
order.
We have examined the will in question and noticed that the
attestation clause failed to state the number of pages used in
writing the will. This would have been a fatal defect were it not
for the fact that, in this case, it is discernible from the entire
wig that it is really and actually composed of only two pages
duly signed by the testatrix and her instrumental witnesses. As
earlier stated, the first page which contains the entirety of the
testamentary dispositions is signed by the testatrix at the end
or at the bottom while the instrumental witnesses signed at the
left margin. The other page which is marked as "Pagina dos"
comprises the attestation clause and the acknowledgment.
The acknowledgment itself states that "This Last Will and
Testament consists of two pages including this page".
In Singson v. Florentino, et al. (92 Phil. 161, 164), this Court
made the following observations with respect to the purpose of
the requirement that the attestation clause must state the
number of pages used:
The law referred to is article 618 of the Code of
Civil Procedure, as amended by Act No. 2645,
which requires that the attestation clause shall
state the number of pages or sheets upon
which the win is written, which requirement has
been held to be mandatory as an effective
safeguard against the possibility of interpolation
or omission of some of the pages of the will to
the prejudice of the heirs to whom the property
is intended to be bequeathed (In re will of
Andrada, 42 Phil., 180; Uy Coque vs. Navas L.
Sioca, 43 Phil. 405; Gumban vs. Gorecho, 50
Phil. 30; Quinto vs. Morata, 54 Phil. 481;
Echevarria vs. Sarmiento, 66 Phil. 611).
The ratio decidendi of these cases seems to be
that the attestation clause must contain a
statement of the number of sheets or pages
composing the will and that if this is missing or
is omitted, it will have the effect of invalidating
the will if the deficiency cannot be supplied, not
by evidence aliunde, but by a consideration or
examination of the will itself. But here the
situation is different. While the attestation
clause does not state the number of sheets or
pages upon which the will is written, however,
the last part of the body of the will contains a
statement that it is composed of eight pages,
which circumstance in our opinion takes this
case out of the rigid rule of construction and
places it within the realm of similar cases where
a broad and more liberal view has been
adopted to prevent the will of the testator from
being defeated by purely technical
considerations.
Icasiano v. Icasiano (11 SCRA 422, 429) has the following
ruling which applies a similar liberal approach:
... Impossibility of substitution of this page is
assured not only (sic) the fact that the testatrix
and two other witnesses did sign the defective
page, but also by its bearing the coincident
imprint of the seal of the notary public before
whom the testament was ratified by testatrix
and all three witnesses. The law should not be
so strictly and literally interpreted as to penalize
the testatrix on account of the inadvertence of a
single witness over whose conduct she had no
control where the purpose of the law to
guarantee the Identity of the testament and its
component pages is sufficiently attained, no
intentional or deliberate deviation existed, and
the evidence on record attests to the fun
observance of the statutory requisites.
Otherwise, as stated in Vda. de Gil. Vs.
Murciano, 49 Off. Gaz. 1459, at 1479 (decision
on reconsideration) 'witnesses may sabotage
the will by muddling or bungling it or the
attestation clause.
WHEREFORE, the present petition is hereby granted. The
orders of the respondent court which denied the probate of tile
will, the motion for reconsideration of the denial of probate,
and the motion for appointment of a special administrator are
set aside. The respondent court is ordered to allow the probate
of the wig and to conduct further proceedings in accordance
with this decision. No pronouncement on costs.
SO ORDERED.

Melencio-Herrera (Acting Chairperson), Plana, Vasquez and

Relova, JJ., concur.

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

The decree entered by the court below admitting the

instrument propounded therein to probate as the last will and
testament of Pedro Rimando, deceased, is affirmed with costs
of this instance against the appellant.

Arellano, C. J., Mapa, Moreland and Trent, JJ., concur.

 [G.R. No. 124371. November 23, 2000]
PAULA T. LLORENTE, petitioner, vs. COURT OF APPEALS
and ALICIA F. LLORENTE, respondents.
DECISION
PARDO, J.:
The Case
The case raises a conflict of laws issue.
What is before us is an appeal from the decision of the
Court of Appeals[1] modifying that of the Regional Trial Court,
Camarines Sur, Branch 35, Iriga City [2] declaring respondent
Alicia F. Llorente (herinafter referred to as Alicia), as co-
owners of whatever property she and the deceased Lorenzo
N. Llorente (hereinafter referred to as Lorenzo) may have
acquired during the twenty-five (25) years that they lived
together as husband and wife.
The Facts
The deceased Lorenzo N. Llorente was an enlisted
serviceman of the United States Navy from March 10, 1927 to
September 30, 1957.[3]
On February 22, 1937, Lorenzo and petitioner Paula
Llorente (hereinafter referred to as Paula) were married before
a parish priest, Roman Catholic Church, in Nabua, Camarines
Sur.[4]
Before the outbreak of the Pacific War, Lorenzo departed
for the United States and Paula stayed in the conjugal home in
barrio Antipolo, Nabua, Camarines Sur.[5]
On November 30, 1943, Lorenzo was admitted to United
States citizenship and Certificate of Naturalization No.
5579816 was issued in his favor by the United States District
Court, Southern District of New York.[6]
Upon the liberation of the Philippines by the American
Forces in 1945, Lorenzo was granted an accrued leave by the
U. S. Navy, to visit his wife and he visited the Philippines. [7] He
discovered that his wife Paula was pregnant and was living in
and having an adulterous relationship with his brother,
Ceferino Llorente.[8]
On December 4, 1945, Paula gave birth to a boy
registered in the Office of the Registrar of Nabua as Crisologo
Llorente, with the certificate stating that the child was not
legitimate and the line for the fathers name was left blank.[9]
Lorenzo refused to forgive Paula and live with her. In fact,
on February 2, 1946, the couple drew a written agreement to
the effect that (1) all the family allowances allotted by the
United States Navy as part of Lorenzos salary and all other
obligations for Paulas daily maintenance and support would be
suspended; (2) they would dissolve their marital union in
accordance with judicial proceedings; (3) they would make a
separate agreement regarding their conjugal property acquired
during their marital life; and (4) Lorenzo would not prosecute
Paula for her adulterous act since she voluntarily admitted her
fault and agreed to separate from Lorenzo peacefully. The
agreement was signed by both Lorenzo and Paula and was
witnessed by Paulas father and stepmother. The agreement
was notarized by Notary Public Pedro Osabel.[10]
Lorenzo returned to the United States and on November
16, 1951 filed for divorce with the Superior Court of the State
of California in and for the County of San Diego. Paula was
represented by counsel, John Riley, and actively participated
in the proceedings. On November 27, 1951, the Superior
Court of the State of California, for the County of San Diego
found all factual allegations to be true and issued an
interlocutory judgment of divorce.[11]
On December 4, 1952, the divorce decree became final.[12]
In the meantime, Lorenzo returned to the Philippines.
On January 16, 1958, Lorenzo married Alicia F. Llorente in
Manila.[13] Apparently, Alicia had no knowledge of the first
marriage even if they resided in the same town as Paula, who
did not oppose the marriage or cohabitation.[14]
From 1958 to 1985, Lorenzo and Alicia lived together as
husband and wife.[15] Their twenty-five (25) year union
produced three children, Raul, Luz and Beverly, all surnamed
Llorente.[16]
On March 13, 1981, Lorenzo executed a Last Will and
Testament. The will was notarized by Notary Public Salvador
M. Occiano, duly signed by Lorenzo with attesting witnesses
Francisco Hugo, Francisco Neibres and Tito Trajano. In the
will, Lorenzo bequeathed all his property to Alicia and their
three children, to wit:
(1) I give and bequeath to my wife ALICIA R. FORTUNO
exclusively my residential house and lot, located at San
Francisco, Nabua, Camarines Sur, Philippines, including ALL
the personal properties and other movables or belongings that
may be found or existing therein;
(2) I give and bequeath exclusively to my wife Alicia R. Fortuno
and to my children, Raul F. Llorente, Luz F. Llorente and
Beverly F. Llorente, in equal shares, all my real properties
whatsoever and wheresoever located, specifically my real
properties located at Barangay Aro-Aldao, Nabua, Camarines
Sur; Barangay Paloyon, Nabua, Camarines Sur; Barangay
Baras, Sitio Puga, Nabua, Camarines Sur; and Barangay
Paloyon, Sitio Nalilidong, Nabua, Camarines Sur;
(3) I likewise give and bequeath exclusively unto my wife Alicia
R. Fortuno and unto my children, Raul F. Llorente, Luz F.
Llorente and Beverly F. Llorente, in equal shares, my real
properties located in Quezon City Philippines, and covered by
Transfer Certificate of Title No. 188652; and my lands in
Antipolo, Rizal, Philippines, covered by Transfer Certificate of
Title Nos. 124196 and 165188, both of the Registry of Deeds
of the province of Rizal, Philippines;
(4) That their respective shares in the above-mentioned
properties, whether real or personal properties, shall not be
disposed of, ceded, sold and conveyed to any other persons,
but could only be sold, ceded, conveyed and disposed of by
and among themselves;
(5) I designate my wife ALICIA R. FORTUNO to be the sole
executor of this my Last Will and Testament, and in her default
or incapacity of the latter to act, any of my children in the order
of age, if of age;
(6) I hereby direct that the executor named herein or her lawful
substitute should served (sic) without bond;
(7) I hereby revoke any and all my other wills, codicils, or
testamentary dispositions heretofore executed, signed, or
published, by me;
(8) It is my final wish and desire that if I die, no relatives of
mine in any degree in the Llorentes Side should ever bother
and disturb in any manner whatsoever my wife Alicia R.
Fortunato and my children with respect to any real or personal
properties I gave and bequeathed respectively to each one of
them by virtue of this Last Will and Testament.[17]
On December 14, 1983, Lorenzo filed with the Regional
Trial Court, Iriga, Camarines Sur, a petition for the probate and
allowance of his last will and testament wherein Lorenzo
moved that Alicia be appointed Special Administratrix of his
estate.[18]
On January 18, 1984, the trial court denied the motion for
the reason that the testator Lorenzo was still alive.[19]
On January 24, 1984, finding that the will was duly
executed, the trial court admitted the will to probate.[20]
On June 11, 1985, before the proceedings could be
terminated, Lorenzo died.[21]
On September 4, 1985, Paula filed with the same court a
petition[22] for letters of administration over Lorenzos estate in
her favor. Paula contended (1) that she was Lorenzos
surviving spouse, (2) that the various property were acquired
during their marriage, (3) that Lorenzos will disposed of all his
property in favor of Alicia and her children, encroaching on her
legitime and 1/2 share in the conjugal property.[23]
On December 13, 1985, Alicia filed in the testate
proceeding (Sp. Proc. No. IR-755), a petition for the issuance
of letters testamentary.[24]
On October 14, 1985, without terminating the testate
proceedings, the trial court gave due course to Paulas petition
in Sp. Proc. No. IR-888.[25]
On November 6, 13 and 20, 1985, the order was
published in the newspaper Bicol Star.[26]
On May 18, 1987, the Regional Trial Court issued a joint
decision, thus:
Wherefore, considering that this court has so found that the
divorce decree granted to the late Lorenzo Llorente is void and
inapplicable in the Philippines, therefore the marriage he
contracted with Alicia Fortunato on January 16, 1958 at Manila
is likewise void. This being so the petition of Alicia F. Llorente
for the issuance of letters testamentary is denied. Likewise,
she is not entitled to receive any share from the estate even if
the will especially said so her relationship with Lorenzo having
gained the status of paramour which is under Art. 739 (1).
On the other hand, the court finds the petition of Paula Titular
Llorente, meritorious, and so declares the intrinsic disposition
of the will of Lorenzo Llorente dated March 13, 1981 as void
and declares her entitled as conjugal partner and entitled to
one-half of their conjugal properties, and as primary
compulsory heir, Paula T. Llorente is also entitled to one-third
of the estate and then one-third should go to the illegitimate
children, Raul, Luz and Beverly, all surname (sic) Llorente, for
them to partition in equal shares and also entitled to the
remaining free portion in equal shares.
Petitioner, Paula Llorente is appointed legal administrator of
the estate of the deceased, Lorenzo Llorente. As such let the
corresponding letters of administration issue in her favor upon
her filing a bond in the amount (sic) of P100,000.00
conditioned for her to make a return to the court within three
(3) months a true and complete inventory of all goods,
chattels, rights, and credits, and estate which shall at any time
come to her possession or to the possession of any other
person for her, and from the proceeds to pay and discharge all
debts, legacies and charges on the same, or such dividends
thereon as shall be decreed or required by this court; to render
a true and just account of her administration to the court within
one (1) year, and at any other time when required by the court
and to perform all orders of this court by her to be performed.
On the other matters prayed for in respective petitions for want
of evidence could not be granted.
SO ORDERED.[27]
In time, Alicia filed with the trial court a motion for
reconsideration of the aforequoted decision.[28]
On September 14, 1987, the trial court denied Alicias
motion for reconsideration but modified its earlier decision,
stating that Raul and Luz Llorente are not children legitimate
or otherwise of Lorenzo since they were not legally adopted by
him.[29] Amending its decision of May 18, 1987, the trial court
declared Beverly Llorente as the only illegitimate child of
Lorenzo, entitling her to one-third (1/3) of the estate and one-
third (1/3) of the free portion of the estate.[30]
On September 28, 1987, respondent appealed to the
Court of Appeals.[31]
On July 31, 1995, the Court of Appeals promulgated its
decision, affirming with modification the decision of the trial
court in this wise:
WHEREFORE, the decision appealed from is hereby
AFFIRMED with the MODIFICATION that Alicia is declared as
co-owner of whatever properties she and the deceased may
have acquired during the twenty-five (25) years of
cohabitation.
SO ORDERED.[32]
On August 25, 1995, petitioner filed with the Court of
Appeals a motion for reconsideration of the decision.[33]
On March 21, 1996, the Court of Appeals, [34] denied the
motion for lack of merit.
Hence, this petition.[35]
The Issue
Stripping the petition of its legalese and sorting through
the various arguments raised,[36] the issue is simple. Who are
entitled to inherit from the late Lorenzo N. Llorente?
We do not agree with the decision of the Court of
Appeals. We remand the case to the trial court for ruling on the
intrinsic validity of the will of the deceased.
The Applicable Law
The fact that the late Lorenzo N. Llorente became an
American citizen long before and at the time of: (1) his divorce
from Paula; (2) marriage to Alicia; (3) execution of his will; and
(4) death, is duly established, admitted and undisputed.
Thus, as a rule, issues arising from these incidents are
necessarily governed by foreign law.
The Civil Code clearly provides:
Art. 15. Laws relating to family rights and duties, or to the
status, condition and legal capacity of persons are binding
upon citizens of the Philippines, even though living abroad.
Art. 16. Real property as well as personal property is subject to
the law of the country where it is situated.
However, intestate and testamentary succession, 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. (emphasis
ours)
True, foreign laws do not prove themselves in our
jurisdiction and our courts are not authorized to take judicial
notice of them. Like any other fact, they must be alleged and
proved.[37]
While the substance of the foreign law was pleaded, the
Court of Appeals did not admit the foreign law. The Court of
Appeals and the trial court called to the fore
the renvoi doctrine, where the case was referred back to the
law of the decedents domicile, in this case, Philippine law.
We note that while the trial court stated that the law of
New York was not sufficiently proven, in the same breath it
made the categorical, albeit equally unproven statement that
American law follows the domiciliary theory hence, Philippine
law applies when determining the validity of Lorenzos will.[38]
First, there is no such thing as one American law. The
"national law" indicated in Article 16 of the Civil Code cannot
possibly apply to general American law. There is no such law
governing the validity of testamentary provisions in the United
States. Each State of the union has its own law applicable to
its citizens and in force only within the State. It can therefore
refer to no other than the law of the State of which the
decedent was a resident.[39] Second, there is no showing that
the application of the renvoi doctrine is called for or required
by New York State law.
The trial court held that the will was intrinsically invalid
since it contained dispositions in favor of Alice, who in the trial
courts opinion was a mere paramour. The trial court threw the
will out, leaving Alice, and her two children, Raul and Luz, with
nothing.
The Court of Appeals also disregarded the will. It declared
Alice entitled to one half (1/2) of whatever property she and
Lorenzo acquired during their cohabitation, applying Article
144 of the Civil Code of the Philippines.
The hasty application of Philippine law and the complete
disregard of the will, already probated as duly executed in
accordance with the formalities of Philippine law, is
fatal, especially in light of the factual and legal
circumstances here obtaining.
Validity of the Foreign Divorce
In Van Dorn v. Romillo, Jr.[40] we held that owing to the
nationality principle embodied in Article 15 of the Civil Code,
only Philippine nationals are covered by the policy against
absolute divorces, the same being considered contrary to our
concept of public policy and morality. In the same case, the
Court ruled that aliens may obtain divorces abroad, provided
they are valid according to their national law.
Citing this landmark case, the Court held in Quita v. Court
of Appeals,[41] that once proven that respondent was no longer
a Filipino citizen when he obtained the divorce from petitioner,
the ruling in Van Dorn would become applicable and petitioner
could very well lose her right to inherit from him.
In Pilapil v. Ibay-Somera,[42] we recognized the divorce
obtained by the respondent in his country, the Federal
Republic of Germany. There, we stated that divorce and its
legal effects may be recognized in the Philippines insofar as
respondent is concerned in view of the nationality principle in
our civil law on the status of persons.
For failing to apply these doctrines, the decision of the
Court of Appeals must be reversed.[43] We hold that the divorce
obtained by Lorenzo H. Llorente from his first wife Paula was
valid and recognized in this jurisdiction as a matter of
comity. Now, the effects of this divorce (as to the succession to
the estate of the decedent) are matters best left to the
determination of the trial court.
Validity of the Will
The Civil Code provides:
Art. 17. The forms and solemnities of contracts, wills, and
other public instruments shall be governed by the laws of the
country in which they are executed.
When the acts referred to are executed before the diplomatic
or consular officials of the Republic of the Philippines in a
foreign country, the solemnities established by Philippine laws
shall be observed in their execution. (underscoring ours)
The clear intent of Lorenzo to bequeath his property to his
second wife and children by her is glaringly shown in the will
he executed. We do not wish to frustrate his wishes, since he
was a foreigner, not covered by our laws on family rights and
duties, status, condition and legal capacity.[44]
Whether the will is intrinsically valid and who shall inherit
from Lorenzo are issues best proved by foreign law which
must be pleaded and proved. Whether the will was executed in
accordance with the formalities required is answered by
referring to Philippine law. In fact, the will was duly probated.
As a guide however, the trial court should note that
whatever public policy or good customs may be involved in our
system of legitimes, Congress did not intend to extend the
same to the succession of foreign nationals. Congress
specifically left the amount of successional rights to the
decedent's national law.[45]
Having thus ruled, we find it unnecessary to pass upon
the other issues raised.
The Fallo
WHEREFORE, the petition is GRANTED. The decision of
the Court of Appeals in CA-G. R. SP No. 17446 promulgated
on July 31, 1995 is SET ASIDE.
In lieu thereof, the Court REVERSES the decision of the
Regional Trial Court and RECOGNIZES as VALID the decree
of divorce granted in favor of the deceased Lorenzo N.
Llorente by the Superior Court of the State of California in and
for the County of San Diego, made final on December 4, 1952.
Further, the Court REMANDS the cases to the court of
origin for determination of the intrinsic validity of Lorenzo N.
Llorentes will and determination of the parties successional
rights allowing proof of foreign law with instructions that the
trial court shall proceed with all deliberate dispatch to settle the
estate of the deceased within the framework of the Rules of
Court.
No costs.
SO ORDERED.
Davide, Jr., C.J., (Chairman), Puno,
Kapunan, and Ynares-Santiago, JJ., concur.
G.R. No. L-54919 May 30, 1984
POLLY CAYETANO, petitioner,
vs.
HON. TOMAS T. LEONIDAS, in his capacity as the
Presiding Judge of Branch XXXVIII, Court of First Instance
of Manila and NENITA CAMPOS PAGUIA, respondents.
Ermelo P. Guzman for petitioner.
Armando Z. Gonzales for private respondent.
GUTIERREZ, JR., J.:
This is a petition for review on certiorari, seeking to annul the
order of the respondent judge of the Court of First Instance of
Manila, Branch XXXVIII, which admitted to and allowed the
probate of the last will and testament of Adoracion C. Campos,
after an ex-parte presentation of evidence by herein private
respondent.
On January 31, 1977, Adoracion C. Campos died, leaving her
father, petitioner Hermogenes Campos and her sisters, private
respondent Nenita C. Paguia, Remedios C. Lopez and Marieta
C. Medina as the surviving heirs. As Hermogenes Campos
was the only compulsory heir, he executed an Affidavit of
Adjudication under Rule 74, Section I of the Rules of Court
whereby he adjudicated unto himself the ownership of the
entire estate of the deceased Adoracion Campos.
Eleven months after, on November 25, 1977, Nenita C. Paguia
filed a petition for the reprobate of a will of the deceased,
Adoracion Campos, which was allegedly executed in the
United States and for her appointment as administratrix of the
estate of the deceased testatrix.
In her petition, Nenita alleged that the testatrix was an
American citizen at the time of her death and was a permanent
resident of 4633 Ditman Street, Philadelphia, Pennsylvania,
U.S.A.; that the testatrix died in Manila on January 31, 1977
while temporarily residing with her sister at 2167 Leveriza,
Malate, Manila; that during her lifetime, the testatrix made her
last wig and testament on July 10, 1975, according to the laws
of Pennsylvania, U.S.A., nominating Wilfredo Barzaga of New
Jersey as executor; that after the testatrix death, her last will
and testament was presented, probated, allowed, and
registered with the Registry of Wins at the County of
Philadelphia, U.S.A., that Clement L. McLaughlin, the
administrator who was appointed after Dr. Barzaga had
declined and waived his appointment as executor in favor of
the former, is also a resident of Philadelphia, U.S.A., and that
therefore, there is an urgent need for the appointment of an
administratrix to administer and eventually distribute the
properties of the estate located in the Philippines.
On January 11, 1978, an opposition to the reprobate of the will
was filed by herein petitioner alleging among other things, that
he has every reason to believe that the will in question is a
forgery; that the intrinsic provisions of the will are null and void;
and that even if pertinent American laws on intrinsic provisions
are invoked, the same could not apply inasmuch as they would
work injustice and injury to him.
On December 1, 1978, however, the petitioner through his
counsel, Atty. Franco Loyola, filed a Motion to Dismiss
Opposition (With Waiver of Rights or Interests) stating that he
"has been able to verify the veracity thereof (of the will) and
now confirms the same to be truly the probated will of his
daughter Adoracion." Hence, an ex-partepresentation of
evidence for the reprobate of the questioned will was made.
On January 10, 1979, the respondent judge issued an order, to
wit:
At the hearing, it has been satisfactorily
established that Adoracion C. Campos, in her
lifetime, was a citizen of the United States of
America with a permanent residence at 4633
Ditman Street, Philadelphia, PA 19124, (Exhibit
D) that when alive, Adoracion C. Campos
executed a Last Will and Testament in the
county of Philadelphia, Pennsylvania, U.S.A.,
according to the laws thereat (Exhibits E-3 to E-
3-b) that while in temporary sojourn in the
Philippines, Adoracion C. Campos died in the
City of Manila (Exhibit C) leaving property both
in the Philippines and in the United States of
America; that the Last Will and Testament of the
late Adoracion C. Campos was admitted and
granted probate by the Orphan's Court Division
of the Court of Common Pleas, the probate
court of the Commonwealth of Pennsylvania,
County of Philadelphia, U.S.A., and letters of
administration were issued in favor of Clement
J. McLaughlin all in accordance with the laws of
the said foreign country on procedure and
allowance of wills (Exhibits E to E-10); and that
the petitioner is not suffering from any
disqualification which would render her unfit as
administratrix of the estate in the Philippines of
the late Adoracion C. Campos.
WHEREFORE, the Last Will and Testament of
the late Adoracion C. Campos is hereby
admitted to and allowed probate in the
Philippines, and Nenita Campos Paguia is
hereby appointed Administratrix of the estate of
said decedent; let Letters of Administration with
the Will annexed issue in favor of said
Administratrix upon her filing of a bond in the
amount of P5,000.00 conditioned under the
provisions of Section I, Rule 81 of the Rules of
Court.
Another manifestation was filed by the petitioner on April 14,
1979, confirming the withdrawal of his opposition,
acknowledging the same to be his voluntary act and deed.
On May 25, 1979, Hermogenes Campos filed a petition for
relief, praying that the order allowing the will be set aside on
the ground that the withdrawal of his opposition to the same
was secured through fraudulent means. According to him, the
"Motion to Dismiss Opposition" was inserted among the
papers which he signed in connection with two Deeds of
Conditional Sales which he executed with the Construction
and Development Corporation of the Philippines (CDCP). He
also alleged that the lawyer who filed the withdrawal of the
opposition was not his counsel-of-record in the special
proceedings case.
The petition for relief was set for hearing but the petitioner
failed to appear. He made several motions for postponement
until the hearing was set on May 29, 1980.
On May 18, 1980, petitioner filed another motion entitled
"Motion to Vacate and/or Set Aside the Order of January 10,
1979, and/or dismiss the case for lack of jurisdiction. In this
motion, the notice of hearing provided:
 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 Dasmariñas,
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.

SO ORDERED.

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

concur.

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

G.R. Nos. L-46430-31 July 30, 1979
FRANCISCA ALSUA-BETTS, JOSEPH O. BETTS, JOSE
MADARETA, ESTEBAN P. RAMIREZ, and THE REGISTER
OF DEEDS FOR ALBAY PROVINCE, petitioners,
vs.
COURT OF APPEALS, AMPARO ALSUA BUENVIAJE,
FERNANDO BUENVIAJE, FERNANDO ALSUA,
represented by his guardian, CLOTILDE S. ALSUA and
PABLO ALSUA, respondents.
Rafael Triumfante for petitioners.
Sabido-Sabido & Associates and Madrid Law Office for private
respondents.
GUERRERO, J.:1äwphï1.ñët
This is an appeal by certiorari from the decision of the Court of
Appeals in CA-G.R. Nos. 54492-R and 54493-R which
reversed the decision of the Court of First Instance of Albay
allowing the probate of the win of Don Jesus Alsua in Special
Proceedings No. 699 and dismissing the complaint in Civil
Case 3068 after declaring the two deeds of sale executed by
Don Jesus Alsua legal and valid. The respondent
court 1 denied the probate of the will, declared null and void
the two sales subject of the complaint and ordered the
defendants, petitioners herein, to pay damages to the
plaintiffs, now the private respondents, the sum of Five
Thousand Pesos (P5,000.00), to render an accounting of the
properties in their possession and to reimburse the latter the
net gain in the proportion that appertains to them in the
properties from the date of the firing of the complaint up to
complete restoration plus Fifty Thousand Pesos (P50,000.00)
as attorney's fees and costs.
The antecedent events leading to the filing of these two
consolidated actions are the following.
On November 25, 1949, Don Jesus Alsua and his wife, Doñ;a
Florentina Rella, both of Ligao, Albay, together with all their
living children, Francisca Alsua-Betts, Pablo Alsua, Fernando
Alsua thru this judicial guardian Clotilde Samson, and Amparo
Alsua de Buenviaje, entered into a duly notarized
agreement, Escritura de Particion Extrajudicial(Exhibit 8), over
the then present and existing properties of the spouses Don
Jesus and Doñ;a Florentina enumerated in a prepared
inventory, Exhibit 8-A, the essential features of which are
stated in private respondents' Brief, pp. 26-29, to wit: têñ.
£îhqwâ£
(1) Basis of the partition: Inventory (Annex A) of
all the properties of the Alsua spouses, which
inventory consists of 97 pages, all of them
signed by the spouses and all the above named
heirs in the left margin of every page (parafo
primers).
(2) An acknowledgment of the spouses that all
the properties described in the inventory (Annex
A) are conjugal properties with the exception of
five parcels of land Identified with the figures of
1 to 5 and 30 shares of San Miguel Brewery
stock which are paraphernal properties of the
late Doñ;a Tinay (segundo parafo).
(3) An acknowledgment that during their
marriage, they had nine children but five of
 them died minors, unmarried (parafo tercero y
cuatro).
(4) An acknowledgment that on the basis of
Article 1056 of the Civil Code (old) to avoid
Possible misunderstanding among their
children concerning the inheritance they are
entitled to in the event of death of one of them
they have decided to effectuate an extrajudicial
partition of all the properties described in Annex
"A" thereto under the following terms and
conditions: (Parafo quinto):
To Francisca Alsua, married to Joseph O. Betts were allotted
or assigned all the real properties with the improvements
thereon specifically described from pages 1-12 of said
inventory or, 34 parcels of land with a total land area of
5,720,364 sq. meters, with a book or appraised value of
P69,740.00.
To Pablo Alsua, married to Teresa Locsin were allotted or
assigned all the real properties with the improvements thereon
specifically described from pages 12-20 of said inventory or,
26 parcels of land with a total land area of 5,679,262 sq.
meters, with a book or appraised value of P55,940.00.
To Fernando Alsua, married to Clotilde Samson were allotted
or assigned all the real properties with the improvements
thereon specifically described from pages 20-33 of said
inventory or, 47 parcels of land with a total land area of
6,639,810 sq. meters, with a book or appraised value of
P89,300.00.
To Amparo Alsua, married to Fernando Buenviaje were allotted
or assigned all the real properties with the improvements
thereon specifically described from pages 33-47 of said
inventory or, 47 parcels of land with a total land area of
5,630,715 sq. meters, with a book or appraised value of
P58,830.00. têñ.£îhqwâ£
(a) Each and every one of the heirs named
above acknowledge and admit that the totality
of the properties allotted and adjudicated to the
heirs as described in the preceding paragraph,
constitute one half of the properties described
in Annex "A", including any amount of cash
deposited.
(b) That all the heirs acknowledge and admit
that all the properties assigned to them as their
hereditary portion represent one-half not only of
the conjugal properties but includes the
paraphernal properties — waiving now and
forever any complaint or claim they have or
they may have concerning the amount, value,
extension and location of the properties that are
allotted to each and everyone. They also waive
any claim they have or they may have over the
remaining portion of the properties, which
spouses reserved for themselves.
(c) That in case of death of one of the spouses,
each and everyone of the heirs acknowledge
that the properties which are left in the
possession of the surviving spouse, including
any amount in cash, are even less than the
one- half that should correspond in absolute
ownership as his legitimate participation in the
conjugal properties. In consequence they waive
any claim that they have or may have over said
portion of said properties or any amount in cash
during the lifetime of the surviving spouse,
including any right or claim they have or they
may have over the paraphernal properties of
Doñ;a Tinay in the event the surviving spouse is
Don Jesus.
(d) The spouses on their part in case of death
of any one of them, the surviving spouse
waives any claim he or she may have over the
properties assigned or adjudicated to the heirs
under and by virtue of this deed. The properties
which were reserved for them (the spouses)
should be considered as his or her legitimate
participation in the conjugal properties and the
fair compensation of his or her usufruct on the
properties that the surviving spouse reserved
for himself or herself which shag be distributed
in equal shares among the heirs upon his or her
death unless said properties of some of them
have been disposed of during the lifetime of the
surviving spouse.
(e) Any heir who may dare question the validity
and legitimacy of the provision contained herein
shall be under obligation to pay to the other
heirs, in the concept of damages and prejudice,
the sum of P5,000.00 plus attorney's fees.
(f) The provisions of this deed shall bind the
successors of the herein heirs.
(g) In the event of death of one of the spouses,
the properties assigned or adjudicated to each
and everyone of the heirs shall be considered
as his share or participation in the estate or as
his inheritance left by the deceased and each
heir shall become the absolute owner of the
properties adjudicated to him under this deed.
On January 5, 1955, Don Jesus and Doñ;a Florentina, also
known as Doñ;a Tinay separately executed their respective
holographic wills (Exhs. 6-B and 7-B), the provisions of which
were in conformity and in implementation of the extrajudicial
partition of November 25, 1949. Their holographic wills
similarly provided for the institution of the other to his or her
share in the conjugal properties, the other half of the conjugal
assets having been partitioned to constitute their legitime
among their four living children in the Extrajudicial Partition of
1949. The wigs also declared that in the event of future
acquisitions of other properties by either of them, one-half
thereof would belong to the other spouse, and the other half
shall be divided equally among the four children. The
holographic will of Doñ;a Tinay written in Spanish reads, as
translated: têñ.£îhqwâ£
TESTAMENT
I, FLORENTINA R. DE ALSUA, 67 years old,
Filipina, married to Don Jesus Alsua, resident of
and with postal address in the Municipality of
Ligao, Province of Albay, Philippines, being in
the full possession of my mental and physical
faculties freely and spontaneously execute this
my last will and testament in my handwriting
and signed by me and expressed in the
Spanish language which I speak, write and
understand, this 5th day of January, 1955 in the
Municipality of Ligao, Province of Albay, and in
which I ordain and provide:
First: That in or about the year 1906 I was
married to my husband Don Jesus Alsua and
begot nine (9) children with him, four (4) of
whom are still living and they are Francisco
Alsua, Pablo Alsua, Fernando Alsua and
Amparo Alsua. The other five (5) died during
their minority, single and without children.
Second: That after my marriage to my husband
Don Jesus Alsua and during our conjugal union,
and as a result of our efforts and industry, we
were able to acquire conjugal properties
consisting of abaca (abales) and cacao lands
and urban lands registered in the office of the
Registry of Property of the Province of Albay
and in the City of Manila.
Third: That I institute as my heirs with right to
inherit the following- my spouse Don Jesus
Alsua, one-half (1/2) of my properties, real and
personal, and the other half, to my children
Francisco Alsua, married to Joseph O. Betts,
Pablo Alsua, Fernando Alsua, married to
Clotilde Samson, and Amparo Alsua, married to
Fernando Buenviaje, in equal parts. It is to be
understood, however, that the other half that
corresponds as legitime to my above named
children have already been given to them,
pursuant to a document dated November 25,
1949 and ratified on the same day, month and
year before Notary Public Segundo G. Flores
(Reg. No. 525; Pag. 15; Lib. 11; Series of 1949)
enjoining each and everyone of them to respect
and faithfully comply with each and every
clause contained in the said document.
Fourth: That should I acquire new properties
after the execution of this testament, the same
shall be partitioned among my spouse and
above named children or the children
mentioned in above par. 3 in the same
proportion that is, one-half (1 1/2) to my
spouse; and the other half to my children in
equal parts.
Fifth: That I name as my executor my husband
Don Jesus Alsua without having to post any
bond.
IN VIRTUE WHEREOF, I hereby sign in my own
handwriting this testament on this 5th day of
January, 1955 in the Municipality of Ligao,
Province of Albay, Philippines. têñ.£îhqwâ£
(SGD.)
FLORENTI
NA R. DE
ALSUA
(Joint Record on appeal pp. 420-423, CA-G.R.
No. 54492-R)
As previously stated, Don Jesus Alsua executed a separate
but similar holographic will on the same day, Jan. 5, 1955 in
exactly the same terms and conditions as the above will of his
wife.
On May 21, 1956, the spouses Don Jesus and Doñ;a Tinay
filed before the Court of First Instance of Albay their respective
petitions for the probate of their respective holographic wins
which were docketed as Special Proceedings No. 484 (Jesus
Alsua, Petitioner) and Special Proceedings No. 485 (Doñ;a
Florentina Ralla de Alsua, Petitioner).
On August 14, 1956, the spouses Don Jesus and Doñ;a Tinay
executed their mutual and reciprocal codicils amending and
supplementing their respective holographic wins. Again, the
codicils similarly acknowledged and provided that one-half of
all the properties of the spouses, conjugal and paraphernal,
had been disposed of, conveyed to and partitioned among
their legitimate heirs in the "Escritura de Particion" of
November 25, 1949, but that they reserved for themselves (the
spouses Don Jesus and Doñ;a Tinay) the other half or those
not disposed of to the said legitimate heirs under the above
agreement of partition, and that they mutually and reciprocally
bequeathed unto each other their participation therein as well
as in all properties which might be acquired subsequently.
Each spouse also declared that should she or he be the
surviving spouse, whatever belongs to him or her or would
pertain to him or her, would be divided equally among the four
children. It was also declared in both codicils that upon the
death of either of the spouses, the surviving spouse was
designated mutually and reciprocally as the executor or
administrator of all the properties reserved for themselves.
The codicil executed by Doñ;a Tinay, written in Spanish reads,
as translated: têñ.£îhqwâ£
CODICIL
This codicil supplements and amends the
preceding testament. That my spouse and I
have agreed to divide the properties which we
have acquired into 2 parts. The 1/2 that would
correspond to me covers all the properties that I
have partitioned among my children in the
Document of Partition dated November 25,
1949 before Notary Public Segundo G. Flores,
Jr. (Doc. No. 525; Pag. No. 15; Lib. No. 11;
Series of 1949) (and) even as the properties
which by reason of this testament I leave to my
husband as his share and the other half that
corresponds to my husband constitutes an the
properties that up to now have not been
disposed of, particularly the urban lands
situated in Legaspi, Albay, Ligao of the Province
of Albay and in the City of Manila, with the
exception of that portion that I bequeath to my
husband as his inheritance and his legitimate.
That I institute as my heirs with the right to
inherit my husband Don Jesus Alsua and my
children Francisco Alsua, Pablo Alsua,
Fernando Alsua and Amparo Alsua. I leave to
my aforecited children all the properties
described in the above mentioned Document of
Partition dated November 25, 1949 which
correspond to each one of them and in the
profits (fruits) expressed in the same, and in the
event that the properties granted to one or any
of my children should exceed in quantity or
value those corresponding to another or others,
I hereby declare that it is my will that the same
be divided among my children as their
inheritance from the free portion of my property.
I leave to my spouse Don Jesus Alsua as his
legitime and as Ws inheritance the part of the
free portion of my property which have not been
allocated in favor of my children in the
Document of Partition aforecited and that which
should exceed 1/2 of the conjugal property of
gains that pertains to him as above stated,
including all those properties which we shall
acquire after the execution of this document.
 In case it should be God's will that I survive my bookkeeper and secretary, Esteban P. Ramirez, whom he
spouse, I hereby declare that it is my will that instructed to make a list of all his remaining properties with
any and all kinds of property that pertain to me their corresponding descriptions. His lawyer, Atty. Gregorio
or would pertain to me, which have not been imperial Sr. was then instructed to draft a new will which was
disposed of pursuant to the partition, should be duly signed by Don Jesus and his attesting witnesses on
divided equally among my above-mentioned November 14, 1959 at Ms home in Ligao, Albay. This notarial
heirs after my death. Ligao, Albay, Philippines, will and testament (Exh. A) of Don Jesus executed on
August 14,1956. têñ.£îhqw⣠November 14, 1959 had three essential features: (a) it
expressly cancelled, revoked and annulled all the provisions of
(SGD.) Don Jesus' holographic will of January 5, 1955 and his codicil
of August 14, 1956; (b) it provided for the collation of all his
FLORENTI
properties donated to his four living children by virtue of the
NA RALLA
"Escritura de Particion Extra. judicial" of 1949, and that such
DE ALSUA
properties be taken into account in the partition of his estate
(joint Record on Appeal pp. 423-425, CA-G.R. among the children; and (c) it instituted his children as
No. 54492-R) legatees/devisees of certain specific properties, and as to the
rest of the properties and whatever may be subsequently
And as stated previously, on the same day, August 14, 1956, acquired in the future, before his death, were to be given to
Don Jesus executed also a separate but similar codicil in Francisca and Pablo, naming Francesca as executrix to serve
exactly the same terms and conditions as the above codicil of without a bond.
his wife. Also on the same day of August 14, 1956, the
spouses Don Jesus and Doñ;a Tinay both filed their respective After all debts, funeral charges and other expenses of the
supplemental petitions for the probate of their respective estate of Doñ;a Tinay had been paid, all her heirs including
codicils in the probate proceedings earlier filed. On February Don Jesus, submitted to the probate court for approval a deed
19, 1957, their respective holographic wins and the codicils of partition executed on December 19, 1959 (Exh. 7-Q) and
thereto were duly admitted to probate. which essentially confirmed the provisions of the partition of
1949, the holographic will and codicil of Doñ;a Tinay. On July
Upon the death of Doñ;a Tinay on October 2, 1959, Don Jesus 6, 1960, the court approved the partition of 1959 and on
was named executor to serve without bond in an order issued January 6, 1961 declared the termination of the proceedings
by the probate court on October 13, 1959. Letters on the estate of Doñ;a Tinay.
testamentary having been issued in favor of Don Jesus, he
took his oath of office and performed his duties as such until On May 6,1964, Don Jesus Alsua died.
July 1, 1960.
On May 20, 1964, petitioner herein Francisca Alsua Betts, as
Thereafter in the early part of November, 1959, Don Jesus the executrix named in the will of November 14, 1959, filed a
cancelled his holographic will in the presence of his petition for the probate of said new will of Don Jesus Alsua
before the Court of First Instance of Albay and was docketed
as Special Proceedings No. 699. Oppositions thereto were
filed by Pablo, Amparo and Fernando, thru his judicial
guardian Clotilde Samson, on the following grounds: (a) that
Don Jesus was not of sound and disposing mind at the time of
the execution of the alleged will; (b) that the will was executed
under duress or influence of fear or threats; or it was procured
by undue and improper pressure and influence on the part of
the main beneficiaries and of person or persons in collusion
with them, or the signature of the testator was secured by or
thru fraud; (c) that the will was not executed according to the
formal requirements of the law; and (d) that the alleged will
subject of probate contravened the Extrajudicial Partition of
1949 agreed upon by him, his deceased spouse, Doñ;a Tinay,
and all his children, Francisco, Pablo, Amparo and Fernando
thru his judicial guardian Clotilde Samson, and also
contravened Don Jesus' own probated holographic will and
codicil of 1955 and 1956, respectively, essentially confirming
and implementing the said partition of 1949 which had already
been partially executed by all the signatories thereto in the
partition of the estate of Doñ;a Tinay in December, 1959.
On the basis of Francisca's designation as executrix in the
new will dated November 14, 1959, the Probate Court
appointed her Administratrix of the estate of her late father,
Don Jesus Alsua. She then filed with the Probate Court an
inventory of the properties of the estate which, according to
the oppositors therein (the private respondents now) did not
include some properties appearing in the agreement of
November 25. 1949 or in the inventory attached thereto as
Annex "A" and in the "Escritura de Particion" of December 19,
1959 as belonging to or should pertain to Don Jesus.
According to the oppositors, these properties consist of thirty-
three (33) premium agricultural lots with a total land area of
1,187,970 square meters, or approximately 119 hectares and
with a total assessed value of P48,410.00 or a probable total
market value of P238,000.00 at only P2,000.00 per hectare,
and four (4) commercial urban lots Ideally located in the
business section of Legazpi City including the lot and the
building presently occupied by the well-known "Mayon Hotel"
with an assessed value of approximately P117,260.00 or a
probable market value at the time of P469,040.00. It appearing
from the new will that these properties were bequeathed to
Pablo Alsua and Francisco Alsua-Betts, specifically, 3 parcels
of the 33 agricultural lands to Pablo and the rest to Francisco,
the oppositors also raised in issue the non-inclusion of said
properties in the inventory of the estate of their late father. In
answer, Francisco claimed ownership over the same, alleging
that she bought the properties from their father and presenting
the two Deeds of Sale now being assailed, one dated August
26, 1961 purporting to show the sale of the 33 parcels of
agricultural land to Francisco by their father for the price of
P70,000.00 and the other dated November 26, 1962
evidencing the sale of the four urban lots for the sum of
P80,000.00. Claiming fraud in the sales, the oppositors filed
Civil Case No. 3068, seeking the annulment of the aforesaid
two deeds of sale, with damages, which upon agreement of
the parties was then jointly heard and tried with Special
Proceedings No. 699 for probate of the Last Will and
Testament of Don Jesus executed on November 14, 1959.
After a joint hearing of the merits of these two cases, the Court
of First Instance of Albay promulgated a decision on January
15, 1973, the dispositive portion of which states: têñ.£îhqwâ£
WHEREFORE, in view of all the foregoing,
judgment is hereby rendered, to wit:
1. In Special Proceedings 699, the Court
hereby APPROVES and ALLOWS the Will
executed by Don Jesus Alsua at Ligao, Albay,
on November 14, 1959, which had been
 marked as Exhibit A, consisting of nine (9)
pages, and orders that the same be made the
basis for division and distribution of the estate
of said testator;
2. In Civil Case 3068, the Court hereby
dismisses the complaint and holds that the sale
on August 26, 1961 (Exh. U) and the sale on
November 26, 1962 (Exh. W), are lawful and
valid sales and accordingly conveyed title to the
VENDEE thereof. The Plaintiffs in Civil Case
3068. are ordered jointly and severally to pay to
the defendant, Francisco Alsua Betts Fifty
Thousand Pesos (P50,000.00) as damages and
Fifty Thousand (P50,000.00) Pesos for
attorney's fees or a total of One Hundred
Thousand Pesos (P100,000.00) and to pay the
costs.
On appeal by herein respondents to the Court of Appeals, the
court reversed the appealed decision in a judgment rendered
on April 4, 1977, the dispositive portion of which states, as
translated, thus —têñ.£îhqwâ£
IN VIEW OF THE FOREGOING, this Tribunal
finds itself constrained to set aside as it hereby
sets aside the decision appealed from in the
following manner: (1) in Special Proceedings
699, the probate of the will, Exh. A, is hereby
denied; (2) in Civil Case No. 3068, Exhs. U and
W and the titles issued on the basis thereof are
hereby declared null and void, ordering the
appellees Francisco Alsua and Joseph Betts to
pay to the plaintiffs in the concept of fixed
damages, the sum of P5,000.00 and to render
an accounting of properties in their possession
and to reimburse the plaintiffs the net gain, in
the proportion that appertains to them in the
properties subject of litigation in Civil Case No.
3068 from the date of the filing of this
complaint, up to the complete restoration of the
properties pertaining to (plaintiffs) pursuant to
Article 2208 of the New Civil Code, paragraph
11, ordering them in addition to pay to the
plaintiffs and oppositors the sum of P50,000.00
as attorney's fees, and the costs.
Hence, the petition at bar assailing the respondent court's
decision on four assigned errors, to wit: têñ.£îhqwâ£
I. The respondent Court of Appeals erred in not
affirming the findings of the probate court
(Special Proceedings No. 699) that private
respondents, oppositors to the probate of the
will, are in estoppel to question the competence
of testator Don Jesus Alsua.
II. The respondent Court of Appeals grossly
erred in holding that testator Don Jesus Alsua
cannot revoke his previous will.
III. The respondent court's finding is grounded
entirely on speculation, surmises or conjectures
resulting in a gross misapprehension of facts.
IV. The respondent court grossly erred in
annulling the sales of August 26, 1961 (Exh. U),
and of November 26, 1962 (Exh. W).
On the first issue of estoppel raised in the assignment of
errors, We hold that the same is of no moment. The
controversy as to the competency or incompetency of Don
Jesus Alsua to execute his will cannot be determined by acts 'The primary purpose of the
of the herein private respondents as oppositors to the will in proceeding is not to establish the
formally agreeing in writing jointly with the petitioner Francisca existence of the right of any
Alsua de Betts that their father, Don Jesus Alsua, be appointed living person, but to determine
by the court executor of the will of their mother in Special whether or not the decedent has
Proceedings No. 485, Testate Estate of Doñ;a Florentina Ralla performed the acts specified by
de Alsua and in subsequently petitioning the court not to the pertinent statutes, which are
require Don Jesus Alsua to file any accounting as executor in the essential prerequisites to
the proceedings, which petitioners claim and was upheld by personal direction of the mode of
the trial court as constituting estoppel on the part of the private devolution of his property on
respondents from questioning the competence of Don Jesus death. There is no legal but
Alsua. merely a moral duty resting upon
a proponent to attempt to
The principle of estoppel is not applicable in probate validate the wishes of the
proceedings, a ruling laid down in the case of Testate Estate departed, and he may and
of the Late Procopia Apostol Benedicta Obispo, et al vs. frequently does receive no
Remedios Obispo, 50 O.G. 614, penned by Justice J.B.L. personal benefit from the
Reyes, an eminent and recognized authority on Civil Law performance of the act.
when he was still in the Court of Appeals, and We quote: têñ.
£îhqw⣠One of the most fundamental
conceptions of probate law, is
Finally, probate proceedings involve public that it is the duty of the court to
interest, and the application therein of the rile of effectuate, in so far as may be
estoppel, when it win block the ascertainment of compatible with the public
the truth as to the circumstances surrounding interest, the devolutionary
the execution of a testament, would seem wishes of a deceased person
inimical to public policy. Over and above the (Matter of Watson's Wilt 262
interest of private parties is that of the state to N.Y., 284, 294, 186, N.E., 787;
see that testamentary dispositions be carried Matter of Marriman's Estate, 124
out if, and only if, executed conformably to law. Misc. 320, 325, 208, N.Y.S., 672;
Foley, S., affirmed 217 app. Div.,
The Supreme Court of New York aptly said in 733, 216 N.Y.S., 126,
Re Canfield's Will, 300 N.Y.S., 502: têñ. Henderson, S., Matter of
£îhqw⣠Draske's Estate, 160 Misc. 587,
593, 290, N.Y.S., 581). To that
end, the court is, in effect, an
 additional party to every litigation
affecting the disposal of the
assets of the deceased. Matter
of Van Valkenburgh's Estate, 164
Misc. 295, 298, N.Y.S., 219.'
The next issue that commands Our attention is whether the
respondent court erred in not allowing the probate of the last
will and testament of Don Jesus Alsua. Petitioners claim that
the disallowance was based on speculations, surmises or
conjectures, disregarding the facts as found by the trial court.
The Civil Court is very clear and explicit in providing the cases
where a will may be disallowed under Article 839 which
provides as follows: têñ.£îhqwâ£
Art. 839. The will shall be disallowed in any of
the following cases:
(1) If the formalities required by law have not
been complied with;
(2) If the testator was insane, or otherwise
mentally incapable of making a wilt at the time
of its execution;
(3) If it was executed through force or under
duress, or the influence of fear, or threats;
(4) If it was procured by undue and improper
pressure and influence, on the part of the
beneficiary or of some other person;
(5) If the signature of the testator was procured
by fraud,
(6) If the testator acted by mistake or did not
intend that the instrument he signed should be
his will at the time of affixing his signature
thereto.
The issue under consideration appears to Us to have been
answered by the respondent court itself when it accepted the
findings of the trial court on the due execution of the
questioned will and testament of Don Jesus, declaring: têñ.
£îhqwâ£
... and going back to the previous question,
whether the questioned will and testament of
November 14, 1959, Exh. A, was executed in
accordance with Arts. 805-809 of the New Civil
Code, this Tribunal from the very beginning
accepts the findings of the inferior court
concerning the question, têñ.£îhqwâ£
On October 2, 1959, Doñ;a
Florentina died at Ligao, Albay.
About 2 weeks after said death
of his wife, Don Jesus Alsua
decided to make a new will,
thereby revoking and cancelling
his previous holographic will
which he made on January 5,
1955 and also its codicil dated
August 14, 1956. In the
presence of his bookkeeper and
secretary, Esteban P. Ramirez,
he crossed out in ink each and
every page of said page he
wrote on each page the word
"cancelado", and affixed his
signature thereon (Exh V-5, V-6,
consecutively up to and including
Exh. V-14). He then instructed
Ramirez to make a list of all s
properties with their
corresponding descriptions.
Meanwhile, Don Jesus Alsua
sent for his lawyer, Don Gregorio
Imperial, Sr. and the latter came
accompanied by his son, Atty.
Jorge S, Imperial, who,
incidentally, is now a judge of the
Court of First Instance of Naga
City, Camarines Sur. Don Jesus
informed his lawyers that he
wanted to make a new will, and
accordingly gave more detailed
instructions as to how he wanted
to divide his properties among
his four children. He handed to
them a list and on the left he
indicated the name of the child to
whom the listed properties shall
pertain. Atty. Jorge Imperial took
notes of the instructions of Don
Jesus Alsua. To Don Jesus,
Spanish is his major language,
as in fact his conversations with
Don Gregorio are always in
Spanish. A few days before
November 14, 1959, Atty. Jorge
S. Imperial showed to Don Jesus
the semi-final draft of the will and
after reading it Don Jesus said
that it was as directed by him,
and after making a few minor
corrections, he instructed Atty.
Jorge S. Imperial to put the win
in final form. He further told Atty,
Jorge Imperial that the signing of
the will should be at his home in
Ligao, in the morning of
November 14, 1959, and that the
witnesses should be Mr. Ramon
Balana, the then Register of
Deeds of Albay; Mr. Jose
Madarieta who is a friend of the
family; and Mr. Jose Gaya who is
a sort of employee of Don Jesus.
Thus in the morning of
November 14, 1959, Don
Gregorio and Atty. Jorge S.
Imperial, riding in a sedan,
stopped at the Legaspi
residence of Mr. Ramon Balana,
and informed the latter that Don
Jesus was requesting him to be
one of the attesting witnesses to
his will. Mr. Balana, having a
very high regard for Don Jesus,
considered it an honor to be so
asked, and gladly went with the
Imperials. They arrived at the
residence of Don Jesus at Ligao;
Albay, almost ten o'clock of that
morning, and they were ushered
in by Mr. Jose Gaya, and the
latter requested them to be
seated at the usual receiving
room on the ground floor while
he announced their arrival to
Don Jesus who was on the remark that it is about time to do
second floor. Soon Don Jesus what they were there for, and
came down, carrying with him this was followed by a more or
the will to be signed placed less statement from Jesus, who
inside a cartolina folder. He said: têñ.£îhqwâ£
greeted Don Gregorio, Mr.
Balan, and Atty. Imperial and 'Preisamente es
immediately joined them in por lo que he
conversation. Mr. Gaya called for Hamado a
Mr. Jose Madarieta, whose ustedes que esten
residence is just across the road presentes para
from the house of Don Jesus. ser testigos de rni
Mr. Madarieta was already ultimo voluntad y
informed by Don Jesus himself testamento que
about the fact of signing the will ha sido preparado
that morning, and so, on being por el abogado Sr.
advised by Mr. Gaya that the Gregorio Imperial
Imperials had already arrived, segun mis
Madarieta proceeded to the instrucciones
residence of Don Jesus, without cuyo documento
much delay. With the coming of tengo aqui
Madarieta and the coming back conmigo y
of Gaya, there were now six encuentro que,
people gathered in the living despues de lo he
room, namely: Don Jesus Alsua, leido, esta
Don Gregorio Imperial Atty. satisfactoriamente
Jorge S. Imperial Mr. Ramon hecho segun mis
Balana, Mr. Jose Madarieta, and instrucciones,
Mr. Jose Gaya. All the witnesses Como saben
who testified for the petitioner ustedes tengo
declared that Don Jesus was in cuatro (4) hijos
bright and lively conversation todos egos.' (pp.
which ran from problems of 43-44, t.s.n.,
farming and the merits of hearing of
French-made wines. At 1 1:00 December 7,
o'clock, Don Gregorio made a 1967, Sarte.
On request of Don Jesus, all of
them moved to the big round
table on another part of the
same sala for convenience in
signing because there were
chairs all around this table. The
will which consisted of nine
pages, with a duplicate, and
triplicate was laid on the round
table and the signing began, with
Atty. Jorge S. Imperial assisting
each person signing by
indicating the proper place
where the signature shall be
written. Don Jesus, as testator,
signed first. After signing the
original and the two other sets,
the three sets were then passed
to Mr. Ramon Balana who
signed as attesting witness. After
Mr. Balana, Mr. Jose Madarieta
signed next as another attesting
witness, and when Mr. Madarieta
finished signing all the three
sets, the same were passed to
Mr. Jose Gaya who also signed
as the third attesting witness. On
each of the three sets, Don
Jesus signed ten times, — one
on the margin of each of the nine
pages, and at the end of the
instrument proper. Each of the
three attesting witnesses
(Balana, Madarieta and Gaya)
signed eleven times on each set,
— one on the margin of each of
the nine pages, one at the end of
the instrument proper and one
below the attestation clause. The
original will was marked as Exh.
A (or set A); the duplicate as
Exh. K (or set K) and the
triplicate of Don Jesus, Mr.
Balana, Mr. Madarieta, and Mr.
Gaya were Identified by Mr.
Balana, Mr. Madarieta and Atty.
(now Judge) imperial. It was also
clearly established that when
Don Jesus signed the will Mr.
Balana, Mr. Madarieta, and Mr.
Gaya were present and
witnessed said signing, and that
when each of these three
witnesses was signing, Don
Jesus and the two other attesting
witnesses were present and
Witnessing said Signing. The
signing by the testator and the
attesting witnesses having been
completed, Atty. Jorge S.
Imperial as Notary Public with
commission for the entire
province of Albay, notarized the
wilt and sealed it with his notarial
seat which seal he brought along
that morning. After all the three
sets were notarized, they were
all given back to Don Jesus who
placed them inside the same
folder. At that moment, it was
already about 12:30 P.M. and
Don Jesus invited all of them to
 lunch, which invitation was gladly
accepted by all of then-L (pp.
474-480, Joint Record on Appeal
in CA-G.R. No. 54492-R)
which findings are supported by the evidence, -
it is quite difficult to conclude that the same had
not complied with the requirements of Arts. 804-
806 of the New Civil Code. ... (CA Decision, pp.
13-16, as translated).
This cited portion of the appealed decision accepts as a fact
that the findings of the lower court declaring the contested will
as having been executed with all the formal requirements of a
valid will, are supported by the evidence. This finding is
conclusive upon this Tribunal and We cannot alter, review or
revise the same. Hence, there is no further need for Us to
dwell on the matter as both the lower court and the respondent
appellate court have declared that these are the facts and
such facts are fully borne and supported by the records. We
find no error in the conclusion arrived at that the contested will
was duly executed in accordance with law. We rule that the
questioned last will and testament of Don Jesus Alsua fully
complied with the formal requirements of the law.
Respondent court, however, denied probate of the will
after ,'noting certain details which were a little bit difficult to
reconcile with the ordinary course of things and of life." First
was the fact that the spouses Don Jesus and Doñ;a Tinay
together with their four children Francisco, Pablo, Amparo and
Fernando had executed the Extrajudicial Partition of
November 25, 1949 (Exh. A) which divided the conjugal
properties of the spouses between the spouses themselves
and the children under the terms and conditions and
dispositions herein before stated and to implement its
provisions, Don Jesus and Doñ;a Tinay subsequently
executed separately their respective holographic wigs both
dated January 5, 1955 and codicils dated August 14, 1956 with
the same terms and conditions as reproduced herein earlier.
Both holographic wills and codicils having been probated
thereafter and upon the death of Doñ;a Tinay, Don Jesus was
appointed executor of the will and in due time the partition of
the properties or estate of Doñ;a Tinay was approved by the
probate court on July 6, 1960.
The respondent court ruled that the Extrajudicial Partition of
November 25, 1949 was an enforceable contract which was
binding on Don Jesus Alsua as the surviving spouse, barring
him from violating said partition agreement, barring him from
revoking his holographic will of January 5, 1955 and his codicil
of August 14, 1956, and further barring him from executing his
new will and testament of November 14, 1959, now the subject
of the probate proceedings elevated to this Court.
We do not agree with this ruling of the Court of Appeals. We
hold that the Extrajudicial Partition of November 25, 1949 is
null and void under Article 1056 in relation to Article 1271 of
the old Civil Code which are applicable hereto. These Articles
provide as follows: têñ.£îhqwâ£
Art. 1056. If the testator should make a partition
of his property by an act inter vivos, or by will,
such partition shall stand in so far as it does not
prejudice the legitime of the forced heirs. ...
Art. 1271. All things, even future ones, which
are not excluded from the commerce of man,
may be the subject-matter of contracts.
Nevertheless, no contract may be entered into
with respect to future inheritances, except those
the object of which is to make a division inter
 vivos of an estate, in accordance with Article
1056.
All services not contrary to law or to good
morals may also be the subject- matter of
contract.
Article 1056 specifically uses the word "testator" from which
the clear intent of the law may be deduced that the privilege of
partitioning one's estate by acts inter vivos is restricted only to
one who has made a prior will or testament. In other words,
Article 1056 being an exception cannot be given a wider scope
as to include in the exception any person whether he has
made a will or not.
Respondent court citing the same Article concluded that under
both the old and new Civil Code, a person who executes a will
is permitted at the same time or a little thereafter or even
before as long as he mentions this fact in the will, to partition
his properties pursuant to the provisions of Article 1056 of the
old Civil Code. The court further added that jurisprudence is to
the effect that the partition presupposes the execution of the
will that it ratifies or effectuates, citing the case of Legasto vs.
Verzosa, 54 Phil. 776. Finally, respondent court held the
opinion that the extrajudicial partition of November 14, 1949
was ratified in the holographic will executed by Don Jesus on
Jan. 5, 1955 and in the codicil of August 14, 1956.
Again, We do not agree with this ruling of the respondent
court. In Legasto vs. Verzosa, supra, the Supreme Court
categorically declared the necessity of a prior will before the
testator can partition his properties among his heirs, and We
quote the pertinent portions of the decision: têñ.£îhqwâ£
The first question to decide in the instant appeal
is whether the partition made by Sabina
Almadin of her property among her nieces, the
defendants and appellants herein, was valid
and enforceable.
Article 1056 of the Civil Code provides:
Art. 1056. If the testator should make a partition
of his property by an act inter vivos, or by will,
such partition shall stand in so far as it does not
prejudice the legitime of the forced heirs.
The Supreme Court of Spain, in a decision
rendered on June 13, 1903, laid down the
following doctrine:
Considering that the language of article 1056
cannot be interpreted to mean that a person
may, by acts inter vivos, partition his property
referred to in the section wherein said article is
found, without the authority of a testament
containing an expression of his last will, or the
authority of law, for, otherwise, a partition thus
made would be tantamount to making a will in a
manner not provided for, authorized, nor
included in the chapter referring to testaments,
and especially, to the forms thereof, which is
entirely different from the legal consequences of
a free disposition made by parents during their
lifetime, whereby they give to their children the
whole or a part of their property;
Considering that, inasmuch as the second
paragraph of article 1271 makes reference to
the aforesaid article, in providing that no
contracts may be entered into with respect to
future inheritances except those the object of
which is to make a division inter vivos of the
estate in accordance with article 1056, it is
evident that said difference likewise leads to the
conclusion that a partition thus made should be
on the basis of a testamentary or legal
succession and should be made in conformity
with the fundamental rules thereof and the
order of the heirs entitled to the estate, because
neither of the two provisions could be given a
wider meaning or scope than that they simply
provide for the division of the estate during the
lifetime of the owner, which, otherwise, would
have to be done upon the death of the testator
in order to carry into effect the partition of the
estate among the persons interested.
Manresa comments on the same article as
follows:
A distinction must be made between the
disposition of property and its division; and the
provision of article 1056 authorizing the testator
to dispose of his property by acts inter vivos or
by last will, must be understood in accordance
with this distinction. The Idea is to divide the
estate among the heirs designated by the
testator. This designation constitutes the
disposition of the properties to take effect after
his death, and said act must necessarily appear
in the testament because it is the expression of
the testator's last will and must be surrounded
by appropriate formalities. Then comes the
second part, to wit, the division in conformity
with that disposition, and the testator may make
this division in the same will or in another will,
or by an act inter vivos. With these words, the
law, in article 1056 as well as in article 1057,
which we shall hereafter examine, makes
allusion to the forms or manner of making the
partition and not to the effects thereof, which
means that, for purposes of partition the formal
solemnities which must accompany every
testament or last will are not necessary. Neither
is it necessary to observe the special for.
realities required in case of donations, because
it is not a matter of disposing gratuitously of
properties, but of dividing those which already
have been legally disposed of.
It is thus seen that both the Spanish Supreme
Court and the learned and authoritative
commentator, Manresa, are of opinion that a
testator may, by an act inter vivos, partition his
property, but he must first make a will with all
the formalities provided for by law. And it could
not be otherwise, for without a will there can be
no testator; when the law, therefore, speaks of
the partition inter vivos made by a testator of his
property, it necessarily refers to that property
which he has devised to his heirs. A person who
disposes of his property gratis inter vivos is not
called a testator, but a donor. In employing the
word "testator," the law evidently desired to
distinguish between one who freely donates his
property in life and one who disposes of it by
will to take effect after his death.
We are not in conformity with the holding of the respondent
court that the extrajudicial partition of November 25, 1949
which under the old Civil Code was expressly prohibited as
against public policy had been validly ratified by the
holographic will of Don Jesus executed on January 5, 1955
and his codicil of August 14, 1956. Such a holding of the
appellate court that a person who executes a will is permitted
to partition his properties pursuant to the provisions of Article
1056 of the old Civil Code even before executing his will as
long as he mentions this fact in the will, is not warranted under
the ruling of Legasto vs. Verzosa, supra and the commentary
of Manresa as quoted above. We rule, therefore, that the
respondent court erred in denying probate to the will of Don
Jesus dated November 14, 1959; it erred in holding that Don
Jesus being a party to the extrajudicial partition of 1949 was
contractually bound by the provisions thereof and hence could
not revoke his participation therein by the simple expedience
of making a new will with contrary provisions or dispositions. It
is an error because the so-called extrajudicial partition of 1949
is void and inoperative as a partition; neither is it a valid or
enforceable contract because it involved future inheritance; it
may only be given effect as a donation inter vivos of specific
properties to the heirs made by the parents.
Considering that the document, the extrajudicial partition of
November 25, 1949, contained specific designation of
properties allotted to each child, We rule that there was
substantial compliance with the rules on donations inter vivos
under the old Civil Code (Article 633). On the other hand, there
could have been no valid donation to the children of the other
half reserved as the free portion of Don Jesus and Doñ;a Tinay
which, as stated in the deed, was to be divided equally among
the children for the simple reason that the property or
properties were not specifically described in the public
instrument, an essential requirement under Article 633 which
provides as follows: têñ.£îhqwâ£
Art. 633. In order that a donation or real
property be valid it must be made by public
instrument in which the property donated must
be specifically described and in the amount of
the encumbrances to be assumed by the donee
expressed.
The acceptance must be made in the deed of
gift or in a separate public writing; but it shall
produce no effect if not made during the lifetime
of the donor.
If the acceptance is made by separate public
instrument, authentic notice thereof shall be
given the donor, and this proceeding shall be
noted in both instruments.
This other half, therefore, remained as the disposable free
portion of the spouses which may be disposed of in such
manner that either of the spouses would like in regards to his
or her share in such portion, unencumbered by the provision
enjoining the last surviving spouse to give equally to the
children what belongs or-would pertain to him or her. The end
result, therefore, is that Don Jesus and Doñ;a Tinay, in the
Deed of 1949, made to their children valid donations of only
one-half of their combined properties which must be charged
against their legitime and cannot anymore be revoked unless
inofficious; the other half remained entirely at the free disposal
of the spouses with regards to their respective shares.
Upon the death of Doñ;a Tinay on October 2, 1959, her share
in the free portion was distributed in accordance with her
holographic will dated January 25, 1955 and her codicil dated
August 14, 1956. It must be stressed here that the distribution
of her properties was subject to her holographic win and
codicil, independently of the holographic will and codicil of Don
Jesus executed by him on the same date. This is fundamental
because otherwise, to consider both wills and codicils jointly
would be to circumvent the prohibition of the Civil Code on
joint wills (Art. 818) and secondly because upon the death of
Doñ;a Tinay, only her estate was being settled, and not that of
Don Jesus.
We have carefully examined the provisions of the holographic
will and codicil of Doñ;a Tinay and We find no indication
whatsoever that Doñ;a Tinay expressly or impliedly instituted
both the husband and her children as heirs to her free portion
of her share in the conjugal assets. In her holographic will,
mention of her children as heirs was made in the fourth clause
but it only provided that, to wit: têñ.£îhqwâ£
Cuatro. Que si yo adquieriese nuevase
propiedades despues de otorgado este mi
testamento seran las mismas repartados entre
mi esposo o hijos arriba mencionada en el
parrafo tercero su la misma proporcion o sea: la
mitad (1/2) para is esposa; y la otra mitad (1/2)
para mis hijos en partes iguales.
For purposes of clarity and convenience, this fourth clause
provided that "Should I acquire new properties after the
execution of this testament, the same shall be partitioned
among my spouse and above named children or the children
mentioned in above par. 3 in the same proportion, that is, one-
half (1/2) to my spouse; and the other half to my children in
equal parts." From the above-quoted provision, the children
would only inherit together with Don Jesus whatever new
properties Doñ;a Tinay would acquire after the execution of
her will.
Likewise, the codicil of Doñ;a Tinay instituted her husband as
sole heir to her share in the free portion of the conjugal assets,
and We quote that part of the codicil: têñ.£îhqwâ£
Dejo a mi esposo Jesus Alsua como su legitima
y como herencia que se sacara de ni cuenta de
libre disposicion todos aquellos bienes de los
que no he dispuesto aun en favor de mis hijos
en la escritura de reparticion precitada y que
excedieran de la mitad de gananciales que le
corresponds tal como arriba declare,
incluyendo todos aquenos bienes que se
adquiriesen por nosotros despues de otorgado
por mi este testamento.
Para el caso de que Dios dispusiera que yo
sobreviviera a mi esposo declaro que es mi
voluntad que todas las propiedades de todo
genero que me pertenecen y me pudieran
pertenecer, no dispuestas aun en la reparticion,
se dividan por igual entre mis herederos
mencionados despues de mi muerte.
Again for purposes of clarity and convenience, the above
portion states: têñ.£îhqwâ£
I leave to my spouse Don Jesus Alsua as his
legitime and as his inheritance the part of the
free portion of my property which have not been
allocated in favor of my children in the
Document of Partition aforecited and that which
should exceed 1/2 of the conjugal property of
gains that pertains to him as above stated,
including all those properties which we shall
acquire after the execution of this document.
 In case it should be God's will that I survive my
spouse, I hereby declare that it is my will that
any and all kinds of property that pertains to me
or would pertain to me, which have not been
disposed of pursuant to the partition, should be
divided equally among my above-mentioned
heirs after my death.
The children, therefore, would only receive equal shares in the
remaining estate of Doñ;a Tinay in the event that she should
be the surviving spouse. To stress the point, Doñ;a Tinay did
not oblige her husband to give equally to the children, upon his
death, all such properties she was bequeathing him.
Considering now the efficacy of Don Jesus' last will and
testament executed on November 14, 1959 in view of Our
holding that Doñ;a Tinay's wig and codicil did not stipulate that
Don Jesus will bestow the properties equally to the children, it
follows that all the properties of Doñ;a Tinay bequeathed to
Don Jesus under her holographic win and codicil became part
of Don Jesus' estate unburdened by any condition obligation
or proviso.
Respondents insist that Don Jesus was bound by the
extrajudicial partition of November 25, 1949 and had in fact
conformed to said Partition by making a holographic will and
codicil with exactly the same provisions as those of Doñ;a
Tinay, which respondent court sustained. We rule, however,
that Don Jesus was not forever bound thereby for his previous
holographic will and codicil as such, would remain revokable at
his discretion. Art. 828 of the new Civil Code is clear: "A win
may be revoked by the testator at any time before his death.
Any waiver or restriction of this right is void." There can be no
restriction that may be made on his absolute freedom to
revoke his holographic will and codicil previously made. This
would still hold true even if such previous will had as in the
case at bar already been probated (Palacios v. Palacios, 106
Phil. 739). For in the first place, probate only authenticates the
will and does not pass upon the efficacy of the dispositions
therein. And secondly, the rights to the succession are
transmitted only from the moment of the death of the decedent
(Article 777, New Civil Code). In fine, Don Jesus retained the
liberty of disposing of his property before his death to
whomsoever he chose, provided the legitime of the forced
heirs are not prejudiced, which is not herein claimed for it is
undisputed that only the free portion of the whole Alsua estate
is being contested.
After clearly establishing that only Don Jesus was named as
sole heir instituted to the remaining estate of Doñ;a Tinay in
her holographic will and codicil resulting in all such properties
becoming the properties of Don Jesus alone, and after clearly
pointing out that Don Jesus can, in law, revoke his previous
holographic will and codicil, by making another win expressly
cancelling and revoking the former, the next issue for the
Court's resolution is the validity of the provisions of the
contested will. Though the law and jurisprudence are clear that
only questions about the extrinsic validity of the will may be
entertained by the probate court, the Court had, on more than
one occasion, passed upon the intrinsic validity of a will even
before it had been authenticated. Thus We declared in Nuguid
v. Nuguid, 17 SCRA 499: têñ.£îhqwâ£
The parties shunted aside the question of
whether or not the will should be allowed to
probate. For them, the meat of the case is the
intrinsic validity of the wilt Normally this comes
only after the court has declared that the will
has been duly authenticated. ...
... If the case were to be remanded for probate
of the wilt nothing will be gained. On the
 contrary, this litigation win be protracted and for
ought that appears in the record, in the event of
probate or if the court rejects the will probability
exists that the case win come up once again
before us on the issue of the intrinsic validity or
nullity of the wilt Result: waste of time, effort,
expense, plus added anxiety. These are the
practical considerations that induce us to a
behalf that we might as well meet head-on the
time of the validity of the provisions of the will in
question. ...
The last Will and Testament of Don Jesus executed on
November 14, 1959 contained an express revocation of his
holographic wig of January 5, 1955 and the codicil of August
14, 1956; a statement requiring that all of his properties
donated to his children in the Deed of 1949 be collated and
taken into account in the partition of his estate; the institution
of all his children as devisees and legatees to certain specific
properties; a statement bequeathing the rest of his properties
and all that may be acquired in the future, before his death, to
Pablo and Francesca; and a statement naming Francesca as
executrix without bond.
Considering these testamentary provisions, a close scrutiny of
the properties distributed to the children under the Deed of
1949 and those distributed under the contested will of Don
Jesus does not show that the former had in fact been included
in the latter. This being so, it must be presumed that the
intention of Don Jesus in his last win was not to revoke the
donations already made in the Deed of 1949 but only to
redistribute his remaining estate, or that portion of the conjugal
assets totally left to his free disposal and that which he
received as his inheritance from Doñ;a Tinay. The legitimes of
the forced heirs were left unimpaired, as in fact, not one of
said forced heirs claimed or intimated otherwise. The
properties that were disposed of in the contested will belonged
wholly to Don Jesus Alsua's free portion and may be diamond
of by him to whomsoever he may choose.
If he now favored Francesca more, as claimed by private
respondents, or Pablo as in fact he was, We cannot and may
not sit in judgment upon the motives and sentiments of Don
Jesus in doing so. We have clearly laid down this rule
in Bustamante v. Arevalo, 73 Phil. 635, to wit: têñ.£îhqwâ£
... nevertheless it would be venturesome for the
court to advance its own Idea of a just
distribution of the property in the face of a
different mode of disposition so clearly
expressed by the testatrix in the latter will. ...
It would be a dangerous precedent to strain the
interpretation of a will in order to effect what the
court believes to be an equitable division of the
estate of a deceased person. The only
functions of the courts in these cases is to carry
out the intention of the deceased as manifested
in the wig. Once that intention has been
determined through a careful reading of the will
or wills, and provided the law on legitimes has
not been violated, it is beyond the place of
judicial cognizance to inquire into the fairness
or unfairness of any devise or bequeast. The
court should not sit in judgment upon the
motives and sentiments of the testatrix, first,
because as already stated, nothing in the law
restrained her from disposing of her property in
any manner she desired, and secondly,
because there are no adequate means of
ascertaining the inward process of her
conscience. She was the sole judge of her own
 attitude toward those who expected her
bounty. ...
Respondent court, in trying to rationalize the will of Don Jesus
which allegedly benefited and favored the petitioner to the
prejudice of the other heirs who would have been entitled to an
equal share under the extrajudicial partition of 1949, faced two
alternatives-one, to consider Don Jesus as a man of culture
and honor and would not snow himself to violate the previous
agreement, and the other as one whose mental faculties or his
possession of the same had been diminished considering that
when the will was executed, he was already 84 years of age
and in view of his weakness and advanced age, the actual
administration of his properties had been left to his assistant
Madarieta who, for his part received instructions from
Francisco and her husband, Joseph Betts. According to the
court, the better explanation is the latter, which is not legally
tenable. Under Article 799 of the New Civil Code which
provides as follows: têñ.£îhqwâ£
Art. 799. To be of sound mind, it is not
necessary that the testator be in full possession
of all his reasoning faculties, or that his mind be
wholly unbroken, unimpaired, or unshattered by
disease, injury or other cause.
It shall be sufficient if the testator was able at
the time of making the will to know the nature of
the estate to be disposed of, the proper objects
of his bounty, and the character of the
testamentary act,
The test of testamentary capacity is at the time of the making
of the win. Mere weakness of mind or partial imbecility from
disease of body or from age-does not render a person
incapable of making a will. têñ.£îhqwâ£
Between the highest degree of soundness of
mind and memory which unquestionably carries
with it full testamentary capacity, and that
degrees of mental aberration generally known
as insanity or Idiocy, there are numberless
degrees of mental capacity or incapacity and
while on one hand it has been held that mere
weakness of mind, or partial imbecility from
disease of body, or from age, will not render a
person incapable of making a will; a weak or
feebleminded person may make a valid will,
provided he has understanding and memory
sufficient to enable him to know what he is
about to do and how or to whom he is disposing
of his property. To constitute a sound and
disposing mind, it is not necessary that the
mind be unbroken or unimpaired or unshattered
by disease or otherwise. It has been held that
testamentary incapacity does not necessarily
require that a person shall actually be insane or
of unsound mind. (Bugnao vs. Ubag, 14 Phil.
163).
The Civil Code itself provides under Article 798 that in order to
make a will, it is essential that the testator be of sound mind at
the time of its execution, and under Article 800, the law
presumes that every person is of sound mind in the absence
of proof to the contrary. In the case at bar, the acceptance by
the respondent court of the findings of fact of the trial court on
the due execution of the last win and testament of Don Jesus
has foreclosed any and all claim to the contrary that the will
was not executed in accordance with the requirements of the
law. But more than that, gleaned from the quoted portions of
the appealed decision, the described behavior of Don Jesus is
not that of a mentally incapacitated person nor one suffering
from "senile dementia" as claimed by private respondents.
From these accepted facts, We find that: (a) it was Don Jesus
himself who gave detailed instructions to his lawyer as to how
he wanted to divide his properties among his children by
means of a list of his properties should pertain; (b) the semi-
final draft of the contested will prepared by his lawyer w-as
even corrected by Don Jesus; (c) on the day of the signing of
the will at his house in Ligao, "Don Jesus was in bright and
lively spirits ..., leading in the conversation which ran from
problems of farming and the merits of French-made wines"; (d)
the signing of the will by Don Jesus and his attesting
witnesses was made after a statement from Don Jesus of the
purpose of their meeting or gathering, to wit: têñ.£îhqwâ£
Precisamente es por lo que he Ilamado a
ustedes que eaten presentes para ser testigos
de mi ultima voluntad y testamento que ha sido
preparado por el abogado Sr. Gregorio Imperial
segun mis instrucciones cuyo documents tengo
aqui con migo y encuentro que, despues de lo
he leido, esta satisfactoriamente hecho segun
mis ingtrucciones, Como saben ustedes tengo
cuatro (4) hijos todos ellos.
Clearly then, Don Jesus knew exactly what his actions were
and the fun implications thereof.
In rejecting probate of the wilt respondent court further pointed
out other details which, in the words of the decision "are a little
bit difficult to reconcile with the ordinary course of things and
of fife" such as the fact that Don Jesus had sought the probate
of his will of January 5, 1955 and his codicil of August 14, 1956
during his lifetime but insofar as the will of November 14, 1959
is concerned, he had no intention of seeking the probate
thereof during his lifetime, the alleged redundant and
unnecessary proceedings undertaken by Don Jesus in the
properties under question to petitioner Franciso Alsua-Betts
when the same properties had already been bequeathed to
her in the will of November 14, 1959 and that "nothing,
absolutely nothing, could be made the basis for finding that
Don Jesus Alsua had regarded his other children with less
favor, and that he was more sympathetic to Francisca so as to
or forget the former depriving them of benefits already given to
them and rewarding the latter with disproportionate
advantages or benefits, to such an extreme as to violate his
previous disposition consecrated in the previous extrajudicial
partition, Exh. 8."
We agree with the petitioner that these details which
respondent court found difficult to reconcile with the ordinary
course of things and of life are mere conjectures, surmises or
speculations which, however, do not warrant or justify
disallowance of the probate of the win of Don Jesus. The fact
that Don Jesus did not cause his will to be probated during his
lifetime while his previous holographic win and codicil were
duly probated when he was still alive is a mere speculation
which depends entirely on the discretion of Don Jesus as the
testator. The law does not require that a will be probated
during the lifetime of the testator and for not doing so there
cannot arise any favorable or unfavorable consequence
therefrom. The parties cannot correctly guess or surmise the
motives of the testator and neither can the courts. Such
surmise, speculation or conjecture is no valid and legal ground
to reject allowance or disallowance of the wig. The same thing
can be said as to whatever reason Don Jesus had for selling
the properties to his daughter Francisca when he had already
assigned the same properties to her in his will. While We can
speculate that Don Jesus desired to have possession of the
properties transferred to Francisca after the sale instead of
waiting for his death may be a reasonable explanation or
speculation for the act of the testator and yet there is no
certainty that such was actually the reason. This is as good a
conjecture as the respondents may offer or as difficult to
accept which respondent court believes. A conjecture is
always a conjecture; it can never be admitted as evidence.
Now, the annulment case. The only issue raised anent the civil
case for annulment of the two Deeds of Sale executed by and
between Don Jesus and petitioner Francisco is their validity or
nullity. Private respondents mainly contend that the sales were
fictitious or simulated, there having been no actual
consideration paid. They further insist that the issue raised is a
question of fact and, therefore, not reviewable in a certiorari
proceeding before the Supreme Court. On the other hand,
petitioners herein maintain that it was error for the respondent
court to set aside on appeal the factual findings of the trial
court that the two sales were valid.
It is true that the jurisprudence of this Court in cases brought
to Us from the Court of Appeals is limited to reviewing and
revising the errors of law imputed to it, its findings of fact being
conclusive; and this same principle applies even if the Court of
Appeals was in disagreement with the lower court as to the
weight of evidence with a consequent reversal of its findings of
fact. But what should not be ignored by lawyers and litigants
alike is the more basic principle that the "findings of fact"
described as "final" or "conclusive" are those borne out by the
record or those which are based upon substantial evidence.
The general rule laid down by the Supreme Court does not
declare the absolute correctness of all the findings of fact
made by the Court of Appeals. These are exceptions to the
general rule, where We have reviewed and revised the
findings of fact of the Court of Appeals. Among the exceptions
to the rule that findings of fact by the Court of Appeals cannot
be reviewed on appeals by certiorari are:
1. When the conclusion is a finding grounded entirely on
speculation, surmises or conjectures (Joaquin vs. Navarro, 93
Phil. 257);
2. When the inference made is manifestly mistaken, absurd or
impossible (Luna vs. Linatok, 74 Phil. 15);
3. Where there is a grave abuse of discretion (Buyco vs.
People, 51 O.G. 2927);
4. When the judgment is based on a misapprehension of facts
(Cruz vs. Sosing, L-4875, Nov. 27, 1953);
5. When the findings of fact are conflicting (Casica vs.
Villaseca, L-9590, April 30, 1957); and
6. When the Court of Appeals, in making its findings, went
beyond the issues of the case and the same is contrary to the
admissions of both appellant and appellee (Evangelists vs.
Alto Surety & Ins. Co., L-11139, April 23, 1958; Ramos vs.
Pepsi Cola, L-22533, Feb. 9, 1967, 19 SCRA 289).
In the case at bar, We find and so declare that the respondent
court's conclusion as to the nullity of the contested sales was
not supported by the evidence on record and adduced during
the trial.
Evident from the records are the following documentary
evidence: (1) Exhibit U, a deed of sale over agricultural lands
executed on August 26, 1961 by Don Jesus in favor of
Francisca for the consideration of Seventy Thousand Pesos
(P70,000.00), which document bears the signature of Don
Jesus, not assailed as a forgery, and the signature of Pablo
Alsua as an instrumental witness, again not assailed as a
forgery nor alleged as done thru fraud, force or threat. (2)
Exhibit "W", a deed of sale over urban lots executed on
November 16, 1962 for the consideration of Eighty Thousand
Pesos (P80,000.00), which document also bears the signature
of Don Jesus, also admittedly not a forgery. (3) Exhibit "F", a
document dated August 26, 1961 and signed by Don Jesus
and Pablo Alsua as witness, acknowledging receipt of a Bank
of Philippine Island Check No. 0252 in the amount of Seventy
Thousand Pesos (P70,000.00) for the sale of 33 parcels of
agricultural land to Francisco under the same date; again,
Pablo did not deny the genuineness of his signature. (4)
Exhibit "X", a Bank of the Philippine Islands Check No. D-6979
dated November 26, 1962, in the amount of P32,644.71,
drawn and signed by Francesca, payable to Don Jesus. (5)
Exhibit "X-1", a second Bank of Philippine Islands Check (No.
D-6980) also dated November 26, 1962 in the amount of ?
47,355.29, drawn by Francisco and payable to Don Jesus. (6)
Exhibit "X-3 " and "X-5 ", endorsements on the back of the last
two checks by Don Jesus, again, his signatures thereon were
not assailed. (7) Exhibit "A" (in the annulment case), a Bureau
of Internal Revenue Receipt (No. 2347260) dated November
29, 1962 with a notation acknowledging the receipt of BPI
Check No. D-6980 in the amount of P47,355.29 from Don
Jesus Alsua in payment of Balance of Transfer of Tax Ass. No.
EA-35415-19 plus interest. We are convinced and satisfied
from this array of documentary evidence that in fact, Don
Jesus sold the subject properties to his daughter, Francisca for
the total consideration of P150,000.00.
The claim of the private respondents that the sales were
fictitious and void for being without cause or consideration is
as weak and flimsy as the ground upon which the respondent
court upheld said claim on the basis that there was no need for
funds in Don Jesus' old age aside from the speculation that
there was nothing in the evidence that showed what motivated
Don Jesus to change his mind as to favor Francesca and
discriminate against the other children. The two contracts of
same executed by Don Jesus in favor of Francesca are
evidenced by Exhibits "U" and "W", the genuineness of which
were not at all assailed at any time during this long drawn-out
litigation of 15 years standing. That the consideration stated in
the contracts were paid is also sufficiently proved as the
receipts thereof by Don Jesus were even signed by one of the
private respondents, Pablo Alsua, as a witness. The latter
cannot now deny the payment of the consideration And even
of he now allege that in fact no transfer of money was
involved, We find his allegation belied by Exhibits "X-3 " and
"X-5 ", which show that the checks of Francisco made payable
to Don Jesus. were in fact given to Don Jesus as he endorsed
them on the back thereof, and most specifically Exhibit "A" in
the annulment case, which proved that Don Jesus actually
used Exhibit "XI " to complete payment on the estate and
inheritance tax on the estate of his wife to the Bureau of
Internal Revenue.
Private respondents further insist that the sales were
fraudulent because of the inadequacy of the given price.
Inadequacy of consideration does not vitiate a contract unless
it is proven which in the case at bar was not, that there was
fraud, mistake or undue influence. (Article 1355, New Civil
Code). We do not find the stipulated price as so inadequate to
shock the court's conscience, considering that the price paid
was much higher than the assessed value of the subject
properties and considering that the sales were effected by a
father to her daughter in which case filial love must be taken
into account.
WHEREFORE, IN VIEW OF THE FOREGOING, the decision
appealed from is hereby set aside. The decision of the Court
of First Instance Of Albay in Special Proceedings No. 699 and
Civil Case No. 3068 is hereby reinstated, with costs against
respondents.
SO ORDERED.
Teehankee (Chairman), Makasiar and Fernandez, JJ.,
concur.1äwphï1.ñët
De Castro, J., took no part.

Melencio Herrera, J., concur in the result.

G.R. No. L-37453 May 25, 1979
RIZALINA GABRIEL GONZALES, petitioner,
vs.
HONORABLE COURT OF APPEALS and LUTGARDA
SANTIAGO, respondents.
Francisco D. Rilloraza, Jr. for petitioners.
Angel A. Sison for private respondent.
GUERRERO, J.:
This is a petition for review of the decision of the Court of
Appeals, First Division,1 promulgated on May 4, 1973 in CA
G.R. No. 36523-R which reversed the decision of the Court of
First Instance of Rizal dated December 15, 1964 and allowed
the probate of the last will and testament of the deceased
Isabel Gabriel. *
It appears that on June 24, 1961, herein private respondent
Lutgarda Santiago filed a petition with the Court of First
Instance of Rizal docketed as Special Proceedings No. 3617,
for the probate of a will alleged to have been executed by the
deceased Isabel Gabriel and designating therein petitioner as
the principal beneficiary and executrix.
There is no dispute in the records that the late Isabel Andres
Gabriel died as a widow and without issue in the municipality
of Navotas, province of Rizal her place of residence, on June
7, 1961 at the age of eighty-five (85), having been born in
1876. It is likewise not controverted that herein private
respondent Lutgarda Santiago and petitioner Rizalina Gabriel
Gonzales are nieces of the deceased, and that private
respondent, with her husband and children, lived with the
deceased at the latters residence prior an- d up to the time of
her death.
The will submitted for probate, Exhibit "F", which is typewritten
and in Tagalog, appears to have been executed in Manila on
the 15th day of April, 1961, or barely two (2) months prior to
the death of Isabel Gabriel. It consists of five (5) pages,
including the pages whereon the attestation clause and the
acknowledgment of the notary public were written. The
signatures of the deceased Isabel Gabriel appear at the end of
the will on page four and at the left margin of all the pages.
The attestation clause, which is found on page four, reads as
follows:
PATUNAY NG MGA SAKSI
Kaming mga nakalagdang mga saksi o testigo
na ang aming mga tinitirahan ay nakasulat sa
gawing kanan at kahilira ng aming mga
pangalan sa ibaba nito, ay pagpapatutuo na
ipinakilala ipinaalam at ipinahayag sa amin ni
Isabel Gabriel na ang kasulatang ito na binubuo
ng Limang Dahon (Five Pages) pati na ang
dahong ito, na siya niyang TESTAMENTO AT
HULING HABILIN, ngayong ika 15 ng Abril,
1961, ay nilagdaan ng nasabing testadora na si
Isabel Gabriel ang nasabing testamento sa
ibaba o ilalim ng kasulatan na nasa ika apat na
dahon (page four) at nasa itaas ng patunay
naming ito, at sa kaliwang panig ng lahat at
bawat dahon (and on the left hand margin of
each and every page), sa harap ng lahat at
bawat isa sa amin, at kami namang mga saksi
 ay lumagda sa harap ng nasabing testadora, at
sa harap ng lahat at bawat isa sa amin, sa
ilalim ng patunay ng mga saksi at sa kaliwang
panig ng lahat at bawa't dahon ng
testamentong ito.
At the bottom thereof, under the heading "Pangalan", are
written the signatures of Matilde D. Orobia, Celso D. Gimpaya
and Maria R. Gimpaya, and opposite the same, under the
heading "Tirahan", are their respective places of residence,
961 Highway 54, Philamlife, for Miss Orobia, and 12 Dagala
St., Navotas, Rizal, for the two Gimpayas. Their signatures
also appear on the left margin of all the other pages. The WW
is paged by typewritten words as follows: "Unang Dahon" and
underneath "(Page One)", "Ikalawang Dahon" and underneath
"(Page Two)", etc., appearing at the top of each page.
The will itself provides that the testatrix desired to be buried in
the Catholic Cemetery of Navotas, Rizal in accordance with
the rites of the Roman Catholic Church, all expenses to be
paid from her estate; that all her obligations, if any, be paid;
that legacies in specified amounts be given to her sister,
Praxides Gabriel Vda. de Santiago, her brother Santiago
Gabriel, and her nephews and nieces, Benjamin, Salud,
Rizalina (herein petitioner), Victoria, Ester, Andres, all
surnamed Gabriel, and Evangeline, Rudyardo Rosa, Andrea,
Marcial, Numancia, Verena an surnamed Santiago. To herein
private respondent Lutgarda Santiago, who was described in
the will by the testatrix as "aking mahal na pamangkin na aking
pinalaki, inalagaan at minahal na katulad ng isang tunay na
anak" and named as universal heir and executor, were
bequeathed all properties and estate, real or personal already
acquired, or to be acquired, in her testatrix name, after
satisfying the expenses, debts and legacies as
aforementioned.
The petition was opposed by Rizalina Gabriel Gonzales,
herein petitioner, assailing the document purporting to be the
will of the deceased on the following grounds:
1. that the same is not genuine; and in the
alternative
2. that the same was not executed and attested
as required by law;
3. that, at the time of the alleged execution of
the purported wilt the decedent lacked
testamentary capacity due to old age and
sickness; and in the second alternative
4. That the purported WW was procured
through undue and improper pressure and
influence on the part of the principal beneficiary,
and/or of some other person for her benefit.
Lutgarda Santiago filed her Answer to the Opposition on
February 1, 1962. After trial, the court a quo rendered
judgment, the summary and dispositive portions of which read:
Passing in summary upon the grounds
advanced by the oppositor, this Court finds:
1. That there is no iota of evidence to support
the contentio that the purported will of the
deceased was procured through undue and
improper pressure and influence on the part of
the petitioner, or of some other person for her
benefit;
2. That there is insufficient evidence to sustain
the contention that at the time of the alleged
 execution of the purported will, the deceased
lacked testamentary capacity due to old age
and sickness;
3. That sufficient and abundant evidence
warrants conclusively the fact that the purported
will of the deceased was not executed and
attested as required by law;
4. That the evidence is likewise conclusive that
the document presented for probate, Exhibit 'F'
is not the purported win allegedly dictated by
the deceased, executed and signed by her, and
attested by her three attesting witnesses on
April 15, 1961.
WHEREFORE, Exhibit "F", the document
presented for probate as the last wig and
testament of the deceased Isabel Gabriel is
here by DISALLOWED.
From this judgment of disallowance, Lutgarda Santiago
appealed to respondent Court, hence, the only issue decided
on appeal was whether or not the will in question was
executed and attested as required by law. The Court of
Appeals, upon consideration of the evidence adduced by both
parties, rendered the decision now under review, holding that
the will in question was signed and executed by the deceased
Isabel Gabriel on April 15, 1961 in the presence of the three
attesting witnesses, Matilde Orobia, Celso Gimpaya and Maria
Gimpaya, signing and witnessing the document in the
presence of the deceased and of each other as required by
law, hence allow ed probate.
Oppositor Rizalina Gabriel Gonzales moved for
reconsideration 3 of the aforesaid decision and such motion
was opposed 4 by petitioner-appellant Lutgarda Santiago.
Thereafter. parties submitted their respective
Memoranda, 5and on August 28, 1973, respondent Court,
Former Special First Division, by Resolution 6 denied the
motion for reconsideration stating that:
The oppositor-appellee contends that the
preponderance of evidence shows that the
supposed last wig and testament of Isabel
Gabriel was not executed in accordance with
law because the same was signed on several
occasions, that the testatrix did not sign the will
in the presence of all the instrumental
witnesses did not sign the will in the presence
of each other.
The resolution of the factual issue raised in the
motion for reconsideration hinges on the
appreciation of the evidence. We have carefully
re-examined the oral and documentary
evidence of record, There is no reason to alter
the findings of fact in the decision of this Court
sought to be set aside. 7
In her petition before this Court, oppositor Rizalina Gabriel
Gonzales contends that respondent Court abused its
discretion and/or acted without or in excess of its jurisdiction in
reverssing the findings of fact and conclusions of the trial
court. The Court, after deliberating on the petition but without
giving due course resolved, in the Resolution dated Oct. 11,
1973 to require the respondents to comment thereon, which
comment was filed on Nov. 14, 1973. Upon consideration of
the allegations, the issues raised and the arguments adduced
in the petition, as well as the Comment 8 of private respondent
thereon, We denied the petition by Resolution on November
26, 1973, 9 the question raised being factual and for
insufficient showing that the findings of fact by respondent
Court were unsupported by substantial evidence.
Subsequently, or on December 17, 1973, petitioner Rim
Gabriel Goes fried a Motion for Reconsideration 10 which
private respondent answered by way of her Comment or
Opposition 11 filed on January 15, 1974. A Reply and Rejoinder
to Reply followed. Finally, on March 27, 1974, We resolved to
give due course to the petition.
The petitioner in her brief makes the following assignment of
errors:
I. The respondent Court of Appeals erred in holding that the
document, Exhibit "F" was executed and attested as required
by law when there was absolutely no proof that the three
instrumental witnesses were credible witness
II. The Court of Appeals erred in reversing the finding of the
lower court that the preparation and execution of the win
Exhibit "F", was unexpected and coincidental.
III. The Court of Appeals erred in finding that Atty, Paraiso was
not previously furnished with the names and residence
certificates of the witnesses as to enable him to type such data
into the document Exhibit "F".
IV. The Court of Appeals erred in holding that the fact that the
three typewritten lines under the typewritten words "Pangalan"
and "Tinitirahan" were left blank shows beyond cavil that the
three attesting witnesses were all present in the same
occasion.
V. The Court of Appeals erred in reversing the trial court's
finding that it was incredible that Isabel Gabriel could have
dictated the wilt Exhibit "F , without any note or document, to
Atty. Paraiso.
VI. The Court of Appeals erred in reversing the finding of the
trial court that Matilde Orobia was not physically present when
the Will Exhibit "F" was allegedly signed on April 15, 1961 by
the deceased Isabel Gabriel and the other witnesses Celso
Gimpaya and Maria Gimpaya.
VII. The Court of Appeals erred in holding that the trial court
gave undue importance to the picture takings as proof that the
win was improperly executed.
VIII. The Court of Appeals erred in holding that the grave
contradictions, evasions, and misrepresentations of witnesses
(subscribing and notary) presented by the petitioner had been
explained away, and that the trial court erred in rejecting said
testimonies.
IX. The Court of Appeals acted in excess of its appellate
jurisdiction or has so far departed from the accepted and usual
course of judicial proceedings, as to call for an exercise of the
power of supervision.
X. The Court of Appeals erred in reversing the decision of the
trial court and admitting to probate Exhibit "F", the alleged last
will and testament of the deceased Isabel Gabriel.
It will be noted from the above assignments of errors that the
same are substantially factual in character and content.
Hence, at the very outset, We must again state the oft-
repeated and well-established rule that in this jurisdiction, the
factual findings of the Court of Appeals are not reviewable, the
same being binding and conclusive on this Court. This rule has
been stated and reiterated in a long line of cases enumerated
in Chan vs. CA (L-27488, June 30, 1970, 33 SCRA 737,
743) 12 and Tapas vs. CA (L-22202, February 27; 1976, 69
SCRA 393), 13 and in the more recent cases of Baptisia vs.
Carillo and CA (L32192, July 30, 1976, 72 SCRA 214, 217)
and Vda. de Catindig vs. Heirs of Catalina Roque (L-25777,
November 26, 1976, 74 SCRA 83, 88). In the case of Chan vs.
CA, this Court said:
... from Guico v. Mayuga, a 1936 decision, the opinion being
penned by the then Justice Recto, it has been well-settled that
the jurisdiction of tills Court in cases brought to us from the
Court of Appeals is limited to reviewing and revising the errors
of law imputed to it, its findings of fact being conclusive. More
specifically, in a decision exactly a month later, this Court,
speaking through the then Justice Laurel, it was held that the
same principle is applicable, even if the Court of Appeals was
in disagreement with the lower court as to the weight of the
evidence with a consequent reversal of its findings of fact ...
Stated otherwise, findings of facts by the Court of Appeals,
when supported by substantive evidence are not reviewable
on appeal by certiorari. Said findings of the appellate court are
final and cannot be disturbed by Us particularly because its
premises are borne out by the record or based upon
substantial evidence and what is more, when such findings are
correct. Assignments of errors involving factual issues cannot
be ventilated in a review of the decision of the Court of
Appeals because only legal questions may be raised. The
Supreme Court is not at liberty to alter or modify the facts as
set forth in the decision of the Court of Appeals sought to be
reversed. Where the findings of the Court of Appeals are
contrary to those of the trial court, a minute scrutiny by the
Supreme Court is in order, and resort to duly-proven evidence
becomes necessary. The general rule We have thus stated
above is not without some recognized exceptions.
Having laid down the above legal precepts as Our foundation,
We now proceed to consider petitioner's assignments of
errors.
Petitioner, in her first assignment, contends that the
respondent Court of Appeals erred in holding that the
document, Exhibit "F", was executed and attested as required
by law when there was absolutely no proof that the three
instrumental witnesses were credible witnesses. She argues
that the require. ment in Article 806, Civil Code, that the
witnesses must be credible is an absolute requirement which
must be complied with before an alleged last will and
testament may be admitted to probate and that to be a
credible witness, there must be evidence on record that the
witness has a good standing in his community, or that he is
honest and upright, or reputed to be trustworthy and reliable.
According to petitioner, unless the qualifications of the witness
are first established, his testimony may not be favorably
considered. Petitioner contends that the term "credible" is not
synonymous with "competent" for a witness may be competent
under Article 820 and 821 of the Civil Code and still not be
credible as required by Article 805 of the same Code. It is
further urged that the term "credible" as used in the Civil Code
should receive the same settled and well- known meaning it
has under the Naturalization Law, the latter being a kindred
legislation with the Civil Code provisions on wigs with respect
to the qualifications of witnesses.
We find no merit to petitioner's first assignment of error. Article
820 of the Civil Code provides the qualifications of a witness to
the execution of wills while Article 821 sets forth the
disqualification from being a witness to a win. These Articles
state:
Art. 820. Any person of sound mind and of the
age of eighteen years or more, and not blind,
 deaf or dumb, and able to read and write, may
be a witness to the execution of a will
mentioned in article 806 of this Code. "Art. 821.
The following are disqualified from being
witnesses to a will:
(1) Any person not domiciled in the Philippines,
(2) Those who have been convicted of
falsification of a document, perjury or false
testimony.
Under the law, there is no mandatory requirement that the
witness testify initially or at any time during the trial as to his
good standing in the community, his reputation for
trustworthythiness and reliableness, his honesty and
uprightness in order that his testimony may be believed and
accepted by the trial court. It is enough that the qualifications
enumerated in Article 820 of the Civil Code are complied with,
such that the soundness of his mind can be shown by or
deduced from his answers to the questions propounded to
him, that his age (18 years or more) is shown from his
appearance, testimony , or competently proved otherwise, as
well as the fact that he is not blind, deaf or dumb and that he is
able to read and write to the satisfaction of the Court, and that
he has none of the disqualifications under Article 821 of the
Civil Code. We reject petitioner's contention that it must first be
established in the record the good standing of the witness in
the community, his reputation for trustworthiness and
reliableness, his honesty and uprightness, because such
attributes are presumed of the witness unless the contrary is
proved otherwise by the opposing party.
We also reject as without merit petitioner's contention that the
term "credible" as used in the Civil Code should be given the
same meaning it has under the Naturalization Law where the
law is mandatory that the petition for naturalization must be
supported by two character witnesses who must prove their
good standing in the community, reputation for trustworthiness
and reliableness, their honesty and uprightness. The two
witnesses in a petition for naturalization are character
witnesses in that being citizens of the Philippines, they
personally know the petitioner to be a resident of the
Philippines for the period of time required by the Act and a
person of good repute and morally irreproachable and that
said petitioner has in their opinion all the qualifications
necessary to become a citizen of the Philippines and is not in
any way disqualified under the provisions of the Naturalization
Law (Section 7, Commonwealth Act No. 473 as amended).
In probate proceedings, the instrumental witnesses are not
character witnesses for they merely attest the execution of a
will or testament and affirm the formalities attendant to said
execution. And We agree with the respondent that the rulings
laid down in the cases cited by petitioner concerning character
witnesses in naturalization proceedings are not applicable to
instrumental witnesses to wills executed under the Civil Code
of the Philippines.
In the case at bar, the finding that each and everyone of the
three instrumental witnesses, namely, Matilde Orobia, Celso
Gimpaya and Maria Gimpaya, are competent and credible is
satisfactorily supported by the evidence as found by the
respondent Court of Appeals, which findings of fact this
Tribunal is bound to accept and rely upon. Moreover, petitioner
has not pointed to any disqualification of any of the said
witnesses, much less has it been shown that anyone of them
is below 18 years of age, of unsound mind, deaf or dumb, or
cannot read or write.
It is true that under Article 805 of the New Civil Code, every
will, other than a holographic will, must be subscribed at the
end thereof by the testator himself or by the testator's name
written by some other person in his presence, and by his
express direction, and attested and subscribed by three or
more credible witnesses in the presence of the testator and of
one another, While the petitioner submits that Article 820 and
821 of the New Civil Code speak of the competency of a
witness due to his qualifications under the first Article and
none of the disqualifications under the second Article, whereas
Article 805 requires the attestation of three or more credible
witnesses, petitioner concludes that the term credible requires
something more than just being competent and, therefore, a
witness in addition to being competent under Articles 820 and
821 must also be a credible witness under Article 805.
Petitioner cites American authorities that competency and
credibility of a witness are not synonymous terms and one
may be a competent witness and yet not a credible one. She
exacerbates that there is no evidence on record to show that
the instrumental witnesses are credible in themselves, that is,
that they are of good standing in the community since one was
a family driver by profession and the second the wife of the
driver, a housekeeper. It is true that Celso Gimpaya was the
driver of the testatrix and his wife Maria Gimpaya, merely a
housekeeper, and that Matilde Orobia was a piano teacher to
a grandchild of the testatrix But the relation of employer and
employee much less the humble or financial position of a
person do not disqualify him to be a competent testamentary
witness. (Molo Pekson and Perez Nable vs. Tanchuco, et al.,
100 Phil. 344; Testate Estate of Raymundo, Off. Gaz., March
18,1941, p. 788).
Private respondent maintains that the qualifications of the
three or more credible witnesses mentioned in Article 805 of
the Civil Code are those mentioned in Article 820 of the same
Code, this being obvious from that portion of Article 820 which
says "may be Q witness to the execution of a will mentioned in
Article 805 of this Code," and cites authorities that the word
"credible" insofar as witnesses to a will are concerned simply
means " competent." Thus, in the case of Suntay vs. Suntay,
95 Phil. 500, the Supreme Court held that "Granting that a will
was duly executed and that it was in existence at the time of,
and not revoked before, the death of the testator, still the
provisions of the lost wig must be clearly and distinctly proved
by at least two credible witnesses. 'Credible witnesses' mean
competent witnesses and not those who testify to facts from or
upon hearsay. " emphasis supplied).
In Molo Pekson and Perez Nable vs. Tanchuco, et al., 100
Phil. 344, the Supreme Court held that "Section 620 of the
same Code of Civil Procedure provides that any person of
sound mind, and of the age of eighteen years or more, and not
blind, deaf, or dumb and able to read and write, may be a
witness to the execution of a will. This same provision is
reproduced in our New Civil Code of 1950, under Art. 820. The
relation of employer and employee, or being a relative to the
beneficiary in a win, does not disqualify one to be a witness to
a will. The main qualification of a witness in the attestation of
wills, if other qualifications as to age, mental capacity and
literacy are present, is that said witness must be credible, that
is to say, his testimony may be entitled to credence. There is a
long line of authorities on this point, a few of which we may
cite:
A 'credible witness is one who is not is not to
testify by mental incapacity, crime, or other
cause. Historical Soc of Dauphin County vs.
Kelker 74 A. 619, 226 Pix 16, 134 Am. St. Rep.
1010. (Words and Phrases, Vol. 10, p. 340).
As construed by the common law, a 'credible
witness' to a will means a 'competent witness.'
Appeal of Clark, 95 A. 517, 114 Me. 105, Ann.
Cas. 1917A, 837. (lbid, p. 341).
Expression 'credible witness' in relation to
attestation of wins means 'competent witness
that is, one competent under the law to testify to
fact of execution of will. Vernon's Ann. Civ St.
art. 8283. Moos vs. First State Bank of Uvalde,
Tex . Civ. App. 60 S.W. 2nd 888, 889. (Ibid, p.
342)
The term 'credible', used in the statute of wills
requiring that a will shall be attested by two
credible witnesses means competent;
witnesses who, at the time of attesting the will,
are legally competent to testify, in a court of
justice, to the facts attested by subscribing the
will, the competency being determined as of the
date of the execution of the will and not of the
timr it is offered for probate, Smith vs.
Goodell 101 N.E. 255, 256, 258 111. 145. (Ibid.)
Credible witnesses as used in the statute
relating to wills, means competent witnesses —
that is, such persons as are not legally
disqualified from testifying in courts of justice,
by reason of mental incapacity, interest, or the
commission of crimes, or other cause excluding
them from testifying generally, or rendering
them incompetent in respect of the particular
subject matter or in the particular suit. Hill vs.
Chicago Title & Trust co 152 N.E. 545, 546, 322
111. 42. (Ibid. p, 343)
In the strict sense, the competency of a person to be an
instrumental witness to a will is determined by the statute, that
is Art. 820 and 821, Civil Code, whereas his credibility
depends On the appreciation of his testimony and arises from
the belief and conclusion of the Court that said witness is
telling the truth. Thus, in the case of Vda. de Aroyo v. El
Beaterio del Santissimo Rosario de Molo, No. L-22005, May 3,
1968, the Supreme Court held and ruled that: "Competency as
a witness is one thing, and it is another to be a credible
witness, so credible that the Court must accept what he says.
Trial courts may allow a person to testify as a witness upon a
given matter because he is competent, but may thereafter
decide whether to believe or not to believe his testimony." In
fine, We state the rule that the instrumental witnesses in Order
to be competent must be shown to have the qualifications
under Article 820 of the Civil Code and none of the
disqualifications under Article 821 and for their testimony to be
credible, that is worthy of belief and entitled to credence, it is
not mandatory that evidence be first established on record that
the witnesses have a good standing in the community or that
they are honest and upright or reputed to be trustworthy and
reliable, for a person is presumed to be such unless the
contrary is established otherwise. In other words, the
instrumental witnesses must be competent and their
testimonies must be credible before the court allows the
probate of the will they have attested. We, therefore, reject
petitioner's position that it was fatal for respondent not to have
introduced prior and independent proof of the fact that the
witnesses were "credible witnesses that is, that they have a
good standing in the community and reputed to be trustworthy
and reliable.
Under the second, third, fourth, fifth, sixth, seventh and eighth
assignments of errors, petitioner disputes the findings of fact of
the respondent court in finding that the preparation and
execution of the will was expected and not coincidental, in
finding that Atty. Paraiso was not previously furnished with the
names and residence certificates of the witnesses as to enable
him to type such data into the document Exhibit "F", in holding
that the fact that the three typewritten lines under the
typewritten words "pangalan" and "tinitirahan" were left blank
shows beyond cavil that the three attesting witnesses were all
present in the same occasion, in holding credible that Isabel
Gabriel could have dictated the will without note or document
to Atty. Paraiso, in holding that Matilde Orobia was physically
present when the will was signed on April 15, 1961 by the
deceased Isabel Gabriel and the other witnesses Celso
Gimpaya and Maria Gimpaya, in holding that the trial court
gave undue importance to the picture takings as proof that the
will was improperly executed, and in holding that the grave
contradictions, evasions and misrepresentations of the
witnesses (subscribing and notary) presented by the petitioner
had been explained away.
Since the above errors are factual We must repeat what We
have previously laid down that the findings of fact of the
appellate court are binding and controlling which We cannot
review, subject to certain exceptions which We win consider
and discuss hereinafter. We are convinced that the appellate
court's findings are sufficiently justified and supported by the
evidence on record. Thus, the alleged unnaturalness
characterizing the trip of the testatrix to the office of Atty.
Paraiso and bringing all the witnesses without previous
appointment for the preparation and execution of the win and
that it was coincidental that Atty. Paraiso was available at the
moment impugns the finding of the Court of Appeals that
although Atty. Paraiso admitted the visit of Isabel Gabriel and
of her companions to his office on April 15, 1961 was
unexpected as there was no prior appointment with him, but
he explained that he was available for any business
transaction on that day and that Isabel Gabriel had earlier
requested him to help her prepare her will. The finding of the
appellate court is amply based on the testimony of Celso
Gimpaya that he was not only informed on the morning of the
day that he witnessed the will but that it was the third time
when Isabel Gabriel told him that he was going to witness the
making of her will, as well as the testimony of Maria Gimpaya
that she was called by her husband Celso Gimpaya to proceed
to Isabel Gabriel's house which was nearby and from said
house, they left in a car to the lawyer's office, which
testimonies are recited in the respondent Court's decision.
The respondent Court further found the following facts: that
Celso Gimpaya and his wife Maria Gimpaya obtained
residence certificates a few days before Exhibit "F" was
executed. Celso Gimpaya's residence certificate No. A-
5114942 was issued at Navotas, Rizal on April 13, 1961 while
Maria Gimpaya's residence certificate No. A-5114974 was
issued also at Navotas, Rizal on April 14, 1961. The
respondent Court correctly observed that there was nothing
surprising in these facts and that the securing of these
residence certificates two days and one day, respectively,
before the execution of the will on April 15, 1961, far from
showing an amazing coincidence, reveals that the spouses
were earlier notified that they would be witnesses to the
execution of Isabel Gabriel's will.
We also agree with the respondent Court's conclusion that the
excursion to the office of Atty. Paraiso was planned by the
deceased, which conclusion was correctly drawn from the
testimony of the Gimpaya spouses that they started from the
Navotas residence of the deceased with a photographer and
Isabel Gabriel herself, then they proceeded by car to Matilde
Orobia's house in Philamlife, Quezon City to fetch her and
from there, all the three witnesses (the Gimpayas and Orobia)
passed by a place where Isabel Gabriel stayed for about ten to
fifteen minutes at the clinic of Dr. Chikiamco before they
proceeded to Atty. Cipriano Paraiso's office.
It is also evident from the records, as testified to by Atty.
Paraiso, that previous to the day that. the will was executed on
April 15, 1961, Isabel Gabriel had requested him to help her in
the execution of her will and that he told her that if she really
wanted to execute her will, she should bring with her at least
the Mayor of Navotas, Rizal and a Councilor to be her
witnesses and that he (Atty. Paraiso) wanted a medical
certificate from a physician notwithstanding the fact that he
believed her to be of sound and disposition mind. From this
evidence, the appellate court rightly concluded, thus: "It is,
therefore, clear that the presence of Isabel Gabriel and her
witnesses Matilde Orobia, Celso Gimpaya and Maria Gimpaya
including the photographer in the law office of Atty. Paraiso
was not coincidental as their gathering was pre-arranged by
Isabel Gabriel herself."
As to the appellate court's finding that Atty. Paraiso was not
previously furnished with the names and residence certificates
of the witnesses as to enable him to type such data into the
document Exhibit ' L which the petitioner assails as
contradictory and irreconcilable with the statement of the Court
that Atty. Paraiso was handed a list (containing the names of
the witnesses and their respective residence certificates)
immediately upon their arrival in the law office by Isabel
Gabriel and this was corroborated by Atty. Paraiso himself who
testified that it was only on said occasion that he received
such list from Isabel Gabriel, We cannot agree with petitioner's
contention. We find no contradiction for the, respondent Court
held that on the occasion of the will making on April 15, 1961,
the list was given immediately to Atty. Paraiso and that no
such list was given the lawyer in any previous occasion or date
prior to April 15, 1961.
But whether Atty. Paraiso was previously furnished with the
names and residence certificates of the witnesses on a prior
occasion or on the very occasion and date in April 15, 1961
when the will was executed, is of no moment for such data
appear in the notarial acknowledgment of Notary Public
Cipriano Paraiso, subscribed and sworn to by the witnesses
on April 15, 1961 following the attestation clause duly
executed and signed on the same occasion, April 15, 1961.
And since Exhibit "F" is a notarial will duly acknowledged by
the testatrix and the witnesses before a notary public, the
same is a public document executed and attested through the
intervention of the notary public and as such public document
is evidence of the facts in clear, unequivocal manner therein
expressed. It has in its favor the presumption of regularity. To
contradict all these, there must be evidence that is clear,
convincing and more than merely preponderant. (Yturalde vs.
Azurin, 28 SCRA 407). We find no such evidence pointed by
petitioner in the case at bar.
Likewise, the conclusion of the Court of Appeals in holding that
the fact that the three typewritten lines under the typewritten
words "pangalan ' and "tinitirahan" were left blank shows
beyond cavil that the three attesting witnesses were all present
in the same occasion merits Our approval because tills
conclusion is supported and borne out by the evidence found
by the appellate court, thus: "On page 5 of Exhibit "F", beneath
the typewritten words "names", "Res. Tax Cert. date issued"
and place issued the only name of Isabel Gabriel with
Residence Tax certificate No. A-5113274 issued on February
24, 1961 at Navotas Rizal appears to be in typewritten form
while the names, residence tax certificate numbers, dates and
places of issuance of said certificates pertaining to the three
(3) witnesses were personally handwritten by Atty. Paraiso.
Again, this coincides with Atty. Paraiso's even the sale must be
made to close relatives; and the seventh was the appointment
of the appellant Santiago as executrix of the will without bond.
The technical description of the properties in paragraph 5 of
Exhibit F was not given and the numbers of the certificates of
title were only supplied by Atty. Paraiso. "
It is true that in one disposition, the numbers of the Torrens
titles of the properties disposed and the docket number of a
special proceeding are indicated which Atty. Paraiso candidly
admitted were supplied by him, whereupon petitioner contends
that it was incredible that Isabel Gabriel could have dictated
the will Exhibit "F" without any note or document to Atty.
Paraiso, considering that Isabel Gabriel was an old and sickly
woman more than eighty-one years old and had been suffering
from a brain injury caused by two severe blows at her head
and died of terminal cancer a few weeks after the execution of
Exhibit "F". While we can rule that this is a finding of fact which
is within the competency of the respondent appellate court in
determining the testamentary capacity of the testatrix and is,
therefore, beyond Our power to revise and review, We
nevertheless hold that the conclusion reached by the Court of
Appeals that the testatrix dictated her will without any note or
memorandum appears to be fully supported by the following
facts or evidence appearing on record. Thus, Isabel Gabriel,
despite her age, was particularly active in her business affairs
as she actively managed the affairs of the movie business
ISABELITA Theater, paying the aparatistas herself until June
4, 1961, 3 days before her death. She was the widow of the
late Eligio Naval, former Governor of Rizal Province and acted
as coadministratrix in the Intestate Estate of her deceased
husband Eligio Naval. The text of the win was in Tagalog, a
dialect known and understood by her and in the light of all the
circumstances, We agree with the respondent Court that the
testatrix dictated her will without any note or memorandum, a
fact unanimously testified to by the three attesting witnesses
and the notary public himself.
Petitioner's sixth assignment of error is also bereft of merit.
The evidence, both testimonial and documentary is, according
to the respondent court, overwhelming that Matilde Orobia was
physically present when the will was signed on April 15, 1961
by the testatrix and the other two witnesses, Celso Gimpaya
and Maria Gimpaya. Such factual finding of the appellate court
is very clear, thus: "On the contrary, the record is replete with
proof that Matilde Orobia was physically present when the will
was signed by Isabel Gabriel on April '15, 1961 along with her
co-witnesses Celso Gimpaya and Maria Gimpaya. The trial
court's conclusion that Orobia's admission that she gave piano
lessons to the child of the appellant on Wednesdays and
Saturdays and that April 15, 1961 happened to be a Saturday
for which reason Orobia could not have been present to
witness the will on that — day is purely conjectural. Witness
Orobia did not admit having given piano lessons to the
appellant's child every Wednesday and Saturday without fail. It
is highly probable that even if April 15, 1961 were a Saturday,
she gave no piano lessons on that day for which reason she
could have witnessed the execution of the will. Orobia spoke
of occasions when she missed giving piano lessons and had
to make up for the same. Anyway, her presence at the law
office of Atty. Paraiso was in the morning of April 15, 1961 and
there was nothing to preclude her from giving piano lessons on
the afternoon of the same day in Navotas, Rizal."
In addition to the testimony of Matilde Orobia, Celso Gimpaya
and Maria Gimpaya that Matilde was present on April 15, 1961
and that she signed the attestation clause to the will and on
the left-hand margin of each of the pages of the will, the
documentary evidence which is the will itself, the attestation
clause and the notarial acknowledgment overwhelmingly and
convincingly prove such fact that Matilde Orobia was present
on that day of April 15, 1961 and that she witnessed the will by
signing her name thereon and acknowledged the same before
the notary public, Atty. Cipriano P. Paraiso. The attestation
clause which Matilde Orobia signed is the best evidence as to
the date of signing because it preserves in permanent form a
recital of all the material facts attending the execution of the
will. This is the very purpose of the attestation clause which is
made for the purpose of preserving in permanent form a
record of the facts attending the execution of the will, so that in
case of failure in the memory of the subscribing witnesses, or
other casualty they may still be proved. (Thompson on Wills,
2nd ed., Sec. 132; Leynez vs. Leynez, 68 Phil. 745).
As to the seventh error assigned by petitioner faulting the
Court of Appeals in holding that the trial court gave undue
importance to the picture-takings as proof that the win was
improperly executed, We agree with the reasoning of the
respondent court that: "Matilde Orobia's Identification of the
photographer as "Cesar Mendoza", contrary to what the other
two witnesses (Celso and Maria Gimpaya) and Atty. Paraiso
said that the photographer was Benjamin Cifra, Jr., is at worst
a minor mistake attributable to lapse of time. The law does not
require a photographer for the execution and attestation of the
will. The fact that Miss Orobia mistakenly Identified the
photographer as Cesar Mendoza scarcely detracts from her
testimony that she was present when the will was signed
because what matters here is not the photographer but the
photograph taken which clearly portrays Matilde Orobia
herself, her co-witnesses Celso Gimpaya. " Further, the
respondent Court correctly held: "The trial court gave undue
importance to the picture takings, jumping therefrom to the
conclusion that the will was improperly executed. The
evidence however, heavily points to only one occasion of the
execution of the will on April 15, 1961 which was witnessed by
Matilde Orobia, Celso Gimpaya and Maria Gimpaya. These
witnesses were quite emphatic and positive when they spoke
of this occasion. Hence, their Identification of some
photographs wherein they all appeared along with Isabel
Gabriel and Atty. Paraiso was superfluous."
Continuing, the respondent Court declared: "It is true that the
second picture-taking was disclosed at the cross examination
of Celso Gimpaya. But this was explained by Atty. Paraiso as a
reenactment of the first incident upon the insistence of Isabel
Gabriel. Such reenactment where Matilde Orobia was
admittedly no longer present was wholly unnecessary if not
pointless. What was important was that the will was duly
executed and witnessed on the first occasion on April 15, 1961
, " and We agree with the Court's rationalization in conformity
with logic, law and jurisprudence which do not require picture-
taking as one of the legal requisites for the execution or
probate of a will.
Petitioner points to alleged grave contradictions, evasions and
misrepresentations of witnesses in their respective testimonies
before the trial court. On the other hand, the respondent Court
of Appeals held that said contradictions, evasions and
misrepresentations had been explained away. Such
discrepancies as in the description of the typewriter used by
Atty. Paraiso which he described as "elite" which to him meant
big letters which are of the type in which the will was
typewritten but which was Identified by witness Jolly Bugarin of
the N.B.I. as pica the mistake in mentioning the name of the
photographer by Matilde Orobia to be Cesar Mendoza when
actually it was Benjamin Cifra, Jr.— these are indeed
unimportant details which could have been affected by the
lapse of time and the treachery of human memory such that by
themselves would not alter the probative value of their
testimonies on the true execution of the will, (Pascual vs. dela
Cruz, 28 SCRA 421, 424) for it cannot be expected that the
testimony of every person win be Identical and coinciding with
each other with regard to details of an incident and that
witnesses are not expected to remember all details. Human
experience teach us "that contradictions of witnesses generally
occur in the details of certain incidents, after a long series of
questionings, and far from being an evidence of falsehood
constitute a demonstration of good faith. In as much as not all
those who witness an incident are impressed in like manner, it
is but natural that in relating their impressions, they should not
agree in the minor details; hence the contradictions in their
testimony." (Lopez vs. Liboro, 81 Phil. 429).
It is urged of Us by the petitioner that the findings of the trial
court should not have been disturbed by the respondent
appellate court because the trial court was in a better position
to weigh and evaluate the evidence presented in the course of
the trial. As a general rule, petitioner is correct but it is subject
to well-established exceptions. The right of the Court of
Appeals to review, alter and reverse the findings of the trial
court where the appellate court, in reviewing the evidence has
found that facts and circumstances of weight and influence
have been ignored and overlooked and the significance of
which have been misinterpreted by the trial court, cannot be
disputed. Findings of facts made by trial courts particularly
when they are based on conflicting evidence whose evaluation
hinges on questions of credibility of contending witnesses hes
peculiarly within the province of trial courts and generally, the
appellate court should not interfere with the same. In the
instant case, however, the Court of Appeals found that the trial
court had overlooked and misinterpreted the facts and
circumstances established in the record. Whereas the
appellate court said that "Nothing in the record supports the
trial court's unbelief that Isabel Gabriel dictated her will without
any note or document to Atty. Paraiso;" that the trial court's
conclusion that Matilde Orobia could not have witnessed
anybody signing the alleged will or that she could not have
witnessed Celso Gimpaya and Maria Gimpaya sign the same
or that she witnessed only the deceased signing it, is a
conclusion based not on facts but on inferences; that the trial
court gave undue importance to the picture-takings, jumping
therefrom to the conclusion that the will was improperly
executed and that there is nothing in the entire record to
support the conclusion of the court a quo that the will signing
occasion was a mere coincidence and that Isabel Gabriel
made an appointment only with Matilde Orobia to witness the
signing of her will, then it becomes the duty of the appellate
court to reverse findings of fact of the trial court in the exercise
of its appellate jurisdiction over the lower courts.
Still the petitioner insists that the case at bar is an exception to
the rule that the judgment of the Court of Appeals is conclusive
as to the facts and cannot be reviewed by the Supreme Court.
Again We agree with the petitioner that among the exceptions
are: (1) when the conclusion is a finding grounded entirely on
speculations, surmises or conjectures; (2) when the inference
is manifestly mistaken, absurd or impossible; (3) when there is
a grave abuse of discretion; (4) when the presence of each
other as required by law. " Specifically, We affirm that on April
15, 1961 the testatrix Isabel Gabriel, together with Matilde
Orobia, Celso Gimpaya and his wife Maria Gimpaya, and a
photographer proceeded in a car to the office of Atty. Cipriano
Paraiso at the Bank of P.I. Building, Manila in the morning of
that day; that on the way, Isabel Gabriel obtained a medical
certificate from one Dr. Chikiamko which she gave to Atty.
Paraiso upon arriving at the latter's office and told the lawyer
that she wanted her will to be made; that Atty. Paraiso asked
Isabel Gabriel to dictate what she wanted to be written in the
will and the attorney wrote down the dictation of Isabel Gabriel
in Tagalog, a language known to and spoken by her; that Atty.
Paraiso read back to her what he wrote as dictated and she
affirmed their correctness; the lawyer then typed the will and
after finishing the document, he read it to her and she told him
that it was alright; that thereafter, Isabel Gabriel signed her
name at the end of the will in the presence of the three
witnesses Matilde Orobia, Celso Gimpaya and Maria Gimpaya
and also at the left-hand margin of each and every page of the
document in the presence also of the said three witnesses;
that thereafter Matilde Orobia attested the will by signing her
name at the end of the attestation clause and at the left-hand
margin of pages 1, 2, 3 and 5 of the document in the presence
of Isabel Gabriel and the other two witnesses, Celso Gimpaya
and Maria Gimpaya; then, Celso Gimpaya signed also the will
at the bottom of the attestation clause and at the left-hand
margin of the other pages of the document in the presence of
Isabel Gabriel, Matilde Orobia and Maria Gimpaya; that Maria
Gimpaya followed suit, signing her name at the foot of the
attestation clause and at the left-hand margin of every page in
the presence of Isabel Gabriel, Matilde Orobia and Celso
Gimpaya; that thereafter, Atty. Paraiso notarized the will as
Page No. 94, Book No. IV, Series of 1961, in his Notarial
Register. On the occasion of the execution and attestation of
the will, a photographer took pictures, one Exhibit "G",
depicting Matilde Orobia, the testatrix Isabel Gabriel, Celso
Gimpaya, Maria Gimpaya and Atty. Paraiso, taken on said
occasion of the signing of the will, and another, Exhibit "H",
showing Matilde Orobia signing testimony that he had earlier
advised Isabel Gabriel to bring with her at least the Mayor and
a Councilor of Navotas, Rizal to be her witnesses for he did
not know beforehand the Identities of the three attesting
witnesses until the latter showed up at his law office with
Isabel Gabriel on April 15, 1961. Atty. Paraiso's claim which
was not controverted that he wrote down in his own hand the
date appearing on page 5 of Exhibit "F" dissipates any
lingering doubt that he prepared and ratified the will on the
date in question."
It is also a factual finding of the Court of Appeals in holding
that it was credible that Isabel Gabriel could have dictated the
will, Exhibit "F", without any note or document to Atty. Paraiso
as against the contention of petitioner that it was incredible.
This ruling of the respondent court is fully supported by the
evidence on record as stated in the decision under review,
thus: "Nothing in the record supports the trial court's unbelief
that Isabel Gabriel dictated her will without any note or
document to Atty. Paraiso. On the contrary, all the three
attesting witnesses uniformly testified that Isabel Gabriel
dictated her will to Atty. Paraiso and that other than the piece
of paper that she handed to said lawyer she had no note or
document. This fact jibes with the evidence — which the trial
court itself believed was unshaken — that Isabel Gabriel was
of sound disposing memory when she executed her will.
Exhibit "F" reveals only seven (7) dispositions which are not
complicated but quite simple. The first was Isabel Gabriel's
wish to be interred according to Catholic rites the second was
a general directive to pay her debts if any; the third provided
for P1,000.00 for her sister Praxides Gabriel Vda. de Santiago
and P2,000.00 for her brother Santiago Gabriel; the fourth was
a listing of her 13 nephews and nieces including oppositor-
appellee Rizalina Gabriel and the amount for each legatee the
fifth was the institution of the petitioner-appellant, Lutgarda
Santiago as the principal heir mentioning in general terms
seven (7) types of properties; the sixth disposed of the
remainder of her estate which she willed in favor of appellant
Lutgarda Santiago but prohibiting the sale of such properties
to anyone except in extreme situations in which judgment is
based on a misapprehension of facts; (5) when the findings of
fact are conflicting, (6) when the Court of Appeals, in making
its findings, went beyond the issues of the case and the same
is contrary to the admissions of both appellant and appellee.
(Roque vs. Buan, et al., G.R. No. L-22459, Oct. 31, 1967;
Ramos vs. Pepsi Cola Bottling Co., G.R. No. L-22533, Feb. 9,
1967; Hilarion Jr. vs. City of Manila, G.R. No. L-19570; Sept.
14, 1967).
Petitioner's insistence is without merit. We hold that the case
at bar does not fall within any of the exceptions enumerated
above. We likewise hold that the findings of fact of the
respondent appellate court are fully supported by the evidence
on record. The conclusions are fully sustained by substantial
evidence. We find no abuse of discretion and We discern no
misapprehension of facts. The respondent Court's findings of
fact are not conflicting. Hence, the well-established rule that
the decision of the Court of Appeals and its findings of fact are
binding and conclusive and should not be disturbed by this
Tribunal and it must be applied in the case at bar in its full
force and effect, without qualification or reservation. The above
holding simply synthesize the resolutions we have heretofore
made in respect ' to petitioner's previous assignments of error
and to which We have disagreed and, therefore, rejected.
The last assignments of error of petitioner must necessarily be
rejected by Us as We find the respondent Court acted properly
and correctly and has not departed from the accepted and
usual course of judicial proceedings as to call for the exercise
of the power of supervision by the Supreme Court, and as We
find that the Court of Appeals did not err in reversing the
decision of the trial court and admitting to probate Exhibit "F",
the last will and testament of the deceased Isabel Gabriel.
We rule that the respondent Court's factual findings upon its
summation and evaluation of the evidence on record is
unassailable that: "From the welter of evidence presented, we
are convinced that the will in question was executed on April
15, 1961 in the presence of Matilde Orobia, Celso Gimpaya
and Maria Gimpaya signing and witnessing the same in the
the will on a table with Isabel Gabriel, Celso Gimpaya and
Maria Gimpaya sitting around the table. Atty. Paraiso, after
finishing the notarial act, then delivered the original to Isabel
Gabriel and retained the other copies for his file and notarial
register. A few days following the signing of the will, Isabel
Gabriel, Celso Gimpaya and another photographer arrived at
the office of Atty. Paraiso and told the lawyer that she wanted
another picture taken because the first picture did not turn out
good. The lawyer told her that this cannot be done because
the will was already signed but Isabel Gabriel insisted that a
picture be taken, so a simulated signing was performed during
which incident Matilde Orobia was not present.
Petitioner's exacerbation centers on the supposed incredibility
of the testimonies of the witnesses for the proponent of the
will, their alleged evasions, inconsistencies and contradictions.
But in the case at bar, the three instrumental witnesses who
constitute the best evidence of the will making have testified in
favor of the probate of the will. So has the lawyer who
prepared it, one learned in the law and long in the practice
thereof, who thereafter notarized it. All of them are
disinterested witnesses who stand to receive no benefit from
the testament. The signatures of the witnesses and the
testatrix have been identified on the will and there is no claim
whatsoever and by anyone, much less the petitioner, that they
were not genuine. In the last and final analysis, the herein
conflict is factual and we go back to the rule that the Supreme
Court cannot review and revise the findings of facts of the
respondent Court of Appeals.
WHEREFORE, IN VIEW OF THE FOREGOING, the judgment
appealed from is hereby AFFIRMED, with costs against the
petitioner.
SO ORDERED.
Teehankee, Makasiar, De Castro and Herrera, JJ., concur.
G.R. No. 76464 February 29, 1988
TESTATE ESTATE OF THE LATE ADRIANA MALOTO,
ALDINA MALOTO CASIANO, CONSTANCIO MALOTO,
PURIFICACION MIRAFLOR, ROMAN CATHOLIC CHURCH
OF MOLO, AND ASILO DE MOLO, petitioners,
vs.
COURT OF APPEALS, PANFILO MALOTO AND FELINO
MALOTO, respondents.
SARMIENTO, J.:
This is not the first time that the parties to this case come to
us. In fact, two other cases directly related to the present one
and involving the same parties had already been decided by
us in the past. In G.R. No. L-30479, 1 which was a petition for
certiorari and mandamus instituted by the petitioners herein,
we dismissed the petition ruling that the more appropriate
remedy of the petitioners is a separate proceeding for the
probate of the will in question. Pursuant to the said ruling, the
petitioners commenced in the then Court of First Instance of
Iloilo, Special Proceeding No. 2176, for the probate of the
disputed will, which was opposed by the private respondents
presently, Panfilo and Felino both surnamed Maloto. The trial
court dismissed the petition on April 30, 1970. Complaining
against the dismissal, again, the petitioners came to this Court
on a petition for review by certiorari. 2 Acting on the said
petition, we set aside the trial court's order and directed it to
proceed to hear the case on the merits. The trial court, after
hearing, found the will to have already been revoked by the
testatrix. Adriana Maloto, and thus, denied the petition. The
petitioners appealed the trial court's decision to the
Intermediate Appellate Court which, on June 7, 1985, affirmed
the order. The petitioners' motion for reconsideration of the
adverse decision proved to be of no avail, hence, this petition.
For a better understanding of the controversy, a factual
account would be a great help.
On October 20, 1963, Adriana Maloto died leaving as heirs her
niece and nephews, the petitioners Aldina Maloto-Casiano and
Constancio, Maloto, and the private respondents Panfilo
Maloto and Felino Maloto. Believing that the deceased did not
leave behind a last will and testament, these four heirs
commenced on November 4, 1963 an intestate proceeding for
the settlement of their aunt's estate. The case was instituted in
the then Court of First Instance of Iloilo and was docketed as
Special Proceeding No. 1736. However, while the case was
still in progress, or to be exact on February 1, 1964, the parties
— Aldina, Constancio, Panfilo, and Felino — executed an
agreement of extrajudicial settlement of Adriana's estate. The
agreement provided for the division of the estate into four
equal parts among the parties. The Malotos then presented
the extrajudicial settlement agreement to the trial court for
approval which the court did on March 21, 1964. That should
have signalled the end of the controversy, but, unfortunately, it
had not.
Three years later, or sometime in March 1967, Atty. Sulpicio
Palma, a former associate of Adriana's counsel, the late Atty.
Eliseo Hervas, discovered a document entitled "KATAPUSAN
NGA PAGBUBULAT-AN (Testamento)," dated January 3,1940,
and purporting to be the last will and testament of Adriana.
Atty. Palma claimed to have found the testament, the original
copy, while he was going through some materials inside the
cabinet drawer formerly used by Atty. Hervas. The document
was submitted to the office of the clerk of the Court of First
Instance of Iloilo on April 1, 1967. Incidentally, while Panfilo
and Felino are still named as heirs in the said will, Aldina and
Constancio are bequeathed much bigger and more valuable
shares in the estate of Adriana than what they received by
virtue of the agreement of extrajudicial settlement they had
earlier signed. The will likewise gives devises and legacies to
other parties, among them being the petitioners Asilo de Molo,
the Roman Catholic Church of Molo, and Purificacion Miraflor.
Thus, on May 24, 1967, Aldina and Constancio, joined by the
other devisees and legatees named in the will, filed in Special
Proceeding No. 1736 a motion for reconsideration and
annulment of the proceedings therein and for the allowance of
the will When the trial court denied their motion, the petitioner
came to us by way of a petition for certiorari and mandamus
assailing the orders of the trial court . 3 As we stated earlier,
we dismissed that petition and advised that a separate
proceeding for the probate of the alleged will would be the
appropriate vehicle to thresh out the matters raised by the
petitioners.
Significantly, the appellate court while finding as inconclusive
the matter on whether or not the document or papers allegedly
burned by the househelp of Adriana, Guadalupe Maloto Vda.
de Coral, upon instructions of the testatrix, was indeed the will,
contradicted itself and found that the will had been revoked.
The respondent court stated that the presence of animus
revocandi in the destruction of the will had, nevertheless, been
sufficiently proven. The appellate court based its finding on the
facts that the document was not in the two safes in Adriana's
residence, by the testatrix going to the residence of Atty.
Hervas to retrieve a copy of the will left in the latter's
possession, and, her seeking the services of Atty. Palma in
order to have a new will drawn up. For reasons shortly to be
explained, we do not view such facts, even considered
collectively, as sufficient bases for the conclusion that Adriana
Maloto's will had been effectively revoked.
There is no doubt as to the testamentary capacity of the
testatrix and the due execution of the will. The heart of the
case lies on the issue as to whether or not the will was
revoked by Adriana.
The provisions of the new Civil Code pertinent to the issue can
be found in Article 830.
Art. 830. No will shall be revoked except in the
following cases:
(1) By implication of law; or
(2) By some will, codicil, or other writing
executed as provided in case of wills: or
(3) By burning, tearing, cancelling, or
obliterating the will with the intention of
revoking it, by the testator himself, or by some
other person in his presence, and by his
express direction. If burned, torn cancelled, or
obliterated by some other person, without the
express direction of the testator, the will may
still be established, and the estate distributed in
accordance therewith, if its contents, and due
execution, and the fact of its unauthorized
destruction, cancellation, or obliteration are
established according to the Rules of Court.
(Emphasis Supplied.)
It is clear that the physical act of destruction of a will, like
burning in this case, does not per se constitute an effective
revocation, unless the destruction is coupled with animus
revocandi on the part of the testator. It is not imperative that
the physical destruction be done by the testator himself. It may
be performed by another person but under theexpress
direction and in the presence of the testator. Of course, it goes
without saying that the document destroyed must be the will
itself.
In this case, while animus revocandi or the intention to revoke,
may be conceded, for that is a state of mind, yet that requisite
alone would not suffice. "Animus revocandi is only one of the
necessary elements for the effective revocation of a last will
and testament. The intention to revoke must be accompanied
by the overt physical act of burning, tearing, obliterating, or
cancelling the will carried out by the testator or by another
person in his presence and under his express direction. There
is paucity of evidence to show compliance with these
requirements. For one, the document or papers burned by
Adriana's maid, Guadalupe, was not satisfactorily established
to be a will at all, much less the will of Adriana Maloto. For
another, the burning was not proven to have been done under
the express direction of Adriana. And then, the burning was not
in her presence. Both witnesses, Guadalupe and Eladio, were
one in stating that they were the only ones present at the place
where the stove (presumably in the kitchen) was located in
which the papers proffered as a will were burned.
The respondent appellate court in assessing the evidence
presented by the private respondents as oppositors in the trial
court, concluded that the testimony of the two witnesses who
testified in favor of the will's revocation appear "inconclusive."
We share the same view. Nowhere in the records before us
does it appear that the two witnesses, Guadalupe Vda. de
Corral and Eladio Itchon, both illiterates, were unequivocably
positive that the document burned was indeed Adriana's will.
Guadalupe, we think, believed that the papers she destroyed
was the will only because, according to her, Adriana told her
so. Eladio, on the other hand, obtained his information that the
burned document was the will because Guadalupe told him so,
thus, his testimony on this point is double hearsay.
At this juncture, we reiterate that "(it) is an important matter of
public interest that a purported win is not denied legalization
on dubious grounds. Otherwise, the very institution of
testamentary succession will be shaken to its very foundations
...."4
The private respondents in their bid for the dismissal of the
present action for probate instituted by the petitioners argue
that the same is already barred by res adjudicata. They claim
that this bar was brought about by the petitioners' failure to
appeal timely from the order dated November 16, 1968 of the
trial court in the intestate proceeding (Special Proceeding No.
1736) denying their (petitioners') motion to reopen the case,
and their prayer to annul the previous proceedings therein and
to allow the last will and testament of the late Adriana Maloto.
This is untenable.
The doctrine of res adjudicata finds no application in the
present controversy. For a judgment to be a bar to a
subsequent case, the following requisites must concur: (1) the
presence of a final former judgment; (2) the former judgment
was rendered by a court having jurisdiction over the subject
matter and the parties; (3) the former judgment is a judgment
on the merits; and (4) there is, between the first and the
second action, Identity of parties, of subject matter, and of
cause of action. 5 We do not find here the presence of all the
enumerated requisites.
For one, there is yet, strictly speaking, no final judgment
rendered insofar as the probate of Adriana Maloto's will is
concerned. The decision of the trial court in Special
Proceeding No. 1736, although final, involved only the
intestate settlement of the estate of Adriana. As such, that
judgment could not in any manner be construed to be final with
respect to the probate of the subsequently discovered will of
the decedent. Neither is it a judgment on the merits of the
action for probate. This is understandably so because the trial SO ORDERED.
court, in the intestate proceeding, was without jurisdiction to
rule on the probate of the contested will . 6 After all, an action Yap (Chairman), Melencio-Herrera, and Paras JJ., concur.
for probate, as it implies, is founded on the presence of a will
and with the objective of proving its due execution and validity, Padilla, J., took no part.
something which can not be properly done in an intestate
settlement of estate proceeding which is predicated on the
assumption that the decedent left no will. Thus, there is
likewise no Identity between the cause of action in intestate
proceeding and that in an action for probate. Be that as it may,
it would be remembered that it was precisely because of our
ruling in G.R. No. L-30479 that the petitioners instituted this
separate action for the probate of the late Adriana Maloto's
will. Hence, on these grounds alone, the position of the private
respondents on this score can not be sustained.

