ART. 808 that the testator was insane or otherwise mentally incapacitated to make respondent. 7 Dr.
r was insane or otherwise mentally incapacitated to make respondent. 7 Dr. Roasa explained that although the testator could visualize
[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.
DECISION
BELLOSILLO, J p:
Before us is an appeal from the Decision dated 11 April 1986 1 of the First
Civil Cases Division of the then Intermediate Appellate Court, now Court of
Appeals, which affirmed the Order dated 27 June 1983 2 of the Regional
Trial Court of Sta. Cruz, Laguna, admitting to probate the last will and
testament 3 with codicil 4 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. 5
Petitioner, 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;
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 or 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 were
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
purposes 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 Ophthalmology (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
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 conformably 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.
1

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 is a strict
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
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 for 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.

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 documents 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
2
[G.R. No. L-26615. April 30, 1970.]
REV. FATHER LUCIO V. GARCIA, ANTONIO JESUS DE PRAGA, MARIA
NATIVIDAD DE JESUS AND DR. JAIME ROSARIO, petitioners, vs. HON.
CONRADO M. VASQUEZ, as Judge of the Court of First Instance of Manila,
Branch and CONSUELO GONZALES VDA. DE PRECILLA, respondents.
[G.R. No. L-26884. April 30, 1970.]
REV. FATHER LUCIO V. GARCIA, ANTONIO JESUS DE PRAGA, MARIA
NATIVIDAD DE JESUS AND DR. JAIME ROSARIO, petitioners, vs. HON.
CONRADO M. VASQUEZ, as Judge of the Court of First Instance of Manila,
Branch V, REGISTER OF DEEDS OF MANILA, and CONSUELO GONZALES VDA.
DE PRECILLA, respondents.
[G.R. No. L-27200. April 30, 1970.]
TESTATE ESTATE OF GLICERIA A. DEL ROSARIO, deceased CONSUELO S.
GONZALES VDA. DE PRECILLA, petitioner administratrix, vs. SEVERINA
NARCISO, ROSA NARCISO, JOSEFINA NARCISO, VICENTE MAURICIO, DELFIN
MAURICIO, REMEDIOS NARCISO, ENCARNACION, NARCISO, MARIA
NARCISO, EDUARDO NARCISO, FR. LUCIO V. GARCIA, ANTONIO JESUS DE
PRAGA, MARIA NATIVIDAD DE JESUS, DR. JAIME DEL ROSARIO, ET AL.,
NATIVIDAD DEL ROSARIO-SARMIENTO and PASCUALA NARCISO-MANAHAN,
oppositors-appellants.
DECISION
REYES, J.B.L., J p:
G.R. No. L-27200 is an appeal from the order of the Court of First Instance of
Manila (in Sp. Proc. No. 62618) admitting to probate the alleged last will an,
testament of the late Gliceria Avelino del Rosario dated 29 December 1960.
G.R. Nos. L-26615 and L-2684 are separate petitions for mandamus filed by
certain alleged heirs of said decedent seeking (1) to compel the probate
court to remove Consuelo S. Gonzales-Precilla as special administratrix of
the estate, for conflict of interest, to appoint a new one in her stead; and
(2) to order the Register of Deeds of Manila to annotate notice of lis
pendens in TCT Nos. 81735, 81736 ,and 81737, registered in the name of
Alfonso Precilla, married to Consuelo Gonzales y Narciso, and said to be
properly belonging to the estate of the deceased Gliceria A. del Rosario.
Insofar as pertinent to the issues involved herein, the facts of these cases
may be stated as follows:
Gliceria Avelino del Rosario died unmarried in the City of Manila on 2
September 1965, leaving no descendents, ascendants, brother or sister. At
the time of her death, she was said to be 90 years old more or less, and
possessed of an estate consisting mostly of real properties.
On 17 September 1965, Consuelo S. Gonzales Vda. de Precilla, a niece of
the deceased, petitioned the Court of First Instance of Manila for probate
of the alleged last will and testament of Gliceria A. del Rosario, executed
on 29 December 1960, and for her appointment as special administratrix of
the latter's estate, said to be valued at about P100,000.00, pending the
appointment of a regular administrator thereof.
The petition was opposed separately by several groups of alleged heirs: (1)
Rev. Fr. Lucio V. Garcia, a legatee named in an earlier will executed by
Gliceria A. del Rosario on 9 June 1956; (2) Jaime Rosario and children,
relatives and legatees in both the 1956 and 1960 wills; Antonio Jesus de
Praga and Marta Natividad de Jesus, wards of the deceased and legatees
in the 1956 and 1960 wills; (3) Remedios, Encarnacion, and Eduardo, all
surnamed Narciso; (4) Natividad del Rosario-Sarmiento; (5) Maria Narciso;
(6) Pascuala Narciso de Manahan; (7) Severina, Rosa and Josefa,
surnamed Narciso, and Vicente and Delfin, surnamed Mauricio, the latter
five groups of persons all claiming to be relatives of Doa Gliceria within the
fifth civil degree. The oppositions invariably charged that the instrument
executed in 1960 was not intended by the deceased to be her true will;
that the signatures of the deceased appearing in the will was procured
through undue and improper pressure and influence the part of the
beneficiaries and/or other persons; that the testatrix did not know the
object of her bounty; that the instrument itself reveals irregularities in its
execution, and that the formalities required by law for such execution have
not been complied with.
Oppositor Lucio V. Garcia, who also presented for probate the 1956 will of
the deceased, joined the group of Dr. Jaime Rosario in registering
opposition to the appointment of petitioner Consuelo S. Gonzales Vda. de
Precilla as special administratrix, on the ground that the latter possesses
interest adverse to the estate. After the parties were duly heard, the
probate court, in its order of 2 October 1965, granted petitioner's prayer
and appointed her special administratrix of the estate upon a bond for
P30,000.00. The order was premised on the fact the petitioner was
managing the properties belonging to the estate even during the lifetime
of the deceased, and to appoint another person as administrator or co
administrator at that stage of the proceeding would only result in further
confusion and difficulties.
On 30 September 1965, oppositors Jaime Rosario, et al. filed with the
probate court an urgent motion to require the Hongkong & Shanghai Bank
to report all withdrawals made against the funds of the deceased after 2
September 1965. The court denied this motion on 22 October 1965 for being
premature, it being unaware that such deposit in the name of the
deceased existed. 1
On 14 December 1965, the same sets of oppositors, Dr. Jaime Rosario and
children, Antonio Jesus de Praga, Natividad de Jesus and Fr. Lucio V.
Garcia, petitioned the court for the immediate removal of the special
administratrix. It was their claim that the special administratrix and her
deceased husband, Alfonso Precilla, 2 had caused Gliceria A. del Rosario
to execute a simulated and fraudulent deed of absolute sale dated 10
January 1961 allegedly conveying unto said spouses for the paltry sum of
P30,000.00 ownership of 3 parcels of land and the improvements thereon
located on Quiapo and San Nicolas, Manila, with a total assessed value of
P334,050.00. Oppositors contended that since it is the duty of the
administrator to protect and conserve the properties of the estate, and it
may become necessary that, an action for the annulment of the deed of
sale land for recovery of the aforementioned parcels of land be filed
against the special administratrix, as wife and heir of Alfonso Precilla, the
removal of the said administratrix was imperative.
On 17 December 1965, the same oppositors prayed the court for an order
directing the Special Administratrix to deposit with the Clerk of Court all
certificates of title belonging to the estate. It was alleged that on 22
October 1965, or after her appointment, petitioner Consuelo Gonzales Vda.
de Precilla, in her capacity as special administratrix of the estate of the
deceased Gliceria A. del Rosario, filed with Branch IV of the Court of First
Instance of Manila a motion for the issuance of new copies of the owner's
duplicates of certain certificates of title in the name of Gliceria del Rosario,
supposedly needed by her "in the preparation of the inventory" of the
properties constituting the estate. The motion having been granted, new
copies of the owner's duplicates of certificates appearing the name of
Gliceria del Rosario (among which were TCT Nos. 66201, 66202 and 66204)
were issued on 15 November 1965. On 8 December 1965, according to the
oppositors, the same special administratrix presented to the Register of
Deeds the deed of sale involving properties covered by TCT Nos. 66201,
66202 and 66204 supposedly executed by Gliceria del Rosario on 10
January 1961 in favor of Alfonso Precilla, and, in consequence, said
certificates of title were cancelled and new certificates (Nos. 81735, 81736
and 81737) were issued in the name of Alfonso Precilla, married to Consuelo
S. Gonzales y Narciso.
On 25 August 1966, the Court issued an order admitting to probate the 1960
will of Gliceria A. del Rosario (Exhibit "D"). In declaring the due execution of
the will, the probate court took note that no evidence had been presented
to establish that the testatrix was not of sound mind when the will was
executed; that the fact that she had prepared an earlier will did not,
prevent her from executing another one thereafter; that the fact that the
1956 will consisted of 12 pages whereas the 1960 testament was contained
in one page does not render the latter invalid; that, the erasures and
alterations in the instrument were insignificant to warrant rejection; that the
inconsistencies in the testimonies of the instrumental witnesses which were
noted by the oppositors are even indicative of their truthfulness. The
probate court, also considering that petitioner had already shown
capacity to administer the properties of the estate and that from the
provisions of the will she stands as the person most concerned and
interested therein, appointed said petitioner regular administratrix with a
bond for P50,000.00. From this order all the oppositors appealed, the case
being docketed in this Court as G.R. No. L-27200.
Then, on 13 September 1966, the probate court resolved the oppositors'
motion of 14 December 1965 for the removal of the then special
administratrix, as follows:
"It would seem that the main purpose of the motion to remove the special
administratrix and to appoint another one in her stead, is in order that an
action may be filed against the special administratrix for the annulment of
3
the deed of sale executed by the decedent on January 10, 1961. Under
existing documents, the properties sold pursuant to the said deed of
absolute sale no longer forms part of the estate. The alleged conflict of
interest is accordingly not between different claimants of the same estate.
If it is desired by the movants that an action be filed by them to annul the
aforesaid deed absolute sale, it is not necessary that the special
administratrix be removed and that another one be appointed to file such
action. Such a course of action would only produce confusion and
difficulties in the settlement of the estate. The movants may file the
aforesaid proceedings, preferably in an independent action, to secure the
nullity of the deed of absolute even without leave of this court:"
As regard the motion of 17 December 1965 asking for the deposit in court
of the titles in the name of the decedent, the same was also denied, for the
reason that if the movants were referring to the old titles, they could no
longer be produced, and if they meant the new duplicate copies thereof
that were issued at the instance of the special administratrix, there would
be no necessity therefor, because they were already cancelled and other
certificates were issued in the name of Alfonso Precilla. This order
precipitated the oppositors' filing in this Court of a petition for mandamus
(G.R. No. L-26615, Rev. Fr. Lucio V. Garcia, et al. vs. Hon. Judge Conrado M.
Vasquez, et al.), which was given due course on 6 October 1966.
On 15 December 1965, with that motion for removal pending in the court,
the oppositors requested the Register of Deeds of Manila to annotate a
notice of lis pendens in the records of TCT Nos. 81735, 81736, and 81737 in
the name of Alfonso Precilla. And when said official refused to do so, they
applied to the probate court (in Sp. Proc. No. 62618) for an order to compel
the Register of Deeds to annotate a lis pendens notice in the
aforementioned titles contending that the matter of removal and
appointment of the administratrix, involving TCT Nos. 81735, 81736, and
81737, was already before the Supreme Court. Upon denial of this motion
on 12 November 1966, oppositors filed another mandamus action, this time
against the probate court and the Register of Deeds. The case was
docketed and given due course in this Court as G.R. No. L-26864.
Foremost of the questions to be determined here concerns the correctness
of the order allowing the probate of the 1960 will.
The records of the probate proceeding fully establish the fact that the
testatrix, Gliceria A. del Rosario, during her lifetime, executed two wills: one
on 9 June 1956 consisting of 12 pages and written in Spanish, a language
that she knew and spoke, witnessed by Messrs. Antonio Cabrera, Jesus Y.
Ayala and Valentin Marquez, and acknowledged before notary public
Jose Ayala; and another dated 29 December 1960, consisting of 1 page
and written in Tagalog, witnessed by Messrs. Vicente Rosales, Francisco
Decena, and Francisco Lopez and acknowledged before notary public
Remigio M. Tividad.
Called to testify on the due execution of the 1960 will, instrumental witnesses
Decena, Lopez and Rosales uniformly declared that they were individually
requested by Alfonso Precilla (the late husband of petitioner special
administratrix) to witness the execution of the last will of Doa Gliceria A.
del Rosario; that they arrived at the house of the old lady at No. 2074
Azcarraga, Manila, one after the other, in the afternoon of 29 December
1960; that the testatrix at the time was apparently of clear and sound mind,
although she was being aided by Precilla when she walked; 3 that the will,
which was already prepared, was first read "silently" by the testatrix herself
before she signed it; 4 that he three witnesses thereafter signed the will in
the presence of the testatrix and the notary public and of one another.
There is also testimony that after the testatrix and the witnesses to the will
acknowledged the instrument to be their voluntary act and deed, the
notary public asked for their respective residence certificates which were
handed to him by Alfonso Precilla, clipped together; 5 that after comparing
them with the numbers already written on the will, the notary public filled in
the blanks in the instrument with the date, 29 January 1960, before he
affixed his signature and seal thereto. 6 They also testified that on that
occasion no pressure or influence has been exerted by any person upon
the testatrix to execute the will.
Of course, the interest and active participation of Alfonso Precilla in the
signing of this 1960 will are evident from the records. The will appeared to
have been prepared by one who is not conversant with the spelling of
Tagalog words, and it has been shown that Alfonso Precilla is a Cebuano
who speaks Tagalog with a Visayan accent. 7 The witnesses to the will, two
of whom are fellow Visayans, 8 admitted their relationship or closeness to
Precilla. 9 It was Precilla who instructed them to go to the house of Gliceria
del Rosario on 29 December 1960 to witness an important document, 10
and who took their residence certificates from them a few days before the
will was signed. 11 Precilla had met the notary public and witnesses Rosales
and Lopez at the door of the residence of the old woman; he ushered them
to the room at the second floor where the signing of the document took
place; 12 then he fetched witness Decena from the latter's haberdashery
shop a few doors away and brought him to, the house the testatrix. 13 And
when the will was actually executed Precilla was present. 14
The oppositors-appellants in the present case, however, challenging the
correctness of the probate court's ruling, maintain that on 29 December
1960 the eyesight of Gliceria del Rosario was so poor and defective that
she could not have read the provisions of the will, contrary to the
testimonies of witnesses Decena, Lopez and Rosales.
On this point, we find the declarations in court of Dr. Jesus V. Tamesis very
material and illuminating. Said ophthalmologist, whose expertise was
admitted by both parties, testified, among other things, that when Doa
Gliceria del Rosario saw him for consultation on 11 March 1960 he found her
left eye to have cataract (opaque lens), 15 and that it was "above normal
in pressure", denoting a possible glaucoma, a disease that leads to
blindness 16 As to the conditions of her right eye, Dr. Tamesis declared:
"QBut is there anything here in the entry appearing in the other documents
Exhibits 3-B, 3-C and 3-D from which you could inform the court as to the
condition of the vision of the patient as to the right eve ?
"AUnder date of August 30, 1960, is the record of refraction. that is setting of
glass by myself which showed that the right eye with my prescription of
glasses had a vision of 2 over 60 (20/60) and for the left eye with her
correction 20 over 300 (20/300).
"QIn layman's language, Doctor, what is the significance of that notation
that the right had a degree of 20 over 60 (20/60)?
"AIt meant that eye at least would be able to recognize objects or persons
at a minimum distance of twenty feet.
"QBut would that grade enable the patient to read print?
"AApparently that is only a record for distance vision, for distance sight, not
for near."
(pages 20-21, t.s.n., hearing of 23 March 1966)
The records also show that although Dr. Tamesis operated of the left eye of
the decedent at the Lourdes Hospital on 8 August 1960; as of 23 August
1960, inspite of the glasses her vision was only "counting fingers," 17 at five
feet. The cross-examination of the doctor further elicited the following
responses:
"QAfter she was discharged from the hospital you prescribed lenses for her,
or glasses?
"AAfter her discharge from the hospital, she was coming to my clinic for
further examination and then sometime later glasses were prescribed.
xxx xxx xxx
"QAnd the glasses prescribed by you enabled her to read, Doctor?
"AAs far as my record is concerned, with the glasses for the left eye which I
prescribed the eye which I operated she could see only forms but not
read. That is on the left eye.
"QHow about the right eye?
"AThe same, although the vision on the right eye is even better than the left
eye." (pages 34. 85. t.s.n., hearing of 23 March 1966).
Then, confronted with a medical certificate (Exhibit H) issued by him on 29
November 1965 certifying that Gliceria del Rosario was provided with
aphakic lenses and "had been under medical supervision up to 1963 with
apparently good vision", the doctor had this to say:
"QWhen yon said that she had apparently good vision you mean that she
was able to read?
"ANo, not necessarily, only able to go around, take care of herself and see.
This I can tell you, this report was made on pure recollections and I recall
she was using her glasses although I recall also that we have to give her
4
medicines to improve her vision, some medicines to improve her
identification some more.
xxx xxx xxx
"QWhat about the vision in the right eve, was that corrected by the glasses?
"AYes, with the new prescription which I issued on 80 August 1960. It is in the
clinical record.
"QThe vision in the right eye was corrected?
"AYes That is the vision for distant objects."
(pages 38, 39, 40. t.s.n., hearing of 23 March 1966).
The foregoing testimony of the ophthalmologist who treated the deceased
and, therefore, has first hand knowledge of the actual condition of her
eyesight from August, 1960 up to 1963, fully establish the fact that
notwithstanding the operation and removal of the cataract in her left eye
and her being fitted with aphakic lens (used by cataract patients), her
vision remained mainly for viewing distant objects and not for reading print.
Thus, the conclusion is inescapable that with the condition of her eyesight
in August, 1960, and there is no evidence that it had improved by 29
December 1960, Gliceria del Rosario was incapable f reading, and could
not have read the provisions of the will supposedly signed by her on 29
December 1960. It is worth noting that the instrumental witnesses stated that
she read the instrument "silently" (t.s.n., pages 164-165). which is a
conclusion and not a fact.
Against the background of defective eyesight of the alleged testatrix, the
appearance of the will, Exhibit "D", acquires striking significance. Upon its
face, the testamentary provisions, the attestation clause and
acknowledgment were crammed together into a single sheet of paper, to
much so that the words had to be written very close on the top, bottom
and two sides of the paper, leaving no margin whatsoever; the word "and"
had to be written by the symbol "&", apparently to save on space. Plainly,
the testament was not prepared with any regard for the defective vision of
Doa Gliceria. Further, typographical errors like "HULINH" for "HULING" (last),
"Alfonsa" ;or "Alfonso", "MERCRDRS" for MERCEDES", "instrumental" for
"Instrumental", and "acknowledged" for "acknowledge'', remained
uncorrected, thereby indicating that execution thereof must have been
characterized by haste. It is difficult to understand that so important a
document containing the final disposition of one's worldly possessions
should be embodied in an informal and untidily written instrument; or that
the glaring spelling errors should have escaped her notice if she had
actually retained the ability to read the purported will and had done so.
The record is thus convincing that the supposed testatrix could not have
physically read or understood the alleged testament, Exhibit "D", and that
its admission to probate was erroneous and should be reversed.
That Doa Gliceria should be able to greet her guests on her birthday,
arrange flowers and attend to kitchen tasks shortly prior to the alleged
execution of the testament Exhibit "D", as appears from the photographs,
Exhibits "E" to "E-1", in no way proves; that she was able to read a closely
typed page, since the acts shown do not require vision at close range. It
must be remembered that with the natural lenses removed, her eyes had
lost the power of adjustment to near vision, the substituted glass lenses
being rigid and uncontrollable by her. Neither is the signing of checks
(Exhibits "G" to "G-3") by her indicative of ability to see at normal reading
distances. Writing or signing of one's name, when sufficiently practiced,
becomes automatic, so that one need only to have a rough indication of
the place where the signature is to be affixed in order to be able to write it.
Indeed, a close examination of the checks, amplified in the photograph,
Exhibit "O", et seq., reinforces the contention of oppositors that the alleged
testatrix could not see at normal reading distance: the signatures in the
checks are written far above the printed base, lines, and the names of the
payees as well as the amounts written do not appear to be in the
handwriting of the alleged testatrix, being in a much firmer and more fluid
hand than hers.
Thus, for all intents and purpose of the rules on probate, the deceased
Gliceria del Rosario was, as appellant oppositors contend, not unlike a blind
testator, and the due execution of her will would have required observance
of the provisions of Article 808 of the Civil Code.
"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."
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), 18 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. That the aim of the law
is to insure that the dispositions of the will are properly communicated to
and understood by the handicapped testator, thus making them truly
reflective of his desire, is evidenced by the requirement that the will should
be read to the latter, not only once but twice, by two different persons, and
that the witnesses have to act within the range of his (the testator's) other
senses. 19
In connection with the will here in question, there is nothing in the records
to show that the above requisites have been complied with. Clearly, as
already stated, the 1960 will sought to be probated suffers from infirmity that
affects its due execution.
We also find merit in the complaint of oppositors Lucio V. Garcia, et al.,
against the denial by the probate court of their petition for the removal of
Consuelo Gonzales Vda. de Precilla as special administratrix of the estate
of the deceased Doa Gliceria (Petition, G.R. No. L-26615, Annex "B").
The oppositors' petition was based allegedly on the existence in the special
administratrix of an interest adverse to that of the estate. It was their
contention that through fraud her husband had caused the deceased
Gliceria del Rosario to execute a deed of sale, dated 10 January 1961, by
virtue of which the latter purportedly conveyed unto said Alfonso D. Precilla,
married to Consuelo Gonzales y Narciso, the ownership of 3 parcels of land
and the improvements thereon, assessed at P334,050.00, for the sum of
P30,000.00.
In denying the petition, the probate court, in its order of 13 September 1966
(Annex "P", Petition) reasoned out that since the properties were already
sold no longer form part of the estate. The conflict of interest would not be
between the estate and third parties, but among the different claimants of
said properties, in which case, according to the court, the participation of
the special administratrix in the action for annulment that may be brought
would not be necessary.
The error in this line of reasoning lies in the fact that what was being
questioned was precisely the validity of the conveyance or sale of the
properties. In short, if proper, the action for annulment would have to be
undertaken on behalf of the estate by the special administratrix, affecting
as it does the property or rights of the deceased. 20 For the rule is that only
where there is no special proceeding for the settlement of the estate of the
deceased may the legal heirs commence an action arising out of a right
belonging to their ancestor. 21
There is no doubt that to settle the question of the due execution and
validity of the deed of sale, an ordinary and separate action would have
to be instituted, the matter not falling within the competence of the
probate court. 22 Considering the facts then before it, i.e., the alleged
deed of sale having been executed by Gliceria del Rosario on 10 January
1961, when she was already practically blind; and that the consideration of
P30,000.00 seems to be unconscionably small for properties with a total
assessed value of P334,050.00, there was likelihood that a case for
annulment might indeed be filed against the estate or heirs of Alfonso
Precilla. And the administratrix, being the widow and heir of the alleged
transferee, cannot be expected to sue herself in an action to recover
property that may turn out to belong to the estate. 22 Not only this, but the
conduct of the special administratrix in securing new copies of the owner's
duplicates of TCT Nos. 66201, 66202, and 66204, without the court's
knowledge or authority, and on the pretext that she needed them in the
preparation of the inventory of the estate, when she must have already
known by then that the properties covered therein were already
"conveyed" to her husband by the deceased, being the latter's successor,
and having the contract bind the land through issuance of new titles in her
husband's name cannot but expose her to the charge of unfitness or
unsuitableness to discharge the trust, justifying her removal from the
administration of the estate.
With respect to the orders of the court a quo denying (1) the oppositors'
motion to require the Hongkong and Shanghai Bank to report all
withdrawals made against the funds of the deceased after 2 September
1965 and (2) the motion for annotation of a lis pendens notice on TCT Nos.
81735, 81736 and 81737, the same are to be affirmed.
The probate court pointed out in its order of 22 October 1965 (Annex "H")
that it could not have taken action on the complaint against the alleged
5
withdrawals from the bank deposits of the deceased, because as of that
time the court had not yet been apprised that such deposits exist.
Furthermore, as explained by the special administratrix in her pleading of 30
October 1965, the withdrawals referred to by the oppositors could be those
covered by checks issued in the name of Gliceria del Rosario during her
lifetime but cleared only after her death. That explanation, which not only
appears plausible but has not been rebutted by the petitioners-oppositors,
negates any charge of grave abuse in connection with the issuance of the
order here in question.