One last note. The private respondents point out that

revocation could be inferred from the fact that "(a) major and
substantial bulk of the properties mentioned in the will had
been disposed of: while an insignificant portion of the
properties remained at the time of death (of the testatrix); and,
furthermore, more valuable properties have been acquired
after the execution of the will on January 3,1940." 7 Suffice it to
state here that as these additional matters raised by the
private respondents are extraneous to this special proceeding,
they could only be appropriately taken up after the will has
been duly probated and a certificate of its allowance issued.

WHEREFORE, judgment is hereby rendered REVERSING

and SETTING ASIDE the Decision dated June 7, 1985 and the
Resolution dated October 22, 1986, of the respondent Court of
Appeals, and a new one ENTERED for the allowance of
Adriana Maloto's last will and testament. Costs against the
private respondents.

This Decision is IMMEDIATELY EXECUTORY.

G.R. No. L-12190 August 30, 1958
TESTATE ESTATE OF FELICIDAD ESGUERRA ALTO-YAP
deceased. FAUSTO E. GAN, petitioner-appellant,
vs.
ILDEFONSO YAP, oppositor-appellee.
Benedicto C. Belran, Crispin D. Baizas and Roberto H.
Benitez for appellant.
Arturo M. Tolentino for appellee.
BENGZON, J.:
On November 20, 1951, Felicidad Esguerra Alto Yap died of
heart failure in the University of Santo Tomas Hospital, leaving
properties in Pulilan, Bulacan, and in the City of Manila.
On March 17, 1952, Fausto E. Gan initiated them proceedings
in the Manila court of first instance with a petition for the
probate of a holographic will allegedly executed by the
deceased, substantially in these words:
Nobyembre 5, 1951.
Ako, si Felicidad E. Alto-Yap, may asawa, at ganap na
pag-iisip, ay nagsasalaysay na ang aking kayamanan
sa bayan ng Pulilan, Bulacan ay aking ipinamamana sa
aking mga kamag-anakang sumusunod:
Vicente Esguerra, 5 Bahagi
Sr. .............................................
Fausto E. 2 Bahagi
Gan .........................................................
Rosario E. 2 Bahagi
Gan .........................................................
Filomena 1 Bahagi
Alto ..........................................................
Beatriz 1 Bahagi
Alto ............................................................
..
At ang aking lahat ng ibang kayamanan sa Maynila at
iba panglugar ay aking ipinamamana sa aking
asawang si Idelfonso D. Yap sa kondisyong siya'y
magpapagawa ng isang Health Center na
nagkakahalaga ng di kukulangin sa halagang
P60,000.00 sa bayan ng Pulilan, Bulacan, na nakaukit
ang aking pangalang Felicidad Esguerra-Alto. At kung
ito ay may kakulangan man ay bahala na ang aking
asawa ang magpuno upang matupad ang aking
kagustuhan.

(Lagda) Felicidad E. Alto-Yap.
Opposing the petition, her surviving husband Ildefonso Yap
asserted that the deceased had not left any will, nor executed
any testament during her lifetime.
After hearing the parties and considering their evidence, the
Hon. Ramon R. San Jose, Judge,1 refused to probate the
alleged will. A seventy-page motion for reconsideration failed.
Hence this appeal.
The will itself was not presented. Petitioner tried to establish its
contents and due execution by the statements in open court of
Felina Esguerra, Primitivo Reyes, Socorro Olarte and Rosario
Gan Jimenez, whose testimonies may be summarized as
follows:
Sometime in 1950 after her last trip abroad, Felicidad
Esguerra mentioned to her first cousin, Vicente Esguerra, her
desire to make a will. She confided however that it would be
useless if her husband discovered or knew about it. Vicente
consulted with Fausto E. Gan, nephew of Felicidad, who was
then preparing for the bar examinations. The latter replied it
could be done without any witness, provided the document
was entirely in her handwriting, signed and dated by her.
Vicente Esguerra lost no time in transmitting the information,
and on the strength of it, in the morning of November 5, 1951,
in her residence at Juan Luna Street, Manila, Felicidad wrote,
signed and dated a holographic will substantially of the tenor
above transcribed, in the presence of her niece, Felina
Esguerra (daughter of Vicente), who was invited to read it. In
the afternoon of that day, Felicidad was visited by a distant
relative, Primitivo Reyes, and she allowed him to read the will
in the presence of Felina Esguerra, who again read it.
Nine days later, he had other visitors: Socorro Olarte a cousin,
and Rosario Gan Jimenez, a niece. To these she showed the
will, again in the presence of Felina Esguerra, who read it for
the third time.
When on November 19, 1951, Felicidad was confined at the
U.S.T. Hospital for her last illness, she entrusted the said will,
which was contained in a purse, to Felina Esguerra. But a few
hours later, Ildefonso Yap, her husband, asked Felina for the
purse: and being afraid of him by reason of his well-known
violent temper, she delivered it to him. Thereafter, in the same
day, Ildefonso Yap returned the purse to Felina, only to
demand it the next day shortly before the death of Felicidad.
Again, Felina handed it to him but not before she had taken
the purse to the toilet, opened it and read the will for the last
time.2
From the oppositor's proof it appears that Felicidad Esguerra
had been suffering from heart disease for several years before
her death; that she had been treated by prominent physicians,
Dr. Agerico Sison, Dr. Agustin Liboro and others; that in May
1950 husband and wife journeyed to the United States
wherein for several weeks she was treated for the disease;
that thereafter she felt well and after visiting interesting places,
the couple returned to this country in August 1950. However,
her ailment recurred, she suffered several attacks, the most
serious of which happened in the early morning of the first
Monday of November 1951 (Nov. 5). The whole household
was surprised and alarmed, even the teachers of the
Harvardian Colleges occupying the lower floors and of by the
Yap spouses. Physician's help was hurriedly called, and Dr.
Tanjuaquio arrived at about 8:00 a.m., found the patient hardly
breathing, lying in bed, her head held high by her husband.
Injections and oxygen were administered. Following the
doctor's advice the patient stayed in bed, and did nothing the
whole day, her husband and her personal attendant, Mrs.
Bantique, constantly at her side. These two persons swore
that Mrs. Felicidad Esguerra Yap made no will, and could have
made no will on that day.
The trial judge refused to credit the petitioner's evidence for
several reasons, the most important of which were these: (a) if
according to his evidence, the decedent wanted to keep her
will a secret, so that her husband would not know it, it is
strange she executed it in the presence of Felina Esguerra,
knowing as she did that witnesses were unnecessary; (b) in
the absence of a showing that Felina was a confidant of the
decedent it is hard to believe that the latter would have
allowed the former to see and read the will several times; (c) it
is improbable that the decedent would have permitted
Primitivo Reyes, Rosario Gan Jimenez and Socorro Olarte to
read her will, when she precisely wanted its contents to remain
a secret during her lifetime; (d) it is also improbable that her
purpose being to conceal the will from her husband she would
carry it around, even to the hospital, in her purse which could
for one reason or another be opened by her husband; (e) if it is
true that the husband demanded the purse from Felina in the
U.S.T. Hospital and that the will was there, it is hard to believe
that he returned it without destroying the will, the theory of the
petitioner being precisely that the will was executed behind his
back for fear he will destroy it.
In the face of these improbabilities, the trial judge had to
accept the oppositor's evidence that Felicidad did not and
could not have executed such holographic will.
In this appeal, the major portion of appellant's brief discussed
the testimony of the oppositor and of his witnesses in a
vigorous effort to discredit them. It appears that the same
arguments, or most of them, were presented in the motion to
reconsider; but they failed to induce the court a quo to change
its mind. The oppositor's brief, on the other hand, aptly
answers the criticisms. We deem it unnecessary to go over the
same matters, because in our opinion the case should be
decided not on the weakness of the opposition but on the
strength of the evidence of the petitioner, who has the burden
of proof.
The Spanish Civil Code permitted the execution of holographic
wills along with other forms. The Code of Civil Procedure (Act
190) approved August 7, 1901, adopted only one form, thereby
repealing the other forms, including holographic wills.
The New Civil Code effective in 1950 revived holographic wills
in its arts. 810-814. "A person may execute a holographic will
which must be entirely written, dated, and signed by the hand
of the testator himself. It is subject to no other form and may
be made in or out of the Philippines, and need not be
witnessed."
This is indeed a radical departure from the form and
solemnities provided for wills under Act 190, which for fifty
years (from 1901 to 1950) required wills to be subscribed by
the testator and three credible witnesses in each and every
page; such witnesses to attest to the number of sheets used
and to the fact that the testator signed in their presence and
that they signed in the presence of the testator and of each
other.
The object of such requirements it has been said, is to close
the door against bad faith and fraud, to prevent substitution of
wills, to guarantee their truth and authencity
(Abangan vs. Abangan, 40 Phil., 476) and to avoid those who
have no right to succeed the testator would succeed him and
be benefited with the probate of same. (Mendoza vs. Pilapil,
40 Off. Gaz., 1855). However, formal imperfections may be
brushed aside when authenticity of the instrument is duly
proved. (Rodriguez vs Yap, 40 Off. Gaz. 1st Supp. No. 3 p.
194.)
Authenticity and due execution is the dominant requirements
to be fulfilled when such will is submitted to the courts for
allowance. For that purpose the testimony of one of the
subscribing witnesses would be sufficient if there is no
opposition (Sec. 5, Rule 77). If there is, the three must testify,
if available. (Cabang vs. Delfinado, 34 Phil., 291;
Tolentino vs. Francisco, 57 Phil., 742). From the testimony of
such witnesses (and of other additional witnesses) the court
may form its opinion as to the genuineness and authenticity of
the testament, and the circumstances its due execution.
Now, in the matter of holographic wills, no such guaranties of
truth and veracity are demanded, since as stated, they need
no witnesses; provided however, that they are "entirely written,
dated, and signed by the hand of the testator himself." The
law, it is reasonable to suppose, regards the document
itself as material proof of authenticity, and as its own
safeguard, since it could at any time, be demonstrated to be —
or not to be — in the hands of the testator himself. "In the
probate of a holographic will" says the New Civil Code, "it shall
be necessary that at least one witness who knows the
handwriting and signature of the testator explicitly declare that
the will and the signature are in the handwriting of the testator.
If the will is contested, at least three such witnesses shall be
required. In the absence of any such witnesses, (familiar with
decedent's handwriting) and if the court deem it necessary,
expert testimony may be resorted to."
The witnesses so presented do not need to have seen the
execution of the holographic will. They may be mistaken in
their opinion of the handwriting, or they may deliberately lie in
affirming it is in the testator's hand. However, the oppositor
may present other witnesses who also know the testator's
handwriting, or some expert witnesses, who after comparing
the will with other writings or letters of the deceased, have
come to the conclusion that such will has not been written by
the hand of the deceased. (Sec. 50, Rule 123). And the court,
in view of such contradictory testimony may use its own visual
sense, and decide in the face of the document, whether the
will submitted to it has indeed been written by the testator.
Obviously, when the will itself is not submitted, these means of
opposition, and of assessing the evidence are not available.
And then the only guaranty of authenticity3 — the testator's
handwriting — has disappeared.
Therefore, the question presents itself, may a holographic will
be probated upon the testimony of witnesses who have
allegedly seen it and who declare that it was in the handwriting
of the testator? How can the oppositor prove that such
document was not in the testator's handwriting? His witnesses
who know testator's handwriting have not examined it. His
experts can not testify, because there is no way to compare
the alleged testament with other documents admittedly, or
proven to be, in the testator's hand. The oppositor will,
therefore, be caught between the upper millstone of his lack of
knowledge of the will or the form thereof, and the nether
millstone of his inability to prove its falsity. Again the
proponent's witnesses may be honest and truthful; but they
may have been shown a faked document, and having no
interest to check the authenticity thereof have taken no pains
to examine and compare. Or they may be perjurers boldly
testifying, in the knowledge that none could convict them of
perjury, because no one could prove that they have not "been
shown" a document which they believed was in the
handwriting of the deceased. Of course, the competency of
such perjured witnesses to testify as to the handwriting could
be tested by exhibiting to them other writings sufficiently
similar to those written by the deceased; but what witness or
lawyer would not foresee such a move and prepare for it? His
knowledge of the handwriting established, the witness (or
witnesses) could simply stick to his statement: he has seen
and read a document which he believed was in the deceased's
handwriting. And the court and the oppositor would practically
be at the mercy of such witness (or witnesses) not only as to
the execution, but also as to the contents of the will. Does the
law permit such a situation?
The Rules of Court, (Rule 77) approved in 1940 allow proof
(and probate) of a lost or destroyed will by secondary —
evidence the testimony of witnesses, in lieu of the original
document. Yet such Rules could not have contemplated
holographic wills which could not then be validly made here.
(See also Sec. 46, Rule 123; Art. 830-New Civil Code.)
Could Rule 77 be extended, by analogy, to holographic wills?
Spanish commentators agree that one of the greatest
objections to the holographic will is that it may be lost or
stolen4 — an implied admission that such loss or theft renders
it useless..
This must be so, because the Civil Code requires it to be
protocoled and presented to the judge, (Art. 689) who shall
subscribe it and require its identity to be established by the
three witnesses who depose that they have no reasonable
doubt that the will was written by the testator (Art. 691). And if
the judge considers that the identity of the will has been
proven he shall order that it be filed (Art. 693). All these, imply
presentation of the will itself. Art. 692 bears the same
implication, to a greater degree. It requires that the surviving
spouse and the legitimate ascendants and descendants be
summoned so that they may make "any statement they may
desire to submit with respect to the authenticity of the will." As
it is universally admitted that the holographic will is usually
done by the testator and by himself alone, to prevent others
from knowing either its execution or its contents, the above
article 692 could not have the idea of simply permitting such
relatives to state whether they know of the will, but whether in
the face of the document itself they think the testator wrote it.
Obviously, this they can't do unless the will itself is presented
to the Court and to them.
Undoubtedly, the intention of the law is to give the near
relatives the choice of either complying with the will if they
think it authentic, or to oppose it, if they think it spurious.5 Such
purpose is frustrated when the document is not presented for
their examination. If it be argued that such choice is not
essential, because anyway the relatives may oppose, the
answer is that their opposition will be at a distinct
disadvantage, and they have the right and privilege to comply
with the will, if genuine, a right which they should not be
denied by withholding inspection thereof from them.
We find confirmation of these ideas--about exhibition of the
document itself--in the decision of the Supreme Court of Spain
of June 5, 1925, which denied protocolization or probate to a
document containing testamentary dispositions in the
handwriting of the deceased, but apparently mutilated, the
signature and some words having been torn from it. Even in
the face of allegations and testimonial evidence (which was
controverted), ascribing the mutilation to the opponents of the
will. The aforesaid tribunal declared that, in accordance with
the provision of the Civil Code (Spanish) the will itself, whole
and unmutilated, must be presented; otherwise, it shall
produce no effect.
 Considerando que sentado lo anterior, y
estableciendose en el parrafo segundo del articulo 688
del Codigo civil, que para que sea valido el testamento
olografo debera estar escrito todo el y firmado por
testador, con expression del año, mes y dia en que se
otorque, resulta evidente que para la validez y eficacia
de esos testamentos, no basta la demostracion mas o
menos cumplida de que cuando se otorgaron se
Ilenaron todos esos requisitos, sino que de la
expresada redaccion el precepto legal, y por el tiempo
en que el verbo se emplea, se desprende la necesidad
de que el documento se encuentre en dichas
condiciones en el momento de ser presentado a la
Autoridad competente, para au adveracion y
protocolizacion; y como consecuencia ineludible de
ello, forzoso es affirmar que el de autos carece de
validez y aficacia, por no estarfirmado por el testador,
cualquiera que sea la causa de la falta de firma, y sin
perjuicio de las acciones que puedan ejercitar los
perjudicados, bien para pedir indemnizacion por el
perjuicio a la persona culpable, si la hubiere, o su
castigo en via criminal si procediere, por constituir
dicha omision un defecto insubsanable . . . .
This holding aligns with the ideas on holographic wills in the
Fuero Juzgo, admittedly the basis of the Spanish Civil Code
provisions on the matter.6
PRECEDENTES LEGALES--Fuero Juzgo, libro
segundo, titulo V, ley 15--E depues que los herederos
e sus fijos ovieren esta manda, fasta ... annos
muestrenla al obispo de la tierra, o al juez fasta VI
meses y el obispo o el juez tomen otros tales tres
escritos, que fuesen fechos por su mano daquel que
fizo la manda; e por aquellos escriptos, si semjara la
letra de la manda, sea confirmada la manda. E depues
que todo esto fuere connoscido, el obispo o el juez, o
otras testimonios confirmen el escripto de la manda
otra vez, y en esta manera vala la manda. (Art. 689,
Scaevola--Codigo Civil.)
(According to the Fuero above, the will itself must be
compared with specimens of the testators handwriting.)
All of which can only mean: the courts will not distribute the
property of the deceased in accordance with his holographic
will, unless they are shown his handwriting and signature.7
Parenthetically, it may be added that even the French Civil
Law considers the loss of the holographic will to be fatal.
(Planiol y Ripert, Derecho Civil Frances, traduccion por Diaz
Cruz, 1946, Tomo V, page 555).
Taking all the above circumstances together, we reach the
conclusion that the execution and the contents of a lost or
destroyed holographic will may not be proved by the bare
testimony of witnesses who have seen and/or read such will.8
Under the provisions of Art. 838 of the New Civil Code, we are
empowered to adopt this opinion as a Rule of Court for the
allowance of such holographic wills. We hesitate, however, to
make this Rule decisive of this controversy, simultaneously
with its promulgation. Anyway, decision of the appeal may rest
on the sufficiency, rather the insufficiency, of the evidence
presented by petitioner Fausto E. Gan.
At this point, before proceeding further, it might be convenient
to explain why, unlike holographic wills, ordinary wills may be
proved by testimonial evidence when lost or destroyed. The
difference lies in the nature of the wills. In the first, the only
guarantee of authenticity is the handwriting itself; in the
second, the testimony of the subscribing or instrumental
witnesses (and of the notary, now). The loss of the holographic
will entails the loss of the only medium of proof; if the ordinary
will is lost, the subscribing witnesses are available to
authenticate.
In the case of ordinary wills, it is quite hard to convince three
witnesses (four with the notary) deliberately to lie. And then
their lies could be checked and exposed, their whereabouts
and acts on the particular day, the likelihood that they would
be called by the testator, their intimacy with the testator, etc.
And if they were intimates or trusted friends of the testator they
are not likely to end themselves to any fraudulent scheme to
distort his wishes. Last but not least, they can not receive
anything on account of the will.
Whereas in the case of holographic wills, if oral testimony
were admissible9 only one man could engineer the fraud this
way: after making a clever or passable imitation of the
handwriting and signature of the deceased, he may contrive to
let three honest and credible witnesses see and read the
forgery; and the latter, having no interest, could easily fall for it,
and in court they would in all good faith affirm its genuineness
and authenticity. The will having been lost — the forger may
have purposely destroyed it in an "accident" — the oppositors
have no way to expose the trick and the error, because the
document itself is not at hand. And considering that the
holographic will may consist of two or three pages, and only
one of them need be signed, the substitution of the unsigned
pages, which may be the most important ones, may go
undetected.
If testimonial evidence of holographic wills be permitted, one
more objectionable feature — feasibility of forgery — would be
added to the several objections to this kind of wills listed by
Castan, Sanchez Roman and Valverde and other well-known
Spanish Commentators and teachers of Civil Law.10
One more fundamental difference: in the case of a lost will, the
three subscribing witnesses would be testifying to a fact which
they saw, namely the act of the testator of subscribing the will;
whereas in the case of a lost holographic will, the witnesses
would testify as to their opinion of the handwriting which they
allegedly saw, an opinion which can not be tested in court, nor
directly contradicted by the oppositors, because the
handwriting itself is not at hand.
Turning now to the evidence presented by the petitioner, we
find ourselves sharing the trial judge's disbelief. In addition to
the dubious circumstances described in the appealed decision,
we find it hard to believe that the deceased should show her
will precisely to relatives who had received nothing from it:
Socorro Olarte and Primitivo Reyes. These could pester her
into amending her will to give them a share, or threaten to
reveal its execution to her husband Ildefonso Yap. And this
leads to another point: if she wanted so much to conceal the
will from her husband, why did she not entrust it to her
beneficiaries? Opportunity to do so was not lacking: for
instance, her husband's trip to Davao, a few days after the
alleged execution of the will.
In fine, even if oral testimony were admissible to establish and
probate a lost holographic will, we think the evidence
submitted by herein petitioner is so tainted with improbabilities
and inconsistencies that it fails to measure up to that "clear
and distinct" proof required by Rule 77, sec. 6.11
Wherefore, the rejection of the alleged will must be sustained.
Judgment affirmed, with costs against petitioner.
Paras, C. J., Padilla, Montemayor, Reyes, A., Bautista Angelo,
Concepcion, Reyes, J. B. L., Endencia and Felix, JJ.,concur.
G.R. No. L-58509 December 7, 1982
IN THE MATTER OF THE PETITION TO APPROVE THE
WILL OF RICARDO B. BONILLA deceased, MARCELA
RODELAS, petitioner-appellant,
vs.
AMPARO ARANZA, ET AL., oppositors-appellees, ATTY.
LORENZO SUMULONG, intervenor.
Luciano A. Joson for petitioner-appellant.
Cesar Paralejo for oppositor-appellee.
RELOVA, J.:
This case was certified to this Tribunal by the Court of Appeals
for final determination pursuant to Section 3, Rule 50 of the
Rules of Court.
As found by the Court of Appeals:
... On January 11, 1977, appellant filed a
petition with the Court of First Instance of Rizal
for the probate of the holographic will of Ricardo
B. Bonilla and the issuance of letters
testamentary in her favor. The petition,
docketed as Sp. Proc. No. 8432, was opposed
by the appellees Amparo Aranza Bonilla,
Wilferine Bonilla Treyes Expedita Bonilla Frias
and Ephraim Bonilla on the following grounds:
(1) Appellant was estopped from claiming that
the deceased left a will by failing to produce the
will within twenty days of the death of the
testator as required by Rule 75, section 2 of the
Rules of Court;
(2) The alleged copy of the alleged holographic
will did not contain a disposition of property
after death and was not intended to take effect
after death, and therefore it was not a will
(3) The alleged hollographic will itself,and not
an alleged copy thereof, must be produced,
otherwise it would produce no effect, as held in
Gam v. Yap, 104 Phil. 509; and
(4 ) The deceased did not leave any will,
holographic or otherwise, executed and
attested as required by law.
The appellees likewise moved for the
consolidation of the case with another case Sp.
Proc. No, 8275). Their motion was granted by
the court in an order dated April 4, 1977.
On November 13, 1978, following the
consolidation of the cases, the appellees
moved again to dismiss the petition for the
probate of the will. They argued that:
(1) The alleged holographic was not a last will
but merely an instruction as to the management
and improvement of the schools and colleges
founded by decedent Ricardo B. Bonilla; and
(2) Lost or destroyed holographic wills cannot
be proved by secondary evidence unlike
ordinary wills.
Upon opposition of the appellant, the motion to
dismiss was denied by the court in its order of
February 23, 1979.
The appellees then filed a motion for
reconsideration on the ground that the order
was contrary to law and settled
pronouncements and rulings of the Supreme
Court, to which the appellant in turn filed an
opposition. On July 23, 1979, the court set
aside its order of February 23, 1979 and
dismissed the petition for the probate of the will
of Ricardo B. Bonilla. The court said:
... It is our considered opinion that once the
original copy of the holographic will is lost, a
copy thereof cannot stand in lieu of the original.
In the case of Gam vs. Yap, 104 Phil. 509, 522,
the Supreme Court held that 'in the matter of
holographic wills the law, it is reasonable to
suppose, regards the document itself as the
material proof of authenticity of said wills.
MOREOVER, this Court notes that the alleged
holographic will was executed on January 25,
1962 while Ricardo B. Bonilla died on May 13,
1976. In view of the lapse of more than 14
years from the time of the execution of the will
to the death of the decedent, the fact that the
original of the will could not be located shows to
our mind that the decedent had discarded
before his death his allegedly missing
Holographic Will.
Appellant's motion for reconsideration was denied. Hence, an
appeal to the Court of Appeals in which it is contended that the
dismissal of appellant's petition is contrary to law and well-
settled jurisprudence.
On July 7, 1980, appellees moved to forward the case to this
Court on the ground that the appeal does not involve question
of fact and alleged that the trial court committed the following
assigned errors:
I. THE LOWER COURT ERRED IN HOLDING
THAT A LOST HOLOGRAPHIC WILL MAY NOT
BE PROVED BY A COPY THEREOF;
II. THE LOWER COURT ERRED IN HOLDING
THAT THE DECEDENT HAS DISCARDED
BEFORE HIS DEATH THE MISSING
HOLOGRAPHIC WILL;
III. THE LOWER COURT ERRED IN
DISMISSING APPELLANT'S WILL.
The only question here is whether a holographic will which
was lost or cannot be found can be proved by means of a
photostatic copy. Pursuant to Article 811 of the Civil Code,
probate of holographic wills is the allowance of the will by the
court after its due execution has been proved. The probate
may be uncontested or not. If uncontested, at least one
Identifying witness is required and, if no witness is available,
experts may be resorted to. If contested, at least three
Identifying witnesses are required. However, if the holographic
will has been lost or destroyed and no other copy is available,
the will can not be probated because the best and only
evidence is the handwriting of the testator in said will. It is
necessary that there be a comparison between sample
handwritten statements of the testator and the handwritten will.
But, a photostatic copy or xerox copy of the holographic will
may be allowed because comparison can be made with the
standard writings of the testator. In the case of Gam vs. Yap,
104 PHIL. 509, the Court ruled that "the execution and the
contents of a lost or destroyed holographic will may not be
proved by the bare testimony of witnesses who have seen
and/or read such will. The will itself must be presented;
otherwise, it shall produce no effect. The law regards the
document itself as material proof of authenticity." But, in
Footnote 8 of said decision, it says that "Perhaps it may be
proved by a photographic or photostatic copy. Even a
mimeographed or carbon copy; or by other similar means, if
any, whereby the authenticity of the handwriting of the
deceased may be exhibited and tested before the probate
court," Evidently, the photostatic or xerox copy of the lost or
destroyed holographic will may be admitted because then the
authenticity of the handwriting of the deceased can be
determined by the probate court.

WHEREFORE, the order of the lower court dated October 3,

1979, denying appellant's motion for reconsideration dated
August 9, 1979, of the Order dated July 23, 1979, dismissing
her petition to approve the will of the late Ricardo B. Bonilla, is
hereby SET ASIDE.

SO ORDERED.

Teehankee, Actg. C.J., Melencio-Herrera, Plana, Vasquez and

Gutierrez, Jr., JJ., concur.
G.R. No. L-26317 January 29, 1927
Estate of Miguel Mamuyac, deceased.
FRANCISCO GAGO, petitioner-appellant,
vs.
CORNELIO MAMUYAC, AMBROSIO LARIOSA,
FELICIANA BAUZON, and CATALINA
MAMUYAC, opponents-appellees.
Nicanor Tavora for appellant.
Jose Rivera for appellees.
JOHNSON, J.:
The purpose of this action was to obtain the probation of a last
will and testament of Miguel Mamuyac, who died on the 2d
day of January, 1922, in the municipality of Agoo of the
Province of La Union. It appears from the record that on or
about the 27th day of July, 1918, the said Miguel Mamuyac
executed a last will and testament (Exhibit A). In the month of
January, 1922, the said Francisco Gago presented a petition in
the Court of First Instance of the Province of La Union for the
probation of that will. The probation of the same was opposed
by Cornelio Mamuyac, Ambrosio Lariosa, Feliciana Bauzon,
and Catalina Mamuyac (civil cause No. 1144, Province of La
Union). After hearing all of the parties the petition for the
probation of said will was denied by the Honorable C. M.
Villareal on the 2d day of November, 1923, upon the ground
that the deceased had on the 16th day of April, 1919, executed
a new will and testament.
On the 21st day of February, 1925, the present action was
commenced. Its purpose was to secure the probation of the
said will of the 16th day of April, 1919 (Exhibit 1). To said
petition Cornelio Mamuyac, Ambrosio Lariosa, Feliciana
Bauzon, and Catalina Mamuyac presented their oppositions,
alleging (a) that the said will is a copy of the second will and
testament executed by the said Miguel Mamuyac; (b) that the
same had been cancelled and revoked during the lifetime of
Miguel Mamuyac and (c) that the said will was not the last will
and testament of the deceased Miguel Mamuyac.
Upon the issue thus presented, the Honorable Anastacio R.
Teodoro, judge, after hearing the respective parties, denied the
probation of said will of April 16, 1919, upon the ground that
the same had been cancelled and revoked in the year 1920.
Judge Teodoro, after examining the evidence adduced, found
that the following facts had been satisfactorily proved:
That Exhibit A is a mere carbon of its original which
remained in the possession of the deceased testator
Miguel Mamuyac, who revoked it before his death as
per testimony of witness Jose Fenoy, who typed the
will of the testator on April 16, 1919, and Carlos Bejar,
who saw on December 30, 1920, the original Exhibit A
(will of 1919) actually cancelled by the testator Miguel
Mamuyac, who assured Carlos Bejar that inasmuch as
he had sold him a house and the land where the house
was built, he had to cancel it (the will of 1919),
executing thereby a new testament. Narcisa Gago in a
way corroborates the testimony of Jose Fenoy,
admitting that the will executed by the deceased
(Miguel Mamuyac) in 1919 was found in the
possession of father Miguel Mamuyac. The opponents
have successfully established the fact that father
Miguel Mamuyac had executed in 1920 another will.
The same Narcisa Gago, the sister of the deceased,
who was living in the house with him, when cross-
examined by attorney for the opponents, testified that
the original Exhibit A could not be found. For the
 foregoing consideration and for the reason that the
original of Exhibit A has been cancelled by the
deceased father Miguel Mamuyac, the court disallows
the probate of Exhibit A for the applicant." From that
order the petitioner appealed.
The appellant contends that the lower court committed an
error in not finding from the evidence that the will in question
had been executed with all the formalities required by the law;
that the same had been revoked and cancelled in 1920 before
his death; that the said will was a mere carbon copy and that
the oppositors were not estopped from alleging that fact.
With reference to the said cancellation, it may be stated that
there is positive proof, not denied, which was accepted by the
lower court, that will in question had been cancelled in 1920.
The law does not require any evidence of the revocation or
cancellation of a will to be preserved. It therefore becomes
difficult at times to prove the revocation or cancellation of wills.
The fact that such cancellation or revocation has taken place
must either remain unproved of be inferred from evidence
showing that after due search the original will cannot be found.
Where a will which cannot be found is shown to have been in
the possession of the testator, when last seen, the
presumption is, in the absence of other competent evidence,
that the same was cancelled or destroyed. The same
presumption arises where it is shown that the testator had
ready access to the will and it cannot be found after his death.
It will not be presumed that such will has been destroyed by
any other person without the knowledge or authority of the
testator. The force of the presumption of cancellation or
revocation by the testator, while varying greatly, being weak or
strong according to the circumstances, is never conclusive, but
may be overcome by proof that the will was not destroyed by
the testator with intent to revoke it.
In view of the fat that the original will of 1919 could not be
found after the death of the testator Miguel Mamuyac and in
view of the positive proof that the same had been cancelled,
we are forced to the conclusion that the conclusions of the
lower court are in accordance with the weight of the evidence.
In a proceeding to probate a will the burden of proofs is upon
the proponent clearly to establish not only its execution but its
existence. Having proved its execution by the proponents, the
burden is on the contestant to show that it has been revoked.
In a great majority of instances in which wills are destroyed for
the purpose of revoking them there is no witness to the act of
cancellation or destruction and all evidence of its cancellation
perishes with the testator. Copies of wills should be admitted
by the courts with great caution. When it is proven, however,
by proper testimony that a will was executed in duplicate and
each copy was executed with all the formalities and
requirements of the law, then the duplicate may be admitted in
evidence when it is made to appear that the original has been
lost and was not cancelled or destroyed by the testator.
(Borromeo vs. Casquijo, G.R. No. L-26063.)1
After a careful examination of the entire record, we are fully
persuaded that the will presented for probate had been
cancelled by the testator in 1920. Therefore the judgment
appealed from is hereby affirmed. And without any finding as
to costs, it is so ordered.
Street, Malcolm, Villamor, Ostrand, Romualdez and Villa-Real,
JJ., concur.
G.R. No. L-18788 January 31, 1964
ROMULO LOPEZ, ET AL., plaintiffs-appellants,
vs.
LUIS GONZAGA, ET AL., defendants,
LUIS GONZAGA and ASUNCION GONZAGA, defendants-
appellants.
Lakandola G. Lopez and Romulo Lopez for plaintiffs-
appellants.
Amalia K. del Rosario for defendants-appellants.
REYES, J.B.L., J.:
Joint and direct appeal by both parties-plaintiffs an parties-
defendants from the decision of the Court of First Instance of
Negros Occidental (in its Civil Case No. 5033 to this Supreme
Court, because the properties involved a valued at more than
P200,000.00. The appealed decision dismissed the petition of
plaintiffs (appellants) for partition and cancellation of titles of
registered lands and ordered them to pay defendants
(appellees) P1,000.00 by way of attorney's fees, but refused to
award moral damages in favor of the defendants.
The original petition was filed with the court a quo on 6
October 1958, alleging, among other things, that on Soledad
Gonzaga Vda. de Ferrer died intestate on 11 April 1935
without any issue and leaving real and personal properties
worth P400,000.00; that she was survived by the plaintiffs,
who are her nearest of kin, being her brother sisters, nephews,
and nieces; that during the lifetime the deceased, she
expressed the wish that as long as her brother, Luis Gonzaga,
the principal defendant, was engaged in his coconut oil
experimentation he could use products and rentals of her
properties in furtherance his experiments; that the said
scientific venture by said defendant was discontinued when he
became totally blind in October, 1955 in view of which the
plaintiffs now ask a partition of the estate and the cancellation
of titles of lands allegedly fraudulently transferred by, and in
the name of, the defendant.
The defendant filed a motion to dismiss on the grounds of res
judicata and non-inclusion of indispensable parties. The
plainttiffs amended their petition to include the omitted parties.
After hearing on the motion to dismiss, the court denied the
said motion. Thereupon, the defendant filed their answer,
pleading a denial as to intestacy of deceased, and alleging,
among others, that a will of Soledad Gonzaga Vda. de Ferrer
instituted Luis Gonzaga as the sole heir estate, and that the
will was duly allowed and probated.
After trial, the court a quo rendered judgment, a both parties
appealed, as aforesaid.
The genuineness of the following documents, and the
jurisdiction of the court with respect to them, are not disputed:
REPUBLIC OF THE PHILIPPINES
COURT OF FIRST INSTANCE OF ILOILO
11th Judicial District
December 11, 1958.
TO WHOM IT MAY CONCERN:
This is to certify that according to the records of
this office, there is no Expediente No. 2163
entitled Estate of Doña Soledad Gonzaga Vda.
de Ferrer, as all prewar records were burned, lost
or destroyed during the World War II.
(Sgd.) CIPRIANO CABALUNA
Clerk of Court.
UNITED STATES OF AMERICA
COMMONWEALTH OF THE PHILIPPINES
COURT OF FIRST INSTANCE OF
OCCIDENTAL NEGROS
18th Judicial District
G.L.R.O. CAD. RECORD NO. 214
LOTS NOS. 414 and 424
CAD. SURVEY OF MANAPLA
x---------------------x
PETITION
Luis Gonzaga y Jesena through the undersigned
attorney, to the Honorable Court respectfully
follows:
That Soledad Gonzaga Vda. de Ferrer is the
registered owner of Lots Nos. 414 and 424,
Cadastral Survey of Manapla, which parcel of
land are described in Transfer Certificate of Title
Nos. 11460 and 13855, respectively.
That Soledad Gonzaga Vda. de Ferrer died on
April 11, 1935, and she left all her properties in
favor of Luis Gonzaga y Jesena in her will, which
will was probated on May 17, 1935, in the Court
of First Instance of Iloilo (Exp. No. 2163, Iloilo).
That the project of partition dated February 3,
1936, (Exp. No. 2163, Iloilo) a copy of which is
hereto attached, in which the petitioner Luis
Gonzaga y Jesena is the only heir, was approved
by the Honorable Court of Iloilo in its order dated
February 8, 1936, a copy of the said order is
hereto attached. 1äwphï1.ñët
WHEREFORE, in view of the foregoing, the
petitioner respectfully prays the Honorable Court
to order the cancellation of Transfer Certificate of
Title Nos. 11460 and 13855, Office of the Register
of Deeds of Occidental Negros, wherein Lots
Nos. 414 and 424 are described, and in lieu
thereof to issue Transfer Certificate of Titles for
Lots 414 and 424, Cadastral Survey of Manapla,
Occidental Negros, in favor of Luis Gonzaga y
Jesena, single of legal age, Filipino and a
resident of Manila, P. I.
Iloilo, Iloilo, for Bacolod, Occ. Neg., P.I. March 11,
1936.
(Sgd.) FRANCISCO S. HORTILLAS
Attorney for the petitioner
2 General Luna, Iloilo Iloilo
I, Francisco S. Hortillas, of legal age, after having
been duly sworn, depose and say: That I am the
attorney for the petitioner in the above case, and
that all the allegations contained in the foregoing
petition are true to the best of my information tion
and belief.
 (Sgd.) FRANCISCO S. HORTILLAS
(Sgd.) FRANCISCO HORTILLAS
UNITED STATES OF AMERICA
Subscribed and Sworn to before me this 11th day COMMONWEALTH OF THE PHILIPPINES
of March, 1936. He exhibited to me his cedula COURT OF FIRST INSTANCE OF ILOILO
No. E-1250120, issued at Jaro, Iloilo, P.I., on 17th Judicial District
January 16, 1936.
TESTATE PROCEEDINGS OF
(Sgd.) ILLEGIBLE THE DECEASED SOLEDAD
NOTARY PUBLIC GONZAGA VDA. DE FERRER,
Until Dec. 31, 1937 LUIS GONZAGA Y JESENA,
Petitioner.
Doc. No. 49 x-------------------------x
Page No. 60
Book No. 1 CIVIL CASE NO. 2163
Series of 1936
PETITION FOR ADJUDICATION
The Register of Deeds
Bacolod City, Occ. Negros The undersigned administrator to the
Honorable Court respectfully states:
Sir:
That the undersigned administrator, Luis
Please take notice that on Saturday, March 21, Gonzaga y Jesena is the only heir
1936, at 8:00 a.m. or soon thereafter as the mentioned in the probated will of the late
undersigned may be heard, he will submit the Sra. Soledad G. Vda. de Ferrer.
foregoing petition to this Honorable Court for
approval.
TITLE NO. PROVINCE VALUE
(Sgd.) FRANCISCO S. HORTILLAS Manapla Trans. Cert. 8433 Occ. Neg. P25,230.00

I hereby certify that I have sent a copy of the Manapla Trans. Cert. 11460 Occ. Neg.
foregoing petition to the Register of Deeds of
Occidental Negros evidenced by the registry Manapla Trans. Cert. 13855 Occ. Neg.
receipt hereto attached.
 Trans. Cert. 13051 Iloilo
The Clerk of Court
Trans. Cert. 13054 Iloilo Iloilo, Iloilo
Sir:
ACCOUNTS COLLECTIBLE AND CASH
Roman Please include the foregoing petition for
Sopena ..................................................... adjudication in the calendar for Saturday,
...... February 8, 1936.
Juan
Sornito ...................................................... (Sgd.) FRANCISCO S. HORTILLAS
.........
A TRUE COPY:
Quintin Mejorada and
others .................................. (Sgd.) TELESFORO GEDANG
Maria Ledesma and Deputy Clerk of Court
others ...................................... 17th Judicial District
Iloilo, P.I.
and
Cash ......................................................... ESTADOS UNIDOS DE AMERICA
............ COMMONWEALTH DE FILIPINAS
JUZGADO DE PRIMERA INSTANCIA DE ILOILO
That there is a pending civil complaint against the 17.0 DISTRITO JUDICIAL
administrator by Consolacion G. de Lopez, et al.,
Civil Case No. 10321, Court, of First Instance of TESTAMENTARIA GONZAGA
Iloilo, demanding payment of the sum of P833.40.
The undersigned administrator is willing to file a Expediente No. 2163
cash bond for the sum object of the complaint in
case this expediente will be closed before the trial AUTO
of the Civil Case No. 10321, Iloilo.
Previa prestacion por Luis Gonzaga y Jesena de
Iloilo, P.I., February 3,1936. una fianza por valor de P1,000.00 que tendra por
objecto responder al resultado de la causa civil
(Sgd.) FRANCISCO S. HORTILLAS No. 10321 de este Juzgado, titulada
Attorney for the Administrator "Consolacion G. de Lopez, et al., demandantes,
2 General Luna, Iloilo. contra Luis Gonzaga", se aprueba la cuenta final
de fecha enero 29, 1936, asi como el proyecto de y 13855, sobre los lotes Nos. 414 y 424,
particion de fecha 3 del actual. Queda cancelada respectivamente, del Catastro de Manapla,
la fianza prestada por el administrador en este Negros Occidental, y la expedicion de otros a
expediente, y archivado el mismo por terminado. favor de Luis Gonzaga y Jesena, filipino, mayor
de edad, soltero y vecino de la ciuda de Manila,
Asi se ordena. I.F., haciendos constar en los certificados que se
han de expedir todos los gravamenes que existen
Iloilo, Iloilo, febrero 8, 1936. el los certificados de transferencia Nos. 11460 y
13855.
M. BUYSON LAMPA
Juez Asi se ordena.
Bacolod, Occ. Negros, 21 de marzo, 1936.
A TRUE COPY:
(FDO.) BRAULIO BAJASA
(Sgd.) TELESFORO GEDANG Juez
Deputy Clerk of Court
17th Judicial District ESTADOS UNIDOS DE AMERICA
ExpedienteIloilo,Cadastral
P. I. No. MANCOMUNIDAD DE FILIPINAS
26 JUZGADO DE PRIMERA INSTANCIA
G.L.R.O. Cad Rec. DE NEGROS OCCIDENTAL
EL GOBIERNO
ESTADOS DEUNIDOS
LAS DE
No.AMERICA
214 18.o Distrito Judicial
ISLAS MANCOMUNIDAD DE FILIPINAS
Lotes Nos. 414 y424
FILIPINAS
JUZGADO DE PRIMERA INSTANCIA
CATASTRO DEDE
Solicitante.NEGROS OCCIDENTAL EL GOBIERNO DE LAS Exp. de Reg. No. 72
MANAPLA
x - - - - - - - - - -18.o
- - - -Distrito
- - - - Judicial ISLAS FILIPINAS, G.L.R.O. Rec. No.
--x Solicitante, 10822
LUIS GONZAGA Y Lote No. 313
AUTO JESENA, MANAPLA
Mocionante.
Vista la peticion del solicitante Sr. Luiz Gonzaga y x----------------x
Jesena, de fecha 11 de marzo de 1936, el
Juzgado, hallando de misma bien fundada; AUTO

Por el presente, ordena la cancelacion de los Vista y considerada la motion del solicitante Luis
certificados de transferencia de titulo Nos. 11460 Gonzaga y Jesena, de Fecha 11 de marzo de
1936, el Juzgado, hallando la misma bien
fundada;
Por el presents, ordena la cancelacion del
certificado de transferencia de titulo No. 8422
sobre el Lote No. 313 del catastro de Manapla,
Negros Occidental, y la expedicion de otro a
favor de Luis Gonzaga y Jesena, filipino, mayor
de edad; soltero y vecino de la ciudad de Manila.
I.F., haciendose constar en al certificado que se
ha de expedir todos los gravamente que existen
en al certificado de transferencia cancelado, se
tuviere alguno.
Asi se ordena.
Bacolod, Occidental Negros, 21 de Marzo, 1936.
(Sgd.) BRAULIO BEJASA
Juez
BB/spm.
Received the foregoing document at 9:00 A.M.
on May 7, 1936,and registered under Act 496 as
follows:
Day Book, Vol. 6, Entry No. 49684
Inscribed on pages 101 of Book Vol. 87 of
Transfer Certificate of Title as Certificate of
21151.
Bacolod, Occ. Negros, May 7, 1936
(Sgd.) MARIANO COREOVA
Register of Deeds
ESTADOS UNIDOS DE AMERICA
MANCOMUNIDAD DE FILIPINAS
JUZGADO DE PRIMERA INSTANCIA DE ILOILO
17.o Distrito Judicial
G.L.R.O. RECORD NO. 9959
LOTES NOS. 1129-B y 1129-C
SITUADO EN EL MUNICIPIO DE
JARO
x----------------x
AUTO
Vista la peticion de Luis Gonzaga y Jesena
cancelacion de los Certificados de Transferencia
de titulo numeros 10051 y 13054 por las razones
expuestas en la misma, y encontrando el
Juzgado la misma bien fundada, por la presente
ordena el Registrado de Titulos de la Provincial
del Iloilo cancela los Certificados de
Transferencia de Titulos numeros 10051 y 13054
y expiden otros en su lugar a nombre de Luis
Gonzaga y Jesen soltero, mayor de edad, filipino
y vecino de Manila, P.I.
Asi se ordena.
Iloilo, Iloilo, Marzo 25, 1936
M. BUYSON LAMP
Juez
As a witness, the defendant's counsel, Atty. Amelia del
Rosario, testified that the aforequoted records of the probate
court of Iloilo were discovered by her among the records of the
cadastral court in Negros Occidental.
Due to the destruction of the court and property record of Iloilo
as a result of the last war, as attested by the Clerk of Court, no
will or probate order was produce and neither were attested
copies registered with the Office of the Register of Deeds of
Negros Occidental leave little room for doubt that Doña
Soledad Gonzaga died leaving a will instituting her nephew the
appellee Luis Gonzaga y Jesena, as her sole testamentary
heir, in default forced heirs; that said will was duly probated in
1935 or 1936 by the Court of First Instance of Iloilo in its
Special Proceedings No. 2163; that the net residue of the
estate was adjudicated by the court of said appellee, subject to
a claim of Consolacion G. de Lopez for P1,000.00 (Exh. 2);
and that, thereafter, upon sworn petition of appellee, through
his counsel, Francisco S. Hortillas, the Court First Instance of
Iloilo (Exhibit 22) and Occidental Negros (Exhibit 3) ordered
the respective Provincial Registers of Deeds to cancel the
Certificates of Title standing then in the name of the deceased
Soledad Gonzaga and lieu thereof to issue new certificates in
the name of apellee Luis Gonzaga y Jesena, as admittedly
was done. In the course of the years prior to the institution of
this case in 1958, appellee held the properties and dealt with
them as sole owner, leasing, encumbering, and selling some
them.
We can not fail to be impressed by the statement of attorney
Francisco Hortillas, averring under with in clear and
unmistakable terms, not only once, but twice before the Courts
of First Instance of Iloilo and Negros (Exhibits 1 and 9), that
the deceased Doña Soledad, in her probated will, made Luis
Gonzaga y Jesena the sole heir to her properties. These
manifestations are nigh conclusive, for the reason that
attorney Hortillas was himself married to Monserrat Gonzaga,
a sister of Soledad, who would have been one of the latter's
heirs intestate had it not been for the testament in favor of the
appellee. It taxes credulity beyond all reason to imply (as
appellants do) that attorney Hortillas, violating family ties and
affection, conspired with appellee to deprive his own wife and
children (now some of the present appellants) of the lawful
share by intestacy in the properties left by Doña Soledad if it
were untrue that the latter had duly and properly bequeathed
all her estate to appellee Luis Gonzaga. The authenticity of the
sworn petitions of the late attorney Hortillas (Exhibits a and 1)
are not impugned, and they were actually acted upon and
granted by the two courts of first instance to which he
addressed his petitions.
Coupled with his undoubted possession as owner and with his
own dominical acts exercised over the former properties of
Doña Soledad Gonzaga for twenty-two years (1936-1958), the
exhibits aforementioned constitute practically conclusive proof
of the truth of appellee's defenses, as found by the court
below, despite the destruction of the original will and decree of
probate.
Plaintiffs-appellants, however, assail the trial court is
admission of the said court records on the ground that
defendant-appellee failed to lay proper basis, or predicate, for
their admission. Granting that the original will was destroyed
with the court records in the last war, it is averred that appellee
was duty-bound to produce the copy that, according to
appellee's deposition, was in the custody of Encarnacion
Gonzaga, as well as that left with attorney Hortillas. The
argument is misleading. There is no proof that copies of the
will ever existed other than the one burned while in appellee's
possession (Dep. p. 23). Page 24 of the appellee's deposition
is to the effect that —
My sister Encarnacion had the custody of the will because she
was the one who was at the beside of my sister (referring to
the testatrix Doña Soledad);
but by "the will" was obviously meant the one signed by the
testatrix and the witnesses, not a copy.
Similarly, the witness was asked,
When you filed this petition through your lawyer for the probate
of the will, am I correct that you also presented a copy of the
will?;
to which question the witness answered,
The original was the one submitted.
From this answer, it certainly can not be inferred that Attorney
Hortillas kept a copy of the original submitted to the court.
Neither do we see that appellee was bound to call, or, account,
for the witnesses to the testament. He was not trying to show
that the will complied with the statutory requirements, but that
the will had been admitted to probate and of course, the
probate decree conclusively established the due execution.
Appellants contend that if it were true that the will constituted
Luis Gonzaga as sole heir, he had no need to ask the court for
an order of adjudication. There is no merit to this contention.
The order of adjudication is the judicial recognition that in
appointing Luis as her only heir the testatrix did not contravene
the law, and that the heir was in no way disqualified to inherit;
just as a final order admitting a will to probate concludes all
and sundry from thereafter contending that statutory formal
requirements have not been observed in executing the
testament. Instead of contradicting the testamentary institution
of heir, the order of adjudication confirms it in this case. It may
well be noted, in passing, that the order of February 8, 1936
(Exhibit 1 or B) speaks of approval of a "project of partition",
while the petition of January 29, 1936 referred to therein spoke
of an order of adjudication to a single heir. Since the order
made evident reference to the petition of January 29, we agree
with the court below that the difference in terminology was an
inadvertent mistake. Anyway, appellants do not claim under
the will or the partition; their theory is that Doña Soledad
Gonzaga died intestate.
The failure of the defendant, Luis Gonzaga, to file with the
Register of Deeds a certified copy of his letters of
administration and the will, as provided in Section 90 of Act
496, and to record the attested copies of the will and of the
allowance thereof by the court under Section 624 of Act 190,
does not negate the validity of the judgment or decree of
probate nor the rights of the devisee under the will. Section 90
of Act 496 refers to the dealings with registered lands by an
executor or administrator; and while Luis Gonzaga was an
administrator, this is beside the point, because his dealings
with the lands, if any, during his tenure as an administrator are
not here in question. That the defendant sought judicial orders
to effect the transfers to his name of the certificates of title
after the will was probated, and succeeded in having them so
transferred, are not "dealings" with the property as
administrator under section 90 of the Registration Act. The
defendant sought and obtained the change in title in his own
behalf and capacity. Although the step taken is not exactly
what Section 624 of Act 190 directs, the same purpose was
achieved — that of notice to all strangers of the cause and
nature of the transfers; and it does not appear that anyone
was prejudiced by the defect in registration complained of. At
any rate, the recording of the judicial orders sufficed as notice
to interested parties, and was substantial compliance with the
required recording of the will itself. No one faced by the
recorded documents could ignore the reference therein to the
probated testament; and the rule is that knowledge of what
might have been revealed by proper inquiry is imputable to the
inquirer (cf. Emas vs. De Zuzuarregui, 53 Phil. 197, 204).
As to the fact that Luis Gonzaga paid the inheritance taxes,
since by law, no delivery of properties can be made
importance. It is usual for an Administrator to pay these taxes,
since by law, no delivery of properties can be made to the
heirs until and unless the inheritance taxes are paid [Internal
Revenue Code, section 95 (c)].
The contention that defendant-appellee, having been
appointed Administrator, must be deemed a trustee up to the
present is infantile. In the first place, no administration could
continue to exist after the order of February 8, 1936 had
approved the final account, adjudicate the property to the only
heir, cancelled the bond of the administrator, and ordered the
case "archivado el mismo por terminado". No proof exists that
the proceedings were reopened. Secondly, the transfer of the
certificates title to Luis Gonzaga's own name in 1936 would
constitute an open and clear repudiation of any trust, and the
lapse of more than twenty years' open and adverse
possession as owner would certainly suffice to vest title by
prescription in the appellee, since appellants, who knew of the
death of Doña Soledad in 1935, never made any move to
require Luis to reconvey the property, or any part thereof. The
explanation that Doña Soledad Gonzaga had express the wish
that all the income should go to Luis while conducted
experimental studies on coconut products wholly unconvincing
as an excuse for the laches; his right to the income could not
have blocked a partition of capital assets among appellants, if
they had been at entitled to them.
That some of the plaintiffs were denied their day in court is
incredible, since all the plaintiffs were represented by counsel
Vicente Delfin, who claimed, and is presumed, to have been
authorized to appear in their behalf, and did appear for them
from the inception of the case after the lower court's decision
was rendered. The authority of said counsel was never
questioned until the verse decision was rendered by the court
below; and complainant's failure to appear by themselves, or
by counsel, prior to the judgment is mute but eloquent proof
that their allegation that Delfin was not their attorney but a last
minute attempt to escape the adverse effect the appealed
decision, a maneuver that deserves no consideration.
Coming to the defendants' appeal: It is grounded the
disallowance of attorney's fees, expense, and moral damages.
The lower court granted only P1,000.00 for attorney's fees, but
the defendants urge that the amount should be P41,000.00,
based on an agreement of P1,000.00 Plus 10% of the value of
the properties if the case is decided in their favor. The other
expenses refer to transportation, board and lodging,
stenographic notes, photostatic copies of exhibits, securing
documents, and taking of deposition in the sum of P1,205.00.
Moral damages asked is P100,000.00.
The award of attorney's fees against the adverse party is
essentially discretionary with the trial court (Francisco vs.
GSIS, L-18287, 30 March 1963), and, in the absence of an
abuse of discretion, the same should not be disturbed. The
other expenses, unless recoverable as judicial costs, cannot
be allowed because the complaint, although unmeritorious, is
not clearly unfounded; moral damages, likewise, are not
allowable because the suit is not a malicious prosecution
under No. 8 of Article 2219 of the Civil Code. The issue is one
primarily addressed to the discretion of the court below, which
we are not inclined to disturb.
FOR THE FOREGOING REASONS, the appealed decision is
hereby affirmed, with costs against the plaintiffs-appellants.
Bengzon, C.J., Padilla, Bautista Angelo, Labrador,
Concepcion, Barrera, Paredes, Dizon, Regala and Makalintal,
JJ., concur.
G.R. No. 110427 February 24, 1997
The Incompetent, CARMEN CAÑIZA, represented by her
legal guardian, AMPARO EVANGELISTA, petitioner,
vs.
COURT OF APPEALS (SPECIAL FIRST DIVISION), PEDRO
ESTRADA and his wife, LEONORA ESTRADA, respondents.
NARVASA, C.J.:
On November 20, 1989, being then ninety-four (94) years of
age, Carmen Cañiza, a spinster, a retired pharmacist, and
former professor of the College of Chemistry and Pharmacy of
the University of the Philippines, was declared incompetent by
judgment1 of the Regional Trial Court of Quezon City, Branch
107,2 in a guardianship proceeding instituted by her niece,
Amparo A. Evangelista.3 She was so adjudged because of her
advanced age and physical infirmities which included cataracts
in both eyes and senile dementia. Amparo A. Evangelista was
appointed legal guardian of her person and estate.
Cañiza was the owner of a house and lot at No. 61 Tobias St.,
Quezon City. On September 17, 1990, her guardian Amparo
Evangelista commenced a suit in the Metropolitan Trial Court
(MetroTC) of Quezon City (Branch 35) to eject the spouses
Pedro and Leonora Estrada from said premises.4 The
complaint was later amended to identify the incompetent
Cañiza as plaintiff, suing through her legal guardian, Amparo
Evangelista.
The amended Complaint5 pertinently alleged that plaintiff
Cañiza was the absolute owner of the property in question,
covered by TCT No. 27147; that out of kindness, she had
allowed the Estrada Spouses, their children, grandchildren and
sons-in-law to temporarily reside in her house, rent-free; that
Cañiza already had urgent need of the house on account of
her advanced age and failing health, "so funds could be raised
to meet her expenses for support, maintenance and medical
treatment;" that through her guardian, Cañiza had asked the
Estradas verbally and in writing to vacate the house but they
had refused to do so; and that "by the defendants' act of
unlawfully depriving plaintiff of the possession of the house in
question, they . . (were) enriching themselves at the expense
of the incompetent, because, while they . . (were) saving
money by not paying any rent for the house, the
incompetent . . (was) losing much money as her house could
not be rented by others." Also alleged was that the complaint
was "filed within one (1) year from the date of of first letter of
demand dated February 3, 1990."
In their Answer with Counterclaim, the defendants declared
that they had been living in Cañiza's house since the 1960's;
that in consideration of their faithful service they had been
considered by Cañiza as her own family, and the latter had in
fact executed a holographic will on September 4, 1988 by
which she "bequeathed" to the Estradas the house and lot in
question.
Judgment was rendered by the MetroTC on April 13, 1992 in
Cañiza's favor,6 the Estradas being ordered to vacate the
premises and pay Cañiza P5,000.00 by way of attorney's fees.
But on appeal,8 the decision was reversed by the Quezon City
Regional Trial Court, Branch 96.9 By judgment rendered on
October 21, 1992, 10 the RTC held that the "action by which
the issue of defendants' possession should be resolved
is accion publiciana, the obtaining factual and legal situation . .
demanding adjudication by such plenary action for recovery of
possession cognizable in the first instance by the Regional
Trial Court."
Cañiza sought to have the Court of Appeals reverse the
decision of October 21, 1992, but failed in that attempt. In a
decision 11 promulgated on June 2, 1993, the Appellate
Court 12 affirmed the RTC's judgment in toto. It ruled that (a)
the proper remedy for Cañiza was indeed an accion
publiciana in the RTC, not an accion interdictal in the MetroTC,
since the "defendants have not been in the subject premises
as mere tenants or occupants by tolerance, they have been
there as a sort of adopted family of Carmen Cañiza," as
evidenced by what purports to be the holographic will of the
plaintiff; and (b) while "said will, unless and until it has passed
probate by the proper court, could not be the basis of
defendants' claim to the property, . . it is indicative of intent and
desire on the part of Carmen Cañiza that defendants are to
remain and are to continue in their occupancy and possession,
so much so that Cañiza's supervening incompetency can not
be said to have vested in her guardian the right or authority to
drive the defendants out." 13
Through her guardian, Cañiza came to this Court praying for
reversal of the Appellate Court's judgment. She contends in
the main that the latter erred in (a) holding that she should
have pursued an accion publiciana, and not an accion
interdictal; and in (b) giving much weight to "a xerox copy of an
alleged holographic will, which is irrelevant to this case." 14
In the responsive pleading filed by them on this Court's
requirement, 15 the Estradas insist that the case against them
was really not one of unlawful detainer; they argue that since
possession of the house had not been obtained by them by
any "contract, express or implied," as contemplated by Section
1, Rule 70 of the Rules of Court, their occupancy of the
premises could not be deemed one "terminable upon mere
demand (and hence never became unlawful) within the context
of the law." Neither could the suit against them be deemed one
of forcible entry, they add, because they had been occupying
the property with the prior consent of the "real owner," Carmen
Cañiza, which "occupancy can even ripen into full ownership
once the holographic will of petitioner Carmen Cañiza is
admitted to probate." They conclude, on those postulates, that
it is beyond the power of Cañiza's legal guardian to oust them
from the disputed premises.
Carmen Cañiza died on March 19, 1994, 16 and her heirs —
the aforementioned guardian, Amparo Evangelista, and
Ramon C. Nevado, her niece and nephew, respectively —
were by this Court's leave, substituted for her. 17
Three issues have to be resolved: (a) whether or not an
ejectment action is the appropriate judicial remedy for recovery
of possession of the property in dispute; (b)
assuming desahucio to be proper, whether or not Evangelista,
as Cañiza's legal guardian had authority to bring said action;
and (c) assuming an affirmative answer to both questions,
whether or not Evangelista may continue to represent Cañiza
after the latter's death.
I
It is axiomatic that what determines the nature of an action as
well as which court has jurisdiction over it, are the allegations
of the complaint and the character of the relief sought. 18 An
inquiry into the averments of the amended complaint in the
Court of origin is thus in order. 19
The amended Complaint alleges: 20
6. That the plaintiff Carmen Cañiza, is the sole
and absolute owner of a house and lot at No.
61 Scout Tobias, Quezon City, which property is
now the subject of this complaint;
xxx xxx xxx
9. That the defendants, their children,
grandchildren and sons-in-law, were allowed to
live temporarily in the house of plaintiff Carmen
Cañiza, for free, out of her kindness;
10. That the plaintiff, through her legal
guardian, has duly notified the defendants, for
them to vacate the said house, but the two (2)
letters of demand were ignored and the
defendants refused to vacate the same. . .
11. That the plaintiff, represented by her legal
guardian, Amparo Evangelista, made another
demand on the defendants for them to vacate
the premises, before Barangay Captain
Angelina A. Diaz of Barangay Laging Handa,
Quezon City, but after two (2) conferences, the
result was negative and no settlement was
reached. A photocopy of the Certification to File
Action dated July 4, 1990, issued by said
Barangay Captain is attached, marked Annex
"D" and made an integral part hereof;
12. That the plaintiff has given the defendants
more than thirty (30) days to vacate the house,
but they still refused to vacate the premises,
and they are up to this time residing in the said
place;
13. That this complaint is filed within one (1)
year from the date of first letter of demand
dated February 3, 1990 (Annex "B") sent by the
plaintiff to the defendants, by her legal guardian
— Amparo Evangelista;
14. By the defendants' act of unlawfully
depriving the plaintiff of the possession of the
house in question, they are enriching
themselves at the expense of the
incompetent plaintiff because, while they are
saving money by not paying any rent for the
house, the plaintiff is losing much money as her
house could not be rented by others;
15. That the plaintiff's health is failing and she
needs the house urgently, so that funds could
be raised to meet her expenses for her support,
maintenance and medical treatment;
16. That because of defendants' refusal to
vacate the house at No. 61 Scout Tobias,
Quezon City, the plaintiff, through her legal
guardian, was compelled to go to court for
justice, and she has to spend P10,000.00 as
attorney's fees.
Its prayer 21 is quoted below:
WHEREFORE, in the interest of justice and the
rule of law, plaintiff, Carmen Cañiza,
represented by her legal guardian, Amparo
Evangelista, respectfully prays to this
Honorable Court, to render judgment in favor of
plaintiff and against the defendants as follows:
 1. To order the defendants, their children,
grandchildren, sons-in-law and other persons
claiming under them, to vacate the house and
premises at No. 6 1 Scout Tobias, Quezon City,
so that its possession can be restored to the
plaintiff Carmen Cañiza; and
2. To pay attorney's fees in the amount of
P10,000.00;
3. To pay the costs of the suit.
In essence, the amended complaint states:
1) that the Estradas were occupying Cañiza's
house by tolerance — having been "allowed to
live temporarily . . (therein) for free, out of . .
(Cañiza's) kindness;"
2) that Cañiza needed the house "urgently"
because her "health . . (was) failing and she . .
(needed) funds . . to meet her expenses for her
support, maintenance and medical treatment;"
3) that through her general guardian, Cañiza
requested the Estradas several times, orally
and in writing, to give back possession of the
house;
4) that the Estradas refused and continue to
refuse to give back the house to Cañiza, to her
continuing prejudice; and
5) that the action was filed within one (1) year
from the last demand to vacate.
Undoubtedly, a cause of action for desahucio has been
adequately set out. It is settled that in an action for unlawful
detainer, it suffices to allege that the defendant is unlawfully
withholding possession from the plaintiff is deemed
sufficient, 22 and a complaint for unlawful detainer is sufficient if
it alleges that the withholding of possession or the refusal to
vacate is unlawful without necessarily employing the
terminology of the law. 23
The Estradas' first proffered defense derives from a literal
construction of Section 1, Rule 70 of the Rules of Court
which inter alia authorizes the institution of an unlawful
detainer suit when "the possession of any land or building is
unlawfully withheld after the expiration or termination of the
right to hold possession, by virtue of any contract, express or
implied." They contend that since they did not acquire
possession of the property in question "by virtue of any
contract, express or implied" — they having been, to repeat,
"allowed to live temporarily . . (therein) for free, out of . .
(Cañiza's) kindness" — in no sense could there be an
"expiration or termination of . . (their) right to hold
possession, by virtue of any contract, express or implied." Nor
would an action for forcible entry lie against them, since there
is no claim that they had "deprived (Cañiza) of the possession
of . . (her property) by force, intimidation, threat, strategy, or
stealth.
The argument is arrant sophistry. Cañiza's act of allowing the
Estradas to occupy her house, rent-free, did not create a
permanent and indefeasible right of possession in the latter's
favor. Common sense, and the most rudimentary sense of
fairness clearly require that that act of liberality be implicitly,
but no less certainly, accompanied by the necessary burden
on the Estradas of returning the house to Cañiza upon her
demand. More than once has this Court adjudged that a
person who occupies the land of another at the latter's
tolerance or permission without any contract between them is
necessarily bound by an implied promise that he will vacate
upon demand, failing which a summary action for ejectment is
the proper remedy against him. 24 The situation is not much
different from that of a tenant whose lease expires but who
continues in occupancy by tolerance of the owner, in which
case there is deemed to be an unlawful deprivation or
withholding of possession as of the date of the demand to
vacate. 25 In other words, one whose stay is merely tolerated
becomes a deforciant illegally occupying the land or property
the moment he is required to leave. 26 Thus, in Asset
Privatization Trust vs. Court of Appeals, 27 where a company,
having lawfully obtained possession of a plant upon its
undertaking to buy the same, refused to return it after failing to
fulfill its promise of payment despite demands, this Court held
that "(a)fter demand and its repudiation, . . (its) continuing
possession . . became illegal and the complaint for unlawful
detainer filed by the
. . (plant's owner) was its proper remedy.
It may not be amiss to point out in this connection that where
there had been more than one demand to vacate, the one-
year period for filing the complaint for unlawful detainer must
be reckoned from the date of the last demand, 28the reason
being that the lessor has the option to waive his right of action
based on previous demands and let the lessee remain
meanwhile in the premises. 29 Now, the complaint filed by
Cañiza's guardian alleges that the same was "filed within one
(1) year from the date of the first letter of demand dated
February 3, 1990." Although this averment is not in accord with
law because there is in fact a second letter of demand to
vacate, dated February 27, 1990, the mistake is
inconsequential, since the complaint was actually filed on
September 17, 1990, well within one year from
the second (last) written demand to vacate.
The Estradas' possession of the house stemmed from the
owner's express permission. That permission was
subsequently withdrawn by the owner, as was her right; and it
is immaterial that the withdrawal was made through her judicial
guardian, the latter being indisputably clothed with authority to
do so. Nor is it of any consequence that Carmen Cañiza had
executed a will bequeathing the disputed property to the
Estradas; that circumstance did not give them the right to stay
in the premises after demand to vacate on the theory that they
might in future become owners thereof, that right of ownership
being at best inchoate, no transfer of ownership being possible
unless and until the will is duly probated.
Thus, at the time of the institution of the action of desahucio,
the Estradas had no legal right to the property, whether as
possessors by tolerance or sufferance, or as owners. They
could not claim the right of possession by sufferance; that had
been legally ended. They could not assert any right of
possession flowing from their ownership of the house; their
status as owners is dependent on the probate of the
holographic will by which the property had allegedly been
bequeathed to them — an event which still has to take place;
in other words, prior to the probate of the will, any assertion of
possession by them would be premature and inefficacious.
In any case, the only issue that could legitimately be raised
under the circumstances was that involving the Estradas'
possession by tolerance, i.e., possession de facto, not de jure.
It is therefore incorrect to postulate that the proper remedy for
Cañiza is not ejectment but accion publiciana, a plenary action
in the RTC or an action that is one for recovery of the right to
possession de jure.
II
The Estradas insist that the devise of the house to them by
Cañiza clearly denotes her intention that they remain in
possession thereof, and legally incapacitated her judicial
guardian, Amparo Evangelista, from evicting them therefrom,
since their ouster would be inconsistent with the ward's will.
A will is essentially ambulatory; at any time prior to the
testator's death, it may be changed or revoked; 30 and until
admitted to probate, it has no effect whatever and no right can
be claimed thereunder, the law being quite explicit: "No will
shall pass either real or personal property unless it is proved
and allowed in accordance with the Rules of Court" (ART.
838, id.). 31 An owner's intention to confer title in the future to
persons possessing property by his tolerance, is not
inconsistent with the former's taking back possession in the
meantime for any reason deemed sufficient. And that in this
case there was sufficient cause for the owner's resumption of
possession is apparent: she needed to generate income from
the house on account of the physical infirmities afflicting her,
arising from her extreme age.
Amparo Evangelista was appointed by a competent court the
general guardian of both the person and the estate of her aunt,
Carmen Cañiza. Her Letters of Guardianship 32 dated
December 19, 1989 clearly installed her as the "guardian over
the person and properties of the incompetent CARMEN
CANIZA with full authority to take possession of the property of
said incompetent in any province or provinces in which it may
be situated and to perform all other acts necessary for the
management of her properties . . " 33 By that appointment, it
became Evangelista's duty to care for her aunt's person, to
attend to her physical and spiritual needs, to assure her well-
being, with right to custody of her person in preference to
relatives and friends. 34 It also became her right and duty to get
possession of, and exercise control over, Cañiza's property,
both real and personal, it being recognized principle that the
ward has no right to possession or control of his property
during her incompetency. 35 That right to manage the ward's
estate carries with it the right to take possession thereof and
recover it from anyone who retains it, 36 and bring and defend
such actions as may be needful for this purpose. 37
Actually, in bringing the action of desahucio, Evangelista was
merely discharging the duty to attend to "the comfortable and
suitable maintenance of the ward" explicitly imposed on her by
Section 4, Rule 96 of the Rules of Court, viz.:
Sec. 4. Estate to be managed frugally, and
proceeds applied to maintenance of ward. — A
guardian must manage the estate of his ward
frugally and without waste, and apply the
income and profits thereof, so far as maybe
necessary, to the comfortable and suitable
maintenance of the ward and his family, if there
be any; and if such income and profits be
insufficient for that purpose, the guardian may
sell or encumber the real estate, upon being
authorized by order to do so, and apply to such
of the proceeds as may be necessary to such
maintenance.
Finally, it may be pointed out in relation to the Estradas's
defenses in the ejectment action, that as the law now stands,
even when, in forcible entry and unlawful detainer cases, the
defendant raises the question of ownership in his pleadings
and the question of possession cannot be resolved without
deciding the issue of ownership, the Metropolitan Trial Courts,
Municipal Trial Courts, and Municipal Circuit Trial Courts
nevertheless have the undoubted competence to resolve "the
issue of ownership . . only to determine the issue of
possession." 38
 III
As already stated, Carmen Cañiza passed away during the
pendency of this appeal. The Estradas thereupon moved to
dismiss the petition, arguing that Cañiza's death automatically
terminated the guardianship, Amaparo Evangelista lost all
authority as her judicial guardian, and ceased to have legal
personality to represent her in the present appeal. The motion
is without merit.
While it is indeed well-established rule that the relationship of
guardian and ward is necessarily terminated by the death of
either the guardian or the ward, 39 the rule affords no
advantage to the Estradas. Amparo Evangelista, as niece of
Carmen Cañiza, is one of the latter's only two (2) surviving
heirs, the other being Cañiza's nephew, Ramon C. Nevado.
On their motion and by Resolution of this Court 40 of June 20,
1994, they were in fact substituted as parties in the appeal at
bar in place of the deceased, in accordance with Section 17,
Rule 3 of the Rules of Court, viz.: 41
Sec. 18. Death of a 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
be substituted for the 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 deceased 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 litemfor the minor heirs.
To be sure, an ejectment case survives the death of a party.
Cañiza's demise did not extinguish the desahucio suit
instituted by her through her guardian. 42 That action, not being
a purely personal one, survived her death; her heirs have
taken her place and now represent her interests in the appeal
at bar.
WHEREFORE, the petition is GRANTED. The Decision of the
Court of Appeals promulgated on June 2, 1993 — affirming the
Regional Trial Court's judgment and dismissing petitioner's
petition for certiorari — is REVERSED and SET ASIDE, and
the Decision dated April 13, 1992 of the Metropolitan Trial
Court of Quezon City, Branch 35, in Civil Case No. 3410 is
REINSTATED and AFFIRMED. Costs against private
respondents.
SO ORDERED.
Narvasa, C.J., Davide, Jr., Melo, Francisco and Panganiban,
JJ., concur.
 [G.R. No. 115925. August 15, 2003]
SPOUSES RICARDO PASCUAL and CONSOLACION
SIOSON, petitioners, vs. COURT OF APPEALS and
REMEDIOS S. EUGENIO-GINO, respondents.
DECISION
CARPIO, J.:
The Case
This is a petition for review of the Decision [1] dated 31
January 1994 of the Court of Appeals ordering the Register of
Deeds of Metro Manila, District III, to place TCT No. (232252)
1321 in the name of respondent Remedios S. Eugenio-
Gino. The Decision ordered the Register of Deeds to cancel
the names of petitioners Ricardo Pascual and Consolacion
Sioson (petitioners) in TCT No. (232252) 1321. The Decision
also directed petitioners to pay respondent moral and
exemplary damages and attorneys fees.
The Facts
Petitioner Consolacion Sioson (CONSOLACION) and
respondent Remedios S. Eugenio-Gino (REMEDIOS) are the
niece and granddaughter, respectively, of the late Canuto
Sioson (CANUTO). CANUTO and 11 other individuals,
including his sister Catalina Sioson (CATALINA) and his
brother Victoriano Sioson (VICTORIANO), were co-owners of
a parcel of land in Tanza, Navotas, Metro Manila. The property,
known as Lot 2 of Plan Psu 13245, had an area of 9,347
square meters and was covered by Original Certificate of Title
No. 4207 issued by the Register of Deeds of Rizal. CATALINA,
CANUTO, and VICTORIANO each owned an aliquot 10/70
share or 1,335 square meters of Lot 2. [2]
On 20 November 1951, CANUTO had Lot 2 surveyed and
subdivided into eight lots (Lot Nos. 2-A to 2-H) through
Subdivision Plan Psd 34713 which the Director of Lands
approved on 30 May 1952. Lot No. 2-A, with an area of 670
square meters, and Lot No. 2-E, with an area of 2,000 square
meters, were placed under CANUTOs name. Three other
individuals took the remaining lots.[3]
On 26 September 1956, CANUTO and CONSOLACION
executed a Kasulatan ng Bilihang
Tuluyan[4] (KASULATAN). Under the KASULATAN, CANUTO
sold his 10/70 share in Lot 2 in favor of CONSOLACION
for P2,250.00. The KASULATAN, notarized by Notary Public
Jose T. de los Santos of Navotas, provides:
Na ako, CANUTO SIOSON, mamamayang Pilipino, may
katampatang gulang, kasal kay Raymunda San Diego, at
naninirahan sa Tanza, Navotas, Rizal, sa bisa at pamamagitan
ng kasulatang ito ay nagpapatunay at nagpapatibay:
1. Na ako ang lubos at tunay na may-ari ng 10/70
bahaging hindi hati (10/70 porcion pro-
indiviso) ng isang lagay na lupa (Lote
No. 2, Plano Psu-13245), na nasa sa
nayon ng Tanza, Municipio ng Navotas,
 Provincia ng Rizal, at ang descripcion o
pagkakakilanlan ng nasabing lote ay
nakasaad sa Certificado Original, de
Titulo No. 4207 ng Oficina ng
Registrador de Titulos ng Rizal, gaya ng
sumusunod:
xxxx
2. Na dahil at alang-alang sa halagang Dalawang
Libo Dalawang Daan at Limampung
Piso (P2,250.00), salaping Pilipino, na
sa akin ay ibinayad ni CONSOLACION
SIOSON, kasal kay Ricardo S. Pascual,
may sapat na gulang, mamamayang
Pilipino, at naninirahan sa Dampalit,
Malabon, Rizal at ang pagkakatanggap
ng nasabing halaga ay aking inaamin at
pinatutunayan, ay aking ipinagbili,
inilipat at isinalin, sa pamamagitan ng
bilihang tuluyan at walang pasubali a
favor [sic] sa nasabing si
CONSOLACION SIOSON, sa kanyang
tagapagmana at mapaglilipatan ang
lahat ng aking titulo, karapatan at
kaparti na binubuo ng 10/70 bahaging
hindi hati (10/70 porcion pro-indiviso) ng
loteng descrito or tinutukoy sa itaas nito.
(Emphasis supplied)
CONSOLACION immediately took possession of Lot Nos. 2-A
and 2-E. She later declared the land for taxation purposes and
paid the corresponding real estate taxes.[5]
On 23 October 1968, the surviving children of CANUTO,
namely, Felicidad and Beatriz, executed a joint
affidavit[6] (JOINT AFFIDAVIT) affirming the KASULATAN in
favor of CONSOLACION. They also attested that the lots their
father had sold to CONSOLACION were Lot Nos. 2-A and 2-E
of Subdivision Plan Psd 34713. The JOINT AFFIDAVIT reads:
KAMING sina FELICIDAD SIOSON at BEATRIZ SIOSON,
pawang mga Pilipino, kapuwa may sapat na gulang at
naninirahan, ang una sa Tanza, Navotas at ang ikalawa sa
Concepcion, Malabon, lalawigan ng Rizal, sa ilalim ng
isang ganap na panunumpa alinsunod sa batas, ay malayang
nagsasalaysay ng mga sumusunod:
Na kami ang mga buhay na anak na naiwan ni CANUTO
SIOSON na nagmamay-ari ng 10/70 bahaging hindi hati
(10/70 porcion pro-indiviso) ng isang lagay na lupa (Lote No.
2, plano Psu-13245), na nasa Nayon ng Tanza, Navotas,
Rizal, at ang mga palatandaan nito ay nasasaad sa Certificado
Original de Titulo No. 4207 ng Tanggapan ng Registrador de
Titulos ng Rizal;
Na sa lubos naming kaalaman, ay ipinagbili ng aming Ama na
si Canuto Sioson ang kaniyang buong bahagi na 10/70 sa
nasabing Lote No. 2, kay CONSOLACION SIOSON, may-
bahay ni Ricardo S. Pascual, na taga Dampalit, Malabon,
Rizal, sa halagang P2,250.00, salaping pilipino, noong ika 16
[sic] ng Septiembre, 1956, sa pamamagitan ng isang
KASULATAN NG BILIHANG TULUYAN na pinagtibay sa harap
ng Notario Publico Jose T. de los Santos nang pechang
nabanggit, sa Navotas, Rizal, (Doc. No. 194, Page No. 84;
Book No. IV; Series of 1956);
Na ang nasabing lupa na ipinagbili ng aming Ama kay
Consolacion Sioson ni Pascual, ay nakikilala ngayong mga
Lote No. 2-A at Lote 2-E ng Plano de Subdivision Psd-34713;
na pinagtibay ng Assistant Director of Lands noong Mayo 30,
1952;
Na aming ngayong pinatitibayan ang pagka-pagbili ng bahagi
ng aming Ama kay Consolacion Sioson ni Pascual ng ngayoy
nakikilalang Lote No. 2-A at Lote No. 2-E ng Plano de
Subdivision Psd-34713. (Emphasis supplied)
On 28 October 1968, CONSOLACION registered the
KASULATAN and the JOINT AFFIDAVIT with the Office of the
Register of Deeds of Rizal (Register of Deeds). Based on
these documents, the Register of Deeds issued to
CONSOLACION Transfer Certificate of Title No. (232252)
1321 covering Lot Nos. 2-A and 2-E of Subdivision Plan Psd
34713 with a total area of 2,670 square meters.
On 4 February 1988, REMEDIOS filed a complaint against
CONSOLACION and her spouse Ricardo Pascual in the
Regional Trial Court of Malabon, Branch 165, for Annulment or
Cancellation of Transfer Certificate [of Title] and Damages.
REMEDIOS claimed that she is the owner of Lot Nos. 2-A and
2-E because CATALINA devised these lots to her in
CATALINAs last will and testament [7] (LAST WILL) dated 29
May 1964. REMEDIOS added that CONSOLACION obtained
title to these lots through fraudulent means since the area
covered by TCT (232252) 1321 is twice the size of CANUTOs
share in Lot 2. REMEDIOS prayed for the cancellation of
CONSOLACIONs title, the issuance of another title in her
name, and the payment to her of damages.
Petitioners sought to dismiss the complaint on the ground
of prescription. Petitioners claimed that the basis of the action
is fraud, and REMEDIOS should have filed the action within
four years from the registration of CONSOLACIONs title on 28
October 1968 and not some 19 years later on 4 February
1988. REMEDIOS opposed the motion, claiming that she
became aware of CONSOLACIONs adverse title only in
February 1987. CONSOLACION maintained that she had
timely filed her complaint within the four-year prescriptive on 4
February 1988.
In its order of 28 April 1988, the trial court denied
petitioners motion to dismiss. The trial court held that the
reckoning of the prescriptive period for filing REMEDIOS
complaint is evidentiary in nature and must await the
presentation of the parties evidence during the trial. During the
pre-trial stage, REMEDIOS clarified that she was claiming only
CATALINAs 10/70 share in Lot 2, or 1,335 square meters,
which constitute of the area of Lot Nos. 2-A and 2-E. [8] The trial
of the case then ensued.
The Ruling of the Trial Court
On 26 November 1990, the trial court rendered judgment
dismissing the case and ordering REMEDIOS to pay
petitioners P10,000 as attorneys fees and the cost of suit. The
trial court held that the action filed by REMEDIOS is based on
fraud, covered by the four-year prescriptive period. The trial
court also held that REMEDIOS knew of petitioners adverse
title on 19 November 1982 when REMEDIOS testified against
petitioners in an ejectment suit petitioners had filed against
their tenants in Lot Nos. 2-A and 2-E. Thus, the complaint of
REMEDIOS had already prescribed when she filed it on 4
February 1988.
The trial court further ruled that REMEDIOS has no right
of action against petitioners because CATALINAs LAST WILL
from which REMEDIOS claims to derive her title has not been
admitted to probate. Under Article 838 of the Civil Code, no will
passes real or personal property unless it is allowed in probate
in accordance with the Rules of Court. The dispositive portion
of the trial courts decision provides:
WHEREFORE, judgment is hereby rendered in favor of the
defendants and against plaintiff, ordering:
1. The dismissal of this case;
2. The plaintiff to pay the defendants the sum of Ten
Thousand (P10,000.00) Pesos as and for
attorneys fees; and
3. The plaintiff to pay the costs of suit.[9]
REMEDIOS appealed to the Court of Appeals.
The Ruling of the Court of Appeals
Sioson inscribed over said title as owners of the covered
lot. Defendants-appellees spouses Ricardo Pascual and
Consolacion Sioson are ordered to pay plaintiff-appellant
Remedios S. Eugenio-Gino moral damages in the amount
of P50,000.00, exemplary damages of P20,000[.00] and
attorneys fees of P20,000.00 and P500.00 per appearance.[10]
Petitioners sought reconsideration of the ruling. However,
the Court of Appeals denied their motion in its order dated 15
June 1994.
Hence, this petition.

On 31 January 1994, the Court of Appeals rendered The Issues

judgment reversing the decision of the trial court. The
appellate court held that what REMEDIOS filed was a suit to Petitioners allege the following assignment of errors:
enforce an implied trust allegedly created in her favor when
CONSOLACION fraudulently registered her title over Lot Nos. I. THE COURT OF APPEALS ERRED IN
2-A and 2-E. Consequently, the prescriptive period for filing the HOLDING THAT
complaint is ten years, not four. The Court of Appeals counted PRIVATE RESPONDENTS CAUSE OF
this ten-year period from 19 November 1982. Thus, when ACTION IS NOT BARRED BY
REMEDIOS filed her complaint on 4 February 1988, the ten- PRESCRIPTION WHICH FINDING IS
year prescriptive period had not yet expired. MANIFESTLY CONTRARY TO LAW AND
THE APPLICABLE DECISIONS OF THIS
The appellate court held that CATALINAs unprobated HONORABLE COURT.
LAST WILL does not preclude REMEDIOS from seeking
reconveyance of Lot Nos. 2-A and 2-E as the LAST WILL may II. THE COURT OF APPEALS ERRED IN NOT
subsequently be admitted to probate. The dispositive portion HOLDING THAT PRIVATE RESPONDENT
of the appellate courts ruling provides: DOES NOT HAVE ANY TITLE AND HAS
UTTERLY FAILED TO PROVE ANY TITLE
WHEREFORE, the decision appealed from is REVERSED and TO THE LOTS INVOLVED IN THIS CASE,
SET ASIDE. The Registry of Deeds of Rizal or Metro Manila, AND IN ORDERING THE CANCELLATION
District III, is ordered to place Transfer Certificate of Title No. OF THE CERTIFICATE OF TITLE OF
(232252) 1321 under the name of Remedios S. Eugenio-Gino PETITIONERS.
as executor of the will of Catalina Sioson and cancel the
names of the Spouses Ricardo Pascual and Consolacion
 III. THE COURT OF APPEALS ACTED WITH The Action is Barred by Prescription
GRAVE ABUSE OF DISCRETION
AMOUNTING TO LACK OF
JURISDICTION AND IN GROSS The trial court held that the action filed by REMEDIOS is
VIOLATION OF THE RULES OF COURT one based on fraud. REMEDIOS action seeks to recover real
IN ORDERING THE ENTIRE PROPERTY property that petitioners allegedly acquired through
COVERED BY TRANSFER CERTIFICATE fraud.Consequently, the trial court held that the action
OF TITLE NO. (232252) 1321 TO BE prescribes in four years counted from REMEDIOS actual
PLACED IN THE NAME OF PRIVATE discovery of petitioners adverse title. The trial court concluded
RESPONDENT, BECAUSE THE CLAIM that REMEDIOS belatedly filed her suit on 4 February 1988
OF PRIVATE RESPONDENT IS LIMITED because she actually knew of petitioners adverse title since 19
ONLY TO ONE-HALF (1/2) PORTION OF November 1982.
THE PROPERTY, AND THE OTHER HALF On the other hand, the Court of Appeals held that what
THEREOF UNQUESTIONABLY BELONGS REMEDIOS filed was a suit to enforce an implied
TO PETITIONERS. trust. REMEDIOS had ten years counted from actual notice of
IV. THE COURT OF APPEALS ERRED IN the breach of trust, that is, the assertion of adverse title, within
HOLDING THAT PETITIONERS ACTED which to bring her action. The appellate court held that
FRAUDULENTLY AND IN BAD FAITH IN REMEDIOS seasonably filed her complaint on 4 February
SECURING THEIR CERTIFICATE OF 1988 because she allegedly discovered petitioners adverse
TITLE TO THE PROPERTY INVOLVED IN title only on 19 November 1982.
THIS CASE, AND IN ORDERING What REMEDIOS filed was an action to enforce an
PETITIONERS TO PAY PRIVATE implied trust but the same is already barred by prescription.
RESPONDENTS MORAL DAMAGES,
EXEMPLARY DAMAGES AND
ATTORNEYS FEES.[11]
Prescriptive Period is 10 Years Counted
The pivotal questions are: (1) whether prescription bars From Registration of Adverse Title
the action filed by REMEDIOS, and (2) whether REMEDIOS is
a real party-in-interest.
The four-year prescriptive period relied upon by the trial
court applies only if the fraud does not give rise to an implied
trust, and the action is to annul a voidable contract under
The Ruling of the Court Article 1390[12] of the Civil Code. In such a case, the four-year
prescriptive period under Article 1391[13] begins to run from the
The petition has merit. time of discovery of the mistake, violence, intimidation, undue
influence or fraud.
 In the present case, REMEDIOS does not seek to annul
the KASULATAN. REMEDIOS does not assail the
KASULATAN as a voidable contract. In fact, REMEDIOS
admits the validity of the sale of 1,335 square meters of land
under the KASULATAN. However, REMEDIOS alleges that the
excess area of 1,335 meters is not part of the sale under the
KASULATAN.REMEDIOS seeks the removal of this excess
area from TCT No. (232252) 1321 that was issued to
CONSOLACION. Consequently, REMEDIOS action is for
Annulment or Cancellation of Transfer Certificate [of Title] and
Damages.[14]
REMEDIOS action is based on an implied trust under
Article 1456 since she claims that the inclusion of the
additional 1,335 square meters in TCT No. (232252) 1321 was
without basis. In effect, REMEDIOS asserts that
CONSOLACION acquired the additional 1,335 square meters
through mistake or fraud and thus CONSOLACION should be
considered a trustee of an implied trust for the benefit of the
rightful owner of the property. Clearly, the applicable
prescriptive period is ten years under Article 1144 and not four
years under Articles 1389 and 1391.
It is now well-settled that the prescriptive period to recover
property obtained by fraud or mistake, giving rise to an implied
trust under Article 1456[15] of the Civil Code, is ten years
pursuant to Article 1144.[16] This ten-year prescriptive period
begins to run from the date the adverse party repudiates the
implied trust, which repudiation takes place when the adverse
party registers the land.[17]
REMEDIOS filed her complaint on 4 February 1988 or
more than 19 years after CONSOLACION registered her title
over Lot Nos. 2-A and 2-E on 28 October
1968. Unquestionably, REMEDIOS filed the complaint late
thus warranting its dismissal. As the Court recently declared
in Spouses Alfredo v. Spouses Borras,[18]
Following Caro,[19] we have consistently held that an action for
reconveyance based on an implied trust prescribes in ten
years. We went further by specifying the reference point of the
ten-year prescriptive period as the date of the registration of
the deed or the issuance of the title.
The Court of Appeals Reckoning of
Prescriptive Period from Actual Notice
of Adverse Title Not Justified
In holding that the action filed by REMEDIOS has not
prescribed, the Court of Appeals invoked this Courts ruling
in Adille v. Court of Appeals.[20] In Adille, the Court reckoned
the ten-year prescriptive period for enforcing implied trusts not
from registration of the adverse title but from actual notice of
the adverse title by the cestui que trust. However, the Court, in
justifying its deviation from the general rule, explained:
[W]hile actions to enforce a constructive trust prescribes (sic)
in ten years, reckoned from the date of the registration of the
property, we x x x are not prepared to count the period from
such date in this case. We note the petitioners sub rosa efforts
to get hold of the property exclusively for himself beginning
with his fraudulent misrepresentation in his unilateral affidavit
of extrajudicial settlement that he is the only heir and child of
his mother Feliza[] with the consequence that he was able to
secure title in his name also. (Emphasis supplied)
Such commission of specific fraudulent conduct is absent
in the present case. Other than asserting that petitioners are
guilty of fraud because they secured title to Lot Nos. 2-A and
2-E with an area twice bigger than what CANUTO allegedly
sold to CONSOLACION, REMEDIOS did not present any
other proof of petitioners fraudulent conduct akin to Adille.
 CONSOLACION obtained title to Lot Nos. 2-A and 2-E
through the KASULATAN executed by CANUTO and the
JOINT AFFIDAVIT executed by his surviving children, one of
whom, Felicidad, is the mother of REMEDIOS. The
KASULATAN referred to the sale of CANUTOs 10/70 share in
Lot 2 without specifying the area of the lot sold. The JOINT
AFFIDAVIT referred to the Plano de Subdivision Psd-34713
without also specifying the area of the lot sold. However,
Subdivision Plan Psd 34713, as certified by the Assistant
Director of Lands on 30 May 1952, showed an area of 2,670
square meters in the name of CANUTO. Based on these
documents, the Register of Deeds issued TCT No. (232252)
1321 to CONSOLACION covering an area of 2,670 square
meters.
REMEDIOS does not assail the KASULATAN or the
JOINT AFFIDAVIT as fictitious or forged. REMEDIOS even
admits the authenticity of Subdivision Plan Psd 34713 as
certified by the Assistant Director of Lands. [21] Moreover,
REMEDIOS has not contested petitioners claim that CANUTO
doubled his share in Lot 2 by acquiring VICTORIANOs share.
[22]
Plainly, the increase in the area sold from 1,335 square
meters to 2,670 square meters is a glaring mistake. There is,
however, no proof whatsoever that this increase in area was
the result of fraud. Allegations of fraud in actions to enforce
implied trusts must be proved by clear and convincing
evidence.[23] Adille, which is anchored on fraud,[24] cannot
apply to the present case.
At any rate, even if we apply Adille to this
case, prescription still bars REMEDIOS complaint. As
executrix of CATALINAs LAST WILL, REMEDIOS submitted to
the then Court of First Instance of Caloocan in Special
Proceedings Case No. C-208 the inventory of all the property
comprising CATALINAs estate, which included Lot Nos. 2-A
and 2-E. In a motion dated 7 November 1977,
CONSOLACION sought the exclusion of these lots from the
inventory, invoking her title over them. REMEDIOS was served
a copy of the motion on 8 November 1977 against which she
filed an opposition. Nevertheless, the trial court overruled
REMEDIOS objection. In its order of 3 January 1978, the trial
court granted CONSOLACIONs motion and ordered the
exclusion of Lot Nos. 2-A and 2-E from the estate of
CATALINA. REMEDIOS did not appeal from this ruling.
REMEDIOS thus had actual notice of petitioners adverse
title on 8 November 1977. Even if, for the sake of argument,
the ten-year prescriptive period begins to run upon actual
notice of the adverse title, still REMEDIOS right to file this suit
has prescribed. REMEDIOS had until 11 November 1987
within which to file her complaint. When she did so on 4
February 1988, the prescriptive period had already lapsed.
Respondent is Not a Real Party-in-Interest
Not only does prescription bar REMEDIOS
complaint. REMEDIOS is also not a real party-in-interest who
can file the complaint, as the trial court correctly ruled.
The 1997 Rules of Civil Procedure require that every
action must be prosecuted or defended in the name of the real
party-in-interest who is the party who stands to benefit or
suffer from the judgment in the suit. [25] If one who is not a real
party-in-interest brings the action, the suit is dismissible for
lack of cause of action.[26]
REMEDIOS anchored her claim over Lot Nos. 2-A and 2-
E (or over its one-half portion) on the devise of these lots to
her under CATALINAs LAST WILL. However, the trial court
found that the probate court did not issue any order admitting
the LAST WILL to probate. REMEDIOS does not contest this
finding. Indeed, during the trial, REMEDIOS admitted that
Special Proceedings Case No. C-208 is still pending.[27]
Article 838 of the Civil Code states that [N]o will shall pass
either real or personal property unless it is proved and allowed
in accordance with the Rules of Court. This Court has
interpreted this provision to mean, until admitted to probate, [a
will] has no effect whatever and no right can be claimed
thereunder.[28] REMEDIOS anchors her right in filing this suit
on her being a devisee of CATALINAs LAST WILL. However,
since the probate court has not admitted CATALINAs LAST
WILL, REMEDIOS has not acquired any right under the LAST
WILL. REMEDIOS is thus without any cause of action either to
seek reconveyance of Lot Nos. 2-A and 2-E or to enforce an
implied trust over these lots.
The appellate court tried to go around this deficiency by
ordering the reconveyance of Lot Nos. 2-A and 2-E to
REMEDIOS in her capacity as executrix of CATALINAs LAST
WILL. This is inappropriate because REMEDIOS sued
petitioners not in such capacity but as the alleged owner of the
disputed lots. Thus, REMEDIOS alleged in her complaint:
3. The plaintiff is a niece and compulsory heir of the late
CATALINA SIOSON who died single and without any child of
her own and who, during her lifetime, was the owner of those
two (2) parcels of land located at Tanza, Navotas, Rizal (now
Metro Manila), formerly covered by Original Certificate of Title
No. 4207 of the Registry of Deeds for the Province of Rizal, x x
x.
4. The plaintiff, aside from being the compulsory heir of the
deceased CATALINA SIOSON, has sole and exclusive claim of
ownership over the above-mentioned two (2) parcels of land
by virtue of a will or Huling Habilin at Pagpapasiya executed
by Catalina Sioson on May 19, 1964 before Notary Public
Efren Y. Angeles at Navotas, Rizal, in which document the
deceased Catalina Sioson specifically and exclusively
bequeathed to the plaintiff the above-mentioned Lots 2-A and
2-E of Psd-34713 approved by the Bureau of Lands on May
30, 1952. Copy of the Huling Habilin at Pagpapasiya
consisting of four (4) pages is hereto attached and forms an
integral part hereof as Annex A;
5. Sometime on or about February, 1987,
plaintiff discovered that the above-mentioned Lots 2-A and 2-E
of subdivision plan Psd-34713 are now registered or titled in
the name of the defendants under Transfer Certificate of Title
No. (232252) 1321 of the Registry of Deeds of Rizal, now
Metro-Manila District III. Copy of the title is hereto attached
and forms an integral part hereof as Annex B;
6. Upon further inquiry and investigation, plaintiff discovered
that the defendants were able to obtain title in their name of
the said parcels of land by virtue of a Kasulatan ng Bilihang
Tuluyan allegedly executed by Canuto Sioson on September
26, 1956 before Notary Public Jose [T.] de los Santos of
Navotas, Metro-Manila. Copy of the said document is hereto
attached and forms an integral part hereof as Annex C;
7. The plaintiff also discovered that although x x x the original
sale did not specify the parcels of land sold by Canuto Sioson,
the defendants submitted an alleged Affidavit executed by
Felicidad Sioson and Beatriz Sioson identifying the lots sold by
Canuto Sioson to the defendants as Lots 2-A and 2-E of
subdivision plan Psd-34713. Copy of the Affidavit dated
October 3, 1968 on the basis of which the present Transfer
Certificate of Title No. (232252) 1321 was issued to the
defendants is hereto attached and forms an integral part
hereof as Annex D;
8. The defendants are clearly guilty of fraud in presenting the
aforementioned Affidavit (Annex D) to the Register of Deeds
as the basis of their claim to Lots 2-A and 2-E in view of the SO ORDERED.
fact that the parcels sold to them by Canuto Sioson, assuming
there was such a sale, were different parcels of land, Lots 2-A Davide, Jr., C.J., (Chairman), Vitug, Ynares-
Santiago and Azcuna, JJ., concur.
and 2-E being the properties of the late Catalina Sioson who
bequeathed the same to the plaintiff.

xxxx

12. Because of the defendants fraudulent actuations on this

matter, plaintiff suffered and continious [sic] to suffer moral
damages arising from anxiety, shock and wounded feelings.
Defendants should also be assessed exemplary damages by
way of a lesson to deter them from again committing the
fraudulent acts, or acts of similar nature, by virtue of which
they were able to obtain title to the parcels of land
involved in this case x x x.[29] (Emphasis supplied)

Indeed, all throughout the proceedings below and even in her

Comment to this petition, REMEDIOS continued to pursue her
claim as the alleged owner of one-half of the disputed lots.

Other Matters Raised in the Petition

The Court deems it unnecessary to pass upon the other

errors petitioners assigned concerning the award of damages
and attorneys fees to REMEDIOS. Such award assumes that
REMEDIOS is a real party-in-interest and that she timely filed
her complaint. As earlier shown, this is not the case.
WHEREFORE, we GRANT the petition. The Decision of
the Court of Appeals dated 31 January 1994 and its Resolution
dated 15 June 1994 are SET ASIDE. The complaint filed by
respondent Remedios Eugenio-Gino, dated 2 February 1988
is DISMISSED.
G.R. No. L-56340 June 24, 1983
SPOUSES ALVARO PASTOR, JR. and MA. ELENA
ACHAVAL DE PASTOR, petitioners,
vs.
THE COURT OF APPEALS, JUAN Y. REYES, JUDGE OF
BRANCH I, COURT OF FIRST INSTANCE OF CEBU and
LEWELLYN BARLITO QUEMADA, respondents.
Pelaez, Pelaez, & Pelaez Law Office for petitioners.
Ceniza, Rama & Associates for private respondents.
PLANA, J.:
I. FACTS:
This is a case of hereditary succession.
Alvaro Pastor, Sr. (PASTOR, SR.), a Spanish subject, died in
Cebu City on June 5, 1966, survived by his Spanish wife Sofia
Bossio (who also died on October 21, 1966), their two
legitimate children Alvaro Pastor, Jr. (PASTOR, JR.) and Sofia
Pastor de Midgely (SOFIA), and an illegitimate child, not
natural, by the name of Lewellyn Barlito Quemada QUEMADA
PASTOR, JR. is a Philippine citizen, having been naturalized
in 1936. SOFIA is a Spanish subject. QUEMADA is a Filipino
by his mother's citizenship.
On November 13, 1970, QUEMADA filed a petition for the
probate and allowance of an alleged holographic will of
PASTOR, SR. with the Court of First Instance of Cebu, Branch
I (PROBATE COURT), docketed as SP No. 3128-R. The will
contained only one testamentary disposition: a legacy in favor
of QUEMADA consisting of 30% of PASTOR, SR.'s 42% share
in the operation by Atlas Consolidated Mining and
Development Corporation (ATLAS) of some mining claims in
Pina-Barot, Cebu.
On November 21, 1970, the PROBATE COURT, upon motion
of QUEMADA and after an ex parte hearing, appointed him
special administrator of the entire estate of PASTOR, SR.,
whether or not covered or affected by the holographic will. He
assumed office as such on December 4, 1970 after filing a
bond of P 5,000.00.
On December 7, 1970, QUEMADA as special administrator,
instituted against PASTOR, JR. and his wife an action for
reconveyance of alleged properties of the estate, which
included the properties subject of the legacy and which were in
the names of the spouses PASTOR, JR. and his wife, Maria
Elena Achaval de Pastor, who claimed to be the owners
thereof in their own rights, and not by inheritance. The action,
docketed as Civil Case No. 274-R, was filed with the Court of
First Instance of Cebu, Branch IX.
On February 2, 1971, PASTOR, JR. and his sister SOFIA filed
their opposition to the petition for probate and the order
appointing QUEMADA as special administrator.
On December 5, 1972, the PROBATE COURT issued an order
allowing the will to probate. Appealed to the Court of Appeals
in CA-G.R. No. 52961- R, the order was affirmed in a decision
dated May 9, 1977. On petition for review, the Supreme Court
in G.R. No. L-46645 dismissed the petition in a minute
resolution dated November 1, 1977 and remanded the same
to the PROBATE COURT after denying reconsideration on
January 11, 1978.
For two years after remand of the case to the PROBATE
COURT, QUEMADA filed pleading after pleading asking for
payment of his legacy and seizure of the properties subject of
said legacy. PASTOR, JR. and SOFIA opposed these
pleadings on the ground of pendency of the reconveyance suit
with another branch of the Cebu Court of First Instance. All
pleadings remained unacted upon by the PROBATE COURT.
On March 5, 1980, the PROBATE COURT set the hearing on
the intrinsic validity of the will for March 25, 1980, but upon
objection of PASTOR, JR. and SOFIA on the e ground of
pendency of the reconveyance suit, no hearing was held on
March 25. Instead, the PROBATE COURT required the parties
to submit their respective position papers as to how much
inheritance QUEMADA was entitled to receive under the wig.
Pursuant thereto, PASTOR. JR. and SOFIA submitted their
Memorandum of authorities dated April 10, which in effect
showed that determination of how much QUEMADA should
receive was still premature. QUEMADA submitted his Position
paper dated April 20, 1980. ATLAS, upon order of the Court,
submitted a sworn statement of royalties paid to the Pastor
Group of tsn from June 1966 (when Pastor, Sr. died) to
February 1980. The statement revealed that of the mining
claims being operated by ATLAS, 60% pertained to the Pastor
Group distributed as follows:
1. A. Pastor, Jr. ...................................40.5%
2. E. Pelaez, Sr. ...................................15.0%
3. B. Quemada .......................................4.5%
On August 20, 1980, while the reconveyance suit was still
being litigated in Branch IX of the Court of First Instance of
Cebu, the PROBATE COURT issued the now assailed Order
of Execution and Garnishment, resolving the question of
ownership of the royalties payable by ATLAS and ruling in
effect that the legacy to QUEMADA was not inofficious. [There
was absolutely no statement or claim in the Order that the
Probate Order of December 5, 1972 had previously resolved
the issue of ownership of the mining rights of royalties thereon,
nor the intrinsic validity of the holographic will.]
The order of August 20, 1980 found that as per the
holographic will and a written acknowledgment of PASTOR,
JR. dated June 17, 1962, of the above 60% interest in the
mining claims belonging to the Pastor Group, 42% belonged to
PASTOR, SR. and only 33% belonged to PASTOR, JR. The
remaining 25% belonged to E. Pelaez, also of the Pastor
Group. The PROBATE COURT thus directed ATLAS to remit
directly to QUEMADA the 42% royalties due decedent's estate,
of which QUEMADA was authorized to retain 75% for himself
as legatee and to deposit 25% with a reputable banking
institution for payment of the estate taxes and other obligations
of the estate. The 33% share of PASTOR, JR. and/or his
assignees was ordered garnished to answer for the
accumulated legacy of QUEMADA from the time of PASTOR,
SR.'s death, which amounted to over two million pesos.
The order being "immediately executory", QUEMADA
succeeded in obtaining a Writ of Execution and Garnishment
on September 4, 1980, and in serving the same on ATLAS on
the same day. Notified of the Order on September 6, 1980, the
oppositors sought reconsideration thereof on the same date
primarily on the ground that the PROBATE COURT gravely
abused its discretion when it resolved the question of
ownership of the royalties and ordered the payment of
QUEMADA's legacy after prematurely passing upon the
intrinsic validity of the will. In the meantime, the PROBATE
COURT ordered suspension of payment of all royalties due
PASTOR, JR. and/or his assignees until after resolution of
oppositors' motion for reconsideration.
Before the Motion for Reconsideration could be resolved,
however, PASTOR, JR., this time joined by his wife Ma.
ELENA ACHAVAL DE PASTOR, filed with the Court of Appeals
a Petition for certiorari and Prohibition with a prayer for writ of
preliminary injunction (CA-G.R. No. SP- 11373-R). They
assailed the Order dated August 20, 1980 and the writ of
execution and garnishment issued pursuant thereto. The
petition was denied on November 18, 1980 on the grounds (1)
that its filing was premature because the Motion for
Reconsideration of the questioned Order was still pending
determination by the PROBATE COURT; and (2) that although
"the rule that a motion for reconsideration is prerequisite for an
action for certiorari is never an absolute rule," the Order
assailed is "legally valid. "
On December 9, 1980, PASTOR, JR. and his wife moved for
reconsideration of the Court of Appeal's decision of November
18, 1980, calling the attention of the appellate court to another
order of the Probate Court dated November 11, 1980 (i.e.,
while their petition for certiorari was pending decision in the
appellate court), by which the oppositors' motion for
reconsideration of the Probate Court's Order of August 20,
1980 was denied. [The November 11 Order declared that the
questions of intrinsic validity of the will and of ownership over
the mining claims (not the royalties alone) had been finally
adjudicated by the final and executory Order of December 5,
1972, as affirmed by the Court of Appeals and the Supreme
Court, thereby rendering moot and academic the suit for
reconveyance then pending in the Court of First Instance of
Cebu, Branch IX. It clarified that only the 33% share of
PASTOR, JR. in the royalties (less than 7.5% share which he
had assigned to QUEMADA before PASTOR, SR. died) was to
be garnished and that as regards PASTOR, SR.'s 42% share,
what was ordered was just the transfer of its possession to the
custody of the PROBATE COURT through the special
administrator. Further, the Order granted QUEMADA 6%
interest on his unpaid legacy from August 1980 until fully paid.]
Nonetheless, the Court of Appeals denied reconsideration.
Hence, this Petition for Review by certiorari with prayer for a
writ of pre y injunction, assailing the decision of the Court of
Appeals dated November 18, 1980 as well as the orders of the
Probate Court dated August 20, 1980, November 11, 1980 and
December 17, 1980, Med by petitioners on March 26, 1981,
followed by a Supplemental Petition with Urgent Prayer for
Restraining Order.
In April 1981, the Court (First Division) issued a writ of
preliminary injunction, the lifting of which was denied in the
Resolution of the same Division dated October 18, 1982,
although the bond of petitioners was increased from
P50,000.00 to P100,000.00.
Between December 21, 1981 and October 12, 1982, private
respondent filed seven successive motions for early resolution.
Five of these motions expressly prayed for the resolution of
the question as to whether or not the petition should be given
due course.
On October 18, 1982, the Court (First Division) adopted a
resolution stating that "the petition in fact and in effect was
given due course when this case was heard on the merits on
September 7, (should be October 21, 1981) and concise
memoranda in amplification of their oral arguments on the
merits of the case were filed by the parties pursuant to the
resolution of October 21, 1981 . . . " and denied in a resolution
dated December 13, 1982, private respondent's "Omnibus
motion to set aside resolution dated October 18, 1982 and to
submit the matter of due course to the present membership of
the Division; and to reassign the case to another ponente."
Upon Motion for Reconsideration of the October 18, 1982 and
December 13, 1982 Resolutions, the Court en banc resolved
to CONFIRM the questioned resolutions insofar as hey
resolved that the petition in fact and in effect had been given
due course.
II. ISSUES:
Assailed by the petitioners in these proceedings is the validity
of the Order of execution and garnishment dated August 20,
1980 as well as the Orders subsequently issued allegedly to
implement the Probate Order of December 5, 1972, to wit: the
Order of November 11, 1980 declaring that the Probate Order
of 1972 indeed resolved the issues of ownership and intrinsic
validity of the will, and reiterating the Order of Execution dated
August 20, 1980; and the Order of December 17, 1980
reducing to P2,251,516.74 the amount payable to QUEMADA
representing the royalties he should have received from the
death of PASTOR, SR. in 1966 up to February 1980.
The Probate Order itself, insofar as it merely allowed the
holographic will in probate, is not questioned. But petitioners
denounce the Probate Court for having acted beyond its
jurisdiction or with grave abuse of discretion when it issued the
assailed Orders. Their argument runs this way: Before the
provisions of the holographic win can be implemented, the
questions of ownership of the mining properties and the
intrinsic validity of the holographic will must first be resolved
with finality. Now, contrary to the position taken by the Probate
Court in 1980 — i.e., almost eight years after the probate of
the will in 1972 — the Probate Order did not resolve the two
said issues. Therefore, the Probate Order could not have
resolved and actually did not decide QUEMADA's entitlement
to the legacy. This being so, the Orders for the payment of the
legacy in alleged implementation of the Probate Order of 1972
are unwarranted for lack of basis.
Closely related to the foregoing is the issue raised by
QUEMADA The Probate Order of 1972 having become final
and executory, how can its implementation (payment of
legacy) be restrained? Of course, the question assumes that
QUEMADA's entitlement to the legacy was finally adjudged in
the Probate Order.
On the merits, therefore, the basic issue is whether the
Probate Order of December 5, 1972 resolved with finality the
questions of ownership and intrinsic validity. A negative finding
will necessarily render moot and academic the other issues
raised by the parties, such as the jurisdiction of the Probate
Court to conclusively resolve title to property, and the
constitutionality and repercussions of a ruling that the mining
properties in dispute, although in the name of PASTOR, JR.
and his wife, really belonged to the decedent despite the
latter's constitutional disqualification as an alien.
On the procedural aspect, placed in issue is the propriety of
certiorari as a means to assail the validity of the order of
execution and the implementing writ.
III. DISCUSSION:
1. Issue of Ownership —
(a) In a special proceeding for the probate of a will, the issue
by and large is restricted to the extrinsic validity of the will, i.e.,
whether the testator, being of sound mind, freely executed the
will in accordance with the formalities prescribed by law.
(Rules of Court, Rule 75, Section 1; Rule 76, Section 9.) As a
rule, the question of ownership is an extraneous matter which
the Probate Court cannot resolve with finality. Thus, for the
purpose of determining whether a certain property should or
should not be included in the inventory of estate properties,
the Probate Court may pass upon the title thereto, but such
determination is provisional, not conclusive, and is subject to
the final decision in a separate action to resolve title. [3 Moran,
Comments on the Rules of Court (1980 ed.), p. 458; Valero
Vda. de Rodriguez vs. Court of Appeals, 91 SCRA 540.]
(b) The rule is that execution of a judgment must conform to
that decreed in the dispositive part of the decision. (Philippine-
American Insurance Co. vs. Honorable Flores, 97 SCRA 811.)
However, in case of ambiguity or uncertainty, the body of the
decision may be scanned for guidance in construing the
judgment. (Heirs of Presto vs. Galang, 78 SCRA 534; Fabular
vs. Court of Appeals, 119 SCRA 329; Robles vs. Timario. 107
Phil. 809.)
The Order sought to be executed by the assailed Order of
execution is the Probate Order of December 5, 1972 which
allegedly resolved the question of ownership of the disputed
mining properties. The said Probate Order enumerated the
issues before the Probate Court, thus:
Unmistakably, there are three aspects in these
proceedings: (1) the probate of the holographic
will (2) the intestate estate aspect; and (3) the
administration proceedings for the purported
estate of the decedent in the Philippines.
In its broad and total perspective the whole
proceedings are being impugned by the
oppositors on jurisdictional grounds, i.e., that
the fact of the decedent's residence and
existence of properties in the Philippines have
not been established.
Specifically placed in issue with respect to the
probate proceedings are: (a) whether or not the
holographic will (Exhibit "J") has lost its efficacy
as the last will and testament upon the death of
Alvaro Pastor, Sr. on June 5, 1966, in Cebu
City, Philippines; (b) Whether or not the said will
has been executed with all the formalities
required by law; and (c) Did the late
presentation of the holographic will affect the
validity of the same?
Issues In the Administration Proceedings are as
follows: (1) Was the ex- parte appointment of
the petitioner as special administrator valid and
proper? (2) Is there any indispensable
necessity for the estate of the decedent to be
placed under administration? (3) Whether or not
petition is qualified to be a special administrator
of the estate; and (4) Whether or not the
properties listed in the inventory (submitted by
the special administrator but not approved by
the Probate Court) are to be excluded.
Then came what purports to be the dispositive portion:
Upon the foregoing premises, this Court rules
on and resolves some of the problems and
issues presented in these proceedings, as
follows:
(a) The Court has acquired jurisdiction over the
probate proceedings as it hereby allows and
approves the so-called holographic will of
testator Alvaro Pastor, Sr., executed on July 31, a voluntary heir to the extent of the bounty
1961 with respect to its extrinsic validity, the given to him (under) the will insofar as the
same having been duly authenticated pursuant same will not prejudice the legitimes of the
to the requisites or solemnities prescribed by oppositorfor the following reasons:
law. Let, therefore, a certificate of its allowance
be prepared by the Branch Clerk of this Court to 1. To submit a
be signed by this Presiding Judge, and attested complete
by the seal of the Court, and thereafter attached inventory of the
to the will, and the will and certificate filed and estate of the
recorded by the clerk. Let attested copies of the decedent-testator
will and of the certificate of allowance thereof Alvaro Pastor, Sr.
be sent to Atlas Consolidated Mining &
Development Corporation, Goodrich Bldg., 2. To administer
Cebu City, and the Register of Deeds of Cebu and to continue to
or of Toledo City, as the case may be, for put to prolific
recording. utilization of the
properties of the
(b) There was a delay in the granting of the decedent;
letters testamentary or of administration for as a
matter of fact, no regular executor and/or 3. To keep and
administrator has been appointed up to this maintain the
time and - the appointment of a special houses and other
administrator was, and still is, justified under structures and
the circumstances to take possession and belonging to the
charge of the estate of the deceased in the estate, since the
Philippines (particularly in Cebu) until the forced heirs are
problems causing the delay are decided and residing in Spain,
the regular executor and/or administrator and prepare them
appointed. for delivery to the
heirs in good
(c) There is a necessity and propriety of a order after
special administrator and later on an executor partition and when
and/or administrator in these proceedings, in directed by the
spite of this Court's declaration that the Court, but only
oppositors are the forced heirs and the after the payment
petitioner is merely vested with the character of
 of estate and
inheritance taxes;
(d) Subject to the outcome of the suit for
reconveyance of ownership and possession of
real and personal properties in Civil Case No.
274-T before Branch IX of the Court of First
Instance of Cebu, the intestate estate
administration aspect must proceed, unless,
however, it is duly proven by the oppositors that
debts of the decedent have already been paid,
that there had been an extrajudicial partition or
summary one between the forced heirs, that
the legacy to be given and delivered to the
petitioner does not exceed the free portion of
the estate of the testator, that the respective
shares of the forced heirs have been fairly
apportioned, distributed and delivered to the
two forced heirs of Alvaro Pastor, Sr., after
deducting the property willed to the petitioner,
and the estate and inheritance taxes have
already been paid to the Government thru the
Bureau of Internal Revenue.
The suitability and propriety of allowing
petitioner to remain as special administrator or
administrator of the other properties of the
estate of the decedent, which properties are not
directly or indirectly affected by the provisions of
the holographic will (such as bank deposits,
land in Mactan etc.), will be resolved in another
order as separate incident, considering that this
order should have been properly issued solely
as a resolution on the issue of whether or not to
allow and approve the aforestated will.
(Emphasis supplied.)
Nowhere in the dispositive portion is there a declaration of
ownership of specific properties. On the contrary, it is manifest
therein that ownership was not resolved. For it confined itself
to the question of extrinsic validity of the win, and the need for
and propriety of appointing a special administrator. Thus it
allowed and approved the holographic win "with respect to its
extrinsic validity, the same having been duly authenticated
pursuant to the requisites or solemnities prescribed by law." It
declared that the intestate estate administration aspect must
proceed " subject to the outcome of the suit for reconveyance
of ownership and possession of real and personal properties in
Civil Case 274-T before Branch IX of the CFI of Cebu."
[Parenthetically, although the statement refers only to the
"intestate" aspect, it defies understanding how ownership by
the estate of some properties could be deemed finally
resolved for purposes of testate administration, but not so
for intestate purposes. Can the estate be the owner of a
property for testate but not for intestate purposes?] Then
again, the Probate Order (while indeed it does not direct the
implementation of the legacy) conditionally stated that the
intestate administration aspect must proceed "unless . . . it is
proven . . . that the legacy to be given and delivered to the
petitioner does not exceed the free portion of the estate of the
testator," which clearly implies that the issue of impairment of
legitime (an aspect of intrinsic validity) was in fact not
resolved. Finally, the Probate Order did not rule on the
propriety of allowing QUEMADA to remain as special
administrator of estate properties not covered by the
holographic will, "considering that this (Probate) Order should
have been properly issued solely as a resolution on the issue
of whether or not to allow and approve the aforestated will. "
(c) That the Probate Order did not resolve the question of
ownership of the properties listed in the estate inventory was
appropriate, considering that the issue of ownership was the
very subject of controversy in the reconveyance suit that was
still pending in Branch IX of the Court of First Instance of
Cebu.
(d) What, therefore, the Court of Appeals and, in effect, the
Supreme Court affirmed en toto when they reviewed the
Probable Order were only the matters properly adjudged in the
said Order.
(e) In an attempt to justify the issuance of the Order of
execution dated August 20, 1980, the Probate Court in its
Order of November 11, 1980 explained that the basis for its
conclusion that the question of ownership had been formally
resolved by the Probate Order of 1972 are the findings in the
latter Order that (1) during the lifetime of the decedent, he was
receiving royalties from ATLAS; (2) he had resided in the
Philippines since pre-war days and was engaged in the mine
prospecting business since 1937 particularly in the City of
Toledo; and (3) PASTOR, JR. was only acting as dummy for
his father because the latter was a Spaniard.
Based on the premises laid, the conclusion is obviously far-
fetched.
(f) It was, therefore, error for the assailed implementing Orders
to conclude that the Probate Order adjudged with finality the
question of ownership of the mining properties and royalties,
and that, premised on this conclusion, the dispositive portion
of the said Probate Order directed the special administrator to
pay the legacy in dispute.
2. Issue of Intrinsic Validity of the Holographic Will -
(a) When PASTOR, SR. died in 1966, he was survived by his
wife, aside from his two legitimate children and one illegitimate
son. There is therefore a need to liquidate the conjugal
partnership and set apart the share of PASTOR, SR.'s wife in
the conjugal partnership preparatory to the administration and
liquidation of the estate of PASTOR, SR. which will include,
among others, the determination of the extent of the statutory
usufructuary right of his wife until her death. * When the
disputed Probate order was issued on December 5, 1972,
there had been no liquidation of the community properties of
PASTOR, SR. and his wife.
(b) So, also, as of the same date, there had been no prior
definitive determination of the assets of the estate of PASTOR,
SR. There was an inventory of his properties presumably
prepared by the special administrator, but it does not appear
that it was ever the subject of a hearing or that it was judicially
approved. The reconveyance or recovery of properties
allegedly owned but not in the name of PASTOR, SR. was still
being litigated in another court.
(c) There was no appropriate determination, much less
payment, of the debts of the decedent and his estate. Indeed,
it was only in the Probate Order of December 5, 1972 where
the Probate Court ordered that-
... a notice be issued and published pursuant to
the provisions of Rule 86 of the Rules of Court,
requiring all persons having money claims
against the decedent to file them in the office of
the Branch Clerk of this Court."
(d) Nor had the estate tax been determined and paid, or at
least provided for, as of December 5, 1972.
(e) The net assets of the estate not having been determined,
the legitime of the forced heirs in concrete figures could not be
ascertained.
(f) All the foregoing deficiencies considered, it was not possible
to determine whether the legacy of QUEMADA - a fixed share
in a specific property rather than an aliquot part of the entire
net estate of the deceased - would produce an impairment of
the legitime of the compulsory heirs.
(g) Finally, there actually was no determination of the intrinsic
validity of the will in other respects. It was obviously for this
reason that as late as March 5, 1980 - more than 7 years after
the Probate Order was issued the Probate Court scheduled on
March 25, 1980 a hearing on the intrinsic validity of the will.
3. Propriety of certiorari —
Private respondent challenges the propriety of certiorari as a
means to assail the validity of the disputed Order of execution.
He contends that the error, if any, is one of judgment, not
jurisdiction, and properly correctible only by appeal, not
certiorari.
Under the circumstances of the case at bar, the challenge
must be rejected. Grave abuse of discretion amounting to lack
of jurisdiction is much too evident in the actuations of the
probate court to be overlooked or condoned.
(a) Without a final, authoritative adjudication of the issue as to
what properties compose the estate of PASTOR, SR. in the
face of conflicting claims made by heirs and a non-heir (MA.
ELENA ACHAVAL DE PASTOR) involving properties not in the
name of the decedent, and in the absence of a resolution on
the intrinsic validity of the will here in question, there was no
basis for the Probate Court to hold in its Probate Order of
1972, which it did not, that private respondent is entitled to the
payment of the questioned legacy. Therefore, the Order of
Execution of August 20, 1980 and the subsequent
implementing orders for the payment of QUEMADA's legacy,
in alleged implementation of the dispositive part of the Probate
Order of December 5, 1972, must fall for lack of basis.
(b) The ordered payment of legacy would be violative of the
rule requiring prior liquidation of the estate of the deceased,
i.e., the determination of the assets of the estate and payment
of all debts and expenses, before apportionment and
distribution of the residue among the heirs and legatees.
(Bernardo vs. Court of Appeals, 7 SCRA 367.)
(c) Neither has the estate tax been paid on the estate of
PASTOR, SR. Payment therefore of the legacy to QUEMADA
would collide with the provision of the National Internal
Revenue Code requiring payment of estate tax before delivery
to any beneficiary of his distributive share of the estate
(Section 107 [c])
(d) The assailed order of execution was unauthorized, having
been issued purportedly under Rule 88, Section 6 of the Rules
of Court which reads:
Sec. 6. Court to fix contributive shares where
devisees, legatees, or heirs have been in
possession. — Where devisees, legatees,
or heirs have entered into possession of
portions of the estate before the debts and
expenses have been settled and paid and have
become liable to contribute for the payment of
such debts and expenses, the court having
jurisdiction of the estate may, by order for that
purpose, after hearing, settle the amount of
their several liabilities, and order how much and
in what manner each person shall contribute,
and may issue execution as circumstances
require.
The above provision clearly authorizes execution to enforce
payment of debts of estate. A legacy is not a debt of the
estate; indeed, legatees are among those against whom
execution is authorized to be issued.
... there is merit in the petitioners' contention
that the probate court generally cannot issue a
writ of execution. It is not supposed to issue a
writ of execution because its orders usually
refer to the adjudication of claims against the
estate which the executor or administrator may
satisfy without the necessity of resorting to a
writ of execution. The probate court, as such,
does not render any judgment enforceable by
execution.
The circumstances that the Rules of Court
expressly specifies that the probate court may
issue execution (a) to satisfy (debts of the
estate out of) the contributive shares of
devisees, legatees and heirs in possession of
the decedent's assets (Sec. 6. Rule 88), (b) to
enforce payment of the expenses of partition
(Sec. 3, Rule 90), and (c) to satisfy the costs
when a person is cited for examination in
probate proceedings (Sec. 13, Rule 142) may
mean, under the rule of inclusion unius est
exclusion alterius, that those are the only
instances when it can issue a writ of execution.
(Vda. de Valera vs. Ofilada, 59 SCRA 96, 108.)
(d) It is within a court's competence to order the execution of a
final judgment; but to order the execution of a final order
(which is not even meant to be executed) by reading into it
terms that are not there and in utter disregard of existing rules
and law, is manifest grave abuse of discretion tantamount to
lack of jurisdiction. Consequently, the rule that certiorari may
not be invoked to defeat the right of a prevailing party to the
execution of a valid and final judgment, is inapplicable. For
when an order of execution is issued with grave abuse of
discretion or is at variance with the judgment sought to be
enforced (PVTA vs. Honorable Gonzales, 92 SCRA 172),
certiorari will lie to abate the order of execution.
(e) Aside from the propriety of resorting to certiorari to assail
an order of execution which varies the terms of the judgment
sought to be executed or does not find support in the
dispositive part of the latter, there are circumstances in the
instant case which justify the remedy applied for.
Petitioner MA. ELENA ACHAVAL DE PASTOR, wife of
PASTOR, JR., is the holder in her own right of three mining
claims which are one of the objects of conflicting claims of
ownership. She is not an heir of PASTOR, SR. and was not a
party to the probate proceedings. Therefore, she could not
appeal from the Order of execution issued by the Probate
Court. On the other hand, after the issuance of the execution
order, the urgency of the relief she and her co-petitioner
husband seek in the petition for certiorari states against
requiring her to go through the cumbersome procedure of
asking for leave to intervene in the probate proceedings to
enable her, if leave is granted, to appeal from the challenged
order of execution which has ordered the immediate transfer
and/or garnishment of the royalties derived from mineral
properties of which she is the duly registered owner and/or
grantee together with her husband. She could not have
intervened before the issuance of the assailed orders because
she had no valid ground to intervene. The matter of ownership
over the properties subject of the execution was then still
being litigated in another court in a reconveyance suit filed by
the special administrator of the estate of PASTOR, SR.
Likewise, at the time petitioner PASTOR, JR. Med the petition
for certiorari with the Court of Appeals, appeal was not
available to him since his motion for reconsideration of the
execution order was still pending resolution by the Probate
Court. But in the face of actual garnishment of their major
source of income, petitioners could no longer wait for the
resolution of their motion for reconsideration. They needed
prompt relief from the injurious effects of the execution order.
Under the circumstances, recourse to certiorari was the
feasible remedy.

WHEREFORE, the decision of the Court of Appeals in CA

G.R. No. SP-11373-R is reversed. The Order of execution
issued by the probate Court dated August 20, 1980, as well as
all the Orders issued subsequent thereto in alleged
implementation of the Probate Order dated December 5, 1972,
particularly the Orders dated November 11, 1980 and
December 17, 1980, are hereby set aside; and this case is
remanded to the appropriate Regional Trial Court for proper
proceedings, subject to the judgment to be rendered in Civil
Case No. 274-R.

SO ORDERED.

Teehankee (Chairman), Melencio-Herrera Vasquez and

Relova JJ., concur.

Gutierrez, J., took no part.

G.R. Nos. L-3087 and L-3088 July 31, 1954
In re: Testate Estate of the deceased JOSE B. SUNTAY.
SILVINO SUNTAY, petitioner-appellant,
vs.
In re: Intestate Estate of the deceased JOSE B. SUNTAY,
FEDERICO C. SUNTAY, administrator-appellee.
Claro M. Recto for appellant.
Sison and Aruego for appellee.
PADILLA, J.:
This is an appeal from a decree of the Court of First Instance
of Bulacan disallowing the alleged will and testament executed
in Manila on November 1929, and the alleged last will and
testament executed in Kulangsu, Amoy, China, on 4 January
1931, by Jose B. Suntay. The value of the estate left by the
deceased is more than P50,000.
On 14 May 1934 Jose B. Suntay, a Filipino citizen and resident
of the Philippines, died in the city of Amoy, Fookien province,
Republic of China, leaving real and personal properties in the
Philippines and a house in Amoy, Fookien province, China,
and children by the first marriage had with the late Manuela T.
Cruz namely, Apolonio, Concepcion, Angel, Manuel, Federico,
Ana, Aurora, Emiliano, and Jose, Jr. and a child named Silvino
by the second marriage had with Maria Natividad Lim Billian
who survived him. Intestate proceedings were instituted in the
Court of First Instance of Bulacan (special proceedings No.
4892) and after hearing letters of administration were issued to
Apolonio Suntay. After the latter's death Federico C. Suntay
was appointed administrator of the estate. On 15 October
1934 the surviving widow filed a petition in the Court of First
Instance of Bulacan for the probate of a last will and testament
claimed to have been executed and signed in the Philippines
on November 1929 by the late Jose B. Suntay. This petition
was denied because of the loss of said will after the filing of
the petition and before the hearing thereof and of the
insufficiency of the evidence to establish the loss of the said
will. An appeal was taken from said order denying the probate
of the will and this Court held the evidence before the probate
court sufficient to prove the loss of the will and remanded the
case to the Court of First Instance of Bulacan for the further
proceedings (63 Phil., 793). In spite of the fact that a
commission from the probate court was issued on 24 April
1937 for the taking of the deposition of Go Toh, an attesting
witness to the will, on 7 February 1938 the probate court
denied a motion for continuance of the hearing sent by
cablegram from China by the surviving widow and dismissed
the petition. In the meantime the Pacific War supervened. After
liberation, claiming that he had found among the files, records
and documents of his late father a will and testament in
Chinese characters executed and signed by the deceased on
4 January 1931 and that the same was filed, recorded and
probated in the Amoy district court, Province of Fookien,
China, Silvino Suntay filed a petition in the intestate
proceedings praying for the probate of the will executed in the
Philippines on November 1929 (Exhibit B) or of the will
executed in Amoy, Fookien, China, on 4 January 1931 (Exhibit
N).
There is no merit in the contention that the petitioner Silvino
Suntay and his mother Maria Natividad Lim Billian are
estopped from asking for the probate of the lost will or of the
foreign will because of the transfer or assignment of their
share right, title and interest in the estate of the late Jose B.
Suntay to Jose G. Gutierrez and the spouses Ricardo
Gutierrez and Victoria Goño and the subsequent assignment
thereof by the assignees to Francisco Pascual and by the
latter to Federico C. Suntay, for the validity and legality of such
assignments cannot be threshed out in this proceedings which
is concerned only with the probate of the will and testament
executed in the Philippines on November 1929 or of the
foreign will allegedly executed in Amoy on 4 January 1931 and
claimed to have been probated in the municipal district court of
Amoy, Fookien province, Republic of China.
As to prescription, the dismissal of the petition for probate of
the will on 7 February 1938 was no bar to the filing of this
petition on 18 June 1947, or before the expiration of ten years.
As to the lost will, section 6, Rule 77, provides:
No will shall be proved as a lost or destroyed will
unless the execution and validity of the same be
established, and the will is proved to have been in
existence at the time of the death of the testator, or is
shown to have been fraudulently or accidentally
destroyed in the lifetime of the testator without his
knowledge, nor unless its provisions are clearly and
distinctly proved by at least two credible witnesses.
When a lost will is proved, the provisions thereof must
be distinctly stated and certified by the judge, under the
seal of the court, and the certificate must be filed and
recorded as other wills are filed and recorded.
The witnesses who testified to the provisions of the lost will are
Go Toh, an attesting witness, Anastacio Teodoro and Ana
Suntay. Manuel Lopez, who was an attesting witness to the
lost will, was dead at the time of the hearing of this alternative
petition. In his deposition Go Toh testifies that he was one of
the witnesses to the lost will consisting of twenty-three sheets
signed by Jose B. Suntay at the bottom of the will and each
and every page thereof in the presence of Alberto Barretto,
Manuel Lopez and himself and underneath the testator's
signature the attesting witnesses signed and each of them
signed the attestation clause and each and every page of the
will in the presence of the testator and of the other witnesses
(answers to the 31st, 41st, 42nd, 49th, 50th, 55th and 63rd
interrogatories, Exhibit D-1), but did not take part in the
drafting thereof (answer to the 11th interrogatory, Id.); that he
knew the contents of the will written in Spanish although he
knew very little of that language (answers to the 22nd and
23rd interrogatories and to X-2 cross-interrogatory, Id.) and all
he knows about the contends of the lost will was revealed to
him by Jose B. Suntay at the time it was executed (answers to
the 25th interrogatory and to X-4 and X-8 cross-
interrogatories, Id.); that Jose B. Suntay told him that the
contents thereof are the same as those of the draft (Exhibit B)
(answers to the 33rd interrogatory and to X-8 cross-
interrogatory, Id.) which he saw in the office of Alberto Barretto
in November 1929 when the will was signed (answers to the
69th, 72nd, and 74th interrogatories, Id); that Alberto Barretto
handed the draft and said to Jose B. Suntay: "You had better
see if you want any correction" (answers to the 81st, 82nd and
83rd interrogatories, Id.); that "after checking Jose B. Suntay
put the "Exhibit B" in his pocket and had the original signed
and executed" (answers to the 91st interrogatory, and to X-18
cross-interrogatory, Id.); that Mrs. Suntay had the draft of the
will (Exhibit B) translated into Chinese and he read the
translation (answers to the 67th interrogatory, Id.); that he did
not read the will and did not compare it (check it up) with the
draft (Exhibit B) (answers to X-6 and X-20 cross-
interrogatories, Id.).
Ana Suntay testifies that sometime in September 1934 in the
house of her brother Apolonio Suntay she learned that her
father left a will "because of the arrival of my brother Manuel
Suntay, who was bringing along with him certain document
and he told us or he was telling us that it was the will of our
father Jose B. Suntay which was taken from Go Toh. ..." (p.
524, t. s. n., hearing of 24 February 1948); that she saw her
brother Apolonio Suntay read the document in her presence
and of Manuel and learned of the adjudication made in the will
by her father of his estate, to wit: one-third to his children, one-
third to Silvino and his mother and the other third to Silvino,
Apolonio, Concepcion and Jose, Jr. (pp. 526-8, 530-1, 542, t.
s. n. Id.); that "after Apolonio read that portion, then he turned
over the document to Manuel, and he went away," (p. 528, t. s.
n., Id.). On cross-examination, she testifies that she read the
part of the will on adjudication to know what was the share of
each heir (pp. 530, 544, t. s. n., Id.) and on redirect she
testifies that she saw the signature of her father, Go Toh,
Manuel Lopez and Alberto Barretto (p. 546, t. s. n., Id.).
Anastacio Teodoro testifies that one day in November 1934 (p.
273, t. s. n., hearing of 19 January 1948), before the last
postponement of the hearing granted by the Court, Go Toh
arrived at his law office in the De los Reyes Building and left
an envelope wrapped in red handkerchief [Exhibit C] (p. 32, t.
s. n., hearing of 13 October 1947); that he checked up the
signatures on the envelope Exhibit A with those on the will
placed in the envelope (p. 33, t. s. n., Id.); that the will was
exactly the same as the draft Exhibit B (pp. 32, 47, 50, t. s.
n., Id.).
If the will was snatched after the delivery thereof by Go Toh to
Anastacio Teodoro And returned by the latter to the former
because they could not agree on the amount of fees, the
former coming to the latter's office straight from the boat (p.
315, t. s. n., hearing of 19 January 1948) that brought him to
the Philippines from Amoy, and that delivery took place in
November 1934 (p. 273, t. s. n., Id.), then the testimony of Ana
Suntay that she saw and heard her brother Apolonio Suntay
read the will sometime in September 1934 (p. 524, t. s. n.,
hearing of 24 February 1948), must not be true.
Although Ana Suntay would be a good witness because she
was testifying against her own interest, still the fact remains
that she did not read the whole will but only the adjudication
(pp. 526-8, 530-1, 542, t. s. n., Id.) and saw only the signature,
of her father and of the witnesses Go Toh, Manuel Lopez and
Alberto Barretto (p. 546, t. s. n., Id.). But her testimony on
cross-examination that she read the part of the will on
adjudication is inconsistent with her testimony in chief that
after Apolonio had read that part of the will he turned over or
handed the document to Manuel who went away (p. 528, t. s.
n., Id.).
If it is true that Go Toh saw the draft Exhibit B in the office of
Alberto Barretto in November 1929 when the will was signed,
then the part of his testimony that Alberto Barretto handed the
draft to Jose B. Suntay to whom he said: "You had better see if
you want any correction" and that "after checking Jose B.
Suntay put the "Exhibit B" in his pocket and had the original
signed and executed" cannot be true, for it was not the time for
correcting the draft of the will, because it must have been
corrected before and all corrections and additions written in
lead pencil must have been inserted and copied in the final
draft of the will which was signed on that occasion. The
bringing in for the draft (Exhibit B) on that occasion is just to fit
it within the framework of the appellant's theory. At any rate, all
of Go Toh's testimony by deposition on the provisions of the
alleged lost will is hearsay, because he came to know or he
learned to them from information given him by Jose B. Suntay
and from reading the translation of the draft (Exhibit B) into
Chinese.
Much stress is laid upon the testimony of Federico C. Suntay
who testifies that he read the supposed will or the alleged will
of his father and that the share of the surviving widow,
according to the will, is two-thirds of the estate (p. 229, t. s. n.,
hearing of 24 October 1947). But this witness testified to
oppose the appointment of a co-administrator of the estate, for
the reason that he had acquired the interest of the surviving
widow not only in the estate of her deceased husband but also
in the conjugal property (pp. 148, 205, 228, 229, 231, t. s.
n., Id.) Whether he read the original will or just the copy
thereof (Exhibit B) is not clear. For him the important point was
that he had acquired all the share, participation and interest of
the surviving widow and of the only child by the second
marriage in the estate of his deceased father. Be that as it
may, his testimony that under the will the surviving widow
would take two-thirds of the estate of the late Jose B. Suntay
is at variance with Exhibit B and the testimony of Anastacio
Teodoro. According to the latter, the third for strict legitime is
for the ten children; the third for betterment is for Silvino,
Apolonio, Concepcion and Jose Jr.; and the third for free
disposal is for the surviving widow and her child Silvino.
Hence, granting that there was a will duly executed by Jose B.
Suntay placed in the envelope (Exhibit A) and that it was in
existence at the time of, and not revoked before, his death, still
the testimony of Anastacio Teodoro alone falls short of the
legal requirement that the provisions of the lost will must be
"clearly and distinctly proved by at least two credible
witnesses." Credible witnesses mean competent witnesses
and those who testify to facts from or upon hearsay are neither
competent nor credible witnesses.
On the other hand, Alberto Barretto testifies that in the early
part of 1929 he prepared or drew up two mills for Jose B.
Suntay at the latter's request, the rough draft of the first will
was in his own handwriting, given to Manuel Lopez for the final
draft or typing and returned to him; that after checking up the
final with the rough draft he tore it and returned the final draft
to Manuel Lopez; that this draft was in favor of all the children
and the widow (pp. 392-4, 449, t. s. n., hearing of 21 February
1948); that two months later Jose B. Suntay and Manuel
Lopez called on him and the former asked him to draw up
another will favoring more his wife and child Silvino; that he
had the rough draft of the second will typed (pp. 395, 449 t. s.
n., Id.) and gave it to Manuel Lopez (p. 396, t. s. n., Id.); that
he did not sign as witness the second will of Jose B. Suntay
copied from the typewritten draft [Exhibit B] (p. 420, t. s.
n., Id.); that the handwritten insertions or additions in lead
pencil to Exhibit B are not his (pp. 415-7 435-6, 457, t. s.
n., Id.); that the final draft of the first will made up of four or five
pages (p. 400, t. s. n., Id.) was signed and executed, two or
three months after Suntay and Lopez had called on him (pp.
397-8, 403, 449, t. s. n., Id.) in his office at the Cebu Portland
Cement in the China Banking Building on Dasmariñas street
by Jose B. Suntay, Manuel Lopez and a Chinaman who had all
come from Hagonoy (p. 398, t. s. n., Id.); that on that occasion
they brought an envelope (Exhibit A) where the following
words were written: "Testamento de Jose B. Suntay" (pp. 399,
404, t. s. n., Id.); that after the signing of the will it was placed
inside the envelope (Exhibit A) together with an inventory of
the properties of Jose B. Suntay and the envelope was sealed
by the signatures of the testator and the attesting witnesses
(pp. 398, 401, 441, 443, 461, t. s. n., Id.); that he again saw
the envelope (Exhibit A) in his house one Saturday in the later
part of August 1934, brought by Go Toh and it was then in
perfect condition (pp. 405-6, 411, 440-2, t. s. n., Id.); that on
the following Monday Go Toh went to his law office bringing
along with him the envelope (Exhibit A) in the same condition;
that he told Go Toh that he would charge P25,000 as fee for
probating the will (pp. 406, 440-2, Id.); that Go Toh did not
leave the envelope (Exhibit A) either in his house or in his law
office (p. 407, t. s. n., Id.); that Go Toh said he wanted to keep
it and on no occasion did Go Toh leave it to him (pp. 409, 410,
t. s. n., Id.).
The testimony of Go Toh taken and heard by Assistant Fiscal
F. B. Albert in connection with the complaint for estafa filed
against Manuel Suntay for the alleged snatching of the
envelope (Exhibit A), corroborates the testimony of Alberto
Barretto to the effect that only one will was signed by Jose B.
Suntay at his office in which he (Alberto Barretto), Manuel
Lopez and Go Toh took part as attesting witnesses (p. 15, t. s.
n., Exhibit 6). Go Toh testified before the same assistant fiscal
that he did not leave the will in the hands of Anastacio Teodoro
(p. 26, t. s. n., Exhibit 6). He said, quoting his own words,
"Because I can not give him this envelope even though the
contract (on fees) was signed. I have to bring that document to
court or to anywhere else myself." (p. 27, t. s. n., Exhibit 6).
As to the will claimed to have been executed on 4 January
1931 in Amoy, China, the law on the point in Rule 78. Section
1 of the rule provides:
Wills proved and allowed in a foreign country,
according to the laws of such country, may be allowed,
filed, and recorded by the proper Court of First
Instance in the Philippines.
Section 2 provides:
When a copy of such will and the allowance thereof,
duly authenticated, is filed with a petition for allowance
in the Philippines, by the executor or other person
interested, in the court having jurisdiction, such court
shall fix a time and place for the hearing, and cause
notice thereof to be given as in case of an original will
presented for allowance.
Section 3 provides:
If it appears at the hearing that the will should be
allowed in the Philippines, the court shall so allow it,
and a certificate of its allowance, signed by the Judge,
and attested by the seal of the courts, to which shall be
attached a copy of the will, shall be filed and recorded
by the clerk, and the will shall have the same effect as
if originally proved and allowed in such court.
The fact that the municipal district court of Amoy, China, is a
probate court must be proved. The law of China on procedure
in the probate or allowance of wills must also be proved. The
legal requirements for the execution of a valid will in China in
1931 should also be established by competent evidence.
There is no proof on these points. The unverified answers to
the questions propounded by counsel for the appellant to the
Consul General of the Republic of China set forth in Exhibits
R-1 and R-2, objected to by counsel for the appellee, are
inadmissible, because apart from the fact that the office of
Consul General does not qualify and make the person who
holds it an expert on the Chinese law on procedure in probate
matters, if the same be admitted, the adverse party would be
deprived of his right to confront and cross-examine the
witness. Consuls are appointed to attend to trade matters.
Moreover, it appears that all the proceedings had in the
municipal district court of Amoy were for the purpose of taking
the testimony of two attesting witnesses to the will and that the
order of the municipal district court of Amoy does not purport
to probate the will. In the absence of proof that the municipal
district court of Amoy is a probate court and on the Chinese
law of procedure in probate matters, it may be presumed that
the proceedings in the matter of probating or allowing a will in
the Chinese courts are the a deposition or to a perpetuation of
testimony, and even if it were so it does not measure same as
those provided for in our laws on the subject. It is a
proceedings in rem and for the validity of such proceedings
personal notice or by publication or both to all interested
parties must be made. The interested parties in the case were
known to reside in the Philippines. The evidence shows that
no such notice was received by the interested parties residing
in the Philippines (pp. 474, 476, 481, 503-4, t. s. n., hearing of
24 February 1948). The proceedings had in the municipal
district court of Amoy, China, may be likened toe or come up to
the standard of such proceedings in the Philippines for lack of
notice to all interested parties and the proceedings were held
at the back of such interested parties.
The order of the municipal district court of Amoy, China, which
reads as follows:
ORDER:
SEE BELOW
The above minutes were satisfactorily confirmed by the
interrogated parties, who declare that there are no
errors, after said minutes were loudly read and
announced actually in the court.
Done and subscribed on the Nineteenth day of the
English month of the 35th year of the Republic of China
in the Civil Section of the Municipal District Court of
Amoy, China.
HUANG KUANG CHENG
Clerk of Court
CHIANG TENG HWA
Judge
(Exhibit N-13, p. 89 Folder of Exhibits.).
does not purport to probate or allow the will which was the
subject of the proceedings. In view thereof, the will and the
alleged probate thereof cannot be said to have been done in
accordance with the accepted basic and fundamental
concepts and principles followed in the probate and allowance
of wills. Consequently, the authenticated transcript of
proceedings held in the municipal district court of Amoy, China,
cannot be deemed and accepted as proceedings leading to
the probate or allowance of a will and, therefore, the will
referred to therein cannot be allowed, filed and recorded by a
competent court of this country.
The decree appealed from is affirmed, without pronouncement
as to costs.
Pablo, Bengzon, A. Reyes, Labrador and Concepcion,
JJ., concur.
Separate Opinions
PARAS, C.J., dissenting:
As a preliminary statement we may well refer to the case of
Maria Natividad Lim Billian, petitioner and
appellant, vs.Apolonio Suntay, Angel Suntay, Manuel Suntay,
and Jose Suntay, oppositors and appellees, 63 Phil., 793-797,
in which the following decision was rendered by this Court on
November 25, 1936, holding that the will executed by Jose B.
Suntay who died in the City of Amoy, China, on May 14, 1934,
was lost under the circumstances pointed out therein, and
ordering the return of the case to the Court of First Instance of
Bulacan for further proceedings:
On May 14, 1934, Jose B. Suntay died in the City of
Amoy, China. He married twice, the first time to
Manuela T. Cruz with whom he had several children
now residing in the Philippines, and the second time to
Maria Natividad Lim Billian with whom he had a son.
On the same date, May 14, 1934, Apolonio Suntay,
eldest son of the deceased by his first marriage, filed
the latter's intestate in the Court of First Instance of
Manila (civil case No. 4892).
On October 15, 1934, and in the same court, Maria
Natividad Lim Billian also instituted the present
proceedings for the probate of a will allegedly left by
the deceased.
According to the petitioner, before the deceased died in
China he left with her a sealed envelope (Exhibit A)
containing his will and, also another document (Exhibit
B of the petitioner) said to be a true copy of the original
contained in the envelope. The will in the envelope was
executed in the Philippines, with Messrs. Go Toh,
Alberto Barretto and Manuel Lopez as attesting
witnesses. On August 25, 1934, Go Toh, as attorney-in-
fact of the petitioner, arrived in the Philippines with the
will in the envelope and its copy Exhibit B. While Go
Toh was showing this envelope to Apolonio Suntay and
Angel Suntay, children by first marriage of the
deceased, they snatched and opened it and, after
getting its contents and throwing away the envelope,
they fled.
Upon this allegation, the petitioner asks in this case
that the brothers Apolonio, Angel, Manuel and Jose
Suntay, children by the first marriage of the deceased,
who allegedly have the document contained in the
envelope which is the will of the deceased, be ordered
to present it in court, that a day be set for the reception
of evidence on the will, and that the petitioner be
appointed executrix pursuant to the designation made
by the deceased in the will.
In answer to the court's order to present the alleged
will, the brothers Apolonio, Angel, Manuel and Jose
Suntay stated that they did not have the said will and
denied having snatched it from Go Toh.
In view of the allegations of the petition and the answer
of the brothers Apolonio, Angel, Manuel and Jose
Suntay, the questions raised herein are: The loss of the
alleged will of the deceased, whether Exhibit B
accompanying the petition is an authentic copy thereof,
and whether it has been executed with all the essential
and necessary formalities required by law for its
probate.
At the trial of the case on March 26, 1934, the
petitioner put two witnesses upon the stand, Go Toh
and Tan Boon Chong, who corroborated the allegation
that the brothers Apolonio and Angel appropriated the
envelope in the circumstances above-mentioned. The
oppositors have not adduced any evidence counter to
the testimony of these two witnesses. The court, while
making no express finding on this fact, took it for
granted in its decision; but it dismissed the petition
believing that the evidence is insufficient to establish
that the envelope seized from Go Toh contained the
will of the deceased, and that the said will was
executed with all the essential and necessary
formalities required by law for its probate.
In our opinion, the evidence is sufficient to establish the
loss of the document contained in the envelope.
Oppositors' answer admits that, according to Barretto,
he prepared a will of the deceased to which he later
become a witness together with Go Toh and Manuel
Lopez, and that this will was placed in an envelope
which was signed by the deceased and by the
instrumental witnesses. In court there was presented
and attached to the case an open and empty envelope
signed by Jose B. Suntay, Alberto Barretto, Go Toh and
Manuel Lopez. It is thus undeniable that this envelope
Exhibit A is the same one that contained the will
executed by the deceased-drafted by Barretto and with
the latter, Go Toh and Manuel Lopez as attesting
witnesses. These tokens sufficiently point to the loss of
the will of the deceased, a circumstance justifying the
presentation of secondary evidence of its contents and
of whether it was executed with all the essential and
necessary legal formalities.
The trial of this case was limited to the proof of loss of
the will, and from what has taken place we deduce that
it was not petitioner's intention to raise, upon the
evidence adduced by her, the other points involved
herein, namely, as we have heretofore indicated,
whether Exhibit B is a true copy of the will and whether
the latter was executed with all the formalities required
by law for its probate. The testimony of Alberto Barretto
bears importantly in this connection.
Wherefore, the loss of the will executed by the
deceased having been sufficiently established, it is
ordered that this case be remanded to the court of
origin for further proceedings in obedience to this
decision, without any pronouncement as to the costs.
So ordered
On June 18, 1947, Silvino Suntay, the herein petitioner, filed a
petition in the Court of First Instance of Bulacan praying "that
an order be issued (a) either directing the continuation of the
proceedings in the case remanded by the Supreme Court by
virtue of its decision in G. R. No. 44276 and fixing a date for
the reception of evidence of the contents of the will declared
lost, or the allowance, filing and recording of the will of the
deceased which had been duly probated in China, upon the
presentation of the certificates and authentications required by
Section 41, Rule 123 (Yu Chengco vs. Tiaoqui supra), or both
proceedings concurrently and simultaneously; (b) that letters
of administration be issued to herein petitioner as co-
administrator of the estate of the deceased together with
Federico Suntay; and (c) that such other necessary and proper
orders be issued which this Honorable Court deems
appropriate in the premises." While this petition was opposed
by Federico C. Suntay, son of the deceased Jose B. Suntay
with his first wife, Manuela T. Cruz, the other children of the
first marriage, namely, Ana Suntay, Aurora Suntay, Concepcion
Suntay, Lourdes Guevara Vda. de Suntay, Manuel Suntay and
Emiliano Suntay, filed the following answer stating that they
had no opposition thereto; "Come now the heirs Concepcion
Suntay, Ana Suntay, Aurora Suntay, Lourdes Guevara Vda. de
Suntay, Manuel Suntay, and Emiliano Suntay, through their
undersigned attorney, and, in answer to the alternative petition
filed in these proceedings by Silvino Suntay, through counsel,
dated June 18, 1947, to this Honorable Court respectfully state
that, since said alternative petition seeks only to put into effect
the testamentary disposition and wishes of their late father,
they have no opposition thereto."
After hearing, the Court of First Instance of Bulacan rendered
on April 19, 1948, the following decision:
This action is for the legalization of the alleged will of
Jose B. Suntay, deceased.
In order to have a comprehensive understanding of this
case, it is necessary to state the background on which
the alternative petition of the herein petitioner Silvino
Suntay has been based.
The decision of the Supreme Court (Exhibit O), in re
will of the deceased Jose B. Suntay, 63 Phil., 793-797,
is hereunder produced:
(As quoted above)
The above quoted decision of the Supreme Court was
promulgated on November 25, 1936 (Exhibit O).
The Clerk of the Court of Court of First Instance of
Bulacan notified the parties of the decision on
December 15, 1936; and the case was set for hearing
on February 12, 1937, but it was transferred to March
29, 1937 (Exhibit O), on motion of the then petitioner
Maria Natividad Lim Billian (Exhibit F). Again, it was
postponed until "further setting" in the order of court
dated March 18, 1937, upon motion of the petitioner
(Exhibit H).
In the meantime, the deposition of Go Toh was being
sought (Exhibit H).
The hearing of the case was again set for February 7,
1936, by order of the court dated January 5, 1938,
upon motion of Emiliano Suntay and Jose Suntay, Jr.
On the same day of the hearing which had been set,
the petitioner, then, Maria Natividad Lim Billian, sent a
telegram from Amoy, China, addressed to the Court of
First Instance of Bulacan moving for the postponement
of the hearing on the ground that Atty. Eriberto de Silva
who was representing her died (Exhibit K). The court,
instead of granting the telegraphic motion for
postponement, dismissed the case in the order dated
February 7, 1938 (Exhibit L).
On July 3, 1947, the petitioner Silvino Suntay filed a
motion for the consolidation of the intestate Estate of
the deceased Jose B. Suntay, Special Proceeding No.
4892 and the Testate Estate of Jose B. Suntay, Special
Proceeding No. 4952, which latter case is the subject
of the said alternative petition. The motion for the
merger and consolidation of the two cases was granted
on July 3, 1947.
That oppositor, Federico C. Suntay, in the Testate
Proceeding filed a motion to dismiss the alternative
petition on November 14, 1947, which was denied by
the court in its resolution of November 22, 1947. The
said oppositor not being satisfied with the ruling of this
court denying the motion to dismiss, filed before the
Supreme Court a petition for a writ of certiorari with
preliminary injunction, which was dismissed for lack of
merit on January 27, 1948.
In obedience to the decision of the Supreme Court
(Exhibit O) and upon the alternative petition of Silvino
Suntay, and, further, upon the dismissal of the petition
for a writ of certiorari with preliminary injunction, the
court was constrained to proceed with the hearing of
the probate of the lost will, the draft of which is Exhibit
B, or the admission and recording of the will which had
been probated in Amoy, China.
The evidence for the petitioner, Silvino Suntay, shows
that Jose B. Suntay married twice; first to Manuela T.
Cruz who died on June 15, 1920 and had begotten with
her Apolonio, now deceased, Concepcion, Angel,
Manuel, Federico, Ana, Aurora, Emiliano and Jose, Jr.,
all surnamed Suntay, and second, to Maria Natividad
Lim Billian with whom he had as the only child Silvino
Suntay, the petitioner herein.
Some time in November 1929, Jose B. Suntay
executed his last will and testament in the office of Atty.
Alberto Barretto in Manila, which was witnessed by
Alberto Barretto, Manuel Lopez and Go Toh. The will
was prepared by said Alberto Barretto upon the
instance of Jose B. Suntay, and it was written in the
Spanish language which was understood and spoken
by said testator. After the due execution of the will, that
is signing every page and the attestation clause by the
testator and the witnesses in the presence of each
other, the will was placed inside the envelope (Exhibit
A), sealed and on the said envelope the testator and
the three subscribing witnesses also signed, after
which it was delivered to Jose B. Suntay.
A year or so after the execution of the will, Jose B.
Suntay together with his second wife Maria Natividad
Lim Billian and Silvino Suntay who was then of tender
age went to reside in Amoy, Fookien, China, where he
died on May 14, 1934. The will was entrusted to the
widow, Maria Natividad Lim Billian.
Upon the death of Jose B. Suntay on May 14, 1934,
Apolonio Suntay, the oldest son now deceased,
instituted the Intestate Proceedings No. 4892, upon the
presumption that no will existed. Maria Natividad Lim
Billian who remained in Amoy, China, had with her the
will and she engaged the services of the law firm of
Barretto and Teodoro for the probate of the will. Upon
the request of the said attorneys the will was brought to
the Philippines by Go Toh who was one of the attesting
witnesses, and it was taken to the law office of Barretto
and Teodoro. The law firm of Barretto and Teodoro was
composed of Atty. Alberto Barretto and Judge
Anastacio Teodoro. The probate of the will was
entrusted to the junior partner Judge Anastacio
Teodoro; and, upon the presentation of the sealed
envelope to him, he opened it and examined the said
will preparatory to the filing of the petition for probate.
There was a disagreement as to the fees to be paid by
Maria Natividad Lim Billian, and as she (through Go
Toh) could not agree to pay, P20,000 as fees, the will
was returned to Go Toh by Judge Anastacio Teodoro
after the latter had kept it in his safe, in his office, for
three days.
Subsequently, the will inside the envelope was
snatched from Go Toh by Manuel Suntay and Jose, Jr.,
which fact has been established in the decision of the
Supreme Court at the beginning of this decision. Go
Toh could recover the envelope (Exhibit A) and the
piece of cloth with which the envelope was wrapped
(Exhibit C).
The Testate Proceeding was filed nevertheless and in
lien of the lost will a draft of the will (Exhibit B) was
presented as secondary evidence for probate. It was
disallowed by this court through Judge Buenaventura
Ocampo, but on appeal the Supreme Court remanded
the case to this court for further proceeding (Exhibit C).
In the meantime, a Chinese will which was executed in
Amoy Fookien, China, on January 4, 1931, by Jose B.
Suntay, written in Chinese characters (Exhibit P) was
discovered in Amoy, China, among the papers left by
Jose B. Suntay, and said will had been allowed to
probate in the Amoy District Court, China, which is
being also presented by Silvino Suntay for allowance
and recording in this court.
The said petition is opposed by Federico C. Suntay on
the main ground that Maria Natividad Lim Billian and
Silvino Suntay have no more interest in the properties
left by Jose B. Suntay, because they have already sold
their respective shares, interests and participations.
But such a ground of opposition is not of moment in the
instant case, because the proposition involved herein
in the legalization of the lost will or the allowance and
recording of the will which had been probated in Amoy,
China.
It is now incumbent upon this court to delve into the
evidence whether or not Jose B. Suntay, deceased, left
a will (the draft of which is Exhibit B) and another will
which was executed and another will which was
executed and probated in Amoy, China.
There is no longer any doubt that Jose B. Suntay while
he was still residing in the Philippines, had executed a
will; such is the conclusion of the Supreme Court in its
decision (Exhibit O). That the will was snatched and it
has never been produced in court by those who
snatched it, and consequently considered lost, is also
an established fact.
The contention of the oppositor, Federico C. Suntay, is
that the will that was executed by Jose B. Suntay in the
Philippines contained provisions which provided for
equal distribution of the properties among the heirs;
hence, the draft (Exhibit B) cannot be considered as
secondary evidence, because it does not provide for
equal distribution, but if favors Maria Natividad Lim
Billian and Silvino Suntay. He relies on the testimony of
Atty. Alberto Barretto who declared that the first will
which he drafted and reduced into a plain copy was the
will that was executed by Jose B. Suntay and placed
inside the envelope (Exhibit A).
Granting that the first will which Atty. Alberto Barretto
had drafted became the will of Jose B. Suntay and it
was snatched by, and, therefore, it had fallen into the
hands of, Manuel Suntay and the brothers of the first
marriage, it stands to reason that said Manuel Suntay
and brothers would have been primarily interested in
the production of said will in court, for obvious reasons,
namely, that they would have been favored. But it was
suppressed and "evidence willfully suppressed would
be adverse if produced" (Section 69 (e), Rule 123 of
the Rules of Court). The contention, therefore, that the
first will which was drafted by Atty. Barretto was the
one placed inside the envelope (Exhibit A) is
untenable.
It might be said in this connection that the draft of the
will (Exhibit B) has been admitted by Atty. Alberto
Barretto as identical in substance and form to the
second draft which he prepared in typewriting; it differs
only, according to him, in style. He denied that the
insertions in long hand in the said draft are in his own
handwriting; however, Judge Anastacio Teodoro
averred that the said insertions are the handwriting of
Atty. Alberto Barretto. But when Atty. Alberto Barretto
was asked to show any manuscript of his for purposes
of comparison, he declined to do so alleging that he did
not have any document in his possession showing his
handwriting notwithstanding the fact that he was
testifying in his own house at 188 Sta. Mesa
Boulevard, Manila. He further testified that the first will
be drafted contained four or five pages, but the second
draft contained twenty-three pages; that he declared in
one breath that he did not read the will any more when
it was signed by the testator and the attesting
witnesses because it would take up much time, and in
the same breath he declared that he checked it before
it was signed; and that he destroyed the draft of the
first will which was in his own handwriting, but he
delivered the draft of the second will which he prepared
to Jose B. Suntay in the presence of Manuel Lopez,
now deceased.
Whether or not the final plain copy of the draft of the
will (Exhibit B) was executed by the testator, Jose B.
Suntay, and attested by the subscribing witnesses, Atty.
Alberto Barretto, Manuel Lopez and Go Toh, is the
pivotal point in this instant case. Judge Anastacio
Teodoro testified that he opened the sealed envelope
when it was given to him by Go Toh preparatory to the
presentation of the petition for the probate of the said
will. As the lawyer entrusted with that task, he had to
examine the will and have it copied to be reproduced or
appended to the petition. He could not do otherwise if
he is worth salt as a good lawyer; he could not perform
the stunt of "blind flying" in the judicial firmament.
Every step must be taken with certainty and precision
under any circumstances. He could not have talked
about the attorney's fees with Go Toh, unless he has
not examined the will beforehand. And, declaring that it
was the exact draft of the will that was inside the
envelope (Exhibit A), the testimony of Atty. Alberto
Barretto to the contrary notwithstanding.
The testimony of Judge Anastacio Teodoro is
corroborated by Go Toh, one of the attesting witnesses,
in his deposition (Exhibit D-1).
Ana Suntay, one of the heirs and who would be
affected adversely by the legalization of the will in
question, also testified on rebuttal that she saw the
original will in the possession of Manuel Suntay,
immediately after the snatching. She read it and she
particularly remembers the manner in which the
properties were to be distributed. Exhibit B was shown
to her on the witness stand and she declared that the
provision regarding the distribution of the properties in
said Exhibit B is the same as that contained in the
original will. Said testimony of Ana Suntay, therefore,
belies the testimony of Atty. Alberto Barretto.
With respect to the proof of lost or destroyed will,
Section 6 of Rule 77 provides as follows:
"No will shall be proved as a lost or destroyed will
unless the execution and validity of the same be
established, and the will is proved to have been in
existence at the time of the death of the testator, or it is
shown to have been fraudulently or accidentally
destroyed in the lifetime of the testator without his
knowledge, nor unless its provisions are clearly and
distinctly proved by at least two credible witnesses.
When a lost will is proved, the provisions thereof must
be distinctly stated and certified by the judge, under the
seal of the court, and the certificate must be filed and
recorded as other wills are filed and recorded."
Section 8 of the same Rule provides as follows:
"If it appears at the time fixed for the hearing that the
subscribing witnesses are dead or insane, or that none
of them resides in the Philippines the court may admit
the testimony of other witnesses to prove the sanity of
the testator, and the due execution of the will; and as
evidence of the due execution of the will, it may admit
proof of the handwriting of the testator and of the
subscribing witnesses, or any of them."
Manuel Lopez as one of the subscribing witnesses is
dead. Atty. Alberto Barretto and Go Toh are still living.
The former testified during the hearing, while Go Toh's
deposition was introduced in evidence which was
admitted. In the absence of the testimony of Manuel
Lopez, deceased, the testimony of Judge Anastacio
Teodoro and Ana Suntay was received.
It is an established fact that the will, draft of which is
Exhibit B, was lost or destroyed; that it was executed
and valid and that it existed at the time of the death of
Jose B. Suntay. These circumstances also apply to the
will (Exhibit P) which was executed in Amoy, China.
The contents of the Chinese will is substantially the
same as the draft (Exhibit B). Granting that the will
executed in the Philippines is non-existent as
contended by the oppositor, although the findings of
this court is otherwise, the will executed and probated
in China should be allowed and recorded in this court.
All the formalities of the law in China had been followed
in its execution, on account of which it was duly
probated in the Amoy District Court. There is no cogent
reason, therefore, why it should not be admitted and
recorded in this jurisdiction.
The said will (Exhibit P) in Chinese characters is
presented as an alternate in case the will executed in
the Philippines would not be allowed to probate, or as a
corroborative evidence that the will, the draft of which
is Exhibit B, has been duly executed in the Philippines
by Jose B. Suntay.
Rule 78 of the Rules of Court covers the allowance of
will proved outside of the Philippines and
administration of estate thereunder.
Section 1 of said rule provides:
"Wills proved and allowed in the United States, or any
state or territory thereof, or in foreign country,
according to the laws of such state, territory, or country,
may be allowed, filed, and recorded by the proper
Court of First Instance in the Philippines."
Section 2 of the same rule provides:
"When a copy of such will and the allowance thereof,
duly authenticated, is filed with a petition for allowance
in the Philippines, by the executor or other person
interested, in the court having jurisdiction, such court
shall fix a time and place for the hearing, and cause
notice thereof to be given as in case of an original will
presented for allowance."
This court has delved deep into the evidence adduced
during the hearing with that penetrating scrutiny in
order to discovery the real facts; it had used
unsparingly the judicial scapel; and it has winnowed
the evidenced to separate the grain from the chaff. All
the facts lead to the inevitable conclusion that Jose B.
Suntay, in his sound and disposing mind and not acting
under duress or undue influence, executed the will
which is lost, the draft of which is Exhibit B, with all the
necessary formalities prescribed by law. He, likewise,
executed the second will (Exhibit P) in Amoy, China,
which has been duly probated in Amoy District Court,-a
corroborative evidence that the testator really executed
the will. Copies of the said wills duly certified and under
 the seal of the court are appended hereto, marked
Exhibits B and P, and they form part of this decision.
In view of the foregoing considerations, the court is of
the opinion and so declares that the draft of the will
(Exhibit B) is, to all legal intents and purposes, and
testament of the deceased Jose B. Suntay. With costs
against the oppositor, Federico C. Suntay.
Oppositor Federico C. Suntay filed on May 20, 1948, a motion
for new trial and to set aside the decision rendered on April 19,
1948, to which the petitioner filed an opposition, followed by a
reply filed by the oppositor and an answer on the part of the
petitioner. Without reopening the case and receiving any new
or additional evidence, the Court of First Instance of Bulacan,
on September 29, 1948, promulgated the following resolution
setting aside his first decision and disallowing the wills sought
to be probated by the petitioner in his alternative petition filed
on June 18, 1947:
This is a motion for new trial and to set aside the
decision legalizing the will of Jose B. Suntay and
allowing and recording another will executed by him in
Amoy, China.
By virtue of this motion, this court is constrained to go
over the evidence and the law applicable thereto with
the view of ascertaining whether or not the motion is
well founded. Both parties have presented extensive
memoranda in support of their respective contentions.
This court has gone over the evidence conscientiously,
and it reiterates its findings of the same facts in this
resolution, whether or not the facts established by the
petitioner, Silvino Suntay, warrant the legalization of the
lost will and the allowance and recording of the will that
was executed in Amoy, China, is therefore, the subject
of this instant motion.
A. As to the legalization of the Lost Will. — There is no
question in the mind of this court that the original will
which Jose B. Suntay, deceased executed in the
Philippines in the year 1929 was lost (Exhibit O,
Decision of the Supreme Court). The evidence
adduced by the petitioner during the hearing has
established through the testimony of Judge Anastacio
Teodoro and that of Go Toh (an attesting witness) that
the will was executed by Jose B. Suntay, deceased,
with all the formalities required by law. For the purpose
of legalizing an original and existing will, the evidence
on record is sufficient as to the execution and attesting
in the manner required by law.
Section 8 of Rule 77 provides as follows:
"SEC. 8. Proof when witnesses dead or insane or do
not reside in the Philippines. — If it appears at the time
fixed for the hearing that the subscribing witnesses are
dead or insane, or that none of them resides in the
Philippines, the court may admit the testimony of other
witnesses to prove the sanity of the testator, and the
due execution of the will; and as evidence of the
execution of the will, may admit proof of the
handwriting of the testator and of the subscribing
witnesses, or any of them."
Section 11 of said rule also provides as follows:
"SEC. 11. Subscribing witnesses produced or
accounted for where contest. — If the will is contested,
all the subscribing witnesses present in the Philippines
and not insane, must be produced and examined, and
the death, absence, or insanity of any of them must be
satisfactorily shown to the court. If all or some of the
subscribing witnesses are present in the Philippines,
but outside the province where the will has been filed,
their deposition must be taken. If all or some of the
subscribing witnesses produced and examined testify
against the due execution of the will, or do not
remember having attested to it, or are otherwise of
doubtful credibility, the will may be allowed if the court
is satisfied from the testimony of other witnesses and
from all the evidence presented that the will was
executed and attested in the manner required by law."
The three attesting witnesses were Manuel Lopez,
deceased Alberto Barretto and Go Toh. The last two
witnesses are still living; the former testified against
and the latter in favor. In other words, the attesting
witness, Go Toh, only, testified in his deposition in favor
of the due execution of the will. Hence, the petitioner
presented another witness, Judge Anastacio Teodoro,
to establish and prove the due execution of the said
will. Ana Suntay was also presented as a witness in
rebuttal evidence. The testimony of Go Toh in his
deposition as an attesting witness, coupled with the
testimony of Judge Anastacio Teodoro who was able to
examine the original will that was executed by Jose B.
Suntay, deceased, when it was given to him by Go Toh
for the purpose of filing the petition in court for its
legalization, and could recognize the signatures of the
testator as well as of the three attesting witnesses on
the said original will is sufficient to convince the court
that the original will was executed by the deceased
Jose B. Suntay with all the formalities required by law.
The original will, therefore, if it was presented in court
to probate would be allowed to all legal intents and
purposes. But it was not the original will that was
presented, because it was lost, but an alleged draft
(Exhibit B) of the said original will which does not bear
the signature of the testator and any of the attesting
witness. The original will was duly executed with all the
formalities required by law, but it was unfortunately lost;
and the curtain falls for the next setting.
The Court is now confronted with the legalization of the
lost will — whether or not the draft (Exhibit B) should
be admitted as secondary evidence in lieu of the lost
will and allowed to probate.
Section 6. Rule 77 provides as follows:
"SEC. 6. Proof of lost or destroyed will — Certificate
thereupon. — No will shall be proved as a lost will or
destroyed will unless the execution and validity of the
same be established, and the will is proved to have
been in existence at the time of the death of the
testator, or is shown to have been fraudulently or
accidentally destroyed in the lifetime of the testator
without his knowledge, nor unless its provisions are
clearly and distinctly proved by at least two credible
witnesses. When a lost will is proved, the provisions
thereof must be distinctly stated and certified by the
Judge, under the seal of the court and the certificate
must be filed and recorded as other wills are filed and
recorded." (Emphasis Court's)
From the above quoted provision of the law, it is clear
that the petitioner should not only establish the
execution and validity of the will, its existence at the
time of the death of the testator or its fraudulent and
accidental destruction in the lifetime of the testator
without his knowledge, but also must prove its
provisions clearly and distinctly by at least two credible
witnesses. The exact language of the clause in the
above quoted provision of the law is "nor unless its
provisions are clearly and distinctly proved by at least
two credible witnesses." The legalization of a lost will is
not so easy, therefore, as that of an original will. The
question, therefore, is boiled down to, and projected on
the screen, in a very sharp focus; namely, the
execution and validity must be established and the
provisions must be clearly and distinctly proved by at
least credible witnesses.
Granting that the execution and validity of the lost will
have been established through the testimony of Judge
Anastacio Teodoro and Go Toh, and perhaps
superficially by the rebuttal witness, Ana Suntay, does
it follow that the provisions of the lost will have been
clearly and distinctly proved by at least two credible
witnesses? A careful review of the evidence has
revealed that at most the only credible witness who
testified as to the provisions of the will was Judge
Anastacio Teodoro, and yet he testified on the
provisions of the lost will with the draft (Exhibit B) in his
hands while testifying. It may be granted, however, that
with or without the draft of the will (Exhibit B) in his
hands, he could have testified clearly and distinctly on
the provisions of the said lost will, because he had kept
the will in his safe, in his office, for three days, after
opening it, and he is well versed in Spanish language
in which the will as written. But did the attesting witness
Go Toh, testify in his deposition and prove clearly and
distinctly the provisions of the lost will? He did not, and
he could not have done so even if he tried because the
original will was not read to him nor by him before or at
the signing of the same. It was written in Spanish and
he did not and does not understand the Spanish
language. Neither was there any occasion for him to
have the contents of the said will, after its execution
and sealing inside the envelope (Exhibit A), read to him
because it was opened only when Judge Teodoro had
examined it and then subsequently snatched from Go
Toh. Ana Suntay on rebuttal did not, likewise, prove
clearly and distinctly the provisions of the said lost will
because she has not had enough schooling and she
does possess adequate knowledge of the Spanish
language as shown by the fact that she had to testify in
Tagalog on the witness standing.
It is evident, therefore, that although the petitioner has
established the execution and validity of the lost will,
yet he had not proved clearly and distinctly the
provisions of the will by at least two credible witnesses.
B. As to the Allowance and Recording of the will
Executed in Amoy, China. — Jose B. Suntay, while he
was residing in China during the remaining years of his
life, executed also a will, written in Chinese characters,
the translation of which is marked Exhibit P. It was
allowed to probate in the District Court of Amoy, China.
The question is whether or not the said will should be
allowed and recorded in this jurisdiction.
Section 1 of Rule 78 provides as follows:
"SEC. 1. Will proved outside Philippines any be
allowed here. — Will proved and allowed in the United
States, or any state or territory thereof, or in a foreign
country, according to the laws of such state, territory, or
country, may be allowed, filed, and recorded by the
proper court of First Instance in the Philippines."
Section 2 of the same Rule also provides:
"SEC. 2. Notice of hearing for allowance. — When a
copy of such will and the allowance thereof, duly
authenticated, is filed with a petition for allowance in
the Philippines by the executor or other persons
interested, in the Court having jurisdiction, such court
shall fix a time and place for the hearing, and cause
notice thereof to be given as in case of an original will
presented for allowance."
Sections 41 and 42 of Rule 123 provides as follows:
"SEC. 41. Proof of Public or official record. — An
official record or an entry therein, when admissible for
any purpose, may be evidenced by an official
publication thereof or by a copy attested by the officer
having the legal custody of the record, or by his deputy,
and accompanied, if the record is not kept in the
Philippines, with a certificate that such officer has the
custody. If the office in which the record is kept is within
the United States or its territory, the certificate may be
made by a judge of a court of record of the district or
political subdivision in which the record is kept,
authenticated by the seal of the court, or may be made
by any public officer having a seal of the office and
having official duties in the district or political
subdivision in which the record is kept, authenticated
by the seal of his office. If the office in which the record
is kept is in a foreign country, the certificate may be
made by a secretary of embassy or legation, consul
general, consul, vice consul, or consular agent or by
any officer in the foreign service of the United States
stationed in the foreign country in which the record is
kept, and authenticated by the seal of his office."
F. "SEC. 42. What attestation of copy must state. —
Whenever a copy of writing is attested for the purpose
of evidence, the attestation must state, in substance,
that the copy is a correct copy of the original, or a
specific part thereof, as the case may be. The
attestation must be under the official seal of the
attesting officer, if there be any, or if he be the clerk of a
court having a seal, under the seal of such court."
In the case of Yu Changco vs. Tiaoqui, 11 Phil. 598,
599, 600, our Supreme Court said:
"Section 637 of the Code of Civil Procedure says that
will proved and allowed in a foreign country, according
to the laws of such country, may be allowed, filed, and
recorded in the Court of First Instance of the province
in which the testator has real or personal estate on
which such will may operate; but section 638 requires
that the proof of the authenticity of a will executed in a
foreign country must be duly "authenticated". Such
authentication, considered as a foreign judicial record,
is prescribed by section 304, which requires the
attestation of the clerk or of the legal keeper of the
records with the seal of the court annexed, if there be a
seal, together with a certificate of the chief judge or
presiding magistrate that the signature of either of the
functionaries attesting the will is genuine, and, finally,
the certification of the authenticity of the signature of
such judge or presiding magistrate, by the
ambassador, minister, consul, vice consul or consular
agent of the United States in such foreign country. And,
should the will be considered, from an administrative
point of view, as a mere official document 'of a foreign
country', it may be proved, 'by the original, or by a copy
certified by the legal keeper thereof, with a certificate,
under the seal of the country or sovereign, that the
document is a valid and subsisting document of such
country, and that the copy is duly certified by the officer
having the legal custody of the original. (Sec. 313, par.
8)."
In the case of Fluemer vs. Hix, 54 Phil. 610, 611, 612,
and 613, our Supreme Court said:
"It is the theory of the petitioner that the alleged will
was executed in Elkins, West Virginia, on November 3,
1925, by Hix who had his residence in that jurisdiction,
and that the laws of West Virginia govern. To this end,
there was submitted a copy of section 3868 of Acts
1882, c. 84 as found in West Virginia Code, Annotated,
by Hogg, Charles E., Vol. 2, 1914, p. 1690, and as
certified to by the Director of the National Library. But
this was far from compliance with the law. The laws of
a foreign jurisdiction do not prove themselves in our
courts. The courts of the Philippine Islands are not
authorized to take judicial notice of the laws of the
various States of the American Union. Such laws must
be proved as facts. (In re Estate of Johnson (1918), 39
Phil., 156.) Here the requirements of the law were not
met. There was not showing that the book from which
an extract was taken was printed or published under
the authority of the State of West Virginia, as provided
in section 300 of the Code of Civil Procedure. Nor was
the extract from the law attested by the certificate of
the officer having charge of the original under the seal
of the State of West Virginia, as provided in section 301
of the Code of Civil Procedure. No evidence was
introduced to show that the extract from the laws of
West Virginia was in force at the time the alleged will
was executed.
"It was also necessary for the petitioner to prove that
the testator had his domicile in West Virginia and not in
the Philippine Islands. The only evidence introduced to
establish this fact consisted of the recitals in the
alleged will and the testimony of the petitioner.
"While the appeal was pending submission in this
court, the attorney for the appellant presented an
unverified petition asking the court to accept as part of
the evidence the documents attached to the petition.
One of these documents discloses that a paper writing
purporting to be the last will and testament of Edward
Randolph Hix, deceased, was presented for probate on
June 8, 1929, to the clerk of Randolph County, State of
West Virginia, in vacation, and was duly proven by the
oaths of Dana Vansley and Joseph L. Madden, the
subscribing witnesses thereto, and ordered to be
recorded and filed. It was shown by another document
that in vacation, on June 8, 1929, the clerk of court of
Randolph County, West Virginia, appointed Claude E.
Maxwell as administrator, cum testamento annexo, of
the estate of Edward Randolph Hix, deceased ...
However this may be no attempt has been made to
comply with the provisions of sections 637, 638, and
639 of the Code of Civil Procedure, for no hearing on
the question of the allowance of a will said to have
been proved and allowed in West Virginia has been
requested. ... ."
Granting that the will of Jose B. Suntay which was
executed in Amoy, China, was validly done in
accordance with the law of the Republic of China on
the matter, is it necessary to prove in this jurisdiction
the existence of such law in China as a prerequisite to
the allowance and recording of said will? The answer is
in the affirmative as enunciated in
Fluemer vs. Hix, supra, and in Yanez de
Barnuevo vs. Fuster, 29 Phil., 606. In the latter case,
the Supreme Court said:
"A foreign law may be proved by the certificate of the
officer having in charge of the original, under the seal
of the state or country. It may also be proved by an
official copy of the same published under the authority
of the particular state and purporting to contain such
law. (Secs. 300 and 301, Act No. 190.), (Syllabus.)
The provisions of section 300 and 301 of the Code of
Civil Procedure (Act No. 190) are as follows:
"SEC. 300. Printed laws of the State or Country. —
Books printed or published under the authority of the
United States, or one of the States of the United
States, or a foreign country, and purporting to contain
statutes, codes, or other written law of such State or
country or proved to be commonly admitted in the
tribunals of such State or country an evidence of the
written law thereof, are admissible in the Philippine
Islands are evidence of such law."
"SEC. 301. Attested copy of foreign laws. — A copy of
the written law or other public writing of any state or
country, attested by the certificate of the officer having
charge of the original, under the seal of the state or
country, is admissible as evidence of such law or
writing."
The petitioner has presented in evidence the
certification of the Chinese Consul General, Tsutseng
T. Shen, of the existence of the law in China (Exhibit B-
3), relative to the execution and probate of the will
executed by Jose B. Suntay in Amoy, China (Exhibit P).
Is that evidence admissible, in view of the provisions of
Sections 41 and 42 of the Rules of the Rules of Court.
Is the said certification of the Chinese Consul General
in the Philippines a substantial compliance with the
provisions of the above mentioned section 41 and 42 of
our Rules of Court?
This court has its doubts as to the admissibility in
evidence of the Chinese Consul General in the
Philippines of the existence of the laws of Republic of
China relative to the execution and probate of a will
executed in China. Such law may exist in China, but —
"An official record or an entry therein, when admissible
for any purpose, may be evidence by an official
publication thereof or by a copy attested by the officer
having the legal custody of the record, or by his deputy,
and accompanied, if the record is not kept in the
Philippines, with a certificate that such officer has the
custody. ... If the office in which the record is kept is in
a foreign country, the certificate may be made by a
secretary of embassy or legation, consul general,
consul, vice consul, or consular agent or by any officer
in the foreign service of the United States stationed in
the foreign country in which the record is kept, and
authenticated by the seal of his office." (Sec. 41 of Rule
123.)
The law of the Republic of China is a public or official
record and it must be proved in this jurisdiction through
the means prescribed by our Rules of Court. It is,
therefore, obvious that the Chinese Counsel General in
the Philippines who certified as to the existence of such
law is not the officer having the legal custody of the
record, nor is he a deputy of such officer. And, if the
office in which the record is kept is in a foreign country,
the certificate may be made by a secretary of embassy
or legation, consul general, consul, vice consul, or
consular agent or by any officer in the foreign service
of the United States stationed in the foreign country in
which the record is kept, and authenticated by the seal
of his office.
It is clear, therefore, that the above provisions of the
Rules of Court (Rule 123, sec. 41) not having been
complied with, the doubt of this court has been
dissipated, and it is of the opinion and so holds that the
certification of the Chinese Consul General alone is not
admissible as evidence in the jurisdiction.
The evidence of record is not clear as to whether Jose
B. Suntay, who was born in China, but resided in the
Philippines for a long time, has become a Filipino
citizen by naturalization, or he remained a citizen of the
Republic of China. The record does not, likewise, show
with certainty whether or not he had changed his
permanent domicile from the Philippines to Amoy,
China. His change of permanent domicile could only be
inferred. But the question of his permanent domicile
pales into insignificance in view of the overtowering
fact that the law of China pertinent to the allowance
and recording of the said will in this jurisdiction has
been satisfactorily established by the petitioner.
Both the petitioner and the oppositor have extensively
urged in their respective memorandum and in the oral
argument in behalf of the oppositor the question of
estoppel. The consideration of the points raised by
them would open the door to the appreciation of the
intrinsic validity of the provisions of the will which is not
of moment at the present stage of the proceeding.
While the probate of a will is conclusive as to the
compliance with all formal requisites necessary to the
lawful execution of the will, such probate does not
affect the intrinsic validity of the provisions of the will.
With respect to the latter the will in governed by the
substantive law relative to descent and distribution. (In
re Johnson, 39 Phil., 157).
IN VIEW OF THE FOREGOING, and upon
reconsideration, the previous decision rendered in this
case allowing the will (Exhibit B) and allowing and
recording the foreign will (Exhibit P) is set aside; and
this court is of the opinion and so holds that the said
two wills should be, as they are hereby disallowed.
Without special pronouncement as to costs.
It is very significant that in the foregoing resolution, the Court
of First Instance of Bulacan "reiterates its finding of the same
facts in this resolution," and merely proceeds to pose the sole
question "whether or not the facts established by the petitioner,
Silvino Suntay, warrant the legalization of the lost will and
allowance and recording of the will that was executed in Amoy,
China." The somersault executed by the trial court is premised
on the ground that "although the petitioner has established the
execution and validity of the lost will, yet he has not proved
clearly and distinctly the provisions of the will by the least two
credible witnesses"; and that, assuming that the will of Jose B.
Suntay executed in Amoy, China, was in accordance with the
law of the Republic of China, the certification of the Chinese
Consul General in the Philippines as the existence of such law
is not admissible evidence in this jurisdiction. In effect the
resolution on the motion for reconsideration promulgated by
the trial court, and the decision of the majority herein, adopt
the position that the testimony of Judge Anastacio Teodoro as
to the provisions of the lost will, while credible and perhaps
sufficient in extent, is not corroborated by the witnesses Go
Toh and Ana Suntay and, therefore, falls short of the
requirement in section 6, Rule 77, of the Rules of Court that
the provisions of the lost will must be "clearly and distinctly
proved by at least two witnesses." That this requirement was
obviously construed, to mean that the exact provisions are to
be established, may be deduced from the following dialogue
between his Honor, Judge Potenciano Pecson, and attorney
Teofilo Sison, new counsel for oppositor Federico C. Suntay,
who appeared for the first time at the ex parte hearing of the
oppositor's motion for new trial on September 1, 1949:
COURT: However, Rule 77, Section 6, provides in
proving a lost will, the provisions of the lost will must be
distinctly stated and certified by the Judge.
ATTY. TEOFILO SISON: Yes, Your Honor.
COURT: That presupposes that the judge could only
certify to the exact provisions of the will from the
evidence presented.
ATTY. TEOFILO SISON: That is our contention,
provided that provision is clearly established by two
credible witnesses so that the Court could state that in
the decision, we agree, that is the very point.
(t. s. n. 75, Session of Sept. 1, 1948)
The sound rule, however, as we have found it to be, as to the
degree of proof required to establish the contents of a lost or
destroyed will, is that there is sufficient compliance if two
witnesses have substantiated the provisions affecting the
disposition of the testator's properties; and this is especially
necessary to prevent the "perpetration of fraud by permitting a
presumption to supply the suppressed proof," to keep a wrong-
doer from utilizing the rule as his "most effective weapon," or
to avoid the enjoyment of a "premium from the rascality of one
whose interests might suggest the destruction of a will."
Section 1865 of the Code requires that the provisions
of a lost will must be clearly and distinctly proved by at
least two credible witnesses before it can be admitted
to probate; but this section must receive a liberal
construction (Hook vs. Pratt, 8 Hun. 102-109) and its
spirit is complied with by holding that it applies only to
those provisions which affect the disposition of the
testator's property and which are of the substance of
the will.
The allegations of the contents of the will are general,
and under ordinary circumstances, would be in
sufficient; but the fact alleged, if proven as alleged,
would certainly authorize the establishment of the will
so far as its bequests are concerned. To require that a
copy of the will or the language of the bequests, in
detail, should be pleaded, where no copy has been
preserved, and where the memory of the witnesses
does not hold the exact words, would not only deny the
substance for mere form, but would offer a premium
upon the rascality of one whose interests might
suggest the destruction of a will. As said in
Anderson vs. Irwin, 101 Ill. 411: "The instrument in
controversy having been destroyed without the fault of
the defendant in error ... and there not appearing to be
any copy of it in existence, it would be equivalent to
denying the complainant relief altogether to require her
to prove the very terms in which it was conceived. All
that could reasonably be required of her under the
circumstances could be to show in general terms the
disposition which the testator made of his property by
the instruments; that it purported to be his will and was
duly attested by the requisite number of witnesses." In
Allison vs. Allison, 7 Dana 91, it was said in speaking
of the character and extent of proof required in such a
case:" nor is there any just ground to object to the proof
because the witnesses have not given the language of
the will or the substance thereof. They have given the
substance of the different devises as to the property or
interest devised, and to whom devised and we would
not stop, in the case of a destroyed will, to scan with
rigid scrutiny the form of the proof, provided we are
satisfied of the substance of its provisions."
(Jose vs. Casler 139 Ind. 392, 38 N. E. 812).
The evidence in the case falls short of establishing the
existence of such a writing, except as it may be
presumed, under the maxim Omnia preasumuntur in
odium spoliateris." There was evidence tending to
show that the second will of Anne Lambie was in the
possession of Francis Lambie, and that it came to the
hands of the proponents, warranting the inference that
it has been suppressed or destroyed. If from this
evidence the jury found such paper destroyed the law
permits the presumption that it was legally drawn and
executed, notwithstanding the terms of the statute,
which requires the revoking instrument to be formally
executed. If a will be lost, secondary evidence may be
given of its contents; if suppressed or destroyed, the
same is true; and, if necessary the law will prevent the
perpetration of a fraud by permitting a presumption to
supply the suppressed proof. We cannot assent to the
proposition that the statute is so right as to be the
wrongdoer's most effective weapons. The misconduct
once established to the satisfaction of the jury, it is no
hardship to the wrongdoer to say. "Produce the
evidence in your possession, or we will presume that
your opponent's contention is true." When one
deliberately destroys, or purposely induces another to
destroy, a written instrument subsequently become a
matter of judicial inquiry between the spoliator and an
innocent party, the latter will not be required to make
strict proof of the contents of such instrument in order
to establish a right founded thereon. Brook, Leg. Max.
576, Preston vs. Preston, 132, Atl. 55, 61. (Re
Lambie's Estate, 97 Mich, 55,56 N. W. 225)
Judged from the standard set forth in the foregoing authorities,
and bearing in mind that the circumstances of this case lead to
the only conclusion that the loss of the will in question is of
course imputable to those whose interests are adverse to the
petitioner and the widow Lim Billian, we have no hesitancy in
holding the view that the dispositions of the properties left by
the deceased Jose B. Suntay is provided in his will which was
lost or snatched in the manner recited in the decision of this
Court in the case of Lim Billian vs. Suntay, 63 Phil., 798-797,
had been more than sufficiently proved by the testimony of
Judge Anastacio Teodoro, Go Toh, and Ana Suntay, supported
conclusively by the draft of the lost will presented in evidence
as Exhibit "B", and even by the testimony of oppositor
Federico C. Suntay himself.
It is to be recalled that the trial Judge, in his first decision of
April 19, 1948, made the following express findings with
respect to the testimony of Judge Teodoro: "Judge Anastacio
Teodoro testified that he opened the sealed envelope when it
was given to him by Go Toh preparatory to the presentation of
the petition for the probate of the said will. As the lawyer
entrusted with that task, he had to examine the will and have it
copied to be reproduced or appended to the petition. He could
not do otherwise if he is worth his salt as a good lawyer. He
could not perform the stunt of "blind flying" in the judicial
firmament. Every step must be taken with certainty and
precision under any circumstances. He could not have talked
about the attorney's fees with Go Toh, unless he has not
examined the will beforehand. And, when he was shown
Exhibit B, he did not hesitate in declaring that it was the exact
draft of the will that was inside the envelope (Exhibit A), the
testimony of Atty. Alberto Barretto to the contrary
notwithstanding."
We should not forget, in this connection, that in the resolution
on the motion for reconsideration the trial Judge reiterated the
findings in his decision, although as regards the testimony of
Judge Teodoro admittedly "the only credible witness who
testified as to the provisions of the will," he observed that
Judge Teodoro had the draft Exhibit "B" in his hands while
testifying. We cannot see any justifying for the observation,
assuming that Judge Teodoro consulted the draft, since even
the trial Judge granted that he "could have testified clearly and
distinctly on the provisions of the said lost will, because he had
kept the will in his safe, in his office, for three days, after
opening it, and he is well versed in Spanish language in which
the will was written." As a matter of fact, however, it is not true
that Judge Teodoro had the draft in question before him while
testifying as may be seen from the following passages of the
transcript:
Q. And, have you read that will which was inside this
envelope, Exhibit A? — "A. Yes.
Q. Do you remember more or less the contents of the
will?
ATTY. FERRIN: With our objection, the best evidence
is original will itself, Your Honor.
ATTY. RECTO: We are precisely proving by means of
secondary evidence, the contents of the will, because
according to the Supreme Court, and that is a fact
already decided, that the will of Jose B. Suntay was
lost and that is res adjudicata.
COURT: Witness may answer.
WITNESS: I remember the main features of the will
because as I said I was the one fighting for the
postponement of the hearing of the intestate case
because I was asked by Don Alberto Barretto to secure
the postponement until the will that was executed by
the deceased is sent here by the widow from China,
with whom we communicated with several letters, and
when the will arrived. I had to check the facts as
appearing in the will, and examined fully in connection
with the facts alleged in the intestate, and there was a
striking fact in the intestate that Apolonio Suntay has..
ATTY. FERRIN: (Interrupting) May we ask that the
witness answer categorically the questions of Atty.
Recto, it seems that the answers of the witness are
kilometric ...
ATTY. RECTO: Sometimes the question cannot be
answered fully unless the witness would relate and
give all the facts.
COURT: The Attorney for the Administrator may move
for the striking out of any testimony that is not
responsive to the question.
ATTY. FERRIN: That is why, our objection, the answer
is out of the question.
COURT: Atty. Recto may propound another question.
ATTY. RECTO: I heard the witness was saying
something and he has not finished the sentence, and I
want to ask the Court just to allow the witness to finish
his sentence.
COURT: You may finish.
WITNESS: "A. There was a sentence, the point I was
trying to check first was whether the value of the estate
left by the deceased was SIXTY THOUSAND PESOS
(P60,000.00) as Apolonio Suntay made it appear in his
petition, and when I looked at the original will, I found
out that it was several hundred thousand pesos,
several thousands of pesos, hundreds of pesos, that
was very striking fact to me because the petition for
intestate was for SIXTY THOUSAND PESOS
(P60,000.00), and I came to know that it was worth
more than SEVEN HUNDRED THOUSAND
(P700,000.00) PESOS.
Q. Do you remember, Judge, the disposition of the will,
the main disposition of the will? — "A. Yes, because
our client were the widow, Maria Natividad Lim Billian,
and his son, Silvino, the only son in the second
marriage, that was very important for me to know.
Q. How were the properties distributed according to
that will?- "A. The properties were distributed into three
(3) parts, one part which we call legitima corta, were
equally distributed to the ten (10) children, nine (9) in
the first marriage, and one (1) in the second marriage
with Maria Natividad Lim Billian. The other third, the
betterment was given to four (4) children, Concepcion,
and Apolonio getting a quiet substantial share in the
betterment, around SIXTY THOUSAND (P60,000.00)
for Concepcion, Apolonio the amount of SEVENTY
THOUSAND (70,000,00) PESOS or little over, and
then about ONE HUNDRED THOUSAND
(P100,000.00) PESOS of the betterment in favor of
Silvino, the minor of the second marriage, and to Jose
equal to Concepcion.
Q. So the betterment, as I understand from you went to
four (4) children?-"A. Yes.
Q. Silvino in the second marriage, Concepcion,
Apolonio and Jose in the first marriage? — " A. Yes.
Q. What about the free disposal?-" A. The free disposal
was disposed in favor of the widow, Maria Natividad
Lim Billian and Silvino, his minor son in equal parts..
Q. What about, if you remember, if there was
something in the will in connection with that particular
of the usufruct of the widow? — "A. It was somewhat
incorporated into the assets of the estate left by the
deceased.
Q. Do you remember the number of pages of which
that will consisted? — "A. Twenty-three (23) pages.
Q. Do you remember if the pages were signed by the
testator? — "A. Yes, sir, it was signed.
Q. And the foot of the testament or the end of the
testament, was it signed by the testator? — "A. Yes, sir,
and the attestation clause was the last page signed by
the three instrumental witnesses, Alberto Barretto, one
Chinaman Go Toh, and Manuel Lopez, my former
Justice of the Peace of Hagonoy.
Q. Do you remember if there witnesses signed on the
different pages of the will? — "A. Yes, sir, they signed
with their name signatures.
Q. Showing you this document consisting of twenty-
three (23) pages in Spanish and which document
appears already attached to this same testamentary
 proceedings and already marked as EXHIBIT B, will
you please tell the Court if and for instance on page
eight (8) of this document, pagina octavo, it says, there
are handwritings in pencil, some of which read as
follows: "Los cinco-octavos (5/8) partes corresponds a
mi hijo Emiliano", can you recognize whose
handwriting is that? — "A. From my best estimate it is
the handwriting of Don Alberto Barretto.
Q. About the end of the same page eight (8) pagina
octavo, of the same document Exhibit B, there is also
the handwriting in pencil which reads: "La otra sexta
parte (6.a) corresponde a Bonifacio Lopez", can you
recognize that handwriting? — "A. Yes, sir, this is the
handwriting of Don Alberto Barretto, and I wish to call
the attention of the Court to compare letter "B" which is
in capital letter with the signature of Don Alberto
Barretto in the envelope, "Alberto Barretto" and stroke
identifies one hand as having written those words.
Q. Will you please go over cursorily this document,
Exhibit B composed of twenty-three (23) pages and
please tell the Court if this document had anything to
do with the will which according to you was contained
in the envelope, Exhibit A? — "A. This is exactly the
contents of the original will which I received and kept in
my office inside the safe for three (3) days, and I
precisely took special case in the credits left by the
deceased, and I remember among them, were the De
Leon family, and Sandiko, well known to me, and then
the disposition of the estate, divided into three (3)
equal parts, and I noticed that they are the contents of
the will read.
His Honor, Judge Pecson, was positive in his first decision that
"the testimony of Judge Anastacio Teodoro is corroborated by
Go Toh, one of the attesting witnesses, in his deposition
(Exhibit D-1)." Yet in setting aside his first decision, he
remarked that Go Toh's testimony did not prove clearly and
distinctly the provision of the lost will, because: "He did not,
and he could not have done so even if he tried because the
original will was not read to him nor by him before or at the
signing of the same. It was written in Spanish and he did not
and does not understand the Spanish language. Neither was
there any occasion for him to have the contents of the said
will, after its execution and sealing inside the envelope (Exhibit
A), read to him, because it was opened only when Judge
Teodoro had examined it and then subsequently snatched
from Go Toh."
The later position thus taken by Judge Pecson is palpably
inconsistent with the following unequivocal statements of Go
Toh contained in hid disposition taken in Amoy, China, on April
17, 1938, and in oppositor's Exhibit "6":
26. State what you know of the contents of that will.
. . . . Regarding (1) expenditures (2) Philippine
citizenship; (3) Distribution of estates among children
(4) Taking care of grave lot; (5) guardianship of Silvino
Suntay and (6) after paying his debts he will have
approximately 720,000 pesos left. This amount will be
divided into three equal parts of 240,000 pesos each.
The first part is to be divided equally among the ten
children born by the first and second wives and the
second part among the three sons Silvino Suntay,
75,000 approximately; Apolonio Suntay, 50,000 pesos
approximately; Jose Suntay and Concepcion Suntay,
36,000 each approximately. The third part is to be
divided between Maria Lim Billian and Silvino Suntay;
each will get approximately 110,000 pesos. Silvino
Suntay will get a total of 210,000 pesos approximately,
Maria Natividad Lim Billian a total of 290,000
approximately, and Apolonio Suntay a total of 80,000
approximately, Concepcion Suntay and Jose Suntay
will get 60,000 pesos each approximately. The rest of
the children will get approximately 29,000 each. The
way of distribution of the property of Jose B. Suntay,
movable and immovable, and the outstanding debts to
be collected was arranged by Jose B. Suntay.
xxx xxx xxx
78. On the occasion of the execution of the testament
of Jose B. Suntay, state whether or not you say Exhibit
B — ... Yes.
79. In the affirmative case, state if you know who had
the possession of Exhibit B and the testament the first
time you saw them on that occasion. — ... Yes, I know
who had possession of them.
80. Can you say whether or not Jose B. Suntay
happened to get those documents later on, on that
same occasion? — ... He got them after the execution.
81. Please name the person who gave those
documents to Mr. Suntay. — ... Alberto Barretto gave
the documents to Jose B. Suntay.
82. Did the person who gave those documents to
Suntay say anything to him (Suntay) at the time of
giving them? — ... Yes.
83. If so what was it that he said, if he said any? — ...
He said, "You had better see if you want any
correction."
84. What did Mr. Suntay do after those documents
were given to him? — ... Jose B. Suntay looked at
them and then gave one copy to Manuel Lopez for
checking.
85. State whether or not Mr. Suntay gave one of those
documents to another man. — ... Yes.
86. In the affirmative case, can you say which of the
two documents was given and who the man was? — ...
Yes he gave Exhibit B to Manuel Lopez.
87. State whether or not Mr. Suntay said something to
the man to whom he gave one of those documents.
— ... Yes.
88. In the affirmative case can you repeat more or less
what Mr. Suntay said to that man? — ... He told him to
read it for checking.
89. State if you know what did the man do with one of
those documents given to him. — ... He took it and
read it for checking.
90. What did in turn Mr. Suntay do with the other one
left with him? — ... Jose B. Suntay looked at the
original and checked them.
91. What was done with those documents later on if
there was anything done with them? — ... After
checking, Jose B. Suntay put Exhibit B in his pocket
and had the original signed and executed.
92. What was done with the testament of Jose B.
Suntay after it was signed by the testator and its
witnesses? — ... It was taken away by Jose B. Suntay.
(Exhibit D, D-1.)
Q. Did you know the contents of this envelope? — "A. I
knew that it was a will.
Q. But did you know the provisions of the will? — "A. It
is about the distribution of the property to the heirs.
Q. Did you know how the property was distributed
according to the will? — "A. I know that more than
P500,000 was for the widow and her son, more than
P100,000 for the heirs that are in the family. (Exhibit
"6", p. 28).
Q. You stated that you were one of the witnesses to the
will and that the will was written in Spanish. Was it
written in typewriting or in handwriting of somebody? —
"A. That will was written in typewriting.
Q. Did you read the contents of that will, or do you
know the contents of that will? — A. No, sir, because I
do not know Spanish.
Q. How do you know that it was the will of Jose B.
Suntay ? — "A. Because I was one of the signers and I
saw it." (Exhibit "6", p. 19.)
22. Do you understand the language in which that will
was written? — ... I know a little Spanish.
23. Do you talk or write that language? I can write and
talk a little Spanish. (Exhibits D, D-1.)
As to Ana Suntay's corroborating testimony, Judge Pecson
aptly made the following findings: "Ana Suntay, one of the
heirs and who would be affected adversely by the legalization
of the will in question, also testified on rebuttal that she saw
the original will in the possession of Manuel Suntay
immediately after the snatching. She read it and she
particularly remembers the manner in which the properties
were to be distributed. Exhibit B was shown to her on the
witness stand and she declared that the provision regarding
the distribution of the properties in said Exhibit B is the same
as that contained in the original will. Said testimony of Ana
Suntay, therefore, belies the testimony of Atty. Alberto
Barretto." And yet in the resolution on the motion for new trial,
the trial Judge had to state that "Ana Suntay on rebuttal did
not, likewise, prove clearly and distinctly the provisions of the
said lost will, because she has not had enough schooling and
she does not possess adequate knowledge of the Spanish
language as shown by the fact that she had to testify in
Tagalog on the witness stand." The potent error committed by
Judge Pecson in reversing his views as regards Ana's
testimony, is revealed readily in the following portions of the
transcript:
P. Cuantas paginas tenia aquel documento a que usted
se refiere? — "R. Probablemente seria mas de veinte
(20) paginas.
P. No serian treinta (30) paginas? — "Abogado Recto:
La testigo ha contestado ya que mas de veinte (20).
Juzgado: Se estima
Abogado Mejia:
P. Usted personalmente leyo el documento" — "R. Yo
leyo mi hermano en presencia mia.
P. La pregunta es, si usted personalmente ha leido el
documento? — " R. Si, lo he visto.
P. No solamente le pregunto a usted si Vd. ha visto el
testamento sino si usted ha leido personalmente el
testamento? — "R. Si la parte de la adjudicacion lo he
leido para asegurarme a que porcion corresponde a
cada uno de nosotros.
P. Puede usted repetir poco mas o menos esa porcion
a que se hacia la distribucion del alegado testamento?
— "R. Como ya he declarado, que las propiedades de
mi difunto padre se habian dividido en tres partes, una
tercera parte se nos adjudica a nosotros diez (1) hijos
en primeros nupcias y segunda nupcia, la segunda
tercera parte los adjudica a la viuda y a Silvino, y la
otra tercera parte se lo adjudica a sus hijos como
mejora a Silvino, Apolonio, Concepcion y Jose.
P. Eso, tal como usted personalmente lo leyo en el
documento? — "R. Si Señor.
P. Quiere usted tener la bondad, señora, de repetir
poco mas o menos las palabras en ese documento
que se distribuia las propiedades del defundo padre
usted como usted relata aqui? "Abogado Recto:
Objetamos a la pregunta por falta de base, porque elle
solamente se fijo en la parte como se distribuian las
propiedades pero no ha dicho la testigo que ella lo ha
puesto de memoria, ni Vd. ha preguntado en que
lenguaje estaba escrito el testamento ...
Juzgado: Se estima.
Abogado Mejia:
P. Sabe usted en que lenguaje estaba redactado el
documento que usted leyo personalmente? — "R. En
Castellano.
P. Puede usted repetirnos ahora en Castellano algunas
frases o palabras como se hizo la distribucion en aquel
supuesto testamento? —
Abogado Recto: Objecion, por falta de base, uno
puede entender el español y sin embargo no podra
repetir lo que ha leido, y no se sabe todavia si ha
estudiado el español bastante hasta el punto de poder
hablarlo.
Juzgado: Se estima.
Abogado Mejia
P. Usted dijo que estaba puesto en castellano el
supuesto testamento que Vda. leyo, usted poso el
castellano? — "R. Yo entiendo el castellano, pero no
puedo hablar bien.
P. Usted estudio el castellano en algun colegio? — "Rj.
Si, señor, En Sta. Catalina.
P. Cuantos años? — "R. Nuestros estudios no han sido
continuous porque mi padre nos ingresaba en el
colegio y despues nos sacaba para estar afuera, y no
era continuo nuestro estudio.
P. Pero en total, como cuantos meses o años estaba
usted en el colegio aprendiendo el castelano? — "R.
Unos cuatro o cinco años.
 P. Entonces usted puede leer el castellano con
facilidad, señora? — "R. Si, castellano sencillo puedo
entender y lo puedo leer.
P. Usted entiende las preguntas que se le dirigian aqui
en castellano sin interpretacion o sin el interprete? —
"R. Si, Señor.
P. Puede usted contestar en castellano? — "R. Bueno,
pero como de contestar, por eso quiero que la
pregunta se me traduzca antes. asi puedo contestar
debidamente. (t.s.n. pp. 533-534.)
We are really at a loss to understand why, without any change
whatsoever in the evidence, the trial Judge reversed his first
decision, particularly when he announced therein that "it is
now incumbent upon this court to delve into the evidence
whether or not Jose B. Suntay, deceased, left a will (the draft
of which is Exhibit B) and another will which was executed and
probated in Amoy, China." His action is indeed surprising when
we take into account the various circumstancial features
presently to be stated, that clearly confirm the testimony of
Judge Anastacio Teodoro, G. Toh and Ana Suntay, or
otherwise constitute visible indicia of oppositor's desire to
frustrate the wishes of his father, Jose B. Suntay.
In our opinion the most important piece of evidence in favor of
the petitioner's case is the draft of the lost will, Exhibit "B." Its
authenticity cannot be seriously questioned, because
according to the trial Judge himself, oppositor's own witness,
Atty. Alberto Barretto, admitted it to be "identical in substance
and form to the second draft which he prepared in typewriting."
Indeed, all the "A's" and "B's" in the handwritten insertions of
the draft are very similar to those in Barretto's admittedly
genuine signature on the envelope, Exhibit "A." The finding of
Judge Pecson on the point in his first decision (reiterated
expressly in the resolution on the motion for new trial), should
control, not only because it is in accordance with the evidence
but because the oppositor had failed and did not even attempt
to have the trial Judge reconsider or reverse his factual
conclusions. The draft, Exhibit "B," having been positively
identified by the witnesses for the petitioner to be an exact
copy of the lost will of Jose B. Suntay, is therefore conclusive.
Oppositor's effort to show that said draft was never signed in
final form, and was thought of merely to deceive petitioner's
mother, Lim Billian, and that the will actually executed and put
in the envelope, Exhibit "A", provided that the testator's estate
would be divided equally among his heirs, as in the case of
intestacy, was necessarily futile because, if this allegation is
true, the will would not have been "snatched" from Go Toh —
and the loss certainly cannot be imputed to the widow Lim
Billian or the petitioner; the snatched will would have been
produced to put an end to petitioner's and his mother's claim
for greater inheritance or participation under the lost will; and
the envelope containing the first will providing for equal
shares, would not have been entrusted to the care and
custody of the widow Lim Billian.
It is very noteworthy that out of the nine children of the first
marriage, only Angel, Jose and Federico Suntay had opposed
the probate of the will in question; the rest, namely, Ana,
Aurora, Concepcion, Lourdes, Manuel and Emiliano Suntay,
having expressly manifested in their answer that they had no
opposition thereto, since the petitioner's alternative petition
"seeks only to put into effect the testamentary disposition and
wishes of their late father." This attitude is significantly an
indication of the justness of petitioner's claim, because it would
have been to their greater advantage if they had sided with
oppositor Federico Suntay in his theory of equal inheritance for
all the children of Jose B. Suntay. Under the lost will or its draft
Exhibit "B", each of the Suntay children would receive only
some P 25,000.00, whereas in case of intestacy or under the
alleged will providing for equal shares, each of them would
receive some P100,000.00. And yet the Suntay children other
than Angel, Jose and Federico had chosen to give their
conformity to the alternative petition in this case.
Another unequivocal confirmation of the lost will is the will
which Jose B. Suntay executed in Amoy, Fookien, China, on
January 4, 1931, and probated in Amoy District Court, China,
containing virtually the same provisions as those in the draft
Exhibit "B". What better evidence is there of an man's desire or
insistence to express his last wishes than the execution of a
will reiterating the same provisions contained in an earlier will.
Assuming that the Chinese will cannot be probated in the
jurisdiction, its probative value as corroborating evidence
cannot be ignored.
Oppositor himself had admitted having read the will in question
under which the widow Lim Billian was favored; and this again
in a way goes to corroborate the evidence for the petitioner as
to the contents of the will sought to be probated.
COURT:
Q. Have you read the supposed will or the alleged will
of your father? — "A. Yes, sir.
COURT:
Q. Can you tell the court the share or participation in
the inheritance of Maria Natividad Lim Billian according
to the will? —
A. Yes sir, she will inherit, I think, two-thirds (2/3) of the
estate, in other words she is the most favored in the
will, so when they sold that, they sold everything, they
are selling everything even the conjugal property. (t. s.
n. 228-229.)
The decision of the majority leans heavily on the testimony of
Atty. Alberto Barretto, forgetful perhaps of the fact that the trial
Judge gave no credence to said witness. It should be repeated
that Judge Pecson reiterated in the resolution on the motion
for new trial all his findings in the first decision. If as Atty.
Barretto testified, Lim Billian was entitled under the will actually
signed by Jose Suntay only to P10,000.00, in addition to
properties in China value at P15,000.00, the fees of
P25,000.00 admittedly asked by him would absorb her entire
inheritance; and this would normally not be done by any law
practitioner. Upon the other hand, there is evidence to the
effect that Atty. Barretto might have become hostile to the
petitioner and his mother Lim Billian in view of the latter's
refusal to agree to the amount of P25,000.00 and her offer to
pay only P100.00. There is also evidence tending to show that
as early as 1942, Atty. Barretto was paid by oppositor Federico
Suntay the sum of P16,000.00 which, although allegedly for
services in the testate proceedings, was paid out of the
personal funds of said oppositors to supply Atty. Barretto's
needs. This circumstances perhaps further explains why the
latter had to support the side of Federico Suntay.
We have quoted in full the decision of this court in the
"snatching" case and the first decision of Judge Pecson in this
case, both in the hope and in the belief (1) that the first would
reveal the manner by which those adversely affected had
planned to prevent the last wishes of the deceased Jose B.
Suntay from being carried on, and (2) that the second, by the
facts correctly recited therein and by the force and accuracy of
its logic would amply show the weakness and utter lack of
foundation of the resolution on the motion for reconsideration.
We have set forth at length pertinent portions of the testimony
of various witnesses to demonstrate more plainly the
plausibility of the original decision of Judge Pecson, and the
latter's consequent bad judgment in having forced himself to
accomplish a somersault, a feat which the majority, in my
opinion, have mistakenly commended. We have found this to
be one of the cases of this court in which we have had
occasion to participate, where there can be absolutely no
doubt as to the result — outright reversal — for which, with
due respect to the majority opinion, we vote without hesitancy.
Montemayor and Jugo, JJ., concur.
RESOLUTION
5 November 1954
PADILLA, J.:
This is a motion for reconsideration of the decision
promulgated on 31 July 1954, affirming the decree of the Court
of First Instance of Bulacan which disallowed the alleged last
will and testament executed in November 1929 and the
alleged last will and testament executed in Kulangsu, Amoy,
China, on 4 January 1931, by Jose B. Suntay, without
pronouncement as to costs, on grounds that will presently be
taken up and discussed.
Appellant points to an alleged error in the decision where it
states that —
. . . This petition was denied because of the loss of said
will after the filing of the petition and before the hearing
thereof, . . .
because according to him the "will was lost before not after
(the) filing of the petition." This slight error, if it is an error at all,
does not, and cannot, after the conclusions and
pronouncements made in the judgment rendered in the case.
In his alternative petition the appellant alleges:
4. That on October 15, 1934, Marian Natividad Lim
Billian, the mother of herein petitioner filed a petition in
this court for the allowance and probate of a last will
and testament executed, and signed in the Philippines
in the year 1929 by said deceased Jose B. Suntay. (P.
3, amended record on appeal.)
If such will and testament was already lost or destroyed at the
time of the filing of the petition by Maria Natividad Lim Billian
(15 October 1934), the appellant would have so stated and
alleged. If Anastacio Teodoro, a witness for the appellant, is to
be believed when he testified —
. . . that one day in November 1934 (p. 273, t. s. n.,
hearing of 19 January 1948), ... Go Toh arrived at his
law office in the De Los Reyes Building and left an
envelope wrapped in red handkerchief [Exhibit C] (p.
32, t. s. n., hearing of 13 October 19470 . . .
and —
If the will was snatched after the delivery thereof by Go
Toh to Anastacio Teodoro and returned by the latter to
the former because they could not agree on the
amount of fees, . . .
then on 15 October 1934, the date of the filing of the petition,
the will was not yet lost. And if the facts alleged in paragraph 5
of the appellant's alternative petition which states:
That this Honorable Court, after hearing, denied the
aforesaid petition for probate filed by Maria Natividad
Lim Billian in view of the loss and/or destruction of said
will subsequent to the filing of said petition and prior to
the hearing thereof, and the alleged insufficiency of the
evidence adduced to established the loss and/or
destruction of the said will, (Emphasis supplied, P. 3,
amended record on appeal.)
may be relied upon, then the alleged error pointed out by the
appellant, if it is an error, is due to the allegation in said
paragraph of his alternative petition. Did the appellant allege
the facts in said paragraph with reckless abandon? Or, did the
appellant make the allegation as erroneously as that which he
made in paragraph 10 of the alternative petition that "his will
which was lost and ordered probated by our Supreme Court in
G. R. No. 44276, above referred to?" (P. 7, amended record on
appeal.) This Court did not order the probate of the will in said
case because if it did, there would have been no further and
subsequent proceedings in the case after the decision of this
Court referred to had been rendered and had become final. Be
that as it may, whether the loss of the will was before or
subsequent to the filing of the petition, as already stated, the
fact would not affect in the slightest degree the conclusions
and pronouncements made by this Court.
The appellant advances the postulate that the decision of this
Court in the case of Lim Billian vs. Suntay, G. R. No. 44276,
63 Phil., 793, constitutes res judicata on these points: (a) that
only one will was prepared by attorney Barretto, and (b) that
the issue to be resolved by the trial court was whether the draft
(Exhibit B) is a true copy or draft of the snatched will, and
contends that these points already adjudged were overlooked
in the majority opinion. The decision of this Court in the case
referred to does not constitute res judicata on the points
adverted to by the appellant. The only point decided in that
case is that "the evidence is sufficient to establish the loss of
the document contained in the envelope." In the opinion of this
Court, this circumstance justified "the presentation of
secondary evidence of its contents and of whether it was
executed with all the essential and necessary legal
formalities." That is all that was decided. This Court further
said:
The trial of this case was limited to the proof of loss of
the will, and from what has taken place we deduce that
it was not petitioner's intention to raise, upon the
evidence adduced by her, and other points involved
herein, namely, as we have heretofore indicated,
whether Exhibit B is a true copy of the will and whether
the latter was executed with all the formalities required
by law for its probate. The testimony of Alberto Barretto
bears importantly in this connection. (P. 796, supra.)
Appellant's contention that the question before the probate
court was whether the draft (Exhibit B) is a true copy or draft of
the snatched will is a mistaken interpretation and view of the
decision of this Court in the case referred to, for if this Court
did make that pronouncement, which, of course, it did not,
such pronouncement would be contrary to law and would have
been a grievous and irreparable mistake, because what the
Court passed upon and decided in that case, as already
stated, is that there was sufficient evidence to prove the loss of
the of the will and that the next step was to prove by
secondary evidence its due execution in accordance with the
formalities of the law and its contents, clearly and districtly, by
the testimony of at least two credible witnesses.1
The appellant invokes Rule 133 to argue that Rule 77 should
not have been applied to the case but the provisions of section
623 of the Code of Civil Procedure (Act No. 190), for the
reason that this case had been commenced before the Rules
of Court took effect. But Rule 133 cited by the appellant
provides:
These rules shall take effect on July 1, 1940. They
shall govern all cases brought after they take effect,
and also all further proceedings in cases then pending,
except to the extent that in the opinion of the court their
application would not be feasible or would work
injustice, in which event the former procedure shall
apply. (Emphasis supplied.)
So, Rule 77 applies to this case because it was a further
proceedings in a case then pending. But even if section 623 of
the Code of Civil Procedure were to be applied, still the
evidence to prove the contents and due execution of the will
and the fact of its unauthorized destruction, cancellation, or
obliteration must be established "by full evidence to the
satisfaction of the Court." This requirement may even be more
strict and exacting than the two-witness rule provided for in
section 6, Rule 77. The underlying reason for the exacting
provisions found in section 623 of Act No. 190 and section 6,
Rule 77, the product of experience and wisdom, is to prevent
imposters from foisting, or at least to make for them difficult to
foist, upon probate courts alleged last wills or testaments that
were never executed.
In commenting unfavorably upon the decree disallowing the
lost will, both the appellant and the dissenting opinion suffer
from an infirmity born of a mistaken premise that all the
conclusions and pronouncements made by the probate court
in the first decree which allowed the probate of the lost will of
the late Jose B. Suntay must be accepted by this Court. This is
an error. It must be borne in mind that this is not a petition for a
writ of certiorari to review a judgment of the Court of Appeals
on questions of law where the findings of fact by said Court
are binding upon this Court. This is an appeal from the probate
court, because the amount involved in the controversy
exceeds P50,000, and this Court in the exercise of its
appellate jurisdiction must review the evidence and the
findings of fact and legal pronouncements made by the
probate court. If such conclusions and pronouncements are
unjustified and erroneous this Court is in duty bound to correct
them. Not long after entering the first decree the probate court
was convinced that it had committed a mistake, so it set aside
the decree and entered another. This Court affirmed the last
decree not precisely upon the facts found by the probate court
but upon facts found by it after a careful review and scrutiny of
the evidence, parole and documentary. After such review this
Court has found that the provisions of the will had not been
established clearly and distinctly by at least two credible
witnesses and that conclusion is unassailable because it is
solidly based on the established facts and in accordance with
law.
The appellant and the dissent try to make much out of a
pleading filed by five (5) children and the widow of Apolonio
Suntay, another child of the deceased by the first marriage,
wherein they state that —
. . . in answer to the alternative petition filed in these
proceedings by Silvino Suntay, through counsel, dated
June 18, 1947, to this Honorable Court respectfully
state that, since said alternative petition seeks only to
put into effect the testamentary disposition and wishes
of their late father, they have no opposition thereto.
(Pp. 71-72, amended record on appeal.)
Does that mean that they were consenting to the probate of
the lost will? Of course not. If the lost will sought to be
probated in the alternative petition was really the will of their
late father, they, as good children, naturally had, could have,
no objection to its probate. That is all that their answer implies
and means. But such lack of objection to the probate of the
lost will does not relieve the proponent thereof or the party
interested in its probate from establishing its due execution
and proving clearly and distinctly the provisions thereof at least
two credible witnesses. It does not mean that they accept the
draft Exhibit B as an exact and true copy of the lost will and
consent to its probate. Far from it. In the pleading copied in the
dissent, which the appellant has owned and used as argument
in the motion for reconsideration, there is nothing that may
bolster up his contention. Even if all the children were
agreeable to the probate of said lost will, still the due execution
of the lost will must be established and the provisions thereof
proved clearly and distinctly by at least two credible witnesses,
as provided for in section 6, Rule 77. The appellant's effort
failed to prove what is required by the rule. Even if the children
of the deceased by the first marriage, out of generosity, were
willing to donate their shares in the estate of their deceased
father or parts thereof to their step mother and her only child,
the herein appellant, still the donation, if validly made, would
not dispense with the proceedings for the probate of the will in
accordance with section 6, Rule 77, because the former may
convey by way of donation their shares in the state of their
deceased father or parts thereof to the latter only after the
decree disallowing the will shall have been rendered and shall
have become final. If the lost will is allowed to probate there
would be no room for such donation except of their respective
shares in the probated will.
The part of the deposition of Go Toh quoted in the motion for
reconsideration which appellant underscores does not refer to
Go Toh but to Manuel Lopez. Even if Go Toh heard Manuel
Lopez read the draft (Exhibit B) for the purpose of checking it
up with the original held and read by Jose B. Suntay, Go Toh
should not have understood the provisions of the will because
he knew very little of the Spanish language in which the will
was written (answer to 22nd and 23rd interrogatories and to X-
2 cross-interrogatory). In fact, he testifies in his deposition that
all he knows about the contents of the lost will was revealed to
him by Jose B. Suntay at the time it was executed (answers to
25th interrogatory and to X-4 and X-8 cross-interrogatories);
that Jose B. Suntay told him that the contents thereof are the
same as those of the draft [Exhibit B] (answers to 33rd
interrogatory and to X-8 cross-interrogatory); that Mrs. Suntay
had the draft of the will (Exhibit B) translated into Chinese and
he read the translation (answer to the 67th interrogatory); that
he did not read the will and did not compare it (check it up)
with the draft [Exhibit B] (answers to X-6 and X-20 cross-
interrogatories). We repeat that —
. . . all of Go Toh's testimony by deposition on the
provisions of the alleged lost will is hearsay, because
he came to know or he learned of them from
information given him by Jose B. Suntay and from
reading the translation of the draft (Exhibit B) into
Chinese.
This finding cannot be contested and assailed.
The appellant does not understand how the Court came to the
conclusion that Ana Suntay, a witness for the appellant could
not have read the part of the will on adjudication. According to
her testimony "she did not read the whole will but only the
adjudication," which, this Court found, "is inconsistent with her
testimony in chief (to the effect) that "after Apolonio read that
portion, then he turned over the document of Manuel, and he
went away." (P. 528, t. s. n., hearing of 24 February 1948.) And
appellant asks the question: "Who went away? Was it Manuel
or Apolonio?" In answer to his own question the appellant
says: "The more obvious inference is that it was Apolonio and
not Manuel who went away." This inference made by the
appellant not only is not obvious but it is also illogical, if it be
borne in mind that Manuel came to the house of Apolonio and
it happened that Ana was there, according to her testimony. So
the sentence "he went away" in Ana's testimony must logically
and reasonably refer to Manuel, who was a caller or visitor in
the house of his brother Apolonio and not to the latter who was
in his house. If it was Apolonio who "went away," counsel for
the appellant could have brought that out by a single question.
As the evidence stands could it be said that the one who went
away was Apolonio and not Manuel? The obvious answer is
that it was Manuel. That inference is the result of a straight
process of reasoning and clear thinking.
There is a veiled insinuation in the dissent that Alberto Barretto
testified as he did because he had been paid by Federico C.
Suntay the sum of P16,000. Federico C. Suntay testifies on
the point thus —
Q. You mentioned in your direct testimony that you paid
certain amount to Atty. Alberto Barretto for services
rendered, how much did you pay? — A. Around
SIXTEEN THOUSAND (P16,000.00).
Q. When did you make the payment? — A. During the
Japanese time.
Q. Did you state that fact in any accounts you
presented to the Court? — A. I do not quite remember
that.
. . . (P. 180, t. s. n., hearing of 24 October 1947.)
Q. When you made that payment, was (it) your
intention to charge it to the state or to collect it later
from the estate? — A. Yes, sir.
Q. More or less when was such payment made, during
the Japanese time, what particular month and year, do
you remember? — A. I think in 1942.
Q. And you said you paid him because of services he
rendered? — A. Upon the order to the Court.
Q. And those services were precisely because he
made a will and he made a will which was lost, the will
of Jose B. Suntay? ... (P. 181, t. s. n., supra.) — A. I
think I remember correctly according to ex-
Representative Vera who is the administrator whom I
followed at that time, that was paid according to the
services rendered by Don Alberto Barretto with regard
to our case in the testamentaria but he also rendered
services to my father.
Q. At least your Counsel said that there was an order
of the Court ordering you to pay that, do you have that
copy of the order? — A. Yes, sir, I have, but I think that
was burned. (P. 184, t. s. n., supra.).
So the sum of P16,000 was paid upon recommendation of the
former administrator and order of the probate court for
services rendered by Alberto Barretto not only in the probate
proceedings that also for services rendered to his father. But if
this sum of P16,000 paid to Alberto Barretto upon
recommendation of the previous administrator and order of the
probate court for professional services rendered in the probate
proceedings and to the deceased in his lifetime be taken
against his truthfulness and veracity as to affect adversely his
testimony, what about the professional services of Anastacio
Teodoro who appeared in this case as one of the attorneys for
the petitioner-appellant? (P. 2, t. s. n., hearing of 13 October
1947.)Would that not likewise or by the same token affect his
credibility? It is the latter's interest more compelling than the
former's?