On the matter of lis pendens (G.R. No. L-26864), the provisions of the Rules
of Court are clear: notice of the pendency of an action may be recorded
in the office of the register of deeds of the province in which the property is
situated, if the action affects "the title or the right of possession of (such) real
property." 23 In the case at bar, the pending action which oppositors seek
to annotate in the records of TCT Nos. 81735, 81736, and 81737 is the
mandamus proceeding filed in this Court (G.R. No. L-26615). As previously
discussed in this opinion, however, that case is concerned merely with the
correctness of the denial by the probate court of the motion for the removal
of Consuelo Gonzales Vda. de Precilla as special administratrix of the estate
of the late Gliceria del Rosario. In short, the issue in controversy there is
simply the fitness or unfitness of said special administratrix to continue
holding the trust; it does not involve or affect at all the title to, or possession
of, the properties covered by said TCT Nos. 81735, 81736 and 81737. Clearly,
the pendency of such case (L-26615) is not an action that can properly be
annotated in the record of the titles to the properties.

FOR THE FOREGOING REASONS, the order of the court below allowing to
probate the alleged 1960 will of Gliceria A. del Rosario is hereby reversed
and set aside. The petition in G.R. No. L-26615 being meritorious, the
appealed order is set aside and the court below is ordered to remove the
administratrix, Consuelo Gonzales Vda. de Precilla, and appoint one of the
heirs intestate of the deceased Doa Gliceria Avelino del Rosario as special
administrator for the purpose of instituting action on behalf of her estate to
recover the properties allegedly sold by her to the late Alfonso D. Precilla.
And in Case G.R. No. L-26864, petition is dismissed. No costs.