For the foregoing reasons, the motion for reconsideration is

denied.

Pablo, Bengzon, Reyes, A. and Concepcion, JJ., concur.

Paras, C.J., dissenting:

For the same reasons and considerations set forth in detail in

my dissent promulgated on July 31, 1954, I vote to grant the
motion for reconsideration.

Montemayor and Jugo, JJ., concur.

G.R. No. L-17091 September 30, 1963
IN THE MATTER OF THE ESTATE OF THE DECEASED
CHUNG LIU, NGO THE HUA, petitioner-appellant,
vs.
CHUNG KIAT HUA, LILY CHUNG CHO, BONIFACIO CHUNG
SIONG PEK and CHUNG KA BIO, oppositors-appellees,
CHUNG KIAT, KANG, oppositor-appellant,
PHILIPPINE TRUST COMPANY, special administrator.
Lorenzo Sumulong for petitioner-appellant.
Zosimo Rivas for oppositor-appellant Chung Kiat Kang.
Bienvenido A. Tan, Jr. for oppositor-appellee Bonifacio Chung
Siong Pek.
Crispin D. Baizas for other oppositors-appellees.
LABRADOR, J.:
This is an appeal from an order of the Court of First Instance
of Rizal, Pasay City Branch, Hon. Jesus Perez presiding,
appointing Chung Kiat Hua as administrator of the estate of
the deceased Chung Liu in Special proceeding No. 1552-P of
said court.
On December 7, 1957, Ngo The Hua, claiming to be surviving
spouse of the deceased Chung Liu, filed a petition to be
appointed administratrix of the estate of aforementioned
deceased. Her petition was opposed Chung Kiat Hua, Lily
Chung Cho, Bonifacio Chung Sio Pek and Chung Ka Bio, all
claiming to be children of the deceased Chung Liu by his first
wife, Tan Hua. They claim that Ngo The Hua is morally and
physically unfit to execute the duties of the trust as
administratrix, and that she and the deceased have secured
an absolute divorce in Taiwan, both being Chinese citizens,
confirmed a legalized by the Taipei District Court, Taipei,
Taiwan August 25, 1955. In this same opposition they prayed
the Chung Kiat Hua, allegedly the eldest child of the
deceased, be appointed administrator instead. These
oppositors prayer was in turn opposed by Ngo The Hua who
claim that the oppositors are not children of Chung Liu.
On January 13, 1957, Chung Kiat Kang, claiming be a nephew
of the deceased, filed his opposition to the appointment of
either Ngo The Hua or Chung Kiat Hu on the ground that to be
appointed they must first prove their respective relationship to
the deceased Chung Li and prayed that he be appointed
administrator.
The petition was heard and evidence presented by both
petitioner Ngo The Hua and the oppositors Chung Kiat Hua, et
al. When Chung Kiat Kang's turn to present his evidence
came, he manifested, through his counsel, that he was waiving
his right to present evidence in so far as the appointment of
administrator of the estate is concerned (t.s.n. pp. 3-6, hearing
of July 3, 1958).
On December 2, 1959, after a lengthy hearing, the low court
found that Ngo The Hua and the deceased were validly
divorced by the aforementioned Taipei District Court, and that
Chung Kiat Hua, Lily Chung Cho, Bonifacio Chung Siong Pek
and Chung Kiat Bio are children of the deceased. So it issued
the order appointing Chung Kiat Hua as administrator of the
estate of Chung Liu.
From this order, both the petitioner and Chung Kiat Kang
appealed. On May 30, 1961, however, petitioner Ngo The Hua
filed a petition to withdraw her appeal stating that she had
entered into an amicable settlement with the oppositors-
appellees. Her petition was granted by this Court in a
resolution dated June 26, 1961.
Hence only the appeal of oppositor Chung Kiat Kang remains
for the consideration of this Court.
Appellant now contends that the lower court erred in passing
upon the validity of the divorce obtained by the petitioner and
the deceased and upon the filiation of the oppositors-
appellees, such being a prejudgment "since it is well-settled
that the declaration of heirs shall only take place after all
debts, expenses and taxes have been paid" in accordance
with See. 1, Rule 91 of the Rules of Court. The pertinent
portion of the section cited by appellant is as follows:.
SECTION 1. When order for distribution of residue
made. — . . When the debts, funeral charges, and
expenses of administration, the allowances to the
widow and inheritance tax, if any, chargeable to the
estate in accordance with law, have been paid, the
court . . shall assign the residue of the estate of the
Persons entitled to the same . .
No distribution shall be allowed until payment of the
obligations above-mentioned has been made or
provided for . . (Emphasis supplied).
A cursory reading of the above-quoted section discloses that
what the court is enjoined from doing is the assignment or
distribution of the residue of the deceased's estate before the
above-mentioned obligations chargeable to the estate are first
paid. Nowhere from said section may it be inferred that the
court cannot make a declaration of heirs prior to the
satisfaction of these obligations. It is to be noted, however, that
the court in making the appointment of the administrator did
not purport to make a declaration of heirs.
On the other hand, it is clear from the facts of this case that is
was deemed necessary by the lower court to determine the
relationship of the parties, as advanced by petitioner and the
oppositors-appellees, to be able to appoint an administrator in
accordance with the order preference established in Section 5,
Rule 79 of the Rules of Court. Said section provides that
letters of administration shall be granted to the surviving
spouse the next of kin, or to any principal creditor, in this
order. Oppositors-appellees denied petitioner Ngo The Hua's
claim that she is the surviving spouses of Chung Liu, and
petitioner likewise denied the oppositors-appellees' claim that
they are children of the deceased. Since these applicants were
asking for the letter of administration on the theory that they
are preferred according to Section 5 Rule 79 because of their
relationship to the deceased Chu Liu, the lower court
necessarily had to pass first on the truth of their respective
claims of relationship to be able to appoint an administrator in
accordance with the aforementioned order of preference.
Let it be made clear, that what the lower court actual decided
and what we also decide is the relationships between the
deceased and the parties of claiming the right to be appointed
his administrator, to determine who among them is entitled to
the administration, not who are his heirs who are entitled to
share in his estate. This issue of heirship is one to be
determined in the decree of distribution, and the findings of the
court in the case at bar on the relationship of the parties is not
a final determination of such relationships as a basis of
distribution.1awphîl.nèt
Having resolved the issue raised, it is unnecessary to rule on
the other questions raised by the appellant Chun Kiat Rang. It
is well-settled that for a person to be able to intervene in an
administration proceeding concerning the estate of a
deceased, it is necessary for him to have interest in such
estate (Sec. 4, Rule 80, Rules of Court Moran, Comments on
the Rules of Court, Vol. II, 195 ed. P. 382). An interested party
has been defined in this connection as one who would be
benefited by the estate such as an heir, or one who has a
certain claim against the estate, such as a creditor (Saguinsin
vs. Lindayag, et al., G.R. No. L-17759, Dee. 17, 1962;
Intestate Estate Julio Magbanwa, 40 O.G. 1171; Williams vs.
Williams, 11 Ga. 1006, cited in Francisco, Rules of Court, Vol.
IV, 195 ed., p. 411). Appellant Chung Kiat Kang does not claim
of to be a creditor of Chung Liu's estate. Neither is he an heir
in accordance with the Civil Code of the Republic of China
(Exh. 28 of Chung Kiat Hua), the law that applies in this case,
Chung Liu being a Chinese citizen (Art. 16, New Civil Code).
The appellant not having any interest in Chung Liu's estate,
either as heir or creditor, he cannot be appointed as co-
administrator of the estate, as he now prays.

WHEREFORE, the order appealed from is hereby affirmed,

with costs against appellants. So ordered.

Bengzon, C.J., Padilla, Bautista Angelo, Barrera, Paredes,

Dizon, Regala and Makalintal, JJ., concur.
Concepcion and Reyes, J.B.L., JJ., took no part.
HEIRS OF ROSENDO LASAM, G.R. No. 168156
Represented by Rogelio Lasam
and Atty. Edward P. Llonillo, Before the Court is the petition for review on certiorari filed by
Petitioners, Present: the Heirs of Rosendo Lasam, represented by Rogelio M.
PANGANIBAN, C.
Lasam and Atty. Edward P. Llonillo, seeking the reversal of the
J., Chairperson,
Decision[1] dated February 16, 2005 of the Court of Appeals
YNARES-SANTIAGO, (CA) in CA-G.R. SP No. 80032. The assailed decision
reversed and set aside the decision of the Regional Trial Court
AUSTRIA- (RTC) of Tuguegarao City, Cagayan and dismissed, for lack of
MARTINEZ, merit, the complaint for unlawful detainer file by the said heirs
against respondent Vicenta Umengan.
- versus - CALLEJO, SR., and

CHICO-
NAZARIO, JJ. The RTC decision affirmed that of the Municipal Trial
VICENTA UMENGAN, Promulgated: Court in Cities (MTCC) of the same city, Branch III, which had
rendered judgment in favor of the heirs of Rosendo Lasam and
Respondent. directed the ejectment of respondent Vicenta Umengan from
the lot subject of litigation.
December 6, 2006

The present petition likewise seeks the reversal of the

x---------------------------------------------------------------------------------
CA Resolution dated May 17, 2005 denying the motion for
--------x
reconsideration filed by the heirs of Rosendo Lasam.

DECISION As culled from the records, the backdrop of the present case is
as follows
CALLEJO, SR., J.:

The lot subject of the unlawful detainer case is situated
in Tuguegarao City, Cagayan. It is the eastern half portion of
Lot No. 5427 and Lot No. 990. The first lot, Lot No. 5427
containing an area of 1,037 square meters, is covered by
Original Certificate of Title (OCT) No. 196. The second lot, Lot
No. 990 containing an area of 118 sq m, is covered by OCT
No. 1032. These lots are registered in the names of the
original owners, spouses Pedro Cuntapay and Leona
Bunagan.
In an instrument denominated as Deed of Confirmation and
acknowledged before a notary public on June 14, 1979, the
heirs of the said spouses conveyed the ownership of Lots Nos.
990 and 5427 in favor of their two children, Irene Cuntapay
and Isabel Cuntapay. In another instrument entitled Partition
Agreement and acknowledged before a notary public
on December 28, 1979, it was agreed that the eastern half
portion (subject lot) of Lots Nos. 990 and 5427 shall belong to
the heirs of Isabel Cuntapay. On the other hand, the remaining
portion thereof (the west portion) shall belong to the heirs of
Irene Cuntapay. The subject lot (eastern half portion) has an
area of 554 sq m.
Isabel Cuntapay had four children by her first husband,
Domingo Turingan, namely: Abdon, Sado (deceased), Rufo
and Maria. When Domingo Turingan passed away, Isabel
Cuntapay remarried Mariano Lasam. She had two other
children by him, namely: Trinidad and Rosendo.
Sometime in January 2001, the heirs of Rosendo Lasam (son
of Isabel Cuntapay by her second husband) filed with the
MTCC a complaint for unlawful detainer against Vicenta
Umengan, who was then occupying the subject lot. Vicenta
Umengan is the daughter of Abdon Turingan (son of Isabel
Cuntapay by her first husband).
In their complaint, the heirs of Rosendo Lasam alleged
that they are the owners of the subject lot, having inherited it
from their father. Rosendo Lasam was allegedly the sole heir
of the deceased Pedro Cuntapay through Isabel
Cuntapay. During his lifetime, Rosendo Lasam allegedly
temporarily allowed Vicenta Umengan to occupy the subject
lot sometime in 1955. The latter and her husband allegedly
promised that they would vacate the subject lot upon
demand. However, despite written notice and demand by the
heirs of Rosendo Lasam, Vicenta Umengan allegedly
unlawfully refused to vacate the subject lot and continued to
possess the same. Accordingly, the heirs of Rosendo Lasam
were constrained to institute the action for ejectment.
In her Answer with Counterclaim, Vicenta Umengan
specifically denied the material allegations in the
complaint. She countered that when Isabel Cuntapay passed
away, the subject lot was inherited by her six children by her
first and second marriages through intestate succession. Each
of the six children allegedly had a pro indiviso share of 1/6 of
the subject lot.
It was further alleged by Vicenta Umengan that her
father, Abdon Turingan, purchased the respective 1/6 shares in
the subject lot of his siblings Maria and Sado. These
conveyances were allegedly evidenced by the Deed of Sale
dated March 3, 1975, appearing as Doc. No. 88, Page No. 36,
Book No. XIV, series of 1975 of the notarial book of Atty. Pedro
Lagui.
Prior thereto, Rufo already sold his 1/6 share in the
subject lot to Vicenta Umengan and her husband as evidenced
by the Deed of Sale dated June 14, 1961, appearing as Doc.
No. 539, Page No. 41, Book No. V, series of 1961 of the
notarial book of Atty. Pedro Lagui. Also on June 14, 1961,
Abdon donated his 1/6 share in the subject lot to her daughter
Vicenta Umengan as evidenced by the Deed of Donation
appearing as Doc. No. 538, Page No. 41, Book No. V, series
of 1961 of the notarial book of the same notary public.
According to Vicenta Umengan, the children of Isabel
Cuntapay by her second husband (Rosendo and Trinidad
Lasam) own only 2/6 portion of the subject lot. She thus
prayed that the complaint for ejectment be dismissed and that
the heirs of Rosendo Lasam be ordered to pay her damages.
The MTCC rendered judgment in favor of the heirs of
Rosendo Lasam and directed the ejectment of Vicenta
Umengan. In so ruling, the MTCC gave credence to the newly
discovered last will and testament (entitled Testamento
Abierto) purportedly executed by Isabel Cuntapay where she
bequeathed the subject lot to her son, Rosendo Lasam, thus:
x x x my share 1/5th (one-fifth) of the Cuntapay
heirs, bordered on the North by Sr. Elia Canapi;
to the South, by Calle Aguinaldo; to the East, by
Calle P. Burgos and the West, by the late Don
Luis Alonso; on the property which is my share
stands a house of light materials where I
presently reside; this 1/5th (one-fifth) share of
my inheritance from the Cuntapays I leave to
my son Rosendo Lasam and also the
aforementioned house of light material x x x[2]
The MTCC reasoned that the heirs of Rosendo Lasam
anchored their claim over the subject lot on the last will and
testament of Isabel Cuntapay while Vicenta Umengan hinged
hers on intestate succession and legal conveyances. Citing
jurisprudence[3] and Article 1080[4] of the Civil Code, the MTCC
opined that testacy was favored and that intestacy should be
avoided and the wishes of the testator should prevail. It
observed that the last will and testament of Isabel Cuntapay
was not yet probated as required by law; nonetheless, the
institution of a probate proceeding was not barred by
prescription.
With the finding that the subject lot was already
bequeathed by Isabel Cuntapay to Rosendo Lasam, the
MTCC held that the siblings Abdon, Sado, Rufo and Maria
Turingan no longer had any share therein. Consequently, they
could not convey to Vicenta Umengan what they did not
own. On the issue then of who was entitled to possession of
the subject lot, the MTCC ruled in favor of the heirs of
Rosendo Lasam as it found that Vicenta Umengans
possession thereof was by mere tolerance. The dispositive
portion of the MTCC decision reads:
WHEREFORE, in the light of the foregoing
considerations, this Court Resolve[d] to order
the EJECTMENT of VICENTA T. UMENGAN
and in her place INSTITUTE THE HEIRS OF
ROSENDO LASAM.
It is further ordered the defendant shall pay the
Heirs of Rosendo Lasam the sum of P500.00
pesos representing the monthly rental of the
land from August 2000 to the time this case
shall have been terminated.
Ordering the defendant to pay the plaintiffs the
amount of P20,000.00 attorneys fees plus cost
of this litigation.
So Ordered.[5]
On appeal, the RTC affirmed in toto the decision of the
MTCC. The RTC echoed the reasoning of the MTCC that the
testamentary disposition of the property of Isabel Cuntapay
should be respected, and that the heirs of Rosendo Lasam
have a better right to possess the subject lot.
Undaunted, Vicenta Umengan filed an appeal with the
CA. She argued that the MTCC had no jurisdiction over the
case as it involved the recovery of ownership of the subject lot,
not merely recovery of possession or unlawful detainer. She
also assailed the RTCs and the MTCCs holding that the
purported Testamento Abierto of Isabel Cuntapay prevails
over Vicenta Umengans muniments of title and, consequently,
the heirs of Rosendo Lasam have a better right to the subject
lot than Vicenta Umengan.

In the assailed Decision dated February 16, 2005, the CA
reversed and set aside the decision of the RTC. The appellate
court preliminarily upheld the jurisdiction of the MTCC over the
subject matter as it found that the allegations in the complaint
made out a case for unlawful detainer. The heirs of Rosendo
Lasam in their complaint, according to the CA, only sought for
Vicenta Umengan to vacate and surrender possession of the
subject lot. The CA also rejected the contention of the heirs of
Rosendo Lasam that the issue of ownership of the subject lot
had already been settled in another case, Civil Case No. 4917,
before RTC (Branch 3) of Tuguegarao City. The CA stated that
the trial courts order dismissing the said case was not a
judgment on the merits as to constitute res judicata.
However, the CA declared that the RTC, as well as the MTCC,
erred in ruling that, by virtue of the purported last will and
testament of Isabel Cuntapay, the heirs of Rosendo Lasam
have a better right to the subject lot over Vicenta
Umengan. The CA explained that the said last will and
testament did not comply with the formal requirements of the
law on wills.[6]
Specifically, the CA found that the pages of the
purported last will and testament were not numbered in
accordance with the law. Neither did it contain the requisite
attestation clause. Isabel Cuntapay as testator and the
witnesses to the will did not affix their respective signatures on
the second page thereof. The said instrument was likewise not
acknowledged before a notary public by the testator and the
witnesses. The CA even raised doubts as to its authenticity,
noting that while Isabel Cuntapay died in 1947 and the heirs of
Rosendo Lasam claimed that they discovered the same only in
1997, a date May 19, 1956 appears on the last page of the
purported will. The CA opined that if this was the date of
execution, then the will was obviously spurious. On the other
hand, if this was the date of its discovery, then the CA
expressed bafflement as to why the heirs of Rosendo Lasam,
through their mother, declared in the Partition Agreement
dated December 28, 1979 that Isabel Cuntapay died intestate.
It was observed by the CA that as against these infirmities in
the claim of the heirs of Rosendo Lasam, Vicenta Umengan
presented a Deed of Sale and a Deed of Donation to justify
her possession of the subject lot. The CA noted that she has
also possessed the subject property since 1955. Such prior
possession, the CA held, gave Vicente Umengan the right to
remain in the subject lot until a person with a better right
lawfully ejects her. The heirs of Rosendo Lasam do not have
such a better right. The CA stressed that the ruling on the
issue of physical possession does not affect the title to the
subject lot nor constitute a binding and conclusive adjudication
on the merits on the issue of ownership.The parties are not
precluded from filing the appropriate action to directly contest
the ownership of or the title to the subject lot.
The decretal portion of the assailed decision of the CA reads:
WHEREFORE, premises considered, the
appeal is GRANTED. The August 29, 2003
decision of the RTC, Branch 1, Tuguegarao
City, Cagayan in Civil Case No. 5924 is hereby
REVERSED and SET ASIDE. Private
respondents complaint for unlawful detainer
against petitioner is dismissed for lack of merit.
SO ORDERED.[7]
The heirs of Rosendo Lasam sought the reconsideration
thereof but their motion was denied by the CA in its Resolution
dated May 17, 2005.
The heirs of Rosendo Lasam (petitioners) now come to the
Court alleging that the CA committed reversible error in setting
aside the decision of the RTC, which had affirmed that of the
MTCC, and dismissing their complaint for unlawful detainer
against respondent Vicenta Umengan.
Petitioners argue that the CA erred when it held, on one hand,
that the MTCC had jurisdiction over the subject matter of the
complaint as the allegations therein make out a case for
unlawful detainer but, on the other hand, proceeded to discuss
the validity of the last will and testament of Isabel Cuntapay.
Petitioners insist that respondent is holding the subject lot by
mere tolerance and that they, as the heirs of Rosendo Lasam
who was the rightful owner of the subject lot, have a better
right thereto. It was allegedly error for the CA to declare the
last will and testament of Isabel Cuntapay as null and void for
its non-compliance with the formal requisites of the law on
wills. The said matter cannot be resolved in an unlawful
detainer case, which only involves the issue of material or
physical possession of the disputed property. In any case, they
maintain that the said will complied with the formal
requirements of the law.
It was allegedly also erroneous for the CA to consider
in respondents favor the deed of sale and deed of donation
covering portions of the subject lot, when these documents
had already been passed upon by the RTC (Branch 3)
of Tuguegarao City in Civil Case No. 4917 when it dismissed
the respondents complaint for partition of the subject lot. The
said order allegedly constituted res judicata and may no longer
be reviewed by the CA.
Petitioners emphasize that in an unlawful detainer case, the
only issue to be resolved is who among the parties is entitled
to the physical or material possession of the property in
dispute. On this point, the MTCC held (and the same was
affirmed by the RTC) that petitioners have a better right since
the merely tolerated possession of the respondent had already
expired upon the petitioners formal demand on her to
vacate. In support of this claim, they point to the affidavit of
Heliodoro Turingan, full brother of the respondent, attesting
that the latters possession of the subject lot was by mere
tolerance of Rosendo Lasam who inherited the same from
Isabel Cuntapay.
are not sacrosanct. It has been held that while the
requirements for perfecting an appeal must be strictly followed
as they are considered indispensable interdictions against
needless delays and for orderly discharge of judicial business,
the law does admit of exceptions when warranted by
circumstances.[8] In the present case, the CA cannot be faulted

According to petitioners, respondents predecessors-in-interest in choosing to overlook the technical defects ofrespondents

from whom she derived her claim over the subject lot by appeal. After all, technicality should not be allowed to stand in

donation and sale could not have conveyed portions thereof to the way of equitably and completely resolving the rights and

her, as she had claimed, because until the present, it is still obligations of the parties.[9]

covered by OCT Nos. 196 and 1032 under the names of

The Court shall now resolve the substantive issues
Pedro and Leona Cuntapay. Their respective estates have not
raised by petitioners.
been settled up to now.

It is well settled that in ejectment suits, the only issue for

It is also the contention of petitioners that the CA should have
resolution is the physical or material possession of the
dismissed outright respondents petition filed therewith for
property involved, independent of any claim of ownership by
failure to comply with the technical requirements of the Rules
any of the party litigants. However, the issue of ownership may
of Court. Specifically, the petition was not allegedly properly
be provisionally ruled upon for the sole purpose of determining
verified, lacked statement of material dates and written
who is entitled to possession de facto.[10]
explanation on why personal service was not made.
In the present case, petitioners base their claim of right to
This last contention of petitioners deserves scant
possession on the theory that their father, Rosendo Lasam,
consideration. The technical requirements for filing an appeal
was the sole owner of the subject lot by virtue of the newly
discovered last will and testament of Isabel Cuntapay
bequeathing the same to him. Respondent is allegedly holding
the subject lot by mere tolerance of Rosendo Lasam and,
upon the petitioners formal demand on her to vacate the
same, respondents right to possess it has expired.
On the other hand, respondent hinges her claim of
possession on the legal conveyances made to her by the
children of Isabel Cuntapay by her first husband, namely,
Maria, Rufo, Sado and Abdon. These conveyances were made
through the sale and donation by the said siblings of their
respective portions in the subject lot to respondent as
evidenced by the pertinent deeds.
The CA correctly held that, as between the respective
claims of petitioners and respondent, the latter has a better
right to possess the subject lot.
As earlier stated, petitioners rely on the last will and
testament of Isabel Cuntapay that they had allegedly newly
discovered. On the basis of this instrument, the MTCC and
RTC ruled that petitioners have a better right to the possession
of the subject lot because, following the law on succession, it
should be respected and should prevail over intestate
succession.
However, contrary to the ruling of the MTCC and RTC,
the purported last will and testament of Isabel Cuntapay could
not properly be relied upon to establish petitioners right to
possess the subject lot because, without having been
probated, the said last will and testament could not be the
source of any right.
Article 838 of the Civil Code is instructive:
Art. 838. No will shall pass either real or
personal property unless it is proved and
allowed in accordance with the Rules of Court.
The testator himself may, during his lifetime,
petition the court having jurisdiction for the
allowance of his will. In such case, the pertinent
provisions of the Rules of Court for the
allowance of wills after the testators death shall
govern.
The Supreme Court shall formulate such
additional Rules of Court as may be necessary
for the allowance of wills on petition of the
testator.
 Subject to the right of appeal, the allowance of
the will, either during the lifetime of the testator
or after his death, shall be conclusive as to its
due execution.
In Caiza v. Court of Appeals,[11] the Court ruled that: [a] will is
essentially ambulatory; at any time prior to the testators death,
it may be changed or revoked; and until admitted to probate,
it has no effect whatever and no right can be claimed
thereunder, the law being quite explicit: No will shall pass
either real or personal property unless it is proved and allowed
in accordance with the Rules of Court.[12]
Dr. Tolentino, an eminent authority on civil law, also explained
that [b]efore any will can have force or validity it must be
probated. To probate a will means to prove before some
officer or tribunal, vested by law with authority for that purpose,
that the instrument offered to be proved is the last will and
testament of the deceased person whose testamentary act it is
alleged to be, and that it has been executed, attested and
published as required by law, and that the testator was of
sound and disposing mind. It is a proceeding to establish the
validity of the will.[13] Moreover, the presentation of the will for
probate is mandatory and is a matter of public policy.[14]
Following the above truisms, the MTCC and RTC, therefore,
erroneously ruled that petitioners have a better right to
possess the subject lot on the basis of the purported last will
and testament of Isabel Cuntapay, which, to date, has not
been probated. Stated in another manner, Isabel Cuntapays
last will and testament, which has not been probated, has no
effect whatever and petitioners cannot claim any right
thereunder.
Hence, the CA correctly held that, as against petitioners
claim, respondent has shown a better right of possession over
the subject lot as evidenced by the deeds of conveyances
executed in her favor by the children of Isabel Cuntapay by her
first marriage.
Contrary to the claim of petitioners, the dismissal of
respondents action for partition in Civil Case No. 4917 before
the RTC (Branch 3) of Tuguegarao City does not constitute res
judicata on the matter of the validity of the said conveyances
or even as to the issue of the ownership of the subject lot. The
order dismissing respondents action for partition in Civil Case
No. 4917 stated thus:
For resolution is a motion to dismiss based on
defendants [referring to the petitioners herein]
affirmative defenses consisting inter alia in the
discovery of a last will and testament of Isabel
Cuntapay, the original owner of the land in
dispute.
xxx
 It appears, however, that the last will and
testament of the late Isabel Cuntapay has not
yet been allowed in probate, hence, there is an
imperative need to petition the court for the
allowance of said will to determine once and for
all the proper legitimes of legatees and
devisees before any partition of the property
may be judicially adjudicated.
It is an elementary rule in law that testate
proceedings take precedence over any other
action especially where the will evinces the
intent of the testator to dispose of his whole
estate.
With the discovery of the will of the late Isabel
Cuntapay in favor of the defendants, the Court
can order the filing of a petition for the probate
of the same by the interested party.
WHEREFORE, in light of the foregoing
considerations, let the above-entitled case be
as it is hereby DISMISSED.
SO ORDERED.[15]
For there to be res judicata, the following elements must be
present: (1) finality of the former judgment; (2) the court which
rendered it had jurisdiction over the subject matter and the
parties; (3) it must be a judgment on the merits; and (4) there
must be, between the first and second actions, identity of
[16]
parties, subject matter and causes of action. The third
requisite, i.e., that the former judgment must be a judgment on
the merits, is not present between the action for partition and
the complaint a quo for unlawful detainer.As aptly observed by
the CA:
Our reading of the Orders (dated June 16,
1997 and October 13, 1997) in Civil Case No.
4917 reveals that the RTC, Branch 3,
Tuguegarao, Cagayan, dismissed the complaint
for partition because of the discovery of the
alleged last will and testament of Isabel
Cuntapay. The court did not declare
respondents [referring to the petitioners herein]
the owners of the disputed property.It simply
ordered them to petition the court for the
allowance of the will to determine the proper
legitimes of the heirs prior to any
partition. Instead of filing the appropriate
petition for the probate of Isabel Cuntapays will,
the respondents filed the present complaint for
unlawful detainer. Viewed from this perspective,
we have no doubt that the courts Orders cited
by the respondents are not judgments on the
merits that would result in the application of the
principle of res judicata. Where the trial court
merely refrained from proceeding with the case
and granted the motion to dismiss with some
clarification without conducting a trial on the
merits, there is no res judicata.[17]
Further, it is not quite correct for petitioners to contend that the
children of Isabel Cuntapay by her first marriage could not
have conveyed portions of the subject lot to respondent, as
she had claimed, because until the present, it is still covered
by OCT Nos. 196 and 1032 under the names of Pedro and
Leona Cuntapay. To recall, it was already agreed by the heirs
of the said spouses in a Partition Agreement dated December
28, 1979 that the subject lot would belong to Isabel
Cuntapay. The latter died leaving her six children by both
marriages as heirs. Considering that her purported last will and
testament has, as yet, no force and effect for not having been
probated, her six children are deemed to be co-owners of the
subject lot having their respective pro indiviso shares. The
conveyances made by the children of Isabel Cuntapay by her
first marriage of their respective pro indiviso shares in the
subject lot to respondent are valid because the law recognizes
the substantive right of heirs to dispose of their ideal share in
the co-heirship
and/co-ownership among the heirs. The Court had expounded
the principle in this wise:
This Court had the occasion to rule that there is
no doubt that an heir can sell whatever right,
interest, or participation he may have in the
property under administration. This is a matter
which comes under the jurisdiction of the
probate court.
The right of an heir to dispose of the decedents
property, even if the same is under
administration, is based on the Civil Code
provision stating that the possession of
hereditary property is deemed transmitted to
the heir without interruption and from the
moment of the death of the decedent, in case
the inheritance is accepted. Where there are
however, two or more heirs, the whole estate of
the decedent is, before its partition, owned in
common by such heirs.
The Civil Code, under the provisions of co-
ownership, further qualifies this right. Although
it is mandated that each co-owner shall have
the full ownership of his part and of the fruits
and benefits pertaining thereto, and thus may
alienate, assign or mortgage it, and even
substitute another person in its enjoyment, the
effect of the alienation or the mortgage, with
respect to the co-owners, shall be limited to the
portion which may be allotted to him in the
division upon the termination of the co-
ownership. In other words, the law does not
prohibit a co-owner from selling, alienating or
mortgaging his ideal share in the property held
in common.
As early as 1942, this Court has recognized
said right of an heir to dispose of property under
administration. In the case of Teves de
Jakosalem vs. Rafols, et al., it was said that the
sale made by an heir of his share in an
inheritance, subject to the result of the pending
administration, in no wise, stands in the way of
such administration. The Court then relied on
the provision of the old Civil Code, Article 440
and Article 399 which are still in force as Article
533 and Article 493, respectively, in the new
Civil Code. The Court also cited the words of a
noted civilist, Manresa: Upon the death of a
person, each of his heirs becomes the
 undivided owner of the whole estate left with x x x our ruling on the issue of physical
respect to the part or portion which might be possession does not affect title to the property
adjudicated to him, a community of ownership nor constitute a binding and conclusive
being thus formed among the co-owners of the adjudication on the merits on the issue of
estate which remains undivided.[18] ownership. The parties are not precluded from
filing the appropriate action directly contesting
the ownership of or the title to the property.[19]
Contrary to the assertion of petitioners, therefore, the
conveyances made by the children of Isabel Cuntapay by her
Likewise, it is therefore in this context that the CAs
first marriage to respondent are valid insofar as their pro
finding on the validity of Isabel Cuntapays last will and
indiviso shares are concerned. Moreover, the CA justifiably
testament must be considered. Such is merely a provisional
held that these conveyances, as evidenced by the deed of
ruling thereon for the sole purpose of determining who is
donation and deed of sale presented by respondent, coupled
entitled to possession de facto.
with the fact that she has been in possession of the subject lot
since 1955, establish that respondent has a better right to
possess the same as against petitioners whose claim is largely WHEREFORE, premises considered, the petition
based on Isabel Cuntapays last will and testament which, to is DENIED. The assailed Decision dated February 16,
date, has not been probated; hence, has no force and effect 2005 and the Resolution dated May 17, 2005 of the Court of
and under which no right can be claimed by Appeals in CA-G.R. SP No. 80032 are AFFIRMED.
petitioners. Significantly, the probative value of the other SO ORDERED.
evidence relied upon by petitioners to support their claim,
which was the affidavit of Heliodoro Turingan, was not passed
upon by the MTCC and the RTC. Their respective decisions
did not even mention the same.

In conclusion, it is well to stress the CAs admonition

that
G.R. Nos. 140371-72 November 27, 2006
DY YIENG SEANGIO, BARBARA D. SEANGIO and
VIRGINIA D. SEANGIO, Petitioners,
vs.
HON. AMOR A. REYES, in her capacity as Presiding
Judge, Regional Trial Court, National Capital Judicial
Region, Branch 21, Manila, ALFREDO D. SEANGIO,
ALBERTO D. SEANGIO, ELISA D. SEANGIO-SANTOS,
VICTOR D. SEANGIO, ALFONSO D. SEANGIO, SHIRLEY D.
SEANGIO-LIM, BETTY D. SEANGIO-OBAS and JAMES D.
SEANGIO, Respondents.
DECISION
AZCUNA, J.:
This is a petition for certiorari1 with application for the issuance
of a writ of preliminary injunction and/or temporary restraining
order seeking the nullification of the orders, dated August 10,
1999 and October 14, 1999, of the Regional Trial Court of
Manila, Branch 21 (the RTC), dismissing the petition for
probate on the ground of preterition, in the consolidated cases,
docketed as SP. Proc. No. 98-90870 and SP. Proc. No. 99-
93396, and entitled, "In the Matter of the Intestate Estate of
Segundo C. Seangio v. Alfredo D. Seangio, et al." and "In the
Matter of the Probate of the Will of Segundo C. Seangio v. Dy
Yieng Seangio, Barbara D. Seangio and Virginia Seangio."
The facts of the cases are as follows:
On September 21, 1988, private respondents filed a petition
for the settlement of the intestate estate of the late Segundo
Seangio, docketed as Sp. Proc. No. 98–90870 of the RTC,
and praying for the appointment of private respondent Elisa D.
Seangio–Santos as special administrator and guardian ad
litem of petitioner Dy Yieng Seangio.
Petitioners Dy Yieng, Barbara and Virginia, all surnamed
Seangio, opposed the petition. They contended that: 1) Dy
Yieng is still very healthy and in full command of her faculties;
2) the deceased Segundo executed a general power of
attorney in favor of Virginia giving her the power to manage
and exercise control and supervision over his business in the
Philippines; 3) Virginia is the most competent and qualified to
serve as the administrator of the estate of Segundo because
she is a certified public accountant; and, 4) Segundo left a
holographic will, dated September 20, 1995, disinheriting one
of the private respondents, Alfredo Seangio, for cause. In view
of the purported holographic will, petitioners averred that in the
event the decedent is found to have left a will, the intestate
proceedings are to be automatically suspended and replaced
by the proceedings for the probate of the will.
On April 7, 1999, a petition for the probate of the holographic
will of Segundo, docketed as SP. Proc. No. 99–93396, was
filed by petitioners before the RTC. They likewise reiterated
that the probate proceedings should take precedence over SP.
Proc. No. 98–90870 because testate proceedings take
precedence and enjoy priority over intestate proceedings.2
The document that petitioners refer to as Segundo’s
holographic will is quoted, as follows:
Kasulatan sa pag-aalis ng mana
Tantunin ng sinuman
Ako si Segundo Seangio Filipino may asawa naninirahan sa
465-A Flores St., Ermita, Manila at nagtatalay ng maiwanag na
pag-iisip at disposisyon ay tahasan at hayagang inaalisan ko
ng lahat at anumang mana ang paganay kong anak na
si Alfredo Seangio dahil siya ay naging lapastangan sa akin at
isan beses siya ng sasalita ng masama harapan ko at mga
kapatid niya na si Virginia Seangio labis kong kinasama ng
loob ko at sasabe rin ni Alfredo sa akin na ako nasa ibabaw
gayon gunit daratin ang araw na ako nasa ilalim siya at siya
nasa ibabaw.
Labis kong ikinasama ng loob ko ang gamit ni Alfredo ng akin
pagalan para makapagutang na kuarta siya at kanya asawa
na si Merna de los Reyes sa China Bangking Corporation na
millon pesos at hindi ng babayad at hindi ng babayad ito ay
nagdulot sa aking ng malaking kahihiya sa mga may-ari at
stockholders ng China Banking.
At ikinagalit ko pa rin ang pagkuha ni Alfredo at ng kanyang
asawa na mga custome[r] ng Travel Center of the Philippines
na pinagasiwaan ko at ng anak ko si Virginia.
Dito ako nagalit din kaya gayon ayoko na bilanin si Alfredo ng
anak ko at hayanan kong inaalisan ng lahat at anoman mana
na si Alfredo at si Alfredo Seangio ay hindi ko siya anak at
hindi siya makoha mana.
Nila[g]daan ko ngayon ika 20 ng Setyembre 1995 sa longsod
ng Manila sa harap ng tatlong saksi. 3
(signed)
Segundo Seangio
Nilagdaan sa harap namin
(signed)
Dy Yieng Seangio (signed)
Unang Saksi ikalawang saksi
(signed)
ikatlong saksi
On May 29, 1999, upon petitioners’ motion, SP. Proc. No. 98–
90870 and SP. Proc. No. 99–93396 were consolidated.4
On July 1, 1999, private respondents moved for the dismissal
of the probate proceedings5 primarily on the ground that the
document purporting to be the holographic will of Segundo
does not contain any disposition of the estate of the deceased
and thus does not meet the definition of a will under Article 783
of the Civil Code. According to private respondents, the will
only shows an alleged act of disinheritance by the decedent of
his eldest son, Alfredo, and nothing else; that all other
compulsory heirs were not named nor instituted as heir,
devisee or legatee, hence, there is preterition which would
result to intestacy. Such being the case, private respondents
maintained that while procedurally the court is called upon to
rule only on the extrinsic validity of the will, it is not barred from
delving into the intrinsic validity of the same, and ordering the
dismissal of the petition for probate when on the face of the
will it is clear that it contains no testamentary disposition of the
property of the decedent.
Petitioners filed their opposition to the motion to dismiss
contending that: 1) generally, the authority of the probate court
is limited only to a determination of the extrinsic validity of the
will; 2) private respondents question the intrinsic and not the
extrinsic validity of the will; 3) disinheritance constitutes a
disposition of the estate of a decedent; and, 4) the rule on
preterition does not apply because Segundo’s will does not
constitute a universal heir or heirs to the exclusion of one or
more compulsory heirs.6
On August 10, 1999, the RTC issued its assailed order,
dismissing the petition for probate proceedings:
A perusal of the document termed as "will" by
oppositors/petitioners Dy Yieng Seangio, et al., clearly shows
that there is preterition, as the only heirs mentioned thereat
are Alfredo and Virginia. [T]he other heirs being omitted, Article
854 of the New Civil Code thus applies. However, insofar as
the widow Dy Yieng Seangio is concerned, Article 854 does
not apply, she not being a compulsory heir in the direct line.
As such, this Court is bound to dismiss this petition, for to do
otherwise would amount to an abuse of discretion. The
Supreme Court in the case of Acain v. Intermediate Appellate
Court [155 SCRA 100 (1987)] has made its position clear: "for
… respondents to have tolerated the probate of the will and
allowed the case to progress when, on its face, the will
appears to be intrinsically void … would have been an
exercise in futility. It would have meant a waste of time, effort,
expense, plus added futility. The trial court could have denied
its probate outright or could have passed upon the intrinsic
validity of the testamentary provisions before the extrinsic
validity of the will was resolved(underscoring supplied).
WHEREFORE, premises considered, the Motion to Suspend
Proceedings is hereby DENIED for lack of merit. Special
Proceedings No. 99–93396 is hereby DISMISSED without
pronouncement as to costs.
SO ORDERED.7
Petitioners’ motion for reconsideration was denied by the RTC
in its order dated October 14, 1999.
Petitioners contend that:
THE RESPONDENT JUDGE ACTED IN EXCESS OF HER
JURISDICTION OR WITH GRAVE ABUSE OF DISCRETION
AMOUNTING TO LACK OR EXCESS OF JURISDICTION
AND DECIDED A QUESTION OF LAW NOT IN ACCORD
WITH LAW AND JURISPRUDENCE IN ISSUING THE
QUESTIONED ORDERS, DATED 10 AUGUST 1999 AND 14
OCTOBER 1999 (ATTACHMENTS "A" AND "B" HEREOF)
CONSIDERING THAT:
I
THE RESPONDENT JUDGE, WITHOUT EVEN COMPLYING
WITH SECTIONS 3 AND 4 OF RULE 76 OF THE RULES OF
COURT ON THE PROPER PROCEDURE FOR SETTING
THE CASE FOR INITIAL HEARING FOR THE
ESTABLISHMENT OF THE JURISDICTIONAL FACTS,
DISMISSED THE TESTATE CASE ON THE ALLEGED
GROUND THAT THE TESTATOR’S WILL IS VOID
ALLEGEDLY BECAUSE OF THE EXISTENCE OF
PRETERITION, WHICH GOES INTO THE INTRINSIC
VALIDITY OF THE WILL, DESPITE THE FACT THAT IT IS A
SETTLED RULE THAT THE AUTHORITY OF PROBATE
COURTS IS LIMITED ONLY TO A DETERMINATION OF THE
EXTRINSIC VALIDITY OF THE WILL, I.E., THE DUE
EXECUTION THEREOF, THE TESTATOR’S TESTAMENTARY
CAPACITY AND THE COMPLIANCE WITH THE REQUISITES
OR SOLEMNITIES PRESCRIBED BY LAW;
II
EVEN ASSUMING ARGUENDO THAT THE RESPONDENT
JUDGE HAS THE AUTHORITY TO RULE UPON THE
INTRINSIC VALIDITY OF THE WILL OF THE TESTATOR, IT
IS INDUBITABLE FROM THE FACE OF THE TESTATOR’S
WILL THAT NO PRETERITON EXISTS AND THAT THE WILL
IS BOTH INTRINSICALLY AND EXTRINSICALLY VALID;
AND,
III
RESPONDENT JUDGE WAS DUTY BOUND TO SUSPEND
THE PROCEEDINGS IN THE INTESTATE CASE
CONSIDERING THAT IT IS A SETTLED RULE THAT
TESTATE PROCEEDINGS TAKE PRECEDENCE OVER
INTESTATE PROCEEDINGS.
Petitioners argue, as follows:
First, respondent judge did not comply with Sections 3 and 4
of Rule 76 of the Rules of Court which respectively mandate
the court to: a) fix the time and place for proving the will when
all concerned may appear to contest the allowance thereof,
and cause notice of such time and place to be published three
weeks successively previous to the appointed time in a
newspaper of general circulation; and, b) cause the mailing of
said notice to the heirs, legatees and devisees of the testator
Segundo;
Second, the holographic will does not contain any institution of
an heir, but rather, as its title clearly states, Kasulatan ng Pag-
Aalis ng Mana, simply contains a disinheritance of a
compulsory heir. Thus, there is no preterition in the decedent’s
will and the holographic will on its face is not intrinsically void;
Third, the testator intended all his compulsory heirs, petitioners
and private respondents alike, with the sole exception of
Alfredo, to inherit his estate. None of the compulsory heirs in
the direct line of Segundo were preterited in the holographic
will since there was no institution of an heir;
Fourth, inasmuch as it clearly appears from the face of the
holographic will that it is both intrinsically and extrinsically
valid, respondent judge was mandated to proceed with the
hearing of the testate case; and,
Lastly, the continuation of the proceedings in the intestate
case will work injustice to petitioners, and will render nugatory
the disinheritance of Alfredo.
The purported holographic will of Segundo that was presented
by petitioners was dated, signed and written by him in his own
handwriting. Except on the ground of preterition, private
respondents did not raise any issue as regards the authenticity
of the document.
The document, entitled Kasulatan ng Pag-Aalis ng Mana,
unmistakably showed Segundo’s intention of excluding his
eldest son, Alfredo, as an heir to his estate for the reasons that
he cited therein. In effect, Alfredo was disinherited by
Segundo.
For disinheritance to be valid, Article 916 of the Civil Code
requires that the same must be effected through a will wherein
the legal cause therefor shall be specified. With regard to the
reasons for the disinheritance that were stated by Segundo in
his document, the Court believes that the incidents, taken as a
whole, can be considered a form of maltreatment of Segundo
by his son, Alfredo, and that the matter presents a sufficient
cause for the disinheritance of a child or descendant under
Article 919 of the Civil Code:
Article 919. The following shall be sufficient causes for the
disinheritance of children and descendants, legitimate as well
as illegitimate:
 (1) When a child or descendant has been found guilty
of an attempt against the life of the testator, his or her
spouse, descendants, or ascendants;
(2) When a child or descendant has accused the
testator of a crime for which the law prescribes
imprisonment for six years or more, if the accusation
has been found groundless;
(3) When a child or descendant has been convicted of
adultery or concubinage with the spouse of the
testator;
(4) When a child or descendant by fraud, violence,
intimidation, or undue influence causes the testator to
make a will or to change one already made;
(5) A refusal without justifiable cause to support the
parents or ascendant who disinherit such child or
descendant;
(6) Maltreatment of the testator by word or deed, by
the child or descendant;8
(7) When a child or descendant leads a dishonorable
or disgraceful life;
(8) Conviction of a crime which carries with it the
penalty of civil interdiction.
Now, the critical issue to be determined is whether the
document executed by Segundo can be considered as a
holographic will.
A holographic will, as provided under Article 810 of the Civil
Code, must be entirely written, dated, and signed by the hand
of the testator himself. It is subject to no other form, and may
be made in or out of the Philippines, and need not be
witnessed.
Segundo’s document, although it may initially come across as
a mere disinheritance instrument, conforms to the formalities
of a holographic will prescribed by law. It is written, dated and
signed by the hand of Segundo himself. An intent to
dispose mortis causa[9] can be clearly deduced from the terms
of the instrument, and while it does not make an affirmative
disposition of the latter’s property, the disinheritance of Alfredo,
nonetheless, is an act of disposition in itself. In other words,
the disinheritance results in the disposition of the property of
the testator Segundo in favor of those who would succeed in
the absence of Alfredo.10
Moreover, it is a fundamental principle that the intent or the will
of the testator, expressed in the form and within the limits
prescribed by law, must be recognized as the supreme law in
succession. All rules of construction are designed to ascertain
and give effect to that intention. It is only when the intention of
the testator is contrary to law, morals, or public policy that it
cannot be given effect.11
Holographic wills, therefore, being usually prepared by one
who is not learned in the law, as illustrated in the present case,
should be construed more liberally than the ones drawn by an
expert, taking into account the circumstances surrounding the
execution of the instrument and the intention of the
testator.12 In this regard, the Court is convinced that the
document, even if captioned as Kasulatan ng Pag-Aalis ng
Mana, was intended by Segundo to be his last testamentary
act and was executed by him in accordance with law in the
form of a holographic will. Unless the will is probated,13 the
disinheritance cannot be given effect.14
With regard to the issue on preterition,15 the Court believes SO ORDERED.
that the compulsory heirs in the direct line were not preterited
in the will. It was, in the Court’s opinion, Segundo’s last
expression to bequeath his estate to all his compulsory heirs,
with the sole exception of Alfredo. Also, Segundo did not
institute an heir16 to the exclusion of his other compulsory
heirs. The mere mention of the name of one of the petitioners,
Virginia, in the document did not operate to institute her as the
universal heir. Her name was included plainly as a witness to
the altercation between Segundo and his son, Alfredo.1âwphi1

Considering that the questioned document is Segundo’s

holographic will, and that the law favors testacy over intestacy,
the probate of the will cannot be dispensed with. Article 838 of
the Civil Code provides that no will shall pass either real or
personal property unless it is proved and allowed in
accordance with the Rules of Court. Thus, unless the will is
probated, the right of a person to dispose of his property may
be rendered nugatory.17

In view of the foregoing, the trial court, therefore, should have

allowed the holographic will to be probated. It is settled that
testate proceedings for the settlement of the estate of the
decedent take precedence over intestate proceedings for the
same purpose.18

WHEREFORE, the petition is GRANTED. The Orders of the

Regional Trial Court of Manila, Branch 21, dated August 10,
1999 and October 14, 1999, are set aside. Respondent judge
is directed to reinstate and hear SP Proc. No. 99-93396 for the
allowance of the holographic will of Segundo Seangio. The
intestate case or SP. Proc. No. 98-90870 is hereby suspended
until the termination of the aforesaid testate proceedings.

No costs.
 [G.R. No. 48840. December 29, 1943.]
ERNESTO M. GUEVARA, Petitioner-Appellant, v. ROSARIO
GUEVARA and her husband PEDRO
BUISON, Respondents-Appellees.
Primicias, Abad, Mencias & Castillo for Appellant.
Pedro C. Quinto for Appellees.
SYLLABUS
1. WILLS; PRESENTATION OF WILL FOR PROBATE IS
MANDATORY; SETTLEMENT OF ESTATE ON BASIS OF
INTESTACY WHEN DECEDENT LEFT A WILL, AGAINST
THE LAW. — We hold that under section 1 of Rule 74, in
relation to Rule 76, if the decedent left a will and no debts and
the heirs and legatees desire to make an extrajudicial partition
of the estate, they must first present that will to the court for
probate and divide the estate in accordance with the will. They
may not disregard the provisions of the will unless those
provisions are contrary to law. Neither may they do away with
the presentation of the will to the court for probate, because
such suppression of the will is contrary to law and public
policy. The law enjoins the probate of the will and public policy
requires it, because unless the will is probated and notice
thereof given to the whole world, the right of a person to
dispose of his property by will may be rendered nugatory, as is
attempted to be done in the instant case. Absent legatees and
devisees, or such of them as may have no knowledge of the
will, could be cheated of their inheritance thru the collusion of
some of the heirs who might agree to the partition of the estate
among themselves to the exclusion of others.
2. ID.; ID.; ID. — Even if the decedent left no debts and
nobody raises any question as to the authenticity and due
execution of the will, none of the heirs may sue for the partition
of the estate in accordance with that will without first securing
its allowance or probate of the court: first, because the law
expressly provides that "no will shall pass either real or
personal estate unless it is proved and allowed in the proper
court" ; and, second, because the probate of a will, which is a
proceeding in rem, cannot be dispensed with and substituted
by any other proceeding, judicial or extrajudicial, without
offending against public policy designed to effectuate the
testator’s right to dispose of his property by will in accordance
with law and to protect the rights of the heirs and legatees
under the will thru the means provided by law, among which
are the publication and the personal notices to each and all of
said heirs and legatees. Nor may the court approve and allow
the will presented in evidence in such an action for partition,
which is one in personam, any more than it could decree the
registration under the Torrens system of the land involved in
an ordinary action for reivindicacion or partition.
3. TORRENS REGISTRATION; REGISTRATION DOES NOT
AFFECT RIGHTS OF PARTITION BETWEEN LEGATEES. —
It results that the interested parties consented to the
registration of the land in question in the name of E. M. G.
alone subject to the implied trust on account of which he is
under obligation to deliver and convey to them their
corresponding shares after all the debts of the original owner
of said land had been paid. Such finding does not constitute a
reversal of the decision and decree of registration, which
merely confirmed the petitioner’s title; and in the absence of
any intervening innocent third party, the petitioner may be
compelled to fulfill the promise by virtue of which he acquired
his title. That is authorized by section 70 of the Land
Registration Act, cited by the Court of Appeals, and by the
decision of this Court in Severino v. Severino, 44 Phil., 343,
and the cases therein cited.
 DECISION
OZAETA, J.:
Ernesto M. Guevara and Rosario Guevara, legitimate son and
natural daughter, respectively, of the deceased Victorino L.
Guevara, are litigating here over their inheritance from the
latter. The action was commenced on November 12, 1937, by
Rosario Guevara to recover from Ernesto Guevara what she
claims to be her strict ligitime as an acknowledged natural
daughter of the deceased — to wit, a portion of 423,492
square meters of a large parcel of land described in original
certificate of title No. 51691 of the province of Pangasinan,
issued in the name of Ernesto M. Guevara — and to order the
latter to pay her P6,000 plus P2,000 a year as damages for
withholding such legitime from her. The defendant answered
the complaint contending that whatever right or rights the
plaintiff might have had, had been barred by the operation of
law.
It appears that on August 26, 1931, Victorino L. Guevara
executed a will (exhibit A), apparently with all the formalities of
the law, wherein he made the following bequests: To his
stepdaughter Candida Guevara, a pair of earrings worth P150
and a gold chain worth P40; to his son Ernesto M. Guevara, a
gold ring worth P180 and all the furniture, pictures, statues,
and other religious objects found in the residence of the
testator in Poblacion Sur, Bayambang, Pangasinan; "a mi hija
Rosario Guevara," a pair of earrings worth P120; to his
stepson Pio Guevara, a ring worth P120; and to his wife by
second marriage, Angustia Posadas, various pieces of jewelry
worth P1,020.
He also made the following devises: "A mis hijos Rosario
Guevara y Ernesto M. Guevara y a mis hijastros, Vivencio,
Eduviges, Dionisia, Candida y Pio, apellidados Guevara," a
residential lot with its improvements situate in the town of
Bayambang, Pangasinan, having an area of 960 square
meters and assessed at P540; to his wife Angustia Posadas
he confirmed the donation propter nuptias theretofore made by
him to her of a portion of 25 hectares of the large parcel of
land of 259-odd hectares described in plan Psu-66618. He
also devised to her a portion of 5 hectares of the same parcel
of land by way of complete settlement of her usufructuary
right.
He set aside 100 hectares of the same parcel of land to be
disposed of either by him during his lifetime or by his attorney-
in-fact Ernesto M. Guevara in order to pay all his pending
debts and to defray his expenses and those of his family up to
the time of his death.
The remander of said parcel of land he disposed of in the
following manner:jgc:chanrobles.com.ph
"(d). — Toda la porcion restante de mi terreno arriba descrito,
de la extension superficial aproximada de ciento veintinueve
(129) hectareas setenta (70) areas, y veinticinco (25)
centiareas, con todas sus mejoras existentes en la misma,
dejo y distribuyo, pro-indiviso, a mis siguientes herederos
como sigue:jgc:chanrobles.com.ph
"A mi hijo legitimo, Ernesto M. Guevara, ciento ocho (108)
hectareas, ocho (8) areas y cincuenta y cuatro (54) centiareas,
hacia la parte que colinda al Oeste de las cien (100) hectareas
referidas en el inciso (a) de este parrafo del testamento, como
su propiedad absoluta y exclusiva, en la cual extension
superficial estan incluidas cuarenta y tres (43) hectareas,
veintitres (23) areas y cuarenta y dos (42) centiareas que le
doy en concepto de mejora.

"A mi hija natural reconocida, Rosario Guevara, veintiun (21)
hectareas, sesenta y un (61) areas y setenta y un (71)
centiareas, que es la parte restante.
"Duodecimo. — Nombro por la presente como Albacea
Testamentario a mi hijo Ernesto M. Guevara, con relevacion
de fianza. Y una vez legalizado este testamento, y en cuanto
sea posible, es mi deseo, que los herederos y legatarios aqui
nombrados se repartan extrajudicialmente mis bienes de
conformidad con mis disposiciones arriba consignadas."cralaw
virtua1aw library
Subsequently, and on July 12, 1933, Victorino L. Guevara
executed a deed of sale (exhibit 2) in favor of Ernesto M.
Guevara whereby he conveyed to him the southern half of the
large parcel of land of which he had theretofore disposed by
the will above mentioned, in consideration of the sum of P1
and other valuable considerations, among which were the
payment of all his debts and obligations amounting to not less
than P16,500, his maintenance up to his death, and the
expenses of his last illness and funeral expenses. As to the
northern half of the same parcel of land, he declared: "Hago
constar tambien que reconozco a mi referido hijo Ernesto M.
Guevara como dueño de la mitad norte de la totalidad y
conjunto de los referidos terrenos por haberlos comprado de
su propio peculio del Sr. Rafael T. Puzon a quien habia
vendido con anterioridad."cralaw virtua1aw library
On September 27, 1933, final decree of registration was
issued in land registration case No. 15174 of the Court of First
Instance of Pangasinan, and pursuant thereto original
certificate of title No. 51691 of the same province was issued
on October 12 of the same year in favor of Ernesto M.
Guevara over the whole parcel of land described in the deed
of sale above referred to. The registration proceeding had
been commenced on November 1, 1932, by Victorino L.
Guevara and Ernesto M. Guevara as applicants, with Rosario,
among others, as oppositor; but before the trial of the case
Victorino L. Guevara withdrew as applicant and Rosario
Guevara and her co-oppositors also withdrew their opposition,
thereby facilitating the issuance of the title in the name of
Ernesto M. Guevara alone.
On September 27, 1933, Victorino L. Guevara died. His last
will and testament, however, was never presented to the court
for probate, nor has any administration proceeding ever been
instituted for the settlement of his estate. Whether the various
legatees mentioned in the will have received their respective
legacies or have even been given due notice of the execution
of said will and of the dispositions therein made in their favor,
does not affirmatively appear from the record of this case.
Ever since the death of Victorino L. Guevara, his only
legitimate son Ernesto M. Guevara appears to have
possessed the land adjudicated to him in the registration
proceeding and to have disposed of various portions thereof
for the purpose of paying the debts left by his father.
In the meantime Rosario Guevara, who appears to have had
her father’s last will and testament in her custody, did nothing
judicially to invoke the testamentary dispositions made therein
in her favor, whereby the testator acknowledged her as his
natural daughter and, aside from certain legacies and
bequests, devised to her a portion of 21.6171 hectares of the
large parcel of land described in the will. But a little over four
years after the testator’s demise, she (assisted by her
husband) commenced the present action against Ernesto M.
Guevara alone for the purpose hereinbefore indicated; and it
was only during the trial of this case that she presented the will
to the court, not for the purpose of having it probated but only
to prove that the deceased Victorino L. Guevara had
acknowledged her as his natural daughter. Upon that proof of
acknowledgment she claimed her share of the inheritance
from him, but on the theory or assumption that he died
intestate, because the will had not been probated, for which
reason, she asserted, the betterment therein made by the
testator in favor of his legitimate son Ernesto M. Guevara
should be disregarded. Both the trial court and the Court of
Appeals sustained that theory.
Two principal questions are before us for determination: (1) the
legality of the procedure adopted by the plaintiff (respondent
herein) Rosario Guevara; and (2) the efficacy of the deed of
sale exhibit 2 and the effect of the certificate of title issued to
the defendant (petitioner herein) Ernesto M. Guevara.
I
We cannot sanction the procedure adopted by the respondent
Rosario Guevara, it being in our opinion in violation of
procedural law and an attempt to circumvent and disregard the
last will and testament of the decedent. The Code of Civil
Procedure, which was in force up to the time this case was
decided by the trial court, contains the following pertinent
provisions:jgc:chanrobles.com.ph
"Sec. 625. Allowance Necessary, and Conclusive as to
Execution. — No will shall pass either the real or personal
estate, unless it is proved and allowed in the Court of First
Instance, or by appeal to the Supreme Court; and the
allowance by the court of a will of real and personal estate
shall be conclusive as to its due execution.
"Sec. 626. Custodian of Will to Deliver. — The person who has
the custody of a will shall, within thirty days after he knows of
the death of the testator, deliver the will into the court which
has jurisdiction, or to the executor named in the will.
"Sec. 627. Executor to Present Will and Accept or Refuse
Trust. — A person named as executor in a will, shall within
thirty days after he knows of the death of the testator, or within
thirty days after he knows that he is named executor, if he
obtained such knowledge after knowing of the death of the
testator, present such will to the court which has jurisdiction,
unless the will has been otherwise returned to said court, and
shall, within such period, signify to the court his acceptance of
the trust, or make known in writing his refusal to accept it.
"Sec. 628. Penalty. — A person who neglects any of the duties
required in the two preceding sections, unless he gives a
satisfactory excuse to the court, shall be subject to a fine not
exceeding one thousand dollars.
"Sec. 629. Person Retaining Will may be Committed. — If a
person having custody of a will after the death of the testator
neglects without reasonable cause to deliver the same to the
court having jurisdiction, after notice by the court so to do, he
may be committed to the prison of the province by a warrant
issued by the court, and there kept in close confinement until
he delivers the will."cralaw virtua1aw library
The foregoing provisions are now embodied in Rule 76 of the
new Rules of Court, which took effect on July 1, 1940.
The proceeding for the probate of a will is one in rem, with
notice by publication to the whole world and with personal
notice to each of the known heirs, legatees, and devisees of
the testator (section 630, C. C. P., and sections 3 and 4, Rule
77). Altho not contested (section 5, Rule 77), the due
execution of the will and the fact that the testator at the time of
its execution was of sound and disposing mind and not acting
under duress, menace, and undue influence or fraud, must be
proved to the satisfaction of the court, and only then may the
will be legalized and given effect by means of a certificate of
its allowance, signed by the judge and attested by the seal of
the court; and when the will devises real property, attested
copies thereof and of the certificate of allowance must be
recorded in the register of deeds of the province in which the
land lies. (Section 12, Rule 77, and section 624, C. C. P.)
It will readily be seen from the above provisions of the law that
the presentation of a will to the court for probate is mandatory
and its allowance by the court is essential and indispensable
to its efficacy. To assure and compel the probate of a will, the
law punishes a person who neglects his duty to present it to
the court with a fine not exceeding P2,000, and if he should
persist in not presenting it, he may be committed to prison and
kept there until he delivers the will.
The Court of Appeals took express notice of these
requirements of the law and held that a will, unless probated,
is ineffective. Nevertheless it sanctioned the procedure
adopted by the respondent for the following
reasons:jgc:chanrobles.com.ph
"The majority of the Court is of the opinion that if this case is
dismissed ordering the filing of testate proceedings, it would
cause injustice, inconvenience, delay, and much expense to
the parties, and that therefore, it is preferable to leave them in
the very status which they themselves have chosen, and to
decide their controversy once and for all, since, in a similar
case, the Supreme Court applied that same criterion (Leaño v.
Leaño, supra), which is now sanctioned by section 1 of Rule
74 of the Rules of Court. Besides, section 6 of Rule 124
provides that, if the procedure which the court ought to follow
in the exercise of its jurisdiction is not specifically pointed out
by the Rules of Court, any suitable process or mode of
procedure may be adopted which appears most consistent to
the spirit of the said Rules. Hence, we declare the action
instituted by the plaintiff to be in accordance with law."cralaw
virtua1aw library
Let us look into the validity of these considerations. Section 1
of Rule 74 provides as follows:jgc:chanrobles.com.ph
"Section 1. Extrajudicial settlement by agreement between
heirs. — If the decedent left no debts and the heirs and
legatees are all of age, or the minors are represented by their
judicial guardians, the parties may, without securing letters of
administration, divide the estate among themselves as they
see fit by means of a public instrument filed in the office of the
register of deeds, and should they disagree, they may do so in
an ordinary action of partition. If there is only one heir or one
legatee, he may adjudicate to himself the entire estate by
means of an affidavit filed in the office of the register of deeds.
It shall be presumed that the decedent left no debts if no
creditor files a petition for letters of administration within two
years after the death of the decedent."cralaw virtua1aw library
That is a modification of section 596 of the Code of Civil
Procedure, which reads as follows:jgc:chanrobles.com.ph
"Sec. 596. Settlement of Certain Intestates Without Legal
Proceedings. — Whenever all the heirs of a person who died
intestate are of lawful age and legal capacity and there are no
debts due from the estate, or all the debts have been paid the
heirs may, by agreement duly executed in writing by all of
them, and not otherwise, apportion and divide the estate
among themselves, as they may see fit, without proceedings in
court."cralaw virtua1aw library
The implication is that by the omission of the word "intestate"
and the use of the word "legatees" in section 1 of Rule 74, a
summary extrajudicial settlement of a deceased person’s
estate, whether he died testate or intestate, may be made
under the conditions specified. Even if we give retroactive
effect to section 1 of Rule 74 and apply it here, as the Court of
Appeals did, we do not believe it sanctions the
nonpresentation of a will for probate and much less the
nullification of such will thru the failure of its custodian to
present it to the court for probate; for such a result is precisely
what Rule 76 sedulously provides against. Section 1 of Rule
74 merely authorizes the extrajudicial or judicial partition of the
estate of a decedent "without securing letters of
administration." It does not say that in case the decedent left a
will the heirs and legatees may divide the estate among
themselves without the necessity of presenting the will to the
court for probate. The petition to probate a will and the petition
to issue letters of administration are two different things, altho
both may be made in the same case. The allowance of a will
precedes the issuance of letters testamentary or of
administration (section 4, Rule 78). One can have a will
probated without necessarily securing letters testamentary or
of administration. We hold that under section 1 of Rule 74, in
relation to Rule 76, if the decedent left a will and no debts and
the heirs and legatees desire to make an extrajudicial partition
of the estate, they must first present that will to the court for
probate and divide the estate in accordance with the will. They
may not disregard the provisions of the will unless those
provisions are contrary to law. Neither may they do away with
the presentation of the will to the court for probate, because
such suppression of the will is contrary to law and public
policy. The law enjoins the probate of the will and public policy
requires it, because unless the will is probated and notice
thereof given to the whole world, the right of a person to
dispose of his property by will may be rendered nugatory, as is
attempted to be done in the instant case. Absent legatees and
devisees, or such of them as may have no knowledge of the
will, could be cheated of their inheritance thru the collusion of
some of the heirs who might agree to the partition of the estate
among themselves to the exclusion of others.
In the instant case there is no showing that the various
legatees other than the present litigants had received their
respective legacies or that they had knowledge of the
existence and of the provisions of the will. Their right under the
will cannot be disregarded, nor may those rights be obliterated
on account of the failure or refusal of the custodian of the will
to present it to the court for probate.
Even if the decedent left no debts and nobody raises any
question as to the authenticity and due execution of the will,
none of the heirs may sue for the partition of the estate in
accordance with that will without first securing its allowance or
probate by the court, first, because the law expressly provides
that "no will shall pass either real or personal estate unless it is
proved and allowed in the proper court" ; and, second,
because the probate of a will, which is a proceeding in rem,
cannot be dispensed with and substituted by any other
proceeding, judicial or extrajudicial, without offending against
public policy designed to effectuate the testator’s right to
dispose of his property by will in accordance with law and to
protect the rights of the heirs and legatees under the will thru
the means provided by law, among which are the publication
and the personal notices to each and all of said heirs and
legatees. Nor may the court approve and allow the will
presented in evidence in such an action for partition, which is
one in personam, any more than it could decree the
registration under the Torrens system of the land involved in
an ordinary action for reivindicacion or partition.
We therefore believe and so hold that section 1 of Rule 74,
relied upon by the Court of Appeals, does not sanction the
procedure adopted by the Respondent.
The case of Leaño v. Leaño (25 Phil., 180), cited by the Court
of Appeals, like section 1 of Rule 74, sanctions the
extrajudicial partition by the heirs of the properties left by a
decedent, but not the nonpresentation of a will for probate. In
that case one Paulina Ver executed a will on October 11,
1902, and died on November 1, 1902. Her will was presented
for probate on November 10, 1902, and was approved and
allowed by the Court on August 16, 1904. In the meantime,
and on November 10, 1902, the heirs went ahead and divided
the properties among themselves and some of them
subsequently sold and disposed of their shares to third
persons. It does not affirmatively appear in the decision in that
case that the partition made by the heirs was not in
accordance with the will or that they in any way disregarded
the will. In closing the case by its order dated September 1,
1911, the trial court validated the partition, and one of the
heirs, Cunegunda Leaño, appealed. In deciding the appeal this
Court said:jgc:chanrobles.com.ph
"The principal assignment of error is that the lower court
committed an error in deciding that the heirs and legatees of
the estate of Dña. Paulina Ver had voluntarily divided the
estate among themselves."cralaw virtua1aw library
In resolving that question this Court
said:jgc:chanrobles.com.ph
"In view of the positive finding of the judge of the lower court
that there had been a voluntary partition of the estate among
the heirs and legatees, and in the absence of positive proof to
the contrary, we must conclude that the lower court had some
evidence to support its conclusion."cralaw virtua1aw library
Thus it will be seen that as a matter of fact no question of law
was raised and decided in that case. That decision cannot be
relied upon as an authority for the unprecedented and unheard
of procedure adopted by the respondent whereby she seeks to
prove her status as an acknowledged natural child of the
decedent by his will and attempts to nullify and circumvent the
testamentary dispositions made by him by not presenting the
will to the court for probate and by claiming her legitime as an
acknowledged natural child on the basis of intestacy; and that
in the face of express mandatory provisions of the law
requiring her to present the will to the court for probate.
In the subsequent case of Riosa v. Rocha (1926), 48 Phil. 737,
this Court departed from the procedure sanctioned by the trial
court and impliedly approved by this Court in the Leaño case,
by holding that an extrajudicial partition is not proper in testate
succession. In the Riosa case the Court, speaking thru Chief
Justice Avanceña, held:jgc:chanrobles.com.ph
"1. EXTRAJUDICIAL PARTITION; NOT PROPER IN TESTATE
SUCCESSION. — Section 596 of the Code of Civil Procedure,
authorizing the heirs of a person who died intestate to make
extrajudicial partition of the property of the deceased, without
going into any court of justice, makes express reference to
intestate succession, and therefore excludes testate
succession.
"2. ID.; EFFECTS OF; TESTATE SUCCESSION. — In the
instant case, which is a testate succession, the heirs made an
extrajudicial partition of the estate and at the same time
instituted proceeding for the probate of the will and the
administration of the estate. When the time came for making
the partition, they submitted to the court the extrajudicial
partition previously made by them, which the court approved.
Held: That for the purposes of the reservation and the rights
and obligations created thereby, in connection with the
relatives benefited, the property must not be deemed
transmitted to the heirs from the time the extrajudicial partition
was made, but from the time said partition was approved by
the court." (Syllabus.)
The Court of Appeals also cites section 6 of Rule 124, which
provides that if the procedure which the court ought to follow in
the exercise of its jurisdiction is not specifically pointed out by
the Rules of Court, any suitable process or mode of
proceeding may be adopted which appears most conformable
to the spirit of the said Rules. That provision is not applicable
here for the simple reason that the procedure which the court
ought to follow in the exercise of its jurisdiction is specifically
pointed out and prescribed in detail by Rules 74, 76, and 77 of
the Rules of Court.
The Court of Appeals also said "that if this case is dismissed,
ordering the filing of testate proceedings, it would cause
injustice, inconvenience, delay, and much expense to the
parties." We see no injustice in requiring the plaintiff not to
violate but to comply with the law. On the contrary, an injustice
might be committed against the other heirs and legatees
mentioned in the will if the attempt of the plaintiff to nullify said
will by not presenting it to the court for probate should be
sanctioned. As to the inconvenience, delay, and expense, the
plaintiff herself is to blame because she was the custodian of
the will and she violated the duty imposed upon her by
sections 2, 4, and 5 of Rule 76, which command her to deliver
said will to the court on pain of a fine not exceeding P2,000
and of imprisonment for contempt of court. As for the
defendant, he is not complaining of inconvenience, delay, and
expense, but on the contrary he is insisting that the procedure
prescribed by law be followed by the plaintiff.
Our conclusion is that the Court of Appeals erred in declaring
the action instituted by the plaintiff to be in accordance with
law. It also erred in awarding relief to the plaintiff in this action
on the basis of intestacy of the decedent notwithstanding the
proven existence of a will left by him and solely because said
will has not been probated due to the failure of the plaintiff as
custodian thereof to comply with the duty imposed upon her by
the law.
It is apparent that the defendant Ernesto M. Guevara, who was
named executor in said will, did not take any step to have it
presented to the court for probate and did not signify his
acceptance of the trust or refusal to accept it as required by
section 3 of Rule 76 (formerly section 627 of the Code of Civil
Procedure), because his contention is that said will, insofar as
the large parcel of land in litigation is concerned, has been
superseded by the deed of sale exhibit 2 and by the
subsequent issuance of the Torrens certificate of title in his
favor.
II
This brings us to the consideration of the second question,
referring to the efficacy of the deed of sale exhibit 2 and the
effect of the certificate of title issued to the defendant Ernesto
M. Guevara. So that the parties may not have litigated here in
vain insofar as that question is concerned, we deem it proper
to decide it now and obviate the necessity of a new action.
The deed of sale exhibit 2 executed by and between Victorino
L. Guevara and Ernesto M. Guevara before a notary public on
July 12, 1933, may be divided into two parts: (a) insofar as it
disposes of and conveys to Ernesto M. Guevara the southern
half of Victorino L. Guevara’s hacienda of 259-odd hectares in
consideration of P1 and other valuable considerations therein
mentioned; and (b) insofar as it declares that Ernesto M.
Guevara became the owner of the northern half of the same
hacienda by repurchasing it with his own money from Rafael T.
Puzon.
A. As to the conveyance of the southern half of the hacienda to
Ernesto M. Guevara in consideration of the latter’s assumption
of the obligation to pay all the debts of the deceased, the Court
of Appeals found it to be valid and efficacious because:" (a) it
has not been proven that the charges imposed as a condition
is [are] less than the value of the property; and (b) neither has
it been proven that the defendant did not comply with the
conditions imposed upon him in the deed of transfer." As a
matter of fact the Court of Appeals found: "It appears that the
defendant has been paying the debts left by his father. To
accomplish this, he had to alienate considerable portions of
the above-mentioned land. And we cannot brand such
alienation as anomalous unless it is proven that they have
exceeded the value of what he has acquired by virtue of the
deed of July 12, 1933, and that of his corresponding share in
the inheritance." The finding of the Court of Appeals on this
aspect of the case is final and conclusive upon the
respondent, who did not appeal therefrom.
B. With regard to the northern half of the hacienda, the
findings of fact and of law made by the Court of Appeals are as
follows:jgc:chanrobles.com.ph
"The defendant has tried to prove that with his own money, he
bought from Rafael Puzon one-half of the land in question, but
the Court a quo, after considering the evidence, found it not
proven; we hold that such conclusion is well founded. The
acknowledgment by the deceased, Victorino L. Guevara, of
the said transactions, which was inserted incidentally in the
document of July 12, 1933, is clearly belied by the fact that the
money paid to Rafael Puzon came from Silvestre P. Coquia, to
whom Victorino L. Guevara had sold a parcel of land with the
right of repurchase. The defendant, acting for his father,
received the money and delivered it to Rafael Puzon to
redeem the land in question, and instead of executing a deed
of redemption in favor of Victorino L. Guevara, the latter
executed a deed of sale in favor of the defendant.
"The plaintiff avers that she withdrew her opposition to the
registration of the land in the name of the defendant, because
of the latter’s promise that after paying all the debts of their
father, he would deliver to her and to the widow their
corresponding shares. As their father then was still alive, there
was no reason to require the delivery of her share and that
was why she did not insist on her opposition, trusting on the
reliability and sincerity of her brother’s promise. The evidence
shows that such promise was really made. The registration of
land under the Torrens system does not have the effect of
altering the laws of succession, or the rights of partition
between coparceners, joint tenants, and other cotenants nor
does it change or affect in any other way any other rights and
liabilities created by law and applicable to unregistered land
(sec. 70, Land Registration Law). The plaintiff is not, then, in
estoppel, nor can the doctrine of res judicata be invoked
against her claim. Under these circumstances, she has the
right to compel the defendant to deliver her corresponding
share in the estate left by the deceased, Victorino L.
Guevara."cralaw virtua1aw library
In his tenth to fourteenth assignments of error the petitioner
assails the foregoing findings of the Court of Appeals. But the
findings of fact made by said court are final and not reviewable
by us on certiorari. The Court of Appeals found that the money
with which the petitioner repurchased the northern half of the
land in question from Rafael Puzon was not his own but his
father’s, it being the proceeds of the sale of a parcel of land
made by the latter to Silvestre P. Coquia. Said court also found
that the respondent withdrew her opposition to the registration
of the land in the name of the petitioner upon the latter’s
promise that after paying all the debts of their father he would
deliver to her and to the widow their corresponding shares.
From these facts, it results that the interested parties
consented to the registration of the land in question in the
name of Ernesto M. Guevara alone subject to the implied trust
on account of which he is under obligation to deliver and
convey to them their corresponding shares after all the debts
of the original owner of said land had been paid. Such finding
does not constitute a reversal of the decision and decree of
registration, which merely confirmed the petitioner’s title; and
in the absence of any intervening innocent third party, the
petitioner may be compelled to fulfill the promise by virtue of
which he acquired his title. That is authorized by section 70 of
the Land Registration Act, cited by the Court of Appeals, and
by the decision of this Court in Severino v. Severino, 44 Phil.,
343, and the cases therein cited.
Upon this phase of the litigation, we affirm the finding of the
Court of Appeals that the northern half of the land described in
the will exhibit A and in original certificate of title No. 51691 still
belongs to the estate of the deceased Victorino L. Guevara. In
the event the petitioner Ernesto M. Guevara has alienated any
portion thereof, he is under obligation to compensate the
estate with an equivalent portion from the southern half of said
land that has not yet been sold. In other words, to the estate of
Victorino L. Guevara still belongs one half of the total area of
the land described in said original certificate of title, to be
taken from such portions as have not yet been sold by the
petitioner, the other half having been lawfully acquired by the
latter in consideration of his assuming the obligation to pay all
the debts of the deceased.
Wherefore, that part of the decision of the Court of Appeals
which declares in effect that notwithstanding exhibit 2 and the
issuance of original certificate of title No. 51691 in the name of
Ernesto M. Guevara, one half of the land described in said
certificate of title belongs to the estate of Victorino L. Guevara
and the other half to Ernesto M. Guevara in consideration of
the latter’s assumption of the obligation to pay all the debts of
the deceased, is hereby affirmed; but the judgment of said
court insofar as it awards any relief to the respondent Rosario
Guevara in this action is hereby reversed and set aside, and
the parties herein are hereby ordered to present the document
exhibit A to the proper court for probate in accordance with
law, without prejudice to such action as the provincial fiscal of
Pangasinan may take against the responsible party or parties
under section 4 of Rule 76. After the said document is
approved and allowed by the court as the last will and
testament of the deceased Victorino L. Guevara, the heirs and
legatees therein named may take such action, judicial or
extrajudicial, as may be necessary to partition the estate of the
testator, taking into consideration the pronouncements made
in part II of this opinion. No finding as to costs in any of the
three instances.
Yulo, C.J., and Hontiveros, 1 J., concur.
Separate Opinions
BOCOBO, J., concurring:chanrob1es virtual 1aw library
I concur in the result. Extrajudicial settlement by agreement
among the heirs is authorized by section 1 of Rule 74 only "if
the decedent left no debts." In this case, according to the
findings of the Court of Appeals, Ernesto M. Guevara "has
been paying the debts left by his father." It is true that said
Ernesto M. Guevara, in consideration of the conveyance to
him of the southern half of the hacienda, assumed all the
debts of the deceased, but this agreement is binding only upon
the parties to the contract but not upon the creditors who did
not consent thereto. (Art. 1205, Civil Code.) There being debts
when the father died, section 1 of Rule 74 is not applicable.
MORAN, J., concurring in part and dissenting in
part:chanrob1es virtual 1aw library
I would be agreeable to the majority decision but for a
statement therein made which in my view repeals by an
erroneous interpretation the provisions of Rule 74, section 1,
of the Rules of Court, which reads as
follows:jgc:chanrobles.com.ph
"EXTRAJUDICIAL SETTLEMENT BY AGREEMENT
BETWEEN HEIRS. — If the decedent left no debts and the
heirs and legatees are all of age, or the minors are
represented by their judicial guardians, the parties may,
without securing letters of administration, divide the estate
among themselves as they see fit by means of a public
instrument filed in the office of the register of deeds, and
should they disagree, they may do so in an ordinary action of
partition. If there is only one heir or one legatee, he may
adjudicate to himself the entire estate by means of an affidavit
filed in the office of the register of deeds. It shall be presumed
that the decedent left no debts if no creditor files a petition for
letters of administration within two years after the death of the
decedent."cralaw virtua1aw library
The majority holds that under this provision, the heirs and
legatees, even if all of them are of age, and there are no debts
to be paid, cannot make an extrajudicial settlement of the
estate left by the decedent without first submitting in court for
probate the will left by the testator. This erroneous
interpretation clearly overlooks not only the letter and the spirit
but more specially the whole background of the provision.
It is admitted that the provision has been taken from section
596 of Act No. 190 but with a modification consisting in that it
is made to apply in testate succession. Said section 596
reads:jgc:chanrobles.com.ph
"SETTLEMENT OF CERTAIN INTESTATE ESTATES
WITHOUT LEGAL PROCEEDINGS. — Whenever all the heirs
of a person who died intestate are of lawful age and legal
capacity, and there are no debts due from the estate, or all the
debts have been paid the heirs may, by agreement duly
executed in writing by all of them, and not otherwise, apportion
and divide the estate among themselves, as they may see fit,
without proceedings in court."cralaw virtua1aw library
It must be observed that the procedure contemplated in this
legal provision is completely extrajudicial and the same
procedure intended in section 1 of Rule 74 above quoted
which is captioned "Extrajudicial Settlement by Agreement . . ."
Justice Laurel, who was one of the members of this Court
when the new Rules were promulgated, in commenting upon
Rule 74, said:jgc:chanrobles.com.ph
"RULE 74. SUMMARY SETTLEMENT OF ESTATES. — The
corresponding provisions in the Code of Civil Procedure are
sections 596-598. There is substantial analogy between the
provisions of the Code of Civil Procedure and those of Rule
74, save that: (1) Under section 1 of Rule 74, there may be
extrajudicial settlement whether a person died testate or
intestate, while under section 596 of the Code of Civil
Procedure extrajudicial settlement can be had only when a
person died intestate. (2) Under Rule 74, section 1,
extrajudicial settlement may take place ’if the decedent left no
debts,’ while under section 596 of the Code of Civil Procedure
it may take place ’when there are no debts due from the
estate, or all the debts have been paid.’ (3) Under section 596
of the Code of Civil Procedure, extrajudicial settlement may
take place when all the heirs are of lawful age and legal
capacity, while under section 1 of Rule 74 it may take place
when ’the heirs and legatees are all of legal age, or the minors
are represented by their judicial guardians’. (4) Unlike the
Code of Civil Procedure, section 596, section 1 of Rule 74
requires the extrajudicial agreement to be filed in the office of
the register of deeds; provides that should the heirs disagree,
’they may do so in an ordinary action of partition’, and that ’if
there is only one heir or one legatee, he may adjudicate to
himself the entire estate by means of an affidavit filed in the
office of the register of deeds’, and that ’it shall be presumed
that the decedent left no debts if no creditor files a petition for
letters of administration within two years after the death of the
decedent.’" [(Italics mine); Laurel, Procedural Reform in the
Philippines, pp. 137-138].
The phrase "extrajudicial settlement" unquestionably means
liquidation and distribution of the estate without judicial
proceeding. In other words, even in cases of testate
succession, the heirs and legatees, when they are all of age or
are represented by their judicial guardians, and there are no
debts to be paid, are allowed by section 1 of Rule 74 of the
Rules of Court to liquidate and distribute among themselves
the estate left by the decedent and need not go to court even
for the probate of the will. Unless legal terms mean nothing,
this is clearly what is meant in said provision by the words
"extrajudicial settlement" and by the clause." . . the parties
may, without securing letters of administration, divide the
estate among themselves as they see fit." . . When judicial
administration is made unnecessary by the provision, the
inevitable implication is that the probate of the will is also
unnecessary, the probate having no other object than
administration for purposes of distribution according to the
provisions of the will. That is why section 4 of Rule 78
provides:jgc:chanrobles.com.ph
"ESTATE, HOW ADMINISTERED. — When a will is thus
allowed, the court shall grant letters testamentary, or letters of
administration with the will annexed, and such letters
testamentary or of administration shall extend to all the estate
of the testator in the Philippines. Such estate, after the
payment of just debts and expenses of administration, shall be
disposed of according to such will, so far as such will may
operate upon it; and the residue, if any, shall be disposed of as
is provided by law in cases of estates in the Philippines
belonging to persons who are inhabitants of another state or
country."cralaw virtua1aw library
If judicial administration and distribution is made unnecessary
by section 1 of Rule 74, then, I repeat, the probate of the will
being purposeless, becomes unnecessary. If the parties have
already divided the estate in accordance with the will, the
probate of the will is a useless ceremony. If they have divided
the estate in a different manner, the probate of the will is worse
than useless; it is ridiculous. The following words of this Court
in a previous case may well be here
reiterated:jgc:chanrobles.com.ph
"These sections provide for the voluntary division of the whole
property of the decedent without proceedings in court. The
provisions which they contain are extremely important. The
wisdom which underlies them is apparent. It is the undisputed
policy of every people which maintains the principle of private
ownership of property that he who owns a thing shall not be
deprived of its possession or use except for the most urgent
and imperative reasons and then only so long as is necessary
to make the rights which underlie those reasons effective. It is
a principle of universal acceptance which declares that one
has the instant right to occupy and use that which he owns,
and it is only in the presence of reasons of the strongest and
most urgent nature that that principle is prevented from
accomplishing the purpose which underlies it. The force which
gave birth to this stern and imperious principle is the same
force which destroyed the feudal despotism and created the
democracy of private owners.
"These provisions should, therefore, be given the most liberal
construction so that the intent of the framers may be fully
carried out. They should not be straitened or narrowed but
should rather be given that wideness and fullness of
application without which they cannot produce their most
beneficial effects.

". . . The purpose which underlies them, as we have already
intimated, is to put into one’s hands the property which
belongs to him not only at the earliest possible moment but
also with the least possible expense. By permitting the
partition and division without proceedings in court no time is
lost and substantially all expense and waste are saved. This is
as it should be. The State fails wretchedly in its duty to its
citizens if the machinery furnished by it for the division and
distribution of the property of a decedent is so cumbersome,
unwieldly and expensive that a considerable portion of the
estate is absorbed in the process of such division.." . .
(McMicking v. Sy Conbieng, 21 Phil., 211; 219-220).
Indeed, there can be no valid reason why the probate of a will
may not be dispensed with by agreement of all the parties
interested and the estate left by the decedent settled
extrajudicially among all the heirs and legatees, as is now
provided in section 1 of Rule 74. It is well recognized that the
allowance of a will gives conclusiveness merely to its due
execution, but not to the intrinsic validity of its provisions which
are governed by the substantive law regarding descent and
distribution. If so, why cannot all the parties interested agree,
without going to court, that the will of the decedent is in form
valid (this being the only point to be litigated in a probate
proceeding), and that they will divide the inheritance in the
manner acceptable to them? The procedure would not be
against public policy or the law placing in the hands of the
courts the probate of wills, because what the courts are
enjoined to do for the benefit of the parties, the latter have
already done. As long as the extrajudicial partition of the estate
does not affect the rights of third parties and is not rendered
invalid by any provision of the substantive law, no possible
objection can be raised thereto. On practical considerations, it
would be useless to force the parties, at their expense, to go
thru the formality of probating a will and dividing the estate in
accordance therewith, because as soon as the routine is over,
they are of course free to make such transfers to one another
as will be necessary to effect a partition which they would have
made if they were allowed to settle the estate extrajudicially. It
is true that there are provisions in the Rules of Court
compelling the delivery of a will to the competent court and
punishing omissions to do so, but said provisions are
calculated to protect the interests of the persons entitled to
share in the inheritance. The latter may waive such benefit.
This waiver cannot be said to be a withdrawal or diminution of
the jurisdiction of the court, since it only implies a desire of the
parties not to litigate. The fear that "absent legatees and
devisees, or such of them as may have no knowledge of the
will, could be cheated of their inheritance thru the collusion of
some of the heirs who might agree to the partition of the estate
among themselves to the exclusion of others", is wisely
provided against in the requirement of the Rule that all the
parties interested and all the beneficiaries under the will
should be parties to the extrajudicial settlement. The
participation of all the interested parties excludes the
probability of fraud or collusion and, even in that eventuality,
the aggrieved beneficiaries are not without adequate remedy
for the voidance of the partition under the Civil Code.
And this is in accordance with the weight of authority in this
and other jurisdictions. In Leaño v. Leaño (25 Phil., 180), all
the heirs and legatees have made an extrajudicial partition of
the estate left by the decedent and then filed the will in court
which was probated. Nine years of costly probate proceedings
have followed after which the extrajudicial partition was made
known to court. Such extrajudicial partition was objected to by
one party upon the ground that it was not in conformity with
the provisions of the will. But the trial Court
held:jgc:chanrobles.com.ph
"Naturally the partition made by the heirs voluntarily and
spontaneously must produce and has produced a legal status,
which cannot be annulled merely for the caprice of one
person. And it cannot be said that, because the partition was
not made in accordance with the will, if such be the case, the
latter has to be annulled, for by voluntarily and spontaneously
concurring therein they implicitly renounced the effects of said
will, of which they were aware." (See p. 183).
On appeal, this Court affirmed the ruling with the following
pronouncement:jgc:chanrobles.com.ph
"In view of the positive finding of the judge of the lower court
that there had been a voluntary partition of the estate among
the heirs and legatees and in the absence of positive proof to
the contrary, we must conclude that the lower court had some
evidence to support his conclusion. If the heirs and legatees
had voluntarily divided the estate among themselves, then
their division is conclusive, unless and until it is shown that
there were debts existing against the estate which had not
been paid. No claim is made whatever by third parties nor
objections of any character are made by others than the heirs
against said partition. We see no reason why the heirs and
legatees should not be bound by their voluntary acts." (Pages
183-184).
This case furnishes precisely a valuable experience as to the
practical wisdom underlying the procedure established in
section 1 of Rule 74. After the will was probated and after nine
years of costly administration proceedings, nothing —
absolutely nothing — was accomplished by the court except to
make the belated pronouncement that the extrajudicial
partition made by the parties prior to the institution of the
proceedings was proper and binding upon them. Thus, the
whole proceedings for nine years have proved no more than a
futile chronicle of wasted time and money for the parties and
the court. This disgraceful experience could not and did not
pass unnoticed to the members of this Court who drafted the
new Rules of Court. The solemn admonition made by this
Court in a previous case (McMicking v. Sy Conbieng, supra)
when it said that "the State fails wretchedly in its duty to its
citizens if the machinery furnished by it for the division and
distribution of the property of a decedent is so cumbersome,
unwieldly and expensive that a considerable portion of the
estate is absorbed in the process of such division", rang with
re-echoing insistence and was heeded to when the new Rules
of Court was drafted and promulgated. The fundamental policy
pervading the whole system of procedure adopted in said
Rules is speed, economy and justice. Thus, features of
procedure were done away with when, without them, the same
purpose may be achieved. The result is brevity and simplicity
of procedure with such guarantees as are necessary to assure
due process. And to remedy such evil as is disclosed in the
Leaño case, a completely extrajudicial settlement is allowed
even in testate succession with the probate of the will
dispensed with, when the heirs and legatees who are all of
age or represented by their judicial guardians, so agree, and
there are no debts to be paid. Thus, the scope of section 596
of Act No. 190 was amplified and with it the ruling of this Court
in Riosa v. Rocha (48 Phil. 737). The procedure is in
consonance with the almost unanimous weight of authority in
other jurisdictions:jgc:chanrobles.com.ph
"The complaint, to which a demurrer was sustained, shows
that all the persons interested in a decedent’s estate, as
widow, heirs, distributees, legatees, or devisees, including the
person appointed executrix by the will, and the husbands of
femes covert, (all being adults), by agreement divided among
themselves all the property of the estate according to the
direction of the will, paid off all debts against the estate, and
delivered the note described to the plaintiff, as a part of her
share; and all this was done without probate of the will, or
administration of the estate. The effect of such a division was
to invest the plaintiff with an equitable title to the note. In the
absence of the will, the decisions of this court, heretofore
made, would meet every argument in favor of an opposite
conclusion. (Anderson v. Anderson, 37 Ala., 683; Marshall v.
Crow, 29 Ala., 278; Vanderveer v. Alston, 16 Ala., 494; Miller v.
Eatman, 11 Ala., 609). Does the presence of an unprobated
will, as a feature of this case, take it out of the principle of
those decisions? We can perceive no sufficient reason why it
should. All the parties interested, or to be affected, may as well
by agreement divide property, where there is a will, without
employing the agency of courts, as in case of intestacy.
Parties, competent to act, ought to do that, without the agency
of courts, which the courts would ultimately accomplish. To
deny them the privilege of so doing, would manifest a judicial
abhorrence of harmony. By the probate of the will, the claims
of heirs and distributees, and of the widow, would have been
subordinated to the directions of the will. This has been
accomplished by agreement. There being no debts, the
executrix would have had no other duty to perform, than to
divide the property according to the will. This, too, has been
done by agreement of competent parties. All the ends and
objects of judicial proceedings have been accomplished, by
agreement of the parties; and that agreement must be
effective." (Carter v. Owens, 41 Ala., 215; 216-217).
"The absence of sound objection on this ground to a contract
having for its sole purpose the disposition of property in a
manner different from that proposed by a testator, even where
the contract contemplates the rejection of the will when offered
for probate or its setting aside when admitted to probate, when
it is entirely free from fraud, and is made by all the parties in
interest, may be freely conceded. As has often been
substantially said, the public generally has no interest in the
matter of the probate of a will; and only those interested in the
estate under the will or otherwise are affected by such a
contract. If they all agree upon some course to be followed,
and their contract is otherwise free from contemplated fraud or
violation of any law, no one else has any such interest as
warrants complaint. Such was the character of contract
involved in Spangenberg v. Spangenberg (App.) , 126 Pac.,
379, especially relied on by plaintiff here, where the contract
purported to affect only such property of the deceased as
should in fact be received by the parties thereto. In Estate of
Garcelon, 104 Cal., 570; 38 Pac., 414; 32 L. R. A., 595; 43
Am. St. Rep., 134, another case much relied on by plaintiff, a
contract by an heir to refrain from contesting a will was
involved. It was said that the contract was one that concerned
the parties alone, and one that did not appear to be against
public policy." (Gugolz v. Gehrkens, 130 Pac. Rep., 8, 10; 164
Cal., 596).
"The question of public policy is introduced. The disposition of
one’s property after death is controlled by statute. One of the
next of kin has no vested interest in such property. In cases of
intestacy, a next of kin has such interest as the statute
declares. In case there is a will, he has an interest which gives
him a standing and right to contest the will. This right is his
alone; in it the public has no interest; he may refrain from
exercising it, or he may dispose of it as he wishes, by release
or assignment or settlement, and the law of public policy is not
of offended." (In re Cook’s Will, 217 N. Y. S., 176, 180-181).
"Agreement. — ’It has been definitely decided by the courts of
this state, and of many other states, that the beneficiaries
under a will have a right to agree among themselves upon any
distribution they see proper of the property bequeathed to
them . . . That holding is based upon the proposition that the
property is theirs. No one else is interested in its disposition,
and they may, with propriety, make any distribution of it that
suits them, so long as they do not invade the rights of other
parties or infringe some rule of public policy’." (Fore v.
McFadden, 276 N. W., 327; 329).

"The first assignment of error presented by appellants
complains of the action of the court in sustaining exceptions to
averments asking the enforcement of the agreement that the
will should not be probated, and that the estate should be
divided among the parties as they would be entitled as heirs at
law of the deceased, the proponent of the will surrendering
thereby his rights as principal legatee. This assignment must
be sustained. It cannot be seen that the agreement is contrary
to public policy. Parties may make any contract with reference
to their property rights that is not illegal, may adjust by
compromise their differences and disputes concerning the
same and, as they bind themselves, so shall they be bound. It
is difficult to understand why this cannot be effected by an
agreement not to probate a will, or how it interferes with public
policy. The power to litigate and to establish a right by appeal
to the courts is as much the subject of contract as any other
right in property. Such adjustments by contract are favored by
the law and the courts, and are not deemed to be an
unwarranted interference with the jurisdiction of the courts, or
against public policy. On the contrary, public policy favors
them.
"Appellants have cited a case in point, — the case of Phillips v.
Phillips, 8 Watts, 197, in which it is held competent for
devisees and legatees to bind themselves by a written or parol
agreement to destroy a will before probate, and that a party to
the agreement would be estopped from claiming any interest
under the will. The court says: ’It cannot admit of doubt that
before probate the parties in interest under a will would have
the right to set aside a will, and such an act would be favored,
when the object was to avert a family controversy’. The
agreement that the will should not be probated, and that the
parties would take the property as heirs at law of the
deceased, destroyed the legal effect of the will; and it could
not thereafter have legal existence in conferring rights upon
the legatees." (Stringfellow v. Early, 40 SW. 871, 873-874; 15
Tex. Civ. App., 597).
"The contention that the complaint does not state a cause of
action, because the contract sued on is against public policy,
and therefore void, is made here for the first time. It is to the
interest of the public generally that the right to make contract
should not be unduly restricted, and no agreement will be
pronounced void, as being against public policy, unless it
clearly contravenes that which has been declared by statutory
enactment or by judicial decisions to be public policy, or unless
the agreement manifestly tends in some way to injure the
public. Whether or not a contract in any given case is contrary
to public policy is a question of law, to be determined from the
circumstances of each particular case. Smith v. Du Bose, 78
Ga., 413; 3 SE., 309-316; 6 Am. St. Rep., 260; Weber v. Shay,
56 Ohio St., 116; 46 NE., 377; 37 L. R. A., 230; 60 Am. St.
Rep., 743; Pierce v. Randolph, 12 Tex., 290; Printing
Numerical Registering Co. v. Sampson, 19 L. R. Eq. Cas.,
465.
"The contract in controversy is in effect but an agreement
whereby the parties thereto, ’because of their love and
affection for one another’ and ’being desirous of avoiding
litigation over the estate’ of their father ’in case of his death,’
agreed to ignore his will in the event that he made one, and
then share his estate equally as if he had died intestate. In
other words, the contract was but an agreement of heirs
apparent not to contest the will of an ancestor. There is
nothing to be found in our code or statutory law prohibiting the
making and enforcement of such a contract, and it has been
held in this state that a contract, made after the death of the
deceased, not to contest his will, is purely personal to the
parties making it, that it is not against public policy, and that,
when fairly made, it will be enforced." (Spangenberg v.
Spangenberg, 126 Pac. Rep., 379, 382; 19 Cal. App., 439).

"Probate Dispensed With. — Probate of a will may be
dispened with by an agreement between the persons
interested; or it may be dispensed with where the testator,
before his death, conveyed to the devisees all the property
which he had devised to them, or where the will makes no
other disposition of the testator’s property than the law would
have done had he died intestate, and the rights sought to be
established are admitted by all concerned. But where the
language of the will expressly invokes the jurisdiction of the
probate court the fact that no administration is necessary does
not affect the power of the court to probate the will." (68 C. J.,
pp. 877-878).
"Agreement between Persons Interested: a. Requisites and
Validity. (1) In General. — It has been held that, since the
nature of a probate proceeding is one in rem, the parties
cannot submit a controversy arising therein to arbitration. The
law, however, favors the settlement, in good faith, of will
contests, by a so-called ’family settlement’, although it
changes the mode of disposition of the estate; and, therefore,
subject to the limitation that a contestant cannot compromise
anything beyond his own personal interest in the contest,
persons, such as devisees, legatee, heirs, or next of kin,
having interests in the will or estate, sufficient to entitle them to
oppose probate or contest the will, may enter into an
agreement which, in the absence of fraud or
misrepresentation, is valid and binding on all the parties
thereto, whereby they waive probate of the will and bind
themselves to abide by its provisions, or whereby they agree
that the will is not to be probated or is to be superseded or
destroyed; or whereby any controversy relative to the probate
or contest of the will is compromised or settled, and a contest
is avoided, whether or not there were, in fact, valid grounds for
the contest. Such an agreement, in order to be valid, must not
exclude anyone entitled under the will, must be entered into by
all the persons affected thereby, and all the parties thereto
must be competent to make the agreement, and either they or
their representative must fully execute it, and, under some
statutes, it must be properly approved by the court." ([Italics
supplied] 68 C. J., pp. 909-910).
"As to Probate. — The operation and effect of the agreement
may be not to supersede the provisions of the will, but to carry
out its provisions without a probate, and under such an
agreement the parties are precluded from denying the probate,
or insisting on the invalidating of the will for want of probate.
So, also, a person who agrees not to contest the will is
precluded from opposing probate; or the probate of a will may
be dispensed with, and the persons interested in the estate
under the will given at least an equitable interest in the
property, where they, being under no disability, divide the
estate, pursuant to an agreement among themselves. Where
the effect of the agreement of all interested parties is to
repudiate or renounce the will, it will not be probated,
especially where the agreement expressly so provides; but it
has been held that, where the executor, defending a torn will,
agrees, for a consideration, not to probate it, the court should
not refuse probate without notifying other beneficiaries and
requiring testimony as to the tearing of the will by the testator.
Probate, however, is not prevented by an agreement executed
by a part only of the beneficiaries, and the parties to such
agreement are not prevented thereby from taking under the
will which is probated by another interested person." ([Italics
supplied] 68 C. J., pp. 914-915).
"Thus, where the parties, being in doubt as to the instrument
being construed as a will, and for the purpose of saving a
family controversy and for the purpose of dividing the estate,
enter into a compromise and settlement agreement, under the
terms of which the entire estate is to be, and has in part been,
divided, and agree that the instrument shall not be offered for
probate, it is sufficient to prevent a probate." (Brown v. Burk,
26 NW [2d ed. ], 415).
"Validity of Agreements to Dispense with Probate or to Modify
or Set Aside Will. — Though in some jurisdictions an
agreement to dispense with the probate of a will has been
declared to be against public policy and void, in a majority of
the decisions on the point it has been held that all the persons
interested in a decedent’s estate may by agreement divide the
estate among themselves, without probating such decedent’s
will or administering the estate, and the validity of a contract
having for its sole purpose the disposition of property in a
manner different from that proposed by a testator, even where
the contract contemplates the rejection of the will when offered
for probate or its setting aside when admitted to probate, when
it is entirely free from fraud, and is made by all the parties in
interest, would seem to be freely conceded. Thus it has been
held that all the parties in interest may agree to eliminate from
a will a clause providing for survivorship among them. But an
agreement to resist the probate of a will and procure it to be
set aside so as to cut off the interest of one who is not a party
to such agreement is against public policy. Nor does the right
of all the parties in interest to set aside or disregard a will
extend to the case of an active trust, for a definite term,
created by a testator as he deems proper for the protection of
his beneficiaries. A contract between the next of kin of a
decedent, that they will each have a certain portion of the
estate, does not amount to an agreement to divide the estate
without probating the will." (28 R. C. L., pp. 357-358).
The minority decision pointed out in the last quotation from the
Ruling Case Law (Vol. 28, pp. 357-358) is from the Supreme
Court of only one State — that of Wisconsin, in re Will of
Dardis (135 Wis., 457; 115 NW., 332). All the other States held
the contrary doctrine that is now embodied in section 1 of Rule
74. Commenting upon the Wisconsin rule, the Editor of the L.
R. A. says the following:jgc:chanrobles.com.ph
"No case has been found other than Re Dardis wherein any
court passed upon the validity of a stipulation to secure the
denial to probate of a will theretofore offered for probate, on
the ground that the testator was mentally incompetent to make
a will at the time of its execution. The decision of the court is
based upon the doctrine therein enunciated, that proceedings
to probate a will are proceedings in rem, which public interest
demands should be pursued to a final adjudication, regardless
of the wishes of the interested parties. In this connection and
with reference to this broader question, it is of interest to note
that courts of other jurisdictions, although generally
recognizing that proceedings to probate a will are proceedings
in rem, hold that the proceeding is inter partes to the extent
that all the parties in interest may control the probate
proceedings, even to the extent of doing away with the
probate." (23 L. R. A. [N.S. ], p. 783).
For the sake of fixity in judicial policy, this Court in the exercise
of its constitutional powers, has solemnly given a form of a rule
— section 1, Rule 74 — to what was merely the consensus of
judicial opinion. We cannot now repudiate the procedure
outlined in said provision unless we amend it by another rule.
The majority, however, expresses fear that abuses may easily
be committed under the Rules. Such fears have always been
the bugbear set up against all task of procedural reforms. To
be sure, there has never been any provision of law that is not
liable to abuses. If by a mere possibility of abuse we are to
disregard clear provisions of a procedural law, the result would
be not only the abrogation of all laws but also the abolition of
all courts. When a procedural law is calculated to remedy an
evil under a specific situation therein contemplated, it must be
deemed good even if other situations may be simulated or
falsified and placed within its purview. And when that law is
duly enacted, it is no concern of the courts to pass upon its provision is not applicable, its requirements not being present.
wisdom, their duty being to apply its provisions in a manner And I would be wholly agreeable to this conclusion because
which shall not defeat the intention underlying it. Laws are the beneficiaries under the will do not appear to have made an
promulgated to be obeyed and when they are abused there extrajudicial settlement of the estate left by the deceased
are the courts to check up the abuse. Courts must deal with Victorino L. Guevara, nor the action brought by the natural
the specific circumstances of each case and construe the daughter, Rosario Guevara, is one for partition against all such
provisions in such a manner as to make it impregnable if beneficiaries founded either on an extrajudicial settlement or
possible to further abuses. This is constructive, not on the provisions of the will as accepted by all parties to be
destructive, jurisprudence. This explains why laws are more valid and binding. Upon the contrary, Rosario Guevara
often worded so broadly as to lay merely general principles — appears to be wishing to take advantage of the will in so far as
a skeleton — the flesh to be supplied with judicial decisions. it is favorable to her, and repudiate it in so far as it is favorable
Judicial statemanship requires that courts in deciding judicial to others. Apparently, Rosario Guevara was in possession of
controversies should be careful not to advance opinions which the will and the other heirs and legatees were not aware of its
are not necessary to a proper disposition of the case. Judicial contents. The situation not being the one contemplated by
experience has shown that such advanced opinions may not section 1 of Rule 74, plaintiff may not invoke its provisions.
infrequently place the court in an embarrassing position when
a proper case with the proper factual environment is properly
presented with all its angles before the court. Jurisprudence
must be carefully progressive and not impetuously aggressive.
For instance, the majority, impressed by the awful
circumstances of the present case, has found it dangerous to
hold that the probate of the will may be dispensed with. While
this conclusion is constructive under the peculiar facts of the
case, to generalize it is to make destructive. If a proper case is
presented to the court wherein all the heirs and legatees who
are all of age have agreed to dispense with the probate of a
will and have actually made an extrajudicial partition, and if it
appears further that each of the recipients is in peaceful
enjoyment of his share in the estate, I am sure that the
majority, with the practical wisdom they have shown in other
cases, would not dare disturb the peace enjoyed by such heirs
and legatees and compel them to go into court and litigate.

The majority, without the necessity of holding whether the

probate of a will may or may not be dispensed with under Rule
74, section 1, could have decided this case by stating that said
 [G.R. No. 129505. January 31, 2000]
OCTAVIO S. MALOLES II, petitioner, vs. PACITA DE LOS
REYES PHILLIPS, respondent.
[G.R. No. 133359. January 31, 2000]
OCTAVIO S. MALOLES II, petitioner, vs. COURT OF
APPEALS, HON. FERNANDO V. GOROSPE, JR., in his
Official Capacity as Presiding Judge of RTC-Makati,
Branch 61, and PACITA PHILLIPS as the alleged executrix
of the alleged will of the late Dr. Arturo de
Santos, respondents. Scmis
DECISION
MENDOZA, J.:
These are petitions for review on certiorari of the decisions of
the Thirteenth and the Special Eighth Divisions of the Court of
Appeals which ruled that petitioner has no right to intervene in
the settlement of the estate of Dr. Arturo de Santos. The cases
were consolidated considering that they involve the same
parties and some of the issues raised are the same.
The facts which gave rise to these two petitions are as follows:
On July 20, 1995, Dr. Arturo de Santos, Filipino and a resident
of Makati City, filed a petition for probate of his will[1] in the
Regional Trial Court, Branch 61, Makati, docketed as Sp. Proc.
No. M-4223. In his petition, Dr. De Santos alleged that he had
no compulsory heirs; that he had named in his will as sole
legatee and devisee the Arturo de Santos Foundation, Inc.;
that he disposed by his will his properties with an approximate
value of not less than P2,000,000.00; and that copies of said
will were in the custody of the named executrix, private
respondent Pacita de los Reyes Phillips. A copy of the
will[2] was annexed to the petition for probate.
On February 16, 1996, Judge Fernando V. Gorospe, Jr. of
RTC-Makati, Branch 61 issued an order granting the petition
and allowing the will. The order reads:
On 03 August 1995, the Court issued an Order
setting the hearing of the petition on 12
September 1995, at 8:30 oclock in the morning,
copies of which were served to Arturo de
Santos Foundation, Inc. and Ms. Pacita de los
Reyes Phillips (Officers Return, dated 04
September 1995 attached to the records).
When the case was called for hearing on the
date set, no oppositor appeared nor any written
opposition was ever filed and on motion of
petitioner, he was allowed to adduce his
evidence in support of the petition.
Petitioner personally appeared before this Court
and was placed on the witness stand and was
directly examined by the Court through "free
wheeling" questions and answers to give this
Court a basis to determine the state of mind of
the petitioner when he executed the subject will.
After the examination, the Court is convinced
that petitioner is of sound and disposing mind
and not acting on duress, menace and undue
influence or fraud, and that petitioner signed his
Last Will and Testament on his own free and
voluntary will and that he was neither forced nor
influenced by any other person in signing it. Mis
sc
Furthermore, it appears from the petition and
the evidence adduced that petitioner in his
lifetime, executed his Last Will and Testament
(Exhs. "A", "A-1", "A-2", "A-4", "A-5") at his
residence situated at 9 Bauhinia corner Intsia
Streets, Forbes Park, Makati City; said Last Will
and Testament was signed in the presence of
his three (3) witnesses, namely, to wit: Dr.
Elpidio Valencia (Exhs. "A-6", "A-7", "A-8", "A-
16", "A-16-A"), Atty. Edward J. Berenguer
(Exhs. "A-3", "A-3-A", "A-9", "A-10", & "A-11"),
and Atty. Victoria C. delos Reyes (Exhs. "A-12",
"A-13", "A-14", "A-17", & "A-18"), who in turn, in
the presence of the testator and in the presence
of each and all of the witnesses signed the said
Last Will and Testament and duly notarized
before Notary Public Anna Melissa L. Rosario
(Exh. "A-15"); on the actual execution of the
Last Will and Testament, pictures were taken
(Exhs. "B" to "B-3").
Petitioner has no compulsory heirs and Arturo
de Santos Foundation, Inc., with address at No.
9 Bauhinia corner Intsia Streets, Forbes Park,
Makati City has been named as sole legatee
and devisee of petitioners properties, real and
personal, approximately valued at not less than
P2 million, Ms. Pacita de los Reyes Phillips was
designated as executor and to serve as such
without a bond.
From the foregoing facts, the Court finds that
the petitioner has substantially established the
material allegations contained in his petition.
The Last Will and Testament having been
executed and attested as required by law; that
testator at the time of the execution of the will
was of sane mind and/or not mentally incapable
to make a Will; nor was it executed under
duress or under the influence of fear or threats;
that it was in writing and executed in the
language known and understood by the testator
duly subscribed thereof and attested and
subscribed by three (3) credible witnesses in
the presence of the testator and of another; that
the testator and all the attesting witnesses
signed the Last Will and Testament freely and
voluntarily and that the testator has intended
that the instrument should be his Will at the
time of affixing his signature thereto.
WHEREFORE, as prayed for by the petitioner
(testator himself) the petition for the allowance
of the Last Will and Testament of Arturo de
Santos is hereby APPROVED and ALLOWED.
Shortly after the probate of his will, Dr. De Santos died on
February 26, 1996.
On April 3, 1996, petitioner Octavio S. Maloles II filed a motion
for intervention claiming that, as the only child of Alicia de
Santos (testators sister) and Octavio L. Maloles, Sr., he was
the sole full-blooded nephew and nearest of kin of Dr. De
Santos. He likewise alleged that he was a creditor of the
testator. Petitioner thus prayed for the reconsideration of the
order allowing the will and the issuance of letters of
administration in his name. Mis spped
On the other hand, private respondent Pacita de los Reyes
Phillips, the designated executrix of the will, filed a motion for
the issuance of letters testamentary with Branch 61. Later,
however, private respondent moved to withdraw her motion.
This was granted, while petitioner was required to file a
memorandum of authorities in support of his claim that said
court (Branch 61) still had jurisdiction to allow his intervention.
[3]
Petitioner filed his memorandum of authorities on May 13,
1996. On the other hand, private respondent, who earlier
withdrew her motion for the issuance of letters testamentary in
Branch 61, refiled a petition for the same purpose with the
Regional Trial Court, Makati, which was docketed as Sp. Proc.
No. M-4343 and assigned to Branch 65.
Upon private respondents motion, Judge Salvador Abad
Santos of Branch 65 issued an order, dated June 28, 1996,
appointing her as special administrator of Dr. De Santoss
estate.
On July 29, 1996, petitioner sought to intervene in Sp. Proc.
No. M-4343 and to set aside the appointment of private
respondent as special administrator. He reiterated that he was
the sole and full blooded nephew and nearest of kin of the
testator; that he came to know of the existence of Sp. Proc.
No. M-4343 only by accident; that the probate proceedings in
Sp. Proc. No. M-4223 before Branch 61 of the same court was
still pending; that private respondent misdeclared the true
worth of the testators estate; that private respondent was not
fit to be the special administrator of the estate; and that
petitioner should be given letters of administration for the
estate of Dr. De Santos.
On August 28, 1996, Judge Abad Santos ordered the transfer
of Sp. Proc. No. M-4343 to Branch 61, on the ground that "[it]
is related to the case before Judge Gorospe of RTC Branch 61
. . ."
It appears, however, that in Sp. Proc. No. M-4223, Judge
Gorospe had denied on August 26, 1996 petitioners motion for
intervention. Petitioner brought this matter to the Court of
Appeals which, in a decision[4] promulgated on February 13,
1998, upheld the denial of petitioners motion for intervention.
Meanwhile, Judge Gorospe issued an order, dated September
4, 1996, returning the records of Sp. Proc. No. M-4343 to
Branch 65 on the ground that there was a pending case
involving the Estate of Decedent Arturo de Santos pending
before said court. The order reads: Spped
Acting on the ORDER dated 28 August 1996 of
Branch 65, this Court, transferring this case to
this Branch 61 on the ground that this case is
related with a case before this Court, let this
case be returned to Branch 65 with the
information that there is no related case
involving the ESTATE OF DECEDENT
ARTURO DE SANTOS pending before this
Branch.
There is, however, a case filed by ARTURO DE
SANTOS, as petitioner under Rule 76 of the
Rules of Court for the Allowance of his will
during his lifetime docketed as SP. PROC. NO.
M-4223 which was already decided on 16
February 1996 and has become final.
It is noted on records of Case No. M-4223 that
after it became final, herein Petitioner Pacita de
los Reyes Phillips filed a MOTION FOR THE
ISSUANCE OF LETTERS TESTAMENTARY,
which was subsequently withdrawn after this
Court, during the hearing, already ruled that the
motion could not be admitted as the subject
 matter involves a separate case under Rule 78
of the Rules of Court, and movant withdrew her
motion and filed this case (No. 4343).
Octavio de Santos Maloles [II] filed a MOTION
FOR INTERVENTION before Case No. M-4223
and this motion was already DENIED in the
order (Branch 61) of 26 August 1996 likewise
for the same grounds that the matter is for a
separate case to be filed under Rule 78 of the
Rules of Court and cannot be included in this
case filed under Rule 76 of the Rules of Court.
It is further noted that it is a matter of policy that
consolidation of cases must be approved by the
Presiding Judges of the affected Branches.
Initially, in his decision dated September 23, 1996,[5] Judge
Abad Santos appeared firm in his position that " . . . it would be
improper for (Branch 65) to hear and resolve the petition (Sp.
Proc. No. M-4343)," considering that the probate proceedings
were commenced with Branch 61. He thus ordered the
transfer of the records back to the latter branch. However, he
later recalled his decision and took cognizance of the case "to
expedite the proceedings." Thus, in his Order, dated October
21, 1996, he stated:
Considering the refusal of the Hon. Fernando V.
Gorospe, Jr. of Branch 61 to continue hearing
this case notwithstanding the fact that said
branch began the probate proceedings of the
estate of the deceased and must therefore
continue to exercise its jurisdiction to the
exclusion of all others, until the entire estate of
the testator had been partitioned and distributed
as per Order dated 23 September 1996, this
branch (Regional Trial Court Branch 65) shall
take cognizance of the petition if only to
expedite the proceedings, and under the
concept that the Regional Trial Court of Makati
City is but one court. Jo spped
Furnish a copy of this order to the Office of the
Chief justice and the Office of the Court
Administrator, of the Supreme Court; the Hon.
Fernando V. Gorospe, Jr.; Pacita De Los Reyes
Phillips, Petitioner; and Octavio de Santos
Maloles, Intervenor.
On November 4, 1996, Judge Abad Santos granted petitioners
motion for intervention. Private respondent moved for a
reconsideration but her motion was denied by the trial court.
She then filed a petition for certiorari in the Court of Appeals
which, on February 26, 1997, rendered a decision[6] setting
aside the trial courts order on the ground that petitioner had
not shown any right or interest to intervene in Sp. Proc. No. M-
4343.
Hence, these petitions which raise the following issues:
1. Whether or not the Honorable Regional Trial
Court - Makati, Branch 61 has lost jurisdiction to
proceed with the probate proceedings upon its
issuance of an order allowing the will of Dr.
Arturo de Santos
2. Whether or not the Honorable (Regional Trial
Court - Makati, Branch 65) acquired jurisdiction
over the petition for issuance of letters
testamentary filed by (private) respondent.
 3. Whether or not the petitioner, being a creditor
of the late Dr. Arturo de Santos, has a right to
intervene and oppose the petition for issuance
of letters testamentary filed by the respondent.
4. Whether or not (private) respondent is guilty
of forum shopping in filing her petition for
issuance of letters testamentary with the
Regional Trial Court - Makati, Branch 65
knowing fully well that the probate proceedings
involving the same testate estate of the
decedent is still pending with the Regional Trial
Court - Makati, Branch 61. Spped jo
First. Petitioner contends that the probate proceedings in
Branch 61 of RTC-Makati did not terminate upon the issuance
of the order allowing the will of Dr. De Santos. Citing the cases
of Santiesteban v. Santiesteban[7] and Tagle v. Manalo,[8] he
argues that the proceedings must continue until the estate is
fully distributed to the lawful heirs, devisees, and legatees of
the testator, pursuant to Rule 73, 1 of the Rules of Court.
Consequently, petitioner contends that Branch 65 could not
lawfully act upon private respondents petition for issuance of
letters testamentary.
The contention has no merit.
In cases for the probate of wills, it is well-settled that the
authority of the court is limited to ascertaining the extrinsic
validity of the will, i.e., whether the testator, being of sound
mind, freely executed the will in accordance with the
formalities prescribed by law.[9]
Ordinarily, probate proceedings are instituted only after the
death of the testator, so much so that, after approving and
allowing the will, the court proceeds to issue letters
testamentary and settle the estate of the testator. The cases
cited by petitioner are of such nature. In fact, in most
jurisdictions, courts cannot entertain a petition for probate of
the will of a living testator under the principle of ambulatory
nature of wills.[10]
However, Art. 838 of the Civil Code authorizes the filing of a
petition for probate of the will filed by the testator himself. It
provides:
Civil Code, Art. 838. No will shall pass either
real or personal property unless it is proved and
allowed in accordance with the Rules of Court.
The testator himself may, during his lifetime,
petition the court having jurisdiction for the
allowance of his will. In such case, the pertinent
provisions of the Rules of Court for the
allowance of wills after the testators death shall
govern. Miso
The Supreme Court shall formulate such
additional Rules of Court as may be necessary
for the allowance of wills on petition of the
testator.
Subject to the right of appeal, the allowance of
the will, either during the lifetime of the testator
or after his death, shall be conclusive as to its
due execution.
Rule 76, 1 likewise provides:
Sec. 1 Who may petition for the allowance of
will. - Any executor, devisee, or legatee named
in a will, or any other person interested in the
 estate, may, at any time after the death of the
testator, petition the court having jurisdiction to
have the will allowed, whether the same be in
his possession or not, or is lost or destroyed.
The testator himself may, during his lifetime,
petition in the court for the allowance of his will.
The rationale for allowing the probate of wills during the
lifetime of testator has been explained by the Code
Commission thus:
Most of the cases that reach the courts involve
either the testamentary capacity of the testator
or the formalities adopted in the execution of
wills. There are relatively few cases concerning
the intrinsic validity of testamentary
dispositions. It is far easier for the courts to
determine the mental condition of a testator
during his lifetime than after his death. Fraud,
intimidation and undue influence are minimized.
Furthermore, if a will does not comply with the
requirements prescribed by law, the same may
be corrected at once. The probate during the
testators life, therefore, will lessen the number
of contest upon wills. Once a will is probated
during the lifetime of the testator, the only
questions that may remain for the courts to
decide after the testators death will refer to the
intrinsic validity of the testamentary
dispositions. It is possible, of course, that even
when the testator himself asks for the
allowance of the will, he may be acting under
duress or undue influence, but these are rare
cases.
After a will has been probated during the
lifetime of the testator, it does not necessarily
mean that he cannot alter or revoke the same
before his death. Should he make a new will, it
would also be allowable on his petition, and if
he should die before he has had a chance to
present such petition, the ordinary probate
proceeding after the testators death would be in
order.[11]
Thus, after the allowance of the will of Dr. De Santos on
February 16, 1996, there was nothing else for Branch 61 to do
except to issue a certificate of allowance of the will pursuant to
Rule 73, 12 of the Rules of Court. There is, therefore, no basis
for the ruling of Judge Abad Santos of Branch 65 of RTC-
Makati that -Nex old
Branch 61 of the Regional Trial Court of Makati
having begun the probate proceedings of the
estate of the deceased, it continues and shall
continue to exercise said jurisdiction to the
exclusion of all others. It should be noted that
probate proceedings do not cease upon the
allowance or disallowance of a will but
continues up to such time that the entire estate
of the testator had been partitioned and
distributed.
The fact that the will was allowed during the
lifetime of the testator meant merely that the
partition and distribution of the estate was to be
suspended until the latters death. In other
words, the petitioner, instead of filing a new
petition for the issuance of letters testamentary,
should have simply filed a manifestation for the
same purpose in the probate court.[12]
Petitioner, who defends the order of Branch 65 allowing him to
intervene, cites Rule 73, 1 which states:
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 resides 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.
The above rule, however, actually provides for the venue of
actions for the settlement of the estate of deceased persons.
In Garcia Fule v. Court of Appeals, it was held:[13]
The aforequoted Section 1, Rule 73 (formerly
Rule 75, Section 1), specifically the clause "so
far as it depends on the place of residence of
the decedent, or of the location of the state," is
in reality a matter of venue, as the caption of
the Rule indicates: "Settlement of Estate of
Deceased Persons. Venue and Processes." It
could not have been intended to define the
jurisdiction over the subject matter, because
such legal provision is contained in a law of
procedure dealing merely with procedural
matters. Procedure is one thing, jurisdiction
over the subject matter is another. The power or
authority of the court over the subject matter
"existed was fixed before procedure in a given
cause began." That power or authority is not
altered or changed by procedure, which simply
directs the manner in which the power or
authority shall be fully and justly exercised.
There are cases though that if the power is not
exercised conformably with the provisions of
the procedural law, purely, the court attempting
to exercise it loses the power to exercise it
legally. However, this does not amount to a loss
of jurisdiction over the subject matter. Rather, it
means that the court may thereby lose
jurisdiction over the person or that the judgment
may thereby be rendered defective for lack of
something essential to sustain it. The
appearance of this provision in the procedural
law at once raises a strong presumption that it
has nothing to do with the jurisdiction of the
court over the subject matter. In plain words, it
is just a matter of method, of convenience to
the parties. Mani kx
Indeed, the jurisdiction over probate proceedings and
settlement of estates with approximate value of over
P100,000.00 (outside Metro Manila) or P200,000.00 (in Metro
Manila) belongs to the regional trial courts under B.P. Blg. 129,
as amended. The different branches comprising each court in
one judicial region do not possess jurisdictions independent of
and incompatible with each other.[14]
It is noteworthy that, although Rule 73, 1 applies insofar as the
venue of the petition for probate of the will of Dr. De Santos is
concerned, it does not bar other branches of the same court
from taking cognizance of the settlement of the estate of the
testator after his death. As held in the leading case of Bacalso
v. Ramolote:[15]
The various branches of the Court of First
Instance of Cebu under the Fourteenth Judicial
District, are a coordinate and co-equal courts,
and the totality of which is only one Court of
First Instance. The jurisdiction is vested in the
court, not in the judges. And when a case is
filed in one branch, jurisdiction over the case
does not attach to the branch or judge alone, to
the exclusion of the other branches. Trial may
be held or proceedings continue by and before
another branch or judge. It is for this reason
that Section 57 of the Judiciary Act expressly
grants to the Secretary of Justice, the
administrative right or power to apportion the
cases among the different branches, both for
the convenience of the parties and for the
coordination of the work by the different
branches of the same court. The apportionment
and distribution of cases does not involve a
grant or limitation of jurisdiction, the jurisdiction
attaches and continues to be vested in the
Court of First Instance of the province, and the
trials may be held by any branch or judge of the
court.
Necessarily, therefore, Branch 65 of the RTC of Makati City
has jurisdiction over Sp. Proc. No. M-4343.
Second. Petitioner claims the right to intervene in and oppose
the petition for issuance of letters testamentary filed by private
respondent. He argues that, as the nearest next of kin and
creditor of the testator, his interest in the matter is material and
direct. In ruling that petitioner has no right to intervene in the
proceedings before Branch 65 of RTC-Makati City, the Court of
Appeals held:
The private respondent herein is not an heir or
legatee under the will of the decedent Arturo de
Santos. Neither is he a compulsory heir of the
latter. As the only and nearest collateral relative
of the decedent, he can inherit from the latter
only in case of intestacy. Since the decedent
has left a will which has already been probated
and disposes of all his properties the private
respondent can inherit only if the said will is
annulled. His interest in the decedents estate is,
therefore, not direct or immediate. Maniks
His claim to being a creditor of the estate is a
belated one, having been raised for the first
time only in his reply to the opposition to his
motion to intervene, and, as far as the records
show, not supported by evidence.
. . . . [T]he opposition must come from one with
a direct interest in the estate or the will, and the
private respondent has none. Moreover, the
ground cited in the private respondents
opposition, that the petitioner has deliberately
misdeclared the truth worth and value of the
estate, is not relevant to the question of her
competency to act as executor. Section 2, Rule
76 of the Rules of Court requires only an
allegation of the probable value and character
 of the property of the estate. The true value can
be determined later on in the course of the
settlement of the estate.[16]
Rule 79, 1 provides:
Opposition to issuance of letters testamentary.
Simultaneous petition for administration. - Any
person interested in a will may state in writing
the grounds why letters testamentary should
not issue to the persons named therein as
executors, or any of them, and the court, after
hearing upon notice, shall pass upon the
sufficiency of such grounds. A petition may, at
the same time, be filed for letters of
administration with the will annexed.
Under this provision, it has been held that an "interested
person" is one who would be benefited by the estate, such as
an heir, or one who has a claim against the estate, such as a
creditor, and whose interest is material and direct, not merely
incidental or contingent.[17]
Even if petitioner is the nearest next of kin of Dr. De Santos,
he cannot be considered an "heir" of the testator. It is a
fundamental rule of testamentary succession that one who has
no compulsory or forced heirs may dispose of his entire estate
by will. Thus, Art. 842 of the Civil Code provides:
One who has no compulsory heirs may dispose
by will of all his estate or any part of it in favor
of any person having capacity to
succeed. Manikan
One who has compulsory heirs may dispose of
his estate provided he does not contravene the
provisions of this Code with regard to the
legitimate of said heirs.
Compulsory heirs are limited to the testators -
(1) Legitimate children and descendants, with
respect to their legitimate parents and
ascendants;
(2) In default of the foregoing, legitimate
parents and ascendants, with respect to their
legitimate children and descendants;
(3) The widow or widower;
(4) Acknowledged natural children, and natural
children by legal fiction;
(5) Other illegitimate children referred to in
Article 287 of the Civil Code.[18]
Petitioner, as nephew of the testator, is not a compulsory heir
who may have been preterited in the testators will.
Nor does he have any right to intervene in the settlement
proceedings based on his allegation that he is a creditor of the
deceased. Since the testator instituted or named an executor
in his will, it is incumbent upon the Court to respect the desires
of the testator. As we stated in Ozaeta v. Pecson:[19]
The choice of his executor is a precious
prerogative of a testator, a necessary
concomitant of his right to dispose of his
property in the manner he wishes. It is natural
that the testator should desire to appoint one of
his confidence, one who can be trusted to carry
 out his wishes in the disposal of his estate. The
curtailment of this right may be considered a
curtailment of the right to dispose.
Only if the appointed executor is incompetent, refuses the
trust, or fails to give bond may the court appoint other persons
to administer the estate.[20] None of these circumstances is
present in this case.
WHEREFORE, the petition is DENIED and the decisions of
the Court of Appeals are hereby AFFIRMED.
SO ORDERED.
Bellosillo, (Chairman), Quisumbing, Buena, and De Leon, Jr.,
JJ., concur.

Third. Petitioner contends that private respondent is guilty of

forum shopping when she filed the petition for issuance of
letters testamentary (Sp. Proc. No. M-4343) while the probate
proceedings (Sp. Proc. No. M-4223) were still pending.
According to petitioner, there is identity of parties, rights
asserted, and reliefs prayed for in the two actions which are
founded on the same facts, and a judgment in either will result
in res judicata in the other.

This contention has no merit. As stated earlier, the petition for

probate was filed by Dr. De Santos, the testator, solely for the
purpose of authenticating his will. Upon the allowance of his
will, the proceedings were terminated. Oldmis o

On the other hand, the petition for issuance of letters

testamentary was filed by private respondent, as executor of
the estate of Dr. De Santos, for the purpose of securing
authority from the Court to administer the estate and put into
effect the will of the testator. The estate settlement
proceedings commenced by the filing of the petition terminates
upon the distribution and delivery of the legacies and devises
to the persons named in the will. Clearly, there is no identity
between the two petitions, nor was the latter filed during the
pendency of the former. There was, consequently, no forum
shopping.
G.R. No. 106720 September 15, 1994
SPOUSES ROBERTO AND THELMA AJERO, petitioners,
vs.
THE COURT OF APPEALS AND CLEMENTE
SAND, respondents.
Miguel D. Larida for petitioners.
Montilla Law Office for private respondent.
PUNO, J.:
This is an appeal by certiorari from the Decision of the Court
of
Appeals 1 in CA-G.R. CV No. 22840, dated March 30, 1992,
the dispositive portion of which reads;
PREMISES CONSIDERED, the questioned
decision of November 19, 1988 of the trial court
is hereby REVERSED and SET ASIDE, and the
petition for probate is hereby DISMISSED. No
costs.
The earlier Decision was rendered by the RTC of
Quezon City, Branch 94, 2 in Sp. Proc. No. Q-37171,
and the instrument submitted for probate is the
holographic will of the late Annie Sand, who died on
November 25, 1982.
In the will, decedent named as devisees, the following:
petitioners Roberto and Thelma Ajero, private respondent
Clemente Sand, Meriam S. Arong, Leah Sand, Lilia Sand,
Edgar Sand, Fe Sand, Lisa S. Sand, and Dr. Jose Ajero, Sr.,
and their children.
On January 20, 1983, petitioners instituted Sp. Proc. No. Q-
37171, for allowance of decedent's holographic will. They
alleged that at the time of its execution, she was of sound and
disposing mind, not acting under duress, fraud or undue
influence, and was in every respect capacitated to dispose of
her estate by will.
Private respondent opposed the petition on the grounds that:
neither the testament's body nor the signature therein was in
decedent's handwriting; it contained alterations and
corrections which were not duly signed by decedent; and, the
will was procured by petitioners through improper pressure
and undue influence. The petition was likewise opposed by Dr.
Jose Ajero. He contested the disposition in the will of a house
and lot located in Cabadbaran, Agusan Del Norte. He claimed
that said property could not be conveyed by decedent in its
entirety, as she was not its sole owner.
Notwithstanding the oppositions, the trial court admitted the
decedent's holographic will to probate. It found, inter alia:
Considering then that the probate proceedings
herein must decide only the question of identity
of the will, its due execution and the
testamentary capacity of the testatrix, this
probate court finds no reason at all for the
disallowance of the will for its failure to comply
with the formalities prescribed by law nor for
lack of testamentary capacity of the testatrix.
For one, no evidence was presented to show
that the will in question is different from the will
actually executed by the testatrix. The only
objections raised by the oppositors . . . are that
the will was not written in the handwriting of the
testatrix which properly refers to the question of
its due execution, and not to the question of
identity of will. No other will was alleged to have
been executed by the testatrix other than the
will herein presented. Hence, in the light of the
evidence adduced, the identity of the will
presented for probate must be accepted, i.e.,
the will submitted in Court must be deemed to
be the will actually executed by the testatrix.
xxx xxx xxx
While the fact that it was entirely written, dated
and signed in the handwriting of the testatrix
has been disputed, the petitioners, however,
have satisfactorily shown in Court that the
holographic will in question was indeed written
entirely, dated and signed in the handwriting of
the testatrix. Three (3) witnesses who have
convincingly shown knowledge of the
handwriting of the testatrix have been
presented and have explicitly and categorically
identified the handwriting with which the
holographic will in question was written to be
the genuine handwriting and signature of the
testatrix. Given then the aforesaid evidence, the
requirement of the law that the holographic will
be entirely written, dated and signed in the
handwriting of the testatrix has been complied
with.
xxx xxx xxx
As to the question of the testamentary capacity
of the testratix, (private respondent) Clemente
Sand himself has testified in Court that the
testatrix was completely in her sound mind
when he visited her during her birthday
celebration in 1981, at or around which time the
holographic will in question was executed by
the testatrix. To be of sound mind, it is sufficient
that the testatrix, at the time of making the will,
knew the value of the estate to be disposed of,
the proper object of her bounty, and
the characterof the testamentary act . . . The
will itself shows that the testatrix even had
detailed knowledge of the nature of her estate.
She even identified the lot number and square
meters of the lots she had conveyed by will.
The objects of her bounty were likewise
identified explicitly. And considering that she
had even written a nursing book which
contained the law and jurisprudence on will and
succession, there is more than sufficient
showing that she knows the character of the
testamentary act.
In this wise, the question of identity of the will,
its due execution and the testamentary capacity
of the testatrix has to be resolved in favor of the
allowance of probate of the will submitted
herein.
Likewise, no evidence was presented to show
sufficient reason for the disallowance of herein
holographic will. While it was alleged that the
said will was procured by undue and improper
pressure and influence on the part of the
beneficiary or of some other person, the
evidence adduced have not shown any
instance where improper pressure or influence
was exerted on the testatrix. (Private
respondent) Clemente Sand has testified that
the testatrix was still alert at the time of the
execution of the will, i.e., at or around the time
of her birth anniversary celebration in 1981. It
was also established that she is a very
intelligent person and has a mind of her own.
Her independence of character and to some
extent, her sense of superiority, which has been
testified to in Court, all show the unlikelihood of
her being unduly influenced or improperly
pressured to make the aforesaid will. It must be
noted that the undue influence or improper
pressure in question herein only refer to the
making of a will and not as to the specific
testamentary provisions therein which is the
proper subject of another proceeding. Hence,
under the circumstances, this Court cannot find
convincing reason for the disallowance of the
will herein.
Considering then that it is a well-established
doctrine in the law on succession that in case of
doubt, testate succession should be preferred
over intestate succession, and the fact that no
convincing grounds were presented and proven
for the disallowance of the holographic will of
the late Annie Sand, the aforesaid will
submitted herein must be admitted to
probate. 3 (Citations omitted.)
On appeal, said Decision was reversed, and the petition for
probate of decedent's will was dismissed. The Court of
Appeals found that, "the holographic will fails to meet the
requirements for its validity." 4 It held that the decedent did not
comply with Articles 813 and 814 of the New Civil Code, which
read, as follows:
Art. 813: When a number of dispositions
appearing in a holographic will are signed
without being dated, and the last disposition
has a signature and date, such date validates
the dispositions preceding it, whatever be the
time of prior dispositions.
Art. 814: In case of insertion, cancellation,
erasure or alteration in a holographic will, the
testator must authenticate the same by his full
signature.
It alluded to certain dispositions in the will which were either
unsigned and undated, or signed but not dated. It also found
that the erasures, alterations and cancellations made thereon
had not been authenticated by decedent.
Thus, this appeal which is impressed with merit.
Section 9, Rule 76 of the Rules of Court provides that will shall
be disallowed in any of the following cases:
(a) If not executed and attested as required by
law;
(b) If the testator was insane, or otherwise
mentally incapable to make a will, at the time of
its execution;
 (c) If it was executed under duress, or the
influence of fear, or threats;
(d) If it was procured by undue and improper
pressure and influence, on the part of the
beneficiary, or of some other person for his
benefit;
(e) If the signature of the testator was procured
by fraud or trick, and he did not intend that the
instrument should be his will at the time of fixing
his signature thereto.
In the same vein, Article 839 of the New Civil Code
reads:
Art. 839: The will shall be disallowed in any of
the following cases;
(1) If the formalities required by
law have not been complied
with;
(2) If the testator was insane, or
otherwise mentally incapable of
making a will, at the time of its
execution;
(3) If it was executed through
force or under duress, or the
influence of fear, or threats;
(4) If it was procured by undue
and improper pressure and
influence, on the part of the
beneficiary or of some other
person;
(5) If the signature of the testator
was procured by fraud;
(6) If the testator acted by
mistake or did not intend that the
instrument he signed should be
his will at the time of affixing his
signature thereto.
These lists are exclusive; no other grounds can serve to
disallow a will. 5 Thus, in a petition to admit a holographic will
to probate, the only issues to be resolved are: (1) whether the
instrument submitted is, indeed, the decedent's last will and
testament; (2) whether said will was executed in accordance
with the formalities prescribed by law; (3) whether the
decedent had the necessary testamentary capacity at the time
the will was executed; and, (4) whether the execution of the
will and its signing were the voluntary acts of the decedent. 6
In the case at bench, respondent court held that the
holographic will of Anne Sand was not executed in accordance
with the formalities prescribed by law. It held that Articles 813
and 814 of the New Civil Code, ante, were not complied with,
hence, it disallowed the probate of said will. This is erroneous.
We reiterate what we held in Abangan vs. Abangan, 40 Phil.
476, 479 (1919), that:
The object of the solemnities surrounding the
execution of wills is to close the door against
bad faith and fraud, to avoid substitution of wills
and testaments and to guaranty their truth and
authenticity. Therefore, the laws on this subject
 should be interpreted in such a way as to attain
these primordial ends. But, on the other hand,
also one must not lose sight of the fact that it is
not the object of the law to restrain and curtail
the exercise of the right to make a will. So when
an interpretation already given assures such
ends, any other interpretation whatsoever, that
adds nothing but demands more requisites
entirely unnecessary, useless and frustrative of
the testator's last will, must be disregarded.
For purposes of probating non-holographic wills, these formal
solemnities include the subscription, attestation, and
acknowledgment requirements under Articles 805 and 806 of
the New Civil Code.
In the case of holographic wills, on the other hand, what
assures authenticity is the requirement that they be totally
autographic or handwritten by the testator himself, 7 as
provided under Article 810 of the New Civil Code, thus:
A person may execute a holographic will which
must be entirely written, dated, and signed by
the hand of the testator himself. It is subject to
no other form, and may be made in or out of the
Philippines, and need not be witnessed.
(Emphasis supplied.)
Failure to strictly observe other formalities will not
result in the disallowance of a holographic will that is
unquestionably handwritten by the testator.
A reading of Article 813 of the New Civil Code shows that its
requirement affects the validity of the dispositions contained in
the holographic will, but not its probate. If the testator fails to
sign and date some of the dispositions, the result is that these
dispositions cannot be effectuated. Such failure, however,
does not render the whole testament void.
Likewise, a holographic will can still be admitted to probate,
notwithstanding non-compliance with the provisions of Article
814. In the case of Kalaw vs. Relova 132 SCRA 237
242 (1984), this Court held:
Ordinarily, when a number of erasures,
corrections, and interlineations made by the
testator in a holographic Will have not been
noted under his signature, . . . the Will is not
thereby invalidated as a whole, but at most only
as respects the particular words erased,
corrected or interlined. Manresa gave an
identical commentary when he said "la omission
de la salvedad no anula el testamento, segun la
regla de jurisprudencia establecida en la
sentencia de 4 de Abril de 1985." 8 (Citations
omitted.)
Thus, unless the unauthenticated alterations, cancellations or
insertions were made on the date of the holographic will or on
testator's signature, 9 their presence does not invalidate the
will itself. 10 The lack of authentication will only result in
disallowance of such changes.
It is also proper to note that the requirements of authentication
of changes and signing and dating of dispositions appear in
provisions (Articles 813 and 814) separate from that which
provides for the necessary conditions for the validity of the
holographic will (Article 810). The distinction can be traced to
Articles 678 and 688 of the Spanish Civil Code, from which the
present provisions covering holographic wills are taken. They
read as follows:
 Art. 678: A will is called holographic when the
testator writes it himself in the form and with the
requisites required in Article 688.
Art. 688: Holographic wills may be executed
only by persons of full age.
In order that the will be valid it must be drawn
on stamped paper corresponding to the year of
its execution, written in its entirety by the
testator and signed by him, and must contain a
statement of the year, month and day of its
execution.
If it should contain any erased, corrected, or
interlined words, the testator must identify them
over his signature.
Foreigners may execute holographic wills in
their own language.
This separation and distinction adds support to the
interpretation that only the requirements of Article 810 of the
New Civil Code — and not those found in Articles 813 and 814
of the same Code — are essential to the probate of a
holographic will.
The Court of Appeals further held that decedent Annie Sand
could not validly dispose of the house and lot located in
Cabadbaran, Agusan del Norte, in its entirety. This is correct
and must be affirmed.
As a general rule, courts in probate proceedings are limited to
pass only upon the extrinsic validity of the will sought to be
probated. However, in exceptional instances, courts are not
powerless to do what the situation constrains them to do, and
pass upon certain provisions of the will. 11 In the case at
bench, decedent herself indubitably stated in her holographic
will that the Cabadbaran property is in the name of her late
father, John H. Sand (which led oppositor Dr. Jose Ajero to
question her conveyance of the same in its entirety). Thus, as
correctly held by respondent court, she cannot validly dispose
of the whole property, which she shares with her father's other
heirs.
IN VIEW WHEREOF, the instant petition is GRANTED. The
Decision of the Court of Appeals in CA-G.R. CV No. 22840,
dated March 30, 1992, is REVERSED and SET ASIDE, except
with respect to the invalidity of the disposition of the entire
house and lot in Cabadbaran, Agusan del Norte. The Decision
of the Regional Trial Court of Quezon City, Branch 94 in Sp.
Proc. No. Q-37171, dated November 19, 1988, admitting to
probate the holographic will of decedent Annie Sand, is hereby
REINSTATED, with the above qualification as regards the
Cabadbaran property. No costs.
SO ORDERED.
Narvasa, C.J., Padilla, Regalado and Mendoza, JJ.,
concur.
G.R. No. L-23079 February 27, 1970
RUBEN AUSTRIA, CONSUELO AUSTRIA-BENTA and
LAURO AUSTRIA MOZO, petitioners,
vs.
HON. ANDRES REYES, Judge, Court of First Instance of
Rizal, PERFECTO CRUZ, BENITA CRUZ-MENEZ ISAGANI
CRUZ, ALBERTO CRUZ and LUZ CRUZ-
SALONGA respondents.
Salonga, Ordoñez, Yap, Sicat and Associates for petitioners.
Ruben Austria for himself and co-petitioners.
De los Santos, De los Santos and De los Santos for
respondent Perfecto Cruz.
Villareal, Almacen, Navarra and Amores for other
respondents.
CASTRO, J.:
On July 7, 1956 Basilia Austria vda. de Cruz filed with the
Court of First Instance of Rizal (Special Proceedings 2457) a
petition for probate, ante mortem, of her last will and
testament. The probate was opposed by the present
petitioners Ruben Austria, Consuelo Austria-Benta and Lauro
Austria Mozo, and still others who, like the petitioner, are
nephews and nieces of Basilia. This opposition was, however,
dismissed and the probate of the will allowed after due
hearing.
The bulk of the estate of Basilia, admittedly, was destined
under the will to pass on to the respondents Perfecto Cruz,
Benita Cruz-Meñez, Isagani Cruz, Alberto Cruz, and Luz Cruz-
Salonga, all of whom had been assumed and declared by
Basilia as her own legally adopted children.
On April 23, 1959, more than two years after her will was
allowed to probate, Basilia died. The respondent Perfecto Cruz
was appointed executor without bond by the same court in
accordance with the provisions of the decedent's will,
notwithstanding the blocking attempt pursued by the petitioner
Ruben Austria.
Finally, on November 5, 1959, the present petitioners filed in
the same proceedings a petition in intervention for partition
alleging in substance that they are the nearest of kin of Basilia,
and that the five respondents Perfecto Cruz, et al., had not in
fact been adopted by the decedent in accordance with law, in
effect rendering these respondents mere strangers to the
decedent and without any right to succeed as heirs.
Notwithstanding opposition by the respondent Perfecto Cruz,
as executor of the estate, the court a quo allowed the
petitioners' intervention by its order of December 22, 1959,
couched in broad terms, as follows: "The Petition in
Intervention for Partition filed by the above-named oppositors
[Ruben Austria, et al.,] dated November 5, 1959 is hereby
granted."
In the meantime, the contending sides debated the matter of
authenticity or lack of it of the several adoption papers
produced and presented by the respondents. On motion of the
petitioners Ruben Austria, et al., these documents were
referred to the National Bureau of Investigation for
examination and advice. N.B.I. report seems to bear out the
genuineness of the documents, but the petitioners, evidently
dissatisfied with the results, managed to obtain a preliminary
opinion from a Constabulary questioned-document examiner
whose views undermine the authenticity of the said
documents. The petitioners Ruben Austria, et al., thus moved
the lower court to refer the adoption papers to the Philippine
Constabulary for further study. The petitioners likewise located
former personnel of the court which appeared to have granted
the questioned adoption, and obtained written depositions
from two of them denying any knowledge of the pertinent
adoption proceedings.
On February 6, 1963, more than three years after they were
allowed to intervene, the petitioners Ruben Austria, let al.,
moved the lower court to set for hearing the matter of the
genuineness of the adoption of the respondents Perfecto Cruz,
et al., by the late Basilia. Before the date set by the court for
hearing arrived, however, the respondent Benita Cruz-Meñez
who entered an appearance separately from that of her
brother Perfecto Cruz, filed on February 28, 1963 a motion
asking the lower court, by way of alternative relief, to confine
the petitioners' intervention, should it be permitted, to
properties not disposed of in the will of the decedent.
On March 4, 1963, the lower court heard the respondent
Benita's motion. Both sides subsequently submitted their
respective memoranda, and finally, the lower court issued an
order on June 4, 1963, delimiting the petitioners' intervention
to the properties of the deceased which were not disposed of
in the will.
The petitioners moved the lower court to reconsider this latest
order, eliciting thereby an opposition, from the respondents.
On October 25, 1963 the same court denied the petitioners'
motion for reconsideration.
A second motion for reconsideration which set off a long
exchange of memoranda from both sides, was summarily
denied on April 21, 1964.
Hence this petition for certiorari, praying this Court to annul the
orders of June 4 and October 25, 1963 and the order of April
21, 1964, all restricting petitioners' intervention to properties
that were not included in the decedent's testamentary
dispositions.
The uncontested premises are clear. Two interests are locked
in dispute over the bulk of the estate of the deceased. Arrayed
on one side are the petitioners Ruben Austria, Consuelo
Austria-Benta and Lauro Austria Mozo, three of a number of
nephews and nieces who are concededly the nearest surviving
blood relatives of the decedent. On the other side are the
respondents brothers and sisters, Perfecto Cruz, Benita Cruz-
Meñez, Isagani Cruz, Alberto Cruz and Luz Cruz-Salonga, all
of whom heirs in the will of the deceased Basilia, and all of
whom claim kinship with the decedent by virtue of legal
adoption. At the heart of the controversy is Basilia's last will —
immaculate in its extrinsic validity since it bears the imprimatur
of duly conducted probate proceedings.
The complaint in intervention filed in the lower court assails the
legality of the tie which the respondent Perfecto Cruz and his
brothers and sisters claim to have with the decedent. The
lower court had, however, assumed, by its orders in question,
that the validity or invalidity of the adoption is not material nor
decisive on the efficacy of the institution of heirs; for, even if
the adoption in question were spurious, the respondents
Perfecto Cruz, et al., will nevertheless succeed not as
compulsory heirs but as testamentary heirs instituted in
Basilia's will. This ruling apparently finds support in article, 842
of the Civil Code which reads:
 One who has no compulsory heirs may dispose
of by will all his estate or any part of it in favor
of any person having capacity to succeed.
One who has compulsory heirs may dispose of
his estate provided he does not contravene the
provisions of this Code with regard to the
legitime of said heirs.
The lower court must have assumed that since the petitioners
nephews and niece are not compulsory heirs, they do not
possess that interest which can be prejudiced by a free-
wheeling testamentary disposition. The petitioners' interest is
confined to properties, if any, that have not been disposed of in
the will, for to that extent intestate succession can take place
and the question of the veracity of the adoption acquires
relevance.
The petitioners nephews and niece, upon the other hand,
insist that the entire estate should descend to them by
intestacy by reason of the intrinsic nullity of the institution of
heirs embodied in the decedent's will. They have thus raised
squarely the issue of whether or not such institution of heirs
would retain efficacy in the event there exists proof that the
adoption of the same heirs by the decedent is false.
The petitioners cite, as the controlling rule, article 850 of the
Civil Code which reads:
The statement of a false cause for the
institution of an heir shall be considered as not
written, unless it appears from the will that the
testator would not have made such institution if
he had known the falsity of such cause.
Coming closer to the center of the controversy, the petitioners
have called the attention of the lower court and this Court to
the following pertinent portions of the will of the deceased
which recite:
III
Ang aking mga sapilitang tagapagmana
(herederos forzosos) ay ang aking itinuturing na
mga anak na tunay (Hijos legalmente
adoptados) na sina Perfecto, Alberto, Luz,
Benita at Isagani, na pawang may apelyidong
Cruz.
xxx xxx xxx
Kung ako ay bawian ng Dios ng buhay, ay aking
ipinamamana ang aking mga ari-ariang
maiiwan, sa kaparaanang sumusunod:
A.—Aking ipinamamana sa aking nabanggit na
limang anak na sina Perfecto, Alberto, Luz,
Benita at Isagani, na pawang may apelyidong
Cruz, na parepareho ang kaparti ng bawa't isa
at walang lamangan (en partes iguales), bilang
kanilang sapilitang mana (legiti[ma]), ang
kalahati (½) ng aking kaparti sa lahat ng aming
ari-ariang gananciales ng aking yumaong
asawang Pedro Cruz na napapaloob sa
Actuacion Especial No. 640 ng Hukumang
Unang Dulugan ng Rizal at itinutukoy sa No. 1
ng parafo IV ng testamentong ito, ang kalahati
(½) ng mga lagay na lupa at palaisdaan na
nasa Obando at Polo, Bulacan, na namana ko
sa aking yumaong ama na si Calixto Austria, at
ang kalahati (½) ng ilang lagay na lupa na nasa
 Tinejeros, Malabon, Rizal, na aking namana sa
yumao kong kapatid na si Fausto Austria.
The tenor of the language used, the petitioners argue, gives
rise to the inference that the late Basilia was deceived into
believing that she was legally bound to bequeath one-half of
her entire estate to the respondents Perfecto Cruz, et al. as
the latter's legitime. The petitioners further contend that had
the deceased known the adoption to be spurious, she would
not have instituted the respondents at all — the basis of the
institution being solely her belief that they were compulsory
heirs. Proof therefore of the falsity of the adoption would cause
a nullity of the institution of heirs and the opening of the estate
wide to intestacy. Did the lower court then abuse its discretion
or act in violation of the rights of the parties in barring the
petitioners nephews and niece from registering their claim
even to properties adjudicated by the decedent in her will?
Before the institution of heirs may be annulled under article
850 of the Civil Code, the following requisites must
concur: First, the cause for the institution of heirs must be
stated in the will; second, the cause must be shown to be
false; and third, it must appear from the face of the will that the
testator would not have made such institution if he had known
the falsity of the cause.
The petitioners would have us imply, from the use of the terms,
"sapilitang tagapagmana" (compulsory heirs) and "sapilitang
mana" (legitime), that the impelling reason or cause for the
institution of the respondents was the testatrix's belief that
under the law she could not do otherwise. If this were indeed
what prompted the testatrix in instituting the respondents, she
did not make it known in her will. Surely if she was aware that
succession to the legitime takes place by operation of law,
independent of her own wishes, she would not have found it
convenient to name her supposed compulsory heirs to their
legitimes. Her express adoption of the rules on legitimes
should very well indicate her complete agreement with that
statutory scheme. But even this, like the petitioners' own
proposition, is highly speculative of what was in the mind of
the testatrix when she executed her will. One fact prevails,
however, and it is that the decedent's will does not state in a
specific or unequivocal manner the cause for such institution
of heirs. We cannot annul the same on the basis of guesswork
or uncertain implications.
And even if we should accept the petitioners' theory that the
decedent instituted the respondents Perfecto Cruz, et al. solely
because she believed that the law commanded her to do so,
on the false assumption that her adoption of these
respondents was valid, still such institution must stand.
Article 850 of the Civil Code, quoted above, is a positive
injunction to ignore whatever false cause the testator may
have written in his will for the institution of heirs. Such
institution may be annulled only when one is satisfied, after an
examination of the will, that the testator clearly would not have
made the institution if he had known the cause for it to be
false. Now, would the late Basilia have caused the revocation
of the institution of heirs if she had known that she was
mistaken in treating these heirs as her legally adopted
children? Or would she have instituted them nonetheless?
The decedent's will, which alone should provide the answer, is
mute on this point or at best is vague and uncertain. The
phrases, "mga sapilitang tagapagmana" and "sapilitang
mana," were borrowed from the language of the law on
succession and were used, respectively, to describe the class
of heirs instituted and the abstract object of the inheritance.
They offer no absolute indication that the decedent would have
willed her estate other than the way she did if she had known
that she was not bound by law to make allowance for
legitimes. Her disposition of the free portion of her estate (libre
disposicion) which largely favored the respondent Perfecto
Cruz, the latter's children, and the children of the respondent
Benita Cruz, shows a perceptible inclination on her part to give
to the respondents more than what she thought the law
enjoined her to give to them. Compare this with the relatively
small devise of land which the decedent had left for her blood
relatives, including the petitioners Consuelo Austria-Benta and
Lauro Mozo and the children of the petitioner Ruben Austria.
Were we to exclude the respondents Perfecto Cruz, et al. from
the inheritance, then the petitioners and the other nephews
and nieces would succeed to the bulk of the testate by
intestacy — a result which would subvert the clear wishes of
the decedent.
At all events, the legality of the adoption of the respondents by
the testatrix can be assailed only in a separate action brought
for that purpose, and cannot be the subject of a collateral
attack.5
To the petitioners' charge that the lower court had no power to
reverse its order of December 22, 1959, suffice it to state that,
as borne by the records, the subsequent orders complained of
served merely to clarify the first — an act which the court could
legally do. Every court has the inherent power to amend and
control its processes and orders so as to make them
conformable to law and justices.6 That the court a quo has
limited the extent of the petitioners' intervention is also within
its powers as articulated by the Rules of Court.7

Whatever doubts one entertains in his mind should be swept ACCORDINGLY, the present petition is denied, at petitioners
away by these explicit injunctions in the Civil Code: "The cost.
words of a will are to receive an interpretation which will give
to every expression some effect, rather than one which will Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar,
render any of the expressions inoperative; and of two modes Fernando, Teehankee, Barredo and Villamor, JJ., concur.
of interpreting a will, that is to be preferred which will prevent
intestacy." 1

Testacy is favored and doubts are resolved on its side,

especially where the will evinces an intention on the part of the
testator to dispose of practically his whole estate,2 as was
done in this case. Moreover, so compelling is the principle that
intestacy should be avoided and the wishes of the testator
allowed to prevail, that we could even vary the language of the
will for the purpose of giving it effect.3 A probate court has
found, by final judgment, that the late Basilia Austria Vda. de
Cruz was possessed of testamentary capacity and her last will
executed free from falsification, fraud, trickery or undue
influence. In this situation, it becomes our duty to give full
expression to her will.4
 [G.R. No. 141882. March 11, 2005]
J.L.T. AGRO, INC., represented by its Manager, JULIAN L.
TEVES, petitioner, vs. ANTONIO BALANSAG and
HILARIA CADAYDAY, respondents.
DECISION
TINGA, J.:
Once again, the Court is faced with the perennial conflict
of property claims between two sets of heirs, a conflict
ironically made grievous by the fact that the decedent in this
case had resorted to great lengths to allocate which properties
should go to which set of heirs.
This is a Rule 45 petition assailing the Decision[1] dated 30
September 1999 of the Court of Appeals which reversed
the Decision[2] dated 7 May 1993 of the Regional Trial Court
(RTC), Branch 45, of Bais City, Negros Oriental.
The factual antecedents follow.
Don Julian L. Teves (Don Julian) contracted two
marriages, first with Antonia Baena (Antonia), and after her
death, with Milagros Donio Teves (Milagros Donio). Don Julian
had two children with Antonia, namely: Josefa Teves Escao
(Josefa) and Emilio Teves (Emilio). He had also four (4)
children with Milagros Donio, namely: Maria Evelyn Donio
Teves (Maria Evelyn), Jose Catalino Donio Teves (Jose
Catalino), Milagros Reyes Teves (Milagros Reyes) and Pedro
Reyes Teves (Pedro).[3]
The present controversy involves a parcel of land covering
nine hundred and fifty-four (954) square meters, known as Lot
No. 63 of the Bais Cadastre, which was originally registered in
the name of the conjugal partnership of Don Julian and
Antonia under Original Certificate of Title (OCT) No. 5203 of
the Registry of Deeds of Bais City. When Antonia died, the
land was among the properties involved in an action for
partition and damages docketed as Civil Case No. 3443
entitled Josefa Teves Escao v. Julian Teves, Emilio B. Teves,
et al.[4] Milagros Donio, the second wife of Don Julian,
participated as an intervenor. Thereafter, the parties to the
case entered into a Compromise Agreement[5] which embodied
the partition of all the properties of Don Julian.
On the basis of the compromise agreement and approving
the same, the Court of First Instance (CFI) of Negros Oriental,
12th Judicial District, rendered a Decision[6] dated 31 January
1964. The CFI decision declared a tract of land known as
Hacienda Medalla Milagrosa as property owned in common by
Don Julian and his two (2) children of the first marriage. The
property was to remain undivided during the lifetime of Don
Julian.[7] Josefa and Emilio likewise were given other
properties at Bais, including the electric plant, the movie
property, the commercial areas, and the house where Don
Julian was living. The remainder of the properties was retained
by Don Julian, including Lot No. 63.
Paragraph 13 of the Compromise Agreement, at the heart
of the present dispute, lays down the effect of the eventual
death of Don Julian vis--vis his heirs:
13. That in the event of death of Julian L. Teves, the properties
hereinafter adjudicated to Josefa Teves Escaňo and Emilio B.
Teves, (excluding the properties comprised as Hacienda
Medalla Milagrosa together with all its accessories and
accessions) shall be understood as including not only their
one-half share which they inherited from their mother but also
the legitimes and other successional rights which would
correspond to them of the other half belonging to their father,
Julian L. Teves. In other words, the properties now selected
and adjudicated to Julian L. Teves (not including his
share in the Hacienda Medalla Milagrosa) shall
exclusively be adjudicated to the wife in second marriage of
Julian L. Teves and his four minor children, namely, Milagros
Donio Teves, his two acknowledged natural children Milagros
Reyes Teves and Pedro Reyes Teves and his two legitimated
children Maria Evelyn Donio Teves and Jose Catalino Donio
Teves. (Emphasis supplied)
On 16 November 1972, Don Julian, Emilio and Josefa
executed a Deed of Assignment of Assets with Assumption of
Liabilities[8] in favor of J.L.T. Agro, Inc. (petitioner). Less than a
year later, Don Julian, Josefa and Emilio also executed an
instrument entitled Supplemental to the Deed of Assignment of
Assets with the Assumption of Liabilities (Supplemental Deed)
[9]
dated 31 July 1973. This instrument which constitutes a
supplement to the earlier deed of assignment transferred
ownership over Lot No. 63, among other properties, in favor of
petitioner.[10] On 14 April 1974, Don Julian died intestate.
On the strength of the Supplemental Deed in its favor,
petitioner sought the registration of the subject lot in its name.
A court, so it appeared, issued an order [11] cancelling OCT No.
5203 in the name of spouses Don Julian and Antonia on 12
November 1979, and on the same date TCT No. T-375 was
issued in the name of petitioner.[12] Since then, petitioner has
been paying taxes assessed on the subject lot.[13]
Meanwhile, Milagros Donio and her children had
immediately taken possession over the subject lot after the
execution of the Compromise Agreement. In 1974, they
entered into a yearly lease agreement with spouses Antonio
Balansag and Hilaria Cadayday, respondents herein.[14] On Lot
No. 63, respondents temporarily established their home and
constructed a lumber yard. Subsequently, Milagros Donio and
her children executed a Deed of Extrajudicial Partition of Real
Estate[15] dated 18 March 1980. In the deed of partition, Lot No.
63 was allotted to Milagros Donio and her two (2) children,
Maria Evelyn and Jose Catalino. Unaware that the subject lot
was already registered in the name of petitioner in 1979,
respondents bought Lot No. 63 from Milagros Donio as
evidenced by the Deed of Absolute Sale of Real
Estate[16] dated 9 November 1983.
At the Register of Deeds while trying to register the deed
of absolute sale, respondents discovered that the lot was
already titled in the name of petitioner. Thus, they failed to
register the deed.[17]
Respondents, as vendees of Lot No. 63, filed a complaint
before the RTC Branch 45 of Bais City, seeking the declaration
of nullity and cancellation of TCT No. T-375 in the name of
petitioner and the transfer of the title to Lot No. 63 in their
names, plus damages.[18]
After hearing, the trial court dismissed the complaint filed
by respondents. The dispositive portion of the decision reads:
WHEREFORE, premises considered, by preponderance of
evidence, this Court finds judgment in favor of the defendant
and against the plaintiff, and thus hereby orders:
(1) That complaint be dismissed;
(2) That plaintiffs vacate the subject land, particularly
identified as Lot No. 63 registered under
Transfer Certificate of Title No. T-375;
(3) That plaintiffs pay costs.
Finding no basis on the counterclaim by defendant, the same
is hereby ordered dismissed.[19]
The trial court ruled that the resolution of the case
specifically hinged on the interpretation of paragraph 13 of
the Compromise Agreement.[20] It added that the direct
adjudication of the properties listed in the Compromise
Agreement was only in favor of Don Julian and his two
children by the first marriage, Josefa and Emilio. [21] Paragraph
13 served only as an amplification of the terms of the
adjudication in favor of Don Julian and his two children by the
first marriage.
According to the trial court, the properties adjudicated in
favor of Josefa and Emilio comprised their shares in the estate
of their deceased mother Antonia, as well as their potential
share in the estate of Don Julian upon the latters death. Thus,
upon Don Julians death, Josefa and Emilio could not claim any
share in his estate, except their proper share in the Hacienda
Medalla Milagrosa which was adjudicated in favor of Don
Julian in the Compromise Agreement. As such, the properties
adjudicated in favor of Don Julian, except Hacienda Medalla
Milagrosa, were free from the forced legitimary rights of Josefa
and Emilio, and Don Julian was under no impediment to
allocate the subject lot, among his other properties, to Milagros
Donio and her four (4) children.[22]
The trial court further stressed that with the use of the
words shall be, the adjudication in favor of Milagros Donio and
her four (4) children was not final and operative, as the lot was
still subject to future disposition by Don Julian during his
lifetime.[23] It cited paragraph 14[24] of the Compromise
Agreement in support of his conclusion.[25] With Lot No. 63
being the conjugal property of Don Julian and Antonia, the trial
court also declared that Milagros Donio and her children had
no hereditary rights thereto except as to the conjugal share of
Don Julian, which they could claim only upon the death of the
latter.[26]
The trial court ruled that at the time of Don Julians death
on 14 April 1974, Lot No. 63 was no longer a part of his estate
since he had earlier assigned it to petitioner on 31 July 1973.
Consequently, the lot could not be a proper subject of
extrajudicial partition by Milagros Donio and her children, and
not being the owners they could not have sold it. Had
respondents exercised prudence before buying the subject lot
by investigating the registration of the same with the Registry
of Deeds, they would have discovered that five (5) years
earlier, OCT No. 5203 had already been cancelled and
replaced by TCT No. T-375 in the name of petitioner, the trial
court added.[27]
The Court of Appeals, however, reversed the trial courts
decision. The decretal part of the appellate decision reads:
WHEREFORE, premises considered, the decision appealed
from is hereby REVERSED and SET ASIDE and a new one is
entered declaring the Transfer Certificate of Title No. T-375
registered in the name of J.L.T. Agro, Inc. as null and void.
With costs against defendant J.L.T. Agro, Inc. represented by
its Manager, Julian L. Teves.
SO ORDERED.[28]
Per the appellate court, the Compromise
Agreement incorporated in CFI decision dated 31 January
1964, particularly paragraph 13 thereof, determined,
adjudicated and reserved to Don Julians two sets of heirs their
future legitimes in his estate except as regards his (Don
Julians) share in Hacienda Medalla Milagrosa.[29] The two sets
of heirs acquired full ownership and possession of the
properties respectively adjudicated to them in the CFI decision Being the key adjudicative provision, paragraph 13 of
and Don Julian himself could no longer dispose of the same, the Compromise Agreement has to be quoted again:
including Lot No. 63. The disposition in the CFI decision
constitutes res judicata.[30] Don Julian could have disposed of 13. That in the event of death of Julian L. Teves, the properties
only his conjugal share in the Hacienda Medalla Milagrosa.[31] herein adjudicated to Josefa Teves Escao and Emilio B. Teves,
(excluding the properties comprised as Hacienda Medalla
The appellate court likewise emphasized that nobody in
Milagrosa together with all its accessories and accessions)
his right judgment would preterit his legal heirs by simply
shall be understood as including not only their one-half share
executing a document like the Supplemental Deed which
which they inherited from their mother but also the legitimes
practically covers all properties which Don Julian had reserved
and other successional rights which would correspond to them
in favor of his heirs from the second marriage. It also found out
of the other half belonging to their father, Julian L.Teves. In
that the blanks reserved for the Book No. and Page No. at the
other words, the properties now selected and adjudicated
upper right corner of TCT No. T-375, to identify the exact
to Julian L. Teves (not including his share in the Hacienda
location where the said title was registered or transferred,
Medalla Milagrosa) shall exclusively be adjudicated to the
were not filled up, thereby indicating that the TCT is spurious
wife in second marriage of Julian L. Teves and his four
and of dubious origin.[32]
minor children, namely, Milagros Donio Teves, his two
Aggrieved by the appellate courts decision, petitioner acknowledged natural children Milagros Reyes Teves and
elevated it to this Court via a petition for review on certiorari, Pedro Reyes Teves and his two legitimated children Maria
raising pure questions of law. Evelyn Donio Teves and Jose Catalino Donio
Teves. (Emphasis supplied)
Before this Court, petitioner assigns as errors the
following rulings of the appellate court, to wit: (a) that future
With the quoted paragraph as basis, the Court of Appeals
legitime can be determined, adjudicated and reserved prior to
ruled that the adjudication in favor of the heirs of Don Julian
the death of Don Julian; (b) that Don Julian had no right to
from the second marriage became automatically operative
dispose of or assign Lot No. 63 to petitioner because he
upon the approval of the Compromise Agreement, thereby
reserved the same for his heirs from the second marriage
vesting on them the right to validly dispose of Lot No. 63 in
pursuant to the Compromise Agreement; (c) that
favor of respondents.
the Supplemental Deed was tantamount to a preterition of his
heirs from the second marriage; and (d) that TCT No. T-375 in Petitioner argues that the appellate court erred in holding
the name of petitioner is spurious for not containing entries on that future legitime can be determined, adjudicated and
the Book No. and Page No.[33] reserved prior to the death of Don Julian. The Court agrees.
Our declaration in Blas v. Santos[34] is relevant, where we
While most of petitioners legal arguments have merit, the
defined future inheritance as any property or right not in
application of the appropriate provisions of law to the facts
existence or capable of determination at the time of the
borne out by the evidence on record nonetheless warrants the
contract, that a person may in the future acquire by
affirmance of the result reached by the Court of Appeals in
succession. Article 1347 of the New Civil Code explicitly
favor of respondents.
provides:
ART. 1347. All things which are not outside the commerce of
men, including future things, may be the object of a contract.
All rights which are not intransmissible may also be the object
of contracts.
No contract may be entered into upon future inheritance
except in cases expressly authorized by law.
All services which are not contrary to law, morals, good
customs, public order or public policy may likewise be the
object of a contract.
Well-entrenched is the rule that all things, even future
ones, which are not outside the commerce of man may be the
object of a contract. The exception is that no contract may be
entered into with respect to future inheritance, and the
exception to the exception is the partition inter vivos referred to
in Article 1080.[35]
For the inheritance to be considered future, the
succession must not have been opened at the time of the
contract.[36] A contract may be classified as a contract upon
future inheritance, prohibited under the second paragraph of
Article 1347, where the following requisites concur:
(1) That the succession has not yet been opened;
(2) That the object of the contract forms part of the
inheritance; and
(3) That the promissor has, with respect to the object, an
expectancy of a right which is purely hereditary in nature.[37]
The first paragraph of Article 1080, which provides the
exception to the exception and therefore aligns with the
general rule on future things, reads:
ART. 1080. Should a person make a partition of his estate by
an act inter vivos, or by will, such partition shall be respected,
insofar as it does not prejudice the legitime of the compulsory
heirs.
....
In interpreting this provision, Justice Edgardo Paras
advanced the opinion that if the partition is made by an
act inter vivos, no formalities are prescribed by the Article.
[38]
The partition will of course be effective only after
death. It does not necessarily require the formalities of a will
for after all it is not the partition that is the mode of acquiring
ownership. Neither will the formalities of a donation be
required since donation will not be the mode of acquiring the
ownership here after death; since no will has been made it
follows that the mode will be succession (intestate
succession). Besides, the partition here is merely the physical
determination of the part to be given to each heir.[39]
The historical antecedent of Article 1080 of the New Civil
Code is Article 1056[40] of the old Civil Code. The only change
in the provision is that Article 1080 now permits
any person (not a testator, as under the old law) to partition his
estate by act inter vivos. This was intended to abrogate the
then prevailing doctrine that for a testator to partition his estate
by an act inter vivos, he must first make a will with all the
formalities provided by law.[41]
Article 1056 of the old Civil Code (now Article 1080)
authorizes a testator to partition inter vivos his property, and
distribute them among his heirs, and this partition is neither a
donation nor a testament, but an instrument of a special
character, sui generis, which is revocable at any time by
the causante during his lifetime, and does not operate as a
conveyance of title until his death. It derives its binding
force on the heirs from the respect due to the will of the owner
of the property, limited only by his creditors and the intangibility
of the legitime of the forced heirs.[42]
The partition inter vivos of the properties of Don Julian is
undoubtedly valid pursuant to Article 1347. However,
considering that it would become legally operative only upon
the death of Don Julian, the right of his heirs from the second
marriage to the properties adjudicated to him under the
compromise agreement was but a mere expectancy. It was a
bare hope of succession to the property of their father. Being
the prospect of a future acquisition, the interest by its nature
was inchoate. It had no attribute of property, and the interest to
which it related was at the time nonexistent and might never
exist.[43]
Evidently, at the time of the execution of the deed of
assignment covering Lot No. 63 in favor of petitioner, Don
Julian remained the owner of the property since ownership
over the subject lot would only pass to his heirs from the
second marriage at the time of his death. Thus, as the owner
of the subject lot, Don Julian retained the absolute right to
dispose of it during his lifetime. His right cannot be challenged
by Milagros Donio and her children on the ground that it had
already been adjudicated to them by virtue of the compromise
agreement.
Emerging as the crucial question in this case is whether
Don Julian had validly transferred ownership of the subject lot
during his lifetime. The lower court ruled that he had done so
through the Supplemental Deed. The appellate court
disagreed, holding that the Supplemental Deed is not valid,
containing as it does a prohibited preterition of Don Julians
heirs from the second marriage. Petitioner contends that the
ruling of the Court of Appeals is erroneous. The contention is
well-founded.
Article 854 provides that the preterition or omission of one,
some, or all of the compulsory heirs in the direct line, whether
living at the time of the execution of the will or born after the
death of the testator, shall annul the institution of heir; but the
devises and legacies shall be valid insofar as they are not
inofficious. Manresa defines preterition as the omission of the
heir in the will, either by not naming him at all or, while
mentioning him as father, son, etc., by not instituting him as
heir without disinheriting him expressly, nor assigning to him
some part of the properties.[44] It is the total omission of a
compulsory heir in the direct line from inheritance. [45] It consists
in the silence of the testator with regard to a compulsory heir,
omitting him in the testament, either by not mentioning him at
all, or by not giving him anything in the hereditary property but
without expressly disinheriting him, even if he is mentioned in
the will in the latter case.[46] But there is no preterition where
the testator allotted to a descendant a share less than the
legitime, since there was no total omission of a forced heir.[47]
In the case at bar, Don Julian did not execute a will since
what he resorted to was a partition inter vivos of his properties,
as evidenced by the court approved Compromise Agreement.
Thus, it is premature if not irrelevant to speak of preterition
prior to the death of Don Julian in the absence of a will
depriving a legal heir of his legitime. Besides, there are other
properties which the heirs from the second marriage could
inherit from Don Julian upon his death. A couple of provisions
in the Compromise Agreement are indicative of Don Julians
desire along this line.[48] Hence, the total omission from
inheritance of Don Julians heirs from the second marriage, a
requirement for preterition to exist, is hardly imaginable as it is
unfounded.
Despite the debunking of respondents argument on
preterition, still the petition would ultimately rise or fall on
whether there was a valid transfer effected by Don Julian to
petitioner. Notably, Don Julian was also the president and
director of petitioner, and his daughter from the first marriage,
Josefa, was the treasurer thereof. There is of course no legal
prohibition against such a transfer to a family corporation. Yet
close scrutiny is in order, especially considering that such
transfer would remove Lot No. 63 from the estate from which
Milagros and her children could inherit. Both the alleged
transfer deed and the title which necessarily must have
emanated from it have to be subjected to incisive and detailed
examination.
Well-settled, of course, is the rule that a certificate of title
serves as evidence of an indefeasible title to the property in
favor of the person whose name appears therein.[49] A
certificate of title accumulates in one document a precise and
correct statement of the exact status of the fee held by its
owner. The certificate, in the absence of fraud, is the evidence
of title and shows exactly the real interest of its owner.[50]
To successfully assail the juristic value of what a Torrens
title establishes, a sufficient and convincing quantum of
evidence on the defect of the title must be adduced to
overcome the predisposition in law in favor of a holder of a
Torrens title. Thus, contrary to the appellate courts ruling, the
appearance of a mere thumbmark of Don Julian instead of his
signature in the Supplemental Deed would not affect the
validity of petitioners title for this Court has ruled that a
thumbmark is a recognized mode of signature.[51]
The truth, however, is that the replacement of OCT No.
5203 in the name of Julian by T.C.T. No. T-375 is marred by a
grave irregularity which is also an illegality, as it contravenes
the orthodox, conventional and normal process established by
law. And, worse still, the illegality is reflected on the face of
both titles. Where, as in this case, the transferee relies on a
voluntary instrument to secure the issuance of a new title in his
name such instrument has to be presented to the Registry of
Deeds. This is evident from Sections 53 and 57 of Presidential
Decree (P.D.) No. 1529 or the Property Registration Decree.
The sections read, thus:
SEC. 53. Presentation of owners duplicate upon entry of new
certificate. No voluntary instrument shall be registered by the
Register of Deeds unless the owners duplicate certificate
is presented with such instrument, except in cases
expressly provided for in this Decree or upon order of the
court, for cause shown. (Emphasis supplied)
....
SEC. 57. Procedure in registration of conveyances. An owner
desiring to convey his registered land in fee simple shall
execute and register a deed of conveyance in a form
sufficient in law. The Register of Deeds shall thereafter make
out in the registration book a new certificate of title to the
grantee and shall prepare and deliver to him an owners
duplicate certificate. The Register of Deeds shall note upon
the original and duplicate certificate the date of transfer, the
volume and page of the registration book in which the new
certificate is registered and a reference by number to the last
preceding certificate. The original and the owners duplicate of
the grantors certificate shall be stamped cancelled. The deed
of conveyance shall be filed and endorsed with the
number and the place of registration of the certificate of
title of the land conveyed. (Emphasis supplied)
As petitioner bases its right to the subject lot on
the Supplemental Deed, it should have presented it to the
Register of Deeds to secure the transfer of the title in its name.
Apparently, it had not done so. There is nothing on OCT No.
5203 or on the succeeding TCT No. T-375 either which shows
that it had presented the Supplemental Deed. In fact, there is
absolutely no mention of a reference to said document in the
original and transfer certificates of title. It is in this regard that
the finding of the Court of Appeals concerning the absence of
entries on the blanks intended for the Book No. and Page No.
gains significant relevance. Indeed, this aspect fortifies the
conclusion that the cancellation of OCT No. 5203 and the
consequent issuance of TCT No. T-375 in its place are not
predicated on a valid transaction.
What appears instead on OCT No. 5203 is the following
pertinent entry:
Entry No. 1374: Kind: Order: Executed in favor of J.L.T.
AGRO, INC.
CONDITIONS: Lost owners duplicate is hereby cancelled,
and null and void and a new Certificate of Title No. 375 is
issued per Order of the Court of First Instance on file in this
office.
Date of Instrument: November 12, 1979
Date of Inscription: Nov. 12, 1979 4:00 P.M.
(SGD) MANUEL C.
MONTESA
Acting Deputy Register of Deeds
II
(Emphasis supplied)[52]
What the entry indicates is that the owners duplicate of
OCT No. 5203 was lost, a petition for the reconstitution of the
said owners duplicate was filed in court, and the court issued
an order for the reconstitution of the owners duplicate and its
replacement with a new one. But if the entry is to be believed,
the court concerned (CFI, according to the entry) issued an
order for the issuance of a new title which is TCT No. T-375
although the original of OCT No. 5203 on file with the Registry
of Deeds had not been lost.
Going by the legal, accepted and normal process, the
reconstitution court may order the reconstitution and
replacement of the lost title only, nothing else. Since what was
lost is the owners copy of OCT No. 5203, only that owners
copy could be ordered replaced. Thus, the Register of Deeds
exceeded his authority in issuing not just a reconstituted
owners copy of the original certificate of title but a new transfer
certificate of title in place of the original certificate of title. But if
the court order, as the entry intimates, directed the issuance of
a new transfer certificate of titleeven designating the very
number of the new transfer certificate of title itselfthe order
would be patently unlawful. A court cannot legally order the
cancellation and replacement of the original of the O.C.T.
which has not been lost,[53] as the petition for reconstitution is
premised on the loss merely of the owners duplicate of the
OCT
Apparently, petitioner had resorted to the court order as a
convenient contrivance to effect the transfer of title to the
subject lot in its name, instead of the Supplemental
Deed which should be its proper course of action. It was so
constrained to do because the Supplemental Deed does not
constitute a deed of conveyance of the registered land in fee
simple in a form sufficient in law, as required by Section 57 of
P.D. No. 1529.
A plain reading of the pertinent provisions of
the Supplemental Deed discloses that the assignment is not
supported by any consideration. The provision reads:
....
WHEREAS, in the Deed of Assignment of Assets with the
Assumption of Liabilities executed by Julian L. Teves, Emilio B.
Teves and Josefa T. Escao at Dumaguete City on 16th day of
November 1972 and ratified in the City of Dumaguete before
Notary Public Lenin Victoriano, and entered in the latters
notarial register as Doc. No. 367; Page No. 17; Book No. V;
series of 1972, Julian L. Teves, Emilio B. Teves and Josefa T.
Escao, transferred, conveyed and assigned unto J.L.T. AGRO,
INC., all its assets and liabilities as reflected in the Balance
Sheet of the former as of December 31, 1971.
WHEREAS, on the compromise agreement, as mentioned in
the Decision made in the Court of First Instance of Negros
Oriental, 12th Judicial District Branch II, on Dec. 31, 1964
pertaining to Civil Case No. 3443 the following properties were
adjudicated to Don Julian L. Teves. We quote.
From the properties at Bais
Adjudicated to Don Julian L.Teves
....
Lot No. 63, Tax Dec. No. 33, Certificate of Title No. 5203,
together with all improvements. Assessed value - P2,720.00
....
WHEREAS, this Deed of Assignment is executed by the
parties herein in order to effect the registration of the transfer
of the above corporation.
NOW, THEREFORE, for and in consideration of the above
premises the ASSIGNOR hereby transfers, conveys, and
assigns unto J.L.T. AGRO, INC., the above described parcel of
land[s] with a fair market value of EIGHTY-FOUR
THOUSAND PESOS (P84,000.00), Philippine Currency, and
which transfer, conveyance and assignment shall become
absolute upon signing.[54] (Emphasis supplied)
The amount of P84,000.00 adverted to in the dispositive
portion of the instrument does not represent the consideration
for the assignment made by Don Julian. Rather, it is a mere
statement of the fair market value of all the nineteen (19)
properties enumerated in the instrument, of which Lot No. 63
is just one, that were transferred by Don Julian in favor of
petitioner. Consequently, the testimony[55] of petitioners
accountant that the assignment is supported by consideration
cannot prevail over the clear provision to the contrary in
the Supplemental Deed.
The Court of Appeals, on the other hand, apparently
considered the 1948 mortgage which is annotated on the back
of the TCT No. T-375 as the consideration for the assignment.
[56]
However, the said annotation[57] shows that the mortgage
was actually executed in favor of Rehabilitation Finance
Corporation, not of petitioner.[58] Clearly, said mortgage,
executed as it was in favor of the Rehabilitation Finance
Corporation and there being no showing that petitioner itself
paid off the mortgate obligation, could not have been the
consideration for the assignment to petitioner.
Article 1318 of the New Civil Code enumerates the
requisites of a valid contract, namely: (1) consent of the
contracting parties; (2) object certain which is the subject
matter of the contract; and (3) Cause of the obligation which is
established.
Thus, Article 1352 declares that contracts without cause,
or with unlawful cause produce no effect whatsoever. Those
contracts lack an essential element and they are not only
voidable but void or inexistent pursuant to Article 1409,
paragraph (2).[59] The absence of the usual recital of
consideration in a transaction which normally should be
supported by a consideration such as the assignment made by
Don Julian of all nineteen (19) lots he still had at the time,
coupled with the fact that the assignee is a corporation of
which Don Julian himself was also the President and Director,
forecloses the application of the presumption of existence of
consideration established by law.[60]
Neither could the Supplemental Deed validly operate as a
donation. Article 749 of the New Civil Code is clear on the
point, thus:
Art. 749. In order that the donation of the immovable may be
valid, it must be made in a public document, specifying therein
the property donated and the value of the charges which the
donee must satisfy.
The acceptance may be made in the same deed of donation or
in a separate public document, but it shall not take effect
unless it is done during the lifetime of the donor.
If the acceptance is made in a separate instrument, the donor
shall be notified thereof in an authentic form, and this step
shall be noted in both instruments.
In Sumipat, et al v. Banga, et al.,[61] this Court declared
that title to immovable property does not pass from the donor
to the donee by virtue of a deed of donation until and unless it
has been accepted in a public instrument and the donor duly
notified thereof. The acceptance may be made in the very
same instrument of donation. If the acceptance does not
appear in the same document, it must be made in another.
Where the deed of donation fails to show the acceptance, or
where the formal notice of the acceptance, made in a separate
instrument, is either not given to the donor or else not noted in
the deed of donation and in the separate acceptance, the
donation is null and void.
In the case at bar, although
the Supplemental Deed appears in a public document,[62] the
absence of acceptance by the donee in the same deed or
even in a separate document is a glaring violation of the
requirement.
One final note. From the substantive and procedural
standpoints, the cardinal objectives to write finis to a
protracted litigation and avoid multiplicity of suits are worth
pursuing at all times.[63] Thus, this Court has ruled that
appellate courts have ample authority to rule on specific
matters not assigned as errors or otherwise not raised in an
appeal, if these are indispensable or necessary to the just
resolution of the pleaded issues.[64] Specifically, matters not
assigned as errors on appeal but consideration of which are
necessary in arriving at a just decision and complete resolution
of the case, or to serve the interest of justice or to avoid
dispensing piecemeal justice.[65]
In the instant case, the correct characterization of
the Supplemental Deed, i.e., whether it is valid or void, is
unmistakably determinative of the underlying controversy. In
other words, the issue of validity or nullity of the instrument
which is at the core of the controversy is interwoven with the
issues adopted by the parties and the rulings of the trial court
and the appellate court.[66] Thus, this Court is also resolute in
striking down the alleged deed in this case, especially as it
appears on its face to be a blatant nullity.
WHEREFORE, foregoing premises considered,
the Decision dated 30 September 1999 of the Court of Appeals
is hereby AFFIRMED. Costs against petitioner J.L.T. Agro, Inc.
SO ORDERED.
Puno, (Chairman), Austria-Martinez, Callejo, Sr., and Chico-
Nazario, JJ., concur.
G.R. No. L-23445 June 23, 1966
REMEDIOS NUGUID, petitioner and appellant,
vs.
FELIX NUGUID and PAZ SALONGA NUGUID, oppositors
and appellees.
Custodio O. Partade for petitioner and appellant.
Beltran, Beltran and Beltran for oppositors and appellees.
SANCHEZ, J.:
Rosario Nuguid, a resident of Quezon City, died on December
30, 1962, single, without descendants, legitimate or
illegitimate. Surviving her were her legitimate parents, Felix
Nuguid and Paz Salonga Nuguid, and six (6) brothers and
sisters, namely: Alfredo, Federico, Remedios, Conrado,
Lourdes and Alberto, all surnamed Nuguid.
On May 18, 1963, petitioner Remedios Nuguid filed in the
Court of First Instance of Rizal a holographic will allegedly
executed by Rosario Nuguid on November 17, 1951, some 11
years before her demise. Petitioner prayed that said will be
admitted to probate and that letters of administration with the
will annexed be issued to her.
On June 25, 1963, Felix Nuguid and Paz Salonga Nuguid,
concededly the legitimate father and mother of the deceased
Rosario Nuguid, entered their opposition to the probate of her
will. Ground therefor, inter alia, is that by the institution of
petitioner Remedios Nuguid as universal heir of the deceased,
oppositors — who are compulsory heirs of the deceased in the
direct ascending line — were illegally preterited and that in
consequence the institution is void.
On August 29, 1963, before a hearing was had on the petition
for probate and objection thereto, oppositors moved to dismiss
on the ground of absolute preterition.
On September 6, 1963, petitioner registered her opposition to
the motion to dismiss.1äwphï1.ñët
The court's order of November 8, 1963, held that "the will in
question is a complete nullity and will perforce create intestacy
of the estate of the deceased Rosario Nuguid" and dismissed
the petition without costs.
A motion to reconsider having been thwarted below, petitioner
came to this Court on appeal.
1. Right at the outset, a procedural aspect has engaged our
attention. The case is for the probate of a will. The court's area
of inquiry is limited — to an examination of, and resolution on,
the extrinsic validity of the will. The due execution thereof, the
testatrix's testamentary capacity, and the compliance with the
requisites or solemnities by law prescribed, are the
questions solely to be presented, and to be acted upon, by the
court. Said court at this stage of the proceedings — is not
called upon to rule on the intrinsic validity or efficacy of the
provisions of the will, the legality of any devise or legacy
therein.1
A peculiar situation is here thrust upon us. The parties shunted
aside the question of whether or not the will should be allowed
probate. For them, the meat of the case is the intrinsic validity
of the will. Normally, this comes only after the court has
declared that the will has been duly authenticated.2 But
petitioner and oppositors, in the court below and here on
appeal, travelled on the issue of law, to wit: Is the will
intrinsically a nullity?
We pause to reflect. If the case were to be remanded for
probate of the will, nothing will be gained. On the contrary, this
litigation will be protracted. And for aught that appears in the
record, in the event of probate or if the court rejects the will,
probability exists that the case will come up once again before
us on the same issue of the intrinsic validity or nullity of the
will. Result: waste of time, effort, expense, plus added anxiety.
These are the practical considerations that induce us to a
belief that we might as well meet head-on the issue of the
validity of the provisions of the will in question.3 After all, there
exists a justiciable controversy crying for solution.
2. Petitioner's sole assignment of error challenges the
correctness of the conclusion below that the will is a complete
nullity. This exacts from us a study of the disputed will and the
applicable statute.
Reproduced hereunder is the will:
Nov. 17, 1951
I, ROSARIO NUGUID, being of sound and disposing mind and
memory, having amassed a certain amount of property, do
hereby give, devise, and bequeath all of the property which I
may have when I die to my beloved sister Remedios Nuguid,
age 34, residing with me at 38-B Iriga, Q.C. In witness
whereof, I have signed my name this seventh day of
November, nineteen hundred and fifty-one.
(Sgd.) Illegible
T/ ROSARIO NUGUID
The statute we are called upon to apply in Article 854 of the
Civil Code which, in part, provides:
ART. 854. The preterition or omission of one, some, or
all of the compulsory heirs in the direct line, whether
living at the time of the execution of the will or born
after the death of the testator, shall annul the institution
of heir; but the devises and legacies shall be valid
insofar as they are not inofficious. ...
Except for inconsequential variation in terms, the foregoing is
a reproduction of Article 814 of the Civil Code of Spain of
1889, which is similarly herein copied, thus —
Art. 814. The preterition of one or all of the forced heirs
in the direct line, whether living at the time of the
execution of the will or born after the death of the
testator, shall void the institution of heir; but the
legacies and betterments4 shall be valid, in so far as
they are not inofficious. ...
A comprehensive understanding of the
term preterition employed in the law becomes a necessity. On
this point Manresa comments:
La pretericion consiste en omitar al heredero en el
testamento. O no se le nombra siquiera o aun
nombrandole como padre, hijo, etc., no se le instituya
heredero ni se le deshereda expresamente ni se le
asigna parte alguna de los bienes, resultando privado
de un modo tacito de su derecho a legitima.
Para que exista pretericion, con arreglo al articulo 814,
basta que en el testamento omita el testador a uno
cualquiera de aquellos a quienes por su muerte
corresponda la herencia forzosa.
 Se necesita, pues, a) Que la omision se refiera a un
heredero forzoso. b) Que la omision sea completa; que
el heredero forzoso nada reciba en el testamento.
It may now appear trite bat nonetheless helpful in giving us a
clear perspective of the problem before us, to have on hand a
clear-cut definition of the word annul:
To "annul" means to abrogate, to make void ... In
re Morrow's Estate, 54 A. 342, 343, 204 Pa. 484.6
The word "annul" as used in statute requiring court to
annul alimony provisions of divorce decree upon wife's
remarriage means to reduce to nothing; to annihilate;
obliterate; blot out; to make void or of no effect; to
nullify; to abolish. N.J.S.A. 2:50 — 38 (now N.J.S.
2A:34-35). Madden vs. Madden, 40 A. 2d 611, 614,
136 N..J Eq. 132.7
ANNUL. To reduce to nothing; annihilate; obliterate; to
make void or of no effect; to nullify; to abolish; to do
away with. Ex parte Mitchell, 123 W. Va. 283, 14 S.E.
2d. 771, 774.8
And now, back to the facts and the law. The deceased Rosario
Nuguid left no descendants, legitimate or illegitimate. But she
left forced heirs in the direct ascending line her parents, now
oppositors Felix Nuguid and Paz Salonga Nuguid. And, the will
completely omits both of them: They thus received nothing by
the testament; tacitly, they were deprived of their legitime;
neither were they expressly disinherited. This is a clear case of
preterition. Such preterition in the words of Manresa "anulara
siempre la institucion de heredero, dando caracter absoluto a
este ordenamiento referring to the mandate of Article 814, now
854 of the Civil Code.9 The one-sentence will here institutes
petitioner as the sole, universal heir — nothing more. No
specific legacies or bequests are therein provided for. It is in
this posture that we say that the nullity is complete. Perforce,
Rosario Nuguid died intestate. Says Manresa:
En cuanto a la institucion de heredero, se anula. Lo
que se anula deja de existir, en todo o en parte? No se
añade limitacion alguna, como en el articulo 851, en el
que se expresa que se anulara la institucion de
heredero en cuanto prejudique a la legitima del
deseheredado Debe, pues, entenderse que la
anulacion es completa o total, y que este articulo como
especial en el caso que le motiva rige con preferencia
al 817. 10
The same view is expressed by Sanchez Roman: —
La consecuencia de la anulacion o nulidad de la
institucion de heredero por pretericion de uno, varios o
todos los forzosos en linea recta, es la apertura de la
sucesion intestada total o parcial. Sera total, cuando el
testador que comete la pretericion, hubiese dispuesto
de todos los bienes por titulo universal de herencia en
favor de los herederos instituidos, cuya institucion se
anula, porque asi lo exige la generalidad del precepto
legal del art. 814, al determinar, como efecto de la
pretericion, el de que "anulara la institucion de
heredero." ... 11
Really, as we analyze the word annul employed in the statute,
there is no escaping the conclusion that the universal
institution of petitioner to the entire inheritance results in totally
abrogating the will. Because, the nullification of such institution
of universal heir — without any other testamentary disposition
in the will — amounts to a declaration that nothing at all was
written. Carefully worded and in clear terms, Article 854 offers
no leeway for inferential interpretation. Giving it an expansive
meaning will tear up by the roots the fabric of the statute. On
this point, Sanchez Roman cites the "Memoria annual del
Tribunal Supreme, correspondiente a 1908", which in our
opinion expresses the rule of interpretation, viz:
... El art. 814, que preceptua en tales casos de
pretericion la nulidad de la institucion de heredero, no
consiente interpretacion alguna favorable a la persona
instituida en el sentido antes expuesto aun cuando
parezca, y en algun caso pudiera ser, mas o menos
equitativa, porque una nulidad no significa en Derecho
sino la suposicion de que el hecho o el acto no se ha
realizado, debiendo por lo tanto procederse sobre tal
base o supuesto, y consiguientemente, en un
testamento donde falte la institucion, es obligado
llamar a los herederos forzosos en todo caso, como
habria que llamar a los de otra clase, cuando el
testador no hubiese distribudo todos sus bienes en
legados, siendo tanto mas obligada esta consecuencia
legal cuanto que, en materia de testamentos, sabido
es, segun tiene declarado la jurisprudencia, con
repeticion, que no basta que sea conocida la voluntad
de quien testa si esta voluntad no aparece en la forma
y en las condiciones que la ley ha exigido para que sea
valido y eficaz, por lo que constituiria una
interpretacion arbitraria, dentro del derecho positivo,
reputar como legatario a un heredero cuya institucion
fuese anulada con pretexto de que esto se acomodaba
mejor a la voluntad del testador, pues aun cuando asi
fuese, sera esto razon para modificar la ley, pero no
autoriza a una interpretacion contraria a sus terminos y
a los principios que informan la testamentifaccion,
pues no porque parezca mejor una cosa en el terreno
del Derecho constituyente, hay razon para convereste
juicio en regla de interpretacion, desvirtuando y
anulando por este procedimiento lo que el legislador
quiere establecer. 12
3. We should not be led astray by the statement in Article 854
that, annullment notwithstanding, "the devises and legacies
shall be valid insofar as they are not inofficious". Legacies and
devises merit consideration only when they are so expressly
given as such in a will. Nothing in Article 854 suggests that
the mere institution of a universal heir in a will — void because
of preterition — would give the heir so instituted a share in the
inheritance. As to him, the will is inexistent. There must be, in
addition to such institution, a testamentary disposition granting
him bequests or legacies apart and separate from the nullified
institution of heir. Sanchez Roman, speaking of the two
component parts of Article 814, now 854, states that preterition
annuls the institution of the heir "totalmente por la pretericion";
but added (in reference to legacies and bequests) "pero
subsistiendo ... todas aquellas otras disposiciones que no se
refieren a la institucion de heredero ... . 13 As Manresa puts it,
annulment throws open to intestate succession the entire
inheritance including "la porcion libre (que) no hubiese
dispuesto en virtud de legado, mejora o donacion. 14
As aforesaid, there is no other provision in the will before us
except the institution of petitioner as universal heir. That
institution, by itself, is null and void. And, intestate succession
ensues.
4. Petitioner's mainstay is that the present is "a case of
ineffective disinheritance rather than one of preterition". 15From
this, petitioner draws the conclusion that Article 854 "does not
apply to the case at bar". This argument fails to appreciate the
distinction between pretention and disinheritance.
Preterition "consists in the omission in the testator's will of the
forced heirs or anyone of them, either because they are not
mentioned therein, or, though mentioned, they are neither
instituted as heirs nor are expressly
disinherited." 16 Disinheritance, in turn, "is
a testamentary disposition depriving any compulsory heir of
his share in the legitime for a cause authorized by law. " 17 In
Manresa's own words: "La privacion expresa de la legitima
constituye la desheredacion. La privacion tacita de la misma
se denomina pretericion." 18 Sanchez Roman emphasizes the
distinction by stating that disinheritance "es
siempre voluntaria"; preterition, upon the other hand, is
presumed to be "involuntaria". 19 Express as disinheritance
should be, the same must be supported by a legal cause
specified in the will itself. 20
The will here does not explicitly disinherit the testatrix's
parents, the forced heirs. It simply omits their names
altogether. Said will rather than be labeled ineffective
disinheritance is clearly one in which the said forced heirs
suffer from preterition.
On top of this is the fact that the effects flowing from preterition
are totally different from those of disinheritance. Preterition
under Article 854 of the Civil Code, we repeat, "shall annul the
institution of heir". This annulment is in toto, unless in the will
there are, in addition, testamentary dispositions in the form of
devises or legacies. In ineffective disinheritance under Article
918 of the same Code, such disinheritance shall also "annul
the institution of heirs", put only "insofar as it may prejudice the
person disinherited", which last phrase was omitted in the case
of preterition. 21 Better stated yet, in disinheritance the nullity
is limited to that portion of the estate of which the disinherited
heirs have been illegally deprived. Manresa's expressive
language, in commenting on the rights of the preterited heirs in
the case of preterition on the one hand and legal
disinheritance on the other, runs thus: "Preteridos, adquiren el
derecho a todo; desheredados, solo les corresponde un tercio
o dos tercios, 22 el caso. 23
5. Petitioner insists that the compulsory heirs ineffectively
disinherited are entitled to receive their legitimes, but that the
institution of heir "is not invalidated," although the inheritance
of the heir so instituted is reduced to the extent of said
legitimes. 24
This is best answered by a reference to the opinion of Mr.
Chief Justice Moran in the Neri case heretofore cited, viz:
But the theory is advanced that the bequest made by
universal title in favor of the children by the second
marriage should be treated as legado and mejora and,
accordingly, it must not be entirely annulled but merely
reduced. This theory, if adopted, will result in a
complete abrogation of Articles 814 and 851 of the Civil
Code. If every case of institution of heirs may be made
to fall into the concept of legacies and betterments
reducing the bequest accordingly, then the provisions
of Articles 814 and 851 regarding total or partial nullity
of the institution, would. be absolutely meaningless and
will never have any application at all. And the
remaining provisions contained in said article
concerning the reduction of inofficious legacies or
betterments would be a surplusage because they
would be absorbed by Article 817. Thus, instead of
construing, we would be destroying integral provisions
of the Civil Code.
The destructive effect of the theory thus advanced is
due mainly to a failure to distinguish institution of heirs
from legacies and betterments, and a general from a
special provision. With reference to article 814, which
is the only provision material to the disposition of this
 case, it must be observed that the institution of heirs is
therein dealt with as a thing separate and distinct from
legacies or betterments. And they are separate and
distinct not only because they are distinctly and
separately treated in said article but because they are
in themselves different. Institution of heirs is a bequest
by universal title of property that is undetermined.
Legacy refers to specific property bequeathed by a
particular or special title. ... But again an institution of
heirs cannot be taken as a legacy. 25

The disputed order, we observe, declares the will in question

"a complete nullity". Article 854 of the Civil Code in turn merely
nullifies "the institution of heir". Considering, however, that the
will before us solely provides for the institution of petitioner as
universal heir, and nothing more, the result is the same. The
entire will is null.

Upon the view we take of this case, the order of November 8,

1963 under review is hereby affirmed. No costs allowed. So
ordered.

Concepcion, C.J., Reyes, J.B.L., Barrera, Dizon, Regala,

Makalintal, Bengzon, J.P. and Zaldivar, JJ., concur.
G.R. No. L-31703 February 13, 1930
CARMEN G. DE PEREZ, trustee of the estate of Ana Maria
Alcantara, plaintiff-appellee,
vs.
MARIANO GARCHITORENA, and JOSE CASIMIRO, Sheriff
of the Court of First Instance of Manila,defendants-
appellants.
L. D. Lockwood and Jose M. Casal for appellants.
Eduardo Gutierrez Repide and Leoncio B. Monzon for
appellee.
ROMUALDEZ, J.:
The amount of P21,428.58 is on deposit in the plaintiff's name
with the association known as La Urbana in Manila, as the
final payment of the liquidated credit of Ana Maria Alcantara,
deceased, whose heiress is said plaintiff, against Andres
Garchitorena, also deceased, represented by his son, the
defendant Mariano Garchitorena.
And as said Mariano Garchitorena held a judgment for
P7,872.23 against Joaquin Perez Alcantara, husband of the
plaintiff, Carmen G. de Perez, the sheriff pursuant to the writ of
execution issued in said judgment, levied an attachment on
said amount deposited with La Urbana.
The plaintiff, alleging that said deposit belongs to the
fideicommissary heirs of the decedent Ana Maria Alcantara,
secured a preliminary injunction restraining the execution of
said judgment on the sum so attached. The defendants
contend that the plaintiff is the decedent's universal heiress,
and pray for the dissolution of the injunction.
The court below held that said La Urbana deposit belongs to
the plaintiff's children as fideicommissary heirs of Ana Maria
Alcantara, and granted a final writ of injunction.
The defendants insist in their contentions, and, in their appeal
from the decision of the trial court, assign the following errors:
1. The lower court erred in holding that a trust was
created by the will of Doña Ana Maria Alcantara.
2. The lower court erred in concluding and declaring
that the amount of P21,428.58 deposited with La
Urbana is the property of the children of the plaintiff as
"herederos fidei-comisarios."
3. The lower court erred in making the injunction
permanent and condemning defendant to pay the
costs.
The question here raised is confined to the scope and
meaning of the institution of heirs made in the will of the late
Ana Maria Alcantara already admitted to probate, and whose
legal force and effect is not in dispute.
The clauses of said will relevant to the points in dispute,
between the parties are the ninth, tenth, and eleventh, quoted
below:
Ninth. Being single and without any forced heir, to
show my gratitude to my niece-in-law, Carmen
Garchitorena, of age, married to my nephew, Joaquin
Perez Alcantara, and living in this same house with me,
I institute her as my sole and universal heiress to the
remainder of my estate after the payment of my debts
and legacies, so that upon my death and after probate
 of this will, and after the report of the committee on
claims and appraisal has been rendered and approved,
she will receive from my executrix and properties
composing my hereditary estate, that she may enjoy
them with God's blessing and my own.
Tenth. Should my heiress Carmen Garchitorena die, I
order that my whole estate shall pass unimpaired to
her surviving children; and should any of these die, his
share shall serve to increase the portions of his
surviving brothers (and sisters) by accretion, in such
wise that my estate shall never pass out of the hands
of my heiress or her children in so far as it is legally
possible.
Eleventh. Should my aforesaid heiress, Carmen
Garchitorena, die after me while her children are still in
their minority, I order that my estate be administered by
my executrix, Mrs. Josefa Laplana, and in her default,
by Attorney Ramon Salinas and in his default, by his
son Ramon Salinas; but the direction herein given must
not be considered as an indication of lack of
confidence in my nephew Joaquin Perez Alcantara,
whom I relieve from the duties of administering my
estate, because I recognize that his character is not
adapted to management and administration.
The appellants contend that in these clauses the testatrix has
ordered a simple substitution, while the appellee contends that
it is a fideicommissary substitution.
This will certainly provides for a substitution of heirs, and of the
three cases that might give rise to a simple substitution (art.
774, Civil Code), only the death of the instituted heiress before
the testatrix would in the instant case give place to such
substitution, inasmuch as nothing is said of the waiver of
inheritance, or incapacity to accept it. As a matter of fact,
however, clause XI provides for the administration of the
estate in case the heiress instituted should die after the
testatrix and while the substitute heirs are still under age. And
it is evident that, considering the nature of simple substitution
by the heir's death before the testator, and the fact that by
clause XI in connection with clause X, the substitution is
ordered where the heiress instituted dies after the testatrix,
this cannot be a case of simple substitution.
The existence of a substitution in the will is not and cannot be
denied, and since it cannot be a simple substitution in the light
of the considerations above stated, let us now see whether the
instants case is a fideicommissary substitution.
In clause IX, the testatrix institutes the plaintiff herein her sole
and universal heiress, and provides that upon her death (the
testatrix's) and after probate of the will and approval of the
report of the committee on claims and appraisal, said heiress
shall receive and enjoy the whole hereditary estate. Although
this clause provides nothing explicit about substitution, it does
not contain anything in conflict with the idea of
fideicommissary substitution. The fact that the plaintiff was
instituted the sole and universal heiress does not prevent her
children from receiving, upon her death and in conformity with
the express desire of the testatrix, the latter's hereditary
estate, as provided in the following (above quoted) clauses
which cannot be disregarded if we are to give a correct
interpretation of the will. The word sole does not necessarily
exclude the idea of substitute heirs; and taking these three
clauses together, such word means that the plaintiff is the sole
heiress instituted in the first instance.
The disposition contained in clause IX, that said heiress shall
receive and enjoy the estate, is not incompatible with a
fideicommissary substitution (it certainly is incompatible with
the idea of simple substitution, where the heiress instituted
does not receive the inheritance). In fact the enjoyment of the
inheritance is in conformity with the idea of fideicommissary
substitution, by virtue of which the heir instituted receives the
inheritance and enjoys it, although at the same time he
preserves it in order to pass it on the second heir. On this point
the illustrious Manresa, in his Civil Code (Vol. 6, pp. 142 and
143, 5th ed.), says:
Or, what amounts to the same thing, the
fideicommissary substitution, as held in the Resolution
of June 25, 1895, February 10, 1899, and July 19,
1909, requires three things:
1. A first heir called primarily to the enjoyment of the
estate.
2. An obligation clearly imposed upon him to preserve
and transmit to a third person the whole or a part of the
estate.
3. A second heir.
To these requisites, the decision of November 18, 1918
adds another, namely that the fideicommissarius be
entitled to the estate from the time the testator dies,
since he is to inherit from the latter and not from the
fiduciary. (Emphasis ours.)
It appears from this quotation that the heir instituted or the
fiduciary, as referred to in articles 783 of the Civil Code, is
entitled to enjoy the inheritance. And it might here be
observed, as a timely remark, that the fideicommissum arising
from a fideicommissary substitution, which is of Roman origin,
is not exactly equivalent to, nor may it be confused with, the
English "trust."
It should also be noted that said clause IX vests in the heiress
only the right to enjoy but not the right to dispose of the estate.
It says, she may enjoy it, but does not say she may dispose of
it. This is an indication of the usufruct inherent in
fideicommissary substitution.
Clause X expressly provides for the substitution. It is true that
it does not say whether the death of the heiress herein
referred to is before or after that of the testatrix; but from the
whole context it appears that in making the provisions
contained in this clause X, the testatrix had in mind a
fideicommissary substitution, since she limits the transmission
of her estate to the children of the heiress by this provision, "in
such wise that my estate shall never pass out of the hands of
my heiress or her children in so far as it is legally possible."
Here it clearly appears that the testatrix tried to avoid the
possibility that the substitution might later be legally declared
null for transcending the limits fixed by article 781 of the Civil
Code which prescribed that fideicommissary substitutions shall
be valid "provided they do not go beyond the second degree."
Another clear and outstanding indication of fideicommissary
substitution in clause X is the provision that the whole estate
shall pass unimpaired to the heiress's children, that is to say
the heiress is required to preserve the whole estate, without
diminution, in order to pass it on in due time to the
fideicommissary heirs. This provision complies with another of
the requisites of fideicommissary substitution according to our
quotation from Manresa inserted above.
Lastly, clause XI more clearly indicates the idea of
fideicommissary substitution, when a provision is therein made
in the event the heiress should die after the testatrix. That is,
said clause anticipates the case where the instituted heiress
should die after the testatrix and after receiving and enjoying
the inheritance.
The foregoing leads us to the conclusion that all the requisites
of a fideicommissary substitution, according to the quotation
from Manresa above inserted, are present in the case of
substitution now under consideration, to wit:
1. At first heir primarily called to the enjoyment of the
estate. In this case the plaintiff was instituted an
heiress, called to the enjoyment of the estate,
according to clause IX of the will.
absolute property, but to her children, from the moment of the
death of the testatrix, Ana Maria Alcantara.
Therefore, said inheritance, of which the amount referred to at
the beginning, which is on deposit with the association known
as La Urbana in the plaintiff's name, is a part, does not belong
to her nor can it be subject to the execution of the judgment
against Joaquin Perez, who is not one of the fideicommissary
heirs.

2. An obligation clearly imposed upon the heir to The judgment appealed from is affirmed, with costs against the
preserve and transmit to a third person the whole or a appellant, Mariano Garchitorena. So ordered.
part of the estate. Such an obligation is imposed in
clause X which provides that the "whole estate shall Johnson, Malcolm, Villamor, Ostrand, Johns and Villa-Real,
pass unimpaired to her (heiress's) surviving children;" JJ., concur.
thus, instead of leaving the heiress at liberty to dispose Street, J., reserves his vote.
of the estate by will, or of leaving the law to take its
course in case she dies intestate, said clause not only
disposes of the estate in favor of the heiress instituted,
but also provides for the disposition thereof in case she
should die after the testatrix.

3. A second heir. Such are the children of the heiress

instituted, who are referred to as such second heirs
both in clause X and in clause XI.

Finally, the requisite added by the decision of November 18,

1918, to wit, that the fideicommissarius or second heir should
be entitled to the estate from the time of the testator's death,
which in the instant case, is, rather than a requisite, a
necessary consequence derived from the nature of the
fideicommissary substitution, in which the second heir does
not inherit from the heir first instituted, but from the testator.