6
ARTICLE 809.
Alvarado vs. Gaviola (226 SCRA 317)
SEE PAGE 1
[G.R. No. 103554. May 28, 1993.]
TEODORO CANEDA, LORENZA CANEDA, TERESA CANEDA, JUAN CABALLERO,
AUREA CABALLERO, OSCAR LAROSA, HELEN CABALLERO, SANTOS
CABALLERO, PABLO CABALLERO, VICTOR RAGA, MAURICIA RAGA, QUIRICA
RAGA, RUPERTO ABAPO, represented herein by his Attorney-in-Fact,
ARMSTICIA * ABAPO VELANO, and CONSESO CANEDA, represented herein
by his heirs, JESUS CANEDA, NATIVIDAD CANEDA and ARTURO CANEDA,
petitioners, vs. HON. COURT OF APPEALS and WILLIAM CABRERA, as Special
Administrator of the Estate of Mateo Caballero, respondents.
DECISION
REGALADO, J p:
Presented for resolution by this Court in the present petition for review on
certiorari is the issue of whether or not the attestation clause contained in
the last will and testament of the late Mateo Caballero complies with the
requirements of Article 805, in relation to Article 809, of the Civil Code.
The records show that on December 5, 1978, Mateo Caballero, a widower
without any children and already in the twilight years of his life, executed a
last will and testament at his residence in Talisay, Cebu before three
attesting witnesses, namely, Cipriano Labuca, Gregorio Cabando and
Flaviano Toregosa. The said testator was duly assisted by his lawyer, Atty.
Emilio Lumontad, and a notary public, Atty. Filoteo Manigos, in the
preparation of that last will. 1 It was declared therein, among other things,
that the testator was leaving by way of legacies and devises his real and
personal properties to Presentacion Gaviola, Angel Abatayo, Rogelio
Abatayo, Isabelito Abatayo, Benoni G. Cabrera and Marcosa Alcantara,
all of whom do not appear to be related to the testator. 2
Four months later, or on April 4, 1979, Mateo Caballero himself filed a
petition docketed as Special Proceeding No. 3899-R before Branch II of the
then Court of First Instance of Cebu seeking the probate of his last will and
testament. The probate court set the petition for hearing on August 20, 1979
but the same and subsequent scheduled hearings were postponed for one
reason or another. On May 29, 1980, the testator passed away before his
petition could finally be heard by the probate court. 3 On February 25, 1981,
Benoni Cabrera, one of the legatees named in the will, sought his
appointment as special administrator of the testator's estate, the estimated
value of which was P24,000.00, and he was so appointed by the probate
court in its order of March 6, 1981. 4
Thereafter, herein petitioners, claiming to be nephews and nieces of the
testator, instituted a second petition, entitled "In the Matter of the Intestate
Estate of Mateo Caballero" and docketed as Special Proceeding No. 3965-
R, before Branch IX of the aforesaid Court of First Instance of Cebu. On
October 18, 1982, herein petitioners had their said petition for intestate
proceedings consolidated with Special Proceeding No. 3899-R in Branch II
of the Court of First Instance of Cebu and opposed thereat the probate of
the testator's will and the appointment of a special administrator for his
estate. 5
Benoni Cabrera died on February 8, 1982 hence the probate court, now
known as Branch XV of the Regional Trial Court of Cebu, appointed William
Cabrera as special administrator on June 21, 1983. Thereafter, on July 20,
1983, it issued an order for the return of the records of Special Proceeding
No. 3965-R to the archives since the testate proceedings for the probate of
the will had to be heard and resolved first. On March 26, 1984 the case was
reraffled and eventually assigned to Branch XII of the Regional Trial Court
of Cebu where it remained until the conclusion of the probate
proceedings. 6
In the course of the hearing in Special Proceeding No. 3899-R, herein
petitioners appeared as oppositors and objected to the allowance of the
testator's will on the ground that on the alleged date of its execution, the
testator was already in a poor state of health such that he could not have
possibly executed the same. Petitioners likewise reiterated the issue as to
the genuineness of the signature of the testator therein. 7
On the other hand, one of the attesting witnesses, Cipriano Labuca, and
the notary public, Atty. Filoteo Manigos, testified that the testator executed
the will in question in their presence while he was of sound and disposing
mind and that, contrary to the assertions of the oppositors, Mateo
Caballero was in good health and was not unduly influenced in any way in
the execution of his will. Labuca also testified that he and the other
witnesses attested and signed the will in the presence of the testator and
of each other. The other two attesting witnesses were not presented in the
probate hearing as they had died by then. 8
On April 5, 1988, the probate court rendered a decision declaring the will in
question as the last will and testament of the late Mateo Caballero, on the
ratiocination that:
". . . The self-serving testimony of the two witnesses of the oppositors cannot
overcome the positive testimonies of Atty. Filoteo Manigos and Cipriano
Labuca who clearly told the Court that indeed Mateo Caballero executed
this Last Will and Testament now marked Exhibit 'C' on December 5, 1978.
Moreover, the fact that it was Mateo Caballero who initiated the probate
of his Will during his lifetime when he caused the filing of the original petition
now marked Exhibit 'D' clearly underscores the fact that this was indeed his
Last Will. At the start, counsel for the oppositors manifested that he would
want the signature of Mateo Caballero in Exhibit 'C' examined by a
handwriting expert of the NBI but it would seem that despite their avowal
and intention for the examination of this signature of Mateo Caballero in
Exhibit 'C', nothing came out of it because they abandoned the idea and
instead presented Aurea Caballero and Helen Caballero Campo as
witnesses for the oppositors.
"All told, it is the finding of this Court that Exhibit `C' is the Last Will and
Testament of Mateo Caballero and that it was executed in accordance
with all the requisites of law." 9
Undaunted by said judgment of the probate court, petitioners elevated the
case to the Court of Appeals in CA-G.R. CV No. 19669. They asserted therein
that the will in question is null and void for the reason that its attestation
clause is fatally defective since it fails to specifically state that the
instrumental witnesses to the will witnessed the testator signing the will in
their presence and that they also signed the will and all the pages thereof
in the presence of the testator and of one another.
On October 15, 1991, respondent court promulgated its decision 10
affirming that of the trial court, and ruling that the attestation clause in the
last will of Mateo Caballero substantially complies with Article 805 of the
Civil Code, thus:
"The question therefore is whether the attestation clause in question may
be considered as having substantially complied with the requirements of
Art. 805 of the Civil Code. What appears in the attestation clause which the
oppositors claim to be defective is `we do certify that the testament was
read by him and the testator, Mateo Caballero, has published unto us the
foregoing will consisting of THREE PAGES, including the acknowledgment,
each page numbered correlatively in letters on the upper part of each
page, as his Last Will and Testament, and he has signed the same and every
page thereof, on the spaces provided for his signature and on the left hand
margin in the presence of the said testator and in the presence of each
and all of us' (emphasis supplied).
"To our thinking, this is sufficient compliance and no evidence need be
presented to indicate the meaning that the said will was signed by the
testator and by them (the witnesses) in the presence of all of them and of
one another. Or as the language of the law would have it that the testator
signed the will '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 not completely or ideally
perfect in accordance with the wordings of Art. 805 but (sic) the phrase as
formulated is in substantial compliance with the requirement of the law." 11
Petitioners moved for the reconsideration of said ruling of respondent court,
but the same was denied in the latter's resolution of January 14, 1992, 12
hence this appeal now before us. Petitioners assert that respondent court
has ruled upon said issue in a manner not in accord with the law and the
settled jurisprudence on the matter and are now questioning once more,
on the same ground as that raised before respondent court, the validity of
the attestation clause in the last will of Mateo Caballero.
We find the present petition to be meritorious, as we shall shortly hereafter
explain, after some prefatory observations which we feel should be made
in aid of the rationale for our resolution of the controversy.
7
1. A will has been defined as a species of conveyance whereby a person is
permitted, with the formalities prescribed by law, to control to a certain
degree the disposition of his estate after his death. 13 Under the Civil Code,
there are two kinds of wills which a testator may execute. 14 The first kind is
the ordinary or attested will, the execution of which is governed by Articles
804 to 809 of the Code. Article 805 requires that:
"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. LLphil
If the attestation clause is in a language not known to the witnesses, it shall
be interpreted to them."
In addition, the ordinary will must be acknowledged before a notary public
by the testator and the attesting witnesses, 15 hence it is likewise known as
a notarial will. Where the testator is deaf or a deaf-mute, Article 807 requires
that he must personally read the will, if able to do so. Otherwise, he should
designate two persons who will read the will and communicate its contents
to him in a practicable manner. On the other hand, if the testator is blind,
the will should be read to him twice; once, by anyone of the witnesses
thereto, and then again, by the notary public before whom it is
acknowledged. 16
The other kind of will is the holographic will, which Article 810 defines as one
that is entirely written, dated, and signed by the hand of the testator himself.
This kind of will, unlike the ordinary type, requires no attestation by witnesses.
A common requirement in both kinds of wills is that they should be in writing
and must have been executed in a language or dialect known to the
testator. 17
However, in the case of an ordinary or attested will, its attestation clause
need not be written in a language or dialect known to the testator since it
does not form part of the testamentary disposition. Furthermore, the
language used in the attestation clause likewise need not even be known
to the attesting witnesses. 18 The last paragraph of Article 805 merely
requires that, in such a case, the attestation clause shall be interpreted to
said witnesses.
An attestation clause refers to that part of an ordinary will whereby the
attesting witnesses certify that the instrument has been executed before
them and to the manner of the execution of the same. 19 It is a separate
memorandum or record of the facts surrounding the conduct of execution
and once signed by the witnesses, it gives affirmation to the fact that
compliance with the essential formalities required by law has been
observed. 20 It is made for the purpose of preserving in a permanent form
a record of the facts that attended the execution of a particular will, so that
in case of failure of the memory of the attesting witnesses, or other casualty,
such facts may still be proved. 21
Under the third paragraph of Article 805, such a clause, the complete lack
of which would result in the invalidity of the will, 22 should state (1) the
number of pages used upon which the will is written; (2) that the testator
signed, or expressly caused another to sign, the will and every page thereof
in the presence of the attesting witnesses; and (3) that the attesting
witnesses witnessed the signing by the testator of the will and all its pages,
and that said witnesses also signed the will and every page thereof in the
presence of the testator and of one another.
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; 23 whereas the subscription of the signatures of the
testator and the attesting witnesses is made for the purpose of
authentication and identification, and thus indicates that the will is the very
same instrument executed by the testator and attested to by the witnesses.
24
Further, by attesting and subscribing to the will, the witnesses thereby
declare the due execution of the will as embodied in the attestation clause.
25 The attestation clause, therefore, provides strong legal guaranties for the
due execution of a will and to insure the authenticity thereof. 26 As it
appertains only to the witnesses and not to the testator, it need be signed
only by them. 27 Where it is left unsigned, it would result in the invalidation
of the will as it would be possible and easy to add the clause on a
subsequent occasion in the absence of the testator and the witnesses. 28
In its report, the Code Commission commented on the reasons of the law
for requiring the formalities to be followed in the execution of wills, in the
following manner: cdll
"The underlying and fundamental objectives 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 with respect to the
formalities in the execution of wills. . . ." 29
2. An examination of the last will and testament of Mateo Caballero shows
that it is comprised of three sheets all of which have been numbered
correlatively, with the left margin of each page thereof bearing the
respective signatures of the testator and the three attesting witnesses. The
part of the will containing the testamentary dispositions is expressed in the
Cebuano-Visayan dialect and is signed at the foot thereof by the testator.
The attestation clause in question, on the other hand, is recited in the English
language and is likewise signed at the end thereof by the three attesting
witnesses thereto. 3 0 Since it is the proverbial bone of contention, we
reproduce it again for facility of reference:
"We, the undersigned attesting Witnesses, whose Residences and postal
addresses appear on the Opposite of our respective names, we do hereby
certify that the Testament was read by him and the testator, MATEO
CABALLERO, has published unto us the foregoing Will consisting of THREE
PAGES, including the Acknowledgment, each page numbered
correlatively in letters on the upper part of each page, as his Last Will and
Testament and he has signed the same and every page thereof, on the
spaces provided for his signature and on the left hand margin, in the
presence of the said testator and in the presence of each and all of us."
It will be noted that Article 805 requires that the witnesses should both attest
and subscribe to the will in the presence of the testator and of one another.
"Attestation" and "subscription" differ in meaning. Attestation is that act of
the senses, while subscription is the act of the hand. The former is mental,
the latter mechanical, and to attest a will is to know that it was published
as such, and to certify the facts required to constitute an actual and legal
publication; but to subscribe a paper published as a will is only to write on
the same paper the names of the witnesses, for the sole purpose of
identification. 31
In Taboada vs. Rosal, 32 we clarified that 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. As it involves a mental act, there would be no means,
therefore, of ascertaining by a physical examination of the will whether the
witnesses had indeed signed in the presence of the testator and of each
other unless this is substantially expressed in the attestation.
It is contended by petitioners that the aforequoted attestation clause, in
contravention of the express requirements of the third paragraph of Article
805 of the Civil Code for attestation clauses, fails to specifically state the
fact that the attesting witnesses witnessed the testator sign the will and all
its pages in their presence and that they, the witnesses, likewise signed the
will and every page thereof in the presence of the testator and of each
other. We agree.
8
What is fairly apparent upon a careful reading of the attestation clause
herein assailed is the fact that while it recites that the testator indeed signed
the will and all its pages in the presence of the three attesting witnesses and
states as well the number of pages that were used, the same does not
expressly state therein the circumstance that said witnesses subscribed their
respective signatures to the will in the presence of the testator and of each
other.
The phrase "and he has signed the same and every page thereof, on the
spaces provided for his signature and on the left hand margin," obviously
refers to the testator and not the instrumental witnesses as it is immediately
preceded by the words "as his Last Will and Testament." On the other hand,
although the words "in the presence of the testator and in the presence of
each and all of us" may, at first blush, appear to likewise signify and refer to
the witnesses, it must however, be interpreted as referring only to the
testator signing in the presence of the witnesses since said phrase
immediately follows the words "he has signed the same and every page
thereof, on the spaces provided for his signature and on the left hand
margin." What is then clearly lacking, in the final logical analysis, is the
statement that the witnesses signed the will and every page thereof in the
presence of the testator and of one another. cdll
It is our considered view that the absence of that statement required by
law is a fatal defect or imperfection which must necessarily result in the
disallowance of the will that is here sought to be admitted to probate.
Petitioners are correct in pointing out that the aforestated defect in the
attestation clause obviously cannot be characterized as merely involving
the form of the will or the language used therein which would warrant the
application of the substantial compliance rule, as contemplated in the
pertinent provision thereon in the Civil Code, to wit:
"Art. 809. 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" (Emphasis supplied.)
While it may be true that the attestation clause is indeed subscribed at the
end thereof and at the left margin of each page by the three, attesting
witnesses, it certainly cannot be conclusively inferred therefrom that the
said witnesses affixed their respective signatures in the presence of the
testator and of each other since, as petitioners correctly observed, the
presence of said signatures only establishes the fact that it was indeed
signed, but it does not prove that the attesting witnesses did subscribe to
the will in the presence of the testator and of each other. The execution of
a will is supposed to be one act so that where the testator and the witnesses
sign on various days or occasions and in various combinations, the will
cannot be stamped with the imprimatur of effectivity. 33
We believe that the following comment of former Justice J.B.L. Reyes 34
regarding Article 809, wherein he urged caution in the application of the
substantial compliance rule therein, is correct and should be applied in the
case under consideration, as well as to future cases with similar questions:
". . . 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." (Emphasis ours.)
3. We stress once more that under Article 809, the defects or imperfections
must only be with respect to the form of the attestation or the language
employed therein. Such defects or imperfections would not render a will
invalid should it be proved that the will was really executed and attested in
compliance with Article 805. In this regard, however, the manner of proving
the due execution and attestation has been held to be limited to merely
an examination of the will itself without resorting to evidence aliunde,
whether oral or written.
The foregoing considerations do not apply where the attestation clause
totally omits the fact that the attesting witnesses signed each and every
page of the will in the presence of the testator and of each other. 35 In such
a situation, the defect is not only in the form or the language of the
attestation clause but the total absence of a specific element required by
Article 805 to be specifically stated in the attestation clause of a will. That is
precisely the defect complained of in the present case since there is no
plausible way by which we can read into the questioned attestation clause
any statement, or an implication thereof, that the attesting witnesses did
actually bear witness to the signing by the testator of the will and all its
pages and that said instrumental witnesses also signed the will and every
page thereof in the presence of the testator and of one another. cdphil
Furthermore, the rule on substantial compliance in Article 809 cannot be
invoked or relied on by respondents since it presupposes that the defects in
the attestation clause can be cured or supplied by the text of the will or a
consideration of matters apparent therefrom which would provide the
data not expressed in the attestation clause or from which it may
necessarily be gleaned or clearly inferred that the acts not stated in the
omitted textual requirements were actually complied with in the execution
of the will. In other words, the defects must be remedied by intrinsic
evidence supplied by the will itself.
In the case at bar, contrarily, proof of the acts required to have been
performed by the attesting witnesses can be supplied only by extrinsic
evidence thereof, since an overall appreciation of the contents of the will
yields no basis whatsoever from which such facts may be plausibly
deduced. What private respondent insists on are the testimonies of his
witnesses alleging that they saw the compliance with such requirements by
the instrumental witnesses, oblivious of the fact that he is thereby resorting
to extrinsic evidence to prove the same and would accordingly be doing
by indirection what in law he cannot do directly.
4. Prior to the advent of the Civil Code on August 30, 1950, there was a
divergence of views as to which manner of interpretation should be
followed in resolving issues centering on compliance with the legal
formalities required in the execution of wills. The formal requirements were
at that time embodied primarily in Section 618 of Act No. 190, the Code of
Civil Procedure. Said section was later amended by Act No. 2645, but the
provisions respecting said formalities found in Act No. 190 and the
amendment thereto were practically reproduced and adopted in the Civil
Code.
One view advanced the liberal or substantial compliance rule. This was first
laid down in the case of Abangan vs. Abangan, 36 where it was held 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 guarantee their truth and authenticity. Therefore, the
laws on this subject should be interpreted in such a way as to attain these
primordial ends. Nonetheless, it was also emphasized that 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, hence 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. The subsequent
cases of Avera vs. Garcia, 37 Aldaba vs. Roque, 38 Unson vs. Abella, 39
Pecson vs. Coronel, 40 Fernandez vs. Vergel de Dios, et al., 41 and Nayve
vs. Mojal, et al., 42 all adhered to this position.
The other view which advocated the rule that statutes which prescribe the
formalities that should be observed in the execution of wills are mandatory
in nature and are to be strictly construed was followed in the subsequent
cases of In the Matter of the Estate of Saguinsin, 43 In re Will of Andrada, 44
Uy Coque vs. Sioca, 45 In re Estate of Neumark, 46 and Sano vs. Quintana.
47
Gumban vs. Gorecho, et al., 48 provided the Court with the occasion to
clarify the seemingly conflicting decisions in the aforementioned cases. In
said case of Gumban, the attestation clause had failed to state that the
witnesses signed the will and each and every page thereof on the left
margin in the presence of the testator. The will in question was disallowed,
with these reasons therefor: LLjur
"In support of their argument on the assignment of error above-mentioned,
appellants rely on a series of cases of this court beginning with (I)n the
Matter of the (E)state of Saguinsin ([1920], 41 Phil., 875), continuing with In
re Will of Andrada [1921], 42 Phil., 180), Uy Coque vs. Navas L. Sioca [1922],
43 Phil. 405), and In re Estate of Neumark ([1923], 46 Phil., 841), and ending
with Sano vs. Quintana ([1925], 48 Phil., 506). Appellee counters with the
citation of a series of cases beginning with Abangan vs. Abangan ([1919],
40 Phil., 476), continuing through Aldaba vs. Roque ([1922], 43 Phil., 378),
and Fernandez vs. Vergel de Dios ([1924], 46 Phil., 922), and culminating in
Nayve vs. Mojal and Aguilar ([1924], 47 Phil., 152). In its last analysis, our task
9
is to contrast and, if possible, conciliate, the last two decisions cited by
opposing counsel, namely, those of Sano vs. Quintana, supra, and Nayve
vs. Mojal and Aguilar, supra.
"In the case of Sano vs. Quintana, supra, it was decided that an attestation
clause which does not recite that the witnesses signed the will and each
and every page thereof on the left margin in the presence of the testator
is defective, and such a defect annuls the will. The case of Uy Coque vs.
Sioca, supra, was cited, but the case of Nayve vs. Mojal and Aguilar, supra,
was not mentioned. In contrast, is the decision in Nayve vs. Mojal and
Aguilar, supra, wherein it was held that the attestation clause must state the
fact that the testator and the witnesses reciprocally saw the signing of the
will, for such an act cannot be proved by the mere exhibition of the will, if
it is not stated therein. It was also held that the fact that the testator and
the witnesses signed each and every page of the will can be proved also
by the mere examination of the signatures appearing on the document
itself, and the omission to state such evident facts does not invalidate the
will.
"It is a habit of courts to reaffirm or distinguish previous cases; seldom do
they admit inconsistency in doctrine. Yet here, unless aided by casuistry of
the extreme type, it would be impossible to reconcile the Mojal and
Quintana decisions. They are fundamentally at variance. If we rely on one,
we affirm. If we rely on the other, we reverse.
"In resolving this puzzling question of authority, three outstanding points may
be mentioned. In the first place, the Mojal decision was concurred in by
only four members of the court, less than a majority, with two strong
dissenting opinions; the Quintana decision was concurred in by seven
members of the court, a clear majority, with one formal dissent. In the
second place, the Mojal decision was promulgated in December, 1924,
while the Quintana decision was promulgated in December 1925; the
Quintana decision was thus subsequent in point of time. And in the third
place, the Quintana decision is believed more nearly to conform to the
applicable provisions of the law.
to enforce legislative intention. It is not within the province of the courts to
disregard the legislative purpose so emphatically and clearly expressed.
"We adopt and reaffirm the decision in the case of Sano vs. Quintana,
supra, and, to the extent necessary, modify the decision in the case of
Nayve vs. Mojal and Aguilar, supra." (Emphases in the original text).
But after the Gumbanclarificatory pronouncement, there were decisions of
the Court that once more appeared to revive the seeming diversity of view
that was earlier threshed out therein. The cases of Quinto vs. Morata, 49
Rodriguez vs. Alcala, 50 Echevarria vs. Sarmiento, 51 and Testate Estate of
Toray 52 went the way of the ruling as restated in Gumban. But De Gala vs.
Gonzales, et al., 53 Rey vs. Cartagena, 54 De Ticson vs. De Gorostiza, 55
Sebastian vs. Panganiban, 56 Rodriguez vs. Yap, 57 Grey vs. Fabia, 58
Leynez vs. Leynez, 59 Martir vs. Martir, 60 Alcala vs. De Villa, 61 Sabado vs.
Fernandez, 62 Mendoza vs. Pilapil, 63 and Lopez vs. Liboro, 64 veered away
from the strict interpretation rule and established a trend toward an
application of the liberal view.
The Code Commission, cognizant of such a conflicting welter of views and
of the undeniable inclination towards a liberal construction, recommended
the codification of the substantial compliance rule, as it believed this rule
to be in accord with the modern tendency to give a liberal approach to
the interpretation of wills. Said rule thus became what is now Article 809 of
the Civil Code, with this explanation of the Code Commission:
"The present law provides for only one form of executing a will, and that is,
in accordance with the formalities prescribed by Section 618 of the Code
of Civil Procedure as amended by Act No. 2645. The Supreme Court of the
Philippines had previously upheld the strict compliance with the legal
formalities and had even said that the provisions of Section 618 of the Code
of Civil Procedure, as amended regarding the contents of the attestation
clause were mandatory, and non-compliance therewith invalidated the
will (Uy Coque vs. Sioca, 43 Phil. 405). These decisions necessarily restrained
the freedom of the testator in disposing of his property.
it is proved that the will was in fact executed and attested in substantial
compliance with all the requirements of article 829.'" 65
The so-called liberal rule, the Court said in Gil vs. Murciano, 66 "does not
offer any puzzle or difficulty, nor does it open the door to serious
consequences. The later decisions do tell us when and where to stop; they
draw the dividing line with precision. They do not allow evidence aliunde to
fill a void in any part of the document or supply missing details that should
appear in the will itself. They only permit a probe into the will, an exploration
into its confines, to ascertain its meaning or to determine the existence or
absence of the requisite formalities of law. This clear, sharp limitation
eliminates uncertainty and ought to banish any fear of dire results."
It may thus be stated that the rule, as it now stands, is that omissions 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. 67
WHEREFORE, the petition is hereby GRANTED and the impugned decision of
respondent court is hereby REVERSED and SET ASIDE. The court a quo is
accordingly directed to forthwith DISMISS its Special Proceeding No. 3899-
R (Petition for the Probate of the Last Will and Testament of Mateo
Caballero) and to REVIVE Special Proceeding No. 3965-R (In the Matter of
the Intestate Estate of Mateo Caballero) as an active case and thereafter
duly proceed with the settlement of the estate of the said decedent.
SO ORDERED.