By virtue of this consequence, the inheritance in question does

not belong to the heiress instituted, the plaintiff herein, as her
G.R. Nos. L-27860 and L-27896 March 29, 1974
PHILIPPINE COMMERCIAL AND INDUSTRIAL BANK,
Administrator of the Testate Estate of Charles Newton
Hodges (Sp. Proc. No. 1672 of the Court of First Instance
of Iloilo), petitioner,
vs.
THE HONORABLE VENICIO ESCOLIN, Presiding Judge of
the Court of First Instance of Iloilo, Branch II, and
AVELINA A. MAGNO, respondents.
G.R. Nos. L-27936 & L-27937 March 29, 1974
TESTATE ESTATE OF THE LATE LINNIE JANE HODGES
(Sp. Proc. No. 1307). TESTATE ESTATE OF THE LATE
CHARLES NEWTON HODGES (Sp. Proc. No. 1672).
PHILIPPINE COMMERCIAL AND INDUSTRIAL
BANK, administrator-appellant,
vs.
LORENZO CARLES, JOSE PABLICO, ALFREDO
CATEDRAL, SALVADOR GUZMAN, BELCESAR CAUSING,
FLORENIA BARRIDO, PURIFICACION CORONADO,
GRACIANO LUCERO, ARITEO THOMAS JAMIR,
MELQUIADES BATISANAN, PEPITO IYULORES,
ESPERIDION PARTISALA, WINIFREDO ESPADA,
ROSARIO ALINGASA, ADELFA PREMAYLON, SANTIAGO
PACAONSIS, and AVELINA A. MAGNO, the last as
Administratrix in Sp. Proc. No. 1307, appellees, WESTERN
INSTITUTE OF TECHNOLOGY, INC., movant-appellee.
San Juan, Africa, Gonzales and San Agustin for Philippine
Commercial and Industrial Bank.
Manglapus Law Office, Antonio Law Office and Rizal R.
Quimpo for private respondents and appellees Avelina A.
Magno, etc., et al.
BARREDO, J.:p
Certiorari and prohibition with preliminary
injunction; certiorari to "declare all acts of the respondent court
in the Testate Estate of Linnie Jane Hodges (Sp. Proc. No.
1307 of the Court of First Instance of Iloilo) subsequent to the
order of December 14, 1957 as null and void for having been
issued without jurisdiction"; prohibition to enjoin the
respondent court from allowing, tolerating, sanctioning, or
abetting private respondent Avelina A. Magno to perform or do
any acts of administration, such as those enumerated in the
petition, and from exercising any authority or power as Regular
Administratrix of above-named Testate Estate, by entertaining
manifestations, motion and pleadings filed by her and acting
on them, and also to enjoin said court from allowing said
private respondent to interfere, meddle or take part in any
manner in the administration of the Testate Estate of Charles
Newton Hodges (Sp. Proc. No. 1672 of the same court and
branch); with prayer for preliminary injunction, which was
issued by this Court on August 8, 1967 upon a bond of P5,000;
the petition being particularly directed against the orders of the
respondent court of October 12, 1966 denying petitioner's
motion of April 22, 1966 and its order of July 18, 1967 denying
the motion for reconsideration of said order.
Related to and involving basically the same main issue as the
foregoing petition, thirty-three (33) appeals from different
orders of the same respondent court approving or otherwise
sanctioning the acts of administration of the respondent
Magno on behalf of the testate Estate of Mrs. Hodges.
THE FACTS
On May 23, 1957, Linnie Jane Hodges died in Iloilo City
leaving a will executed on November 22, 1952 pertinently
providing as follows:
FIRST: I direct that all my just debts and funeral
expenses be first paid out of my estate.
SECOND: I give, devise and bequeath all of the
rest, residue and remainder of my estate, both
personal and real, wherever situated, or
located, to my beloved husband, Charles
Newton Hodges, to have and to hold unto him,
my said husband, during his natural lifetime.
THIRD: I desire, direct and provide that my
husband, Charles Newton Hodges, shall have
the right to manage, control, use and enjoy said
estate during his lifetime, and he is hereby
given the right to make any changes in the
physical properties of said estate, by sale or
any part thereof which he may think best, and
the purchase of any other or additional property
as he may think best; to execute conveyances
with or without general or special warranty,
conveying in fee simple or for any other term or
time, any property which he may deem proper
to dispose of; to lease any of the real property
for oil, gas and/or other minerals, and all such
deeds or leases shall pass the absolute fee
simple title to the interest so conveyed in such
property as he may elect to sell. All rents,
emoluments and income from said estate shall
belong to him, and he is further authorized to
use any part of the principal of said estate as he
may need or desire. It is provided herein,
however, that he shall not sell or otherwise
dispose of any of the improved property now
owned by us located at, in or near the City of
Lubbock, Texas, but he shall have the full right
to lease, manage and enjoy the same during
his lifetime, above provided. He shall have the
right to subdivide any farm land and sell lots
therein. and may sell unimproved town lots.
FOURTH: At the death of my said husband,
Charles Newton Hodges, I give, devise and
bequeath all of the rest, residue and remainder
of my estate, both real and personal, wherever
situated or located, to be equally divided among
my brothers and sisters, share and share alike,
namely:
Esta Higdon, Emma Howell, Leonard Higdon,
Roy Higdon, Saddie Rascoe, Era Roman and
Nimroy Higdon.
FIFTH: In case of the death of any of my
brothers and/or sisters named in item Fourth,
above, prior to the death of my husband,
Charles Newton Hodges, then it is my will and
bequest that the heirs of such deceased brother
or sister shall take jointly the share which would
have gone to such brother or sister had she or
he survived.
SIXTH: I nominate and appoint my said
husband, Charles Newton Hodges, to be
 executor of this, my last will and testament, and
direct that no bond or other security be required
of him as such executor.
SEVENTH: It is my will and bequest that no
action be had in the probate court, in the
administration of my estate, other than that
necessary to prove and record this will and to
return an inventory and appraisement of my
estate and list of claims. (Pp. 2-4, Petition.)
This will was subsequently probated in aforementioned
Special Proceedings No. 1307 of respondent court on June
28, 1957, with the widower Charles Newton Hodges being
appointed as Executor, pursuant to the provisions thereof.
Previously, on May 27, 1957, the said widower (hereafter to be
referred to as Hodges) had been appointed Special
Administrator, in which capacity he filed a motion on the same
date as follows:
URGENT EX-PARTE MOTION TO ALLOW OR
AUTHORIZE PETITIONER TO CONTINUE
THE BUSINESS IN WHICH HE WAS
ENGAGED AND TO PERFORM ACTS WHICH
HE HAD BEEN DOING WHILE DECEASED
WAS LIVING
Come petitioner in the above-entitled special proceedings, thru
his undersigned attorneys, to the Hon. Court, most respectfully
states:
1. — That Linnie Jane Hodges died leaving her
last will and testament, a copy of which is
attached to the petition for probate of the same.
2. — That in said last will and testament herein
petitioner Charles Newton Hodges is directed to
have the right to manage, control use and enjoy
the estate of deceased Linnie Jane Hodges, in
the same way, a provision was placed in
paragraph two, the following: "I give, devise and
bequeath all of the rest, residue and remainder
of my estate, to my beloved husband, Charles
Newton Hodges, to have and (to) hold unto him,
my said husband, during his natural lifetime."
3. — That during the lifetime of Linnie Jane
Hodges, herein petitioner was engaged in the
business of buying and selling personal and
real properties, and do such acts which
petitioner may think best.
4. — That deceased Linnie Jane Hodges died
leaving no descendants or ascendants, except
brothers and sisters and herein petitioner as
executor surviving spouse, to inherit the
properties of the decedent.
5. — That the present motion is submitted in
order not to paralyze the business of petitioner
and the deceased, especially in the purchase
and sale of properties. That proper accounting
will be had also in all these transactions.
WHEREFORE, it is most respectfully prayed
that, petitioner C. N. Hodges (Charles Newton
Hodges) be allowed or authorized to continue
the business in which he was engaged and to
perform acts which he had been doing while
deceased Linnie Jane Hodges was living.
 City of Iloilo, May 27, 1957. (Annex "D",
Petition.)
which the respondent court immediately granted in the
following order:
It appearing in the urgent ex-parte motion filed
by petitioner C. N. Hodges, that the business in
which said petitioner and the deceased were
engaged will be paralyzed, unless and until the
Executor is named and appointed by the Court,
the said petitioner is allowed or authorized to
continue the business in which he was engaged
and to perform acts which he had been doing
while the deceased was living.
SO ORDERED.
City of Iloilo May 27, 1957. (Annex "E",
Petition.)
Under date of December 11, 1957, Hodges filed as such
Executor another motion thus:
MOTION TO APPROVE ALL SALES,
CONVEYANCES, LEASES, MORTGAGES
THAT THE EXECUTOR HAD MADE FURTHER
AND SUBSEQUENT TRANSACTIONS WHICH
THE EXECUTOR MAY DO IN ACCORDANCE
WITH THE LAST WISH OF THE DECEASED
LINNIE JANE HODGES.
Comes the Executor in the above-entitled
proceedings, thru his undersigned attorney, to
the Hon. Court, most respectfully states:
1. — That according to the last will and
testament of the deceased Linnie Jane Hodges,
the executor as the surviving spouse and
legatee named in the will of the deceased; has
the right to dispose of all the properties left by
the deceased, portion of which is quoted as
follows:
Second: I give, devise and bequeath all of the
rest, residue and remainder of my estate, both
personal and real, wherever situated, or
located, to my beloved husband, Charles
Newton Hodges, to have and to hold unto him,
my said husband, during his natural lifetime.
Third: I desire, direct and provide that my
husband, Charles Newton Hodges, shall have
the right to manage, control, use and enjoy said
estate during his lifetime, and he is hereby
given the right to make any changes in the
physical properties of said estate, by sale or
any part thereof which he may think best, and
the purchase of any other or additional property
as he may think best; to execute
conveyances with or without general or special
warranty, conveying in fee simple or for any
other term or time, any property which he may
deem proper to dispose of; to lease any of the
real property for oil, gas and/or other minerals,
and all such deeds or leases shall pass the
absolute fee simple title to the interest so
conveyed in such property as he may elect to
sell. All rents, emoluments and income from
said estate shall belong to him, and he is further
authorized to use any part of the principal of
said estate as he may need or desire. ...
2. — That herein Executor, is not only part
owner of the properties left as conjugal, but
also, the successor to all the properties left by
the deceased Linnie Jane Hodges. That during
the lifetime of herein Executor, as Legatee has
the right to sell, convey, lease or dispose of the
properties in the Philippines. That inasmuch as
C.N. Hodges was and is engaged in the buy
and sell of real and personal properties, even
before the death of Linnie Jane Hodges, a
motion to authorize said C.N. Hodges was filed
in Court, to allow him to continue in the
business of buy and sell, which motion was
favorably granted by the Honorable Court.
3. — That since the death of Linnie Jane
Hodges, Mr. C.N. Hodges had been buying and
selling real and personal properties, in
accordance with the wishes of the late Linnie
Jane Hodges.
4. — That the Register of Deeds for Iloilo, had
required of late the herein Executor to have all
the sales, leases, conveyances or mortgages
made by him, approved by the Hon. Court.
5. — That it is respectfully requested, all the
sales, conveyances leases and mortgages
executed by the Executor, be approved by the
Hon. Court. and subsequent sales
conveyances, leases and mortgages in
compliances with the wishes of the late Linnie
Jane Hodges, and within the scope of the terms
of the last will and testament, also be approved;
6. — That the Executor is under obligation to
submit his yearly accounts, and the properties
conveyed can also be accounted for, especially
the amounts received.
WHEREFORE, it is most respectfully prayed
that, all the sales, conveyances, leases, and
mortgages executed by the Executor, be
approved by the Hon. Court, and also the
subsequent sales, conveyances, leases, and
mortgages in consonance with the wishes of
the deceased contained in her last will and
testament, be with authorization and approval
of the Hon. Court.
City of Iloilo, December 11, 1967.
(Annex "G", Petition.)
which again was promptly granted by the respondent court on
December 14, 1957 as follows:
ORDER
As prayed for by Attorney Gellada, counsel for
the Executor for the reasons stated in his
motion dated December 11, 1957, which the
Court considers well taken all the sales,
conveyances, leases and mortgages of all
properties left by the deceased Linnie Jane
Hodges executed by the Executor Charles N.
Hodges are hereby APPROVED. The said
Executor is further authorized to execute
subsequent sales, conveyances, leases and
mortgages of the properties left by the said
deceased Linnie Jane Hodges in consonance
 with the wishes conveyed in the last will and
testament of the latter.
So ordered.
Iloilo City. December 14, 1957.
(Annex "H", Petition.)
On April 14, 1959, in submitting his first statement of account
as Executor for approval, Hodges alleged:
Pursuant to the provisions of the Rules of
Court, herein executor of the deceased, renders
the following account of his administration
covering the period from January 1, 1958 to
December 31, 1958, which account may be
found in detail in the individual income tax
return filed for the estate of deceased Linnie
Jane Hodges, to wit:
That a certified public accountant has examined
the statement of net worth of the estate of
Linnie Jane Hodges, the assets and liabilities,
as well as the income and expenses, copy of
which is hereto attached and made integral part
of this statement of account as Annex "A".
IN VIEW OF THE FOREGOING, it is most
respectfully prayed that, the statement of net
worth of the estate of Linnie Jane Hodges, the
assets and liabilities, income and expenses as
shown in the individual income tax return for the
estate of the deceased and marked as Annex
"A", be approved by the Honorable Court, as
substantial compliance with the requirements of
the Rules of Court.
That no person interested in the Philippines of
the time and place of examining the herein
accounts be given notice, as herein executor is
the only devisee or legatee of the deceased, in
accordance with the last will and testament
already probated by the Honorable court.
City of Iloilo April 14, 1959.
(Annex "I", Petition.)
The respondent court approved this statement of account on
April 21, 1959 in its order worded thus:
Upon petition of Atty. Gellada, in representation
of the Executor, the statement of net worth of
the estate of Linnie Jane Hodges, assets and
liabilities, income and expenses as shown in
the individual income tax return for the estate of
the deceased and marked as Annex "A" is
approved.
SO ORDERED.
City of Iloilo April 21, 1959.
(Annex "J", Petition.)
His accounts for the periods January 1, 1959 to December 31,
1959 and January 1, 1960 to December 31, 1960 were
submitted likewise accompanied by allegations
identical mutatis mutandis to those of April 14, 1959, quoted
above; and the respective orders approving the same, dated
July 30, 1960 and May 2, 1961, were substantially identical to
the above-quoted order of April 21, 1959. In connection with
the statements of account just mentioned, the following
assertions related thereto made by respondent-appellee
Magno in her brief do not appear from all indications
discernible in the record to be disputable:
Under date of April 14, 1959, C.N. Hodges filed
his first "Account by the Executor" of the estate
of Linnie Jane Hodges. In the "Statement of
Networth of Mr. C.N. Hodges and the Estate of
Linnie Jane Hodges" as of December 31, 1958
annexed thereto, C.N. Hodges reported that the
combined conjugal estate earned a net income
of P328,402.62, divided evenly between him
and the estate of Linnie Jane Hodges. Pursuant
to this, he filed an "individual income tax return"
for calendar year 1958 on the estate of Linnie
Jane Hodges reporting, under oath, the said
estate as having earned income of
P164,201.31, exactly one-half of the net income
of his combined personal assets and that of the
estate of Linnie Jane Hodges. (p. 91, Appellee's
Brief.)
xxx xxx xxx
Under date of July 21, 1960, C.N. Hodges filed
his second "Annual Statement of Account by
the Executor" of the estate of Linnie Jane
Hodges. In the "Statement of Networth of Mr.
C.N. Hodges and the Estate of Linnie Jane
Hodges" as of December 31, 1959 annexed
thereto, C.N. Hodges reported that the
combined conjugal estate earned a net income
of P270,623.32, divided evenly between him
and the estate of Linnie Jane Hodges. Pursuant
to this, he filed an "individual income tax return"
for calendar year 1959 on the estate of Linnie
Jane Hodges reporting, under oath, the said
estate as having earned income of
P135,311.66, exactly one-half of the net income
of his combined personal assets and that of the
estate of Linnie Jane Hodges. (pp. 91-92.
Appellee's Brief.)
xxx xxx xxx
Under date of April 20, 1961, C.N. Hodges filed
his third "Annual Statement of Account by the
Executor for the Year 1960" of the estate of
Linnie Jane Hodges. In the "Statement of Net
Worth of Mr. C.N. Hodges and the Estate of
Linnie Jane Hodges" as of December 31, 1960
annexed thereto, C.N. Hodges reported that the
combined conjugal estate earned a net income
of P314,857.94, divided evenly between him
and the estate of Linnie Jane Hodges. Pursuant
to this, he filed an "individual income tax return"
for calendar year 1960 on the estate of Linnie
Jane Hodges reporting, under oath, the said
estate as having earned income of
P157,428.97, exactly one-half of the net income
of his combined personal assets and that of the
estate of Linnie Jane Hodges. (Pp. 92-93,
Appellee's Brief.)
Likewise the following:
In the petition for probate that he (Hodges) filed,
he listed the seven brothers and sisters of
Linnie Jane as her "heirs" (see p. 2, Green
ROA). The order of the court admitting the will
to probate unfortunately omitted one of the
heirs, Roy Higdon (see p. 14, Green ROA).
Immediately, C.N. Hodges filed a verified
motion to have Roy Higdon's name included as
an heir, stating that he wanted to straighten the
records "in order the heirs of deceased Roy
Higdon may not think or believe they were
omitted, and that they were really and are
interested in the estate of deceased Linnie Jane
Hodges. .
As an executor, he was bound to file tax returns
for the estate he was administering under
American law. He did file such as estate tax
return on August 8, 1958. In Schedule "M" of
such return, he answered "Yes" to the question
as to whether he was contemplating
"renouncing the will". On the question as to
what property interests passed to him as the
surviving spouse, he answered:
"None, except for purposes of
administering the Estate, paying
debts, taxes and other legal
charges. It is the intention of the
surviving husband of deceased
to distribute the remaining
property and interests of the
deceased in their Community
estate to the devisees and
legatees named in the will when
the debts, liabilities, taxes and
expenses of administration are
finally determined and paid."
Again, on August 9, 1962, barely four months
before his death, he executed an "affidavit"
wherein he ratified and confirmed all that he
stated in Schedule "M" of his estate tax returns
as to his having renounced what was given him
by his wife's will.1
As appointed executor, C.N. Hodges filed an
"Inventory" dated May 12, 1958. He listed all
the assets of his conjugal partnership with
Linnie Jane Hodges on a separate balance
sheet and then stated expressly that her estate
which has come into his possession as
executor was "one-half of all the items" listed in
said balance sheet. (Pp. 89-90, Appellee's
Brief.)
Parenthetically, it may be stated, at this juncture, that We are
taking pains to quote wholly or at least, extensively from some
of the pleadings and orders whenever We feel that it is
necessary to do so for a more comprehensive and clearer
view of the important and decisive issues raised by the parties
and a more accurate appraisal of their respective positions in
regard thereto.
The records of these cases do not show that anything else
was done in the above-mentioned Special Proceedings No.
1307 until December 26, 1962, when on account of the death
of Hodges the day before, the same lawyer, Atty. Leon P.
Gellada, who had been previously acting as counsel for
Hodges in his capacity as Executor of his wife's estate, and as
such had filed the aforequoted motions and manifestations,
filed the following:
URGENT EX-PARTE MOTION FOR THE
APPOINTMENT OF A
SPECIAL ADMINISTRATRIX
COMES the undersigned attorney for the
Executor in the above-entitled proceedings, to
the Honorable Court, most respectfully states:
1. That in accordance with the Last Will and
Testament of Linnie Jane Hodges (deceased),
her husband, Charles Newton Hodges was to
act as Executor, and in fact, in an order issued
by this Hon. Court dated June 28, 1957, the
said Charles Newton Hodges was appointed
Executor and had performed the duties as
such.
2. That last December 22, 1962, the said
Charles Newton Hodges was stricken ill, and
brought to the Iloilo Mission Hospital for
treatment, but unfortunately, he died on
December 25, 1962, as shown by a copy of the
death certificate hereto attached and marked as
Annex "A".
3. That in accordance with the provisions of the
last will and testament of Linnie Jane Hodges,
whatever real and personal properties that may
remain at the death of her husband Charles
Newton Hodges, the said properties shall be
equally divided among their heirs. That there
are real and personal properties left by Charles
Newton Hodges, which need to be administered
and taken care of.
4. That the estate of deceased Linnie Jane
Hodges, as well as that of Charles Newton
Hodges, have not as yet been determined or
ascertained, and there is necessity for the
appointment of a general administrator to
liquidate and distribute the residue of the estate
to the heirs and legatees of both spouses. That
in accordance with the provisions of Section 2
of Rule 75 of the Rules of Court, the conjugal
partnership of Linnie Jane Hodges and Charles
Newton Hodges shall be liquidated in the
testate proceedings of the wife.
5. That the undersigned counsel, has perfect
personal knowledge of the existence of the last
will and testament of Charles Newton Hodges,
with similar provisions as that contained in the
last will and testament of Linnie Jane Hodges.
However, said last will and testament of Charles
Newton Hodges is kept inside the vault or iron
safe in his office, and will be presented in due
time before this honorable Court.
6. That in the meantime, it is imperative and
indispensable that, an Administratrix be
appointed for the estate of Linnie Jane Hodges
and a Special Administratrix for the estate of
Charles Newton Hodges, to perform the duties
required by law, to administer, collect, and take
charge of the goods, chattels, rights, credits,
and estate of both spouses, Charles Newton
Hodges and Linnie Jane Hodges, as provided
for in Section 1 and 2, Rule 81 of the Rules of
Court.
7. That there is delay in granting letters
testamentary or of administration, because the
last will and testament of deceased, Charles
Newton Hodges, is still kept in his safe or vault,
and in the meantime, unless an administratrix
(and,) at the same time, a Special Administratrix
is appointed, the estate of both spouses are in
danger of being lost, damaged or go to waste.
8. That the most trusted employee of both
spouses Linnie Jane Hodges and C.N. Hodges,
who had been employed for around thirty (30)
years, in the person of Miss Avelina Magno,
(should) be appointed Administratrix of the
estate of Linnie Jane Hodges and at the same
time Special Administratrix of the estate of
Charles Newton Hodges. That the said Miss
Avelina Magno is of legal age, a resident of the
Philippines, the most fit, competent, trustworthy
and well-qualified person to serve the duties of
Administratrix and Special Administratrix and is
willing to act as such.
9. That Miss Avelina Magno is also willing to file
bond in such sum which the Hon. Court
believes reasonable.
WHEREFORE, in view of all the foregoing, it is
most respectfully prayed that, Miss AVELINA A.
MAGNO be immediately appointed
Administratrix of the estate of Linnie Jane
Hodges and as Special Administratrix of the
estate of Charles Newton Hodges, with powers
and duties provided for by law. That the
Honorable Court fix the reasonable bond of
P1,000.00 to be filed by Avelina A. Magno.
(Annex "O", Petition.)
which respondent court readily acted on in its order of even
date thus: .
For the reasons alleged in the Urgent Ex-
parte Motion filed by counsel for the Executor
dated December 25, 1962, which the Court
finds meritorious, Miss AVELINA A. MAGNO, is
hereby appointed Administratrix of the estate of
Linnie Jane Hodges and as Special
Administratrix of the estate of Charles Newton
Hodges, in the latter case, because the last will
of said Charles Newton Hodges is still kept in
his vault or iron safe and that the real and
personal properties of both spouses may be
lost, damaged or go to waste, unless a Special
Administratrix is appointed.
Miss Avelina A. Magno is required to file bond in
the sum of FIVE THOUSAND PESOS
(P5,000.00), and after having done so, let
letters of Administration be issued to her."
(Annex "P", Petition.)
On December 29, 1962, however, upon
urgent ex-parte petition of respondent Magno
herself, thru Atty. Gellada, Harold, R. Davies, "a
representative of the heirs of deceased Charles
Newton Hodges (who had) arrived from the
United States of America to help in the
administration of the estate of said deceased"
was appointed as Co-Special Administrator of
the estate of Hodges, (pp. 29-33, Yellow -
Record on Appeal) only to be replaced as such
co-special administrator on January 22, 1963
 by Joe Hodges, who, according to the motion of
the same attorney, is "the nephew of the
deceased (who had) arrived from the United
States with instructions from the other heirs of
the deceased to administer the properties or
estate of Charles Newton Hodges in the
Philippines, (Pp. 47-50, id.)
Meanwhile, under date of January 9, 1963, the same Atty.
Gellada filed in Special Proceedings 1672 a petition for the
probate of the will of Hodges,2 with a prayer for the issuance of
letters of administration to the same Joe Hodges, albeit the
motion was followed on February 22, 1963 by a separate one
asking that Atty. Fernando Mirasol be appointed as his co-
administrator. On the same date this latter motion was filed,
the court issued the corresponding order of probate and letters
of administration to Joe Hodges and Atty. Mirasol, as prayed
for.
At this juncture, again, it may also be explained that just as, in
her will, Mrs. Hodges bequeathed her whole estate to her
husband "to have and to hold unto him, my said husband,
during his natural lifetime", she, at the same time or in like
manner, provided that "at the death of my said husband — I
give devise and bequeath all of the rest, residue and
remainder of my estate, both real and personal, wherever
situated or located, to be equally divided among my brothers
and sisters, share and share alike —". Accordingly, it became
incumbent upon Hodges, as executor of his wife's will, to duly
liquidate the conjugal partnership, half of which constituted her
estate, in order that upon the eventuality of his death, "the
rest, residue and remainder" thereof could be determined and
correspondingly distributed or divided among her brothers and
sisters. And it was precisely because no such liquidation was
done, furthermore, there is the issue of whether the distribution
of her estate should be governed by the laws of the Philippines
or those of Texas, of which State she was a national, and,
what is more, as already stated, Hodges made official and
sworn statements or manifestations indicating that as far as he
was concerned no "property interests passed to him as
surviving spouse — "except for purposes of administering the
estate, paying debts, taxes and other legal charges" and it was
the intention of the surviving husband of the deceased to
distribute the remaining property and interests of the deceased
in their Community Estate to the devisees and legatees named
in the will when the debts, liabilities, taxes and expenses of
administration are finally determined and paid", that the
incidents and controversies now before Us for resolution
arose. As may be observed, the situation that ensued upon the
death of Hodges became rather unusual and so, quite
understandably, the lower court's actuations presently under
review are apparently wanting in consistency and seemingly
lack proper orientation.
Thus, We cannot discern clearly from the record before Us the
precise perspective from which the trial court proceeded in
issuing its questioned orders. And, regretably, none of the
lengthy briefs submitted by the parties is of valuable
assistance in clearing up the matter.
To begin with, We gather from the two records on appeal filed
by petitioner, as appellant in the appealed cases, one with
green cover and the other with a yellow cover, that at the
outset, a sort of modus operandi had been agreed upon by the
parties under which the respective administrators of the two
estates were supposed to act conjointly, but since no copy of
the said agreement can be found in the record before Us, We
have no way of knowing when exactly such agreement was
entered into and under what specific terms. And while
reference is made to said modus operandi in the order of
September 11, 1964, on pages 205-206 of the Green Record
on Appeal, reading thus:
 The present incident is to hear the side of
administratrix, Miss Avelina A. Magno, in
answer to the charges contained in the motion
filed by Atty. Cesar Tirol on September 3, 1964.
In answer to the said charges, Miss Avelina A.
Magno, through her counsel, Atty. Rizal
Quimpo, filed a written manifestation.
After reading the manifestation here of Atty.
Quimpo, for and in behalf of the administratrix,
Miss Avelina A. Magno, the Court finds that
everything that happened before September 3,
1964, which was resolved on September 8,
1964, to the satisfaction of parties, was simply
due to a misunderstanding between the
representative of the Philippine Commercial
and Industrial Bank and Miss Magno and in
order to restore the harmonious relations
between the parties, the Court ordered the
parties to remain in status quo as to their
modus operandi before September 1, 1964,
until after the Court can have a meeting with all
the parties and their counsels on October 3, as
formerly agreed upon between counsels, Attys.
Ozaeta, Gibbs and Ozaeta, Attys. Tirol and Tirol
and Atty. Rizal Quimpo.
In the meantime, the prayers of Atty. Quimpo as
stated in his manifestation shall not be resolved
by this Court until October 3, 1964.
SO ORDERED.
there is nothing in the record indicating whatever happened to
it afterwards, except that again, reference thereto was made in
the appealed order of October 27, 1965, on pages 292-295 of
the Green Record on Appeal, as follows:
On record is an urgent motion to allow PCIB to
open all doors and locks in the Hodges Office at
206-208 Guanco Street, Iloilo City, to take
immediate and exclusive possession thereof
and to place its own locks and keys for security
purposes of the PCIB dated October 27, 1965
thru Atty. Cesar Tirol. It is alleged in said urgent
motion that Administratrix Magno of the testate
estate of Linnie Jane Hodges refused to open
the Hodges Office at 206-208 Guanco Street,
Iloilo City where PCIB holds office and therefore
PCIB is suffering great moral damage and
prejudice as a result of said act. It is prayed that
an order be issued authorizing it (PCIB) to open
all doors and locks in the said office, to take
immediate and exclusive possession thereof
and place thereon its own locks and keys for
security purposes; instructing the clerk of court
or any available deputy to witness and
supervise the opening of all doors and locks
and taking possession of the PCIB.
A written opposition has been filed by
Administratrix Magno of even date (Oct. 27)
thru counsel Rizal Quimpo stating therein that
she was compelled to close the office for the
reason that the PCIB failed to comply with the
order of this Court signed by Judge Anacleto I.
Bellosillo dated September 11, 1964 to the
effect that both estates should remain in status
quo to their modus operandi as of September 1,
1964.
To arrive at a happy solution of the dispute and
in order not to interrupt the operation of the
office of both estates, the Court aside from the
reasons stated in the urgent motion and
opposition heard the verbal arguments of Atty.
Cesar Tirol for the PCIB and Atty. Rizal Quimpo
for Administratix Magno.
After due consideration, the Court hereby
orders Magno to open all doors and locks in the
Hodges Office at 206-208 Guanco Street, Iloilo
City in the presence of the PCIB or its duly
authorized representative and deputy clerk of
court Albis of this branch not later than 7:30
tomorrow morning October 28, 1965 in order
that the office of said estates could operate for
business.
Pursuant to the order of this Court thru Judge
Bellosillo dated September 11, 1964, it is
hereby ordered:
(a) That all cash collections should be
deposited in the joint account of the estates of
Linnie Jane Hodges and estates of C.N.
Hodges;
(b) That whatever cash collections that had
been deposited in the account of either of the
estates should be withdrawn and since then
deposited in the joint account of the estate of
Linnie Jane Hodges and the estate of C.N.
Hodges;
(c) That the PCIB should countersign the check
in the amount of P250 in favor of Administratrix
Avelina A. Magno as her compensation as
administratrix of the Linnie Jane Hodges estate
chargeable to the testate estate of Linnie Jane
Hodges only;
(d) That Administratrix Magno is hereby directed
to allow the PCIB to inspect whatever records,
documents and papers she may have in her
possession in the same manner that
Administrator PCIB is also directed to allow
Administratrix Magno to inspect whatever
records, documents and papers it may have in
its possession;
(e) That the accountant of the estate of Linnie
Jane Hodges shall have access to all records of
the transactions of both estates for the
protection of the estate of Linnie Jane Hodges;
and in like manner the accountant or any
authorized representative of the estate of C.N.
Hodges shall have access to the records of
transactions of the Linnie Jane Hodges estate
for the protection of the estate of C.N. Hodges.
Once the estates' office shall have been
opened by Administratrix Magno in the
presence of the PCIB or its duly authorized
representative and deputy clerk Albis or his duly
authorized representative, both estates or any
of the estates should not close it without
previous consent and authority from this court.
SO ORDERED.
As may be noted, in this order, the respondent court required
that all collections from the properties in the name of Hodges
should be deposited in a joint account of the two estates,
which indicates that seemingly the so-called modus
operandi was no longer operative, but again there is nothing to
show when this situation started.
Likewise, in paragraph 3 of the petitioner's motion of
September 14, 1964, on pages 188-201 of the Green Record
on Appeal, (also found on pp. 83-91 of the Yellow Record on
Appeal) it is alleged that:
3. On January 24, 1964 virtually all of the heirs
of C.N. Hodges, Joe Hodges and Fernando P.
Mirasol acting as the two co-administrators of
the estate of C.N. Hodges, Avelina A. Magno
acting as the administratrix of the estate of
Linnie Jane Hodges and Messrs. William Brown
and Ardell Young acting for all of the Higdon
family who claim to be the sole beneficiaries of
the estate of Linnie Jane Hodges and various
legal counsel representing the aforementioned
parties entered into an amicable agreement,
which was approved by this Honorable Court,
wherein the parties thereto agreed that certain
sums of money were to be paid in settlement of
different claims against the two estates and that
the assets (to the extent they existed) of both
estates would be administered jointly by the
PCIB as administrator of the estate of C.N.
Hodges and Avelina A. Magno as administratrix
of the estate of Linnie Jane Hodges, subject,
however, to the aforesaid October 5, 1963
Motion, namely, the PCIB's claim to exclusive
possession and ownership of one hundred
percent (100%) (or, in the alternative, seventy-
five percent (75%) of all assets owned by C.N.
Hodges or Linnie Jane Hodges situated in the
Philippines. On February 1, 1964 (pp. 934-935,
CFI Rec., S.P. No. 1672) this Honorable Court
amended its order of January 24, 1964 but in
no way changed its recognition of the afore-
described basic demand by the PCIB as
administrator of the estate of C.N. Hodges to
one hundred percent (100%) of the assets
claimed by both estates.
but no copy of the mentioned agreement of joint administration
of the two estates exists in the record, and so, We are not
informed as to what exactly are the terms of the same which
could be relevant in the resolution of the issues herein.
On the other hand, the appealed order of November 3, 1965,
on pages 313-320 of the Green Record on Appeal, authorized
payment by respondent Magno of, inter alia, her own fees as
administratrix, the attorney's fees of her lawyers, etc., as
follows:
Administratrix Magno thru Attys. Raul S.
Manglapus and Rizal. R. Quimpo filed a
Manifestation and Urgent Motion dated June
10, 1964 asking for the approval of the
Agreement dated June 6, 1964 which
Agreement is for the purpose of retaining their
services to protect and defend the interest of
the said Administratrix in these proceedings and
the same has been signed by and bears the
express conformity of the attorney-in-fact of the
late Linnie Jane Hodges, Mr. James L. Sullivan.
It is further prayed that the Administratrix of the
Testate Estate of Linnie Jane Hodges be
directed to pay the retailers fee of said lawyers,
said fees made chargeable as expenses for the
administration of the estate of Linnie Jane
Hodges (pp. 1641-1642, Vol. V, Sp. 1307).
An opposition has been filed by the
Administrator PCIB thru Atty. Herminio Ozaeta
dated July 11, 1964, on the ground that
payment of the retainers fee of Attys.
Manglapus and Quimpo as prayed for in said
Manifestation and Urgent Motion is prejudicial
to the 100% claim of the estate of C. N.
Hodges; employment of Attys. Manglapus and
Quimpo is premature and/or unnecessary;
Attys. Quimpo and Manglapus are representing
conflicting interests and the estate of Linnie
Jane Hodges should be closed and terminated
(pp. 1679-1684, Vol, V, Sp. 1307).
Atty. Leon P. Gellada filed a memorandum
dated July 28, 1964 asking that the
Manifestation and Urgent Motion filed by Attys.
Manglapus and Quimpo be denied because no
evidence has been presented in support
thereof. Atty. Manglapus filed a reply to the
opposition of counsel for the Administrator of
the C. N. Hodges estate wherein it is claimed
that expenses of administration include
reasonable counsel or attorney's fees for
services to the executor or administrator. As a
matter of fact the fee agreement dated
February 27, 1964 between the PCIB and the
law firm of Ozaeta, Gibbs & Ozaeta as its
counsel (Pp. 1280-1284, Vol. V, Sp. 1307)
which stipulates the fees for said law firm has
been approved by the Court in its order dated
March 31, 1964. If payment of the fees of the
lawyers for the administratrix of the estate of
Linnie Jane Hodges will cause prejudice to the
estate of C. N. Hodges, in like manner the very
agreement which provides for the payment of
attorney's fees to the counsel for the PCIB will
also be prejudicial to the estate of Linnie Jane
Hodges (pp. 1801-1814, Vol. V, Sp. 1307).
Atty. Herminio Ozaeta filed a rejoinder dated
August 10, 1964 to the reply to the opposition to
the Manifestation and Urgent Motion alleging
principally that the estates of Linnie Jane
Hodges and C. N. Hodges are not similarly
situated for the reason that C. N. Hodges is an
heir of Linnie Jane Hodges whereas the latter is
not an heir of the former for the reason that
Linnie Jane Hodges predeceased C. N. Hodges
(pp. 1839-1848, Vol. V, Sp. 1307); that Attys.
Manglapus and Quimpo formally entered their
appearance in behalf of Administratrix of the
estate of Linnie Jane Hodges on June 10, 1964
(pp. 1639-1640, Vol. V, Sp. 1307).
Atty. Manglapus filed a manifestation dated
December 18, 1964 stating therein that Judge
Bellosillo issued an order requiring the parties
to submit memorandum in support of their
respective contentions. It is prayed in this
manifestation that the Manifestation and Urgent
Motion dated June 10, 1964 be resolved (pp.
6435-6439, Vol. VII, Sp. 1307).
Atty. Roman Mabanta, Jr. for the PCIB filed a
counter- manifestation dated January 5, 1965
asking that after the consideration by the court
of all allegations and arguments and pleadings
of the PCIB in connection therewith (1) said
manifestation and urgent motion of Attys.
Manglapus and Quimpo be denied (pp. 6442-
6453, Vol. VII, Sp. 1307). Judge Querubin
issued an order dated January 4, 1965
approving the motion dated June 10, 1964 of
the attorneys for the administratrix of the estate
of Linnie Jane Hodges and agreement annexed
to said motion. The said order further states:
"The Administratrix of the estate of Linnie Jane
Hodges is authorized to issue or sign whatever
check or checks may be necessary for the
above purpose and the administrator of the
estate of C. N. Hodges is ordered to
countersign the same. (pp. 6518-6523, Vol VII,
Sp. 1307).
Atty. Roman Mabanta, Jr. for the PCIB filed a
manifestation and motion dated January 13,
1965 asking that the order of January 4, 1965
which was issued by Judge Querubin be
declared null and void and to enjoin the clerk of
court and the administratrix and administrator in
these special proceedings from all proceedings
and action to enforce or comply with the
provision of the aforesaid order of January 4,
1965. In support of said manifestation and
motion it is alleged that the order of January 4,
1965 is null and void because the said order
was never delivered to the deputy clerk Albis of
Branch V (the sala of Judge Querubin) and the
alleged order was found in the drawer of the
late Judge Querubin in his office when said
drawer was opened on January 13, 1965 after
the death of Judge Querubin by Perfecto
Querubin, Jr., the son of the judge and in the
presence of Executive Judge Rovira and deputy
clerk Albis (Sec. 1, Rule 36, New Civil Code)
(Pp. 6600-6606, Vol. VIII, Sp. 1307).
Atty. Roman Mabanta, Jr. for the PCIB filed a
motion for reconsideration dated February 23,
1965 asking that the order dated January 4,
1964 be reversed on the ground that:
1. Attorneys retained must render services to
the estate not to the personal heir;
2. If services are rendered to both, fees should
be pro-rated between them;
3. Attorneys retained should not represent
conflicting interests; to the prejudice of the other
heirs not represented by said attorneys;
4. Fees must be commensurate to the actual
services rendered to the estate;
5. There must be assets in the estate to pay for
said fees (Pp. 6625-6636, Vol. VIII, Sp. 1307).
Atty. Quimpo for Administratrix Magno of the
estate of Linnie Jane Hodges filed a motion to
submit dated July 15, 1965 asking that the
manifestation and urgent motion dated June 10,
1964 filed by Attys. Manglapus and Quimpo and
other incidents directly appertaining thereto be
considered submitted for consideration and
approval (pp. 6759-6765, Vol. VIII, Sp. 1307).
Considering the arguments and reasons in
support to the pleadings of both the
Administratrix and the PCIB, and of Atty.
Gellada, hereinbefore mentioned, the Court
believes that the order of January 4, 1965 is
null and void for the reason that the said order
has not been filed with deputy clerk Albis of this
court (Branch V) during the lifetime of Judge
Querubin who signed the said order. However,
the said manifestation and urgent motion dated
June 10, 1964 is being treated and considered
in this instant order. It is worthy to note that in
the motion dated January 24, 1964 (Pp. 1149-
1163, Vol. V, Sp. 1307) which has been filed by
Atty. Gellada and his associates and Atty. Gibbs
and other lawyers in addition to the stipulated
fees for actual services rendered. However, the
fee agreement dated February 27, 1964,
between the Administrator of the estate of C. N.
Hodges and Atty. Gibbs which provides for
retainer fee of P4,000 monthly in addition to
specific fees for actual appearances,
reimbursement for expenditures and contingent
fees has also been approved by the Court and
said lawyers have already been paid. (pp.
1273-1279, Vol. V, Sp. Proc. 1307 pp. 1372-
1373, Vol. V, Sp. Proc. 1307).
WHEREFORE, the order dated January 4,
1965 is hereby declared null and void.
The manifestation and motion dated June 10,
1964 which was filed by the attorneys for the
administratrix of the testate estate of Linnie
Jane Hodges is granted and the agreement
annexed thereto is hereby approved.
The administratrix of the estate of Linnie Jane
Hodges is hereby directed to be needed to
implement the approval of the agreement
annexed to the motion and the administrator of
the estate of C. N. Hodges is directed to
countersign the said check or checks as the
case may be.
SO ORDERED.
thereby implying somehow that the court assumed the
existence of independent but simultaneous administrations.
Be that as it may, again, it appears that on August 6, 1965, the
court, acting on a motion of petitioner for the approval of deeds
of sale executed by it as administrator of the estate of Hodges,
issued the following order, also on appeal herein:
Acting upon the motion for approval of deeds of
sale for registered land of the PCIB,
Administrator of the Testate Estate of C. N.
Hodges in Sp. Proc. 1672 (Vol. VII, pp. 2244-
2245), dated July 16, 1965, filed by Atty. Cesar
T. Tirol in representation of the law firms of
Ozaeta, Gibbs and Ozaeta and Tirol and Tirol
and the opposition thereto of Atty. Rizal R.
Quimpo (Vol. VIII, pp. 6811-6813) dated July
22, 1965 and considering the allegations and
reasons therein stated, the court believes that
the deeds of sale should be signed jointly by
the PCIB, Administrator of the Testate Estate of
C. N. Hodges and Avelina A. Magno,
Administratrix of the Testate Estate of Linnie
Jane Hodges and to this effect the PCIB should
take the necessary steps so that Administratrix
Avelina A. Magno could sign the deeds of sale.
 SO ORDERED. (p. 248, Green Record on
Appeal.)
Notably this order required that even the deeds executed by
petitioner, as administrator of the Estate of Hodges, involving
properties registered in his name, should be co-signed by
respondent Magno.3 And this was not an isolated instance.
In her brief as appellee, respondent Magno states:
After the lower court had authorized appellee
Avelina A. Magno to execute final deeds of sale
pursuant to contracts to sell executed by C. N.
Hodges on February 20, 1963 (pp. 45-46,
Green ROA), motions for the approval of final
deeds of sale (signed by appellee Avelina A.
Magno and the administrator of the estate of C.
N. Hodges, first Joe Hodges, then Atty.
Fernando Mirasol and later the appellant) were
approved by the lower court upon petition of
appellee Magno's counsel, Atty. Leon P.
Gellada, on the basis of section 8 of Rule 89 of
the Revised Rules of Court. Subsequently, the
appellant, after it had taken over the bulk of the
assets of the two estates, started presenting
these motions itself. The first such attempt was
a "Motion for Approval of Deeds of Sale for
Registered Land and Cancellations of
Mortgages" dated July 21, 1964 filed by Atty.
Cesar T. Tirol, counsel for the appellant, thereto
annexing two (2) final deeds of sale and two (2)
cancellations of mortgages signed by appellee
Avelina A. Magno and D. R. Paulino, Assistant
Vice-President and Manager of the appellant
(CFI Record, Sp. Proc. No. 1307, Vol. V, pp.
1694-1701). This motion was approved by the
lower court on July 27, 1964. It was followed by
another motion dated August 4, 1964 for the
approval of one final deed of sale again signed
by appellee Avelina A. Magno and D. R. Paulino
(CFI Record, Sp. Proc. No. 1307. Vol. V, pp.
1825-1828), which was again approved by the
lower court on August 7, 1964. The gates
having been opened, a flood ensued: the
appellant subsequently filed similar motions for
the approval of a multitude of deeds of sales
and cancellations of mortgages signed by both
the appellee Avelina A. Magno and the
appellant.
A random check of the records of Special
Proceeding No. 1307 alone will show Atty.
Cesar T. Tirol as having presented for court
approval deeds of sale of real properties signed
by both appellee Avelina A. Magno and D. R.
Paulino in the following numbers: (a) motion
dated September 21, 1964 — 6 deeds of sale;
(b) motion dated November 4, 1964 — 1 deed
of sale; (c) motion dated December 1, 1964 —
4 deeds of sale; (d) motion dated February 3,
1965 — 8 deeds of sale; (f) motion dated May
7, 1965 — 9 deeds of sale. In view of the very
extensive landholdings of the Hodges spouses
and the many motions filed concerning deeds of
sale of real properties executed by C. N.
Hodges the lower court has had to constitute
special separate expedientes in Special
Proceedings Nos. 1307 and 1672 to include
mere motions for the approval of deeds of sale
of the conjugal properties of the Hodges
spouses.
As an example, from among the very many,
under date of February 3, 1965, Atty. Cesar T.
Tirol, as counsel for the appellant, filed "Motion
for Approval of Deeds of Sale for Registered
Land and Cancellations of Mortgages" (CFI
Record, Sp. Proc. No. 1307, Vol. VIII, pp. 6570-
6596) the allegations of which read:
"1. In his lifetime, the late C. N. Hodges
executed "Contracts to Sell" real property, and
the prospective buyers under said contracts
have already paid the price and complied with
the terms and conditions thereof;
"2. In the course of administration of both
estates, mortgage debtors have already paid
their debts secured by chattel mortgages in
favor of the late C. N. Hodges, and are now
entitled to release therefrom;
"3. There are attached hereto documents
executed jointly by the Administratrix in Sp.
Proc. No. 1307 and the Administrator in Sp.
Proc. No. 1672, consisting of deeds of sale in
favor —
Fernando Cano, Bacolod City,
Occ. Negros
Fe Magbanua, Iloilo City
Policarpio M. Pareno, La Paz,
Iloilo City
Rosario T. Libre, Jaro, Iloilo City
Federico B. Torres, Iloilo City
Reynaldo T. Lataquin, La Paz,
Iloilo City
Anatolio T. Viray, Iloilo City
Benjamin Rolando, Jaro, Iloilo
City
and cancellations of mortgages in favor of —
Pablo Manzano, Oton, Iloilo
Ricardo M. Diana, Dao, San
Jose, Antique
Simplicio Tingson, Iloilo City
Amado Magbanua, Pototan,
Iloilo
Roselia M. Baes, Bolo, Roxas
City
William Bayani, Rizal
Estanzuela, Iloilo City
Elpidio Villarete, Molo, Iloilo City
Norma T. Ruiz, Jaro, Iloilo City
"4. That the approval of the
aforesaid documents will not
reduce the assets of the estates
so as to prevent any creditor
from receiving his full debt or
diminish his dividend."
And the prayer of this motion is indeed very
revealing:
"WHEREFORE, it is respectfully prayed that,
under Rule 89, Section 8 of the Rules of Court,
this honorable court approve the aforesaid
deeds of sale and cancellations of mortgages."
(Pp. 113-117, Appellee's Brief.)
None of these assertions is denied in Petitioner's reply brief.
Further indicating lack of concrete perspective or orientation
on the part of the respondent court and its hesitancy to clear
up matters promptly, in its other appealed order of November
23, 1965, on pages 334-335 of the Green Record on Appeal,
said respondent court allowed the movant Ricardo Salas,
President of appellee Western Institute of Technology
(successor of Panay Educational Institutions, Inc.), one of the
parties with whom Hodges had contracts that are in question
in the appeals herein, to pay petitioner, as Administrator of the
estate of Hodges and/or respondent Magno, as Administrator
of the estate of Mrs. Hodges, thus:
Considering that in both cases there is as yet
no judicial declaration of heirs nor distribution of
properties to whomsoever are entitled thereto,
the Court believes that payment to both the
administrator of the testate estate of C. N.
Hodges and the administratrix of the testate
estate of Linnie Jane Hodges or to either one of
the two estates is proper and legal.
WHEREFORE, movant Ricardo T. Salas can
pay to both estates or either of them.
SO ORDERED.
(Pp. 334-335, Green Record on Appeal.)
On the other hand, as stated earlier, there were instances
when respondent Magno was given authority to act alone. For
instance, in the other appealed order of December 19, 1964,
on page 221 of the Green Record on Appeal, the respondent
court approved payments made by her of overtime pay to
some employees of the court who had helped in gathering and
preparing copies of parts of the records in both estates as
follows:
Considering that the expenses subject of the
motion to approve payment of overtime pay
dated December 10, 1964, are reasonable and
are believed by this Court to be a proper charge
of administration chargeable to the testate
estate of the late Linnie Jane Hodges, the said
expenses are hereby APPROVED and to be
charged against the testate estate of the late
Linnie Jane Hodges. The administrator of the
testate estate of the late Charles Newton
Hodges is hereby ordered to countersign the
check or checks necessary to pay the said
overtime pay as shown by the bills marked
Annex "A", "B" and "C" of the motion.
SO ORDERED.
(Pp. 221-222, Green Record on Appeal.)
Likewise, the respondent court approved deeds of sale
executed by respondent Magno alone, as Administratrix of the
estate of Mrs. Hodges, covering properties in the name of
Hodges, pursuant to "contracts to sell" executed by Hodges,
irrespective of whether they were executed by him before or
after the death of his wife. The orders of this nature which are
also on appeal herein are the following:
1. Order of March 30, 1966, on p. 137 of the Green Record on
Appeal, approving the deed of sale executed by respondent
Magno in favor of appellee Lorenzo Carles on February 24,
1966, pursuant to a "contract to sell" signed by Hodges on
June 17, 1958, after the death of his wife, which contract
petitioner claims was cancelled by it for failure of Carles to pay
the installments due on January 7, 1965.
2. Order of April 5, 1966, on pp. 139-140, id., approving the
deed of sale executed by respondent Magno in favor of
appellee Salvador Guzman on February 28, 1966 pursuant to
a "contract to sell" signed by Hodges on September 13, 1960,
after the death of his wife, which contract petitioner claims it
cancelled on March 3, 1965 in view of failure of said appellee
to pay the installments on time.
3. Order of April 20, 1966, on pp. 167-168, id., approving the
deed of sale executed by respondent Magno in favor of
appellee Purificacion Coronado on March 28, 1966 pursuant to
a "contract to sell" signed by Hodges on August 14, 1961, after
the death of his wife.
4. Order of April 20, 1966, on pp. 168-169, id., approving the
deed of sale executed by respondent Magno in favor of
appellee Florenia Barrido on March 28, 1966, pursuant to a
"contract to sell" signed by Hodges on February 21, 1958,
after the death of his wife.
5. Order of June 7, 1966, on pp. 184-185, id., approving the
deed of sale executed by respondent Magno in favor of
appellee Belcezar Causing on May 2, 1966, pursuant to a
"contract to sell" signed by Hodges on February 10, 1959,
after the death of his wife.
6. Order of June 21, 1966, on pp. 211-212, id., approving the
deed of sale executed by respondent Magno in favor of
appellee Artheo Thomas Jamir on June 3, 1966, pursuant to a
"contract to sell" signed by Hodges on May 26, 1961, after the
death of his wife.
7. Order of June 21, 1966, on pp. 212-213, id., approving the
deed of sale executed by respondent Magno in favor of
appellees Graciano Lucero and Melquiades Batisanan on
June 6 and June 3, 1966, respectively, pursuant to "contracts
to sell" signed by Hodges on June 9, 1959 and November 27,
1961, respectively, after the death of his wife.
8. Order of December 2, 1966, on pp. 303-304, id., approving
the deed of sale executed by respondent Magno in favor of
appellees Espiridion Partisala, Winifredo Espada and Rosario
Alingasa on September 6, 1966, August 17, 1966 and August
3, 1966, respectively, pursuant to "contracts to sell" signed by
Hodges on April 20, 1960, April 18, 1960 and August 25, 1958,
respectively, that is, after the death of his wife.
9. Order of April 5, 1966, on pp. 137-138, id., approving the
deed of sale executed by respondent Magno in favor of
appellee Alfredo Catedral on March 2, 1966, pursuant to a
"contract to sell" signed by Hodges on May 29, 1954, before
the death of his wife, which contract petitioner claims it had
cancelled on February 16, 1966 for failure of appellee Catedral
to pay the installments due on time.
10. Order of April 5, 1966, on pp. 138-139, id., approving the
deed of sale executed by respondent Magno in favor of
appellee Jose Pablico on March 7, 1966, pursuant to a
"contract to sell" signed by Hodges on March 7, 1950, after the
death of his wife, which contract petitioner claims it had
cancelled on June 29, 1960, for failure of appellee Pablico to
pay the installments due on time.
11. Order of December 2, 1966, on pp. 303-304, id., insofar as
it approved the deed of sale executed by respondent Magno in
favor of appellee Pepito Iyulores on September 6, 1966,
pursuant to a "contract to sell" signed by Hodges on February
5, 1951, before the death of his wife.
12. Order of January 3, 1967, on pp. 335-336, id., approving
three deeds of sale executed by respondent Magno, one in
favor of appellees Santiago Pacaonsis and two in favor of
appellee Adelfa Premaylon on December 5, 1966 and
November 3, 1966, respectively, pursuant to separate
"promises to sell" signed respectively by Hodges on May 26,
1955 and January 30, 1954, before the death of his wife, and
October 31, 1959, after her death.
In like manner, there were also instances when respondent
court approved deeds of sale executed by petitioner alone and
without the concurrence of respondent Magno, and such
approvals have not been the subject of any appeal. No less
than petitioner points this out on pages 149-150 of its brief as
appellant thus:
The points of fact and law pertaining to the two
abovecited assignments of error have already
been discussed previously. In the first
abovecited error, the order alluded to was
general, and as already explained before, it
was, as admitted by the lower court itself,
superseded by the particular orders approving
specific final deeds of sale executed by the
appellee, Avelina A. Magno, which are subject
of this appeal, as well as the particular orders
approving specific final deeds of sale executed
by the appellant, Philippine Commercial and
Industrial Bank, which were never appealed by
the appellee, Avelina A. Magno, nor by any
party for that matter, and which are now
therefore final.
Now, simultaneously with the foregoing incidents, others of
more fundamental and all embracing significance developed.
On October 5, 1963, over the signature of Atty. Allison J. Gibbs
in representation of the law firm of Ozaeta, Gibbs & Ozaeta, as
counsel for the co-administrators Joe Hodges and Fernando P.
Mirasol, the following self-explanatory motion was filed:
URGENT MOTION FOR AN
ACCOUNTING AND DELIVERY
TO ADMINISTRATION OF THE
ESTATE OF C. N. HODGES OF
ALL OF THE ASSETS OF THE
CONJUGAL PARTNERSHIP OF
THE DECEASED LINNIE JANE
HODGES AND C N. HODGES
EXISTING AS OF MAY 23, 1957
PLUS ALL THE RENTS,
EMOLUMENTS AND INCOME
THEREFROM.
COMES NOW the co-administrator of the
estate of C. N. Hodges, Joe Hodges, through
his undersigned attorneys in the above-entitled
proceedings, and to this Honorable Court
respectfully alleges:
(1) On May 23, 1957 Linnie Jane Hodges died
in Iloilo City.
(2) On June 28, 1957 this Honorable Court
admitted to probate the Last Will and Testament
of the deceased Linnie Jane Hodges executed
November 22, 1952 and appointed C. N.
Hodges as Executor of the estate of Linnie
Jane Hodges (pp. 24-25, Rec. Sp. Proc. 1307).
(3) On July 1, 1957 this Honorable Court issued
Letters Testamentary to C. N. Hodges in the
Estate of Linnie Jane Hodges (p. 30, Rec. Sp.
Proc. 1307).
(4) On December 14, 1957 this Honorable
Court, on the basis of the following allegations
 in a Motion dated December 11, 1957 filed by
Leon P. Gellada as attorney for the executor C.
N. Hodges:
"That herein Executor, (is) not
only part owner of the properties
left as conjugal, but also, the
successor to all the properties
left by the deceased Linnie Jane
Hodges."
(p. 44, Rec. Sp. Proc. 1307;
emphasis supplied.)
issued the following order:
"As prayed for by Attorney
Gellada, counsel for the
Executory, for the reasons stated
in his motion dated December
11, 1957 which the court
considers well taken, all the
sales, conveyances, leases and
mortgages of all properties left
by the deceased Linnie Jane
Hodges are hereby APPROVED.
The said executor is further
authorized to execute
subsequent sales, conveyances,
leases and mortgages of the
properties left by the said
deceased Linnie Jane Hodges in
consonance with the wishes
contained in the last will and
testament of the latter."
(p. 46, Rec. Sp. Proc. 1307;
emphasis supplied.)
(5) On April 21, 1959 this Honorable Court
approved the inventory and accounting
submitted by C. N. Hodges through his counsel
Leon P. Gellada on April 14, 1959 wherein he
alleged among other things
"That no person interested in the
Philippines of the time and place
of examining the herein account,
be given notice, as herein
executor is the only devisee or
legatee of the deceased, in
accordance with the last will and
testament already probated by
the Honorable Court."
(pp. 77-78, Rec. Sp. Proc. 1307;
emphasis supplied.).
(6) On July 30, 1960 this Honorable Court
approved the "Annual Statement of Account"
submitted by C. N. Hodges through his counsel
Leon P. Gellada on July 21, 1960 wherein he
alleged among other things:
"That no person interested in the
Philippines of the time and place
of examining the herein account,
be given notice as herein
executor is the only devisee or
legatee of the deceased Linnie
Jane Hodges, in accordance
with the last will and testament of
 the deceased, already probated
by this Honorable Court."
(pp. 81-82. Rec. Sp. Proc. 1307;
emphasis supplied.)
(7) On May 2, 1961 this Honorable court
approved the "Annual Statement of Account By
The Executor for the Year 1960" submitted
through Leon P. Gellada on April 20, 1961
wherein he alleged:
That no person interested in the
Philippines be given notice, of
the time and place of examining
the herein account, as herein
Executor is the only devisee or
legatee of the deceased Linnie
Jane Hodges, in accordance
with the last will and testament
of the deceased, already
probated by this Honorable
Court.
(pp. 90-91. Rec. Sp. Proc. 1307;
emphasis supplied.)
(8) On December 25, 1962, C.N. Hodges died.
(9) On December 25, 1962, on the Urgent Ex-
parte Motion of Leon P. Gellada filed only in
Special Proceeding No. 1307, this Honorable
Court appointed Avelina A. Magno
"Administratrix of the estate of Linnie Jane
Hodges and as Special Administratrix of the
estate of Charles Newton Hodges, in the latter
case, because the last will of said Charles
Newton Hodges is still kept in his vault or iron
safe and that the real and personal properties
of both spouses may be lost, damaged or go to
waste, unless a Special Administratrix is
appointed."
(p. 100. Rec. Sp. Proc. 1307)
(10) On December 26, 1962 Letters of
Administration were issued to Avelina Magno
pursuant to this Honorable Court's aforesaid
Order of December 25, 1962
"With full authority to take
possession of all the property of
said deceased in any province or
provinces in which it may be
situated and to perform all other
acts necessary for the
preservation of said property,
said Administratrix and/or
Special Administratrix having
filed a bond satisfactory to the
Court."
(p. 102, Rec. Sp. Proc. 1307)
(11) On January 22, 1963 this Honorable Court
on petition of Leon P. Gellada of January 21,
1963 issued Letters of Administration to:
(a) Avelina A. Magno as Administratrix of the
estate of Linnie Jane Hodges;
(b) Avelina A. Magno as Special Administratrix
of the Estate of Charles Newton Hodges; and
(c) Joe Hodges as Co-Special Administrator of
the Estate of Charles Newton Hodges.
(p. 43, Rec. Sp. Proc. 1307)
(12) On February 20, 1963 this Honorable
Court on the basis of a motion filed by Leon P.
Gellada as legal counsel on February 16, 1963
for Avelina A. Magno acting as Administratrix of
the Estate of Charles Newton Hodges (pp. 114-
116, Sp. Proc. 1307) issued the following order:
"... se autoriza a aquella (Avelina
A. Magno) a firmar escrituras de
venta definitiva de propiedades
cubiertas por contratos para
vender, firmados, en vida, por el
finado Charles Newton Hodges,
cada vez que el precio
estipulado en cada contrato este
totalmente pagado. Se autoriza
igualmente a la misma a firmar
escrituras de cancelacion de
hipoteca tanto de bienes reales
como personales cada vez que
la consideracion de cada
hipoteca este totalmente
pagada.
"Cada una de dichas escrituras
que se otorguen debe ser
sometida para la aprobacion de
este Juzgado."
(p. 117, Sp. Proc. 1307).
[Par 1 (c), Reply to Motion For
Removal of Joe Hodges]
(13) On September l6, 1963 Leon P. Gellada,
acting as attorney for Avelina A. Magno as
Administratrix of the estate of Linnie Jane
Hodges, alleges:
3. — That since January, 1963,
both estates of Linnie Jane
Hodges and Charles Newton
Hodges have been receiving in
full, payments for those
"contracts to sell" entered into by
C. N. Hodges during his lifetime,
and the purchasers have been
demanding the execution of
definite deeds of sale in their
favor.
4. — That hereto attached are
thirteen (13) copies deeds of
sale executed by the
Administratrix and by the co-
administrator (Fernando P.
Mirasol) of the estate of Linnie
Jane Hodges and Charles
Newton Hodges respectively, in
compliance with the terms and
conditions of the respective
"contracts to sell" executed by
the parties thereto."
 (14) The properties involved in the aforesaid
motion of September 16, 1963 are all registered
in the name of the deceased C. N. Hodges.
(15) Avelina A. Magno, it is alleged on
information and belief, has been advertising in
the newspaper in Iloilo thusly:
For Sale
Testate Estate of Linnie Jane Hodges and
Charles Newton Hodges.
All Real Estate or Personal Property will be sold
on First Come First Served Basis.
Avelina A. Magno
Administratrix
(16) Avelina A. Magno, it is alleged on
information and belief, has paid and still is
paying sums of money to sundry persons.
(17) Joe Hodges through the undersigned
attorneys manifested during the hearings before
this Honorable Court on September 5 and 6,
1963 that the estate of C. N. Hodges was
claiming all of the assets belonging to the
deceased spouses Linnie Jane Hodges and C.
N. Hodges situated in Philippines because of
the aforesaid election by C. N. Hodges wherein
he claimed and took possession as sole owner
of all of said assets during the administration of
the estate of Linnie Jane Hodges on the ground
that he was the sole devisee and legatee under
her Last Will and Testament.
(18) Avelina A. Magno has submitted no
inventory and accounting of her administration
as Administratrix of the estate of Linnie Jane
Hodges and Special Administratrix of the estate
of C. N. Hodges. However, from manifestations
made by Avelina A. Magno and her legal
counsel, Leon P. Gellada, there is no question
she will claim that at least fifty per cent (50%) of
the conjugal assets of the deceased spouses
and the rents, emoluments and income
therefrom belong to the Higdon family who are
named in paragraphs Fourth and Fifth of the
Will of Linnie Jane Hodges (p. 5, Rec. Sp. Proc.
1307).
WHEREFORE, premises considered, movant
respectfully prays that this Honorable Court,
after due hearing, order:
(1) Avelina A. Magno to submit an inventory and
accounting of all of the funds, properties and
assets of any character belonging to the
deceased Linnie Jane Hodges and C. N.
Hodges which have come into her possession,
with full details of what she has done with them;
(2) Avelina A. Magno to turn over and deliver to
the Administrator of the estate of C. N. Hodges
all of the funds, properties and assets of any
character remaining in her possession;
(3) Pending this Honorable Court's adjudication
of the aforesaid issues, Avelina A. Magno to
stop, unless she first secures the conformity of
Joe Hodges (or his duly authorized
representative, such as the undersigned
 attorneys) as the Co-administrator and
attorney-in-fact of a majority of the beneficiaries
of the estate of C. N. Hodges:
(a) Advertising the sale and the sale of the
properties of the estates:
(b) Employing personnel and paying them any
compensation.
(4) Such other relief as this Honorable Court
may deem just and equitable in the premises.
(Annex "T", Petition.)
Almost a year thereafter, or on September 14, 1964, after the
co-administrators Joe Hodges and Fernando P. Mirasol were
replaced by herein petitioner Philippine Commercial and
Industrial Bank as sole administrator, pursuant to an
agreement of all the heirs of Hodges approved by the court,
and because the above motion of October 5, 1963 had not yet
been heard due to the absence from the country of Atty. Gibbs,
petitioner filed the following:
MANIFESTATION AND
MOTION, INCLUDING MOTION
TO SET FOR HEARING AND
RESOLVE "URGENT MOTION
FOR AN ACCOUNTING AND
DELIVERY TO
ADMINISTRATORS OF THE
ESTATE OF C. N. HODGES OF
ALL THE ASSETS OF THE
CONJUGAL PARTNERSHIP OF
THE DECEASED LINNIE JANE
HODGES AND C. N. HODGES
EXISTING AS OF MAY 23, 1957
PLUS ALL OF THE RENTS,
EMOLUMENTS AND INCOME
THEREFROM OF OCTOBER 5,
1963.
COMES NOW Philippine Commercial and
Industrial Bank (hereinafter referred to as
PCIB), the administrator of the estate of C. N.
Hodges, deceased, in Special Proceedings No.
1672, through its undersigned counsel, and to
this Honorable Court respectfully alleges that:
1. On October 5, 1963, Joe Hodges acting as
the co-administrator of the estate of C. N.
Hodges filed, through the undersigned
attorneys, an "Urgent Motion For An Accounting
and Delivery To Administrator of the Estate of C.
N. Hodges of all Of The Assets Of The Conjugal
Partnership of The Deceased Linnie Jane
Hodges and C. N. Hodges Existing as Of May,
23, 1957 Plus All Of The Rents, Emoluments
and Income Therefrom" (pp. 536-542, CFI Rec.
S. P. No. 1672).
2. On January 24, 1964 this Honorable Court,
on the basis of an amicable agreement entered
into on January 23, 1964 by the two co-
administrators of the estate of C. N. Hodges
and virtually all of the heirs of C. N. Hodges (p.
912, CFI Rec., S. P. No. 1672), resolved the
dispute over who should act as administrator of
the estate of C. N. Hodges by appointing the
PCIB as administrator of the estate of C. N.
Hodges (pp. 905-906, CFI Rec. S. P. No. 1672)
and issuing letters of administration to the
PCIB.
3. On January 24, 1964 virtually all of the heirs
of C. N. Hodges, Joe Hodges and Fernando P.
Mirasol acting as the two co-administrators of
the estate of C. N. Hodges, Avelina A. Magno
acting as the administratrix of the estate of
Linnie Jane Hodges, and Messrs. William
Brown and Ardel Young Acting for all of the
Higdon family who claim to be the sole
beneficiaries of the estate of Linnie Jane
Hodges and various legal counsel representing
the aforenamed parties entered into an
amicable agreement, which was approved by
this Honorable Court, wherein the parties
thereto agreed that certain sums of money were
to be paid in settlement of different claims
against the two estates and that the assets (to
the extent they existed)of both estates would
be administrated jointly by the PCIB as
administrator of the estate of C. N. Hodges and
Avelina A. Magno as administratrix of the estate
of Linnie Jane Hodges, subject, however, to the
aforesaid October 5, 1963 Motion, namely, the
PCIB's claim to exclusive possession and
ownership of one-hundred percent (10017,) (or,
in the alternative, seventy-five percent [75%] of
all assets owned by C. N. Hodges or Linnie
Jane Hodges situated in the Philippines. On
February 1, 1964 (pp. 934-935, CFI Rec., S. P.
No. 1672) this Honorable Court amended its
order of January 24, 1964 but in no way
changes its recognition of the aforedescribed
basic demand by the PCIB as administrator of
the estate of C. N. Hodges to one hundred
percent (100%) of the assets claimed by both
estates.
4. On February 15, 1964 the PCIB filed a
"Motion to Resolve" the aforesaid Motion of
October 5, 1963. This Honorable Court set for
hearing on June 11, 1964 the Motion of October
5, 1963.
5. On June 11, 1964, because the undersigned
Allison J. Gibbs was absent in the United
States, this Honorable Court ordered the
indefinite postponement of the hearing of the
Motion of October 5, 1963.
6. Since its appointment as administrator of the
estate of C. N. Hodges the PCIB has not been
able to properly carry out its duties and
obligations as administrator of the estate of C.
N. Hodges because of the following acts,
among others, of Avelina A. Magno and those
who claim to act for her as administratrix of the
estate of Linnie Jane Hodges:
(a) Avelina A. Magno illegally
acts as if she is in exclusive
control of all of the assets in the
Philippines of both estates
including those claimed by the
estate of C. N. Hodges as
evidenced in part by her locking
the premises at 206-208 Guanco
Street, Iloilo City on August 31,
1964 and refusing to reopen
same until ordered to do so by
this Honorable Court on
September 7, 1964.
(b) Avelina A. Magno illegally
acts as though she alone may
decide how the assets of the
estate of C.N. Hodges should be
administered, who the PCIB
shall employ and how much they
may be paid as evidenced in
party by her refusal to sign
checks issued by the PCIB
payable to the undersigned
counsel pursuant to their fee
agreement approved by this
Honorable Court in its order
dated March 31, 1964.
(c) Avelina A. Magno illegally
gives access to and turns over
possession of the records and
assets of the estate of C.N.
Hodges to the attorney-in-fact of
the Higdon Family, Mr. James L.
Sullivan, as evidenced in part by
the cashing of his personal
checks.
(d) Avelina A. Magno illegally
refuses to execute checks
prepared by the PCIB drawn to
pay expenses of the estate of C.
N. Hodges as evidenced in part
by the check drawn to reimburse
the PCIB's advance of
P48,445.50 to pay the 1964
income taxes reported due and
payable by the estate of C.N.
Hodges.
7. Under and pursuant to the orders of this
Honorable Court, particularly those of January
24 and February 1, 1964, and the mandate
contained in its Letters of Administration issued
on January 24, 1964 to the PCIB, it has
"full authority to
take possession
of all the property
of the deceased
C. N. Hodges
"and to perform all other acts
necessary for the preservation of
said property." (p. 914, CFI Rec.,
S.P. No. 1672.)
8. As administrator of the estate of C. N.
Hodges, the PCIB claims the right to the
immediate exclusive possession and control of
all of the properties, accounts receivables, court
cases, bank accounts and other assets,
including the documentary records evidencing
same, which existed in the Philippines on the
date of C. N. Hodges' death, December 25,
1962, and were in his possession and
registered in his name alone. The PCIB knows
of no assets in the Philippines registered in the
name of Linnie Jane Hodges, the estate of
Linnie Jane Hodges, or, C. N. Hodges,
Executor of the Estate of Linnie Jane Hodges
on December 25, 1962. All of the assets of
which the PCIB has knowledge are either
registered in the name of C. N. Hodges, alone
or were derived therefrom since his death on
December 25, 1962.
9. The PCIB as the current administrator of the
estate of C. N. Hodges, deceased, succeeded
to all of the rights of the previously duly
appointed administrators of the estate of C. N.
Hodges, to wit:
(a) On December 25, 1962, date
of C. N. Hodges' death, this
Honorable Court appointed Miss
Avelina A. Magno simultaneously
as:
(i) Administratrix of the estate of
Linnie Jane Hodges (p. 102, CFI
Rec., S.P. No. 1307) to replace
the deceased C. N. Hodges who
on May 28, 1957 was appointed
Special Administrator (p. 13. CFI
Rec. S.P. No. 1307) and on July
1, 1957 Executor of the estate of
Linnie Jane Hodges (p. 30, CFI
Rec., S. P. No. 1307).
(ii) Special Administratrix of the
estate of C. N. Hodges (p. 102,
CFI Rec., S.P. No. 1307).
(b) On December 29, 1962 this
Honorable Court appointed
Harold K. Davies as co-special
administrator of the estate of
C.N. Hodges along with Avelina
A. Magno (pp. 108-111, CFI
Rec., S. P. No. 1307).
(c) On January 22, 1963, with
the conformity of Avelina A.
Magno, Harold K. Davies
resigned in favor of Joe Hodges
(pp. 35-36, CFI Rec., S.P. No.
1672) who thereupon was
appointed on January 22, 1963
by this Honorable Court as
special co-administrator of the
estate of C.N. Hodges (pp. 38-40
& 43, CFI Rec. S.P. No. 1672)
along with Miss Magno who at
that time was still acting as
special co-administratrix of the
estate of C. N. Hodges.
(d) On February 22, 1963,
without objection on the part of
Avelina A. Magno, this
Honorable Court appointed Joe
Hodges and Fernando P. Mirasol
as co-administrators of the
estate of C.N. Hodges (pp. 76-
78, 81 & 85, CFI Rec., S.P. No.
1672).
10. Miss Avelina A. Magno, pursuant to the
orders of this Honorable Court of December 25,
1962, took possession of all Philippine Assets
now claimed by the two estates. Legally, Miss
Magno could take possession of the assets
registered in the name of C. N. Hodges alone
only in her capacity as Special Administratrix of
the Estate of C.N. Hodges. With the
appointment by this Honorable Court on
February 22, 1963 of Joe Hodges and
Fernando P. Mirasol as the co-administrators of
the estate of C.N. Hodges, they legally were
entitled to take over from Miss Magno the full
and exclusive possession of all of the assets of
the estate of C.N. Hodges. With the
appointment on January 24, 1964 of the PCIB
as the sole administrator of the estate of C.N.
Hodges in substitution of Joe Hodges and
Fernando P. Mirasol, the PCIB legally became
the only party entitled to the sole and exclusive
possession of all of the assets of the estate of
C. N. Hodges.
11. The PCIB's predecessors submitted their
accounting and this Honorable Court approved
same, to wit:
(a) The accounting of Harold K.
Davies dated January 18, 1963
(pp. 16-33, CFI Rec. S.P. No.
1672); which shows or its face
the:
(i) Conformity of Avelina A.
Magno acting as "Administratrix
of the Estate of Linnie Jane
Hodges and Special
Administratrix of the Estate of C.
N. Hodges";
(ii) Conformity of Leslie Echols, a
Texas lawyer acting for the heirs
of C.N. Hodges; and
(iii) Conformity of William Brown,
a Texas lawyer acting for the
Higdon family who claim to be
the only heirs of Linnie Jane
Hodges (pp. 18, 25-33, CFI
Rec., S. P. No. 1672).
Note: This accounting was approved by this
Honorable Court on January 22, 1963 (p. 34,
CFI Rec., S. P. No. 1672).
(b) The accounting of Joe
Hodges and Fernando P. Mirasol
as of January 23, 1964, filed
February 24, 1964 (pp. 990-
1000, CFI Rec. S.P. No. 1672
and pp. 1806-1848, CFI Rec.
S.P. No. 1307).
Note: This accounting was approved by this
Honorable Court on March 3, 1964.
(c) The PCIB and its
undersigned lawyers are aware
of no report or accounting
submitted by Avelina A. Magno
of her acts as administratrix of
the estate of Linnie Jane Hodges
or special administratrix of the
estate of C.N. Hodges, unless it
is the accounting of Harold K.
Davies as special co-
administrator of the estate of
C.N. Hodges dated January 18,
1963 to which Miss Magno
manifested her conformity
(supra).
12. In the aforesaid agreement of January 24, 1964, Miss
Avelina A. Magno agreed to receive P10,000.00
"for her services as
administratrix of the estate of
Linnie Jane Hodges"
and in addition she agreed to be employed,
starting February 1, 1964, at
"a monthly salary of P500.00 for
her services as an employee of
both estates."
24 ems.
13. Under the aforesaid agreement of January
24, 1964 and the orders of this Honorable Court
of same date, the PCIB as administrator of the
estate of C. N. Hodges is entitled to the
exclusive possession of all records, properties
and assets in the name of C. N. Hodges as of
the date of his death on December 25, 1962
which were in the possession of the deceased
C. N. Hodges on that date and which then
passed to the possession of Miss Magno in her
capacity as Special Co-Administratrix of the
estate of C. N. Hodges or the possession of Joe
Hodges or Fernando P. Mirasol as co-
administrators of the estate of C. N. Hodges.
14. Because of Miss Magno's refusal to comply
with the reasonable request of PCIB concerning
the assets of the estate of C. N. Hodges, the
PCIB dismissed Miss Magno as an employee of
the estate of C. N. Hodges effective August 31,
1964. On September 1, 1964 Miss Magno
locked the premises at 206-208 Guanco Street
and denied the PCIB access thereto. Upon the
Urgent Motion of the PCIB dated September 3,
1964, this Honorable Court on September 7,
1964 ordered Miss Magno to reopen the
aforesaid premises at 206-208 Guanco Street
and permit the PCIB access thereto no later
than September 8, 1964.
15. The PCIB pursuant to the aforesaid orders
of this Honorable Court is again in physical
possession of all of the assets of the estate of
C. N. Hodges. However, the PCIB is not in
exclusive control of the aforesaid records,
properties and assets because Miss Magno
continues to assert the claims hereinabove
outlined in paragraph 6, continues to use her
own locks to the doors of the aforesaid
premises at 206-208 Guanco Street, Iloilo City
and continues to deny the PCIB its right to
know the combinations to the doors of the vault
and safes situated within the premises at 206-
208 Guanco Street despite the fact that said
combinations were known to only C. N. Hodges
during his lifetime.
16. The Philippine estate and inheritance taxes
assessed the estate of Linnie Jane Hodges
were assessed and paid on the basis that C. N.
Hodges is the sole beneficiary of the assets of
the estate of Linnie Jane Hodges situated in the
Philippines. Avelina A. Magno and her legal
counsel at no time have questioned the validity
of the aforesaid assessment and the payment
of the corresponding Philippine death taxes.
17. Nothing further remains to be done in the
estate of Linnie Jane Hodges except to resolve
the aforesaid Motion of October 5, 1963 and
grant the PCIB the exclusive possession and
control of all of the records, properties and
assets of the estate of C. N. Hodges.
18. Such assets as may have existed of the
estate of Linnie Jane Hodges were ordered by
this Honorable Court in special Proceedings
No. 1307 to be turned over and delivered to C.
N. Hodges alone. He in fact took possession of
them before his death and asserted and
exercised the right of exclusive ownership over
the said assets as the sole beneficiary of the
estate of Linnie Jane Hodges.
WHEREFORE, premises considered, the PCIB
respectfully petitions that this Honorable court:
(1) Set the Motion of October 5, 1963 for
hearing at the earliest possible date with notice
to all interested parties;
(2) Order Avelina A. Magno to submit an
inventory and accounting as Administratrix of
the Estate of Linnie Jane Hodges and Co-
Administratrix of the Estate of C. N. Hodges of
all of the funds, properties and assets of any
character belonging to the deceased Linnie
Jane Hodges and C. N. Hodges which have
come into her possession, with full details of
what she has done with them;
(3) Order Avelina A. Magno to turn over and
deliver to the PCIB as administrator of the
estate of C. N. Hodges all of the funds,
properties and assets of any character
remaining in her possession;
(4) Pending this Honorable Court's adjudication
of the aforesaid issues, order Avelina A. Magno
and her representatives to stop interferring with
the administration of the estate of C. N. Hodges
by the PCIB and its duly authorized
representatives;
(5) Enjoin Avelina A. Magno from working in the
premises at 206-208 Guanco Street, Iloilo City
as an employee of the estate of C. N. Hodges
and approve her dismissal as such by the PCIB
effective August 31, 1964;
(6) Enjoin James L. Sullivan, Attorneys
Manglapus and Quimpo and others allegedly
representing Miss Magno from entering the
premises at 206-208 Guanco Street, Iloilo City
or any other properties of C. N. Hodges without
the express permission of the PCIB;
(7) Order such other relief as this Honorable
Court finds just and equitable in the premises.
(Annex "U" Petition.)
On January 8, 1965, petitioner also filed a motion for "Official
Declaration of Heirs of Linnie Jane Hodges Estate" alleging:
COMES NOW Philippine Commercial and Industrial Bank
(hereinafter referred to as PCIB), as administrator of the estate
of the late C. N. Hodges, through the undersigned counsel,
and to this Honorable Court respectfully alleges that:
1. During their marriage, spouses Charles
Newton Hodges and Linnie Jane Hodges,
American citizens originally from the State of
Texas, U.S.A., acquired and accumulated
considerable assets and properties in the
Philippines and in the States of Texas and
Oklahoma, United States of America. All said
properties constituted their conjugal estate.
2. Although Texas was the domicile of origin of
the Hodges spouses, this Honorable Court, in
its orders dated March 31 and December 12,
1964 (CFI Record, Sp. Proc. No. 1307, pp. ----;
Sp. Proc. No. 1672, p. ----), conclusively found
and categorically ruled that said spouses had
lived and worked for more than 50 years in Iloilo
City and had, therefore, acquired a domicile of
choice in said city, which they retained until the
time of their respective deaths.
3. On November 22, 1952, Linnie Jane Hodges
executed in the City of Iloilo her Last Will and
Testament, a copy of which is hereto attached
as Annex "A". The bequests in said will
pertinent to the present issue are the second,
third, and fourth provisions, which we quote in
full hereunder.
SECOND: I give, devise and
bequeath all of the rest, residue
and remainder of my estate, both
personal and real, wherever
situated, or located, to my
husband, Charles Newton
Hodges, to have and to hold
unto him, my said husband
during his natural lifetime.
THIRD: I desire, direct and
provide that my husband,
Charles Newton Hodges, shall
have the right to manage,
control, use and enjoy said
estate during his lifetime, and he
is hereby given the right to make
any changes in the physical
properties of said estate by sale
of any part thereof which he
think best, and the purchase of
any other or additional property
as he may think best; to execute
conveyances with or without
general or special warranty,
conveying in fee simple or for
any other term or time, any
property which he may deem
proper to dispose of; to lease
any of the real property for oil,
gas and/or other minerals, and
all such deeds or leases shall
pass the absolute fee simple title
to the interest so conveyed in
such property as he may elect to
sell. All rents, emoluments and
income from said estate shall
belong to him, and he is further
authorized to use any part of the
principal of said estate as he
may need or desire. It is
provided herein, however, that
he shall not sell or otherwise
 dispose of any of the improved
property now owned by us
located at, in or near the City of
Lubbock, Texas, but he shall
have the full right to lease,
manage and enjoy the same
during his lifetime, as above
provided. He shall have the right
to sub-divide any farmland and
sell lots therein, and may sell
unimproved town lots.
FOURTH: At the death of my
said husband, Charles Newton
Hodges, I give, devise and
bequeath all of the rest, residue
and remainder of my estate both
real and personal, wherever
situated or located, to be equally
divided among my brothers and
sisters, share and share alike,
namely:
"Esta Higdon, Emma Howell,
Leonard Higdon, Roy Higdon,
Sadie Rascoe, Era Boman and
Nimray Higdon."
4. On November 14, 1953, C. N. Hodges
executed in the City of Iloilo his Last Will and
Testament, a copy of which is hereto attached
as Annex "B ". In said Will, C. N. Hodges
designated his wife, Linnie Jane Hodges, as his
beneficiary using the identical language she
used in the second and third provisos of her
Will, supra.
5. On May 23, 1957 Linnie Jane Hodges died in
Iloilo City, predeceasing her husband by more
than five (5) years. At the time of her death, she
had no forced or compulsory heir, except her
husband, C. N. Hodges. She was survived also
by various brothers and sisters mentioned in
her Will (supra), which, for convenience, we
shall refer to as the HIGDONS.
6. On June 28, 1957, this Honorable Court
admitted to probate the Last Will and Testament
of the deceased Linnie Jane Hodges (Annex
"A"), and appointed C. N. Hodges as executor
of her estate without bond. (CFI Record, Sp.
Proc. No. 1307, pp. 24-25). On July 1, 1957,
this Honorable Court issued letters
testamentary to C. N. Hodges in the estate of
Linnie Jane Hodges. (CFI Record, Sp. Proc.
No. 1307, p. 30.)
7. The Will of Linnie Jane Hodges, with respect
to the order of succession, the amount of
successional rights, and the intrinsic of its
testamentary provisions, should be governed by
Philippine laws because:
(a) The testatrix, Linnie Jane
Hodges, intended Philippine
laws to govern her Will;
(b) Article 16 of the Civil Code
provides that "the national law of
the person whose succession is
under consideration, whatever
may be the nature of the
property and regardless of the
country wherein said property
may be found", shall prevail.
However, the Conflict of Law of
Texas, which is the "national law"
of the testatrix, Linnie Jane
Hodges, provide that the
domiciliary law (Philippine law —
see paragraph 2, supra) should
govern the testamentary
dispositions and successional
rights over movables (personal
properties), and the law of the
situs of the property (also
Philippine law as to properties
located in the Philippines) with
regards immovable (real
properties). Thus applying the
"Renvoi Doctrine", as approved
and applied by our Supreme
Court in the case of "In The
Matter Of The Testate Estate of
Eduard E. Christensen", G.R.
No.
L-16749, promulgated January
31, 1963, Philippine law should
apply to the Will of Linnie Jane
Hodges and to the successional
rights to her estate insofar as
her movable and immovable ass
ets in the Philippines are
concerned. We shall not, at this
stage, discuss what law should
govern the assets of Linnie Jane
Hodges located in Oklahoma
and Texas, because the only
assets in issue in this motion are
those within the jurisdiction of
this motion Court in the two
above-captioned Special
Proceedings.
8. Under Philippine and Texas law, the conjugal
or community estate of spouses shall, upon
dissolution, be divided equally between them.
Thus, upon the death of Linnie Jane Hodges on
May 23, 1957, one-half (1/2) of the entirety of
the assets of the Hodges spouses constituting
their conjugal estate pertained automatically to
Charles Newton Hodges, not by way of
inheritance, but in his own right as partner in
the conjugal partnership. The other one-half
(1/2) portion of the conjugal estate constituted
the estate of Linnie Jane Hodges. This is the
only portion of the conjugal estate capable of
inheritance by her heirs.
9. This one-half (1/2) portion of the conjugal
assets pertaining to Linnie Jane Hodges
cannot, under a clear and specific provision of
her Will, be enhanced or increased by income,
earnings, rents, or emoluments accruing after
her death on May 23, 1957. Linnie Jane
Hodges' Will provides that "all rents,
emoluments and income from said estate shall
belong to him (C. N. Hodges) and he is further
authorized to use any part of the principal of
said estate as he may need or desire."
(Paragraph 3, Annex "A".) Thus, by specific
provision of Linnie Jane Hodges' Will, "all rents,
emoluments and income" must be credited to
the one-half (1/2) portion of the conjugal estate
pertaining to C. N. Hodges. Clearly, therefore,
the estate of Linnie Jane Hodges, capable of
inheritance by her heirs, consisted exclusively
of no more than one-half (1/2) of the conjugal
estate, computed as of the time of her death on
May 23, 1957.
10. Articles 900, 995 and 1001 of the New Civil
Code provide that the surviving spouse of a
deceased leaving no ascendants or
descendants is entitled, as a matter of right and
by way of irrevocable legitime, to at least one-
half (1/2) of the estate of the deceased, and no
testamentary disposition by the deceased can
legally and validly affect this right of the
surviving spouse. In fact, her husband is
entitled to said one-half (1/2) portion of her
estate by way of legitime. (Article 886, Civil
Code.) Clearly, therefore, immediately upon the
death of Linnie Jane Hodges, C. N. Hodges
was the owner of at least three-fourths (3/4) or
seventy-five (75%) percent of all of the conjugal
assets of the spouses, (1/2 or 50% by way of
conjugal partnership share and 1/4 or 25% by
way of inheritance and legitime) plus all "rents,
emoluments and income" accruing to said
conjugal estate from the moment of Linnie Jane
Hodges' death (see paragraph 9, supra).
11. The late Linnie Jane Hodges designated her
husband C.N. Hodges as her sole and
exclusive heir with full authority to do what he
pleased, as exclusive heir and owner of all the
assets constituting her estate, except only with
regards certain properties "owned by us,
located at, in or near the City of Lubbock,
Texas". Thus, even without relying on our laws
of succession and legitime, which we have cited
above, C. N. Hodges, by specific testamentary
designation of his wife, was entitled to the
entirely to his wife's estate in the Philippines.
12. Article 777 of the New Civil Code provides
that "the rights of the successor are transmitted
from the death of the decedent". Thus, title to
the estate of Linnie Jane Hodges was
transmitted to C. N. Hodges immediately upon
her death on May 23, 1957. For the
convenience of this Honorable Court, we
attached hereto as Annex "C" a graph of how
the conjugal estate of the spouses Hodges
should be divided in accordance with Philippine
law and the Will of Linnie Jane Hodges.
13. In his capacity as sole heir and successor to
the estate of Linnie Jane Hodges as above-
stated, C. N. Hodges, shortly after the death of
Linnie Jane Hodges, appropriated to himself the
entirety of her estate. He operated all the
assets, engaged in business and performed all
acts in connection with the entirety of the
conjugal estate, in his own name alone, just as
he had been operating, engaging and doing
while the late Linnie Jane Hodges was still
alive. Upon his death on December 25, 1962,
therefore, all said conjugal assets were in his
sole possession and control, and registered in
his name alone, not as executor, but as
exclusive owner of all said assets.
14. All these acts of C. N. Hodges were
authorized and sanctioned expressly and
impliedly by various orders of this Honorable
Court, as follows:
(a) In an Order dated May 27, 1957, this
Honorable Court ruled that C. N. Hodges "is
allowed or authorized to continue the business
in which he was engaged, and to perform acts
which he had been doing while the deceased
was living." (CFI Record, Sp. Proc. No. 1307, p.
11.)
(b) On December 14, 1957, this Honorable
Court, on the basis of the following fact, alleged
in the verified Motion dated December 11, 1957
filed by Leon P. Gellada as attorney for the
executor C. N. Hodges:
That herein Executor, (is) not only part owner of
the properties left as conjugal, but also, the
successor to all the properties left by the
deceased Linnie Jane Hodges.' (CFI Record,
Sp. Proc. No. 1307, p. 44; emphasis supplied.)
issued the following order:
"As prayed for by Attorney Gellada, counsel for
the Executor, for the reasons stated in his
motion dated December 11, 1957, which the
Court considers well taken, all the sales,
conveyances, leases and mortgages of all the
properties left by the deceased Linnie Jane
Hodges executed by the Executor, Charles
Newton Hodges are hereby APPROVED. The
said Executor is further authorized to execute
subsequent sales, conveyances, leases and
mortgages of the properties left by the said
deceased Linnie Jane Hodges in consonance
with the wishes contained in the last will and
testament of the latter." (CFI Record. Sp. Proc.
No. 1307, p. 46; emphasis supplied.)
24 ems
(c) On April 21, 1959, this Honorable Court
approved the verified inventory and accounting
submitted by C. N. Hodges through his counsel
Leon P. Gellada on April 14, 1959 wherein he
alleged among other things,
"That no person interested in the
Philippines of the time and place
of examining the herein account,
be given notice, as herein
executor is the only devisee or
legatee of the deceased, in
accordance with the last will and
testament already probated by
the Honorable Court." (CFI
Record, Sp. Proc. No. 1307, pp.
77-78; emphasis supplied.)
(d) On July 20, 1960, this Honorable Court
approved the verified "Annual Statement of
Account" submitted by C. N. Hodges through
his counsel Leon P. Gellada on July 21, 1960
wherein he alleged, among other things.
"That no person interested in the
Philippines of the time and place
of examining the herein account,
be given notice as herein
executor is the only devisee or
 legatee of the deceased Linnie
Jane Hodges, in accordance
with the last will and testament
ofthe deceased, already
probated by this Honorable
Court." (CFI Record, Sp. Proc.
No. 1307, pp. 81-82; emphasis
supplied.)
(e) On May 2, 1961, this Honorable Court
approved the verified "Annual Statement of
Account By The Executor For the Year 1960"
submitted through Leon P. Gellada on April 20,
1961 wherein he alleged:
"That no person interested in the Philippines be
given notice, ofthe time and place of examining
the herein account, as herein executor is the
only devisee or legatee of the deceased Linnie
Jane Hodges, in accordance with the last will
and testament ofthe deceased, already
probated by this Honorable Court." (CFI
Record, Sp. Proc. No. 1307, pp. 90-91;
emphasis supplied.)
15. Since C. N. Hodges was the sole and
exclusive heir of Linnie Jane Hodges, not only
by law, but in accordance with the dispositions
of her will, there was, in fact, no need to
liquidate the conjugal estate of the spouses.
The entirely of said conjugal estate pertained to
him exclusively, therefore this Honorable Court
sanctioned and authorized, as above-stated, C.
N. Hodges to manage, operate and control all
the conjugal assets as owner.
16. By expressly authorizing C. N. Hodges to
act as he did in connection with the estate of his
wife, this Honorable Court has (1) declared C.
N. Hodges as the sole heir of the estate of
Linnie Jane Hodges, and (2) delivered and
distributed her estate to C. N. Hodges as sole
heir in accordance with the terms and
conditions of her Will. Thus, although the
"estate of Linnie Jane Hodges" still exists as a
legal and juridical personality, it had no assets
or properties located in the Philippines
registered in its name whatsoever at the time of
the death of C. N. Hodges on December 25,
1962.
17. The Will of Linnie Jane Hodges (Annex "A"),
fourth paragraph, provides as follows:
"At the death of my said
husband, Charles Newton
Hodges, I give, devise and
bequeath all of the rest, residue
and remainder of my estate both
real and personal, wherever
situated or located, to be equally
divided among my brothers and
sisters, share and share alike,
namely:
"Esta Higdon,
Emma Howell,
Leonard Higdon,
Roy Higdon,
Sadie Rascoe,
Era Boman and
Nimray Higdon."
Because of the facts hereinabove set out there
is no "rest, residue and remainder", at least to
the extent of the Philippine assets, which
remains to vest in the HIGDONS, assuming this
proviso in Linnie Jane Hodges' Will is valid and
binding against the estate of C. N. Hodges.
18. Any claims by the HIGDONS under the
above-quoted provision of Linnie Jane Hodges'
Will is without merit because said provision is
void and invalid at least as to the Philippine
assets. It should not, in anyway, affect the rights
of the estate of C. N. Hodges or his heirs to the
properties, which C. N. Hodges acquired by
way of inheritance from his wife Linnie Jane
Hodges upon her death.
(a) In spite of the above-
mentioned provision in the Will of
Linnie Jane Hodges, C. N.
Hodges acquired, not merely a
usufructuary right, but absolute
title and ownership to her estate.
In a recent case involving a very
similar testamentary provision,
the Supreme Court held that the
heir first designated acquired full
ownership of the property
bequeathed by the will, not mere
usufructuary rights. (Consolacion
Florentino de Crisologo, et al.,
vs. Manuel Singson, G. R. No. L-
13876, February 28, 1962.)
(b) Article 864, 872 and 886 of
the New Civil Code clearly
provide that no charge, condition
or substitution whatsoever upon
the legitime can be imposed by a
testator. Thus, under the
provisions of Articles 900, 995
and 1001 of the New Civil Code,
the legitime of a surviving
spouse is 1/2 of the estate of the
deceased spouse. Consequently,
the above-mentioned provision
in the Will of Linnie Jane Hodges
is clearly invalid insofar as the
legitime of C. N. Hodges was
concerned, which consisted of
1/2 of the 1/2 portion of the
conjugal estate, or 1/4 of the
entire conjugal estate of the
deceased.
(c) There are generally only two
kinds of substitution provided for
and authorized by our Civil Code
(Articles 857-870), namely,
(1) simple or
common substitution, sometimes
referred to as vulgar substitution
(Article 859), and (2)
fideicommissary substitution
(Article 863). All other
substitutions are merely
variations of these. The
substitution provided for by
paragraph four of the Will of
Linnie Jane Hodges is not
fideicommissary substitution,
because there is clearly no
obligation on the part of C. N.
Hodges as the first heir
designated, to preserve the
properties for the substitute
heirs. (Consolacion Florentino de
Crisologo et al. vs. Manuel
Singson, G. R. No.
L-13876.) At most, it is
a vulgar or simple substitution.
However, in order that
a vulgar or simple substitution
can be valid, three alternative
conditions must be present,
namely, that the first designated
heir (1) should die before the
testator; or (2) should not wish to
accept the inheritance; or (3)
should be incapacitated to do so.
None of these conditions apply
to C. N. Hodges, and, therefore,
the substitution provided for by
the above-quoted provision of
the Will is not authorized by the
Code, and, therefore, it is void.
Manresa, commenting on these
kisses of substitution,
meaningfully stated that: "...
cuando el testador instituyeun
primer heredero, y por
fallecimiento de este nombra
otro u otros, ha de entenderse
que estas segundas
designaciones solo han de llegar
a tener efectividad en el caso de
que el primer instituido muera
antes que el testador, fuera o no
esta su verdadera intencion. ...".
(6 Manresa, 7 a ed., pag. 175.)
In other words, when another
heir is designated to inherit upon
the death of a first heir, the
second designation can have
effect only in case the first
instituted heir dies before the
testator, whether or not that was
the true intention of said testator.
Since C. N. Hodges did not die
before Linnie Jane Hodges, the
provision for substitution
contained in Linnie Jane Hodges'
Willis void.
(d) In view of the invalidity of the
provision for substitution in the
Will, C. N. Hodges' inheritance to
the entirety of the Linnie Jane
Hodges estate is irrevocable and
final.
19. Be that as it may, at the time of C. N.
Hodges' death, the entirety of the conjugal
estate appeared and was registered in him
exclusively as owner. Thus, the presumption is
that all said assets constituted his estate.
Therefore —
(a) If the HIGDONS wish to enforce their
dubious rights as substituted heirs to 1/4 of the
conjugal estate (the other 1/4 is covered by the
legitime of C. N. Hodges which can not be
affected by any testamentary disposition), their
remedy, if any, is to file their claim against the
estate of C. N. Hodges, which should be
entitled at the present time to full custody and
control of all the conjugal estate of the spouses.
(b) The present proceedings, in which two
estates exist under separate administration,
where the administratrix of the Linnie Jane
Hodges estate exercises an officious right to
object and intervene in matters affecting
exclusively the C. N. Hodges estate, is
anomalous.
WHEREFORE, it is most respectfully prayed
that after trial and reception of evidence, this
Honorable Court declare:
1. That the estate of Linnie Jane Hodges was
and is composed exclusively of one-half (1/2)
share in the conjugal estate of the spouses
Hodges, computed as of the date of her death
on May 23, 1957;
2. That the other half of the conjugal estate
pertained exclusively to C. N. Hodges as his
share as partner in the conjugal partnership;
3. That all "rents, emoluments and income" of
the conjugal estate accruing after Linnie Jane
Hodges' death pertains to C. N. Hodges;
4. That C. N. Hodges was the sole and
exclusive heir of the estate of Linnie Jane
Hodges;
5. That, therefore, the entire conjugal estate of
the spouses located in the Philippines, plus all
the "rents, emoluments and income" above-
mentioned, now constitutes the estate of C. N.
Hodges, capable of distribution to his heirs
upon termination of Special Proceedings No.
1672;
6. That PCIB, as administrator of the estate of
C. N. Hodges, is entitled to full and exclusive
custody, control and management of all said
properties; and
7. That Avelina A. Magno, as administratrix of
the estate of Linnie Jane Hodges, as well as the
HIGDONS, has no right to intervene or
participate in the administration of the C. N.
Hodges estate.
PCIB further prays for such and other relief as
may be deemed just and equitable in the
premises."
(Record, pp. 265-277)
Before all of these motions of petitioner could be resolved,
however, on December 21, 1965, private respondent Magno
filed her own "Motion for the Official Declaration of Heirs of the
Estate of Linnie Jane Hodges" as follows:
COMES NOW the Administratrix of the Estate
of Linnie Jane Hodges and, through
undersigned counsel, unto this Honorable Court
most respectfully states and manifests:
1. That the spouses Charles Newton Hodges
and Linnie Jane Hodges were American
citizens who died at the City of Iloilo after
having amassed and accumulated extensive
properties in the Philippines;
2. That on November 22, 1952, Linnie Jane
Hodges executed a last will and testament (the
original of this will now forms part of the records
of these proceedings as Exhibit "C" and
appears as Sp. Proc. No. 1307, Folio I, pp. 17-
18);
3. That on May 23, 1957, Linnie Jane Hodges
died at the City of Iloilo at the time survived by
her husband, Charles Newton Hodges, and
several relatives named in her last will and
testament;
4. That on June 28, 1957, a petition therefor
having been priorly filed and duly heard, this
Honorable Court issued an order admitting to
probate the last will and testament of Linnie
Jane Hodges (Sp. Proc. No. 1307, Folio I, pp.
24-25, 26-28);
5. That the required notice to creditors and to all
others who may have any claims against the
decedent, Linnie Jane Hodges has already
been printed, published and posted (Sp. Proc.
No. 1307, Folio I. pp. 34-40) and the
reglamentary period for filing such claims has
long ago lapsed and expired without any claims
having been asserted against the estate of
Linnie Jane Hodges, approved by the
Administrator/Administratrix of the said estate,
nor ratified by this Honorable Court;
6. That the last will and testament of Linnie
Jane Hodges already admitted to probate
contains an institution of heirs in the following
words:
"SECOND: I give, devise and
bequeath all of the rest, residue
and remainder of my estate, both
personal and real, wherever
situated or located, to my
beloved husband, Charles
Newton Hodges to have and to
hold unto him, my said husband,
during his natural lifetime.
THIRD: I desire, direct and
provide that my husband,
Charles Newton Hodges, shall
have the right to manage,
control, use and enjoy said
estate during his lifetime, and, he
is hereby given the right to make
any changes in the physical
properties of said estate, by sale
of any part thereof which he may
think best, and the purchase of
any other or additional property
as he may think best; to execute
conveyances with or without
general or special warranty,
conveying in fee simple or for
any other term or time, any
property which he may deem
proper to dispose of; to lease
any of the real property for oil,
gas and/or other minerals, and
all such deeds or leases shall
pass the absolute fee simple title
to the interest so conveyed in
such property as he elect to sell.
All rents, emoluments and
income from said estate shall
belong to him, and he is further
authorized to use any part of the
principal of said estate as he
may need or desire. It is
provided herein, however, that
he shall not sell or otherwise
dispose of any of the improved
property now owned by us
located at, in or near the City of
Lubbock Texas, but he shall
have the full right to lease,
manage and enjoy the same
during his lifetime, above
provided. He shall have the right
to subdivide any farm land and
sell lots therein, and may sell
unimproved town lots.
FOURTH: At the death of my
said husband, Charles Newton
Hodges, I give, devise and
bequeath all of the rest, residue
and remainder of my estate, both
real and personal, wherever
situated or located, to be equally
divided among my brothers and
sisters, share and share alike,
namely:
Esta Higdon, Emma Howell,
Leonard Higdon, Roy Higdon,
Sadie Rascoe, Era Boman and
Nimroy Higdon.
FIFTH: In case of the death of
any of my brothers and/or sisters
named in item Fourth, above,
prior to the death of my husband,
Charles Newton Hodges, then it
is my will and bequest that the
heirs of such deceased brother
or sister shall take jointly the
share which would have gone to
such brother or sister had she or
he survived."
7. That under the provisions of the last will and
testament already above-quoted, Linnie Jane
Hodges gave a life-estate or a usufruct over all
her estate to her husband, Charles Newton
Hodges, and a vested remainder-estate or the
naked title over the same estate to her relatives
named therein;
8. That after the death of Linnie Jane Hodges
and after the admission to probate of her last
will and testament, but during the lifetime of
Charles Newton Hodges, the said Charles
Newton Hodges with full and complete
knowledge of the life-estate or usufruct
conferred upon him by the will since he was
then acting as Administrator of the estate and
later as Executor of the will of Linnie Jane
Hodges, unequivocably and clearly through oral
and written declarations and sworn public
statements, renounced, disclaimed and
repudiated his life-estate and usufruct over the
estate of Linnie Jane Hodges;
9. That, accordingly, the only heirs left to
receive the estate of Linnie Jane Hodges
pursuant to her last will and testament, are her
named brothers and sisters, or their heirs, to
wit: Esta Higdon, Emma Howell, Leonard
Higdon, Aline Higdon and David Higdon, the
latter two being the wife and son respectively of
the deceased Roy Higdon, Sadie Rascoe Era
Boman and Nimroy Higdon, all of legal ages,
American citizens, with residence at the State
of Texas, United States of America;
10. That at the time of the death of Linnie Jane
Hodges on May 23, 1957, she was the co-
owner (together with her husband Charles
Newton Hodges) of an undivided one-half
interest in their conjugal properties existing as
of that date, May 23, 1957, which properties are
now being administered sometimes jointly and
sometimes separately by the Administratrix of
the estate of Linnie Jane Hodges and/or the
Administrator of the estate of C. N. Hodges but
all of which are under the control and
supervision of this Honorable Court;
11. That because there was no separation or
segregation of the interests of husband and
wife in the combined conjugal estate, as there
has been no such separation or segregation up
to the present, both interests have continually
earned exactly the same amount of "rents,
emoluments and income", the entire estate
having been continually devoted to the
business of the spouses as if they were alive;
12. That the one-half interest of Linnie Jane
Hodges in the combined conjugal estate was
earning "rents, emoluments and income" until
her death on May 23, 1957, when it ceased to
be saddled with any more charges or
expenditures which are purely personal to her
in nature, and her estate kept on earning such
"rents, emoluments and income" by virtue of
their having been expressly renounced,
disclaimed and repudiated by Charles Newton
Hodges to whom they were bequeathed for life
under the last will and testament of Linnie Jane
Hodges;
13. That, on the other hand, the one-half
interest of Charles Newton Hodges in the
combined conjugal estate existing as of May
23, 1957, while it may have earned exactly the
same amount of "rents, emoluments and
income" as that of the share pertaining to Linnie
Jane Hodges, continued to be burdened by
charges, expenditures, and other dispositions
which are purely personal to him in nature, until
the death of Charles Newton Hodges himself on
December 25, 1962;
14. That of all the assets of the combined
conjugal estate of Linnie Jane Hodges and
Charles Newton Hodges as they exist today, the
estate of Linnie Jane Hodges is clearly entitled
to a portion more than fifty percent (50%) as
compared to the portion to which the estate of
Charles Newton Hodges may be entitled, which
portions can be exactly determined by the
following manner:
a. An inventory must be made of
the assets of the combined
conjugal estate as they existed
on the death of Linnie Jane
Hodges on May 23, 1957 —
one-half of these assets belong
to the estate of Linnie Jane
Hodges;
b. An accounting must be made
of the "rents, emoluments and
income" of all these assets —
again one-half of these belong to
the estate of Linnie Jane
Hodges;
c. Adjustments must be made,
after making a deduction of
charges, disbursements and
other dispositions made by
Charles Newton Hodges
personally and for his own
personal account from May 23,
1957 up to December 25, 1962,
as well as other charges,
disbursements and other
dispositions made for him and in
his behalf since December 25,
1962 up to the present;
15. That there remains no other matter for
disposition now insofar as the estate of Linnie
Jane Hodges is concerned but to complete the
liquidation of her estate, segregate them from
the conjugal estate, and distribute them to her
heirs pursuant to her last will and testament.
WHEREFORE, premises considered, it is most
respectfully moved and prayed that this
Honorable Court, after a hearing on the factual
matters raised by this motion, issue an order:
a. Declaring the following persons, to wit: Esta
Higdon, Emma Howell, Leonard Higdon, Aline
Higdon, David Higdon, Sadie Rascoe, Era
Boman and Nimroy Higdon, as the sole heirs
under the last will and testament of Linnie Jane
Hodges and as the only persons entitled to her
estate;
b. Determining the exact value of the estate of
Linnie Jane Hodges in accordance with the
system enunciated in paragraph 14 of this
motion;
c. After such determination ordering its
segregation from the combined conjugal estate
and its delivery to the Administratrix of the
estate of Linnie Jane Hodges for distribution to
the heirs to whom they properly belong and
appertain.
(Green Record on Appeal, pp. 382-391)
whereupon, instead of further pressing on its motion of
January 8, 1965 aforequoted, as it had been doing before,
petitioner withdrew the said motion and in addition to opposing
the above motion of respondent Magno, filed a motion on April
22, 1966 alleging in part that:
1. That it has received from the counsel for the
administratrix of the supposed estate of Linnie
Jane Hodges a notice to set her "Motion for
Official Declaration of Heirs of the Estate of
Linnie Jane Hodges";
2. That before the aforesaid motion could be
heard, there are matters pending before this
Honorable Court, such as:
a. The examination already
ordered by this Honorable Court
of documents relating to the
allegation of Avelina Magno that
Charles Newton Hodges
"through ... written declarations
and sworn public statements,
renounced, disclaimed and
repudiated life-estate and
usufruct over the estate of Linnie
Jane Hodges';
b. That "Urgent Motion for An
Accounting and Delivery to the
Estate of C. N. Hodges of All the
Assets of the Conjugal
Partnership of the Deceased
Linnie Jane Hodges and C. N.
Hodges Existing as of May 23,
1957 Plus All the Rents,
Emoluments and Income
Therefrom";
c. Various motions to resolve the
aforesaid motion;
d. Manifestation of September
14, 1964, detailing acts of
interference of Avelina Magno
under color of title as
administratrix of the Estate of
Linnie Jane Hodges;
which are all prejudicial, and which involve no
issues of fact, all facts involved therein being
matters of record, and therefore require only the
resolution of questions of law;
3. That whatever claims any alleged heirs or
other persons may have could be very easily
threshed out in the Testate Estate of Charles
Newton Hodges;
4. That the maintenance of two separate estate
proceedings and two administrators only results
in confusion and is unduly burdensome upon
the Testate Estate of Charles Newton Hodges,
particularly because the bond filed by Avelina
Magno is grossly insufficient to answer for the
funds and property which she has inofficiously
collected and held, as well as those which she
continues to inofficiously collect and hold;
5. That it is a matter of record that such state of
affairs affects and inconveniences not only the
estate but also third-parties dealing with it;"
(Annex "V", Petition.)
and then, after further reminding the court, by quoting them, of
the relevant allegations of its earlier motion of September 14,
1964, Annex U, prayed that:
 1. Immediately order Avelina Magno to account
for and deliver to the administrator of the Estate
of C. N. Hodges all the assets of the conjugal
partnership of the deceased Linnie Jane
Hodges and C. N. Hodges, plus all the rents,
emoluments and income therefrom;
2. Pending the consideration of this motion,
immediately order Avelina Magno to turn over
all her collections to the administrator Philippine
Commercial & Industrial Bank;
3. Declare the Testate Estate of Linnie Jane
Hodges (Sp. Proc. No. 1307) closed;
4. Defer the hearing and consideration of the
motion for declaration of heirs in the Testate
Estate of Linnie Jane Hodges until the matters
hereinabove set forth are resolved.
(Prayer, Annex "V" of Petition.)
On October 12, 1966, as already indicated at the outset of this
opinion, the respondent court denied the foregoing motion,
holding thus:
ORDER
On record is a motion (Vol. X, Sp. 1672, pp.
4379-4390) dated April 22, 1966 of
administrator PCIB praying that (1) Immediately
order Avelina Magno to account for and deliver
to the administrator of the estate of C. N.
Hodges all assets of the conjugal partnership of
the deceased Linnie Jane Hodges and C. N.
Hodges, plus all the rents, emoluments and
income therefrom; (2) Pending the
consideration of this motion, immediately order
Avelina Magno to turn over all her collections to
the administrator PCIB; (3) Declare the Testate
Estate of Linnie Jane Hodges (Sp. Proc. No.
1307) closed; and (4) Defer the hearing and
consideration of the motion for declaration of
heirs in the Testate Estate of Linnie Jane
Hodges until the matters hereinabove set forth
are resolved.
This motion is predicated on the fact that there
are matters pending before this court such as
(a) the examination already ordered by this
Honorable Court of documents relating to the
allegation of Avelina Magno that Charles
Newton Hodges thru written declaration and
sworn public statements renounced, disclaimed
and repudiated his life-estate and usufruct over
the estate of Linnie Jane Hodges (b) the urgent
motion for accounting and delivery to the estate
of C. N. Hodges of all the assets of the conjugal
partnership of the deceased Linnie Jane
Hodges and C. N. Hodges existing as of May
23, 1957 plus all the rents, emoluments and
income therefrom; (c) various motions to
resolve the aforesaid motion; and (d)
manifestation of September 14, 1964, detailing
acts of interference of Avelina Magno under
color of title as administratrix of the estate of
Linnie Jane Hodges.
These matters, according to the instant motion,
are all pre-judicial involving no issues of facts
and only require the resolution of question of
law; that in the motion of October 5, 1963 it is
alleged that in a motion dated December 11,
1957 filed by Atty. Leon Gellada as attorney for
the executor C. N. Hodges, the said executor C.
N. Hodges is not only part owner of the
properties left as conjugal but also the
successor to all the properties left by the
deceased Linnie Jane Hodges.
Said motion of December 11, 1957 was
approved by the Court in consonance with the
wishes contained in the last will and testament
of Linnie Jane Hodges.
That on April 21, 1959 this Court approved the
inventory and accounting submitted by C. N.
Hodges thru counsel Atty. Leon Gellada in a
motion filed on April 14, 1959 stating therein
that executor C. N. Hodges is the only devisee
or legatee of Linnie Jane Hodges in accordance
with the last will and testament already
probated by the Court.
That on July 13, 1960 the Court approved the
annual statement of accounts submitted by the
executor C. N. Hodges thru his counsel Atty.
Gellada on July 21, 1960 wherein it is stated
that the executor, C. N. Hodges is the only
devisee or legatee of the deceased Linnie Jane
Hodges; that on May 2, 1961 the Court
approved the annual statement of accounts
submitted by executor, C. N. Hodges for the
year 1960 which was submitted by Atty. Gellada
on April 20, 1961 wherein it is stated that
executor Hodges is the only devisee or legatee
of the deceased Linnie Jane Hodges;
That during the hearing on September 5 and 6,
1963 the estate of C. N. Hodges claimed all the
assets belonging to the deceased spouses
Linnie Jane Hodges and C. N. Hodges situated
in the Philippines; that administratrix Magno has
executed illegal acts to the prejudice of the
testate estate of C. N. Hodges.
An opposition (Sp. 1672, Vol. X, pp. 4415-4421)
dated April 27, 1966 of administratrix Magno
has been filed asking that the motion be denied
for lack of merit and that the motion for the
official declaration of heirs of the estate of
Linnie Jane Hodges be set for presentation and
reception of evidence.
It is alleged in the aforesaid opposition that the
examination of documents which are in the
possession of administratrix Magno can be
made prior to the hearing of the motion for the
official declaration of heirs of the estate of
Linnie Jane Hodges, during said hearing.
That the matters raised in the PCIB's motion of
October 5, 1963 (as well as the other motion)
dated September 14, 1964 have been
consolidated for the purpose of presentation
and reception of evidence with the hearing on
the determination of the heirs of the estate of
Linnie Jane Hodges. It is further alleged in the
opposition that the motion for the official
declaration of heirs of the estate of Linnie Jane
Hodges is the one that constitutes a prejudicial
question to the motions dated October 5 and
September 14, 1964 because if said motion is
found meritorious and granted by the Court, the
PCIB's motions of October 5, 1963 and
September 14, 1964 will become moot and
academic since they are premised on the
assumption and claim that the only heir of
Linnie Jane Hodges was C. N. Hodges.
That the PCIB and counsel are estopped from
further questioning the determination of heirs in
the estate of Linnie Jane Hodges at this stage
since it was PCIB as early as January 8, 1965
which filed a motion for official declaration of
heirs of Linnie Jane Hodges that the claim of
any heirs of Linnie Jane Hodges can be
determined only in the administration
proceedings over the estate of Linnie Jane
Hodges and not that of C. N. Hodges, since the
heirs of Linnie Jane Hodges are claiming her
estate and not the estate of C. N. Hodges.
A reply (Sp. 1672, Vol. X, pp. 4436-4444) dated
May 11, 1966 of the PCIB has been filed
alleging that the motion dated April 22, 1966 of
the PCIB is not to seek deferment of the
hearing and consideration of the motion for
official declaration of heirs of Linnie Jane
Hodges but to declare the testate estate of
Linnie Jane Hodges closed and for
administratrix Magno to account for and deliver
to the PCIB all assets of the conjugal
partnership of the deceased spouses which has
come to her possession plus all rents and
income.
A rejoinder (Sp. 1672, Vol. X, pp. 4458-4462) of
administratrix Magno dated May 19, 1966 has
been filed alleging that the motion dated
December 11, 1957 only sought the approval of
all conveyances made by C. N. Hodges and
requested the Court authority for all subsequent
conveyances that will be executed by C. N.
Hodges; that the order dated December 14,
1957 only approved the conveyances made by
C. N. Hodges; that C. N. Hodges represented
by counsel never made any claim in the estate
of Linnie Jane Hodges and never filed a motion
to declare himself as the heir of the said Linnie
Jane Hodges despite the lapse of more than
five (5) years after the death of Linnie Jane
Hodges; that it is further alleged in the rejoinder
that there can be no order of adjudication of the
estate unless there has been a prior express
declaration of heirs and so far no declaration of
heirs in the estate of Linnie Jane Hodges (Sp.
1307) has been made.
Considering the allegations and arguments in
the motion and of the PCIB as well as those in
the opposition and rejoinder of administratrix
Magno, the Court finds the opposition and
rejoinder to be well taken for the reason that so
far there has been no official declaration of
heirs in the testate estate of Linnie Jane
Hodges and therefore no disposition of her
estate.
WHEREFORE, the motion of the PCIB dated
April 22, 1966 is hereby DENIED.
(Annex "W", Petition)
In its motion dated November 24, 1966 for the reconsideration
of this order, petitioner alleged inter alia that:
It cannot be over-stressed that the motion of
December 11, 1957 was based on the fact that:
a. Under the last will and
testament of the deceased,
Linnie Jane Hodges, the late
Charles Newton Hodges was the
sole heir instituted insofar as her
properties in the Philippines are
concerned;
b. Said last will and testament
vested upon the said late
Charles Newton Hodges rights
over said properties which, in
sum, spell ownership, absolute
and in fee simple;
c. Said late Charles Newton
Hodges was, therefore, "not only
part owner of the properties left
as conjugal, but also, the
successor to all the properties
left by the deceased Linnie Jane
Hodges.
Likewise, it cannot be over-stressed that the
aforesaid motion was granted by this Honorable
Court "for the reasons stated" therein.
Again, the motion of December 11, 1957 prayed
that not only "all the sales, conveyances,
leases, and mortgages executed by" the late
Charles Newton Hodges, but also all "the
subsequent sales, conveyances, leases, and
mortgages ..." be approved and authorized.
This Honorable Court, in its order of December
14, 1957, "for the reasons stated" in the
aforesaid motion, granted the same, and not
only approved all the sales, conveyances,
leases and mortgages of all properties left by
the deceased Linnie Jane Hodges executed by
the late Charles Newton Hodges, but also
authorized "all subsequent sales, conveyances,
leases and mortgages of the properties left by
the said deceased Linnie Jane Hodges. (Annex
"X", Petition)
and reiterated its fundamental pose that the Testate Estate of
Linnie Jane Hodges had already been factually, although not
legally, closed with the virtual declaration of Hodges and
adjudication to him, as sole universal heir of all the properties
of the estate of his wife, in the order of December 14, 1957,
Annex G. Still unpersuaded, on July 18, 1967, respondent
court denied said motion for reconsideration and held that "the
court believes that there is no justification why the order of
October 12, 1966 should be considered or modified", and, on
July 19, 1967, the motion of respondent Magno "for official
declaration of heirs of the estate of Linnie Jane Hodges",
already referred to above, was set for hearing.
In consequence of all these developments, the present petition
was filed on August 1, 1967 (albeit petitioner had to pay
another docketing fee on August 9, 1967, since the orders in
question were issued in two separate testate estate
proceedings, Nos. 1307 and 1672, in the court below).
Together with such petition, there are now pending before Us
for resolution herein, appeals from the following:
1. The order of December 19, 1964 authorizing
payment by respondent Magno of overtime pay,
(pp. 221, Green Record on Appeal) together
with the subsequent orders of January 9, 1965,
(pp. 231-232,id.) October 27, 1965, (pp.
227, id.) and February 15, 1966 (pp. 455-
456, id.) repeatedly denying motions for
reconsideration thereof.
2. The order of August 6, 1965 (pp. 248, id.)
requiring that deeds executed by petitioner to
be co-signed by respondent Magno, as well as
the order of October 27, 1965 (pp. 276-277)
denying reconsideration.
3. The order of October 27, 1965 (pp. 292-
295, id.) enjoining the deposit of all collections
in a joint account and the same order of
February 15, 1966 mentioned in No. 1 above
which included the denial of the reconsideration
of this order of October 27, 1965.
4. The order of November 3, 1965 (pp. 313-
320, id.) directing the payment of attorney's
fees, fees of the respondent administratrix, etc.
and the order of February 16, 1966 denying
reconsideration thereof.
5. The order of November 23, 1965 (pp. 334-
335, id.) allowing appellee Western Institute of
Technology to make payments to either one or
both of the administrators of the two estates as
well as the order of March 7, 1966 (p. 462, id.)
denying reconsideration.
6. The various orders hereinabove earlier
enumerated approving deeds of sale executed
by respondent Magno in favor of appellees
Carles, Catedral, Pablito, Guzman, Coronado,
Barrido, Causing, Javier, Lucero and Batisanan,
(see pp. 35 to 37 of this opinion), together with
the two separate orders both dated December
2, 1966 (pp. 306-308, and pp. 308-309, Yellow
Record on Appeal) denying reconsideration of
said approval.
7. The order of January 3, 1967, on pp. 335-
336, Yellow Record on Appeal, approving
similar deeds of sale executed by respondent
Magno, as those in No. 6, in favor of appellees
Pacaonsis and Premaylon, as to which no
motion for reconsideration was filed.
8. Lastly, the order of December 2, 1966, on pp.
305-306, Yellow Record on Appeal, directing
petitioner to surrender to appellees Lucero,
Batisanan, Javier, Pablito, Barrido, Catedral,
Causing, Guzman, and Coronado, the
certificates of title covering the lands involved in
the approved sales, as to which no motion for
reconsideration was filed either.
Strictly speaking, and considering that the above orders deal
with different matters, just as they affect distinctly different
individuals or persons, as outlined by petitioner in its brief as
appellant on pp. 12-20 thereof, there are, therefore, thirty-three
(33) appeals before Us, for which reason, petitioner has to pay
also thirty-one (31) more docket fees.
It is as well perhaps to state here as elsewhere in this opinion
that in connection with these appeals, petitioner has assigned
a total of seventy-eight (LXXVIII) alleged errors, the respective
discussions and arguments under all of them covering also the
fundamental issues raised in respect to the petition
for certiorari and prohibition, thus making it feasible and more THE APPELLEES, PEPITO G. IYULORES,
practical for the Court to dispose of all these cases together.4 ESPIRIDION PARTISALA, WINIFREDO C.
ESPADA AND ROSARIO ALINGASA, WHILE
The assignments of error read thus: ACTING AS A PROBATE COURT.

I to IV XIII to XV

THE ORDER COURT ERRED IN APPROVING THE LOWER COURT ERRED IN APPROVING
THE FINAL DEEDS OF SALE IN FAVOR OF THE FINAL DEEDS OF SALE IN FAVOR OF
THE APPELLEES, PEPITO G. IYULORES, THE APPELLEES ADELFA PREMAYLON (LOT
ESPIRIDION PARTISALA, WINIFREDO C. NO. 102), SANTIAGO PACAONSIS, AND
ESPADA AND ROSARIO ALINGASA, ADELFA PREMAYLON (LOT NO. 104),
EXECUTED BY THE APPELLEE, AVELINA A. EXECUTED BY THE APPELLEE, AVELINA A.
MAGNO, COVERING PARCELS OF LAND MAGNO, COVERING PARCELS OF LAND
OWNED BY THE DECEASED, CHARLES OWNED BY THE DECEASED, CHARLES
NEWTON HODGES, AND THE CONTRACTS NEWTON HODGES, AND THE CONTRACTS
TO SELL COVERING WHICH WERE TO SELL COVERING WHICH WERE
EXECUTED BY HIM DURING HIS LIFETIME. EXECUTED BY HIM DURING HIS LIFETIME.

V to VIII XVI to XVIII

THE LOWER COURT ERRED IN APPROVING THE LOWER COURT ERRED IN APPROVING
THE DEEDS OF SALE IN FAVOR OF THE THE DEEDS OF SALE IN FAVOR OF THE
APPELLEES, PEPITO G. IYULORES, APPELLEES ADELFA PREMAYLON (LOT NO.
ESPIRIDION PARTISALA, WINIFREDO C. 102), SANTIAGO PACAONSIS, AND ADELFA
ESPADA AND ROSARIO ALINGASA, PREMAYLON (LOT NO. 104) COVERING
COVERING PARCELS OF LAND FOR WHICH PARCELS OF LAND FOR WHICH THEY HAVE
THEY HAVE NEVER PAID IN FULL IN NEVER PAID IN FULL IN ACCORDANCE
ACCORDANCE WITH THE ORIGINAL WITH THE ORIGINAL CONTRACTS TO SELL.
CONTRACTS TO SELL.
XIX to XXI
IX to XII
THE LOWER COURT ERRED IN
THE LOWER COURT ERRED IN DETERMINING THE RIGHTS OF
DETERMINING THE RIGHTS OF OWNERSHIP OVER REAL PROPERTY OF
OWNERSHIP OVER REAL PROPERTY OF THE APPELLEES ADELFA PREMAYLON (LOT
 NO. 102), SANTIAGO PACAONSIS, AND
ADELFA PREMAYLON (LOT NO. 104) WHILE
ACTING AS A PROBATE COURT.
XXII to XXV
THE LOWER COURT ERRED IN APPROVING
THE FINAL DEEDS OF SALE IN FAVOR OF
THE APPELLEES LORENZO CARLES, JOSE
PABLICO, ALFREDO CATEDRAL AND
SALVADOR S. GUZMAN, EXECUTED BY THE
APPELLEE, AVELINA A. MAGNO, COVERING
PARCELS OF LAND OWNED BY THE
DECEASED, CHARLES NEWTON HODGES,
AND THE CONTRACTS TO SELL COVERING
WHICH WERE EXECUTED BY HIM DURING
HIS LIFETIME.
XXVI to XXIX
THE LOWER COURT ERRED IN APPROVING
THE FINAL DEED OF SALE EXECUTED IN
FAVOR OF THE APPELLEES, LORENZO
CARLES, JOSE PABLICO, ALFREDO
CATEDRAL AND SALVADOR S. GUZMAN
PURSUANT TO CONTRACTS TO SPELL
WHICH WERE CANCELLED AND
RESCINDED.
XXX to XXXIV
THE LOWER COURT ERRED IN
DETERMINING THE RIGHTS OF
OWNERSHIP OVER REAL PROPERTY OF
THE LORENZO CARLES, JOSE PABLICO,
ALFREDO CATEDRAL AND SALVADOR S.
GUZMAN, WHILE ACTING AS A PROBATE
COURT.
XXXV to XXXVI
THE LOWER COURT ERRED IN APPROVING
THE FINAL DEEDS OF SALE IN FAVOR OF
THE APPELLEES, FLORENIA BARRIDO AND
PURIFICACION CORONADO, EXECUTED BY
THE APPELLEE, AVELINA A. MAGNO,
COVERING PARCELS OF LAND OWNED BY
THE DECEASED, CHARLES NEWTON
HODGES, AND THE CONTRACTS TO SELL
COVERING WHICH WERE EXECUTED BY
HIM DURING HIS LIFETIME.
XXXVII to XXXVIII
THE LOWER COURT ERRED IN APPROVING
THE DEEDS OF SALE IN FAVOR OF THE
APPELLEES, FLORENIA BARRIDO AND
PURIFICACION CORONADO, ALTHOUGH
THEY WERE IN ARREARS IN THE
PAYMENTS AGREED UPON IN THE
ORIGINAL CONTRACT TO SELL WHICH
THEY EXECUTED WITH THE DECEASED,
CHARLES NEWTON HODGES, IN THE
AMOUNT OF P10,680.00 and P4,428.90,
RESPECTIVELY.
XXXIX to XL
THE LOWER COURT ERRED IN DEPRIVING
THE DECEASED, CHARLES NEWTON
HODGES, OF THE CONTRACTUAL RIGHT,
EXERCISED THROUGH HIS
 ADMINISTRATOR, THE INSTANT
APPELLANT, TO CANCEL THE CONTRACTS
TO SELL OF THE APPELLEES, FLORENIA
BARRIDO AND PURIFICACION CORONADO.
XLI to XLIII
THE LOWER COURT ERRED IN APPROVING
THE FINAL DEEDS OF SALE IN FAVOR OF
THE APPELLEES, GRACIANO LUCERO,
ARITEO THOMAS JAMIR AND MELQUIADES
BATISANAN, EXECUTED BY THE APPELLEE,
AVELINA A. MAGNO, COVERING PARCELS
OF LAND OWNED BY THE DECEASED,
CHARLES NEWTON HODGES, AND THE
CONTRACTS TO SELL COVERING WHICH
WERE EXECUTED BY HIM DURING HIS
LIFETIME.
XLIV to XLVI
THE LOWER COURT ERRED IN APPROVING
THE FINAL DEED OF SALE IN FAVOR OF
THE APPELLEES, GRACIANO LUCERO,
ARITEO THOMAS JAMIR AND MELQUIADES
BATISANAN, PURSUANT TO CONTRACTS
TO SELL EXECUTED BY THEM WITH THE
DECEASED, CHARLES NEWTON HODGES,
THE TERMS AND CONDITIONS OF WHICH
THEY HAVE NEVER COMPLIED WITH.
XLVII to XLIX
THE LOWER COURT ERRED IN DEPRIVING
THE DECEASED, CHARLES NEWTON
HODGES, OF HIS RIGHT, EXERCISED
THROUGH HIS ADMINISTRATION, THE
INSTANT APPELLANT, TO CANCEL THE
CONTRACTS TO SELL OF THE APPELLEES,
GRACIANO LUCERO, ARITEO THOMAS
JAMIR AND MELQUIADES BATISANAN, AND
IN DETERMINING THE RIGHTS OF THE SAID
APPELLEES OVER REAL PROPERTY WHILE
ACTING AS A PROBATE COURT.
L
THE LOWER COURT ERRED IN APPROVING
THE FINAL DEEDS OF SALE IN FAVOR OF
THE APPELLEE, BELCESAR CAUSING,
EXECUTED BY THE APPELLEE, AVELINA A.
MAGNO, COVERING PARCELS OF LAND
OWNED BY THE DECEASED, CHARLES
NEWTON HODGES, AND THE CONTRACTS
TO SELL COVERING WHICH WERE
EXECUTED BY HIM DURING HIS LIFETIME.
LI
THE LOWER COURT ERRED IN APPROVING
THE DEEDS OF SALE IN FAVOR OF THE
APPELLEE, BELCESAR CAUSING,
ALTHOUGH HE WAS IN ARREARS IN THE
PAYMENTS AGREED UPON IN THE
ORIGINAL CONTRACT TO SELL WHICH HE
EXECUTED WITH THE DECEASED,
CHARLES NEWTON HODGES, IN THE
AMOUNT OF P2,337.50.
LII
 THE LOWER COURT ERRED IN APPROVING
THE DEED OF SALE IN FAVOR OF THE
APPELLEE, BELCESAR CAUSING,
ALTHOUGH THE SAME WAS NOT
EXECUTED IN ACCORDANCE WITH THE
RULES OF COURT.
LIII to LXI
THE LOWER COURT ERRED IN ORDERING
THE APPELLANT, PHILIPPINE COMMERCIAL
AND INDUSTRIAL BANK TO SURRENDER
THE OWNER'S DUPLICATE CERTIFICATES
OF TITLE OVER THE RESPECTIVE LOTS
COVERED BY THE DEEDS OF SALE
EXECUTED BY THE APPELLEE, AVELINA A.
MAGNO, IN FAVOR OF THE OTHER
APPELLEES, JOSE PABLICO, ALFREDO
CATEDRAL, SALVADOR S. GUZMAN,
FLRENIA BARRIDO, PURIFICACION
CORONADO, BELCESAR CAUSING, ARITEO
THOMAS JAMIR, MAXIMA BATISANAN AND
GRACIANO L. LUCERO.
LXII
THE LOWER COURT ERRED IN RESOLVING
THE MOTION OF THE APPELLEE, WESTERN
INSTITUTE OF TECHNOLOGY, DATED
NOVEMBER 3, 1965, WITHOUT ANY COPY
THEREOF HAVING BEEN SERVED UPON
THE APPELLANT, PHILIPPINE COMMERCIAL
& INDUSTRIAL BANK.
LXIII
THE LOWER COURT ERRED IN HEARING
AND CONSIDERING THE MOTION OF THE
APPELLEE, WESTERN INSTITUTE OF
TECHNOLOGY, DATED NOVEMBER 3rd,
1965, ON NOVEMBER 23, 1965, WHEN THE
NOTICE FOR THE HEARING THEREOF WAS
FOR NOVEMBER 20, 1965.
LXIV
THE LOWER COURT ERRED IN GRANTING
THE APPELLEE, WESTERN INSTITUTE OF
TECHNOLOGY A RELIEF OTHER THAN THAT
PRAYED FOR IN ITS MOTION, DATED
NOVEMBER 3, 1965, IN THE ABSENCE OF A
PRAYER FOR GENERAL RELIEF
CONTAINED THEREIN.
LXV
THE LOWER COURT ERRED IN ALLOWING
THE APPELLEE, WESTERN INSTITUTE OF
TECHNOLOGY, TO CONTINUE PAYMENTS
UPON A CONTRACT TO SELL THE TERMS
AND CONDITIONS OF WHICH IT HAS FAILED
TO FULFILL.
LXVI
THE LOWER COURT ERRED IN
DETERMINING THE RIGHTS OF THE
APPELLEE, WESTERN INSTITUTE OF
TECHNOLOGY OVER THE REAL PROPERTY
SUBJECT MATTER OF THE CONTRACT TO
SELL IT EXECUTED WITH THE DECEASED,
 CHARLES NEWTON HODGES, WHILE
ACTING AS A PROBATE COURT.
LXVII
LOWER COURT ERRED IN ALLOWING THE
CONTINUATION OF PAYMENTS BY THE
APPELLEE, WESTERN INSTITUTE OF
TECHNOLOGY, UPON A CONTRACT TO
SELL EXECUTED BY IT AND THE
DECEASED, CHARLES NEWTON HODGES,
TO A PERSON OTHER THAN HIS LAWFULLY
APPOINTED ADMINISTRATOR.
LXVIII
THE LOWER COURT ERRED IN ORDERING
THE PAYMENT OF RETAINER'S FEES FROM
THE SUPPOSED ESTATE OF THE
DECEASED, LINNIE JANE HODGES, WHEN
THERE IS NEITHER SUCH ESTATE NOR
ASSETS THEREOF.
LXIX
THE LOWER COURT ERRED IN ORDERING
THE PAYMENT OF RETAINER'S FEES OF
LAWYERS OF ALLEGED HEIRS TO THE
SUPPOSED ESTATE OF THE DECEASED,
LINNIE JANE HODGES.
LXX
THE LOWER COURT ERRED IN
IMPLEMENTING THE ALLEGED AGREEMENT
BETWEEN THE HEIRS OF THE SUPPOSED
ESTATE OF THE DECEASED, LINNIE JANE
HODGES, AND THEIR LAWYERS.
LXXI
THE LOWER COURT ERRED IN ORDERING
THE PREMATURE DISTRIBUTION OF
ESTATE ASSETS TO ALLEGED HEIRS OR
BENEFICIARIES THEREOF, BY WAY OF
RETAINER'S FEES.
LXXII
THE LOWER COURT ERRED IN ORDERING
THAT ALL FINAL DEEDS OF SALE
EXECUTED PURSUANT TO CONTRACTS TO
SELL ENTERED INTO BY THE DECEASED,
CHARLES NEWTON HODGES, DURING HIS
LIFETIME, BE SIGNED JOINTLY BY THE
APPELLEE, AVELINA A. MAGNO, AND THE
APPELLANT, PHILIPPINE COMMERCIAL AND
INDUSTRIAL BANK, AND NOT BY THE
LATTER ONLY AS THE LAWFULLY
APPOINTED ADMINISTRATOR OF HIS
ESTATE.
LXXIII
THE LOWER COURT ERRED IN ORDERING
THE PAYMENT OF LEGAL EXPENSES FROM
THE SUPPOSED ESTATE OF THE
DECEASED, LINNIE JANE HODGES, WHEN
THERE IS NEITHER SUCH ESTATE NOR
ASSETS THEREOF.
LXXIV
 THE LOWER COURT ERRED IN ORDERING
THE PAYMENT OF LEGAL EXPENSES OF
LAWYERS OF ALLEGED HEIRS TO THE
SUPPOSED ESTATE OF THE DECEASED,
LINNIE JANE HODGES.
LXXV
THE LOWER COURT ERRED IN ORDERING
THE PREMATURE DISTRIBUTION OF
ESTATE ASSETS TO ALLEGED HEIRS OR
BENEFICIARIES THEREOF, BY WAY OF
LEGAL EXPENSES.
LXXVI
THE LOWER COURT ERRED IN ORDERING
THE PAYMENT OF COMPENSATION TO THE
PURPORTED ADMINISTRATRIX OF THE
SUPPOSED ESTATE OF THE DECEASED,
LINNIE JANE HODGES, THE INSTANT
APPELLEE, AVELINA A. MAGNO, WHEN
THERE IS NEITHER SUCH ESTATE NOR
ASSETS THEREOF.
LXXVII
THE LOWER COURT ERRED IN ORDERING
THAT THE FUNDS OF THE TESTATE ESTATE
OF THE DECEASED, CHARLES NEWTON
HODGES, BE PLACED IN A JOINT ACCOUNT
OF THE APPELLANT, PHILIPPINE
COMMERCIAL AND INDUSTRIAL BANK, AND
THE APPELLEE, AVELINA A. MAGNO, WHO
IS A COMPLETE STRANGER TO THE
AFORESAID ESTATE.
LXXVIII
THE LOWER COURT ERRED IN ORDERING
THAT THE APPELLEE, AVELINA A. MAGNO,
BE GIVEN EQUAL ACCESS TO THE
RECORDS OF THE TESTATE ESTATE OF
THE DECEASED, CHARLES NEWTON
HODGES, WHEN SHE IS A COMPLETE
STRANGER TO THE AFORESAID ESTATE.
(Pp. 73-83, Appellant's Brief.)
To complete this rather elaborate, and unavoidably extended
narration of the factual setting of these cases, it may also be
mentioned that an attempt was made by the heirs of Mrs.
Hodges to have respondent Magno removed as administratrix,
with the proposed appointment of Benito J. Lopez in her place,
and that respondent court did actually order such proposed
replacement, but the Court declared the said order of
respondent court violative of its injunction of August 8, 1967,
hence without force and effect (see Resolution of September
8, 1972 and February 1, 1973). Subsequently, Atty. Efrain B.
Trenas, one of the lawyers of said heirs, appeared no longer
for the proposed administrator Lopez but for the heirs
themselves, and in a motion dated October 26, 1972 informed
the Court that a motion had been filed with respondent court
for the removal of petitioner PCIB as administrator of the
estate of C. N. Hodges in Special Proceedings 1672, which
removal motion alleged that 22.968149% of the share of C. N.
Hodges had already been acquired by the heirs of Mrs.
Hodges from certain heirs of her husband. Further, in this
connection, in the answer of PCIB to the motion of respondent
Magno to have it declared in contempt for disregarding the
Court's resolution of September 8, 1972 modifying the
injunction of August 8, 1967, said petitioner annexed thereto a
joint manifestation and motion, appearing to have been filed
with respondent court, informing said court that in addition to
the fact that 22% of the share of C. N. Hodges had already
been bought by the heirs of Mrs. Hodges, as already stated,
certain other heirs of Hodges representing 17.343750% of his
estate were joining cause with the heirs of Mrs. Hodges as
against PCIB, thereby making somewhat precarious, if not
possibly untenable, petitioners' continuation as administrator of
the Hodges estate.
RESOLUTION OF ISSUES IN THE CERTIORARI AND
PROHIBITION CASES
I or not a special civil action of certiorari or prohibition may be
As to the Alleged Tardiness
of the Present Appeals
The priority question raised by respondent Magno relates to
the alleged tardiness of all the aforementioned thirty-three
appeals of PCIB. Considering, however, that these appeals
revolve around practically the same main issues and that it is
admitted that some of them have been timely taken, and,
moreover, their final results hereinbelow to be stated and
explained make it of no consequence whether or not the
orders concerned have become final by the lapsing of the
respective periods to appeal them, We do not deem it
necessary to pass upon the timeliness of any of said appeals.
II
The Propriety Here of Certiorari and
Prohibition instead of Appeal
The other preliminary point of the same respondent is alleged
impropriety of the special civil action of certiorari and
prohibition in view of the existence of the remedy of appeal
which it claims is proven by the very appeals now before Us.
Such contention fails to take into account that there is a
common thread among the basic issues involved in all these
thirty-three appeals which, unless resolved in one single
proceeding, will inevitably cause the proliferation of more or
less similar or closely related incidents and consequent
eventual appeals. If for this consideration alone, and without
taking account anymore of the unnecessary additional effort,
expense and time which would be involved in as many
individual appeals as the number of such incidents, it is logical
and proper to hold, as We do hold, that the remedy of appeal
is not adequate in the present cases. In determining whether
resorted to in lieu of appeal, in instances wherein lack or
excess of jurisdiction or grave abuse of discretion is alleged, it
is not enough that the remedy of appeal exists or is possible. It
is indispensable that taking all the relevant circumstances of
the given case, appeal would better serve the interests of
justice. Obviously, the longer delay, augmented expense and
trouble and unnecessary repetition of the same work attendant
to the present multiple appeals, which, after all, deal with
practically the same basic issues that can be more
expeditiously resolved or determined in a single special civil
action, make the remedies of certiorari and prohibition,
pursued by petitioner, preferable, for purposes of resolving the
common basic issues raised in all of them, despite the
conceded availability of appeal. Besides, the settling of such
common fundamental issues would naturally minimize the
areas of conflict between the parties and render more simple
the determination of the secondary issues in each of them.
Accordingly, respondent Magno's objection to the present
remedy of certiorariand prohibition must be overruled.
We come now to the errors assigned by petitioner-appellant,
Philippine Commercial & Industrial Bank, (PCIB, for short) in
the petition as well as in its main brief as appellant.
III
On Whether or Not There is Still Any Part of the Testate
Estate Mrs. Hodges that may be Adjudicated to her brothers
and sisters as her estate, of which respondent Magno is the
unquestioned Administratrix in special Proceedings 1307.
In the petition, it is the position of PCIB that the respondent
court exceeded its jurisdiction or gravely abused its discretion
in further recognizing after December 14, 1957 the existence
of the Testate Estate of Linnie Jane Hodges and in sanctioning
purported acts of administration therein of respondent Magno.
Main ground for such posture is that by the aforequoted order
of respondent court of said date, Hodges was already allowed
to assert and exercise all his rights as universal heir of his wife
pursuant to the provisions of her will, quoted earlier, hence,
nothing else remains to be done in Special Proceedings 1307
except to formally close it. In other words, the contention of
PCIB is that in view of said order, nothing more than a formal
declaration of Hodges as sole and exclusive heir of his wife
and the consequent formal unqualified adjudication to him of
all her estate remain to be done to completely close Special
Proceedings 1307, hence respondent Magno should be
considered as having ceased to be Administratrix of the
Testate Estate of Mrs. Hodges since then.
After carefully going over the record, We feel constrained to
hold that such pose is patently untenable from whatever angle
it is examined.
To start with, We cannot find anywhere in respondent Order of
December 14, 1957 the sense being read into it by PCIB. The
tenor of said order bears no suggestion at all to such effect.
The declaration of heirs and distribution by the probate court of
the estate of a decedent is its most important function, and this
Court is not disposed to encourage judges of probate
proceedings to be less than definite, plain and specific in
making orders in such regard, if for no other reason than that
all parties concerned, like the heirs, the creditors, and most of
all the government, the devisees and legatees, should know
with certainty what are and when their respective rights and
obligations ensuing from the inheritance or in relation thereto
would begin or cease, as the case may be, thereby avoiding
precisely the legal complications and consequent litigations
similar to those that have developed unnecessarily in the
present cases. While it is true that in instances wherein all the
parties interested in the estate of a deceased person have
already actually distributed among themselves their respective
shares therein to the satisfaction of everyone concerned and
no rights of creditors or third parties are adversely affected, it
would naturally be almost ministerial for the court to issue the
final order of declaration and distribution, still it is
inconceivable that the special proceeding instituted for the
purpose may be considered terminated, the respective rights
of all the parties concerned be deemed definitely settled, and
the executor or administrator thereof be regarded as
automatically discharged and relieved already of all functions
and responsibilities without the corresponding definite orders
of the probate court to such effect.
Indeed, the law on the matter is specific, categorical and
unequivocal. Section 1 of Rule 90 provides:
SECTION 1. When order for distribution of
residue made. — When the debts, funeral
charges, and expenses of administration, the
allowance to the widow and inheritance tax, if
any, chargeable to the estate in accordance
with law have been paid, the court, on the
application of the executor or administrator, or
of a person interested in the estate, and after
hearing upon notice, shall assign the residue of
 the estate to the persons entitled to the same,
naming them and the proportions, or parts, to
which each is entitled, and such persons may
demand and recover their respective shares
from the executor or administrator, or any other
person having the same in his possession. If
there is a controversy before the court as to
who are the lawful heirs of the deceased person
or as to the distributive shares to which each
person is entitled under the law, the controversy
shall be heard and decided as in ordinary
cases.
No distribution shall be allowed until the
payment of the obligations above mentioned
has been made or provided for, unless the
distributees, or any of them give a bond, in a
sum to be fixed by the court, conditioned for the
payment of said obligations within such time as
the court directs.
These provisions cannot mean anything less than that in order
that a proceeding for the settlement of the estate of a
deceased may be deemed ready for final closure, (1) there
should have been issued already an order of distribution or
assignment of the estate of the decedent among or to those
entitled thereto by will or by law, but (2) such order shall not be
issued until after it is shown that the "debts, funeral expenses,
expenses of administration, allowances, taxes, etc. chargeable
to the estate" have been paid, which is but logical and proper.
(3) Besides, such an order is usually issued upon proper and
specific application for the purpose of the interested party or
parties, and not of the court.
... it is only after, and not before, the payment of
all debts, funeral charges, expenses of
administration, allowance to the widow, and
inheritance tax shall have been effected that the
court should make a declaration of heirs or of
such persons as are entitled by law to the
residue. (Moran, Comments on the Rules of
Court, 2nd ed., Vol. II, p. 397, citing Capistrano
vs. Nadurata, 49 Phil., 726; Lopez vs. Lopez,
37 Off. Gaz., 3091.) (JIMOGA-ON v.
BELMONTE, 84 Phil. 545, 548) (p. 86,
Appellee's Brief)
xxx xxx xxx
Under Section 753 of the Code of Civil
Procedure, (corresponding to Section 1, Rule
90) what brings an intestate (or testate)
proceeding to a close is the order of distribution
directing delivery of the residue to the persons
entitled thereto after paying the indebtedness, if
any, left by the deceased. (Santiesteban vs.
Santiesteban, 68 Phil. 367, 370.)
In the cases at bar, We cannot discern from the voluminous
and varied facts, pleadings and orders before Us that the
above indispensable prerequisites for the declaration of heirs
and the adjudication of the estate of Mrs. Hodges had already
been complied with when the order of December 14, 1957 was
issued. As already stated, We are not persuaded that the
proceedings leading to the issuance of said order, constituting
barely of the motion of May 27, 1957, Annex D of the petition,
the order of even date, Annex E, and the motion of December
11, 1957, Annex H, all aforequoted, are what the law
contemplates. We cannot see in the order of December 14,
1957, so much relied upon by the petitioner, anything more
than an explicit approval of "all the sales, conveyances, leases
and mortgages of all the properties left by the deceased Linnie
Jane Hodges executed by the Executor Charles N. Hodges"
(after the death of his wife and prior to the date of the motion),
plus a general advance authorization to enable said "Executor
— to execute subsequent sales, conveyances, leases and
mortgages of the properties left the said deceased Linnie Jane
Hodges in consonance with wishes conveyed in the last will
and testament of the latter", which, certainly, cannot amount to
the order of adjudication of the estate of the decedent to
Hodges contemplated in the law. In fact, the motion of
December 11, 1957 on which the court predicated the order in
question did not pray for any such adjudication at all. What is
more, although said motion did allege that "herein Executor
(Hodges) is not only part owner of the properties left as
conjugal, but also, the successor to all the properties left by
the deceased Linnie Jane Hodges", it significantly added that
"herein Executor, as Legatee (sic), has the right to sell,
convey, lease or dispose of the properties in the Philippines —
during his lifetime", thereby indicating that what said motion
contemplated was nothing more than either the enjoyment by
Hodges of his rights under the particular portion of the
dispositions of his wife's will which were to be operative only
during his lifetime or the use of his own share of the conjugal
estate, pending the termination of the proceedings. In other
words, the authority referred to in said motions and orders is in
the nature of that contemplated either in Section 2 of Rule 109
which permits, in appropriate cases, advance or partial
implementation of the terms of a duly probated will before final
adjudication or distribution when the rights of third parties
would not be adversely affected thereby or in the established
practice of allowing the surviving spouse to dispose of his own
share of he conjugal estate, pending its final liquidation, when
it appears that no creditors of the conjugal partnership would
be prejudiced thereby, (see the Revised Rules of Court by
Francisco, Vol. V-B, 1970 ed. p. 887) albeit, from the tenor of
said motions, We are more inclined to believe that Hodges
meant to refer to the former. In any event, We are fully
persuaded that the quoted allegations of said motions read
together cannot be construed as a repudiation of the rights
unequivocally established in the will in favor of Mrs. Hodges'
brothers and sisters to whatever have not been disposed of by
him up to his death.
Indeed, nowhere in the record does it appear that the trial
court subsequently acted upon the premise suggested by
petitioner. On the contrary, on November 23, 1965, when the
court resolved the motion of appellee Western Institute of
Technology by its order We have quoted earlier, it categorically
held that as of said date, November 23, 1965, "in both cases
(Special Proceedings 1307 and 1672) there is as yet no
judicial declaration of heirs nor distribution of properties to
whomsoever are entitled thereto." In this connection, it may be
stated further against petitioner, by way of some kind of
estoppel, that in its own motion of January 8, 1965, already
quoted in full on pages 54-67 of this decision, it prayed inter
alia that the court declare that "C. N. Hodges was the sole and
exclusive heir of the estate of Linnie Jane Hodges", which it
would not have done if it were really convinced that the order
of December 14, 1957 was already the order of adjudication
and distribution of her estate. That said motion was later
withdrawn when Magno filed her own motion for determination
and adjudication of what should correspond to the brothers
and sisters of Mrs. Hodges does not alter the indubitable
implication of the prayer of the withdrawn motion.
It must be borne in mind that while it is true that Mrs. Hodges
bequeathed her whole estate to her husband and gave him
what amounts to full powers of dominion over the same during
his lifetime, she imposed at the same time the condition that
whatever should remain thereof upon his death should go to
her brothers and sisters. In effect, therefore, what was
absolutely given to Hodges was only so much of his wife's
estate as he might possibly dispose of during his lifetime;
hence, even assuming that by the allegations in his motion, he
did intend to adjudicate the whole estate to himself, as
suggested by petitioner, such unilateral act could not have
affected or diminished in any degree or manner the right of his
brothers and sisters-in-law over what would remain thereof
upon his death, for surely, no one can rightly contend that the
testamentary provision in question allowed him to so
adjudicate any part of the estate to himself as to prejudice
them. In other words, irrespective of whatever might have
been Hodges' intention in his motions, as Executor, of May 27,
1957 and December 11, 1957, the trial court's orders granting
said motions, even in the terms in which they have been
worded, could not have had the effect of an absolute and
unconditional adjudication unto Hodges of the whole estate of
his wife. None of them could have deprived his brothers and
sisters-in-law of their rights under said will. And it may be
added here that the fact that no one appeared to oppose the
motions in question may only be attributed, firstly, to the failure
of Hodges to send notices to any of them, as admitted in the
motion itself, and, secondly, to the fact that even if they had
been notified, they could not have taken said motions to be for
the final distribution and adjudication of the estate, but merely
for him to be able, pending such final distribution and
adjudication, to either exercise during his lifetime rights of
dominion over his wife's estate in accordance with the bequest
in his favor, which, as already observed, may be allowed under
the broad terms of Section 2 of Rule 109, or make use of his
own share of the conjugal estate. In any event, We do not
believe that the trial court could have acted in the sense
pretended by petitioner, not only because of the clear
language of the will but also because none of the interested
parties had been duly notified of the motion and hearing
thereof. Stated differently, if the orders of May 27, 1957 and
December 4, 1957 were really intended to be read in the
sense contended by petitioner, We would have no hesitancy in
declaring them null and void.
Petitioner cites the case of Austria vs. Ventenilla, G. R. No. L-
10018, September 19, 1956, (unreported but a partial digest
thereof appears in 99 Phil. 1069) in support of its insistence
that with the orders of May 27 and December 14, 1957, the
closure of Mrs. Hodges' estate has become a mere formality,
inasmuch as said orders amounted to the order of adjudication
and distribution ordained by Section 1 of Rule 90. But the
parallel attempted to be drawn between that case and the
present one does not hold. There the trial court had in fact
issued a clear, distinct and express order of adjudication and
distribution more than twenty years before the other heirs of
the deceased filed their motion asking that the administratrix
be removed, etc. As quoted in that decision, the order of the
lower court in that respect read as follows:
En orden a la mocion de la administradora, el
juzgado la encuentra procedente bajo la
condicion de que no se hara entrega ni
adjudicacion de los bienes a los herederos
antes de que estos presten la fianza
correspondiente y de acuerdo con lo prescrito
en el Art. 754 del Codigo de Procedimientos:
pues, en autos no aparece que hayan sido
nombrados comisionados de avaluo y
reclamaciones. Dicha fianza podra ser por un
valor igual al de los bienes que correspondan a
cada heredero segun el testamento. Creo que
no es obice para la terminacion del expediente
el hecho de que la administradora no ha
presentado hasta ahora el inventario de los
bienes; pues, segun la ley, estan exentos de
esta formalidad os administradores que son
legatarios del residuo o remanente de los
bienes y hayan prestado fianza para responder
de las gestiones de su cargo, y aparece en el
testamento que la administradora Alejandra
Austria reune dicha condicion.
POR TODO LO EXPUESTO, el juzgado
declara, 1.o: no haber lugar a la mocion de
Ramon Ventenilla y otros; 2.o, declara
asimismo que los unicos herederos del finado
Antonio Ventenilla son su esposa Alejandra
Austria, Maria Ventenilla, hermana del testador,
y Ramon Ventenilla, Maria Ventenilla, Ramon
Soriano, Eulalio Soriano, Jose Soriano,
Gabriela Ventenilla, Lorenzo Ventenilla,
Felicitas Ventenilla, Eugenio Ventenilla y
Alejandra Ventenilla, en representacion de los
difuntos Juan, Tomas, Catalino y Froilan,
hermanos del testador, declarando, ademas
que la heredera Alejandra Austria tiene derecho
al remanente de todos los bienes dejados por
el finado, despues de deducir de ellos la
porcion que corresponde a cada uno de sus
coherederos, conforme esta mandado en las
clausulas 8.a, 9.a, 10.a, 11.a, 12.a y 13.a del
testamento; 3.o, se aprueba el pago hecho por
la administradora de los gastos de la ultima
enfermedad y funerales del testador, de la
donacion hecha por el testador a favor de la
Escuela a Publica del Municipio de
Mangatarem, y de las misas en sufragio del
alma del finado; 4.o, que una vez prestada la
fianza mencionada al principio de este auto, se
haga la entrega y adjudicacion de los bienes,
conforme se dispone en el testamento y se
acaba de declarar en este auto; 5.o, y,
finalmente, que verificada la adjudicacion, se
dara por terminada la administracion,
revelandole toda responsabilidad a la
administradora, y cancelando su fianza.
ASI SE ORDENA.
Undoubtedly, after the issuance of an order of such tenor, the
closure of any proceedings for the settlement of the estate of a
deceased person cannot be but perfunctory.
In the case at bar, as already pointed out above, the two
orders relied upon by petitioner do not appear ex-facie to be of
the same tenor and nature as the order just quoted, and, what
is more, the circumstances attendant to its issuance do not
suggest that such was the intention of the court, for nothing
could have been more violative of the will of Mrs. Hodges.
Indeed, to infer from Hodges' said motions and from his
statements of accounts for the years 1958, 1959 and 1960, A
Annexes I, K and M, respectively, wherein he repeatedly
claimed that "herein executor (being) the only devisee or
legatee of the deceased, in accordance with the last will and
testament already probated," there is "no (other) person
interested in the Philippines of the time and place of examining
herein account to be given notice", an intent to adjudicate unto
himself the whole of his wife's estate in an absolute manner
and without regard to the contingent interests of her brothers
and sisters, is to impute bad faith to him, an imputation which
is not legally permissible, much less warranted by the facts of
record herein. Hodges knew or ought to have known that,
legally speaking, the terms of his wife's will did not give him
such a right. Factually, there are enough circumstances extant
in the records of these cases indicating that he had no such
intention to ignore the rights of his co-heirs. In his very motions
in question, Hodges alleged, thru counsel, that the "deceased
Linnie Jane Hodges died leaving no descendants and
ascendants, except brothers and sisters and herein petitioner,
as surviving spouse, to inherit the properties of the decedent",
and even promised that "proper accounting will be had — in all
these transactions" which he had submitted for approval and
authorization by the court, thereby implying that he was aware
of his responsibilities vis-a-vis his co-heirs. As alleged by
respondent Magno in her brief as appellee:
Under date of April 14, 1959, C. N. Hodges filed
his first "Account by the Executor" of the estate
of Linnie Jane Hodges. In the "Statement of
Networth of Mr. C. N. Hodges and the Estate of
Linnie Jane Hodges" as of December 31, 1958
annexed thereto, C. N. Hodges reported that
the combined conjugal estate earned a net
income of P328,402.62, divided evenly between
him and the estate of Linnie Jane Hodges.
Pursuant to this, he filed an "individual income
tax return" for calendar year 1958 on the estate
of Linnie Jane Hodges reporting, under oath,
the said estate as having earned income of
P164,201.31, exactly one-half of the net income
of his combined personal assets and that of the
estate of Linnie Jane Hodges. (p. 91, Appellee's
Brief.)
Under date of July 21, 1960, C. N. Hodges filed
his second "Annual Statement of Account by
the Executor" of the estate of Linnie Jane
Hodges. In the "Statement of Networth of Mr. C.
N. Hodges and the Estate of Linnie Jane
Hodges" as of December 31, 1959 annexed
thereto, C. N. Hodges reported that the
combined conjugal estate earned a net income
of P270,623.32, divided evenly between him
and the estate of Linnie Jane Hodges. Pursuant
to this, he filed an "individual income tax return"
for calendar year 1959 on the estate of Linnie
Jane Hodges reporting, under oath, the said
estate as having earned income of
P135,311.66, exactly one-half of the net income
of his combined personal assets and that of the
estate of Linnie Jane Hodges. (pp. 91-92, id.)
Under date of April 20, 1961, C. N. Hodges filed
his third "Annual Statement of Account by the
Executor for the year 1960" of the estate of
Linnie Jane Hodges. In the "Statement of Net
Worth of Mr. C. N. Hodges and the Estate of
Linnie Jane Hodges" as of December 31, 1960
annexed thereto, C. N. Hodges reported that
the combined conjugal estate earned a net
income of P314,857.94, divided of Linnie Jane
Hodges. Pursuant to this, he filed an "individual
evenly between him and the estate income tax
return" for calendar year 1960 on the estate of
Linnie Jane Hodges reporting, under oath, the
said estate as having earned income of
P157,428.97, exactly one-half of the net income
of his combined personal assets and that of the
estate of Linnie Jane Hodges. (pp. 92-93, id.)
In the petition for probate that he (Hodges) filed,
he listed the seven brothers and sisters of
Linnie Jane as her "heirs" (see p. 2, Green
ROA). The order of the court admitting the will
to probate unfortunately omitted one of the
heirs, Roy Higdon (see p. 14, Green ROA).
Immediately, C. N. Hodges filed a verified
motion to have Roy Higdon's name included as
an heir, stating that he wanted to straighten the
records "in order (that) the heirs of deceased
Roy Higdon may not think or believe they were
 omitted, and that they were really and are
interested in the estate of deceased Linnie Jane
Hodges".
Thus, he recognized, if in his own way, the separate identity of
his wife's estate from his own share of the conjugal partnership
up to the time of his death, more than five years after that of
his wife. He never considered the whole estate as a single one
belonging exclusively to himself. The only conclusion one can
gather from this is that he could have been preparing the basis
for the eventual transmission of his wife's estate, or, at least,
so much thereof as he would not have been able to dispose of
during his lifetime, to her brothers and sisters in accordance
with her expressed desire, as intimated in his tax return in the
United States to be more extensively referred to anon. And
assuming that he did pay the corresponding estate and
inheritance taxes in the Philippines on the basis of his being
sole heir, such payment is not necessarily inconsistent with his
recognition of the rights of his co-heirs. Without purporting to
rule definitely on the matter in these proceedings, We might
say here that We are inclined to the view that under the
peculiar provisions of his wife's will, and for purposes of the
applicable inheritance tax laws, Hodges had to be considered
as her sole heir, pending the actual transmission of the
remaining portion of her estate to her other heirs, upon the
eventuality of his death, and whatever adjustment might be
warranted should there be any such remainder then is a
matter that could well be taken care of by the internal revenue
authorities in due time.
It is to be noted that the lawyer, Atty. Leon P. Gellada, who
signed the motions of May 27, 1957 and December 11, 1957
and the aforementioned statements of account was the very
same one who also subsequently signed and filed the motion
of December 26, 1962 for the appointment of respondent
Magno as "Administratrix of the Estate of Mrs. Linnie Jane
Hodges" wherein it was alleged that "in accordance with the
provisions of the last will and testament of Linnie Jane
Hodges, whatever real properties that may remain at the death
of her husband, Charles Newton Hodges, the said properties
shall be equally divided among their heirs." And it appearing
that said attorney was Hodges' lawyer as Executor of the
estate of his wife, it stands to reason that his understanding of
the situation, implicit in his allegations just quoted, could
somehow be reflective of Hodges' own understanding thereof.
As a matter of fact, the allegations in the motion of the same
Atty. Gellada dated July 1, 1957, a "Request for Inclusion of
the Name of Roy Higdon in the Order of the Court dated July
19, 1957, etc.", reference to which is made in the above
quotation from respondent Magno's brief, are over the oath of
Hodges himself, who verified the motion. Said allegations
read:
1. — That the Hon. Court issued orders dated
June 29, 1957, ordering the probate of the will.
2. — That in said order of the Hon. Court, the
relatives of the deceased Linnie Jane Hodges
were enumerated. However, in the petition as
well as in the testimony of Executor during the
hearing, the name Roy Higdon was mentioned,
but deceased. It was unintentionally omitted the
heirs of said Roy Higdon who are his wife Aline
Higdon and son David Higdon, all of age, and
residents of Quinlan, Texas, U.S.A.
3. — That to straighten the records, and in
order the heirs of deceased Roy Higdon may
not think or believe they were omitted, and that
they were really and are interested in the estate
of deceased Linnie Jane Hodges, it is
 requested of the Hon. Court to insert the names
of Aline Higdon and David Higdon, wife and son
of deceased Roy Higdon in the said order of the
Hon. Court dated June 29, 1957. (pars. 1 to 3,
Annex 2 of Magno's Answer — Record, p. 260)
As can be seen, these italicized allegations indicate, more or
less, the real attitude of Hodges in regard to the testamentary
dispositions of his wife.
In connection with this point of Hodges' intent, We note that
there are documents, copies of which are annexed to
respondent Magno's answer, which purportedly contain
Hodges' own solemn declarations recognizing the right of his
co-heirs, such as the alleged tax return he filed with the United
States Taxation authorities, identified as Schedule M, (Annex 4
of her answer) and his supposed affidavit of renunciation,
Annex 5. In said Schedule M, Hodges appears to have
answered the pertinent question thus:
2a. Had the surviving spouse the right to
declare an election between (1) the provisions
made in his or her favor by the will and (11)
dower, curtesy or a statutory interest? (X) Yes
( ) No
2d. Does the surviving spouse contemplate
renouncing the will and electing to take dower,
curtesy, or a statutory interest? (X) Yes ( ) No
3. According to the information and belief of the
person or persons filing the return, is any action
described under question 1 designed or
contemplated? ( ) Yes (X) No (Annex 4, Answer
— Record, p. 263)
and to have further stated under the item, "Description of
property interests passing to surviving spouse" the following:
None, except for purposes of administering the
Estate, paying debts, taxes and other legal
charges. It is the intention of the surviving
husband of deceased to distribute the
remaining property and interests of the
deceased in their Community Estate to the
devisees and legatees named in the will when
the debts, liabilities, taxes and expenses of
administration are finally determined and paid.
(Annex 4, Answer — Record, p. 263)
In addition, in the supposed affidavit of Hodges, Annex 5, it is
stated:
I, C. N. Hodges, being duly sworn, on oath
affirm that at the time the United States Estate
Tax Return was filed in the Estate of Linnie
Jane Hodges on August 8, 1958, I renounced
and disclaimed any and all right to receive the
rents, emoluments and income from said
estate, as shown by the statement contained in
Schedule M at page 29 of said return, a copy of
which schedule is attached to this affidavit and
made a part hereof.
The purpose of this affidavit is to ratify and
confirm, and I do hereby ratify and confirm, the
declaration made in Schedule M of said
return and hereby formally disclaim and
renounce any right on my part to receive any of
the said rents, emoluments and income from
the estate of my deceased wife, Linnie Jane
Hodges. This affidavit is made to absolve me or
 my estate from any liability for the payment of
income taxes on income which has accrued to
the estate of Linnie Jane Hodges since the
death of the said Linnie Jane Hodges on May
23, 1957. (Annex 5, Answer — Record, p. 264)
Although it appears that said documents were not duly
presented as evidence in the court below, and We cannot,
therefore, rely on them for the purpose of the present
proceedings, still, We cannot close our eyes to their existence
in the record nor fail to note that their tenor jibes with Our
conclusion discussed above from the circumstances related to
the orders of May 27 and December 14, 1957. 5 Somehow,
these documents, considering they are supposed to be copies
of their originals found in the official files of the governments of
the United States and of the Philippines, serve to lessen any
possible apprehension that Our conclusion from the other
evidence of Hodges' manifest intent vis-a-vis the rights of his
co-heirs is without basis in fact.
Verily, with such eloquent manifestations of his good intentions
towards the other heirs of his wife, We find it very hard to
believe that Hodges did ask the court and that the latter
agreed that he be declared her sole heir and that her whole
estate be adjudicated to him without so much as just
annotating the contingent interest of her brothers and sisters in
what would remain thereof upon his demise. On the contrary, it
seems to us more factual and fairer to assume that Hodges
was well aware of his position as executor of the will of his wife
and, as such, had in mind the following admonition made by
the Court in Pamittan vs. Lasam, et al., 60 Phil., 908, at pp.
913-914:
Upon the death of Bernarda in September,
1908, said lands continued to be conjugal
property in the hands of the defendant Lasam.
It is provided in article 1418 of the Civil Code
that upon the dissolution of the conjugal
partnership, an inventory shall immediately be
made and this court in construing this provision
in connection with section 685 of the Code of
Civil Procedure (prior to its amendment by Act
No. 3176 of November 24, 1924) has
repeatedly held that in the event of the death of
the wife, the law imposes upon the husband the
duty of liquidating the affairs of the partnership
without delay (desde luego) (Alfonso vs.
Natividad, 6 Phil., 240; Prado vs. Lagera, 7
Phil., 395; De la Rama vs. De la Rama, 7 Phil.,
745; Enriquez vs. Victoria, 10 Phil., 10; Amancio
vs. Pardo, 13 Phil., 297; Rojas vs. Singson
Tongson, 17 Phil., 476; Sochayseng vs. Trujillo,
31 Phil., 153; Molera vs. Molera, 40 Phil., 566;
Nable Jose vs. Nable Jose, 41 Phil., 713.)
In the last mentioned case this court quoted
with approval the case of Leatherwood vs.
Arnold (66 Texas, 414, 416, 417), in which that
court discussed the powers of the surviving
spouse in the administration of the community
property. Attention was called to the fact that
the surviving husband, in the management of
the conjugal property after the death of the wife,
was a trustee of unique character who is liable
for any fraud committed by him with relation to
the property while he is charged with its
administration. In the liquidation of the conjugal
partnership, he had wide powers (as the law
stood prior to Act No. 3176) and the high
degree of trust reposed in him stands out more
clearly in view of the fact that he was the owner
of a half interest in his own right of the conjugal
 estate which he was charged to administer. He
could therefore no more acquire a title by
prescription against those for whom he was
administering the conjugal estate than could a
guardian against his ward or a judicial
administrator against the heirs of estate.
Section 38 of Chapter III of the Code of Civil
Procedure, with relation to prescription,
provides that "this chapter shall not apply ... in
the case of a continuing and subsisting trust."
The surviving husband in the administration and
liquidation of the conjugal estate occupies the
position of a trustee of the highest order and is
not permitted by the law to hold that estate or
any portion thereof adversely to those for
whose benefit the law imposes upon him the
duty of administration and liquidation. No
liquidation was ever made by Lasam — hence,
the conjugal property which came into his
possession on the death of his wife in
September, 1908, still remains conjugal
property, a continuing and subsisting trust. He
should have made a liquidation immediately
(desde luego). He cannot now be permitted to
take advantage of his own wrong. One of the
conditions of title by prescription (section 41,
Code of Civil Procedure) is possession "under a
claim of title exclusive of any other right". For a
trustee to make such a claim would be a
manifest fraud.
And knowing thus his responsibilities in the premises, We are
not convinced that Hodges arrogated everything unto himself
leaving nothing at all to be inherited by his wife's brothers and
sisters.
PCIB insists, however, that to read the orders of May 27 and
December 14, 1957, not as adjudicatory, but merely as
approving past and authorizing future dispositions made by
Hodges in a wholesale and general manner, would necessarily
render the said orders void for being violative of the provisions
of Rule 89 governing the manner in which such dispositions
may be made and how the authority therefor and approval
thereof by the probate court may be secured. If We sustained
such a view, the result would only be that the said orders
should be declared ineffective either way they are understood,
considering We have already seen it is legally impossible to
consider them as adjudicatory. As a matter of fact, however,
what surges immediately to the surface, relative to PCIB's
observations based on Rule 89, is that from such point of view,
the supposed irregularity would involve no more than some
non-jurisdictional technicalities of procedure, which have for
their evident fundamental purpose the protection of parties
interested in the estate, such as the heirs, its creditors,
particularly the government on account of the taxes due it; and
since it is apparent here that none of such parties are
objecting to said orders or would be prejudiced by the
unobservance by the trial court of the procedure pointed out by
PCIB, We find no legal inconvenience in nor impediment to
Our giving sanction to the blanket approval and authority
contained in said orders. This solution is definitely preferable
in law and in equity, for to view said orders in the sense
suggested by PCIB would result in the deprivation of
substantive rights to the brothers and sisters of Mrs. Hodges,
whereas reading them the other way will not cause any
prejudice to anyone, and, withal, will give peace of mind and
stability of rights to the innocent parties who relied on them in
good faith, in the light of the peculiar pertinent provisions of the
will of said decedent.
Now, the inventory submitted by Hodges on May 12, 1958
referred to the estate of his wife as consisting of "One-half of
all the items designated in the balance sheet, copy of which is
hereto attached and marked as "Annex A"." Although,
regrettably, no copy of said Annex A appears in the records
before Us, We take judicial notice, on the basis of the
undisputed facts in these cases, that the same consists of
considerable real and other personal kinds of properties. And
since, according to her will, her husband was to be the sole
owner thereof during his lifetime, with full power and authority
to dispose of any of them, provided that should there be any
remainder upon his death, such remainder would go to her
brothers and sisters, and furthermore, there is no pretension,
much less any proof that Hodges had in fact disposed of all of
them, and, on the contrary, the indications are rather to the
effect that he had kept them more or less intact, it cannot
truthfully be said that, upon the death of Hodges, there was no
more estate of Mrs. Hodges to speak of. It is Our conclusion,
therefore, that properties do exist which constitute such estate,
hence Special Proceedings 1307 should not yet be closed.
Neither is there basis for holding that respondent Magno has
ceased to be the Administratrix in said proceeding. There is no
showing that she has ever been legally removed as such, the
attempt to replace her with Mr. Benito Lopez without authority
from the Court having been expressly held ineffective by Our
resolution of September 8, 1972. Parenthetically, on this last
point, PCIB itself is very emphatic in stressing that it is not
questioning said respondent's status as such administratrix.
Indeed, it is not clear that PCIB has any standing to raise any
objection thereto, considering it is a complete stranger insofar
as the estate of Mrs. Hodges is concerned.
It is the contention of PCIB, however, that as things actually
stood at the time of Hodges' death, their conjugal partnership
had not yet been liquidated and, inasmuch as the properties
composing the same were thus commingled pro indiviso and,
consequently, the properties pertaining to the estate of each of
the spouses are not yet identifiable, it is PCIB alone, as
administrator of the estate of Hodges, who should administer
everything, and all that respondent Magno can do for the time
being is to wait until the properties constituting the remaining
estate of Mrs. Hodges have been duly segregated and
delivered to her for her own administration. Seemingly, PCIB
would liken the Testate Estate of Linnie Jane Hodges to a
party having a claim of ownership to some properties included
in the inventory of an administrator of the estate of a decedent,
(here that of Hodges) and who normally has no right to take
part in the proceedings pending the establishment of his right
or title; for which as a rule it is required that an ordinary action
should be filed, since the probate court is without jurisdiction to
pass with finality on questions of title between the estate of the
deceased, on the one hand, and a third party or even an heir
claiming adversely against the estate, on the other.
We do not find such contention sufficiently persuasive. As We
see it, the situation obtaining herein cannot be compared with
the claim of a third party the basis of which is alien to the
pending probate proceedings. In the present cases what gave
rise to the claim of PCIB of exclusive ownership by the estate
of Hodges over all the properties of the Hodges spouses,
including the share of Mrs. Hodges in the community
properties, were the orders of the trial court issued in the
course of the very settlement proceedings themselves, more
specifically, the orders of May 27 and December 14, 1957 so
often mentioned above. In other words, the root of the issue of
title between the parties is something that the court itself has
done in the exercise of its probate jurisdiction. And since in the
ultimate analysis, the question of whether or not all the
properties herein involved pertain exclusively to the estate of
Hodges depends on the legal meaning and effect of said
orders, the claim that respondent court has no jurisdiction to
take cognizance of and decide the said issue is incorrect. If it
was within the competence of the court to issue the root
orders, why should it not be within its authority to declare their
true significance and intent, to the end that the parties may
know whether or not the estate of Mrs. Hodges had already
been adjudicated by the court, upon the initiative of Hodges, in
his favor, to the exclusion of the other heirs of his wife
instituted in her will?
At this point, it bears emphasis again that the main cause of all
the present problems confronting the courts and the parties in
these cases was the failure of Hodges to secure, as executor
of his wife's estate, from May, 1957 up to the time of his death
in December, 1962, a period of more than five years, the final
adjudication of her estate and the closure of the proceedings.
The record is bare of any showing that he ever exerted any
effort towards the early settlement of said estate. While, on the
one hand, there are enough indications, as already discuss
that he had intentions of leaving intact her share of the
conjugal properties so that it may pass wholly to his co-heirs
upon his death, pursuant to her will, on the other hand, by not
terminating the proceedings, his interests in his own half of the
conjugal properties remained commingled pro-indiviso with
those of his co-heirs in the other half. Obviously, such a
situation could not be conducive to ready ascertainment of the
portion of the inheritance that should appertain to his co-heirs
upon his death. Having these considerations in mind, it would
be giving a premium for such procrastination and rather unfair
to his co-heirs, if the administrator of his estate were to be
given exclusive administration of all the properties in question,
which would necessarily include the function of promptly
liquidating the conjugal partnership, thereby identifying and
segregating without unnecessary loss of time which properties
should be considered as constituting the estate of Mrs.
Hodges, the remainder of which her brothers and sisters are
supposed to inherit equally among themselves.
To be sure, an administrator is not supposed to represent the
interests of any particular party and his acts are deemed to be
objectively for the protection of the rights of everybody
concerned with the estate of the decedent, and from this point
of view, it maybe said that even if PCIB were to act alone,
there should be no fear of undue disadvantage to anyone. On
the other hand, however, it is evidently implicit in section 6 of
Rule 78 fixing the priority among those to whom letters of
administration should be granted that the criterion in the
selection of the administrator is not his impartiality alone but,
more importantly, the extent of his interest in the estate, so
much so that the one assumed to have greater interest is
preferred to another who has less. Taking both of these
considerations into account, inasmuch as, according to
Hodges' own inventory submitted by him as Executor of the
estate of his wife, practically all their properties were conjugal
which means that the spouses have equal shares therein, it is
but logical that both estates should be administered jointly by
representatives of both, pending their segregation from each
other. Particularly is such an arrangement warranted because
the actuations so far of PCIB evince a determined, albeit
groundless, intent to exclude the other heirs of Mrs. Hodges
from their inheritance. Besides, to allow PCIB, the
administrator of his estate, to perform now what Hodges was
duty bound to do as executor is to violate the spirit, if not the
letter, of Section 2 of Rule 78 which expressly provides that
"The executor of an executor shall not, as such, administer the
estate of the first testator." It goes without saying that this
provision refers also to the administrator of an executor like
PCIB here.
We are not unmindful of the fact that under Section 2 of Rule
73, "When the marriage is dissolved by the death of the
husband or wife, the community property shall be inventoried,
administered, and liquidated, and the debts thereof paid, in the
testate or intestate proceedings of the deceased spouse. If
both spouses have died, the conjugal partnership shall be
liquidated in the testate or intestate proceedings of either."
Indeed, it is true that the last sentence of this provision allows
or permits the conjugal partnership of spouses who are both
deceased to be settled or liquidated in the testate or intestate
proceedings of either, but precisely because said sentence
allows or permits that the liquidation be made in either
proceeding, it is a matter of sound judicial discretion in which
one it should be made. After all, the former rule referring to the
administrator of the husband's estate in respect to such
liquidation was done away with by Act 3176, the pertinent
provisions of which are now embodied in the rule just cited.
Thus, it can be seen that at the time of the death of Hodges,
there was already the pending judicial settlement proceeding
of the estate of Mrs. Hodges, and, more importantly, that the
former was the executor of the latter's will who had, as such,
failed for more than five years to see to it that the same was
terminated earliest, which was not difficult to do, since from
ought that appears in the record, there were no serious
obstacles on the way, the estate not being indebted and there
being no immediate heirs other than Hodges himself. Such
dilatory or indifferent attitude could only spell possible
prejudice of his co-heirs, whose rights to inheritance depend
entirely on the existence of any remainder of Mrs. Hodges'
share in the community properties, and who are now faced
with the pose of PCIB that there is no such remainder. Had
Hodges secured as early as possible the settlement of his
wife's estate, this problem would not arisen. All things
considered, We are fully convinced that the interests of justice
will be better served by not permitting or allowing PCIB or any
administrator of the estate of Hodges exclusive administration
of all the properties in question. We are of the considered
opinion and so hold that what would be just and proper is for
both administrators of the two estates to act conjointly until
after said estates have been segregated from each other.
At this juncture, it may be stated that we are not overlooking
the fact that it is PCIB's contention that, viewed as a
substitution, the testamentary disposition in favor of Mrs.
Hodges' brothers and sisters may not be given effect. To a
certain extent, this contention is correct. Indeed, legally
speaking, Mrs. Hodges' will provides neither for a simple or
vulgar substitution under Article 859 of the Civil Code nor for a
fideicommissary substitution under Article 863 thereof. There
is no vulgar substitution therein because there is no provision
for either (1) predecease of the testator by the designated heir
or (2) refusal or (3) incapacity of the latter to accept the
inheritance, as required by Article 859; and neither is there a
fideicommissary substitution therein because no obligation is
imposed thereby upon Hodges to preserve the estate or any
part thereof for anyone else. But from these premises, it is not
correct to jump to the conclusion, as PCIB does, that the
testamentary dispositions in question are therefore inoperative
and invalid.
The error in PCIB's position lies simply in the fact that it views
the said disposition exclusively in the light of substitutions
covered by the Civil Code section on that subject, (Section 3,
Chapter 2, Title IV, Book III) when it is obvious that substitution
occurs only when another heir is appointed in a will "so that he
may enter into inheritance in default of the heir originally
instituted," (Article 857, id.) and, in the present case, no such
possible default is contemplated. The brothers and sisters of
Mrs. Hodges are not substitutes for Hodges because, under
her will, they are not to inherit what Hodges cannot, would not
or may not inherit, but what he would not dispose of from his
inheritance; rather, therefore, they are also heirs instituted
simultaneously with Hodges, subject, however, to certain
conditions, partially resolutory insofar as Hodges was
concerned and correspondingly suspensive with reference to
his brothers and sisters-in-law. It is partially resolutory, since it
bequeaths unto Hodges the whole of her estate to be owned
and enjoyed by him as universal and sole heir with absolute
dominion over them6 only during his lifetime, which means that
while he could completely and absolutely dispose of any
portion thereof inter vivos to anyone other than himself, he
was not free to do so mortis causa, and all his rights to what
might remain upon his death would cease entirely upon the
occurrence of that contingency, inasmuch as the right of his
brothers and sisters-in-law to the inheritance, although vested
already upon the death of Mrs. Hodges, would automatically
become operative upon the occurrence of the death of Hodges
in the event of actual existence of any remainder of her estate
then.
Contrary to the view of respondent Magno, however, it was not
the usufruct alone of her estate, as contemplated in Article 869
of the Civil Code, that she bequeathed to Hodges during his
lifetime, but the full ownership thereof, although the same was
to last also during his lifetime only, even as there was no
restriction whatsoever against his disposing or conveying the
whole or any portion thereof to anybody other than himself.
The Court sees no legal impediment to this kind of institution,
in this jurisdiction or under Philippine law, except that it cannot
apply to the legitime of Hodges as the surviving spouse,
consisting of one-half of the estate, considering that Mrs.
Hodges had no surviving ascendants nor descendants. (Arts.
872, 900, and 904, New Civil Code.)
But relative precisely to the question of how much of Mrs.
Hodges' share of the conjugal partnership properties may be
considered as her estate, the parties are in disagreement as to
how Article 16 of the Civil Code7 should be applied. On the one
hand, petitioner claims that inasmuch as Mrs. Hodges was a
resident of the Philippines at the time of her death, under said
Article 16, construed in relation to the pertinent laws of Texas
and the principle of renvoi, what should be applied here should
be the rules of succession under the Civil Code of the
Philippines, and, therefore, her estate could consist of no more
than one-fourth of the said conjugal properties, the other fourth
being, as already explained, the legitime of her husband (Art.
900, Civil Code) which she could not have disposed of nor
burdened with any condition (Art. 872, Civil Code). On the
other hand, respondent Magno denies that Mrs. Hodges died a
resident of the Philippines, since allegedly she never changed
nor intended to change her original residence of birth in Texas,
United States of America, and contends that, anyway,
regardless of the question of her residence, she being
indisputably a citizen of Texas, under said Article 16 of the Civil
Code, the distribution of her estate is subject to the laws of
said State which, according to her, do not provide for any
legitime, hence, the brothers and sisters of Mrs. Hodges are
entitled to the remainder of the whole of her share of the
conjugal partnership properties consisting of one-half thereof.
Respondent Magno further maintains that, in any event,
Hodges had renounced his rights under the will in favor of his
co-heirs, as allegedly proven by the documents touching on
the point already mentioned earlier, the genuineness and legal
significance of which petitioner seemingly questions. Besides,
the parties are disagreed as to what the pertinent laws of
Texas provide. In the interest of settling the estates herein
involved soonest, it would be best, indeed, if these conflicting
claims of the parties were determined in these proceedings.
The Court regrets, however, that it cannot do so, for the simple
reason that neither the evidence submitted by the parties in
the court below nor their discussion, in their respective briefs
and memoranda before Us, of their respective contentions on
the pertinent legal issues, of grave importance as they are,
appear to Us to be adequate enough to enable Us to render
an intelligent comprehensive and just resolution. For one thing,
there is no clear and reliable proof of what in fact the possibly
applicable laws of Texas are. 7* Then also, the genuineness of
documents relied upon by respondent Magno is disputed. And
there are a number of still other conceivable related issues
which the parties may wish to raise but which it is not proper to
mention here. In Justice, therefore, to all the parties
concerned, these and all other relevant matters should first be
threshed out fully in the trial court in the proceedings hereafter
to be held therein for the purpose of ascertaining and
adjudicating and/or distributing the estate of Mrs. Hodges to
her heirs in accordance with her duly probated will.
To be more explicit, all that We can and do decide in
connection with the petition for certiorari and prohibition are:
(1) that regardless of which corresponding laws are applied,
whether of the Philippines or of Texas, and taking for granted
either of the respective contentions of the parties as to
provisions of the latter,8 and regardless also of whether or not
it can be proven by competent evidence that Hodges
renounced his inheritance in any degree, it is easily and
definitely discernible from the inventory submitted by Hodges
himself, as Executor of his wife's estate, that there are
properties which should constitute the estate of Mrs. Hodges
and ought to be disposed of or distributed among her heirs
pursuant to her will in said Special Proceedings 1307; (2) that,
more specifically, inasmuch as the question of what are the
pertinent laws of Texas applicable to the situation herein is
basically one of fact, and, considering that the sole difference
in the positions of the parties as to the effect of said laws has
reference to the supposed legitime of Hodges — it being the
stand of PCIB that Hodges had such a legitime whereas
Magno claims the negative - it is now beyond controversy for
all future purposes of these proceedings that whatever be the
provisions actually of the laws of Texas applicable hereto, the
estate of Mrs. Hodges is at least, one-fourth of the conjugal
estate of the spouses; the existence and effects of foreign
laws being questions of fact, and it being the position now of
PCIB that the estate of Mrs. Hodges, pursuant to the laws of
Texas, should only be one-fourth of the conjugal estate, such
contention constitutes an admission of fact, and consequently,
it would be in estoppel in any further proceedings in these
cases to claim that said estate could be less, irrespective of
what might be proven later to be actually the provisions of the
applicable laws of Texas; (3) that Special Proceedings 1307
for the settlement of the testate estate of Mrs. Hodges cannot
be closed at this stage and should proceed to its logical
conclusion, there having been no proper and legal adjudication
or distribution yet of the estate therein involved; and (4) that
respondent Magno remains and continues to be the
Administratrix therein. Hence, nothing in the foregoing opinion
is intended to resolve the issues which, as already stated, are
not properly before the Court now, namely, (1) whether or not
Hodges had in fact and in law waived or renounced his
inheritance from Mrs. Hodges, in whole or in part, and (2)
assuming there had been no such waiver, whether or not, by
the application of Article 16 of the Civil Code, and in the light of
what might be the applicable laws of Texas on the matter, the
estate of Mrs. Hodges is more than the one-fourth declared
above. As a matter of fact, even our finding above about the
existence of properties constituting the estate of Mrs. Hodges
rests largely on a general appraisal of the size and extent of
the conjugal partnership gathered from reference made
thereto by both parties in their briefs as well as in their
pleadings included in the records on appeal, and it should
accordingly yield, as to which exactly those properties are, to
the more concrete and specific evidence which the parties are
supposed to present in support of their respective positions in
regard to the foregoing main legal and factual issues. In the
interest of justice, the parties should be allowed to present
such further evidence in relation to all these issues in a joint
hearing of the two probate proceedings herein involved. After
all, the court a quo has not yet passed squarely on these
issues, and it is best for all concerned that it should do so in
the first instance.
Relative to Our holding above that the estate of Mrs. Hodges
cannot be less than the remainder of one-fourth of the
conjugal partnership properties, it may be mentioned here that
during the deliberations, the point was raised as to whether or
not said holding might be inconsistent with Our other ruling
here also that, since there is no reliable evidence as to what
are the applicable laws of Texas, U.S.A. "with respect to the
order of succession and to the amount of successional rights"
that may be willed by a testator which, under Article 16 of the
Civil Code, are controlling in the instant cases, in view of the
undisputed Texan nationality of the deceased Mrs. Hodges,
these cases should be returned to the court a quo, so that the
parties may prove what said law provides, it is premature for
Us to make any specific ruling now on either the validity of the
testamentary dispositions herein involved or the amount of
inheritance to which the brothers and sisters of Mrs. Hodges
are entitled. After nature reflection, We are of the considered
view that, at this stage and in the state of the records before
Us, the feared inconsistency is more apparent than real.
Withal, it no longer lies in the lips of petitioner PCIB to make
any claim that under the laws of Texas, the estate of Mrs.
Hodges could in any event be less than that We have fixed
above.
It should be borne in mind that as above-indicated, the
question of what are the laws of Texas governing the matters
herein issue is, in the first instance, one of fact, not of law.
Elementary is the rule that foreign laws may not be taken
judicial notice of and have to be proven like any other fact in
dispute between the parties in any proceeding, with the rare
exception in instances when the said laws are already within
the actual knowledge of the court, such as when they are well
and generally known or they have been actually ruled upon in
other cases before it and none of the parties concerned do not
claim otherwise. (5 Moran, Comments on the Rules of Court,
p. 41, 1970 ed.) In Fluemer vs. Hix, 54 Phil. 610, it was held:
It is the theory of the petitioner that the alleged will was
executed in Elkins West Virginia, on November 3, 1925, by Hix
who had his residence in that jurisdiction, and that the laws of
West Virginia govern. To this end, there was submitted a copy
of section 3868 of Acts 1882, c. 84 as found in West Virginia
Code, Annotated, by Hogg Charles E., vol. 2, 1914, p. 1960,
and as certified to by the Director of the National Library. But
this was far from a compliance with the law. The laws of a
foreign jurisdiction do not prove themselves in our courts. The
courts of the Philippine Islands are not authorized to take
judicial notice of the laws of the various States of the American
Union. Such laws must be proved as facts. (In re Estate of
Johnson [1918], 39 Phil., 156.) Here the requirements of the
law were not met. There was no showing that the book from
which an extract was taken was printed or published under the
authority of the State of West Virginia, as provided in section
300 of the Code of Civil Procedure. Nor was the extract from
the law attested by the certificate of the officer having charge
of the original, under the seal of the State of West Virginia, as
provided in section 301 of the Code of Civil Procedure. No
evidence was introduced to show that the extract from the
laws of West Virginia was in force at the time the alleged will
was executed."
No evidence of the nature thus suggested by the Court may be
found in the records of the cases at bar. Quite to the contrary,
the parties herein have presented opposing versions in their
respective pleadings and memoranda regarding the matter.
And even if We took into account that in Aznar vs. Garcia, the
Court did make reference to certain provisions regarding
succession in the laws of Texas, the disparity in the material
dates of that case and the present ones would not permit Us to
indulge in the hazardous conjecture that said provisions have
not been amended or changed in the meantime.
On the other hand, in In re Estate of Johnson, 39 Phil. 156,
We held:
Upon the other point — as to whether the will
was executed in conformity with the statutes of
the State of Illinois — we note that it does not
affirmatively appear from the transcription of the
testimony adduced in the trial court that any
witness was examined with reference to the law
of Illinois on the subject of the execution of will.
The trial judge no doubt was satisfied that the
will was properly executed by examining
section 1874 of the Revised Statutes of Illinois,
as exhibited in volume 3 of Starr & Curtis's
Annotated Illinois Statutes, 2nd ed., p. 426; and
he may have assumed that he could take
judicial notice of the laws of Illinois under
section 275 of the Code of Civil Procedure. If
so, he was in our opinion mistaken. That
section authorizes the courts here to take
judicial notice, among other things, of the acts
of the legislative department of the United
States. These words clearly have reference to
Acts of the Congress of the United States; and
we would hesitate to hold that our courts can,
under this provision, take judicial notice of the
multifarious laws of the various American
States. Nor do we think that any such authority
can be derived from the broader language,
used in the same section, where it is said that
our courts may take judicial notice of matters of
public knowledge "similar" to those therein
enumerated. The proper rule we think is to
require proof of the statutes of the States of the
American Union whenever their provisions are
determinative of the issues in any action
litigated in the Philippine courts.
Nevertheless, even supposing that the trial
court may have erred in taking judicial notice of
the law of Illinois on the point in question, such
error is not now available to the petitioner, first,
because the petition does not state any fact
from which it would appear that the law of
Illinois is different from what the court found,
and, secondly, because the assignment of error
and argument for the appellant in this court
raises no question based on such supposed
error. Though the trial court may have acted
upon pure conjecture as to the law prevailing in
the State of Illinois, its judgment could not be
set aside, even upon application made within
six months under section 113 of the Code of
Civil Procedure, unless it should be made to
appear affirmatively that the conjecture was
wrong. The petitioner, it is true, states in general
terms that the will in question is invalid and
inadequate to pass real and personal property
in the State of Illinois, but this is merely a
conclusion of law. The affidavits by which the
petition is accompanied contain no reference to
the subject, and we are cited to no authority in
the appellant's brief which might tend to raise a
doubt as to the correctness of the conclusion of
the trial court. It is very clear, therefore, that this
point cannot be urged as of serious moment.
It is implicit in the above ruling that when, with respect to
certain aspects of the foreign laws concerned, the parties in a
given case do not have any controversy or are more or less in
agreement, the Court may take it for granted for the purposes
of the particular case before it that the said laws are as such
virtual agreement indicates, without the need of requiring the
presentation of what otherwise would be the competent
evidence on the point. Thus, in the instant cases wherein it
results from the respective contentions of both parties that
even if the pertinent laws of Texas were known and to be
applied, the amount of the inheritance pertaining to the heirs of
Mrs. Hodges is as We have fixed above, the absence of
evidence to the effect that, actually and in fact, under said
laws, it could be otherwise is of no longer of any consequence,
unless the purpose is to show that it could be more. In other
words, since PCIB, the petitioner-appellant, concedes that
upon application of Article 16 of the Civil Code and the
pertinent laws of Texas, the amount of the estate in
controversy is just as We have determined it to be, and
respondent-appellee is only claiming, on her part, that it could
be more, PCIB may not now or later pretend differently.
In its main brief dated February 26, 1968, PCIB asserts:
To be more concrete, on pages 20-21 of its petition herein,
dated July 31, 1967, PCIB states categorically:
Inasmuch as Article 16 of the Civil Code
provides that "intestate and testamentary
successions both with respect to the order of
succession and to the amount of successional
rights and to the intrinsic validity of
testamentary provisions, shall be regulated by
the national law of the person whose
succession is under consideration, whatever
may be the nature of the property and
regardless of the country wherein said property
may be found", while the law of Texas (the
Hodges spouses being nationals of U.S.A.,
State of Texas), in its conflicts of law rules,
provides that the domiciliary law (in this case
Philippine law) governs the testamentary
dispositions and successional rights over
movables or personal properties, while the law
of the situs (in this case also Philippine law with
respect to all Hodges properties located in the
Philippines), governs with respect to immovable
properties, and applying therefore the 'renvoi
doctrine' as enunciated and applied by this
Honorable Court in the case of In re Estate of
Christensen (G.R. No. L-16749, Jan. 31, 1963),
there can be no question that Philippine law
governs the testamentary dispositions
contained in the Last Will and Testament of the
deceased Linnie Jane Hodges, as well as the
successional rights to her estate, both with
respect to movables, as well as to immovables
situated in the Philippines.
The law governing successional rights.
As recited above, there is no question that the
deceased, Linnie Jane Hodges, was an
American citizen. There is also no question that
she was a national of the State of Texas, U.S.A.
Again, there is likewise no question that she
had her domicile of choice in the City of Iloilo,
Philippines, as this has already been
pronounced by the above-cited orders of the
lower court, pronouncements which are by
now res adjudicata (par. [a], See. 49, Rule 39,
Rules of Court; In re Estate of Johnson, 39 Phil.
156).
Article 16 of the Civil Code provides:
"Real property as well as personal property is
subject to the law of the country where it is
situated.
However, intestate and testamentary
successions, both with respect to the order of
succession and to the amount of successional
rights and to the intrinsic validity of
testamentary provisions, shall be regulated by
the national law of the person whose
succession is under consideration, whatever
may be the nature of the property and
regardless of the country wherein said property
may be found."
Thus the aforecited provision of the Civil Code
points towards the national law of the
deceased, Linnie Jane Hodges, which is the
law of Texas, as governing succession "both
with respect to the order of succession and to
the amount of successional rights and to the
intrinsic validity of testamentary provisions ...".
But the law of Texas, in its conflicts of law rules,
provides that the domiciliary law governs the
testamentary dispositions and successional
rights over movables or personal property, while
the law of the situs governs with respect to
immovable property. Such that with respect to
both movable property, as well as immovable
property situated in the Philippines, the law of
Texas points to the law of the Philippines.
Applying, therefore, the so-called "renvoi
doctrine", as enunciated and applied by this
Honorable Court in the case of "In re
Christensen" (G.R. No. L-16749, Jan. 31,
1963), there can be no question that Philippine
law governs the testamentary provisions in the
Last Will and Testament of the deceased Linnie
Jane Hodges, as well as the successional rights
to her estate, both with respect to movables, as
well as immovables situated in the Philippines.
The subject of successional rights.
Under Philippine law, as it is under the law of
Texas, the conjugal or community property of
the spouses, Charles Newton Hodges and
Linnie Jane Hodges, upon the death of the
latter, is to be divided into two, one-half
pertaining to each of the spouses, as his or her
own property. Thus, upon the death of Linnie
Jane Hodges, one-half of the conjugal
partnership property immediately pertained to
Charles Newton Hodges as his own share, and
not by virtue of any successional rights. There
can be no question about this.
Again, Philippine law, or more specifically,
Article 900 of the Civil Code provides:
If the only survivor is the widow
or widower, she or he shall be
entitled to one-half of the
hereditary estate of the
deceased spouse, and the
testator may freely dispose of
the other half.
If the marriage between the
surviving spouse and the testator
was solemnized in articulo
 mortis, and the testator died
within three months from the
time of the marriage, the legitime
of the surviving spouse as the
sole heir shall be one-third of the
hereditary estate, except when
they have been living as
husband and wife for more than
five years. In the latter case, the
legitime of the surviving spouse
shall be that specified in the
preceding paragraph.
This legitime of the surviving spouse cannot be
burdened by a fideicommisary substitution (Art.
864, Civil code), nor by any charge, condition,
or substitution (Art, 872, Civil code). It is clear,
therefore, that in addition to one-half of the
conjugal partnership property as his own
conjugal share, Charles Newton Hodges was
also immediately entitled to one-half of the half
conjugal share of the deceased, Linnie Jane
Hodges, or one-fourth of the entire conjugal
property, as his legitime.
One-fourth of the conjugal property therefore
remains at issue.
In the summary of its arguments in its memorandum dated
April 30, 1968, the following appears:
Briefly, the position advanced by the petitioner
is:
a. That the Hodges spouses were domiciled
legally in the Philippines (pp. 19-20, petition).
This is now a matter of res adjudicata (p. 20,
petition).
b. That under Philippine law, Texas law, and the
renvoi doctrine, Philippine law governs the
successional rights over the properties left by
the deceased, Linnie Jane Hodges (pp. 20-21,
petition).
c. That under Philippine as well as Texas law,
one-half of the Hodges properties pertains to
the deceased, Charles Newton Hodges (p. 21,
petition). This is not questioned by the
respondents.
d. That under Philippine law, the deceased,
Charles Newton Hodges, automatically
inherited one-half of the remaining one-half of
the Hodges properties as his legitime (p. 21,
petition).
e. That the remaining 25% of the Hodges
properties was inherited by the deceased,
Charles Newton Hodges, under the will of his
deceased spouse (pp. 22-23, petition). Upon
the death of Charles Newton Hodges, the
substitution 'provision of the will of the
deceased, Linnie Jane Hodges, did not operate
because the same is void (pp. 23-25, petition).
f. That the deceased, Charles Newton Hodges,
asserted his sole ownership of the Hodges
properties and the probate court sanctioned
such assertion (pp. 25-29, petition). He in fact
assumed such ownership and such was the
 status of the properties as of the time of his
death (pp. 29-34, petition).
Of similar tenor are the allegations of PCIB in some of its
pleadings quoted in the earlier part of this option.
On her part, it is respondent-appellee Magno's posture that
under the laws of Texas, there is no system of legitime, hence
the estate of Mrs. Hodges should be one-half of all the
conjugal properties.
It is thus unquestionable that as far as PCIB is concerned, the
application to these cases of Article 16 of the Civil Code in
relation to the corresponding laws of Texas would result in that
the Philippine laws on succession should control. On that
basis, as We have already explained above, the estate of Mrs.
Hodges is the remainder of one-fourth of the conjugal
partnership properties, considering that We have found that
there is no legal impediment to the kind of disposition ordered
by Mrs. Hodges in her will in favor of her brothers and sisters
and, further, that the contention of PCIB that the same
constitutes an inoperative testamentary substitution is
untenable. As will be recalled, PCIB's position that there is no
such estate of Mrs. Hodges is predicated exclusively on two
propositions, namely: (1) that the provision in question in Mrs.
Hodges' testament violates the rules on substitution of heirs
under the Civil Code and (2) that, in any event, by the orders
of the trial court of May 27, and December 14, 1957, the trial
court had already finally and irrevocably adjudicated to her
husband the whole free portion of her estate to the exclusion
of her brothers and sisters, both of which poses, We have
overruled. Nowhere in its pleadings, briefs and memoranda
does PCIB maintain that the application of the laws of Texas
would result in the other heirs of Mrs. Hodges not inheriting
anything under her will. And since PCIB's representations in
regard to the laws of Texas virtually constitute admissions of
fact which the other parties and the Court are being made to
rely and act upon, PCIB is "not permitted to contradict them or
subsequently take a position contradictory to or inconsistent
with them." (5 Moran, id, p. 65, citing Cunanan vs. Amparo, 80
Phil. 227; Sta. Ana vs. Maliwat, L-23023, Aug. 31, 1968, 24
SCRA 1018).
Accordingly, the only question that remains to be settled in the
further proceedings hereby ordered to be held in the court
below is how much more than as fixed above is the estate of
Mrs. Hodges, and this would depend on (1) whether or not the
applicable laws of Texas do provide in effect for more, such as,
when there is no legitime provided therein, and (2) whether or
not Hodges has validly waived his whole inheritance from Mrs.
Hodges.
In the course of the deliberations, it was brought out by some
members of the Court that to avoid or, at least, minimize
further protracted legal controversies between the respective
heirs of the Hodges spouses, it is imperative to elucidate on
the possible consequences of dispositions made by Hodges
after the death of his wife from the mass of the unpartitioned
estates without any express indication in the pertinent
documents as to whether his intention is to dispose of part of
his inheritance from his wife or part of his own share of the
conjugal estate as well as of those made by PCIB after the
death of Hodges. After a long discussion, the consensus
arrived at was as follows: (1) any such dispositions
made gratuitously in favor of third parties, whether these be
individuals, corporations or foundations, shall be considered
as intended to be of properties constituting part of Hodges'
inheritance from his wife, it appearing from the tenor of his
motions of May 27 and December 11, 1957 that in asking for
general authority to make sales or other disposals of
properties under the jurisdiction of the court, which include his
own share of the conjugal estate, he was not invoking
particularly his right over his own share, but rather his right to
dispose of any part of his inheritance pursuant to the will of his
wife; (2) as regards sales, exchanges or
other remunerative transfers, the proceeds of such sales or
the properties taken in by virtue of such exchanges, shall be
considered as merely the products of "physical changes" of
the properties of her estate which the will expressly authorizes
Hodges to make, provided that whatever of said products
should remain with the estate at the time of the death of
Hodges should go to her brothers and sisters; (3) the
dispositions made by PCIB after the death of Hodges must
naturally be deemed as covering only the properties belonging
to his estate considering that being only the administrator of
the estate of Hodges, PCIB could not have disposed of
properties belonging to the estate of his wife. Neither could
such dispositions be considered as involving conjugal
properties, for the simple reason that the conjugal partnership
automatically ceased when Mrs. Hodges died, and by the
peculiar provision of her will, under discussion, the remainder
of her share descended also automatically upon the death of
Hodges to her brothers and sisters, thus outside of the scope
of PCIB's administration. Accordingly, these construction of the
will of Mrs. Hodges should be adhered to by the trial court in
its final order of adjudication and distribution and/or partition of
the two estates in question.
THE APPEALS
A cursory examination of the seventy-eight assignments of
error in appellant PCIB's brief would readily reveal that all of
them are predicated mainly on the contention that inasmuch
as Hodges had already adjudicated unto himself all the
properties constituting his wife's share of the conjugal
partnership, allegedly with the sanction of the trial court per its
order of December 14, 1957, there has been, since said date,
no longer any estate of Mrs. Hodges of which appellee Magno
could be administratrix, hence the various assailed orders
sanctioning her actuations as such are not in accordance with
law. Such being the case, with the foregoing resolution holding
such posture to be untenable in fact and in law and that it is in
the best interest of justice that for the time being the two
estates should be administered conjointly by the respective
administrators of the two estates, it should follow that said
assignments of error have lost their fundamental reasons for
being. There are certain matters, however, relating peculiarly
to the respective orders in question, if commonly among some
of them, which need further clarification. For instance, some of
them authorized respondent Magno to act alone or without
concurrence of PCIB. And with respect to many of said orders,
PCIB further claims that either the matters involved were not
properly within the probate jurisdiction of the trial court or that
the procedure followed was not in accordance with the rules.
Hence, the necessity of dealing separately with the merits of
each of the appeals.
Indeed, inasmuch as the said two estates have until now
remained commingled pro-indiviso, due to the failure of
Hodges and the lower court to liquidate the conjugal
partnership, to recognize appellee Magno as Administratrix of
the Testate Estate of Mrs. Hodges which is still unsegregated
from that of Hodges is not to say, without any qualification, that
she was therefore authorized to do and perform all her acts
complained of in these appeals, sanctioned though they might
have been by the trial court. As a matter of fact, it is such
commingling pro-indiviso of the two estates that should
deprive appellee of freedom to act independently from PCIB,
as administrator of the estate of Hodges, just as, for the same
reason, the latter should not have authority to act
independently from her. And considering that the lower court
failed to adhere consistently to this basic point of view, by
allowing the two administrators to act independently of each
other, in the various instances already noted in the narration of
facts above, the Court has to look into the attendant
circumstances of each of the appealed orders to be able to
determine whether any of them has to be set aside or they
may all be legally maintained notwithstanding the failure of the
court a quo to observe the pertinent procedural technicalities,
to the end only that graver injury to the substantive rights of
the parties concerned and unnecessary and undesirable
proliferation of incidents in the subject proceedings may be
forestalled. In other words, We have to determine, whether or
not, in the light of the unusual circumstances extant in the
record, there is need to be more pragmatic and to adopt a
rather unorthodox approach, so as to cause the least
disturbance in rights already being exercised by numerous
innocent third parties, even if to do so may not appear to be
strictly in accordance with the letter of the applicable purely
adjective rules.
Incidentally, it may be mentioned, at this point, that it was
principally on account of the confusion that might result later
from PCIB's continuing to administer all the community
properties, notwithstanding the certainty of the existence of the
separate estate of Mrs. Hodges, and to enable both estates to
function in the meantime with a relative degree of regularity,
that the Court ordered in the resolution of September 8, 1972
the modification of the injunction issued pursuant to the
resolutions of August 8, October 4 and December 6, 1967, by
virtue of which respondent Magno was completely barred from
any participation in the administration of the properties herein
involved. In the September 8 resolution, We ordered that,
pending this decision, Special Proceedings 1307 and 1672
should proceed jointly and that the respective administrators
therein "act conjointly — none of them to act singly and
independently of each other for any purpose." Upon mature
deliberation, We felt that to allow PCIB to continue managing
or administering all the said properties to the exclusion of the
administratrix of Mrs. Hodges' estate might place the heirs of
Hodges at an unduly advantageous position which could result
in considerable, if not irreparable, damage or injury to the
other parties concerned. It is indeed to be regretted that
apparently, up to this date, more than a year after said
resolution, the same has not been given due regard, as may
be gleaned from the fact that recently, respondent Magno has
filed in these proceedings a motion to declare PCIB in
contempt for alleged failure to abide therewith, notwithstanding
that its repeated motions for reconsideration thereof have all
been denied soon after they were filed.9
Going back to the appeals, it is perhaps best to begin first with
what appears to Our mind to be the simplest, and then
proceed to the more complicated ones in that order, without
regard to the numerical sequence of the assignments of error
in appellant's brief or to the order of the discussion thereof by
counsel.
Assignments of error numbers
LXXII, LXXVII and LXXVIII.
These assignments of error relate to (1) the order of the trial
court of August 6, 1965 providing that "the deeds of sale
(therein referred to involving properties in the name of
Hodges) should be signed jointly by the PCIB, as Administrator
of Testate Estate of C.N. Hodges, and Avelina A. Magno, as
Administratrix of the Testate Estate of Linnie Jane Hodges,
and to this effect, the PCIB should take the necessary steps so
that Administratrix Avelina A. Magno could sign the deeds of
sale," (p. 248, Green Rec. on Appeal) (2) the order of October
27, 1965 denying the motion for reconsideration of the
foregoing order, (pp. 276-277, id.) (3) the other order also
dated October 27, 1965 enjoining inter alia, that "(a) all cash
collections should be deposited in the joint account of the
estate of Linnie Jane Hodges and estate of C. N. Hodges, (b)
that whatever cash collections (that) had been deposited in the
account of either of the estates should be withdrawn and since
then (sic) deposited in the joint account of the estate of Linnie
Jane Hodges and the estate of C. N. Hodges; ... (d) (that)
Administratrix Magno — allow the PCIB to inspect whatever
records, documents and papers she may have in her
possession, in the same manner that Administrator PCIB is
also directed to allow Administratrix Magno to inspect
whatever records, documents and papers it may have in its
possession" and "(e) that the accountant of the estate of Linnie
Jane Hodges shall have access to all records of the
transactions of both estates for the protection of the estate of
Linnie Jane Hodges; and in like manner, the accountant or any
authorized representative of the estate of C. N. Hodges shall
have access to the records of transactions of the Linnie Jane
Hodges estate for the protection of the estate of C. N.
Hodges", (pp. 292-295, id.) and (4) the order of February 15,
1966, denying, among others, the motion for reconsideration
of the order of October 27, 1965 last referred to. (pp. 455-
456, id.)
As may be readily seen, the thrust of all these four impugned
orders is in line with the Court's above-mentioned resolution of
September 8, 1972 modifying the injunction previously issued
on August 8, 1967, and, more importantly, with what We have
said the trial court should have always done pending the
liquidation of the conjugal partnership of the Hodges spouses.
In fact, as already stated, that is the arrangement We are
ordering, by this decision, to be followed. Stated differently,
since the questioned orders provide for joint action by the two
administrators, and that is precisely what We are holding out
to have been done and should be done until the two estates
are separated from each other, the said orders must be
affirmed. Accordingly the foregoing assignments of error must
be, as they are hereby overruled.
Assignments of error Numbers LXVIII
to LXXI and LXXIII to LXXVI.
The orders complained of under these assignments of error
commonly deal with expenditures made by appellee Magno,
as Administratrix of the Estate of Mrs. Hodges, in connection
with her administration thereof, albeit additionally, assignments
of error Numbers LXIX to LXXI put into question the payment
of attorneys fees provided for in the contract for the purpose,
as constituting, in effect, premature advances to the heirs of
Mrs. Hodges.
More specifically, assignment Number LXXIII refers to
reimbursement of overtime pay paid to six employees of the
court and three other persons for services in copying the court
records to enable the lawyers of the administration to be fully
informed of all the incidents in the proceedings. The
reimbursement was approved as proper legal expenses of
administration per the order of December 19, 1964, (pp. 221-
222, id.) and repeated motions for reconsideration thereof
were denied by the orders of January 9, 1965, (pp. 231-
232, id.) October 27, 1965, (p. 277, id.) and February 15,
1966. (pp. 455-456, id.) On the other hand, Assignments
Numbers LXVIII to LXXI, LXXIV and LXXV question the trial
court's order of November 3, 1965 approving the agreement of
June 6, 1964 between Administratrix Magno and James L.
Sullivan, attorney-in-fact of the heirs of Mrs. Hodges, as
Parties of the First Part, and Attorneys Raul Manglapus and
Rizal R. Quimpo, as Parties of the Second Part, regarding
attorneys fees for said counsel who had agreed "to prosecute
and defend their interests (of the Parties of the First Part) in
certain cases now pending litigation in the Court of First
Instance of Iloilo —, more specifically in Special Proceedings
1307 and 1672 —" (pp. 126-129, id.) and directing
Administratrix Magno "to issue and sign whatever check or
checks maybe needed to implement the approval of the
agreement annexed to the motion" as well as the
"administrator of the estate of C. N. Hodges — to countersign
the said check or checks as the case maybe." (pp. 313-
320, id.), reconsideration of which order of approval was
denied in the order of February 16, 1966, (p. 456, id.)
Assignment Number LXXVI imputes error to the lower court's
order of October 27, 1965, already referred to above, insofar
as it orders that "PCIB should counter sign the check in the
amount of P250 in favor of Administratrix Avelina A. Magno as
her compensation as administratrix of Linnie Jane Hodges
estate chargeable to the Testate Estate of Linnie Jane Hodges
only." (p. 294, id.)
Main contention again of appellant PCIB in regard to these
eight assigned errors is that there is no such estate as the
estate of Mrs. Hodges for which the questioned expenditures
were made, hence what were authorized were in effect
expenditures from the estate of Hodges. As We have already
demonstrated in Our resolution above of the petition
for certiorari and prohibition, this posture is incorrect. Indeed,
in whichever way the remaining issues between the parties in
these cases are ultimately resolved, 10 the final result will
surely be that there are properties constituting the estate of
Mrs. Hodges of which Magno is the current administratrix. It
follows, therefore, that said appellee had the right, as such
administratrix, to hire the persons whom she paid overtime pay
and to be paid for her own services as administratrix. That she
has not yet collected and is not collecting amounts as
substantial as that paid to or due appellant PCIB is to her
credit.
Of course, she is also entitled to the services of counsel and to
that end had the authority to enter into contracts for attorney's
fees in the manner she had done in the agreement of June 6,
1964. And as regards to the reasonableness of the amount
therein stipulated, We see no reason to disturb the discretion
exercised by the probate court in determining the same. We
have gone over the agreement, and considering the obvious
size of the estate in question and the nature of the issues
between the parties as well as the professional standing of
counsel, We cannot say that the fees agreed upon require the
exercise by the Court of its inherent power to reduce it.
PCIB insists, however, that said agreement of June 6, 1964 is
not for legal services to the estate but to the heirs of Mrs.
Hodges, or, at most, to both of them, and such being the case,
any payment under it, insofar as counsels' services would
redound to the benefit of the heirs, would be in the nature of
advances to such heirs and a premature distribution of the
estate. Again, We hold that such posture cannot prevail.
Upon the premise We have found plausible that there is an
existing estate of Mrs. Hodges, it results that juridically and
factually the interests involved in her estate are distinct and
different from those involved in her estate of Hodges and vice
versa. Insofar as the matters related exclusively to the estate
of Mrs. Hodges, PCIB, as administrator of the estate of
Hodges, is a complete stranger and it is without personality to
question the actuations of the administratrix thereof regarding
matters not affecting the estate of Hodges. Actually,
considering the obviously considerable size of the estate of
Mrs. Hodges, We see no possible cause for apprehension that
when the two estates are segregated from each other, the
amount of attorney's fees stipulated in the agreement in
question will prejudice any portion that would correspond to
Hodges' estate.
And as regards the other heirs of Mrs. Hodges who ought to
be the ones who should have a say on the attorney's fees and
other expenses of administration assailed by PCIB, suffice it to
say that they appear to have been duly represented in the
agreement itself by their attorney-in-fact, James L. Sullivan
and have not otherwise interposed any objection to any of the
expenses incurred by Magno questioned by PCIB in these
appeals. As a matter of fact, as ordered by the trial court, all
the expenses in question, including the attorney's fees, may
be paid without awaiting the determination and segregation of
the estate of Mrs. Hodges.
Withal, the weightiest consideration in connection with the
point under discussion is that at this stage of the controversy
among the parties herein, the vital issue refers to the existence
or non-existence of the estate of Mrs. Hodges. In this respect,
the interest of respondent Magno, as the appointed
administratrix of the said estate, is to maintain that it exists,
which is naturally common and identical with and inseparable
from the interest of the brothers and sisters of Mrs. Hodges.
Thus, it should not be wondered why both Magno and these
heirs have seemingly agreed to retain but one counsel. In fact,
such an arrangement should be more convenient and
economical to both. The possibility of conflict of interest
between Magno and the heirs of Mrs. Hodges would be, at this
stage, quite remote and, in any event, rather insubstantial.
Besides, should any substantial conflict of interest between
them arise in the future, the same would be a matter that the
probate court can very well take care of in the course of the
independent proceedings in Case No. 1307 after the
corresponding segregation of the two subject estates. We
cannot perceive any cogent reason why, at this stage, the
estate and the heirs of Mrs. Hodges cannot be represented by
a common counsel.
Now, as to whether or not the portion of the fees in question
that should correspond to the heirs constitutes premature
partial distribution of the estate of Mrs. Hodges is also a matter
in which neither PCIB nor the heirs of Hodges have any
interest. In any event, since, as far as the records show, the
estate has no creditors and the corresponding estate and
inheritance taxes, except those of the brothers and sisters of
Mrs. Hodges, have already been paid, 11 no prejudice can
caused to anyone by the comparatively small amount of
attorney's fees in question. And in this connection, it may be
added that, although strictly speaking, the attorney's fees of
the counsel of an administrator is in the first instance his
personal responsibility, reimbursable later on by the estate, in
the final analysis, when, as in the situation on hand, the
attorney-in-fact of the heirs has given his conformity thereto, it
would be idle effort to inquire whether or not the sanction given
to said fees by the probate court is proper.
For the foregoing reasons, Assignments of Error LXVIII to
LXXI and LXXIII to LXXVI should be as they are hereby
overruled.
Assignments of error I to IV,
XIII to XV, XXII to XXV, XXXV
to XXX VI, XLI to XLIII and L.
These assignments of error deal with the approval by the trial
court of various deeds of sale of real properties registered in
the name of Hodges but executed by appellee Magno, as
Administratrix of the Estate of Mrs. Hodges, purportedly in
implementation of corresponding supposed written "Contracts
to Sell" previously executed by Hodges during the interim
between May 23, 1957, when his wife died, and December 25,
1962, the day he died. As stated on pp. 118-120 of appellant's
main brief, "These are: the, contract to sell between the
deceased, Charles Newton Hodges, and the appellee, Pepito
G. Iyulores executed on February 5, 1961; the contract to sell
between the deceased, Charles Newton Hodges, and the
appellant Esperidion Partisala, executed on April 20, 1960; the
contract to sell between the deceased, Charles Newton
Hodges, and the appellee, Winifredo C. Espada, executed on
April 18, 1960; the contract to sell between the deceased,
Charles Newton Hodges, and the appellee, Rosario Alingasa,
executed on August 25, 1958; the contract to sell between the
deceased, Charles Newton Hodges, and the appellee,
Lorenzo Carles, executed on June 17, 1958; the contract to
sell between the deceased, Charles Newton Hodges, and the
appellee, Salvador S. Guzman, executed on September 13,
1960; the contract to sell between the deceased, Charles
Newton Hodges, and the appellee, Florenia Barrido, executed
on February 21, 1958; the contract to sell between the
deceased, Charles Newton Hodges, and the appellee,
Purificacion Coronado, executed on August 14, 1961; the
contract to sell between the deceased, Charles Newton
Hodges, and the appellee, Graciano Lucero, executed on
November 27, 1961; the contract to sell between the
deceased, Charles Newton Hodges, and the appellee, Ariteo
Thomas Jamir, executed on May 26, 1961; the contract to sell
between the deceased, Charles Newton Hodges, and the
appellee, Melquiades Batisanan, executed on June 9, 1959;
the contract to sell between the deceased, Charles Newton
Hodges, and the appellee, Belcezar Causing, executed on
February 10, 1959 and the contract to sell between the
deceased, Charles Newton Hodges, and the appellee, Adelfa
Premaylon, executed on October 31, 1959, re Title No.
13815."
Relative to these sales, it is the position of appellant PCIB that,
inasmuch as pursuant to the will of Mrs. Hodges, her husband
was to have dominion over all her estate during his lifetime, it
was as absolute owner of the properties respectively covered
by said sales that he executed the aforementioned contracts to
sell, and consequently, upon his death, the implementation of
said contracts may be undertaken only by the administrator of
his estate and not by the administratrix of the estate of Mrs.
Hodges. Basically, the same theory is invoked with particular
reference to five other sales, in which the respective "contracts
to sell" in favor of these appellees were executed by Hodges
before the death of his wife, namely, those in favor of appellee
Santiago Pacaonsis, Alfredo Catedral, Jose Pablico, Western
Institute of Technology and Adelfa Premaylon.
Anent those deeds of sale based on promises or contracts to
sell executed by Hodges after the death of his wife, those
enumerated in the quotation in the immediately preceding
paragraph, it is quite obvious that PCIB's contention cannot be
sustained. As already explained earlier, 11* all proceeds of
remunerative transfers or dispositions made by Hodges after
the death of his wife should be deemed as continuing to be
parts of her estate and, therefore, subject to the terms of her
will in favor of her brothers and sisters, in the sense that
should there be no showing that such proceeds, whether in
cash or property have been subsequently conveyed or
assigned subsequently by Hodges to any third party by acts
inter vivos with the result that they could not thereby belong to
him anymore at the time of his death, they automatically
became part of the inheritance of said brothers and sisters.
The deeds here in question involve transactions which are
exactly of this nature. Consequently, the payments made by
the appellees should be considered as payments to the estate
of Mrs. Hodges which is to be distributed and partitioned
among her heirs specified in the will.
The five deeds of sale predicated on contracts to sell executed
Hodges during the lifetime of his wife, present a different
situation. At first blush, it would appear that as to them, PCIB's
position has some degree of plausibility. Considering,
however, that the adoption of PCIB's theory would necessarily
have tremendous repercussions and would bring about
considerable disturbance of property rights that have
somehow accrued already in favor of innocent third parties,
the five purchasers aforenamed, the Court is inclined to take a
pragmatic and practical view of the legal situation involving
them by overlooking the possible technicalities in the way, the
non-observance of which would not, after all, detract materially
from what should substantially correspond to each and all of
the parties concerned.
To start with, these contracts can hardly be ignored. Bona
fide third parties are involved; as much as possible, they
should not be made to suffer any prejudice on account of
judicial controversies not of their own making. What is more,
the transactions they rely on were submitted by them to the
probate court for approval, and from already known and
recorded actuations of said court then, they had reason to
believe that it had authority to act on their motions, since
appellee Magno had, from time to time prior to their
transactions with her, been allowed to act in her capacity as
administratrix of one of the subject estates either alone or
conjointly with PCIB. All the sales in question were executed
by Magno in 1966 already, but before that, the court had
previously authorized or otherwise sanctioned expressly many
of her act as administratrix involving expenditures from the
estate made by her either conjointly with or independently from
PCIB, as Administrator of the Estate of Hodges. Thus, it may
be said that said buyers-appellees merely followed precedents
in previous orders of the court. Accordingly, unless the
impugned orders approving those sales indubitably suffer from
some clearly fatal infirmity the Court would rather affirm them.
It is quite apparent from the record that the properties covered
by said sales are equivalent only to a fraction of what should
constitute the estate of Mrs. Hodges, even if it is assumed that
the same would finally be held to be only one-fourth of the
conjugal properties of the spouses as of the time of her death
or, to be more exact, one-half of her estate as per the
inventory submitted by Hodges as executor, on May 12, 1958.
In none of its numerous, varied and voluminous pleadings,
motions and manifestations has PCIB claimed any possibility
otherwise. Such being the case, to avoid any conflict with the
heirs of Hodges, the said properties covered by the questioned
deeds of sale executed by appellee Magno may be treated as
among those corresponding to the estate of Mrs. Hodges,
which would have been actually under her control and
administration had Hodges complied with his duty to liquidate
the conjugal partnership. Viewing the situation in that manner,
the only ones who could stand to be prejudiced by the
appealed orders referred to in the assignment of errors under
discussion and who could, therefore, have the requisite
interest to question them would be only the heirs of Mrs.
Hodges, definitely not PCIB.
It is of no moment in what capacity Hodges made the
"contracts to sell' after the death of his wife. Even if he had
acted as executor of the will of his wife, he did not have to
submit those contracts to the court nor follow the provisions of
the rules, (Sections 2, 4, 5, 6, 8 and 9 of Rule 89 quoted by
appellant on pp. 125 to 127 of its brief) for the simple reason
that by the very orders, much relied upon by appellant for
other purposes, of May 27, 1957 and December 14, 1957,
Hodges was "allowed or authorized" by the trial court "to
continue the business in which he was engaged and to
perform acts which he had been doing while the deceased
was living", (Order of May 27) which according to the motion
on which the court acted was "of buying and selling personal
and real properties", and "to execute subsequent sales,
conveyances, leases and mortgages of the properties left by
the said deceased Linnie Jane Hodges in consonance with the
wishes conveyed in the last will and testament of the latter."
(Order of December 14) In other words, if Hodges acted then
as executor, it can be said that he had authority to do so by
virtue of these blanket orders, and PCIB does not question the
legality of such grant of authority; on the contrary, it is relying
on the terms of the order itself for its main contention in these
cases. On the other hand, if, as PCIB contends, he acted as
heir-adjudicatee, the authority given to him by the
aforementioned orders would still suffice.
As can be seen, therefore, it is of no moment whether the
"contracts to sell" upon which the deeds in question were
based were executed by Hodges before or after the death of
his wife. In a word, We hold, for the reasons already stated,
that the properties covered by the deeds being assailed
pertain or should be deemed as pertaining to the estate of
Mrs. Hodges; hence, any supposed irregularity attending the
actuations of the trial court may be invoked only by her heirs,
not by PCIB, and since the said heirs are not objecting, and
the defects pointed out not being strictly jurisdictional in
nature, all things considered, particularly the unnecessary
disturbance of rights already created in favor of innocent third
parties, it is best that the impugned orders are not disturbed.
In view of these considerations, We do not find sufficient merit
in the assignments of error under discussion.
Assignments of error V to VIII,
XVI to XVIII, XXVI to XXIX, XXXVII
to XXXVIII, XLIV to XLVI and LI.
All these assignments of error commonly deal with alleged
non-fulfillment by the respective vendees, appellees herein, of
the terms and conditions embodied in the deeds of sale
referred to in the assignments of error just discussed. It is
claimed that some of them never made full payments in
accordance with the respective contracts to sell, while in the
cases of the others, like Lorenzo Carles, Jose Pablico, Alfredo
Catedral and Salvador S. Guzman, the contracts with them
had already been unilaterally cancelled by PCIB pursuant to
automatic rescission clauses contained in them, in view of the
failure of said buyers to pay arrearages long overdue. But
PCIB's posture is again premised on its assumption that the
properties covered by the deeds in question could not pertain
to the estate of Mrs. Hodges. We have already held above
that, it being evident that a considerable portion of the conjugal
properties, much more than the properties covered by said
deeds, would inevitably constitute the estate of Mrs. Hodges,
to avoid unnecessary legal complications, it can be assumed
that said properties form part of such estate. From this point of
view, it is apparent again that the questions, whether or not it
was proper for appellee Magno to have disregarded the
cancellations made by PCIB, thereby reviving the rights of the
respective buyers-appellees, and, whether or not the rules
governing new dispositions of properties of the estate were
strictly followed, may not be raised by PCIB but only by the
heirs of Mrs. Hodges as the persons designated to inherit the
same, or perhaps the government because of the still unpaid
inheritance taxes. But, again, since there is no pretense that
any objections were raised by said parties or that they would
necessarily be prejudiced, the contentions of PCIB under the
instant assignments of error hardly merit any consideration.
Assignments of error IX to XII, XIX
to XXI, XXX to XXIV, XXXIX to XL,
XLVII to XLIX, LII and LIII to LXI.
PCIB raises under these assignments of error two issues
which according to it are fundamental, namely: (1) that in
approving the deeds executed by Magno pursuant to contracts
to sell already cancelled by it in the performance of its
functions as administrator of the estate of Hodges, the trial
court deprived the said estate of the right to invoke such
cancellations it (PCIB) had made and (2) that in so acting, the
court "arrogated unto itself, while acting as a probate court, the
power to determine the contending claims of third parties
against the estate of Hodges over real property," since it has in
effect determined whether or not all the terms and conditions
of the respective contracts to sell executed by Hodges in favor
of the buyers-appellees concerned were complied with by the
latter. What is worse, in the view of PCIB, is that the court has
taken the word of the appellee Magno, "a total stranger to his
estate as determinative of the issue".
Actually, contrary to the stand of PCIB, it is this last point
regarding appellee Magno's having agreed to ignore the
cancellations made by PCIB and allowed the buyers-appellees
to consummate the sales in their favor that is decisive. Since
We have already held that the properties covered by the
contracts in question should be deemed to be portions of the
estate of Mrs. Hodges and not that of Hodges, it is PCIB that is
a complete stranger in these incidents. Considering, therefore,
that the estate of Mrs. Hodges and her heirs who are the real
parties in interest having the right to oppose the
consummation of the impugned sales are not objecting, and
that they are the ones who are precisely urging that said sales
be sanctioned, the assignments of error under discussion have
no basis and must accordingly be as they are hereby
overruled.
With particular reference to assignments LIII to LXI, assailing
the orders of the trial court requiring PCIB to surrender the
respective owner's duplicate certificates of title over the
properties covered by the sales in question and otherwise
directing the Register of Deeds of Iloilo to cancel said
certificates and to issue new transfer certificates of title in favor
of the buyers-appellees, suffice it to say that in the light of the
above discussion, the trial court was within its rights to so
require and direct, PCIB having refused to give way, by
withholding said owners' duplicate certificates, of the
corresponding registration of the transfers duly and legally
approved by the court.
Assignments of error LXII to LXVII
All these assignments of error commonly deal with the appeal
against orders favoring appellee Western Institute of
Technology. As will be recalled, said institute is one of the
buyers of real property covered by a contract to sell executed
by Hodges prior to the death of his wife. As of October, 1965, it
was in arrears in the total amount of P92,691.00 in the
payment of its installments on account of its purchase, hence it
received under date of October 4, 1965 and October 20, 1965,
letters of collection, separately and respectively, from PCIB
and appellee Magno, in their respective capacities as
administrators of the distinct estates of the Hodges spouses,
albeit, while in the case of PCIB it made known that "no other
arrangement can be accepted except by paying all your past
due account", on the other hand, Magno merely said she
would "appreciate very much if you can make some remittance
to bring this account up-to-date and to reduce the amount of
the obligation." (See pp. 295-311, Green R. on A.) On
November 3, 1965, the Institute filed a motion which, after
alleging that it was ready and willing to pay P20,000 on
account of its overdue installments but uncertain whether it
should pay PCIB or Magno, it prayed that it be "allowed to
deposit the aforesaid amount with the court pending resolution
of the conflicting claims of the administrators." Acting on this
motion, on November 23, 1965, the trial court issued an order,
already quoted in the narration of facts in this opinion, holding
that payment to both or either of the two administrators is
"proper and legal", and so "movant — can pay to both estates
or either of them", considering that "in both cases (Special
Proceedings 1307 and 1672) there is as yet no judicial
declaration of heirs nor distribution of properties to
whomsoever are entitled thereto."
The arguments under the instant assignments of error revolve
around said order. From the procedural standpoint, it is
claimed that PCIB was not served with a copy of the Institute's
motion, that said motion was heard, considered and resolved
on November 23, 1965, whereas the date set for its hearing
was November 20, 1965, and that what the order grants is
different from what is prayed for in the motion. As to the
substantive aspect, it is contended that the matter treated in
the motion is beyond the jurisdiction of the probate court and
that the order authorized payment to a person other than the
administrator of the estate of Hodges with whom the Institute
had contracted.
The procedural points urged by appellant deserve scant
consideration. We must assume, absent any clear proof to the
contrary, that the lower court had acted regularly by seeing to
it that appellant was duly notified. On the other hand, there is
nothing irregular in the court's having resolved the motion
three days after the date set for hearing the same. Moreover,
the record reveals that appellants' motion for reconsideration
wherein it raised the same points was denied by the trial court
on March 7, 1966 (p. 462, Green R. on A.) Withal, We are not
convinced that the relief granted is not within the general intent
of the Institute's motion.
Insofar as the substantive issues are concerned, all that need
be said at this point is that they are mere reiterations of
contentions We have already resolved above adversely to
appellants' position. Incidentally, We may add, perhaps, to
erase all doubts as to the propriety of not disturbing the lower
court's orders sanctioning the sales questioned in all these
appeal s by PCIB, that it is only when one of the parties to a
contract to convey property executed by a deceased person
raises substantial objections to its being implemented by the
executor or administrator of the decedent's estate that Section
8 of Rule 89 may not apply and, consequently, the matter has,
to be taken up in a separate action outside of the probate
court; but where, as in the cases of the sales herein involved,
the interested parties are in agreement that the conveyance be
made, it is properly within the jurisdiction of the probate court
to give its sanction thereto pursuant to the provisions of the
rule just mentioned. And with respect to the supposed
automatic rescission clauses contained in the contracts to sell
executed by Hodges in favor of herein appellees, the effect of
said clauses depend on the true nature of the said contracts,
despite the nomenclature appearing therein, which is not
controlling, for if they amount to actual contracts of sale
instead of being mere unilateral accepted "promises to sell",
(Art. 1479, Civil Code of the Philippines, 2nd paragraph)
thepactum commissorium or the automatic rescission
provision would not operate, as a matter of public policy,
unless there has been a previous notarial or judicial demand
by the seller (10 Manresa 263, 2nd ed.) neither of which have
been shown to have been made in connection with the
transactions herein involved.
Consequently, We find no merit in the assignments of error
Number LXII to LXVII.
SUMMARY
Considering the fact that this decision is unusually extensive
and that the issues herein taken up and resolved are rather
numerous and varied, what with appellant making seventy-
eight assignments of error affecting no less than thirty
separate orders of the court a quo, if only to facilitate proper
understanding of the import and extent of our rulings herein
contained, it is perhaps desirable that a brief restatement of
the whole situation be made together with our conclusions in
regard to its various factual and legal aspects. .
The instant cases refer to the estate left by the late Charles
Newton Hodges as well as that of his wife, Linnie Jane
Hodges, who predeceased him by about five years and a half.
In their respective wills which were executed on different
occasions, each one of them provided mutually as follows: "I
give, devise and bequeath all of the rest, residue and
remainder (after funeral and administration expenses, taxes
and debts) of my estate, both real and personal, wherever
situated or located, to my beloved (spouse) to have and to
hold unto (him/her) — during (his/her) natural lifetime", subject
to the condition that upon the death of whoever of them
survived the other, the remainder of what he or she would
inherit from the other is "give(n), devise(d) and bequeath(ed)"
to the brothers and sisters of the latter.
Mrs. Hodges died first, on May 23, 1957. Four days later, on
May 27, Hodges was appointed special administrator of her
estate, and in a separate order of the same date, he was
"allowed or authorized to continue the business in which he
was engaged, (buying and selling personal and real
properties) and to perform acts which he had been doing while
the deceased was living." Subsequently, on December 14,
1957, after Mrs. Hodges' will had been probated and Hodges
had been appointed and had qualified as Executor thereof,
upon his motion in which he asserted that he was "not only
part owner of the properties left as conjugal, but also, the
successor to all the properties left by the deceased Linnie
Jane Hodges", the trial court ordered that "for the reasons
stated in his motion dated December 11, 1957, which the
Court considers well taken, ... all the sales, conveyances,
leases and mortgages of all properties left by the deceased
Linnie Jane Hodges executed by the Executor, Charles
Newton Hodges are hereby APPROVED. The said Executor is
further authorized to execute subsequent sales, conveyances,
leases and mortgages of the properties left by the said
deceased Linnie Jane Hodges in consonance with the wishes
contained in the last will and testament of the latter."
Annually thereafter, Hodges submitted to the court the
corresponding statements of account of his administration,
with the particularity that in all his motions, he always made it
point to urge the that "no person interested in the Philippines
of the time and place of examining the herein accounts be
given notice as herein executor is the only devisee or legatee
of the deceased in accordance with the last will and testament
already probated by the Honorable Court." All said accounts
approved as prayed for.
Nothing else appears to have been done either by the court a
quo or Hodges until December 25, 1962. Importantly to be the
provision in the will of Mrs. Hodges that her share of the
conjugal partnership was to be inherited by her husband "to
have and to hold unto him, my said husband, during his
natural lifetime" and that "at the death of my said husband, I
give, devise and bequeath all the rest, residue and remainder
of my estate, both real and personal, wherever situated or
located, to be equally divided among my brothers and sisters,
share and share alike", which provision naturally made it
imperative that the conjugal partnership be promptly
liquidated, in order that the "rest, residue and remainder" of his
wife's share thereof, as of the time of Hodges' own death, may
be readily known and identified, no such liquidation was ever
undertaken. The record gives no indication of the reason for
such omission, although relatedly, it appears therein:
1. That in his annual statement submitted to the
court of the net worth of C. N. Hodges and the
Estate of Linnie Jane Hodges, Hodges
repeatedly and consistently reported the
combined income of the conjugal partnership
and then merely divided the same equally
between himself and the estate of the deceased
wife, and, more importantly, he also, as
consistently, filed corresponding separate
income tax returns for each calendar year for
each resulting half of such combined income,
thus reporting that the estate of Mrs. Hodges
had its own income distinct from his own.
2. That when the court a quo happened to
inadvertently omit in its order probating the will
of Mrs. Hodges, the name of one of her
brothers, Roy Higdon then already deceased,
Hodges lost no time in asking for the proper
correction "in order that the heirs of deceased
Roy Higdon may not think or believe they were
omitted, and that they were really interested in
the estate of the deceased Linnie Jane
Hodges".
3. That in his aforementioned motion of
December 11, 1957, he expressly stated that
"deceased Linnie Jane Hodges died leaving no
descendants or ascendants except brothers
and sisters and herein petitioner as the
surviving spouse, to inherit the properties of the
decedent", thereby indicating that he was not
excluding his wife's brothers and sisters from
the inheritance.
4. That Hodges allegedly made statements and
manifestations to the United States inheritance
tax authorities indicating that he had renounced
his inheritance from his wife in favor of her
other heirs, which attitude he is supposed to
have reiterated or ratified in an alleged affidavit
subscribed and sworn to here in the Philippines
and in which he even purportedly stated that his
reason for so disclaiming and renouncing his
rights under his wife's will was to "absolve (him)
or (his) estate from any liability for the payment
of income taxes on income which has accrued
to the estate of Linnie Jane Hodges", his wife,
since her death.
On said date, December 25, 1962, Hodges died. The very next
day, upon motion of herein respondent and appellee, Avelina
A. Magno, she was appointed by the trial court as
Administratrix of the Testate Estate of Linnie Jane Hodges, in
Special Proceedings No. 1307 and as Special Administratrix of
the estate of Charles Newton Hodges, "in the latter case,
because the last will of said Charles Newton Hodges is still
kept in his vault or iron safe and that the real and personal
properties of both spouses may be lost, damaged or go to
waste, unless Special Administratrix is appointed," (Order of
December 26, 1962, p. 27, Yellow R. on A.) although, soon
enough, on December 29, 1962, a certain Harold K. Davies
was appointed as her Co-Special Administrator, and when
Special Proceedings No. 1672, Testate Estate of Charles
Newton Hodges, was opened, Joe Hodges, as next of kin of
the deceased, was in due time appointed as Co-Administrator
of said estate together with Atty. Fernando P. Mirasol, to
replace Magno and Davies, only to be in turn replaced
eventually by petitioner PCIB alone.
At the outset, the two probate proceedings appear to have
been proceeding jointly, with each administrator acting
together with the other, under a sort of modus operandi. PCIB
used to secure at the beginning the conformity to and
signature of Magno in transactions it wanted to enter into and
submitted the same to the court for approval as their joint acts.
So did Magno do likewise. Somehow, however, differences
seem to have arisen, for which reason, each of them began
acting later on separately and independently of each other,
with apparent sanction of the trial court. Thus, PCIB had its
own lawyers whom it contracted and paid handsomely,
conducted the business of the estate independently of Magno
and otherwise acted as if all the properties appearing in the
name of Charles Newton Hodges belonged solely and only to
his estate, to the exclusion of the brothers and sisters of Mrs.
Hodges, without considering whether or not in fact any of said
properties corresponded to the portion of the conjugal
partnership pertaining to the estate of Mrs. Hodges. On the
other hand, Magno made her own expenditures, hired her own
lawyers, on the premise that there is such an estate of Mrs.
Hodges, and dealth with some of the properties, appearing in
the name of Hodges, on the assumption that they actually
correspond to the estate of Mrs. Hodges. All of these
independent and separate actuations of the two administrators
were invariably approved by the trial court upon submission.
Eventually, the differences reached a point wherein Magno,
who was more cognizant than anyone else about the ins and
outs of the businesses and properties of the deceased
spouses because of her long and intimate association with
them, made it difficult for PCIB to perform normally its
functions as administrator separately from her. Thus, legal
complications arose and the present judicial controversies
came about.
Predicating its position on the tenor of the orders of May 27
and December 14, 1957 as well as the approval by the court a
quo of the annual statements of account of Hodges, PCIB
holds to the view that the estate of Mrs. Hodges has already
been in effect closed with the virtual adjudication in the
mentioned orders of her whole estate to Hodges, and that,
therefore, Magno had already ceased since then to have any
estate to administer and the brothers and sisters of Mrs.
Hodges have no interests whatsoever in the estate left by
Hodges. Mainly upon such theory, PCIB has come to this
Court with a petition for certiorari and prohibition praying that
the lower court's orders allowing respondent Magno to
continue acting as administratrix of the estate of Mrs. Hodges
in Special Proceedings 1307 in the manner she has been
doing, as detailed earlier above, be set aside. Additionally,
PCIB maintains that the provision in Mrs. Hodges' will
instituting her brothers and sisters in the manner therein
specified is in the nature of a testamentary substitution, but
inasmuch as the purported substitution is not, in its view, in
accordance with the pertinent provisions of the Civil Code, it is
ineffective and may not be enforced. It is further contended
that, in any event, inasmuch as the Hodges spouses were
both residents of the Philippines, following the decision of this
Court in Aznar vs. Garcia, or the case of Christensen, 7 SCRA
95, the estate left by Mrs. Hodges could not be more than one-
half of her share of the conjugal partnership, notwithstanding
the fact that she was citizen of Texas, U.S.A., in accordance
with Article 16 in relation to Articles 900 and 872 of the Civil
Code. Initially, We issued a preliminary injunction against
Magno and allowed PCIB to act alone.
At the same time PCIB has appealed several separate orders
of the trial court approving individual acts of appellee Magno in
her capacity as administratrix of the estate of Mrs. Hodges,
such as, hiring of lawyers for specified fees and incurring
expenses of administration for different purposes and
executing deeds of sale in favor of her co-appellees covering
properties which are still registered in the name of Hodges,
purportedly pursuant to corresponding "contracts to sell"
executed by Hodges. The said orders are being questioned on
jurisdictional and procedural grounds directly or indirectly
predicated on the principal theory of appellant that all the
properties of the two estates belong already to the estate of
Hodges exclusively.
On the other hand, respondent-appellee Magno denies that
the trial court's orders of May 27 and December 14, 1957 were
meant to be finally adjudicatory of the hereditary rights of
Hodges and contends that they were no more than the court's
general sanction of past and future acts of Hodges as executor
of the will of his wife in due course of administration. As to the
point regarding substitution, her position is that what was given
by Mrs. Hodges to her husband under the provision in
question was a lifetime usufruct of her share of the conjugal
partnership, with the naked ownership passing directly to her
brothers and sisters. Anent the application of Article 16 of the
Civil Code, she claims that the applicable law to the will of Mrs.
Hodges is that of Texas under which, she alleges, there is no
system of legitime, hence, the estate of Mrs. Hodges cannot
be less than her share or one-half of the conjugal partnership
properties. She further maintains that, in any event, Hodges
had as a matter of fact and of law renounced his inheritance
from his wife and, therefore, her whole estate passed directly
to her brothers and sisters effective at the latest upon the
death of Hodges.
In this decision, for the reasons discussed above, and upon
the issues just summarized, We overrule PCIB's contention
that the orders of May 27, 1957 and December 14, 1957
amount to an adjudication to Hodges of the estate of his wife,
and We recognize the present existence of the estate of Mrs.
Hodges, as consisting of properties, which, while registered in
that name of Hodges, do actually correspond to the remainder
of the share of Mrs. Hodges in the conjugal partnership, it
appearing that pursuant to the pertinent provisions of her will,
any portion of said share still existing and undisposed of by
her husband at the time of his death should go to her brothers
and sisters share and share alike. Factually, We find that the
proven circumstances relevant to the said orders do not
warrant the conclusion that the court intended to make thereby
such alleged final adjudication. Legally, We hold that the tenor
of said orders furnish no basis for such a conclusion, and what
is more, at the time said orders were issued, the proceedings
had not yet reached the point when a final distribution and
adjudication could be made. Moreover, the interested parties
were not duly notified that such disposition of the estate would
be done. At best, therefore, said orders merely allowed
Hodges to dispose of portions of his inheritance in advance of
final adjudication, which is implicitly permitted under Section 2
of Rule 109, there being no possible prejudice to third parties,
inasmuch as Mrs. Hodges had no creditors and all pertinent
taxes have been paid.
More specifically, We hold that, on the basis of circumstances
presently extant in the record, and on the assumption that
Hodges' purported renunciation should not be upheld, the
estate of Mrs. Hodges inherited by her brothers and sisters
consists of one-fourth of the community estate of the spouses
at the time of her death, minus whatever Hodges had
gratuitously disposed of therefrom during the period from, May
23, 1957, when she died, to December 25, 1962, when he
died provided, that with regard to remunerative dispositions
made by him during the same period, the proceeds thereof,
whether in cash or property, should be deemed as continuing
to be part of his wife's estate, unless it can be shown that he
had subsequently disposed of them gratuitously.
At this juncture, it may be reiterated that the question of what
are the pertinent laws of Texas and what would be the estate
of Mrs. Hodges under them is basically one of fact, and
considering the respective positions of the parties in regard to
said factual issue, it can already be deemed as settled for the
purposes of these cases that, indeed, the free portion of said
estate that could possibly descend to her brothers and sisters
by virtue of her will may not be less than one-fourth of the
conjugal estate, it appearing that the difference in the stands
of the parties has reference solely to the legitime of Hodges,
PCIB being of the view that under the laws of Texas, there is
such a legitime of one-fourth of said conjugal estate and
Magno contending, on the other hand, that there is none. In
other words, hereafter, whatever might ultimately appear, at
the subsequent proceedings, to be actually the laws of Texas
on the matter would no longer be of any consequence, since
PCIB would anyway be in estoppel already to claim that the
estate of Mrs. Hodges should be less than as contended by it
now, for admissions by a party related to the effects of foreign
laws, which have to be proven in our courts like any other
controverted fact, create estoppel.
In the process, We overrule PCIB's contention that the
provision in Mrs. Hodges' will in favor of her brothers and
sisters constitutes ineffective hereditary substitutions. But
neither are We sustaining, on the other hand, Magno's pose
that it gave Hodges only a lifetime usufruct. We hold that by
said provision, Mrs. Hodges simultaneously instituted her
brothers and sisters as co-heirs with her husband, with the
condition, however, that the latter would have complete rights
of dominion over the whole estate during his lifetime and what
would go to the former would be only the remainder thereof at
the time of Hodges' death. In other words, whereas they are
not to inherit only in case of default of Hodges, on the other
hand, Hodges was not obliged to preserve anything for them.
Clearly then, the essential elements of testamentary
substitution are absent; the provision in question is a simple
case of conditional simultaneous institution of heirs, whereby
the institution of Hodges is subject to a partial resolutory
condition the operative contingency of which is coincidental
with that of the suspensive condition of the institution of his
brothers and sisters-in-law, which manner of institution is not
prohibited by law.
We also hold, however, that the estate of Mrs. Hodges
inherited by her brothers and sisters could be more than just
stated, but this would depend on (1) whether upon the proper
application of the principle of renvoi in relation to Article 16 of
the Civil Code and the pertinent laws of Texas, it will appear
that Hodges had no legitime as contended by Magno, and (2)
whether or not it can be held that Hodges had legally and
effectively renounced his inheritance from his wife. Under the
circumstances presently obtaining and in the state of the
record of these cases, as of now, the Court is not in a position
to make a final ruling, whether of fact or of law, on any of these
two issues, and We, therefore, reserve said issues for further
proceedings and resolution in the first instance by the court a
quo, as hereinabove indicated. We reiterate, however, that
pending such further proceedings, as matters stand at this
stage, Our considered opinion is that it is beyond cavil that
since, under the terms of the will of Mrs. Hodges, her husband
could not have anyway legally adjudicated or caused to be
adjudicated to himself her whole share of their conjugal
partnership, albeit he could have disposed any part thereof
during his lifetime, the resulting estate of Mrs. Hodges, of
which Magno is the uncontested administratrix, cannot be less
than one-fourth of the conjugal partnership properties, as of
the time of her death, minus what, as explained earlier, have
been gratuitously disposed of therefrom, by Hodges in favor of
third persons since then, for even if it were assumed that, as
contended by PCIB, under Article 16 of the Civil Code and
applying renvoi the laws of the Philippines are the ones
ultimately applicable, such one-fourth share would be her free
disposable portion, taking into account already the legitime of
her husband under Article 900 of the Civil Code.
The foregoing considerations leave the Court with no
alternative than to conclude that in predicating its orders on
the assumption, albeit unexpressed therein, that there is an
estate of Mrs. Hodges to be distributed among her brothers
and sisters and that respondent Magno is the legal
administratrix thereof, the trial court acted correctly and within
its jurisdiction. Accordingly, the petition for certiorari and
prohibition has to be denied. The Court feels however, that
pending the liquidation of the conjugal partnership and the
determination of the specific properties constituting her estate,
the two administrators should act conjointly as ordered in the
Court's resolution of September 8, 1972 and as further
clarified in the dispositive portion of its decision.
Anent the appeals from the orders of the lower court
sanctioning payment by appellee Magno, as administratrix, of
expenses of administration and attorney's fees, it is obvious
that, with Our holding that there is such an estate of Mrs.
Hodges, and for the reasons stated in the body of this opinion,
the said orders should be affirmed. This We do on the
assumption We find justified by the evidence of record, and
seemingly agreed to by appellant PCIB, that the size and
value of the properties that should correspond to the estate of
Mrs. Hodges far exceed the total of the attorney's fees and
administration expenses in question.
With respect to the appeals from the orders approving
transactions made by appellee Magno, as administratrix,
covering properties registered in the name of Hodges, the
details of which are related earlier above, a distinction must be
made between those predicated on contracts to sell executed
by Hodges before the death of his wife, on the one hand, and
those premised on contracts to sell entered into by him after
her death. As regards the latter, We hold that inasmuch as the
payments made by appellees constitute proceeds of sales of
properties belonging to the estate of Mrs. Hodges, as may be
implied from the tenor of the motions of May 27 and December
14, 1957, said payments continue to pertain to said estate,
pursuant to her intent obviously reflected in the relevant
provisions of her will, on the assumption that the size and
value of the properties to correspond to the estate of Mrs.
Hodges would exceed the total value of all the properties
covered by the impugned deeds of sale, for which reason, said
properties may be deemed as pertaining to the estate of Mrs.
Hodges. And there being no showing that thus viewing the
situation, there would be prejudice to anyone, including the
government, the Court also holds that, disregarding procedural
technicalities in favor of a pragmatic and practical approach as
discussed above, the assailed orders should be affirmed.
Being a stranger to the estate of Mrs. Hodges, PCIB has no
personality to raise the procedural and jurisdictional issues
raised by it. And inasmuch as it does not appear that any of
the other heirs of Mrs. Hodges or the government has objected
to any of the orders under appeal, even as to these parties,
there exists no reason for said orders to be set aside.
DISPOSITIVE PART
IN VIEW OF ALL THE FOREGOING PREMISES, judgment is
hereby rendered DISMISSING the petition in G. R. Nos. L-
27860 and L-27896, and AFFIRMING, in G. R. Nos. L-27936-
37 and the other thirty-one numbers hereunder ordered to be
added after payment of the corresponding docket fees, all the
orders of the trial court under appeal enumerated in detail on
pages 35 to 37 and 80 to 82 of this decision; the existence of
the Testate Estate of Linnie Jane Hodges, with respondent-
appellee Avelina A. Magno, as administratrix thereof is
recognized, and it is declared that, until final judgment is
ultimately rendered regarding (1) the manner of applying
Article 16 of the Civil Code of the Philippines to the situation
obtaining in these cases and (2) the factual and legal issue of
whether or not Charles Newton Hodges had effectively and
legally renounced his inheritance under the will of Linnie Jane
Hodges, the said estate consists of one-fourth of the
community properties of the said spouses, as of the time of the
death of the wife on May 23, 1957, minus whatever the
husband had already gratuitously disposed of in favor of third
persons from said date until his death, provided, first, that with
respect to remunerative dispositions, the proceeds thereof
shall continue to be part of the wife's estate, unless
subsequently disposed of gratuitously to third parties by the
husband, and second, that should the purported renunciation
be declared legally effective, no deductions whatsoever are to
be made from said estate; in consequence, the preliminary Generally and in all other respects, the parties and the court a
injunction of August 8, 1967, as amended on October 4 and quo are directed to adhere henceforth, in all their actuations in
December 6, 1967, is lifted, and the resolution of September 8, Special Proceedings 1307 and 1672, to the views passed and
1972, directing that petitioner-appellant PCIB, as Administrator ruled upon by the Court in the foregoing opinion.
of the Testate Estate of Charles Newton Hodges, in Special
Proceedings 1672, and respondent-appellee Avelina A. Appellant PCIB is ordered to pay, within five (5) days from
Magno, as Administratrix of the Testate Estate of Linnie Jane notice hereof, thirty-one additional appeal docket fees, but this
Hodges, in Special Proceedings 1307, should act thenceforth decision shall nevertheless become final as to each of the
always conjointly, never independently from each other, as parties herein after fifteen (15) days from the respective
such administrators, is reiterated, and the same is made part notices to them hereof in accordance with the rules.
of this judgment and shall continue in force, pending the
liquidation of the conjugal partnership of the deceased Costs against petitioner-appellant PCIB.
spouses and the determination and segregation from each
other of their respective estates, provided, that upon the Zaldivar, Castro, Esguerra and Fernandez, JJ., concur.
finality of this judgment, the trial court should immediately
proceed to the partition of the presently combined estates of Makasiar, Antonio, Muñoz Palma and Aquino, JJ., concur in
the spouses, to the end that the one-half share thereof of Mrs. the result.
Hodges may be properly and clearly identified; thereafter, the
trial court should forthwith segregate the remainder of the one-
fourth herein adjudged to be her estate and cause the same to
be turned over or delivered to respondent for her exclusive
administration in Special Proceedings 1307, while the other
one-fourth shall remain under the joint administration of said
respondent and petitioner under a joint proceedings in Special
Proceedings 1307 and 1672, whereas the half unquestionably
pertaining to Hodges shall be administered by petitioner Separate Opinions
exclusively in Special Proceedings 1672, without prejudice to
the resolution by the trial court of the pending motions for its
removal as administrator12; and this arrangement shall be
maintained until the final resolution of the two issues of renvoi FERNANDO, J., concurring:
and renunciation hereby reserved for further hearing and
determination, and the corresponding complete segregation I concur on the basis of the procedural pronouncements in the
and partition of the two estates in the proportions that may opinion.
result from the said resolution.
TEEHANKEE, J., concurring:
I concur in the result of dismissal of the petition
for certiorari and prohibition in Cases L-27860 and L-27896
and with the affirmance of the appealed orders of the probate
court in Cases L-27936-37.
I also concur with the portion of the dispositive part of the
judgment penned by Mr. Justice Barredo decreeing
the lifting of the Court's writ of preliminary injunction of August
8, 1967 as amended on October 4, and December 6,
19671 and ordering in lieu thereof that the Court's resolution of
September 8, 19722 which directed that petitioner-
appellant PCIB as administrator of C. N. (Charles Newton)
Hodges' estate (Sp. Proc. No. 1672 and respondent-appellee
Avelina A. Magno as administratrix of Linnie Jane Hodges'
estate (Sp. Proc. No. 1307) should act always conjointly never
independently from each other, as such administrators, is
reiterated and shall continue in force and made part of the
judgment.
It is manifest from the record that petitioner-appellant PCIB's
primal contention in the cases at bar belatedly filed by it with
this Court on August 1, 1967 (over ten (10) years after Linnie
Jane Hodges' death on May 23, 1957 and (over five (5) years
after her husband C.N. Hodges' death on December 25,
1962 — during which time both estates have
been pending settlement and distribution to the decedents'
respective rightful heirs all this time up to now) — that the
probate court per its order of December 14, 1957
(supplementing an earlier order of May 25, 1957)3 in granting
C. N. Hodges' motion as Executor of his wife Linnie's estate
to continue their "business of buying and selling personal and
real properties" and approving "all sales, conveyances, leases
and mortgages" made and to be made by him as such
executor under his obligation to submit his yearly accounts in
effect declared him as sole heir of his wife's estate and nothing
remains to be done except to formally close her estate (Sp.
Proc. No. 1307) as her estate was thereby merged with his
own so that nothing remains of it that may be adjudicated to
her brothers and sisters as her designated heirs after him,4 —
is wholly untenable and deserves scant consideration.
Aside from having been put forth as an obvious afterthought
much too late in the day, this contention of PCIB that there no
longer exists any separate estate of Linnie Jane Hodges after
the probate court's order of December 14, 1957 goes against
the very acts and judicial admissions of C.N. Hodges as her
executor whereby he consistently recognized the separate
existence and identity of his wife's estate apart from his own
separate estate and from his own share of their conjugal
partnership and estate and "never considered the whole estate
as a single one belonging exclusively to himself" during the
entire period that he survived her for over five (5) years up to
the time of his own death on December 25, 19625 and against
the identical acts and judicial admissions of PCIB as
administrator of C.N. Hodges' estate until PCIB sought in 1966
to take over both estates as pertaining to its sole
administration.
PCIB is now barred and estopped from contradicting or taking
a belated position contradictory to or inconsistent with its
previous admissions 6 (as well as those of C.N. Hodges
himself in his lifetime and of whose estate PCIB is merely an
administrator) recognizing the existence and identity of Linnie
Jane Hodges' separate estate and the legal rights and
interests therein of her brothers and sisters as her designated
heirs in her will.
PCIB's petition for certiorari and prohibition to declare all acts
of the probate court in Linnie Jane Hodges' estate subsequent
to its order of December 14, 1957 as "null and void for having
been issued without jurisdiction" must therefore be dismissed
with the rejection of its belated and untenable contention that
there is no longer any estate of Mrs. Hodges of which
respondent Avelina Magno is the duly appointed and acting
administratrix.
PCIB's appeal7 from the probate court's various orders
recognizing respondent Magno as administratrix of Linnie's
estate (Sp. Proc No. 1307) and sanctioning her acts of
administration of said estate and approving the sales contracts
executed by her with the various individual appellees, which
involve basically the same primal issue raised in the petition as
to whether there still exists a separate estate of Linnie of which
respondent-appellee Magno may continue to be the
administratrix, must necessarily fail — a result of the Court's
main opinion at bar that there doesexist such an estate and
that the two estates (husband's and wife's) must be
administered cojointly by their respective administrators (PCIB
and Magno).
The dispositive portion of the main opinion
The main opinion disposes that:
IN VIEW OF ALL THE FOREGOING
PREMISES, judgment is hereby rendered
DISMISSING the petition in G. R. Nos. L-27860
and L-27896, and AFFIRMING, in G. R. Nos. L-
27936-37 and the other thirty-one numbers
hereunder ordered to be added after payment
of the corresponding docket fees, all the orders
of the trial court under appeal enumerated in
detail on pages 35 to 37 and 80 to 82 of this
decision:
The existence of the Testate Estate of Linnie
Jane Hodges, with respondent-appellee Avelina
A. Magno, as administratrix thereof
is recognized, and
It is declared that, until final judgment is
ultimately rendered regarding (1) the manner of
applying Article 16 of the Civil Code of the
Philippines to the situation obtaining in these
cases and (2) the factual and legal issues of
whether or not Charles Newton Hodges has
effectively and legally renounced his inheritance
under the will of Linnie Jane Hodges, the said
estate consists of one-fourthof the community
properties of the said spouses, as of the time of
the death of the wife on May 23,
1957, minus whatever the husband had
already gratuitously disposed of in favor of third
persons from said date until his death,
provided, first, that with respect
to remunerative dispositions, the proceeds
thereof shall continue to be part of the wife's
estate, unless subsequently disposed
of gratuitously to third parties by the husband,
and second, that should the
purported renunciation be declared legally
effective, no deduction whatsoever are to be
made from said estate;
In consequence, the preliminary injunction of
August 8, 1967, as amended on October 4 and
December 6, 1967, is lifted and the resolution of
September 8, 1972, directing that petitioner-
appellant PCIB, as Administrator of the Testate
Estate of Charles Newton Hodges in Special
Proceedings 1672, and respondent-appellee
Avelina A. Magno, as Administratrix of the
Testate Estate of Linnie Jane Hodges in Special
Proceedings 1307, should act thenceforth
always conjointly, never independently from
each other, as such administrators,
is reiterated, and the same is made part of this
judgment and shall continue in
force, pending the liquidation of the conjugal
partnership of the deceased spouses and
the determination and segregation from each
other of their respective estates; provided, that
upon the finality of this judgment, the trial court
should immediately proceed to the partition of
the presently combined estates of the spouses,
to the end that the one-half share thereof of
Mrs. Hodges may be properly and clearly
identified;
Thereafter, the trial court should forthwith
segregate the remainder of the one-
fourth herein adjudged to be her estate and
cause the same to be turned over or delivered
to respondent for her exclusive administration in
Special Proceedings 1307, while the other one-
fourth shall remain under the joint
administrative of said respondent and petitioner
under a joint proceedings in Special
Proceedings 1307 and 1672, whereas
the half unquestionably pertaining
to Hodges shall be administered by petitioner
exclusively in Special Proceedings 1672,
without prejudice to the resolution by the trial
court of thepending motions for its removal as
administrator;
And this arrangement shall be
maintained until the final resolution of the two
issues of renvoi and renunciation hereby
reserved for further hearing and determination,
and the corresponding completesegregation
and partition of the two estates in the
proportions that may result from the said
resolution.
Generally and in all other respects, the parties
and the court a quo are directed to adhere
henceforth, in all their actuations in Special
Proceedings 1307 and 1672, to the views
passed and ruled upon by the Court in the
foregoing opinion.8
Minimum estimate of Mrs. Hodges' estate:
One-fourth of conjugal properties.
The main opinion in declaring the existence of a separate
estate of Linnie Jane Hodges which shall pass to her brothers
and sisters with right of representation (by their heirs) as her
duly designated heirs declares that her estate consists as
a minimum (i.e. assuming (1) that under Article 16 of the
Philippine Civil Code C. N. Hodges as surviving husband was
entitled to one-half of her estate as legitime and (2) that he
had not effectively and legally renouncedhis inheritance under
her will) of "one-fourth of the community properties of the said
spouses, as of the time of the death of the wife on May 23,
1957, minus whatever the husband had
already gratuitously disposed of in favor of third persons from
said date until his death," with the proviso that proceeds
of remunerative dispositions or sales for valuable
consideration made by C. N. Hodges after his wife Linnie's
death shall continue to be part of her
estate unless subsequently disposed of by him gratuitously to
third parties subject to the condition, however, that if he is held
to have validly and effectively renounced his inheritance under
his wife's will, no deductions of any dispositions made by
Hodges even if gratuitously are to be made from his wife
Linnie's estate which shall pass intact to her brothers and
sisters as her designated heirs called in her will to succeed to
her estate upon the death of her husband C. N. Hodges.
Differences with the main opinion
I do not share the main opinion's view that Linnie Jane Hodges
instituted her husband as her heir under her will "to have
dominion over all her estate during his lifetime ... as absolute
owner of the properties ..."9 and that she bequeathed "the
whole of her estate to be owned and enjoyed by him as
universal and sole heir with absolute dominion over them only
during his lifetime, which means that while he could completely
and absolutely dispose of any portion thereof inter vivos to
anyone other than himself, he was not free to do so mortis
causa, and all his rights to what might remain upon his death
would cease entirely upon the occurrence of that contingency,
inasmuch as the right of his brothers and sisters-in-law to the
inheritance, although vested already upon the death of Mrs.
Hodges, would automatically become operative upon the
occurrence of the death of Hodges in the event of actual
existence of any remainder of her estate then." 10
As will be amplified hereinafter, I do not subscribe to such a
view that Linnie Jane Hodges willed "full and absolute
ownership" and "absolute dominion" over her estate to her
husband, but rather that she named her husband C. N.
Hodges and her brothers and sisters as instituted heirs with a
term under Article 885 of our Civil Code, to wit, Hodges as
instituted heir with a resolutory term whereunder his right to
the succession ceased in diem upon arrival of
the resolutory term of his death on December 25, 1962 and
her brothers and sisters as instituted heirs with
a suspensive term whereunder their right to the
succession commenced ex die upon arrival of the suspensive
term of the death of C. N. Hodges on December 25, 1962.
Hence, while agreeing with the main opinion that the proceeds
of all remunerative dispositions made by C. N. Hodges after
his wife's death remain an integral part of his wife's estate
which she willed to her brothers and sisters, I submit that C. N.
Hodges could not validly make gratuitous dispositions of any
part or all of his wife's estate — "completely and absolutely
dispose of any portion thereof inter vivos to anyone other than
himself" in the language of the main opinion, supra — and
thereby render ineffectual and nugatory her institution of her
brothers and sisters as her designated heirs to succeed to
her whole estate "at the death of (her) husband." If according
to the main opinion, Hodges could not make such gratuitous
"complete and absolute dispositions" of his wife Linnie's estate
"mortis causa," it would seem that by the same token and
rationale he was likewise proscribed by the will from making
such dispositions of Linnie's estate inter vivos.
I believe that the two questions
of renvoi and renunciation should be
resolved preferentially and expeditiously by the probate
court ahead of the partition and segregation of
the minimum one-fourth of the conjugal or community
properties constituting Linnie Jane Hodges' separate estate,
which task considering that it is now seventeen (17) years
since Linnie Jane Hodges' death and her conjugal estate with
C. N. Hodges has remained unliquidated up to now might take
a similar number of years to unravel with the numerous items,
transactions and details of the sizable estates involved.
Such partition of the minimum one-fourth would not be final,
since if the two prejudicial questions
of renvoi and renunciation were resolved favorably to Linnie's
estate meaning to say that if it should be held that C. N.
Hodges is not entitled to any legitime of her estate and at any
rate he had totally renounced his inheritance under the will),
then Linnie's estate would consist not only of the minimum
one-fourth but one-half of the conjugal or community
properties of the Hodges spouses, which would require again
the partition and segregation of still another one-fourth of said.
properties to complete Linnie's separate estate.
My differences with the main opinion involve further the legal
concepts, effects and consequences of the testamentary
dispositions of Linnie Jane Hodges in her will and the question
of the best to reach a solution of the pressing question of
expediting the closing of the estates which after all do not
appear to involve any outstanding debts nor any dispute
between the heirs and should therefore be promptly settled
now after all these years without any further undue
complications and delays and distributed to the heirs for their
full enjoyment and benefit. As no consensus appears to have
been reached thereon by a majority of the Court, I propose to
state views as concisely as possible with the sole end in view
that they may be of some assistance to the probate court and
the parties in reaching an expeditious closing and settlement
of the estates of the Hodges spouses.
Two Assumptions
As indicated above, the declaration of the minimum of Mrs.
Hodges' estate as one-fourth of the conjugal properties is
based on two assumptions most favorable to C. N. Hodges'
estate and his heirs, namely (1) that the probate court must
accept the renvoi or "reference back" 11 allegedly provided by
the laws of the State of Texas (of which state the Hodges
spouses were citizens) whereby the civil laws of the
Philippines as the domicile of the Hodges spouses would
govern their succession notwithstanding the provisions of
Article 16 of our Civil Code (which provides that the national
law of the decedents, in this case, of Texas, shall govern their
succession) with the result that her estate would consist of no
more than one-fourth of the conjugal properties since
the legitime of her husband (the other one-fourth of said
conjugal properties or one-half of her estate, under Article 900
of our Civil Code) could not then be disposed of nor burdened
with any condition by her and (2) that C.N. Hodges
had not effectively and legally renounced his inheritance under
his wife's will.
These two assumptions are of course flatly disputed by
respondent-appellee Magno as Mrs. Hodges' administratrix,
who avers that the law of the State of Texas governs her
succession and does not provide for and legitime, hence, her
brothers and sisters are entitled to succeed to the whole of her
share of the conjugal properties which is one-halfthereof and
that in any event, Hodges had totally renounced all his rights
under the will.
The main opinion concedes that "(I)n the interest of settling the
estates herein involved soonest, it would be best, indeed, if
these conflicting claims of the parties were determined in
these proceedings." It observes however that this cannot be
done due to the inadequacy of the evidence submitted by the
parties in the probate court and of the parties' discussion, viz,
"there is no clear and reliable proof of what the possibly
applicable laws of Texas are. Then also, the genuineness of
the documents relied upon by respondent Magno [re Hodges'
renunciation] is disputed." 12
Hence, the main opinion expressly reserves resolution and
determination on these two conflicting claims and issues which
it deems "are not properly before the Court
now," 13 and specifically holds that "(A)ccordingly,
the only question that remains to be settled in the further
proceedings hereby ordered to be held in the court below
is how much more than as fixed above is the estate of Mrs.
Hodges, and this would depend on (1) whether or not the
applicable laws of Texas do provide in effect for more, such as,
when there is no legitime provided therein, and (2) whether or
not Hodges has validly waived his whole inheritance from Mrs.
Hodges." 14
Suggested guidelines
Considering that the only unresolved issue has thus been
narrowed down and in consonance with the ruling spirit of our
probate law calling for the prompt settlement of the estates of
deceased persons for the benefit of creditors and those
entitled to the residue by way of inheritance — considering
that the estates have been long pending settlement since
1957 and 1962, respectively — it was felt that the Court should
lay down specific guidelines for the guidance of the probate
court towards the end that it may expedite the closing of the
protracted estates proceedings below to the mutual
satisfaction of the heirs and without need of a dissatisfied party
elevating its resolution of this only remaining issue once more
to this Court and dragging out indefinitely the proceedings.
After all, the only question that remains depends for its
determination on the resolution of the two questions
of renvoiand renunciation, i.e. as to whether C. N. Hodges can
claim a legitime and whether he had renounced the
inheritance. But as already indicated above, the Court without
reaching a consensus which would finally resolve the
conflicting claims here and now in this case opted that "these
and other relevant matters should first be threshed out fully in
the trial court in the proceedings hereinafter to be held for the
purpose of ascertaining and/or distributing the estate of Mrs.
Hodges to her heirs in accordance with her duly probated
will." 15
The writer thus feels that laying down the premises and
principles governing the nature, effects and consequences of
Linnie Jane Hodges' testamentary dispositions in relation to
her conjugal partnership and co-ownership of properties with
her husband C. N. Hodges and "thinking out" the end results,
depending on whether the evidence directed to be formally
received by the probate court would bear out that
under renvoi C. N. Hodges was or was not entitled to claim a
legitime of one-half of his wife Linnie's estate and/or that he
had or had not effectively and validly renounced his
inheritance should help clear the decks, as it were, and assist
the probate court in resolving the onlyremaining question
of how much more than the minimum one-fourth of the
community properties of the Hodges spouses herein finally
determined should be awarded as the separate estate of
Linnie, particularly since the views expressed in the main
opinion have not gained a consensus of the Court. Hence, the
following suggested guidelines, which needless to state,
represent the personal opinion and views of the writer:
1. To begin with, as pointed out in the main opinion, "according
to Hodges' own inventory submitted by him as executor of the
estate of his wife, practically all their properties
were conjugal which means that the spouses have equal
shares therein." 16
2. Upon the death of Mrs. Hodges on May 23, 1957, and the
dissolution thereby of the marriage, the law imposed upon
Hodges as surviving husband the duty of inventorying,
administering and liquidating the conjugal or community
property. 17 Hodges failed to discharge this duty
of liquidating the conjugal partnership and estate. On the
contrary, he sought and obtained authorization from the
probate court
to continue the conjugal partnership's business of buying and
selling real and personal properties.
In his annual accounts submitted to the probate court
as executor of Mrs. Hodges' estate, Hodges
thus consistentlyreported the considerable combined income
(in six figures) of the conjugal partnership or coownership and
then divided the same equally between himself and Mrs.
Hodges' estate and as consistently filed separate income tax
returns and paid the income taxes for each resulting half of
such combined income corresponding to his own and to Mrs.
Hodges' estate. 18 (Parenthetically, he could not in law do this,
had he adjudicated Linnie's entire estate to himself, thus
supporting the view advanced even in the main opinion that
"Hodges waived not only his rights to the fruits but to the
properties themselves." 19
By operation of the law of trust 20 as well as by his own
acknowledgment and acts, therefore, all transactions made by
Hodges after his wife's death were deemed for and on behalf
of their unliquidated conjugal partnership
and community estate and were so reported and treated by
him.
3. With this premise established that all transactions of
Hodges after his wife's death were for and on behalf of
their unliquidated conjugal partnership and community estate,
share and share alike, it should be clear that
no gratuitousdispositions, if any, made by C. N. Hodges from
his wife Linnie's estate should be deducted from
her separateestate as held in the main opinion. On the
contrary, any such gratuitous dispositions should be charged
to his own share of the conjugal estate since he had no
authority or right to make any gratuitous dispositions of
Linnie's properties to the prejudice of her brothers and sisters
whom she called to her succession upon his death, not to
mention that the very authority obtained by him from the
probate court per its orders of May 25, and December 14,
1957 was to continue the conjugal partnership's business of
buying and selling real properties for the account of their
unliquidated conjugal estate and co-ownership, share and
share alike and not to make any free dispositions of Linnie's
estate.
4. All transactions as well after the death on December 25,
1962 of Hodges himself appear perforce and necessarily to
have been conducted, on the same premise, for and on behalf
of their unliquidated conjugal partnership and/or co-
ownership, share and share alike — since the conjugal
partnership remained unliquidated — which is another way of
saying that such transactions, purchases and sales, mostly the
latter, must be deemed in effect to have been made for the
respective estates of C. N. Hodges and of his wife Linnie Jane
Hodges, as both estates continued to have an equal stake and
share in the conjugal partnership which was not only
left unliquidated but continued as a co-ownership or joint
business with the probate court's approval by Hodges during
the five-year period that he survived his wife.
This explains the probate court's action of requiring that deeds
of sale executed by PCIB as Hodges' estate's administrator be
"signed jointly" by respondent Magno as Mrs. Hodges' estate's
administratrix, as well as its order authorizing payment by lot
purchasers from the Hodges to either estate, since "there is as
yet no judicial declaration of heirs nor distribution of properties
to whomsoever are entitled thereto." 22
And this equally furnishes the rationale of the main opinion for
continued conjoint administration by the administrators of the
two estates of the deceased spouses, "pending the liquidation
of the conjugal partnership," 23since "it is but logical that both
estates should be administered jointly by the representatives
of both, pending their segregation from each other. Particularly
... because the actuations so far of PCIB evince a determined,
albeit groundless, intent to exclude the other heirs of Mrs.
Hodges from their inheritance." 24 5. Antly by the
representatives of both, pending their segregation from each
other. Particularly ... because the actuations so far of PCIB
evince a determined, albeit groundless, intent to exclude the
other heirs of Mrs. Hodges from their inheritance." 24
5. As stressed in the main opinion, the determination of
the only unresolved issue of how much more than the
minimum of one-fourth of the community or conjugal properties
of the Hodges spouses pertains to Mrs. Hodges' estate
depends on the twin questions of renunciation and renvoi. It
directed consequently that "a joint hearing of the two probate
proceedings herein involved" be held by the probate court for
the reception of "further evidence" in order to finally resolved
these twin questions. 25
(a) On the question of renunciation, it is believed that all that
the probate court has to do is to receive formally in evidence
the various documents annexed to respondent Magno's
answer at bar, 26 namely: Copy of the U.S. Estate Tax Return
filed on August 8, 1958 by C. N. Hodges for his wife Linnie's
estate wherein he purportedly declared that he
was renouncing his inheritance under his wife's will in favor
of her brothers and sisters as co-heirs designated with him
and that it was his "intention (as) surviving husband of the
deceased to distribute the remaining property and interests of
the deceased in their community estate to the devisee and
legatees named in the will when the debts, liabilities, taxes and
expenses of administration are finally determined and
paid;" 27 and
The affidavit of ratification of such renunciation (which places
him in estoppel) allegedly executed on August 9, 1962 by C.
N. Hodges in Iloilo City wherein he reaffirmed that "...
on August 8, 1958, I renounced and disclaimed any and all
right to receive the rents, emoluments and income from said
estate" and further declared that "(T)he purpose of this
affidavit is to ratify and confirm, and I do hereby ratify and
confirm, the declaration made in schedule M of said return and
hereby formally disclaim and renounce any right on my part to
receive any of the said rents, emoluments and income from
the estate of my deceased wife, Linnie Jane Hodges. This
affidavit is made to absolve me or my estate from any liability
for the payment of income taxes on income which has accrued
to the estate of Linnie Jane Hodges since the death of the said
Linnie Jane Hodges on May 23, 1957." 28
(b) On the question of renvoi, all that remains for the probate
court to do is to formally receive in evidence duly
authenticated copies of the laws of the State of Texas
governing the succession of Linnie Jane Hodges and her
husband C. N. Hodges as citizens of said State at the time of
their respective deaths on May 23, 1957 and December 25,
1962. 29
6. The text and tenor of the declarations by C. N. Hodges
of renunciation of his inheritance from his wife in favor of her
other named heirs in her will (her brothers and sisters and their
respective heirs) as ratified and reiterated expressly in his
affidavit of renunciation executed four years later for the
avowed purpose of not being held liable for payment of income
taxes on income which has accrued to his wife's estate since
her death indicate a valid and effective renunciation.
Once the evidence has been formally admitted and its
genuineness and legal effectivity established by the probate
court, the renunciation by C. N. Hodges must be given due
effect with the result that C. N. Hodges therefore acquired no
part of his wife's one-half share of the community properties
since he removed himself as an heir by virtue of his
renunciation. By simple substitution then under Articles 857
and 859 of our Civil Code 30 and by virtue of the will's
institution of heirs, since "the heir originally instituted C. N.
Hodges) does not become an heir" 31 by force of his
renunciation, Mrs. Hodges' brothers and sisters whom she
designated as her heirs upon her husband's death are called
immediately to her succession.
Consequently, the said community and conjugal properties
would then pertain pro indiviso share and share alike to their
respective estates, with each estate, however, shouldering its
own expenses of administration, estate and inheritance taxes,
if any remain unpaid, attorneys' fees and other like expenses
and the net remainder to be adjudicated directly to the
decedents' respective brothers and sisters (and their heirs) as
the heirs duly designated in their respective wills. The question
of renvoi becomes immaterial since most laws and our
laws permit such renunciation of inheritance.
7. If there were no renunciation (or the same may somehow be
declared to have not been valid and effective) by C. N. Hodges
of his inheritance from his wife, however, what would be the
consequence?
(a) If the laws on succession of the State of Texas do provide
for renvoi or "reference back" to Philippine law as the
domiciliary law of the Hodges' spouses governing their
succession, then petitioners' view that Mrs. Hodges' estate
would consist only of the minimum of "one-fourth of the
community properties of the said spouses, as of the time of
(her) death on May 23, 1957" would have to be sustained and
C. N. Hodges' estate would consist of three-fourths of the
community properties, comprising his own one-half (or two-
fourths) share and the other fourth of Mrs. Hodges' estate as
the legitime granted him as surviving spouse by Philippine
law (Article 900 of the Civil Code) which could not be disposed
of nor burdened with any condition by Mrs. Hodges as
testatrix.
(b) If the laws on succession of the State of Texas
do not provide for such renvoi and respondent Magno's
assertion is correct that the Texas law which would then
prevail, provides for no legitime for C. N. Hodges as the
surviving spouse, then respondent Magno's assertion that Mrs.
Hodges' estate would consist of one-half of the community
properties (with the other half pertaining to C. N. Hodges)
would have to be sustained. The community and conjugal
properties would then pertain share and share alike to their
respective estates, with each estate shouldering its own
expenses of administration in the same manner stated in the
last paragraph of paragraph 6 hereof. .
8. As to the nature of the institution of heirs made by Mrs.
Hodges in her will, the main opinion holds that "(T)he brothers
and sisters of Mrs. Hodges are not substitutes for Hodges;
rather, they are also heirs instituted simultaneously with
Hodges," but goes further and holds that "it was not the
usufruct alone of her estate ... that she bequeathed to
Hodges during his lifetime, but the full
ownership thereof, although the same was to last also during
his lifetime only, even as there was no restriction against his
disposing or conveying the whole or any portion
thereof anybody other than himself" and describes Hodges
"as universal and sole heir with absolute dominion over Mrs.
Hodges' estate (except over their Lubbock, Texas
property ), 32 adding that "Hodges was not obliged to preserve
anything for them" (referring to Mrs. Hodges' brothers and
sisters as instituted co-heirs). 33
Contrary to this view of the main opinion, the writer submits
that the provisions of Mrs. Hodges' will did not grant to C.N.
Hodges "full ownership" nor "absolute dominion" over her
estate, such that he could as "universal and sole heir" by the
mere expedient of gratuitously disposing to third persons
her whole estate during his lifetime nullify her institution of her
brothers and sisters as his co-heirs to succeed to
her whole estate "at the death of (her) husband," deprive them
of any inheritance and make his own brothers and sisters in
effect sole heirs not only of his own estate but of
his wife's estate as well.
Thus, while Linnie Jane Hodges did not expressly name her
brothers and sisters as substitutes for Hodges because she
willed that they would enter into the succession upon his
death, still it cannot be gainsaid, as the main opinion
concedes, "that they are
also heirs instituted simultaneously with Hodges, subject
however to certain conditions, partially resolutory insofar as
Hodges was concerned and correspondingly suspensive with
reference to his brothers and sisters-in-law." 34
Hence, if Hodges is found to have validly renounced his
inheritance, there would be a substitution of heirs in fact and in
law since Linnie's brothers and sisters as the heirs
"simultaneously instituted" with a suspensive term would be
called immediately to her succession instead of waiting for the
arrival of suspensive term of Hodges' death, since as the heir
originally instituted he does not become an heir by force of his
renunciation and therefore they would "enter into the
inheritance in default of the heir originally instituted" (Hodges)
under the provisions of Article 857 and 859 of our Civil
Code, supra, 35 thus accelerating their succession to her estate
as a consequence of Hodges' renunciation.
Consequently, Linnie Jane Hodges willed that her husband
C.N. Hodges would "during his natural lifetime ... manage,
control, use and enjoy said estate" and that only "all rents,
emoluments and income" alone shall belong to him. She
further willed that while he could sell and purchase properties
of her estate, and "use any part of the principal estate," such
principal notwithstanding "any changes in the physical
properties of said estate"(i.e. new properties acquired or
exchanged) would still pertain to her estate, which at the time
of his death would pass in full dominion to her brothers and
sisters as the ultimate sole and universal heirs of her estate. 36
The testatrix Linnie Jane Hodges in her will thus principally
provided that "I give, devise and bequeath all of the rest,
residue and remainder of my estate, both personal and real ...
to my beloved husband, Charles Newton Hodges, to have and
to hold with him ... during his natural lifetime;" 37 that "(he) shall
have the right to manage, control, use and enjoy said
estate during his lifetime, ... to make any changes in
the physical properties of said estate, by sale ... and
the purchase of any other or additional property as he may
think best ... . All rents, emoluments and income from said
estate shall belong to him and he is further authorized
to use any part of the principal of said estate as he may need
or desire, ... he shall not sell or otherwise dispose of any of the
improved property now owned by us, located at ... City of
Lubbock, Texas ... . He shall have the right
to subdivide any farm land and sell lots therein, and may
sell unimproved town lots;" 38 that "(A)t the death of my said
husband, Charles Newton, I give, devise and bequeath all of
the rest, residue and remainder of my estate, both personal
and real, ... to be equally divided among my brothers and
sisters, share and share alike, namely: Esta Higdon, Emma
Howell, Leonard Higdon, Roy Higdon, Sadie Rascoe, Era
Roman and Nimroy Higdon;" 39 and that "(I)n case of the death
of any of my brothers and/or sisters ...prior to the death of my
husband ... the heirs of such deceased brother or sister shall
take jointly the share which would have gone to such brother
or sister had she or he survived." 40
Such provisions are wholly consistent with the view already
fully expounded above that all transactions and sales made by
Hodges after his wife Linnie's death were by operation of the
law of trust as well as by his own acknowledgment and acts
deemed for and on behalf of their unliquidated conjugal
partnership and community estate, share and share alike, with
the express authorization of the probate court per its orders of
May 25, and December 14, 1957 granting Hodges' motion to
continue the conjugal partnership business of buying and
selling real estate even after her death. By the same token,
Hodges could not conceivably be deemed to have had any
authority or right to dispose gratuitously of any portion of her
estate to whose succession she had called her brothers and
sisters upon his death.
9. Such institutions of heirs with a term are expressly
recognized and permitted under Book III, Chapter 2, section 4
of our Civil Code dealing with "conditional testamentary
dispositions and testamentary dispositions with a term." 41
Thus, Article 885 of our Civil Code expressly provides that:
ART 885. The designation of the day or time
when the effects of the institution of an heir
shall commence or cease shall be valid.
In both cases, the legal heir shall be considered
as called to the succession until the arrival of
the period or its expiration. But in the first case
he shall not enter into possession of the
property until after having given sufficient
security, with the intervention of the instituted
heir.
Accordingly, under the terms of Mrs. Hodges' will, her
husband's right to the succession as the instituted heir
ceased in diem, i.e. upon the arrival of the resolutory term of
his death on December 25, 1962, while her brothers' and
sisters' right to the succession also as instituted heirs
commenced ex die, i.e. upon the expiration of the suspensive
term (as far as they were concerned) of the death of C. N.
Hodges on December 25, 1962 . 42
As stated in Padilla's treatise on the Civil Code, "A term is a
period whose arrival is certain although the exact date thereof
may be uncertain. A term may have either a suspensive or a
resolutory effect. The designation of the day when the legacy
"shall commence" is ex die, or a term with a suspensive
effect, from a certain day. The designation of the day when the
legacy "shall cease" is in diem or a term with a resolutory
effect, until a certain day." He adds that "A legacy based upon
a certain age or upon the death of a person is not a condition
but a term. If the arrival of the term would commence the right
of the heir, it is suspensive. If the arrival of the term would
terminate his right, it is resolutory" and that "upon the arrival of
the period, in case of a suspensive term, the instituted heir is
entitled to the succession, and in case of a resolutory term, his
right terminates." 43
10. The sizable estates herein involved have now been
pending settlement for a considerably protracted period (of
seventeen years counted from Linnie's death in 1957), and all
that is left to be done is to resolve the only remaining issue
(involving the two questions of renunciation and renvoi)
hereinabove discussed in order to close up the estates and
finally effect distribution to the deceased spouses' respective
brothers and sisters and their heirs as the heirs duly instituted
in their wills long admitted to probate. Hence, it is advisable for
said instituted heirs and their heirs in turn 44 to come to terms
for the adjudication and distribution to them pro-indiviso of the
up to now unliquidated community properties of the estates of
the Hodges spouses (derived from their unliquidated conjugal
partnership) rather than to get bogged down with the
formidable task of physically segregating and partitioning the
two estates with the numerous transactions, items and details
and physical changes of properties involved. The estates
proceedings would thus be closed and they could then name
their respective attorneys-in-fact to work out the details of
segregating, dividing or partitioning
the unliquidated community properties or liquidating them —
which can be done then on their own without further need of
intervention on the part of the probate court as well as allow
them meanwhile to enjoy and make use of the income and
cash and liquid assets of the estates in such manner as may
be agreed upon between them.
Such a settlement or modus vivendi between the heirs of the
unliquidated two estates for the mutual benefit of all of them
should not prove difficult, considering that it appears as stated
in the main opinion that 22.968149% of the share or undivided
estate of C. N. Hodges have already been acquired by the
heirs of Linnie Jane Hodges from certain heirs of her husband,
while certain other heirs representing 17.34375% of Hodges'
estate were joining cause with Linnie's heirs in their pending
and unresolved motion for the removal of petitioner PCIB as
administrator of Hodges' estate, 45 apparently impatient with
the situation which has apparently degenerated into a running
battle between the administrators of the two estates to the
common prejudice of all the heirs.
11. As earlier stated, the writer has taken the pain of
suggesting these guidelines which may serve to guide the
probate court as well as the parties towards expediting the
winding up and closing of the estates and the distribution of
the net estates to the instituted heirs and their successors duly
entitled thereto. The probate court should exert all effort
towards this desired objective pursuant to the mandate of our
probate law, bearing in mind the Court's admonition in
previous cases that "courts of first instance should exert
themselves to close up estate within twelve months from the
time they are presented, and they may refuse to allow any
compensation to executors and administrators who do not
actively labor to that end, and they may even adopt harsher
measures." 46
Timeliness of appeals and imposition of
thirty-one (31) additional docket fees
Two appeals were docketed with this Court, as per the two
records on appeal submitted (one with a green cover and the
other with a yellow cover). As stated at the outset, these
appeals involve basically the same primal issue raised in the
petition for certiorari as to whether there still exists a separate
estate of Linnie Jane Hodges which has to continue to be
administered by respondent Magno. Considering the main
opinion's ruling in the affirmative and that her estate and that
of her husband (since they jointly
comprise unliquidated community properties) must be
administered conjointly by their respective administrators
(PCIB and Magno), the said appeals (involving thirty-three
different orders of the probate court approving sales contracts
and other acts of administration executed and performed by
respondent Magno on behalf of Linnie's estate) have been
necessarily overruled by the Court's decision at bar.
(a) The "priority question" raised by respondent Magno as to
the patent failure of the two records on appeal to show on their
face and state the material data that the appeals were timely
taken within the 30-day reglamentary period as required by
Rule 41, section 6 of the Rules of Court, has been brushed
aside by the main opinion with the statement that it is "not
necessary to pass upon the timeliness of any of said appeals"
since they "revolve around practically the same main issues
and ... it is admitted that some of them have been timely
taken." 47 The main opinion thus proceeded with the
determination of the thirty-three appealed orders despite the
grave defect of the appellant PCIB's records on appeal and
their failure to state the required material data showing the
timeliness of the appeals.
Such disposition of the question of timeliness deemed as
"mandatory and jurisdictional" in a number of cases merits the
writer's concurrence in that the question raised has been
subordinated to the paramount considerations of substantial
justice and a "liberal interpretation of the rules" applied so as
not to derogate and detract from the primary intent and
purpose of the rules, viz "the proper and just determination of
a litigation"48 — which calls for "adherence to a liberal
construction of the procedural rules in order to attain their
objective of substantial justice and of avoiding denials of
substantial justice due to procedural technicalities." 49
Thus, the main opinion in consonance with the same
paramount considerations of substantial justice has likewise
overruled respondents' objection to petitioner's taking the
recourse of "the present remedy of certiorari and prohibition"
— "despite the conceded availability of appeal" — on the
ground that "there is a common thread among the basic issues
involved in all these thirty-three appeals — (which) deal with
practically the same basic issues that can be more
expeditiously resolved or determined in a single special civil
action . . . " 50
(b) Since the basic issues have been in effect resolved in the
special civil action at bar (as above stated) with the dismissal
of the petition by virtue of the Court's judgment as to the
continued existence of a separate estate of Linnie Jane
Hodges and the affirmance as a necessary consequence of
the appealed orders approving and sanctioning respondent
Magno's sales contracts and acts of administration, some
doubt would arise as to the propriety of the main opinion
requiring the payment by PCIB of thirty-one
(31) additional appeal docket fees. This doubt is further
enhanced by the question of whether it would make the cost of
appeal unduly expensive or prohibitive by requiring the
payment of a separate appeal docket fee for each incidental
order questioned when the resolution of all such incidental
questioned orders involve basically one and the same main
issue (in this case, the existence of a separate estate of Linnie
Jane Hodges) and can be more expeditiously resolved or
determined in a single special civil action" (for which
a single docket fee is required) as stated in the main
opinion. 51 Considering the importance of the basic issues and
the magnitude of the estates involved, however, the writer
has pro hac vice given his concurrence to the assessment of
the said thirty-one (31) additional appeal docket fees.
MAKALINTAL, C.J., concurring:
I concur in the separate opinion of Justice Teehankee, which in
turn agrees with the dispositive portion of the main opinion of
Justice Barredo insofar as it dismisses the petition
for certiorari and prohibition in Cases L-27860 and L-27896
and affirms the appealed orders of the probate court in cases
L-27936-37.
However, I wish to make one brief observation for the sake of
accuracy. Regardless of whether or not C. N. Hodges was
entitled to a legitime in his deceased wife's estate — which
question, still to be decided by the said probate court, may
depend upon what is the law of Texas and upon its
applicability in the present case — the said estate consists of
one-half, not one-fourth, of the conjugal properties. There is
neither a minimum of one-fourth nor a maximum beyond that.
It is important to bear this in mind because the estate of Linnie
Hodges consists of her share in the conjugal properties, is still
under administration and until now has not been distributed by
order of the court.
The reference in both the main and separate opinions to a
one-fourth portion of the conjugal properties as Linnie Hodges'
minimum share is a misnomer and is evidently meant only to
indicate that if her husband should eventually be declared
entitled to a legitime, then the disposition made by Linnie
Hodges in favor of her collateral relatives would be valid only
as to one-half of her share, or one-fourth of the conjugal
properties, since the remainder, which constitutes such
legitime, would necessarily go to her husband in absolute
ownership, unburdened by any substitution, term or condition,
resolutory or otherwise. And until the estate is finally settled
and adjudicated to the heirs who may be found entitled to it,
the administration must continue to cover Linnie's entire
conjugal share.
Separate Opinions
FERNANDO, J., concurring:
I concur on the basis of the procedural pronouncements in the
opinion.
TEEHANKEE, J., concurring:
I concur in the result of dismissal of the petition
for certiorari and prohibition in Cases L-27860 and L-27896
and with the affirmance of the appealed orders of the probate
court in Cases L-27936-37.
I also concur with the portion of the dispositive part of the
judgment penned by Mr. Justice Barredo decreeing
the lifting of the Court's writ of preliminary injunction of August
8, 1967 as amended on October 4, and December 6,
19671 and ordering in lieu thereof that the Court's resolution of
September 8, 19722 which directed that petitioner-
appellant PCIB as administrator of C. N. (Charles Newton)
Hodges' estate (Sp. Proc. No. 1672 and respondent-appellee
Avelina A. Magno as administratrix of Linnie Jane Hodges'
estate (Sp. Proc. No. 1307) should act always conjointly never
independently from each other, as such administrators, is
reiterated and shall continue in force and made part of the
judgment.
It is manifest from the record that petitioner-appellant PCIB's
primal contention in the cases at bar belatedly filed by it with
this Court on August 1, 1967 (over ten (10) years after Linnie
Jane Hodges' death on May 23, 1957 and (over five (5) years
after her husband C.N. Hodges' death on December 25,
1962 — during which time both estates have
been pending settlement and distribution to the decedents'
respective rightful heirs all this time up to now) — that the
probate court per its order of December 14, 1957
(supplementing an earlier order of May 25, 1957)3 in granting
C. N. Hodges' motion as Executor of his wife Linnie's estate
to continue their "business of buying and selling personal and
real properties" and approving "all sales, conveyances, leases
and mortgages" made and to be made by him as such
executor under his obligation to submit his yearly accounts in
effect declared him as sole heir of his wife's estate and nothing
remains to be done except to formally close her estate (Sp.
Proc. No. 1307) as her estate was thereby merged with his
own so that nothing remains of it that may be adjudicated to
her brothers and sisters as her designated heirs after him,4 —
is wholly untenable and deserves scant consideration.
Aside from having been put forth as an obvious afterthought
much too late in the day, this contention of PCIB that there no
longer exists any separate estate of Linnie Jane Hodges after
the probate court's order of December 14, 1957 goes against
the very acts and judicial admissions of C.N. Hodges as her
executor whereby he consistently recognized the separate
existence and identity of his wife's estate apart from his own
separate estate and from his own share of their conjugal
partnership and estate and "never considered the whole estate
as a single one belonging exclusively to himself" during the
entire period that he survived her for over five (5) years up to
the time of his own death on December 25, 19625 and against
the identical acts and judicial admissions of PCIB as
administrator of C.N. Hodges' estate until PCIB sought in 1966
to take over both estates as pertaining to its sole
administration.
PCIB is now barred and estopped from contradicting or taking
a belated position contradictory to or inconsistent with its
previous admissions 6 (as well as those of C.N. Hodges
himself in his lifetime and of whose estate PCIB is merely an
administrator) recognizing the existence and identity of Linnie
Jane Hodges' separate estate and the legal rights and
interests therein of her brothers and sisters as her designated
heirs in her will.
PCIB's petition for certiorari and prohibition to declare all acts
of the probate court in Linnie Jane Hodges' estate subsequent
to its order of December 14, 1957 as "null and void for having
been issued without jurisdiction" must therefore be dismissed
with the rejection of its belated and untenable contention that
there is no longer any estate of Mrs. Hodges of which
respondent Avelina Magno is the duly appointed and acting
administratrix.
PCIB's appeal7 from the probate court's various orders
recognizing respondent Magno as administratrix of Linnie's
estate (Sp. Proc No. 1307) and sanctioning her acts of
administration of said estate and approving the sales contracts
executed by her with the various individual appellees, which
involve basically the same primal issue raised in the petition as
to whether there still exists a separate estate of Linnie of which
respondent-appellee Magno may continue to be the
administratrix, must necessarily fail — a result of the Court's
main opinion at bar that there doesexist such an estate and
that the two estates (husband's and wife's) must be
administered cojointly by their respective administrators (PCIB
and Magno).
The dispositive portion of the main opinion
The main opinion disposes that:
IN VIEW OF ALL THE FOREGOING
PREMISES, judgment is hereby rendered
DISMISSING the petition in G. R. Nos. L-27860
and L-27896, and AFFIRMING, in G. R. Nos. L-
27936-37 and the other thirty-one numbers
hereunder ordered to be added after payment
of the corresponding docket fees, all the orders
of the trial court under appeal enumerated in
detail on pages 35 to 37 and 80 to 82 of this
decision:
The existence of the Testate Estate of Linnie
Jane Hodges, with respondent-appellee Avelina
A. Magno, as administratrix thereof
is recognized, and
It is declared that, until final judgment is
ultimately rendered regarding (1) the manner of
applying Article 16 of the Civil Code of the
Philippines to the situation obtaining in these
cases and (2) the factual and legal issues of
whether or not Charles Newton Hodges has
effectively and legally renounced his inheritance
under the will of Linnie Jane Hodges, the said
estate consists of one-fourthof the community
properties of the said spouses, as of the time of
the death of the wife on May 23,
1957, minus whatever the husband had
already gratuitously disposed of in favor of third
persons from said date until his death,
provided, first, that with respect
to remunerative dispositions, the proceeds
thereof shall continue to be part of the wife's
estate, unless subsequently disposed
of gratuitously to third parties by the husband,
and second, that should the
purported renunciation be declared legally
effective, no deduction whatsoever are to be
made from said estate;
In consequence, the preliminary injunction of
August 8, 1967, as amended on October 4 and
December 6, 1967, is lifted and the resolution of
September 8, 1972, directing that petitioner-
appellant PCIB, as Administrator of the Testate
Estate of Charles Newton Hodges in Special
Proceedings 1672, and respondent-appellee
Avelina A. Magno, as Administratrix of the
Testate Estate of Linnie Jane Hodges in Special
Proceedings 1307, should act thenceforth
always conjointly, never independently from
each other, as such administrators,
is reiterated, and the same is made part of this
judgment and shall continue in
force, pending the liquidation of the conjugal
partnership of the deceased spouses and
the determination and segregation from each
other of their respective estates; provided, that
upon the finality of this judgment, the trial court
should immediately proceed to the partition of
the presently combined estates of the spouses,
to the end that the one-half share thereof of
Mrs. Hodges may be properly and clearly
identified;
Thereafter, the trial court should forthwith
segregate the remainder of the one-
fourth herein adjudged to be her estate and
cause the same to be turned over or delivered
to respondent for her exclusive administration in
Special Proceedings 1307, while the other one-
fourth shall remain under the joint
administrative of said respondent and petitioner
under a joint proceedings in Special
Proceedings 1307 and 1672, whereas
the half unquestionably pertaining
to Hodges shall be administered by petitioner
exclusively in Special Proceedings 1672,
without prejudice to the resolution by the trial
court of thepending motions for its removal as
administrator;
And this arrangement shall be
maintained until the final resolution of the two
issues of renvoi and renunciation hereby
reserved for further hearing and determination,
and the corresponding completesegregation
and partition of the two estates in the
proportions that may result from the said
resolution.
Generally and in all other respects, the parties
and the court a quo are directed to adhere
henceforth, in all their actuations in Special
 Proceedings 1307 and 1672, to the views
passed and ruled upon by the Court in the
foregoing opinion.8
Minimum estimate of Mrs. Hodges' estate:
One-fourth of conjugal properties.
The main opinion in declaring the existence of a separate
estate of Linnie Jane Hodges which shall pass to her brothers
and sisters with right of representation (by their heirs) as her
duly designated heirs declares that her estate consists as
a minimum (i.e. assuming (1) that under Article 16 of the
Philippine Civil Code C. N. Hodges as surviving husband was
entitled to one-half of her estate as legitime and (2) that he
had not effectively and legally renouncedhis inheritance under
her will) of "one-fourth of the community properties of the said
spouses, as of the time of the death of the wife on May 23,
1957, minus whatever the husband had
already gratuitously disposed of in favor of third persons from
said date until his death," with the proviso that proceeds
of remunerative dispositions or sales for valuable
consideration made by C. N. Hodges after his wife Linnie's
death shall continue to be part of her
estate unless subsequently disposed of by him gratuitously to
third parties subject to the condition, however, that if he is held
to have validly and effectively renounced his inheritance under
his wife's will, no deductions of any dispositions made by
Hodges even if gratuitously are to be made from his wife
Linnie's estate which shall pass intact to her brothers and
sisters as her designated heirs called in her will to succeed to
her estate upon the death of her husband C. N. Hodges.
Differences with the main opinion
I do not share the main opinion's view that Linnie Jane Hodges
instituted her husband as her heir under her will "to have
dominion over all her estate during his lifetime ... as absolute
owner of the properties ..."9 and that she bequeathed "the
whole of her estate to be owned and enjoyed by him as
universal and sole heir with absolute dominion over them only
during his lifetime, which means that while he could completely
and absolutely dispose of any portion thereof inter vivos to
anyone other than himself, he was not free to do so mortis
causa, and all his rights to what might remain upon his death
would cease entirely upon the occurrence of that contingency,
inasmuch as the right of his brothers and sisters-in-law to the
inheritance, although vested already upon the death of Mrs.
Hodges, would automatically become operative upon the
occurrence of the death of Hodges in the event of actual
existence of any remainder of her estate then." 10
As will be amplified hereinafter, I do not subscribe to such a
view that Linnie Jane Hodges willed "full and absolute
ownership" and "absolute dominion" over her estate to her
husband, but rather that she named her husband C. N.
Hodges and her brothers and sisters as instituted heirs with a
term under Article 885 of our Civil Code, to wit, Hodges as
instituted heir with a resolutory term whereunder his right to
the succession ceased in diem upon arrival of
the resolutory term of his death on December 25, 1962 and
her brothers and sisters as instituted heirs with
a suspensive term whereunder their right to the
succession commenced ex die upon arrival of the suspensive
term of the death of C. N. Hodges on December 25, 1962.
Hence, while agreeing with the main opinion that the proceeds
of all remunerative dispositions made by C. N. Hodges after
his wife's death remain an integral part of his wife's estate
which she willed to her brothers and sisters, I submit that C. N.
Hodges could not validly make gratuitous dispositions of any
part or all of his wife's estate — "completely and absolutely
dispose of any portion thereof inter vivos to anyone other than
himself" in the language of the main opinion, supra — and
thereby render ineffectual and nugatory her institution of her
brothers and sisters as her designated heirs to succeed to
her whole estate "at the death of (her) husband." If according
to the main opinion, Hodges could not make such gratuitous
"complete and absolute dispositions" of his wife Linnie's estate
"mortis causa," it would seem that by the same token and
rationale he was likewise proscribed by the will from making
such dispositions of Linnie's estate inter vivos.
I believe that the two questions
of renvoi and renunciation should be
resolved preferentially and expeditiously by the probate
court ahead of the partition and segregation of
the minimum one-fourth of the conjugal or community
properties constituting Linnie Jane Hodges' separate estate,
which task considering that it is now seventeen (17) years
since Linnie Jane Hodges' death and her conjugal estate with
C. N. Hodges has remained unliquidated up to now might take
a similar number of years to unravel with the numerous items,
transactions and details of the sizable estates involved.
Such partition of the minimum one-fourth would not be final,
since if the two prejudicial questions
of renvoi and renunciation were resolved favorably to Linnie's
estate meaning to say that if it should be held that C. N.
Hodges is not entitled to any legitime of her estate and at any
rate he had totally renounced his inheritance under the will),
then Linnie's estate would consist not only of the minimum
one-fourth but one-half of the conjugal or community
properties of the Hodges spouses, which would require again
the partition and segregation of still another one-fourth of said.
properties to complete Linnie's separate estate.
My differences with the main opinion involve further the legal
concepts, effects and consequences of the testamentary
dispositions of Linnie Jane Hodges in her will and the question
of the best to reach a solution of the pressing question of
expediting the closing of the estates which after all do not
appear to involve any outstanding debts nor any dispute
between the heirs and should therefore be promptly settled
now after all these years without any further undue
complications and delays and distributed to the heirs for their
full enjoyment and benefit. As no consensus appears to have
been reached thereon by a majority of the Court, I propose to
state views as concisely as possible with the sole end in view
that they may be of some assistance to the probate court and
the parties in reaching an expeditious closing and settlement
of the estates of the Hodges spouses.
Two Assumptions
As indicated above, the declaration of the minimum of Mrs.
Hodges' estate as one-fourth of the conjugal properties is
based on two assumptions most favorable to C. N. Hodges'
estate and his heirs, namely (1) that the probate court must
accept the renvoi or "reference back" 11 allegedly provided by
the laws of the State of Texas (of which state the Hodges
spouses were citizens) whereby the civil laws of the
Philippines as the domicile of the Hodges spouses would
govern their succession notwithstanding the provisions of
Article 16 of our Civil Code (which provides that the national
law of the decedents, in this case, of Texas, shall govern their
succession) with the result that her estate would consist of no
more than one-fourth of the conjugal properties since
the legitime of her husband (the other one-fourth of said
conjugal properties or one-half of her estate, under Article 900
of our Civil Code) could not then be disposed of nor burdened
with any condition by her and (2) that C.N. Hodges
had not effectively and legally renounced his inheritance under
his wife's will.
These two assumptions are of course flatly disputed by
respondent-appellee Magno as Mrs. Hodges' administratrix,
who avers that the law of the State of Texas governs her
succession and does not provide for and legitime, hence, her
brothers and sisters are entitled to succeed to the whole of her
share of the conjugal properties which is one-halfthereof and
that in any event, Hodges had totally renounced all his rights
under the will.
The main opinion concedes that "(I)n the interest of settling the
estates herein involved soonest, it would be best, indeed, if
these conflicting claims of the parties were determined in
these proceedings." It observes however that this cannot be
done due to the inadequacy of the evidence submitted by the
parties in the probate court and of the parties' discussion, viz,
"there is no clear and reliable proof of what the possibly
applicable laws of Texas are. Then also, the genuineness of
the documents relied upon by respondent Magno [re Hodges'
renunciation] is disputed." 12
Hence, the main opinion expressly reserves resolution and
determination on these two conflicting claims and issues which
it deems "are not properly before the Court
now," 13 and specifically holds that "(A)ccordingly,
the only question that remains to be settled in the further
proceedings hereby ordered to be held in the court below
is how much more than as fixed above is the estate of Mrs.
Hodges, and this would depend on (1) whether or not the
applicable laws of Texas do provide in effect for more, such as,
when there is no legitime provided therein, and (2) whether or
not Hodges has validly waived his whole inheritance from Mrs.
Hodges." 14
Suggested guidelines
Considering that the only unresolved issue has thus been
narrowed down and in consonance with the ruling spirit of our
probate law calling for the prompt settlement of the estates of
deceased persons for the benefit of creditors and those
entitled to the residue by way of inheritance — considering
that the estates have been long pending settlement since
1957 and 1962, respectively — it was felt that the Court should
lay down specific guidelines for the guidance of the probate
court towards the end that it may expedite the closing of the
protracted estates proceedings below to the mutual
satisfaction of the heirs and without need of a dissatisfied party
elevating its resolution of this only remaining issue once more
to this Court and dragging out indefinitely the proceedings.
After all, the only question that remains depends for its
determination on the resolution of the two questions
of renvoiand renunciation, i.e. as to whether C. N. Hodges can
claim a legitime and whether he had renounced the
inheritance. But as already indicated above, the Court without
reaching a consensus which would finally resolve the
conflicting claims here and now in this case opted that "these
and other relevant matters should first be threshed out fully in
the trial court in the proceedings hereinafter to be held for the
purpose of ascertaining and/or distributing the estate of Mrs.
Hodges to her heirs in accordance with her duly probated
will." 15
The writer thus feels that laying down the premises and
principles governing the nature, effects and consequences of
Linnie Jane Hodges' testamentary dispositions in relation to
her conjugal partnership and co-ownership of properties with
her husband C. N. Hodges and "thinking out" the end results,
depending on whether the evidence directed to be formally
received by the probate court would bear out that
under renvoi C. N. Hodges was or was not entitled to claim a
legitime of one-half of his wife Linnie's estate and/or that he
had or had not effectively and validly renounced his
inheritance should help clear the decks, as it were, and assist
the probate court in resolving the onlyremaining question
of how much more than the minimum one-fourth of the
community properties of the Hodges spouses herein finally
determined should be awarded as the separate estate of
Linnie, particularly since the views expressed in the main
opinion have not gained a consensus of the Court. Hence, the
following suggested guidelines, which needless to state,
represent the personal opinion and views of the writer:
1. To begin with, as pointed out in the main opinion, "according
to Hodges' own inventory submitted by him as executor of the
estate of his wife, practically all their properties
were conjugal which means that the spouses have equal
shares therein." 16
2. Upon the death of Mrs. Hodges on May 23, 1957, and the
dissolution thereby of the marriage, the law imposed upon
Hodges as surviving husband the duty of inventorying,
administering and liquidating the conjugal or community
property. 17 Hodges failed to discharge this duty
of liquidating the conjugal partnership and estate. On the
contrary, he sought and obtained authorization from the
probate court
to continue the conjugal partnership's business of buying and
selling real and personal properties.
In his annual accounts submitted to the probate court
as executor of Mrs. Hodges' estate, Hodges
thus consistentlyreported the considerable combined income
(in six figures) of the conjugal partnership or coownership and
then divided the same equally between himself and Mrs.
Hodges' estate and as consistently filed separate income tax
returns and paid the income taxes for each resulting half of
such combined income corresponding to his own and to Mrs.
Hodges' estate. 18 (Parenthetically, he could not in law do this,
had he adjudicated Linnie's entire estate to himself, thus
supporting the view advanced even in the main opinion that
"Hodges waived not only his rights to the fruits but to the
properties themselves." 19
By operation of the law of trust 20 as well as by his own
acknowledgment and acts, therefore, all transactions made by
Hodges after his wife's death were deemed for and on behalf
of their unliquidated conjugal partnership
and community estate and were so reported and treated by
him.
3. With this premise established that all transactions of
Hodges after his wife's death were for and on behalf of
their unliquidated conjugal partnership and community estate,
share and share alike, it should be clear that
no gratuitousdispositions, if any, made by C. N. Hodges from
his wife Linnie's estate should be deducted from
her separateestate as held in the main opinion. On the
contrary, any such gratuitous dispositions should be charged
to his own share of the conjugal estate since he had no
authority or right to make any gratuitous dispositions of
Linnie's properties to the prejudice of her brothers and sisters
whom she called to her succession upon his death, not to
mention that the very authority obtained by him from the
probate court per its orders of May 25, and December 14,
1957 was to continue the conjugal partnership's business of
buying and selling real properties for the account of their
unliquidated conjugal estate and co-ownership, share and
share alike and not to make any free dispositions of Linnie's
estate.
4. All transactions as well after the death on December 25,
1962 of Hodges himself appear perforce and necessarily to
have been conducted, on the same premise, for and on behalf
of their unliquidated conjugal partnership and/or co-
ownership, share and share alike — since the conjugal
partnership remained unliquidated — which is another way of
saying that such transactions, purchases and sales, mostly the
latter, must be deemed in effect to have been made for the
respective estates of C. N. Hodges and of his wife Linnie Jane
Hodges, as both estates continued to have an equal stake and
share in the conjugal partnership which was not only
left unliquidated but continued as a co-ownership or joint
business with the probate court's approval by Hodges during
the five-year period that he survived his wife.
This explains the probate court's action of requiring that deeds
of sale executed by PCIB as Hodges' estate's administrator be
"signed jointly" by respondent Magno as Mrs. Hodges' estate's
administratrix, as well as its order authorizing payment by lot
purchasers from the Hodges to either estate, since "there is as
yet no judicial declaration of heirs nor distribution of properties
to whomsoever are entitled thereto." 22
And this equally furnishes the rationale of the main opinion for
continued conjoint administration by the administrators of the
two estates of the deceased spouses, "pending the liquidation
of the conjugal partnership," 23since "it is but logical that both
estates should be administered jointly by the representatives
of both, pending their segregation from each other. Particularly
... because the actuations so far of PCIB evince a determined,
albeit groundless, intent to exclude the other heirs of Mrs.
Hodges from their inheritance." 24 5. Antly by the
representatives of both, pending their segregation from each
other. Particularly ... because the actuations so far of PCIB
evince a determined, albeit groundless, intent to exclude the
other heirs of Mrs. Hodges from their inheritance." 24
5. As stressed in the main opinion, the determination of
the only unresolved issue of how much more than the
minimum of one-fourth of the community or conjugal properties
of the Hodges spouses pertains to Mrs. Hodges' estate
depends on the twin questions of renunciation and renvoi. It
directed consequently that "a joint hearing of the two probate
proceedings herein involved" be held by the probate court for
the reception of "further evidence" in order to finally resolved
these twin questions. 25
(a) On the question of renunciation, it is believed that all that
the probate court has to do is to receive formally in evidence
the various documents annexed to respondent Magno's
answer at bar, 26 namely: Copy of the U.S. Estate Tax Return
filed on August 8, 1958 by C. N. Hodges for his wife Linnie's
estate wherein he purportedly declared that he
was renouncing his inheritance under his wife's will in favor
of her brothers and sisters as co-heirs designated with him
and that it was his "intention (as) surviving husband of the
deceased to distribute the remaining property and interests of
the deceased in their community estate to the devisee and
legatees named in the will when the debts, liabilities, taxes and
expenses of administration are finally determined and
paid;" 27 and
The affidavit of ratification of such renunciation (which places
him in estoppel) allegedly executed on August 9, 1962 by C.
N. Hodges in Iloilo City wherein he reaffirmed that "...
on August 8, 1958, I renounced and disclaimed any and all
right to receive the rents, emoluments and income from said
estate" and further declared that "(T)he purpose of this
affidavit is to ratify and confirm, and I do hereby ratify and
confirm, the declaration made in schedule M of said return and
hereby formally disclaim and renounce any right on my part to
receive any of the said rents, emoluments and income from
the estate of my deceased wife, Linnie Jane Hodges. This
affidavit is made to absolve me or my estate from any liability
for the payment of income taxes on income which has accrued
to the estate of Linnie Jane Hodges since the death of the said
Linnie Jane Hodges on May 23, 1957." 28
(b) On the question of renvoi, all that remains for the probate
court to do is to formally receive in evidence duly
authenticated copies of the laws of the State of Texas
governing the succession of Linnie Jane Hodges and her
husband C. N. Hodges as citizens of said State at the time of
their respective deaths on May 23, 1957 and December 25,
1962. 29
6. The text and tenor of the declarations by C. N. Hodges
of renunciation of his inheritance from his wife in favor of her
other named heirs in her will (her brothers and sisters and their
respective heirs) as ratified and reiterated expressly in his
affidavit of renunciation executed four years later for the
avowed purpose of not being held liable for payment of income
taxes on income which has accrued to his wife's estate since
her death indicate a valid and effective renunciation.
Once the evidence has been formally admitted and its
genuineness and legal effectivity established by the probate
court, the renunciation by C. N. Hodges must be given due
effect with the result that C. N. Hodges therefore acquired no
part of his wife's one-half share of the community properties
since he removed himself as an heir by virtue of his
renunciation. By simple substitution then under Articles 857
and 859 of our Civil Code 30 and by virtue of the will's
institution of heirs, since "the heir originally instituted C. N.
Hodges) does not become an heir" 31 by force of his
renunciation, Mrs. Hodges' brothers and sisters whom she
designated as her heirs upon her husband's death are called
immediately to her succession.
Consequently, the said community and conjugal properties
would then pertain pro indiviso share and share alike to their
respective estates, with each estate, however, shouldering its
own expenses of administration, estate and inheritance taxes,
if any remain unpaid, attorneys' fees and other like expenses
and the net remainder to be adjudicated directly to the
decedents' respective brothers and sisters (and their heirs) as
the heirs duly designated in their respective wills. The question
of renvoi becomes immaterial since most laws and our
laws permit such renunciation of inheritance.
7. If there were no renunciation (or the same may somehow be
declared to have not been valid and effective) by C. N. Hodges
of his inheritance from his wife, however, what would be the
consequence?
(a) If the laws on succession of the State of Texas do provide
for renvoi or "reference back" to Philippine law as the
domiciliary law of the Hodges' spouses governing their
succession, then petitioners' view that Mrs. Hodges' estate
would consist only of the minimum of "one-fourth of the
community properties of the said spouses, as of the time of
(her) death on May 23, 1957" would have to be sustained and
C. N. Hodges' estate would consist of three-fourths of the
community properties, comprising his own one-half (or two-
fourths) share and the other fourth of Mrs. Hodges' estate as
the legitime granted him as surviving spouse by Philippine
law (Article 900 of the Civil Code) which could not be disposed
of nor burdened with any condition by Mrs. Hodges as
testatrix.
(b) If the laws on succession of the State of Texas
do not provide for such renvoi and respondent Magno's
assertion is correct that the Texas law which would then
prevail, provides for no legitime for C. N. Hodges as the
surviving spouse, then respondent Magno's assertion that Mrs.
Hodges' estate would consist of one-half of the community
properties (with the other half pertaining to C. N. Hodges)
would have to be sustained. The community and conjugal
properties would then pertain share and share alike to their
respective estates, with each estate shouldering its own
expenses of administration in the same manner stated in the
last paragraph of paragraph 6 hereof. .
8. As to the nature of the institution of heirs made by Mrs.
Hodges in her will, the main opinion holds that "(T)he brothers
and sisters of Mrs. Hodges are not substitutes for Hodges;
rather, they are also heirs instituted simultaneously with
Hodges," but goes further and holds that "it was not the
usufruct alone of her estate ... that she bequeathed to
Hodges during his lifetime, but the full
ownership thereof, although the same was to last also during
his lifetime only, even as there was no restriction against his
disposing or conveying the whole or any portion
thereof anybody other than himself" and describes Hodges
"as universal and sole heir with absolute dominion over Mrs.
Hodges' estate (except over their Lubbock, Texas
property ), 32 adding that "Hodges was not obliged to preserve
anything for them" (referring to Mrs. Hodges' brothers and
sisters as instituted co-heirs). 33
Contrary to this view of the main opinion, the writer submits
that the provisions of Mrs. Hodges' will did not grant to C.N.
Hodges "full ownership" nor "absolute dominion" over her
estate, such that he could as "universal and sole heir" by the
mere expedient of gratuitously disposing to third persons
her whole estate during his lifetime nullify her institution of her
brothers and sisters as his co-heirs to succeed to
her whole estate "at the death of (her) husband," deprive them
of any inheritance and make his own brothers and sisters in
effect sole heirs not only of his own estate but of
his wife's estate as well.
Thus, while Linnie Jane Hodges did not expressly name her
brothers and sisters as substitutes for Hodges because she
willed that they would enter into the succession upon his
death, still it cannot be gainsaid, as the main opinion
concedes, "that they are
also heirs instituted simultaneously with Hodges, subject
however to certain conditions, partially resolutory insofar as
Hodges was concerned and correspondingly suspensive with
reference to his brothers and sisters-in-law." 34
Hence, if Hodges is found to have validly renounced his
inheritance, there would be a substitution of heirs in fact and in
law since Linnie's brothers and sisters as the heirs
"simultaneously instituted" with a suspensive term would be
called immediately to her succession instead of waiting for the
arrival of suspensive term of Hodges' death, since as the heir
originally instituted he does not become an heir by force of his
renunciation and therefore they would "enter into the
inheritance in default of the heir originally instituted" (Hodges)
under the provisions of Article 857 and 859 of our Civil
Code, supra, 35 thus accelerating their succession to her estate
as a consequence of Hodges' renunciation.
Consequently, Linnie Jane Hodges willed that her husband
C.N. Hodges would "during his natural lifetime ... manage,
control, use and enjoy said estate" and that only "all rents,
emoluments and income" alone shall belong to him. She
further willed that while he could sell and purchase properties
of her estate, and "use any part of the principal estate," such
principal notwithstanding "any changes in the physical
properties of said estate"(i.e. new properties acquired or
exchanged) would still pertain to her estate, which at the time
of his death would pass in full dominion to her brothers and
sisters as the ultimate sole and universal heirs of her estate. 36
The testatrix Linnie Jane Hodges in her will thus principally
provided that "I give, devise and bequeath all of the rest,
residue and remainder of my estate, both personal and real ...
to my beloved husband, Charles Newton Hodges, to have and
to hold with him ... during his natural lifetime;" 37 that "(he) shall
have the right to manage, control, use and enjoy said
estate during his lifetime, ... to make any changes in
the physical properties of said estate, by sale ... and
the purchase of any other or additional property as he may
think best ... . All rents, emoluments and income from said
estate shall belong to him and he is further authorized
to use any part of the principal of said estate as he may need
or desire, ... he shall not sell or otherwise dispose of any of the
improved property now owned by us, located at ... City of
Lubbock, Texas ... . He shall have the right
to subdivide any farm land and sell lots therein, and may
sell unimproved town lots;" 38 that "(A)t the death of my said
husband, Charles Newton, I give, devise and bequeath all of
the rest, residue and remainder of my estate, both personal
and real, ... to be equally divided among my brothers and
sisters, share and share alike, namely: Esta Higdon, Emma
Howell, Leonard Higdon, Roy Higdon, Sadie Rascoe, Era
Roman and Nimroy Higdon;" 39 and that "(I)n case of the death
of any of my brothers and/or sisters ...prior to the death of my
husband ... the heirs of such deceased brother or sister shall
take jointly the share which would have gone to such brother
or sister had she or he survived." 40
Such provisions are wholly consistent with the view already
fully expounded above that all transactions and sales made by
Hodges after his wife Linnie's death were by operation of the
law of trust as well as by his own acknowledgment and acts
deemed for and on behalf of their unliquidated conjugal
partnership and community estate, share and share alike, with
the express authorization of the probate court per its orders of
May 25, and December 14, 1957 granting Hodges' motion to
continue the conjugal partnership business of buying and
selling real estate even after her death. By the same token,
Hodges could not conceivably be deemed to have had any
authority or right to dispose gratuitously of any portion of her
estate to whose succession she had called her brothers and
sisters upon his death.
9. Such institutions of heirs with a term are expressly
recognized and permitted under Book III, Chapter 2, section 4
of our Civil Code dealing with "conditional testamentary
dispositions and testamentary dispositions with a term." 41
Thus, Article 885 of our Civil Code expressly provides that:
ART 885. The designation of the day or time
when the effects of the institution of an heir
shall commence or cease shall be valid.
In both cases, the legal heir shall be considered
as called to the succession until the arrival of
the period or its expiration. But in the first case
he shall not enter into possession of the
property until after having given sufficient
security, with the intervention of the instituted
heir.
Accordingly, under the terms of Mrs. Hodges' will, her
husband's right to the succession as the instituted heir
ceased in diem, i.e. upon the arrival of the resolutory term of
his death on December 25, 1962, while her brothers' and
sisters' right to the succession also as instituted heirs
commenced ex die, i.e. upon the expiration of the suspensive
term (as far as they were concerned) of the death of C. N.
Hodges on December 25, 1962 . 42
As stated in Padilla's treatise on the Civil Code, "A term is a
period whose arrival is certain although the exact date thereof
may be uncertain. A term may have either a suspensive or a
resolutory effect. The designation of the day when the legacy
"shall commence" is ex die, or a term with a suspensive
effect, from a certain day. The designation of the day when the
legacy "shall cease" is in diem or a term with a resolutory
effect, until a certain day." He adds that "A legacy based upon
a certain age or upon the death of a person is not a condition
but a term. If the arrival of the term would commence the right
of the heir, it is suspensive. If the arrival of the term would
terminate his right, it is resolutory" and that "upon the arrival of
the period, in case of a suspensive term, the instituted heir is
entitled to the succession, and in case of a resolutory term, his
right terminates." 43
10. The sizable estates herein involved have now been
pending settlement for a considerably protracted period (of
seventeen years counted from Linnie's death in 1957), and all
that is left to be done is to resolve the only remaining issue
(involving the two questions of renunciation and renvoi)
hereinabove discussed in order to close up the estates and
finally effect distribution to the deceased spouses' respective
brothers and sisters and their heirs as the heirs duly instituted
in their wills long admitted to probate. Hence, it is advisable for
said instituted heirs and their heirs in turn 44 to come to terms
for the adjudication and distribution to them pro-indiviso of the
up to now unliquidated community properties of the estates of
the Hodges spouses (derived from their unliquidated conjugal
partnership) rather than to get bogged down with the
formidable task of physically segregating and partitioning the
two estates with the numerous transactions, items and details
and physical changes of properties involved. The estates
proceedings would thus be closed and they could then name
their respective attorneys-in-fact to work out the details of
segregating, dividing or partitioning
the unliquidated community properties or liquidating them —
which can be done then on their own without further need of
intervention on the part of the probate court as well as allow
them meanwhile to enjoy and make use of the income and
cash and liquid assets of the estates in such manner as may
be agreed upon between them.
Such a settlement or modus vivendi between the heirs of the
unliquidated two estates for the mutual benefit of all of them
should not prove difficult, considering that it appears as stated
in the main opinion that 22.968149% of the share or undivided
estate of C. N. Hodges have already been acquired by the
heirs of Linnie Jane Hodges from certain heirs of her husband,
while certain other heirs representing 17.34375% of Hodges'
estate were joining cause with Linnie's heirs in their pending
and unresolved motion for the removal of petitioner PCIB as
administrator of Hodges' estate, 45 apparently impatient with
the situation which has apparently degenerated into a running
battle between the administrators of the two estates to the
common prejudice of all the heirs.
11. As earlier stated, the writer has taken the pain of
suggesting these guidelines which may serve to guide the
probate court as well as the parties towards expediting the
winding up and closing of the estates and the distribution of
the net estates to the instituted heirs and their successors duly
entitled thereto. The probate court should exert all effort
towards this desired objective pursuant to the mandate of our
probate law, bearing in mind the Court's admonition in
previous cases that "courts of first instance should exert
themselves to close up estate within twelve months from the
time they are presented, and they may refuse to allow any
compensation to executors and administrators who do not
actively labor to that end, and they may even adopt harsher
measures." 46
 Timeliness of appeals and imposition of
thirty-one (31) additional docket fees
Two appeals were docketed with this Court, as per the two
records on appeal submitted (one with a green cover and the
other with a yellow cover). As stated at the outset, these
appeals involve basically the same primal issue raised in the
petition for certiorari as to whether there still exists a separate
estate of Linnie Jane Hodges which has to continue to be
administered by respondent Magno. Considering the main
opinion's ruling in the affirmative and that her estate and that
of her husband (since they jointly
comprise unliquidated community properties) must be
administered conjointly by their respective administrators
(PCIB and Magno), the said appeals (involving thirty-three
different orders of the probate court approving sales contracts
and other acts of administration executed and performed by
respondent Magno on behalf of Linnie's estate) have been
necessarily overruled by the Court's decision at bar.
(a) The "priority question" raised by respondent Magno as to
the patent failure of the two records on appeal to show on their
face and state the material data that the appeals were timely
taken within the 30-day reglamentary period as required by
Rule 41, section 6 of the Rules of Court, has been brushed
aside by the main opinion with the statement that it is "not
necessary to pass upon the timeliness of any of said appeals"
since they "revolve around practically the same main issues
and ... it is admitted that some of them have been timely
taken." 47 The main opinion thus proceeded with the
determination of the thirty-three appealed orders despite the
grave defect of the appellant PCIB's records on appeal and
their failure to state the required material data showing the
timeliness of the appeals.
Such disposition of the question of timeliness deemed as
"mandatory and jurisdictional" in a number of cases merits the
writer's concurrence in that the question raised has been
subordinated to the paramount considerations of substantial
justice and a "liberal interpretation of the rules" applied so as
not to derogate and detract from the primary intent and
purpose of the rules, viz "the proper and just determination of
a litigation"48 — which calls for "adherence to a liberal
construction of the procedural rules in order to attain their
objective of substantial justice and of avoiding denials of
substantial justice due to procedural technicalities." 49
Thus, the main opinion in consonance with the same
paramount considerations of substantial justice has likewise
overruled respondents' objection to petitioner's taking the
recourse of "the present remedy of certiorari and prohibition"
— "despite the conceded availability of appeal" — on the
ground that "there is a common thread among the basic issues
involved in all these thirty-three appeals — (which) deal with
practically the same basic issues that can be more
expeditiously resolved or determined in a single special civil
action . . . " 50
(b) Since the basic issues have been in effect resolved in the
special civil action at bar (as above stated) with the dismissal
of the petition by virtue of the Court's judgment as to the
continued existence of a separate estate of Linnie Jane
Hodges and the affirmance as a necessary consequence of
the appealed orders approving and sanctioning respondent
Magno's sales contracts and acts of administration, some
doubt would arise as to the propriety of the main opinion
requiring the payment by PCIB of thirty-one
(31) additional appeal docket fees. This doubt is further
enhanced by the question of whether it would make the cost of
appeal unduly expensive or prohibitive by requiring the
payment of a separate appeal docket fee for each incidental
order questioned when the resolution of all such incidental
questioned orders involve basically one and the same main
issue (in this case, the existence of a separate estate of Linnie
Jane Hodges) and can be more expeditiously resolved or
determined in a single special civil action" (for which
a single docket fee is required) as stated in the main
opinion. 51 Considering the importance of the basic issues and
the magnitude of the estates involved, however, the writer
has pro hac vice given his concurrence to the assessment of
the said thirty-one (31) additional appeal docket fees.
MAKALINTAL, C.J., concurring:
indicate that if her husband should eventually be declared
entitled to a legitime, then the disposition made by Linnie
Hodges in favor of her collateral relatives would be valid only
as to one-half of her share, or one-fourth of the conjugal
properties, since the remainder, which constitutes such
legitime, would necessarily go to her husband in absolute
ownership, unburdened by any substitution, term or condition,
resolutory or otherwise. And until the estate is finally settled
and adjudicated to the heirs who may be found entitled to it,
the administration must continue to cover Linnie's entire
conjugal share.