"The right to dispose of property by will is governed entirely by statute. The
law of the case is here found in section 61 of the Code of Civil Procedure,
as amended by Act No. 2645, and in section 634 of the same Code, as
unamended. It is in part provided in section 61, as amended that 'No will . .
. shall be valid . . . unless . . . .' It is further provided in the same section that
`The attestation shall state the number of sheets or 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 three witnesses, and the latter
witnessed and signed the will and all pages thereof in the presence of the
testator and of each other.' Codal section 634 provides that 'The will shall
be disallowed in either of the following cases: 1. If not executed and
attested as in this Act provided.' The law not alone carefully makes use of
the imperative, but cautiously goes further and makes use of the negative,
"However, in recent years the Supreme Court changed its attitude and has
become more liberal in the interpretation of the formalities in the execution
of wills. This liberal view is enunciated in the cases of Rodriguez vs. Yap, G.R.
No. 45924, May 18, 1939; Leynez vs. Leynez, G.R. No. 46097, October 18,
1939; Martir vs. Martir, G.R. No. 46995, June 21, 1940; and Alcala vs. Villa,
G.R. No. 47351, April 18, 1941.
"In the above mentioned decisions of our Supreme Court, it has practically
gone back to the original provisions of Section 618 of the Code of Civil
Procedure before its amendment by Act No. 2645 in the year 1916. To turn
this attitude into a legislative declaration and to attain the main objective
of the proposed Code in the liberalization of the manner of executing wills,
article 829 of the Project is recommended, which reads:
'ART. 829. 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
10
[G.R. No. L-5826. April 29, 1953.]
Testate estate of the late VICENTE CAGRO. JESUSA CAGRO, petitioner-
appellee, vs. PELAGIO CAGRO, ET AL., oppositors-appellants.
PARAS, C.J p:
This is an appeal interposed by the oppositors from a decision of the Court
of First Instance of Samar, admitting to probate the will allegedly executed
by Vicente Cagro who died in Laoangan, Pambujan, Samar, on February
14, 1949.
The main objection insisted upon by the appellants is that the will is fatally
defective, because its attestation clause is not signed by the attesting
witnesses. 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.
Wherefore, the appealed decision is reversed and the probate of the will in
question denied. So ordered with costs against the petitioner and appellee.
Pablo, Bengzon, Montemayor, Jugo and Labrador, JJ., concur.
Separate Opinions
BAUTISTA ANGELO, J., dissenting:
I dissent. In my opinion the will in question has substantially complied with
the formalities of the law and, therefore, should be admitted to probate. It
appears that the will was signed by the testator and was attested by three
instrumental witnesses, not only at the bottom, but also on the left-hand
margin. The witnesses testified not only that the will was signed by the
testator in their presence and in the presence of each other but also that
when they did so, the attestation clause was already written thereon. Their
testimony has not been contradicted. The only objection set up by the
oppositors to the validity of the will is the fact that the signatures of the
instrumental witnesses do not appear immediately after the attestation
clause.
This objection is too technical to be entertained. In the case of Abangan
vs. Abangan, (40 Phil., 476), this court said that when the testamentary
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 such a case,
the court said, the requirement of the signatures on the left hand margin
was not necessary because the purpose of the law which is to avoid the
substitution of any of the sheets of the will, thereby changing the testator's
dispositions has already been accomplished. We may say the same thing
in connection with the will under consideration because while the three
instrumental witnesses did not sign immediately after the attestation clause,
the fear entertained by the majority that it may have been only added on
a subsequent occasion and not at the signing of the will, has been obviated
by the uncontradicted testimony of said witnesses to the effect that such
attestation clause was already written in the will when the same was signed.
The following observation made by this court in the Abangan case is very
fitting:
"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."(supra)
We should not also overlook the liberal trend of the New Civil Code in the
matter of interpretation of wills, the purpose of which, in case of doubt, is to
give such interpretation that would have the effect of preventing intestacy
(articles 788 and 791, New Civil Code).
I am therefore of the opinion that the will in question should be admitted to
probate.
Feria, J., concurs.
TUASON, J., dissenting:
I concur in Mr. Justice Bautista's dissenting opinion and may add that the
majority decision erroneously sets down as a fact that the attestation clause
was not signed, when the witnesses' signatures appear on the left margin
and the real and only question is whether such signatures are legally
sufficient.
The only answer, in our humble opinion, is yes. The law on wills does not
provide that the attesting witness should sign the clause at the bottom. In
the absence of such provision, there is no reason why signatures on the
margin are not good. A letter is not any the less the writer's simply because
it was signed, not at the conventional place but on the side or on top.
11
[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 the Court of First Instance of Southern Leyte, (Branch III,
Maasin), respondent.
GUTIERREZ, JR., J p:
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 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 13) 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 publications, 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 parte praying 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 latter
witnessed and signed the with 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 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 all 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 will that the signatures of the
subscribing witnesses should be specifically located at the end of the will
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).
12
Parenthetically, Judge Ramon C. Pamatian stated in his questioned order
that were it 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. prLL
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."
" . . . 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 attest to the full 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 the 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 will and to conduct further proceedings in
accordance with this decision. No pronouncement of costs.
SO ORDERED.

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 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. 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 passes 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: Cdpr

13
[G.R. No. 27440. December 24, 1927.]
JOSE VILLAFLOR, petitioner-appellant, vs. DEOGRACIAS TOBIAS ET AL.,
oppositors-appellees.
OSTRAND, J p:
This is an appeal from a judgment denying a petition for the probate of a
will alleged to have been executed by one Gregoria Villaflor who died in
the municipality of Santo Domingo, Province of Ilocos Sur on October 7,
1925. The petition was presented by Jose Villaflor , Deogracias Tobias, and
several other whose names do not appear in the record, contested the will
upon the following grounds: (1) That it was not signed by the alleged
testatrix personally though she was well able to do so at the time of the
execution of the document; (2) that said testatrix did not authorize any one
to sign the alleged will in her name; (3) that both before and after the
execution of the document, Gregoria Villaflor signed various documents by
thumb marks; (4) that although it is true that the testatrix requested that the
will be prepared, she nevertheless refused to sign it because it was contrary
to her desires and instructions; (5) that subsequent to the date upon which
the alleged will was executed, Gregoria Villaflor on several occasions
stated that it was not her testament; (6) that the alleged will was not
executed or signed in conformity with the law.
The grounds upon which the court below based the rejection of the
document are thus stated in its decision.
"After a careful examination of all the evidence of record, this court is of
opinion that it has been sufficiently proved that Claro Lazo, the person who
is alleged to have written the name of the testatrix in her behalf and by her
express direction, subscribed the name and surname of the testatrix and
signed the will in question without Rufino D. Soliven, one of the attesting
witnesses, being present; and that neither was said Rufino D. Soliven present
when Vicente Tecderas, one of the attesting witnesses, signed it; and lastly,
when Rufino D. Soliven signed the will the witness Vicente Tacderas was not
present.
"Besides the foregoing defect, which the court believes fatal, it also finds
that the will in question, marked Exhibit B of the applicant, was typewritten
on eight catalan sheets, one separated from the others; that the attestation
clause was written on a separate sheet, marked page 9, when said clause
could have been written totally or partially on page 8, since one-half of this
latter page is blank.
"In the opinion of the court, all these circumstances tend to make the
authenticity and due execution of the will in question very doubtful and
suspicious. And if the testimony very doubtful and suspicious. And if the
testimony of the witnesses for the opposition should be taken into account
as well as the circumstance that the testatrix Gregoria Villaflor has neither
signed nor subscribed the alleged will, notwithstanding the fact that it has
been proven in the record, that on July 12, 1923, the day on which it is
alleged the said will was executed, the testatrix was in good and sound
health, although she could not walk on her own feet inasmuch as she was
then suffering from rheumatism or partial paralysis of the lower extremities, a good Spanish scholar; that it does not appear that he knows the English
and that on July 27, and May 25, 1923, the testatrix Gregoria Villaflor used language; and that he therefore probably used the Spanish text of the
to mark with her thumb, if she did not sign, the document she executed, as Code.
it was proven during the trial by Exhibits 1 and 2 of the opponents, the doubt
and suspicion which this court entertains in regard to the authenticity of the There is some testimony on the part of the contestants to the effect that the
will in question, becomes a certainty that said testament is false." testatrix on various occasions, subsequent to the execution of the will, had
stated that it was not in conformity with her instructions and that it was not
We are reluctant to set aside, the findings of the court belong but they are, her will. Assuming that such statements were made, we can give them but
in our opinion, so clearly without sufficient support in the record that we are little importance. The testatrix was an old woman and might well have
constrained to reject them. The will in question is dated July 12, 1923, and made the statements by way of justification in conversation with persons
was prepared by a lawyer, Eustaquio Gallardo, and as far as appearance who considered themselves wronged by the provisions of her will, but
go, was executed in strict compliance with the provisions of section 618 of expressions of that kind cannot, of course, work the revocation of the
the Code of Civil Procedure for the execution of wills. The testatrix's name document. The testatrix lived for over two years after the will if she was
was signed by one Claro Lazo, a clerk in the office of the municipal treasurer dissatisfied with the first.
of Santo Domingo, and the attesting witnesses were Vicente Tacderas,
municipal president, Rufino D. Soliven, chief of police, and Mariano Pizarro, For the reason stated the appealed judgment is hereby reversed and it is
municipal treasurer, all of the town of Santo Domingo. The finding of the ordered that the document in question be admitted to probate as the last
court below that the witness Soliven was not present when Claro Lazo will and testament of the deceased Gregoria Villaflor. No costs will be
signed the name of the testatrix and when Vicente Tacderas signed as allowed. So ordered.
witness, is based on the fact that, in testifying in this case, Claro Lazo upon
being asked to enumerate the names of the persons present at the time of
the signing of the document, omitted the name of Soliven. But it appears
from the transcript of the testimony that he afterwards corrected his original
statement and testified that Soliven, as well as the other witnesses to the
will, was present while all of the signatures were affixed. This is in harmony
with the testimony of all the instrumental witnesses and is undoubtedly true;
there is, indeed, nothing strange or unusual in a mistake such as that made
by Lazo. It may be noted that it is not disputed that the lawyer Gallardo was
present during the whole proceeding and as he appears to have possessed
full knowledge of the formal requirements for the execution of a will, it is
highly improbable that the would have allowed the will in question to be
signed without the presence of the testatrix and of all of the witnesses.
That the attestation clause of the will is written on a separate page and not
on the last page of the body of the document is, in our opinion, a matter of
minor importance and is explained by the fact that if the clause had been
written on the eighth page of the will in direct continuation of the body
thereof, there would not have been sufficient space on that page for the
signatures of the witnesses to the clause. It is also to be observed that all of
the pages, including that upon which the attestation clause is written, bear
the signatures of all of the witnesses and that there is no question whatever
as to the genuineness of said signatures.
The fact that the name of the testatrix was written by another person, and
that she did not sign by thumb-mark, is easily explained and is evidently due
to an attempt on the part of the lawyer Gallardo to comply strictly with the
following clause in the Spanish text of section 618 of the Code of Civil
Procedure: "Excepto en el caso a que se refiere el articulo anterior, no sera
valido para la transmission de bienes muebles e inmuebles, ni los gravara y
afectara, ningun testamento a menos que este escrito y que haya sido
firmando por el testador, a que lleve el nombre de este, escrito por otra
persona en su presencia y bajo su direccion expresa, . . ." The making of a
finger mark is not "escribir" and it may be noted that Gallardo apparently is
14
Caneda vs. CA (222 SCRA 784) see page 7
ART. 810
[G.R. No. 38338. January 28, 1985.]
IN THE MATTER OF THE INTESTATE ESTATE OF ANDRES G. DE JESUS AND BIBIANA
ROXAS DE JESUS, SIMEON R. ROXAS & PEDRO ROXAS DE JESUS, petitioners,
vs. ANDRES R. DE JESUS, JR., respondent.
GUTIERREZ, JR., J p:
This is a petition for certiorari to set aside the order of respondent Hon. Jose
C. Colayco, Presiding Judge Court of First Instance of Manila, Branch XXI
disallowing the probate of the holographic Will of the deceased Bibiana
Roxas de Jesus.
The antecedent facts which led to the filing of this petition are undisputed.
After the death of spouses Andres G. de Jesus and Bibiana Roxas de Jesus,
Special Proceeding No. 81503 entitled "In the Matter of the Intestate Estate
of Andres G. de Jesus and Bibiana Roxas de Jesus" was filed by petitioner
Simeon R. Roxas, the brother of the deceased Bibiana Roxas de Jesus.
On March 26, 1973, petitioner Simeon R. Roxas was appointed
administrator. After Letters of Administration had been granted to the
petitioner, he delivered to the lower court a document purporting to be the
holographic Will of the deceased Bibiana Roxas de Jesus.
On May 26, 1973, respondent Judge Jose Colayco set the hearing of the
probate of the holographic Will on July 21, 1973. LLphil
Petitioner Simeon R. Roxas testified that after his appointment as
administrator, he found a notebook belonging to the deceased Bibiana R.
de Jesus and that on pages 21, 22, 23 and 24 thereof, a letter-will addressed
to her children and entirely written and signed in the handwriting of the
deceased Bibiana R. de Jesus was found. The will is dated "FEB./61" and
states: "This is my will which I want to be respected altho it is not written by
a lawyer. . . "
The testimony of Simeon R. Roxas was corroborated by the testimonies of
Pedro Roxas de Jesus and Manuel Roxas de Jesus who likewise testified that
the letter dated "FEB./61" is the holographic Will of their deceased mother,
Bibiana R. de Jesus. Both recognized the handwriting of their mother and
positively identified her signature. They further testified that their deceased
mother understood English, the language in which the holographic Will is
written, and that the date "FEB./61" was the date when said Will was
executed by their mother.
Respondent Luz R. Henson, another compulsory heir filed an "opposition to
probate" assailing the purported holographic Will of Bibiana R. de Jesus
because (a) it was not executed in accordance with law, (b) it was
executed through force, intimidation and/or under duress, undue influence
and improper pressure, and (c) the alleged testatrix acted by mistake and
or did not intend, nor could have intended the said Will to be her last Will
and testament at the time of its execution.
On August 24, 1973, respondent Judge Jose C. Colayco issued an order
allowing the probate of the holographic Will which he found to have been
duly executed in accordance with law.
Respondent Luz Roxas de Jesus filed a motion for reconsideration alleging
inter alia that the alleged holographic Will of the deceased Bibiana R. de
Jesus was not dated as required by Article 810 of the Civil Code. She
contends that the law requires that the Will should contain the day, month,
and year of its execution and that this should be strictly complied with.
On December 10, 1973, respondent Judge Colayco reconsidered his earlier
order and disallowed the probate of the holographic Will on the ground
that the word "dated" has generally been held to include the month, day,
and year. The dispositive portion of the order reads:
"WHEREFORE, the document purporting to be the holographic Will of
Bibiana Roxas de Jesus, is hereby disallowed for not having been executed
as required by the law. The order of August 24, 1973 is hereby set aside."
The only issue is whether or not the date "FEB./61" appearing on the
holographic Will of the deceased Bibiana Roxas de Jesus is a valid
compliance with the Article 810 of the Civil Code which reads:
ART. 810. 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."
The petitioners contend that while Article 685 of the Spanish Civil Code and
Article 688 of the Old Civil Code require the testator to state in his
holographic Will the "year, month, and day of its execution," the present
Civil Code omitted the phrase "Ao, mes y dia" and simply requires that the
holographic Will should be dated. The petitioners submit that the liberal
construction of the holographic Will should prevail. cdrep
Respondent Luz Henson on the other hand submits that the purported
holographic Will is void for non-compliance with Article 810 of the New Civil
Code in that the date must contain the year, month, and day of its
execution. The respondent contends that Article 810 of the Civil Code was
patterned after Section 1277 of the California Code and Section 1588 of
the Louisiana Code whose Supreme Courts had consistently ruled that the
required date includes the year, month, and day, and that if any of these
is wanting, the holographic Will is invalid. The respondent further contends
that the petitioner cannot plead liberal construction of Article 810 of the
Civil Code because statutes prescribing the formalities to be observed in
the execution of holographic Wills are strictly construed.
We agree with the petitioner.
This will not be the first time that this Court departs from a strict and literal
application of the statutory requirements regarding the due execution of
Wills. We should not overlook the liberal trend of the Civil Code in the
manner of execution of Wills, the purpose of which, in case of doubt is to
prevent intestacy
"The underlying and fundamental objectives permeating the provisions of
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 with respect to the
formalities in the execution of wills." (Report of the Code Commission, p. 103)
In Justice Capistrano's concurring opinion in Heirs of Raymundo Castro v.
Bustos (27 SCRA 327) he emphasized that: LibLex
xxx xxx xxx
". . . The law has a tender regard for the will of the testator expressed in his
last will and testament on the ground that any disposition made by the
testator is better than that which the law can make. For this reason,
intestate succession is nothing more than a disposition based upon the
presumed will of the decedent."
Thus, the prevailing policy is to require satisfaction of the legal requirements
in order to guard against fraud and bad faith but without undue or
unnecessary curtailment of testamentary privilege (Icasiano v. Icasiano, 11
SCRA 422). If a Will has been executed in substantial compliance with the
formalities of the law, and the possibility of bad faith and fraud in the
exercise thereof is obviated, said Will should be admitted to probate (Rey
v. Cartagena, 56 Phil. 282). Thus,
xxx xxx xxx
". . . More than anything else, the facts and circumstances of record are to
be considered in the application of any given rule. If the surrounding
circumstances point to a regular execution of the will, and the instrument
appears to have been executed substantially in accordance with the
requirements of the law, the inclination should, in the absence of any
suggestion of bad faith, forgery or fraud, lean towards its admission to
probate, although the document may suffer from some imperfection of
language, or other non-essential defect . . ." (Leynez v. Leynez, 68 Phil. 745)
15
If the testator, in executing his Will, attempts to comply with all the requisites,
although compliance is not literal, it is sufficient if the objective or purpose
sought to be accomplished by such requisite is actually attained by the
form followed by the testator.
The purpose of the solemnities surrounding the execution of Wills has been
expounded by this Court in Abangan v. Abangan, 40 Phil. 476, where we
ruled 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 . . ."

In particular, a complete date is required to provide against such

contingencies as that of two competing Wills executed on the same day,
or of a testator becoming insane on the day on which a Will was executed
(Velasco v. Lopez, 1 Phil. 720). There is no such contingency in this case.
We have carefully reviewed the records of this case and found no
evidence of bad faith and fraud in its execution nor was there any
substitution of Wills and Testaments. There is no question that the
holographic Will of the deceased Bibiana Roxas de Jesus was entirely
written, dated, and signed by the testatrix herself and in a language known
to her. There is also no question as to its genuineness and due execution. All
the children of the testatrix agree on the genuineness of the holographic
Will of their mother and that she had the testamentary capacity at the time
of the execution of said Will. The objection interposed by the oppositor-
respondent Luz Henson is that the holographic Will is fatally defective
because the date "FEB./61" appearing on the holographic Will is not
sufficient compliance with Article 810 of the Civil Code. This objection is too
technical to be entertained. cdphil

As a general rule, the "date" in a holographic Will should include the day,
month, and year of its execution. However, when as in the case at bar,
there is no appearance of fraud, bad faith, undue influence and pressure
and the authenticity of the Will is established and the only issue is whether
or not the date "FEB./61" appearing on the holographic Will is a valid
compliance with Article 810 of the Civil Code, probate of the holographic
Will should be allowed under the principle of substantial compliance.