I concur in the separate opinion of Justice Teehankee, which in

turn agrees with the dispositive portion of the main opinion of
Justice Barredo insofar as it dismisses the petition
for certiorari and prohibition in Cases L-27860 and L-27896
and affirms the appealed orders of the probate court in cases
L-27936-37.

However, I wish to make one brief observation for the sake of

accuracy. Regardless of whether or not C. N. Hodges was
entitled to a legitime in his deceased wife's estate — which
question, still to be decided by the said probate court, may
depend upon what is the law of Texas and upon its
applicability in the present case — the said estate consists of
one-half, not one-fourth, of the conjugal properties. There is
neither a minimum of one-fourth nor a maximum beyond that.
It is important to bear this in mind because the estate of Linnie
Hodges consists of her share in the conjugal properties, is still
under administration and until now has not been distributed by
order of the court.

The reference in both the main and separate opinions to a

one-fourth portion of the conjugal properties as Linnie Hodges'
minimum share is a misnomer and is evidently meant only to
G.R. No. L-22595 November 1, 1927
Testate Estate of Joseph G. Brimo, JUAN MICIANO,
administrator, petitioner-appellee,
vs.
ANDRE BRIMO, opponent-appellant.
Ross, Lawrence and Selph for appellant.
Camus and Delgado for appellee.
ROMUALDEZ, J.:
The partition of the estate left by the deceased Joseph G.
Brimo is in question in this case.
The judicial administrator of this estate filed a scheme of
partition. Andre Brimo, one of the brothers of the deceased,
opposed it. The court, however, approved it.
The errors which the oppositor-appellant assigns are:
(1) The approval of said scheme of partition; (2) denial of his
participation in the inheritance; (3) the denial of the motion for
reconsideration of the order approving the partition; (4) the
approval of the purchase made by the Pietro Lana of the
deceased's business and the deed of transfer of said
business; and (5) the declaration that the Turkish laws are
impertinent to this cause, and the failure not to postpone the
approval of the scheme of partition and the delivery of the
deceased's business to Pietro Lanza until the receipt of the
depositions requested in reference to the Turkish laws.
The appellant's opposition is based on the fact that the
partition in question puts into effect the provisions of Joseph
G. Brimo's will which are not in accordance with the laws of his
Turkish nationality, for which reason they are void as being in
violation or article 10 of the Civil Code which, among other
things, provides the following:
Nevertheless, legal and testamentary successions, in
respect to the order of succession as well as to the
amount of the successional rights and the intrinsic
validity of their provisions, shall be regulated by the
national law of the person whose succession is in
question, whatever may be the nature of the property
or the country in which it may be situated.
But the fact is that the oppositor did not prove that said
testimentary dispositions are not in accordance with the
Turkish laws, inasmuch as he did not present any evidence
showing what the Turkish laws are on the matter, and in the
absence of evidence on such laws, they are presumed to be
the same as those of the Philippines. (Lim and Lim vs.
Collector of Customs, 36 Phil., 472.)
It has not been proved in these proceedings what the Turkish
laws are. He, himself, acknowledges it when he desires to be
given an opportunity to present evidence on this point; so
much so that he assigns as an error of the court in not having
deferred the approval of the scheme of partition until the
receipt of certain testimony requested regarding the Turkish
laws on the matter.
The refusal to give the oppositor another opportunity to prove
such laws does not constitute an error. It is discretionary with
the trial court, and, taking into consideration that the oppositor
was granted ample opportunity to introduce competent
evidence, we find no abuse of discretion on the part of the
court in this particular. There is, therefore, no evidence in the
record that the national law of the testator Joseph G. Brimo
was violated in the testamentary dispositions in question
which, not being contrary to our laws in force, must be
complied with and executed. lawphil.net
Therefore, the approval of the scheme of partition in this
respect was not erroneous.
In regard to the first assignment of error which deals with the
exclusion of the herein appellant as a legatee, inasmuch as he
is one of the persons designated as such in will, it must be
taken into consideration that such exclusion is based on the
last part of the second clause of the will, which says:
Second. I like desire to state that although by law, I am
a Turkish citizen, this citizenship having been conferred
upon me by conquest and not by free choice, nor by
nationality and, on the other hand, having resided for a
considerable length of time in the Philippine Islands
where I succeeded in acquiring all of the property that I
now possess, it is my wish that the distribution of my
property and everything in connection with this, my will,
be made and disposed of in accordance with the laws
in force in the Philippine islands, requesting all of my
relatives to respect this wish, otherwise, I annul and
cancel beforehand whatever disposition found in this
will favorable to the person or persons who fail to
comply with this request.
The institution of legatees in this will is conditional, and the
condition is that the instituted legatees must respect the
testator's will to distribute his property, not in accordance with
the laws of his nationality, but in accordance with the laws of
the Philippines.
If this condition as it is expressed were legal and valid, any
legatee who fails to comply with it, as the herein oppositor
who, by his attitude in these proceedings has not respected
the will of the testator, as expressed, is prevented from
receiving his legacy.
The fact is, however, that the said condition is void, being
contrary to law, for article 792 of the civil Code provides the
following:
Impossible conditions and those contrary to law or
good morals shall be considered as not imposed and
shall not prejudice the heir or legatee in any manner
whatsoever, even should the testator otherwise
provide.
And said condition is contrary to law because it expressly
ignores the testator's national law when, according to article 10
of the civil Code above quoted, such national law of the
testator is the one to govern his testamentary dispositions.
Said condition then, in the light of the legal provisions above
cited, is considered unwritten, and the institution of legatees in
said will is unconditional and consequently valid and effective
even as to the herein oppositor.
It results from all this that the second clause of the will
regarding the law which shall govern it, and to the condition
imposed upon the legatees, is null and void, being contrary to
law.
All of the remaining clauses of said will with all their
dispositions and requests are perfectly valid and effective it not
appearing that said clauses are contrary to the testator's
national law.
Therefore, the orders appealed from are modified and it is
directed that the distribution of this estate be made in such a
manner as to include the herein appellant Andre Brimo as one
of the legatees, and the scheme of partition submitted by the
judicial administrator is approved in all other respects, without
any pronouncement as to costs.

So ordered.

Street, Malcolm, Avanceña, Villamor and Ostrand, JJ., concur.

 [G.R. No. 113725. June 29, 2000]
JOHNNY S. RABADILLA,[1] petitioner, vs. COURT
OF APPEALS AND MARIA
MARLENA[2] COSCOLUELLA Y BELLEZA
VILLACARLOS, respondents.
DECISION
PURISIMA, J.:
This is a petition for review of the decision of the Court
of Appeals,[3] dated December 23, 1993, in CA-G.R.
No. CV-35555, which set aside the decision of Branch
52 of the Regional Trial Court in Bacolod City, and
ordered the defendants-appellees (including herein
petitioner), as heirs of Dr. Jorge Rabadilla, to reconvey
title over Lot No. 1392, together with its fruits and
interests, to the estate of Aleja Belleza.
The antecedent facts are as follows:
In a Codicil appended to the Last Will and Testament of
testatrix Aleja Belleza, Dr. Jorge Rabadilla,
predecessor-in-interest of the herein petitioner, Johnny
S. Rabadilla, was instituted as a devisee of 511, 855
square meters of that parcel of land surveyed as Lot
No. 1392 of the Bacolod Cadastre. The said Codicil,
which was duly probated and admitted in Special
Proceedings No. 4046 before the then Court of First
Instance of Negros Occidental, contained the following
provisions:
"FIRST
I give, leave and bequeath the following
property owned by me to Dr. Jorge Rabadilla
resident of 141 P. Villanueva, Pasay City:
(a) Lot No. 1392 of the Bacolod Cadastre,
covered by Transfer Certificate of Title No. RT-
4002 (10942), which is registered in my name
according to the records of the Register of
Deeds of Negros Occidental.
(b) That should Jorge Rabadilla die ahead of
me, the aforementioned property and the rights
which I shall set forth hereinbelow, shall be
inherited and acknowledged by the children and
spouse of Jorge Rabadilla.
xxx
FOURTH
(a)....It is also my command, in this my addition
(Codicil), that should I die and Jorge Rabadilla
shall have already received the ownership of
the said Lot No. 1392 of the Bacolod Cadastre,
covered by Transfer Certificate of Title No. RT-
4002 (10942), and also at the time that the
lease of Balbinito G. Guanzon of the said lot
shall expire, Jorge Rabadilla shall have the
obligation until he dies, every year to give to
Maria Marlina Coscolluela y Belleza, Seventy
(75) (sic) piculs of Export sugar and Twenty
Five (25) piculs of Domestic sugar, until the said
Maria Marlina Coscolluela y Belleza dies.
FIFTH
(a) Should Jorge Rabadilla die, his heir to
whom he shall give Lot No. 1392 of the Bacolod
Cadastre, covered by Transfer Certificate of
Title No. RT-4002 (10492), shall have the
obligation to still give yearly, the sugar as
specified in the Fourth paragraph of his
testament, to Maria Marlina Coscolluela y
Belleza on the month of December of each
year.
SIXTH
I command, in this my addition (Codicil) that the
Lot No. 1392, in the event that the one to whom
I have left and bequeathed, and his heir shall
later sell, lease, mortgage this said Lot, the
buyer, lessee, mortgagee, shall have also the
obligation to respect and deliver yearly ONE
HUNDRED (100) piculs of sugar to Maria
Marlina Coscolluela y Belleza, on each month
of December, SEVENTY FIVE (75) piculs of
Export and TWENTY FIVE (25) piculs of
Domestic, until Maria Marlina shall die, lastly
should the buyer, lessee or the mortgagee of
this lot, not have respected my command in this
my addition (Codicil), Maria Marlina Coscolluela
y Belleza, shall immediately seize this Lot No.
1392 from my heir and the latter's heirs, and
shall turn it over to my near desendants, (sic)
and the latter shall then have the obligation to
give the ONE HUNDRED (100) piculs of sugar
until Maria Marlina shall die. I further command
in this my addition (Codicil) that my heir and his
heirs of this Lot No. 1392, that they will obey
and follow that should they decide to sell, lease,
mortgage, they cannot negotiate with others
than my near descendants and my sister."[4]
Pursuant to the same Codicil, Lot No. 1392 was
transferred to the deceased, Dr. Jorge Rabadilla, and
Transfer Certificate of Title No. 44498 thereto issued in
his name.
Dr. Jorge Rabadilla died in 1983 and was survived by
his wife Rufina and children Johnny (petitioner),
Aurora, Ofelia and Zenaida, all surnamed Rabadilla.
On August 21, 1989, Maria Marlena Coscolluela y
Belleza Villacarlos brought a complaint, docketed as
Civil Case No. 5588, before Branch 52 of the Regional
Trial Court in Bacolod City, against the above-
mentioned heirs of Dr. Jorge Rabadilla, to enforce the
provisions of subject Codicil. The Complaint alleged
that the defendant-heirs violated the conditions of the
Codicil, in that:
1. Lot No. 1392 was mortgaged to the
Philippine National Bank and the Republic
Planters Bank in disregard of the testatrix's
specific instruction to sell, lease, or mortgage
only to the near descendants and sister of the
testatrix.
2. Defendant-heirs failed to comply with their
obligation to deliver one hundred (100) piculs of
sugar (75 piculs export sugar and 25 piculs
domestic sugar) to plaintiff Maria Marlena
Coscolluela y Belleza from sugar crop years
1985 up to the filing of the complaint as
mandated by the Codicil, despite repeated
demands for compliance.
 3. The banks failed to comply with the 6th
paragraph of the Codicil which provided that in
case of the sale, lease, or mortgage of the
property, the buyer, lessee, or mortgagee shall
likewise have the obligation to deliver 100
piculs of sugar per crop year to herein private
respondent.
The plaintiff then prayed that judgment be rendered
ordering defendant-heirs to reconvey/return-Lot No.
1392 to the surviving heirs of the late Aleja Belleza, the
cancellation of TCT No. 44498 in the name of the
deceased, Dr. Jorge Rabadilla, and the issuance of a
new certificate of title in the names of the surviving
heirs of the late Aleja Belleza.
On February 26, 1990, the defendant-heirs were
declared in default but on March 28, 1990 the Order of
Default was lifted, with respect to defendant Johnny S.
Rabadilla, who filed his Answer, accordingly.
During the pre-trial, the parties admitted that:
On November 15, 1998, the plaintiff (private
respondent) and a certain Alan Azurin, son-in-law of
the herein petitioner who was lessee of the property
and acting as attorney-in-fact of defendant-heirs,
arrived at an amicable settlement and entered into a
Memorandum of Agreement on the obligation to deliver
one hundred piculs of sugar, to the following effect:
"That for crop year 1988-89, the annuity
mentioned in Entry No. 49074 of TCT No.
44489 will be delivered not later than January of
1989, more specifically, to wit:
75 piculs of 'A' sugar, and 25
piculs of 'B' sugar, or then
existing in any of our names,
Mary Rose Rabadilla y Azurin or
Alan Azurin, during December of
each sugar crop year, in Azucar
Sugar Central; and, this is
considered compliance of the
annuity as mentioned, and in the
same manner will compliance of
the annuity be in the next
succeeding crop years.
That the annuity above stated for crop year
1985-86, 1986-87, and 1987-88, will be
complied in cash equivalent of the number of
piculs as mentioned therein and which is as
herein agreed upon, taking into consideration
the composite price of sugar during each sugar
crop year, which is in the total amount of ONE
HUNDRED FIVE THOUSAND PESOS
(P105,000.00).
That the above-mentioned amount will be paid or
delivered on a staggered cash installment, payable on
or before the end of December of every sugar crop
year, to wit:
For 1985-86, TWENTY SIX THOUSAND TWO
HUNDRED FIFTY (P26,250.00) Pesos, payable on or
before December of crop year 1988-89;
For 1986-87, TWENTY SIX THOUSAND TWO
HUNDRED FIFTY (P26,250.00) Pesos, payable on or
before December of crop year 1989-90;
For 1987-88, TWENTY SIX THOUSAND TWO
HUNDRED FIFTY (P26,250.00) Pesos, payable on or
before December of crop year 1990-91; and
For 1988-89, TWENTY SIX THOUSAND TWO
HUNDRED FIFTY (P26,250.00) Pesos, payable on or
before December of crop year 1991-92."[5]
However, there was no compliance with the aforesaid
Memorandum of Agreement except for a partial
delivery of 50.80 piculs of sugar corresponding to
sugar crop year 1988 -1989.
On July 22, 1991, the Regional Trial Court came out
with a decision, dismissing the complaint and disposing
as follows:
"WHEREFORE, in the light of the aforegoing
findings, the Court finds that the action is
prematurely filed as no cause of action against
the defendants has as yet arose in favor of
plaintiff. While there maybe the non-
performance of the command as mandated
exaction from them simply because they are the
children of Jorge Rabadilla, the title
holder/owner of the lot in question, does not
warrant the filing of the present complaint. The
remedy at bar must fall. Incidentally, being in
the category as creditor of the left estate, it is
opined that plaintiff may initiate the intestate
proceedings, if only to establish the heirs of
Jorge Rabadilla and in order to give full
meaning and semblance to her claim under the
Codicil.
In the light of the aforegoing findings, the
Complaint being prematurely filed is
DISMISSED without prejudice.
SO ORDERED."[6]
On appeal by plaintiff, the First Division of the Court of
Appeals reversed the decision of the trial court;
ratiocinating and ordering thus:
"Therefore, the evidence on record having
established plaintiff-appellant's right to receive
100 piculs of sugar annually out of the produce
of Lot No. 1392; defendants-appellee's
obligation under Aleja Belleza's codicil, as heirs
of the modal heir, Jorge Rabadilla, to deliver
such amount of sugar to plaintiff-appellant;
defendants-appellee's admitted non-compliance
with said obligation since 1985; and, the
punitive consequences enjoined by both the
codicil and the Civil Code, of seizure of Lot No.
1392 and its reversion to the estate of Aleja
Belleza in case of such non-compliance, this
Court deems it proper to order the
reconveyance of title over Lot No. 1392 from
the estates of Jorge Rabadilla to the estate of
Aleja Belleza. However, plaintiff-appellant must
institute separate proceedings to re-open Aleja
Belleza's estate, secure the appointment of an
administrator, and distribute Lot No. 1392 to
Aleja Belleza's legal heirs in order to enforce
her right, reserved to her by the codicil, to
receive her legacy of 100 piculs of sugar per
year out of the produce of Lot No. 1392 until
she dies.
 Accordingly, the decision appealed from is SET
ASIDE and another one entered ordering
defendants-appellees, as heirs of Jorge
Rabadilla, to reconvey title over Lot No. 1392,
together with its fruits and interests, to the
estate of Aleja Belleza.
SO ORDERED."[7]
Dissatisfied with the aforesaid disposition by the Court
of Appeals, petitioner found his way to this
Court via the present petition, contending that the
Court of Appeals erred in ordering the reversion of Lot
1392 to the estate of the testatrix Aleja Belleza on the
basis of paragraph 6 of the Codicil, and in ruling that
the testamentary institution of Dr. Jorge Rabadilla is a
modal institution within the purview of Article 882 of the
New Civil Code.
The petition is not impressed with merit.
Petitioner contends that the Court of Appeals erred in
resolving the appeal in accordance with Article 882 of
the New Civil Code on modal institutions and in
deviating from the sole issue raised which is the
absence or prematurity of the cause of action.
Petitioner maintains that Article 882 does not find
application as there was no modal institution and the
testatrix intended a mere simple substitution - i.e. the
instituted heir, Dr. Jorge Rabadilla, was to be
substituted by the testatrix's "near descendants" should
the obligation to deliver the fruits to herein private
respondent be not complied with. And since the
testatrix died single and without issue, there can be no
valid substitution and such testamentary provision
cannot be given any effect.
The petitioner theorizes further that there can be no
valid substitution for the reason that the substituted
heirs are not definite, as the substituted heirs are
merely referred to as "near descendants" without a
definite identity or reference as to who are the "near
descendants" and therefore, under Articles 843[8] and
845[9] of the New Civil Code, the substitution should be
deemed as not written.
The contentions of petitioner are untenable. Contrary to
his supposition that the Court of Appeals deviated from
the issue posed before it, which was the propriety of
the dismissal of the complaint on the ground of
prematurity of cause of action, there was no such
deviation. The Court of Appeals found that the private
respondent had a cause of action against the
petitioner. The disquisition made on modal institution
was, precisely, to stress that the private respondent
had a legally demandable right against the petitioner
pursuant to subject Codicil; on which issue the Court of
Appeals ruled in accordance with law.
It is a general rule under the law on succession that
successional rights are transmitted from the moment of
death of the decedent[10] and compulsory heirs are
called to succeed by operation of law. The legitimate
children and descendants, in relation to their legitimate
parents, and the widow or widower, are compulsory
heirs.[11] Thus, the petitioner, his mother and sisters, as
compulsory heirs of the instituted heir, Dr. Jorge
Rabadilla, succeeded the latter by operation of law,
without need of further proceedings, and the
successional rights were transmitted to them from the
moment of death of the decedent, Dr. Jorge Rabadilla.
Under Article 776 of the New Civil Code, inheritance
includes all the property, rights and obligations of a
person, not extinguished by his death. Conformably,
whatever rights Dr. Jorge Rabadilla had by virtue of
subject Codicil were transmitted to his forced heirs, at
the time of his death. And since obligations not
extinguished by death also form part of the estate of
the decedent; corollarily, the obligations imposed by
the Codicil on the deceased Dr. Jorge Rabadilla, were
likewise transmitted to his compulsory heirs upon his
death.
In the said Codicil, testatrix Aleja Belleza devised Lot
No. 1392 to Dr. Jorge Rabadilla, subject to the
condition that the usufruct thereof would be delivered
to the herein private respondent every year. Upon the
death of Dr. Jorge Rabadilla, his compulsory heirs
succeeded to his rights and title over the said property,
and they also assumed his (decedent's) obligation to
deliver the fruits of the lot involved to herein private
respondent. Such obligation of the instituted heir
reciprocally corresponds to the right of private
respondent over the usufruct, the fulfillment or
performance of which is now being demanded by the
latter through the institution of the case at bar.
Therefore, private respondent has a cause of action
against petitioner and the trial court erred in dismissing
the complaint below.
Petitioner also theorizes that Article 882 of the New
Civil Code on modal institutions is not applicable
because what the testatrix intended was a substitution
- Dr. Jorge Rabadilla was to be substituted by the
testatrix's near descendants should there be
noncompliance with the obligation to deliver the piculs
of sugar to private respondent.
Again, the contention is without merit.
Substitution is the designation by the testator of a
person or persons to take the place of the heir or heirs
first instituted. Under substitutions in general, the
testator may either (1) provide for the designation of
another heir to whom the property shall pass in case
the original heir should die before him/her, renounce
the inheritance or be incapacitated to inherit, as in a
simple substitution,[12] or (2) leave his/her property to
one person with the express charge that it be
transmitted subsequently to another or others, as in a
fideicommissary substitution.[13] The Codicil sued upon
contemplates neither of the two.
In simple substitutions, the second heir takes the
inheritance in default of the first heir by reason of
incapacity, predecease or renunciation.[14] In the case
under consideration, the provisions of subject Codicil
do not provide that should Dr. Jorge Rabadilla default
due to predecease, incapacity or renunciation, the
testatrix's near descendants would substitute him.
What the Codicil provides is that, should Dr. Jorge
Rabadilla or his heirs not fulfill the conditions imposed
in the Codicil, the property referred to shall be seized
and turned over to the testatrix's near descendants.
Neither is there a fideicommissary substitution here
and on this point, petitioner is correct. In a
fideicommissary substitution, the first heir is strictly
mandated to preserve the property and to
transmit the same later to the second heir.[15] In the
case under consideration, the instituted heir is in fact
allowed under the Codicil to alienate the property
provided the negotiation is with the near descendants
or the sister of the testatrix. Thus, a very important
element of a fideicommissary substitution is lacking;
the obligation clearly imposing upon the first heir the
preservation of the property and its transmission to the
second heir. "Without this obligation to preserve clearly
imposed by the testator in his will, there is no
fideicommissary substitution."[16] Also, the near
descendants' right to inherit from the testatrix is not
definite. The property will only pass to them should Dr.
Jorge Rabadilla or his heirs not fulfill the obligation to
deliver part of the usufruct to private respondent.
Another important element of a fideicommissary
substitution is also missing here. Under Article 863, the
second heir or the fideicommissary to whom the
property is transmitted must not be beyond one degree
from the first heir or the fiduciary. A fideicommissary
substitution is therefore, void if the first heir is not
related by first degree to the second heir.[17] In the case
under scrutiny, the near descendants are not at all
related to the instituted heir, Dr. Jorge Rabadilla.
The Court of Appeals erred not in ruling that the
institution of Dr. Jorge Rabadilla under subject Codicil
is in the nature of a modal institution and therefore,
Article 882 of the New Civil Code is the provision of law
in point. Articles 882 and 883 of the New Civil Code
provide:
Art. 882. The statement of the object of the
institution or the application of the property left
by the testator, or the charge imposed on him,
shall not be considered as a condition unless it
appears that such was his intention.
That which has been left in this manner may be
claimed at once provided that the instituted heir
or his heirs give security for compliance with the
wishes of the testator and for the return of
anything he or they may receive, together with
its fruits and interests, if he or they should
disregard this obligation.
Art. 883. When without the fault of the heir, an
institution referred to in the preceding article
cannot take effect in the exact manner stated
by the testator, it shall be complied with in a
manner most analogous to and in conformity
with his wishes.
The institution of an heir in the manner prescribed in
Article 882 is what is known in the law of succession as
an institucion sub modo or a modal institution. In a
modal institution, the testator states (1) the object of
the institution, (2) the purpose or application of the
property left by the testator, or (3) the charge imposed
by the testator upon the heir.[18] A "mode" imposes an
obligation upon the heir or legatee but it does not affect
the efficacy of his rights to the succession.[19] On the
other hand, in a conditional testamentary disposition,
the condition must happen or be fulfilled in order for the
heir to be entitled to succeed the testator. The
condition suspends but does not obligate; and the
mode obligates but does not suspend.[20] To some
extent, it is similar to a resolutory condition.[21]
From the provisions of the Codicil litigated upon, it can
be gleaned unerringly that the testatrix intended that
subject property be inherited by Dr. Jorge Rabadilla. It
is likewise clearly worded that the testatrix imposed an
obligation on the said instituted heir and his
successors-in-interest to deliver one hundred piculs of
sugar to the herein private respondent, Marlena
Coscolluela Belleza, during the lifetime of the latter.
However, the testatrix did not make Dr. Jorge
Rabadilla's inheritance and the effectivity of his
institution as a devisee, dependent on the performance
of the said obligation. It is clear, though, that should the
obligation be not complied with, the property shall be
turned over to the testatrix's near descendants. The
manner of institution of Dr. Jorge Rabadilla under
subject Codicil is evidently modal in nature because it
imposes a charge upon the instituted heir without,
however, affecting the efficacy of such institution.
Then too, since testamentary dispositions are generally
acts of liberality, an obligation imposed upon the heir
should not be considered a condition unless it clearly
appears from the Will itself that such was the intention
of the testator. In case of doubt, the institution should
be considered as modal and not conditional.[22]
Neither is there tenability in the other contention of
petitioner that the private respondent has only a right of
usufruct but not the right to seize the property itself
from the instituted heir because the right to seize was
expressly limited to violations by the buyer, lessee or
mortgagee.
In the interpretation of Wills, when an uncertainty
arises on the face of the Will, as to the application of
any of its provisions, the testator's intention is to be
ascertained from the words of the Will, taking into
consideration the circumstances under which it was
made.[23] Such construction as will sustain and uphold
the Will in all its parts must be adopted.[24]
Subject Codicil provides that the instituted heir is under
obligation to deliver One Hundred (100) piculs of sugar
yearly to Marlena Belleza Coscuella. Such obligation is
imposed on the instituted heir, Dr. Jorge Rabadilla, his
heirs, and their buyer, lessee, or mortgagee should
they sell, lease, mortgage or otherwise negotiate the
property involved. The Codicil further provides that in
the event that the obligation to deliver the sugar is not
respected, Marlena Belleza Coscuella shall seize the
property and turn it over to the testatrix's near
descendants. The non-performance of the said
obligation is thus with the sanction of seizure of the
property and reversion thereof to the testatrix's near
descendants. Since the said obligation is clearly
imposed by the testatrix, not only on the instituted heir
but also on his successors-in-interest, the sanction
imposed by the testatrix in case of non-fulfillment of
said obligation should equally apply to the instituted
heir and his successors-in-interest.
Similarly unsustainable is petitioner's submission that
by virtue of the amicable settlement, the said obligation
imposed by the Codicil has been assumed by the
lessee, and whatever obligation petitioner had become
the obligation of the lessee; that petitioner is deemed to
have made a substantial and constructive compliance
of his obligation through the consummated settlement
between the lessee and the private respondent, and
having consummated a settlement with the petitioner,
the recourse of the private respondent is the fulfillment
of the obligation under the amicable settlement and not
the seizure of subject property.
Suffice it to state that a Will is a personal, solemn,
revocable and free act by which a person disposes of
his property, to take effect after his death.[25] Since the
Will expresses the manner in which a person intends
how his properties be disposed, the wishes and desires
of the testator must be strictly followed. Thus, a Will
cannot be the subject of a compromise agreement
which would thereby defeat the very purpose of making
a Will.

WHEREFORE, the petition is hereby DISMISSED and

the decision of the Court of Appeals, dated December
23, 1993, in CA-G.R. No. CV-35555 AFFIRMED. No
pronouncement as to costs

SO ORDERED.

Melo, J., (Chairman), concur in the separate opinion of

Justice Vitug.

Vitug, J., see separate opinion.

Panganiban, J., join the separate opinion of Justice

Vitug.

Gonzaga-Reyes, J., no part.