WHEREFORE, the instant petition is GRANTED. The order appealed from is

REVERSED and SET ASIDE and the order allowing the probate of the
holographic Will of the deceased Bibiana Roxas de Jesus is reinstated.

SO ORDERED.

16
[G.R. Nos. 83843-44. April 5, 1990.]
IN THE MATTER OF THE PETITION TO APPROVE THE WILL OF MELECIO
LABRADOR. SAGRADO LABRADOR (Deceased), substituted by ROSITA
LABRADOR, ENRICA LABRADOR, and CRISTOBAL LABRADOR, petitioners-
appellants, vs. COURT OF APPEALS, 1 GAUDENCIO LABRADOR, and JESUS
LABRADOR, respondents-appellees.
PARAS, J p:
The sole issue in this case is whether or not the alleged holographic will of
one Melecio Labrador is dated, as provided for in Article 810 2 of the New
Civil Code.
The antecedent and relevant facts are as follows: On June 10, 1972,
Melecio Labrador died in the Municipality of Iba, province of Zambales,
where he was residing, leaving behind a parcel of land designated as Lot
No. 1916 under Original Certificate of Title No. P-1652, and the following
heirs, namely: Sagrado, Enrica, Cristobal, Jesus, Gaudencio, Josefina,
Juliana, Hilaria and Jovita, all surnamed Labrador, and a holographic will.
On July 28, 1975, Sagrado Labrador (now deceased but substituted by his
heirs), Enrica Labrador and Cristobal Labrador, filed in the court a quo a
petition for the probate docketed as Special Proceeding No. 922-I of the
alleged holographic will of the late Melecio Labrador. prLL
Subsequently, on September 30, 1975, Jesus Labrador (now deceased but
substituted by his heirs), and Gaudencio Labrador filed an opposition to the
petition on the ground that the will has been extinguished or revoked by
implication of law, alleging therein that on September 30, 1971, that is,
before Melecio's death, for the consideration of Six Thousand (P6,000)
Pesos, testator Melecio executed a Deed of Absolute Sale, selling,
transferring and conveying in favor of oppositors Jesus and Gaudencio Lot
No. 1916 and that as a matter of fact, O.C.T. No. P-1652 had been
cancelled by T.C.T. No. T-21178. Earlier however, in 1973, Jesus Labrador sold
said parcel of land to Navat for only Five Thousand (P5,000) Pesos. (Rollo, p.
37)
Sagrado thereupon filed, on November 28, 1975, against his brothers,
Gaudencio and Jesus, for the annulment of said purported Deed of
Absolute Sale over a parcel of land which Sagrado allegedly had already
acquired by devise from their father Melecio Labrador under a holographic
will executed on March 17, 1968, the complaint for annulment docketed as
Civil Case No. 934-I, being premised on the fact that the aforesaid Deed of
Absolute Sale is fictitious.
After both parties had rested and submitted their respective evidence, the
trial court rendered a joint decision dated February 28, 1985, allowing the
probate of the holographic will and declaring null and void the Deed of
Absolute Sale. The court a quo had also directed the respondents (the
defendants in Civil Case No. 934-I) to reimburse to the petitioners the sum
of P5,000.00 representing the redemption price for the property paid by the
plaintiff-petitioner Sagrado with legal interest thereon from December 20,
1976, when it was paid to vendee a retro. cdll
Respondents appealed the joint decision to the Court of Appeals, which
on March 10, 1988 modified said joint decision of the court a quo by
denying the allowance of the probate of the will for being undated and
reversing the order of reimbursement. Petitioners' Motion for
Reconsideration of the aforesaid decision was denied by the Court of
Appeals, in the resolution of June 13, 1988. Hence, this petition.
Petitioners now assign the following errors committed by respondent court,
to wit:
I
THE COURT OF APPEALS ERRED IN NOT ALLOWING AND APPROVING THE
PROBATE OF THE HOLOGRAPHIC WILL OF THE TESTATOR MELECIO
LABRADOR; and
II
THE COURT OF APPEALS ERRED IN FINDING THAT THE ORDER OF THE LOWER
COURT DIRECTING THE REIMBURSEMENT OF THE FIVE THOUSAND PESOS
REPRESENTING THE REDEMPTION PRICE WAS ERRONEOUS.
The alleged undated holographic will written in Ilocano translated into
English, is quoted as follows:
"ENGLISH INTERPRETATION OF THE WILL OF THE LATE MELECIO LABRADOR
WRITTEN IN ILOCANO
BY ATTY. FIDENCIO L. FERNANDEZ
I First Page
This is also where it appears in writing of the place which is assigned and
shared or the partition in favor of SAGRADO LABRADOR which is the
fishpond located and known place as Tagale.
And this place that is given as the share to him, there is a measurement of
more or less one hectare, and the boundary at the South is the property
and assignment share of ENRICA LABRADOR, also their sister, and the
boundary in the West is the sea, known as the SEA as it is, and the boundary
on the NORTH is assignment belonging to CRISTOBAL LABRADOR, who
likewise is also their brother. That because it is now the time for me being
now ninety three (93) years, then I feel it is the right time for me to partition
the fishponds which were and had been bought or acquired by us,
meaning with their two mothers, hence there shall be no differences
among themselves, those among brothers and sisters, for it is I myself their
father who am making the apportionment and delivering to each and
everyone of them the said portion and assignment so that there shall not
be any cause of troubles or differences among the brothers and sisters. llcd
II Second Page
And this is the day in which we agreed that we are making the partitioning
and assigning the respective assignment of the said fishpond, and this
being in the month of March, 17th day, in the year 1968, and this decision
and or instruction of mine is the matter to be followed. And the one who
made this writing is no other than MELECIO LABRADOR, their father.
Now, this is the final disposition that I am making in writing and it is this that
should be followed and complied with in order that any differences or
troubles may be forestalled and nothing will happen along these troubles
among my children, and that they will be in good relations among
themselves, brothers and sisters;
And those improvements and fruits of the land; mangoes, bamboos and all
coconut trees and all others like the other kind of bamboo by name of
Bayog, it is their right to get if they so need, in order that there shall be
nothing that anyone of them shall complain against the other, and against
anyone of the brothers and sisters.
III THIRD PAGE
And that referring to the other places of property, where the said property
is located, the same being the fruits of our earnings of the two mothers of
my children, there shall be equal portion of each share among themselves,
and or to be benefited with all those property, which property we have
been able to acquire.
That in order that there shall be basis of the truth of this writing (WILL) which
I am here hereof manifesting of the truth and of the fruits of our labor which
their two mothers, I am signing my signature below hereof, and that this is
what should be complied with, by all the brothers and sisters, the children
of their two mothers JULIANA QUINTERO PILARISA and CASIANA AQUINO
VILLANUEVA Your father who made this writing (WILL), and he is, MELECIO
LABRADOR y RALUTIN." (p. 46, Rollo)
The petition, which principally alleges that the holographic will is really
dated, although the date is not in its usual place, is impressed with merit.
The will has been dated in the hand of the testator himself in perfect
compliance with Article 810. It is worthy of note to quote the first paragraph
of the second page of the holographic will, viz:
"And this is the day in which we agreed that we are making the partitioning
and assigning the respective assignment of the said fishpond, and this
being in the month of March, 17th day, in the year 1968, and this decision
and or instruction of mine is the matter to be followed. And the one who
made this writing is no other than MELECIO LABRADOR, their father." (italics
supplied) (p. 46, Rollo)
The law does not specify a particular location where the date should be
placed in the will. The only requirements are that the date be in the will itself
and executed in the hand of the testator. These requirements are present
in the subject will.
Respondents claim that the date 17 March 1968 in the will was when the
testator and his beneficiaries entered into an agreement among
17
themselves about "the partitioning and assigning the respective
assignments of the said fishpond," and was not the date of execution of the
holographic will; hence, the will is more of an "agreement" between the
testator and the beneficiaries thereof to the prejudice of other compulsory
heirs like the respondents. This was thus a failure to comply with Article 783
which defines a will as "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."

Respondents are in error. The intention to show 17 March 1968 as the date
of the execution of the will is plain from the tenor of the succeeding words
of the paragraph. As aptly put by petitioner, the will was not an agreement
but a unilateral act of Melecio Labrador who plainly knew that what he was
executing was a will. The act of partitioning and the declaration that such
partitioning as the testator's instruction or decision to be followed reveal
that Melecio Labrador was fully aware of the nature of the estate property
to be disposed of and of the character of the testamentary act as a means
to control the disposition of his estate.

Anent the second issue of finding the reimbursement of the P5,000

representing the redemption price as erroneous, respondent court's
conclusion is incorrect. When private respondents sold the property
(fishpond) with right to repurchase to Navat for P5,000, they were actually
selling property belonging to another and which they had no authority to
sell, rendering such sale null and void. Petitioners, thus "redeemed" the
property from Navat for P5,000, to immediately regain possession of the
property for its disposition in accordance with the will. Petitioners therefore
deserve to be reimbursed the P5,000.

PREMISES CONSIDERED, the decision of the Court of Appeals dated March

10, 1988 is hereby REVERSED. The holographic will of Melecio Labrador is
APPROVED and ALLOWED probate. The private respondents are directed
to REIMBURSE the petitioners the sum of Five Thousand Pesos (P5,000.00).

SO ORDERED.

18
ARTICLE 811
[G.R. No. L-14003. August 5, 1960.]
FEDERICO AZAOLA, petitioner-appellant, vs. CESARIO SINGSON, oppositor-
appellee.
REYES, J. B. L., J p:
This appeal, taken on points of law from a decision rendered on 15 January
1958 by the Court of First Instance of Quezon City in its Special Proceedings
No. Q-2640, involves the determination of the quantity of evidence required
for the probate of a holographic will.
The established facts are thus summarized in the decision appealed from
(Rec. App. pp. 22-24):
"Briefly speaking, the following facts were established by the petitioner; that
on September 9, 1957, Fortunata S. Vda. de Yance died at 13 Luskot,
Quezon City, known to be the last residence of said testatrix; that Francisco
Azaola, petitioner herein for probate of the holographic will, submitted the
said holographic will (Exh. C) whereby Maria Milagros Azaola was made the
sole heir as against the nephew of the deceased Cesario Singson; that
witness Francisco Azaola testified that he saw the holographic will (Exh. C)
one month, more or less, before the death of the testatrix, as the same was
handed to him and his wife; that the witness testified also that he
recognized all the signatures appearing in the holographic will (Exh. C) as
the handwriting of the testatrix and to reinforce said statement, witness
presented the mortgage (Exh. E), the special power of attorney (Exh. F),
and the general power of attorney (Exh. F-1), besides the deeds of sale
(Exhs. G and G-1) including an affidavit (Exh. G-2), and that there were
further exhibited in court two residence certificates (Exhs. H and H-1) to
show the signatures of the testatrix, for comparison purposes; that said
witness, Azaola, testified that the penmanship appearing in the aforesaid
documentary evidence is in the handwriting of the testatrix as well as the
signatures appearing therein are the signatures of the testatrix; that said
witness, in answer to a question of his counsel admitted that the
holographic will was handed to him by the testatrix, "apparently it must
have been written by her" (t.s.n., p. 11). However, on page 16 on the same
transcript of the stenographic notes, when the same witness was asked by
counsel if he was familiar with the penmanship and handwriting of the
deceased Fortunata Vda. de Yance, he answered positively in the
affirmative and when he was asked again whether the penmanship
referred to in the previous answer as appearing in the holographic will (Exh.
C) was hers (testatrix'), he answered, "I would definitely say it is hers"; that it
was also established in the proceedings that the assessed value of the
property of the deceased in Luskot, Quezon City, is in the amount of
P7,000.00."
The opposition to the probate was on the ground that (1) the execution of
the will was procured by undue and improper pressure and influence on
the part of the petitioner and his wife, and (2) that the testatrix did not
seriously intend the instrument to be her last will, and that the same was
actually written either on the 5th or 6th day of August 1957 and not on
November 20, 1956 as appears on the will.
The probate was denied on the ground that under Article 811 of the Civil
Code, the proponent must present three witnesses who could declare that
the will and the signature are in the writing of the testatrix, the probate
being contested; and because the lone witness presented by the
proponent "did not prove sufficiently that the body of the will was written in
the handwriting of the testatrix."
The proponent appealed, urging: first, that he was not bound to produce
more than one witness because the will's authenticity was not questioned;
and second, that Article 811 does not mandatorily require the production
of three witnesses to identify the handwriting and signature of a
holographic will, even if its authenticity should be denied by the adverse
party.
Article 811 of the Civil Code of the Philippines is to the following effect:
"ART. 811. In the probate of a holographic will, 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 of such witnesses shall be
required.
In the absence of any competent witness referred to in the preceding
paragraph, and if the court deems it necessary, expert testimony may be
resorted to. (691a)"
We agree with the appellant that since the authenticity of the will was not
contested, he was not required to produce more than one witness; but
even if the genuineness of the holographic will were contested, we are of
the opinion that Article 811 of our present Civil Code can not be interpreted
as to require the compulsory presentation of three witnesses to identify the
handwriting of the testator, under penalty of having the probate denied.
Since no witness may have been present at the execution of a holographic
will, none being required by law (Art. 810, new Civil Code), it becomes
obvious that the existence of witnesses possessing the requisite
qualifications is a matter beyond the control of the proponent. For it is not
merely a question of finding and producing any three witnesses; they must
be witnesses "who know the handwriting and signature of the testator" and
who can declare (truthfully, of course, even if the law does not so express)
"that the will and the signature are in the handwriting of the testator". There
may be no available witness acquainted with the testator's hand; or even
if so familiarized, the witnesses may be unwilling to give a positive opinion.
Compliance with the rule of paragraph 1 of Article 811 may thus become
an impossibility. That is evidently the reason why the second paragraph of
Article 811 prescribes that
"in the absence of any competent witness referred to in the preceding
paragraph, and if the court deems it necessary, expert testimony may be
resorted to."
As can be seen, the law foresees the possibility that no qualified witness
may be found (or what amounts to the same thing, that no competent
witness may be willing to testify to the authenticity of the will), and provides
for resort to expert evidence to supply the deficiency.
It may be true that the rule of this article (requiring that three witnesses be
presented if the will is contested and only one if no contest is had) was
derived from the rule established for ordinary testaments (cf. Cabang vs.
Delfinado, 45 Phil., 291; Tolentino vs. Francisco, 57 Phil. 742). But it can not
be ignored that the requirement can be considered mandatory only in the
case of ordinary testaments, precisely because the presence of at least
three witnesses at the execution of ordinary wills is made by law essential to
their validity (Art. 805). Where the will is holographic, no witness need be
present (Art. 10), and the rule requiring production of three witnesses must
be deemed merely permissive if absurd results are to be avoided.
Again, under Article 811, the resort to expert evidence is conditioned by the
words "if the Court deem it necessary", which reveal that what the law
deems essential is that the Court should be convinced of the will's
authenticity. Where the prescribed number of witnesses is produced and
the court is convinced by their testimony that the will is genuine, it may
consider it unnecessary to call for expert evidence. On the other hand, if
no competent witness is available, or none of those produced is
convincing, the Court may still, and in fact it should, resort to handwriting
experts. The duty of the court, in fine, is to exhaust all available lines of
inquiry, for the state is as much interested as the proponent that the true
intention of the testator be carried into effect.
Commenting on analogous provisions of Article 691 of the Spanish Civil
Code of 1889, the noted Commentator, Mucius Scaevola (Vol. 12, 2nd Ed.,
p. 421), sagely remarks:
"La manera como est concebida la redaccin del ltimo apartado de
dicho precepto induce la conclusin de que siempre o por lo menos, en la
mayor parte de los casos, el Juez debe acudir al criterio pericial para que
le ilustre acerca de la autenticidad del testamento olgrafo, aunque ya
estn insertas en los autos del expediente las declaraciones testificales. La
prudencia con que el Juez debe de proceder en resoluciones de
transcendencia as lo exige, y la ndole delicada y peligrosa del testamento
olgrafo lo hace necesario para mayor garanta de todos los intereses
comprometidos en aquel.
En efecto, el cotejo pericial de letras puede ser una comfirmacin
facultativa del dicho profano de los testigos y un modo de desvanecer las
ultimas dudas que pudieran ocurrir al Juez acerca de la autenticidad que
trata de averiguar y declarar. Para eso se ha escrito la frase del citado
ltimo apartado, (siempre que el Juez lo estime conveniente), haya habido
o no testigos y dudaran o no estos respecto de los extremos por que son
preguntados.
El arbitrio judicial en este caso debe de formarse con independencia de
los sucesos y de su significacin, para responder debidamente de las
resoluciones que haya de dictar."
And because the law leaves it to the trial court to decide if experts are still
needed, no unfavourable inference can be drawn from a party's failure to
19
offer expert evidence, until and unless the court expresses dissatisfaction
with the testimony of the lay witnesses.

Our conclusion is that the rule of the first paragraph of Article 811 of the Civil
Code is merely directory and is not mandatory.

Considering, however, that this is the first occasion in which this Court has
been called upon to construe the import of said article, the interest of
justice would be better served, in our opinion, by giving the parties ample
opportunity to adduce additional evidence, including expert witnesses,
should the Court deem them necessary.

In view of the foregoing, the decision appealed from is set aside, and the
records ordered remanded to the Court of origin, with instructions to hold a
new trial in conformity with this opinion. But evidence already on record
shall not be retaken. No costs.

20
[G.R. No. L-16592. October 27, 1961.]
ENRIQUE ICASIANO, plaintiff-appellee, vs. FELISA ICASIANO, defendant-
appellant.
CONCEPCION, J p:
Appeal from an order of the Court of First Instance of Manila granting
plaintiff's motion to dismiss defendant's first counterclaim and dismissing the
latter.
The facts are simple enough. In his complaint, dated July 31, 1959, plaintiff
Enrique Icasiano sought to recover P20,000 plus interest and attorney's fees,
from the defendant, Felisa Icasiano. Within the reglementary period, or on
November 9, 1959, the latter filed an answer admitting some allegations of
the complaint, denying other allegations thereof and setting up special
defenses, as well as two (2) counterclaims one for the sum of P150
allegedly borrowed by plaintiff from the defendant, and another for moral
and exemplary damages, attorney's fees and expenses of litigation,
allegedly suffered and incurred by the defendant in consequence of this
suit, in such sum as the court may find just and reasonable.
On November 17, 1959, plaintiff moved (a) to dismiss the first counterclaim;
(b) to strike out paragraph (2) of defendant's answer; and (c) to set the
case for hearing on the merits. Despite defendant's objection thereto, on
December 7, 1959, the lower court granted the first prayer, denied the
second prayer and set the case for hearing on a stated date. Notice of the
order to this effect was served on the defendant on December 17, 1959,
who, three (3) days latter, filed her notice of appeal and appeal bond.
Plaintiff countered with a motion to strike out defendant's appeal "in so far
as said notice refers to the setting for hearing of the above entitled case on
January 7, 1960, at 8:30 a.m., for the simple reason that said order, in so far
as it sets a date for the hearing of the above entitled case is interlocutory
and, therefore, not appealable, and for the further reason that the
intended appeal from said setting order is plainly frivolous and interposed
only for the purpose of delay". This motion was denied in an order dated
December 19, 1959, which allowed defendant's appeal "from the order of
December 7, 1959, in so far as it orders the dismissal of defendant's first
counterclaim, and setting the hearing of this case on January 7, 1960, at
8:30 a.m." Upon denial by the lower court of plaintiff's motion for
reconsideration of its last order, defendant filed her record on appeal,
which, after its amendment, was approved "there being no opposition
thereto."
motion was denied by a resolution of this Court dated February 17, 1960.
We, likewise, denied plaintiff's motion for reconsideration of said resolution.
The main issue in this appeal is whether or not the lower court had erred in
holding itself without jurisdiction to entertain defendant's first counterclaim.
Before passing upon the merits of such question, it should be noted,
however, that the order granting plaintiff's motion to dismiss said
counterclaim is interlocutory in nature, and, hence, not appealable, until
after judgment shall have been rendered on plaintiff's complaint (Guanco,
et al. vs. Monteblanco, et al., L-14871, April 29, 1961; Villasin vs. Seven-Up
Bottling Co. of the Philippines, L-13501, April 28, 1960; Caldera, et al. vs.
Balcueba, et al., 84 Phil. 304).
However, plaintiff did not object to defendant's appeal from said order
except insofar only as it set the case for hearing. In other words, it
acquiesced to said appeal as regards the dismissal of the aforementioned
counterclaim. In fact, plaintiff interposed no objection to defendant's
amended record on appeal. Hence, even if the lower court should have
disapproved it, for the reason that said order of dismissal is interlocutory in
character, its order approving the amended record on appeal entailed, at
most, an error of judgment that does not affect our jurisdiction to entertain
the appeal (Gatmaitan vs. Medina, L-14400, August 5, 1960; Salazar vs.
Salazar, L-5823, April 29, 1953). It may not be amiss to add that the
allegation in the motion, filed by plaintiff with this Court, to dismiss the
appeal, to the effect that the same is frivolous insofar as it seeks a review of
the order dismissing defendant's first counterclaim, has no merit, not only
because a party can not be barred upon such ground from appealing by
writ of error, but, also, because we find that the lower court had erred in
issuing the order complained of.
Indeed, regardless of whether the court of First Instance may entertain
counterclaims for less than P5,000, it must be noted that Article 1278, 1279,
1286 and 1290 of our Civil Code read:
"ART. 1278. Compensation shall take place when two persons, in their own
right, are creditors and debtors of each other."
"ART. 1279. In order that compensation may be proper, it is necessary:
(1) That each one of the obligors be bound principally, and that he be at
the same time a principal creditor of the other;
(2) That both debts consist in a sum of money, or if the things due are
consumable, they be of the same kind, and also of the same quality if the
latter has been stated;
"ART. 1286. Compensation takes place by operation of law, even though
the debts may be payable at different places, but there shall be an
indemnity for expenses of exchange or transportation to the place of
payment."
"ART. 1290. When all the requisites mentioned in Article 1279 are present,
compensation takes effect by operation of law, and extinguishes both
debts to the concurrent amount, even though the creditors and debtors
are not aware of the compensation."
Pursuant to these provisions, defendant would have been entitled to
deduct from plaintiff's claim of P20,000 if the latter were established
the sum of P150 involved in her first counterclaim, if the allegations thereof
were true, even if no such counterclaim had been set up in her answer, for
"when all the requisites mentioned in Article 1279 are present,
compensation takes effect by operation of law, and extinguishes both
debts to the concurrent amount, even though the creditors and debtors
are not aware of" and, hence, did not plead "the compensation".
Moreover, it is clear from the record before us that said counterclaim was
set up, not so much to obtain a money judgment against plaintiff, as by
way of set-off, to reduce the sum collectible by the latter, if successful, to
the extent of the concurrent amount (Moore's Federal Practice, Vol. 1, pp.
695-696) (See, also, Wisdom vs. Guess Drycleaning Co., 5 Fed. Supl., 762-
767).
WHEREFORE, the order appealed from is hereby reversed, insofar as it
dismisses defendant's first counterclaim, and the case is, accordingly,
remanded to the lower court for further proceedings, not inconsistent with
this decision, with costs against plaintiff- appellee, Enrique Icasiano. It is so
ordered.

Sometime after the transmittal of the amended record on appeal to this (3) That the two debts be due;
Court or on February 4, 1960, plaintiff filed a motion to dismiss the appeal
upon the ground that defendant's appeal "from the order of the trial court (4) That they be liquidated and demandable;
dated December 7, 1959, dismissing her first counterclaim is manifestly and
palpably frivolous" and that her appeal from said order insofar as it sets the (5) That over neither of them there be any retention or controversy,
case for hearing is "ostensibly dilatory, aside from the fact that such setting commenced by third persons and communicated in due time to the
order is interlocutory and, therefore, not immediately appealable". This debtor."
21
Azaola vs. Singson - see p. 19
[G.R. No. 123486. August 12, 1999.]
EUGENIA RAMONAL CODOY, and MANUEL RAMONAL, petitioners, vs.
EVANGELINE R. CALUGAY, JOSEPHINE SALCEDO, and EUFEMIA PATIGAS,
respondents.
PARDO, J p:
Before us is a petition for review on certiorari of the decision of the Court of
Appeals 1 and its resolution denying reconsideration, ruling:
"Upon the unrebutted testimony of appellant Evangeline Calugay and
witness Matilde Ramonal Binanay, the authenticity of testators holographic
will has been established and the handwriting and signature therein (exhibit
S) are hers, enough to probate said will. Reversal of the judgment appealed
from and the probate of the holographic will in question be called for. The
rule is that after plaintiff has completed presentation of his evidence and
the defendant files a motion for judgment on demurrer to evidence on the
ground that upon the facts and the law plaintiff has shown no right to relief,
if the motion is granted and the order to dismissal is reversed on appeal, the
movant loses his right to present evidence in his behalf (Sec. 1 Rule 35
Revised Rules of Court). Judgment may, therefore, be rendered for
appellant in the instant case. LLpr
"Wherefore, the order appealed from is REVERSED and judgment rendered
allowing the probate of the holographic will of the testator Matilde Seo
Vda. de Ramonal." 2
The facts are as follows:
On April 6, 1990, Evangeline Calugay, Josephine Salcedo and Eufemia
Patigas, devisees and legatees of the holographic will of the deceased
Matilde Seo Vda. de Ramonal, filed with the Regional Trial Court, Misamis
Oriental, Branch 18, a petition 3 for probate of the holographic will of the
deceased, who died on January 16, 1990.
In the petition, respondents claimed that the deceased Matilde Seo Vda.
de Ramonal, was of sound and disposing mind when she executed the will
on August 30, 1978, that there was no fraud, undue influence, and duress
employed in the person of the testator, and the will was written voluntarily.
The assessed value of the decedent's property, including all real and
personal property was about P400,000.00, at the time of her death. 4
On June 28, 1990, Eugenia Ramonal Codoy and Manuel Ramonal filed an
opposition 5 to the petition for probate, alleging that the holographic will
was a forgery and that the same is even illegible. This gives an impression
that a "third hand" of an interested party other than the "true hand" of
Matilde Seo Vda. de Ramonal executed the holographic will.
Petitioners argued that the repeated dates incorporated or appearing on
the will after every disposition is out of the ordinary. If the deceased was the
one who executed the will, and was not forced, the dates and the
signature should appear at the bottom after the dispositions, as regularly
done and not after every disposition. And assuming that the holographic
will is in the handwriting of the deceased, it was procured by undue and
improper pressure and influence on the part of the beneficiaries, or through
fraud and trickery. LLphil
Respondents presented six (6) witnesses and various documentary
evidence. Petitioners instead of presenting their evidence, filed a demurrer
6 to evidence, claiming that respondents failed to establish sufficient
factual and legal basis for the probate of the holographic will of the
deceased Matilde Seo Vda. de Ramonal.
On November 26, 1990, the lower Court issued an order, the dispositive
portion of which reads:
"WHEREFORE, in view of the foregoing consideration, the Demurrer to
Evidence having being well taken, same is granted, and the petition for
probate of the document (Exhibit "S") on the purported Holographic Will of
the late Matilde Seo Vda. de Ramonal, is denied for insufficiency of
evidence and lack of merits." 7
On December 12, 1990, respondents filed a notice of appeal, 8 and in
support of their appeal, the respondents once again reiterated the
testimony of the following witnesses, namely: (1) Augusto Neri; (2) Generosa
Senon; (3) Matilde Ramonal Binanay; (4) Teresita Vedad; (5) Fiscal Rodolfo
Waga; and (6) Evangeline Calugay.
To have a clear understanding of the testimonies of the witnesses, we recite
an account of their testimonies.
Augusto Neri, Clerk of Court, Court of First Instance of Misamis Oriental,
where the special proceedings for the probate of the holographic will of
the deceased was filed. He produced and identified the records of the
case. The documents presented bear the signature of the deceased,
Matilde Seo Vda. de Ramonal, for the purpose of laying the basis for
comparison of the handwriting of the testatrix, with the writing treated or
admitted as genuine by the party against whom the evidence is offered.
Generosa Senon, election registrar of Cagayan de Oro, was presented to
produce and identify the voter's affidavit of the decedent. However, the
voters' affidavit was not produced for the same was already destroyed and
no longer available.
Matilde Ramonal Binanay, testified that the deceased Matilde Seo Vda.
de Ramonal was her aunt, and that after the death of Matilde's husband,
the latter lived with her in her parent's house for eleven (11) years, from 1958
to 1969. During those eleven (11) years of close association with the
deceased, she acquired familiarity with her signature and handwriting as
she used to accompany her (deceased Matilde Seo Vda. de Ramonal) in
collecting rentals from her various tenants of commercial buildings, and the
deceased always issued receipts. In addition to this, she (witness Matilde
Binanay) assisted the deceased in posting the records of the accounts, and
carried personal letters of the deceased to her creditors. LibLex
Matilde Ramonal Binanay further testified that at the time of the death of
Matilde Vda. de Ramonal, she left a holographic will dated August 30, 1978,
which was personally and entirely written, dated and signed, by the
deceased and that all the dispositions therein, the dates, and the signatures
in said will, were that of the deceased.
Fiscal Rodolfo Waga testified that before he was appointed City Fiscal of
Cagayan de Oro, he was a practicing lawyer, and handled all the
pleadings and documents signed by the deceased in connection with the
intestate proceedings of her late husband, as a result of which he is familiar
with the handwriting of the latter. He testified that the signature appearing
in the holographic will was similar to that of the deceased, Matilde Seo
Vda. de Ramonal, but he can not be sure.
The fifth witness presented was Mrs. Teresita Vedad, an employee of the
Department of Environment and Natural Resources, Region 10. She testified
that she processed the application of the deceased for pasture permit and
was familiar with the signature of the deceased, since the deceased signed
documents in her presence, when the latter was applying for pasture
permit.
Finally, Evangeline Calugay, one of the respondents, testified that she had
lived with the deceased since birth, and was in fact adopted by the latter.
That after a long period of time she became familiar with the signature of
the deceased. She testified that the signature appearing in the holographic
will is the true and genuine signature of Matilde Seo Vda. de Ramonal.
LLphil
The holographic will which was written in Visayan, is translated in English as
follows:
"Instruction
"August 30, 1978
"1. My share at Cogon, Raminal Street, for Evangeline Calugay.
"(Sgd) Matilde Vda de Ramonal
"August 30, 1978
"2. Josefina Salcedo must be given 1,500 square meters at Pinikitan Street.
"(Sgd) Matilde Vda de Ramonal
"August 30, 1978
22
"3. My jewelry's shall be divided among:
"1. Eufemia Patigas
"2. Josefina Salcedo
"3. Evangeline Calugay
"(Sgd) Matilde Vda de Ramonal
"August 30, 1978
"4. I bequeath my one (1) hectare land at Mandumol, Indahag to
Evangeline R. Calugay
"(Sgd) Matilde Vda de Ramonal
"August 30, 1978
"5. Give the 2,500 Square Meters at Sta. Cruz Ramonal Village in favor of
Evangeline R. Calugay, Helen must continue with the Sta. Cruz, once I am
no longer around.
"(Sgd) Matilde Vda de Ramonal
"August 30, 1978
"6. Bury me where my husband Justo is ever buried.
"(Sgd) Matilde Vda de Ramonal
"August 30, 1978
"Gene and Manuel:
"Follow my instruction in order that I will rest peacefully.
"Mama
"Matilde Vda de Ramonal
On October 9, 1995, the Court of Appeals, rendered decision 9 ruling that
the appeal was meritorious. Citing the decision in the case of Azaola vs.
Singson, 109 Phil. 102, penned by Mr. Justice J. B. L. Reyes, a recognized
authority in civil law, the Court of Appeals held:
". . . even if the genuineness of the holographic will were contested, we are
of the opinion that Article 811 of our present civil code can not be
interpreted as to require the compulsory presentation of three witnesses to
identify the handwriting of the testator, under penalty of having the
probate denied. Since no witness may have been present at the execution
of the holographic will, none being required by law (art. 810, new civil
code), it becomes obvious that the existence of witnesses possessing the
requisite qualifications is a matter beyond the control of the proponent. For
it is not merely a question of finding and producing any three witnesses;
they must be witnesses "who know the handwriting and signature of the
testator" and who can declare (truthfully, of course, even if the law does
not express) "that the will and the signature are in the handwriting of the
testator." There may be no available witness acquainted with the testator's
hand; or even if so familiarized, the witness may be unwilling to give a
positive opinion. Compliance with the rule of paragraph 1 of article 811
may thus become an impossibility. That is evidently the reason why the
second paragraph of article 811 prescribes that
"in the absence of any competent witness referred to in the preceding
paragraph, and if the court deems it necessary, expert testimony may be
resorted to."
"As can be seen, the law foresees the possibility that no qualified witness
may be found (or what amounts to the same thing, that no competent
witness may be willing to testify to the authenticity of the will), and provides
for resort to expert evidence to supply the deficiency. Cdpr
"It may be true that the rule of this article (requiring that three witnesses be
presented if the will is contested and only one if no contest is had) was
derived from the rule established for ordinary testaments (CF Cabang vs.
Delfinado, 45 PHIL 291; Tolentino v. Francisco, 57 PHIL 742). But it can not be
ignored that the requirement can be considered mandatory only in case
of ordinary testaments, precisely because the presence of at least three
witnesses at the execution of ordinary wills is made by law essential to their
validity (Art. 805). Where the will is holographic, no witness need be present
(art. 10), and the rule requiring production of three witnesses must be
deemed merely permissive if absurd results are to be avoided.
"Again, under Art. 811, the resort to expert evidence is conditioned by the
words "if the court deem it necessary", which reveal that what the law
deems essential is that the court should be convinced of the will's
authenticity. Where the prescribed number of witnesses is produced and
the court is convinced by their testimony that the will is genuine, it may
consider it unnecessary to call for expert evidence. On the other hand, if
no competent witness is available, or none of those produced is
convincing, the court may still, and in fact it should resort to handwriting
experts. The duty of the court, in fine, is to exhaust all available lines of
inquiry, for the state is as much interested as the proponent that the true
intention of the testator be carried into effect.
"Paraphrasing Azaola vs. Singson, even if the genuineness of the
holographic will were contested, Article 811 of the civil code cannot be
interpreted as to require the compulsory presentation of three witnesses to
identify the handwriting of the testator, under penalty of the having the
probate denied. No witness need be present in the execution of the
holographic will. And the rule requiring the production of three witnesses is
merely permissive. What the law deems essential is that the court is
convinced of the authenticity of the will. Its duty is to exhaust all available
lines of inquiry, for the state is as much interested in the proponent that the
true intention of the testator be carried into effect. And because the law
leaves it to the trial court to decide if experts are still needed, no
unfavorable inference can be drawn from a party's failure to offer expert
evidence, until and unless the court expresses dissatisfaction with the
testimony of the lay witnesses. 10
According to the Court of Appeals, Evangeline Calugay, Matilde Ramonal
Binanay and other witnesses definitely and in no uncertain terms testified
that the handwriting and signature in the holographic will were those of the
testator herself.
Thus, upon the unrebutted testimony of appellant Evangeline Calugay and
witness Matilde Ramonal Binanay, the Court of Appeals sustained the
authenticity of the holographic will and the handwriting and signature
therein, and allowed the will to probate. LLjur
Hence, this petition.
The petitioners raise the following issues:
(1) Whether or not the ruling of the case of Azaola vs. Singson, 109 Phil. 102,
relied upon by the respondent Court of Appeals, was applicable to the
case.
(2) Whether or not the Court of Appeals erred in holding that private
respondents had been able to present credible evidence to prove that the
date, text, and signature on the holographic will were written entirely in the
hand of the testatrix.
(3) Whether or not the Court of Appeals erred in not analyzing the signatures
in the holographic will of Matilde Seo Vda. de Ramonal.
In this petition, the petitioners ask whether the provisions of Article 811 of the
Civil Code are permissive or mandatory. The article provides, as a
requirement for the probate of a contested holographic will, that at least
three witnesses explicitly declare that the signature in the will is the genuine
signature of the testator.
We are convinced, based on the language used, that Article 811 of the
Civil Code is mandatory. The word "shall" connotes a mandatory order. We
have ruled that "shall" in a statute commonly denotes an imperative
obligation and is inconsistent with the idea of discretion and that the
presumption is that the word "shall," when used in a statute is mandatory."
11
Laws are enacted to achieve a goal intended and to guide against an evil
or mischief that aims to prevent. In the case at bar, the goal to achieve is
to give effect to the wishes of the deceased and the evil to be prevented
is the possibility that unscrupulous individuals who for their benefit will
employ means to defeat the wishes of the testator.
So, we believe that the paramount consideration in the present petition is
to determine the true intent of the deceased. An exhaustive and objective
consideration of the evidence is imperative to establish the true intent of
the testator. LLpr
23
It will be noted that not all the witnesses presented by the respondents Q. Mrs. Binanay, when you were asked by counsel for the petitioners if the
testified explicitly that they were familiar with the handwriting of the Q. Why do you say so? late Matilde Seno vda de Ramonal left a will you said, yes?
testator. In the case of Augusto Neri, clerk of court, Court of First Instance,
Misamis Oriental, he merely identified the record of Special Proceedings A. Because we sometimes post a record of accounts in behalf of Matilde A. Yes, sir.
No. 427 before said court. He was not presented to declare explicitly that Vda. De Ramonal.
the signature appearing in the holographic was that of the deceased. Q. Who was in possession of that will?
Q. How is this record of accounts made? How is this reflected?
Generosa E. Senon, the election registrar of Cagayan de Oro City, was A. I.
presented to identify the signature of the deceased in the voters' affidavit, A. In handwritten. 14
which was not even produced as it was no longer available. Q. Since when did you have the possession of the will?
xxx xxx xxx
Matilde Ramonal Binanay, on the other hand, testified that: Q. In addition to collection of rentals, posting records of accounts of A. It was in my mother's possession.
tenants and deed of sale which you said what else did you do to acquire
Q. And you said for eleven (11) years Matilde Vda de Ramonal resided with familiarity of the signature of Matilde Vda De Ramonal? prcd Q. So, it was not in your possession?
your parents at Pinikitan, Cagayan de Oro City. Would you tell the court
what was your occupation or how did Matilde Vda de Ramonal keep A. Posting records. A. Sorry, yes.
herself busy that time?
Q. Aside from that? Q. And when did you come into possession since as you said this was
A. Collecting rentals. originally in the possession of your mother?
A. Carrying letters.
Q. From where? A. 1985. 17
Q. Letters of whom?
A. From the land rentals and commercial buildings at Pabayo-Gomez xxx xxx xxx
streets. 12 A. Matilde Q. Now, Mrs. Binanay was there any particular reason why your mother left
that will to you and therefore you have that in your possession?
xxx xxx xxx Q. To whom?
Q. Who sometime accompany her? A. It was not given to me by my mother, I took that in the aparador when
A. To her creditors. 15 she died.
A. I sometimes accompany her.
xxx xxx xxx Q. After taking that document you kept it with you?
Q. In collecting rentals does she issue receipts? Q. You testified that at the time of her death she left a will. I am showing to
you a document with its title "tugon" is this the document you are referring A. I presented it to the fiscal.
A. Yes, sir. 13 to?
Q. For what purpose?
xxx xxx xxx A. Yes, sir.
Q. Showing to you the receipt dated 23 October 1979, is this the one you A. Just to seek advice.
are referring to as one of the receipts which she issued to them? Q. Showing to you this exhibit "S", there is that handwritten "tugon", whose
handwriting is this? Q. Advice of what?
A. Yes, sir.
A. My aunt. A. About the will. 18
Q. Now there is that signature of Matilde vda. De Ramonal, whose signature
is that Mrs. Binanay? Q. Why do you say this is the handwriting of your aunt? In her testimony it was also evident that Ms. Binanay kept the fact about
the will from petitioners, the legally adopted children of the deceased.
A. Matilde vda. De Ramonal. A. Because I am familiar with her signature. 16 Such actions put in issue her motive of keeping the will a secret to petitioners
and revealing it only after the death of Matilde Seo Vda. de Ramonal.
Q. Why do you say that that is a signature of Matilde vda. De Ramonal? What Ms. Binanay saw were pre-prepared receipts and letters of the cdphil
deceased, which she either mailed or gave to her tenants. She did not
A. I am familiar with her signature. declare that she saw the deceased sign a document or write a note. Cdpr In the testimony of Ms. Binanay, the following were established:

Q. Now, you tell the court Mrs. Binanay, whether you know Matilde vda de
Ramonal kept records of the accounts of her tenants?
A. Yes, sir.
Further, during the cross-examination, the counsel for petitioners elicited the Q. Now, in 1978 Matilde Seno Vda de Ramonal was not yet a sickly person
fact that the will was not found in the personal belongings of the deceased is that correct?
but was in the possession of Ms. Binanay. She testified that:
A. Yes, sir.
24
Q. She was up and about and was still uprightly and she could walk agilely
and she could go to her building to collect rentals, is that correct?
A. Yes, sir. 19
xxx xxx xxx
Q. Now, let us go to the third signature of Matilde Ramonal. Do you know
that there are retracings in the word Vda.?
A. Yes, a little. The letter L is continuous.
Q. And also in Matilde the letter L is continued to letter D?
A. Yes, sir.
Q. Again the third signature of Matilde Vda de Ramonal the letter L in
Matilde is continued towards letter D.
A. Yes, sir.
Q. And there is a retracing in the word Vda.?
A. Yes, sir. 20
xxx xxx xxx
Q. Now, that was 1979, remember one year after the alleged holographic
will. Now, you identified a document marked as Exhibit R. This is dated
January 8, 1978 which is only about eight months from August 30, 1978. Do
you notice that the signature Matilde Vda de Ramonal is beautifully written
and legible?
A. Yes, sir the handwriting shows that she was very exhausted.
Q. You just say that she was very exhausted while that in 1978 she was
healthy was not sickly and she was agile. Now, you said she was exhausted?
LexLib
A. In writing.
Q. How did you know that she was exhausted when you were not present
and you just tried to explain yourself out because of the apparent
inconsistencies?
A. That was I think. (sic)
Q. Now, you already observed this signature dated 1978, the same year as
the alleged holographic will. In exhibit I, you will notice that there is no
retracing; there is no hesitancy and the signature was written on a fluid
movement. . . . And in fact, the name Eufemia R. Patigas here refers to one
of the petitioners?
A. Yes, sir.
Q. You will also notice Mrs. Binanay that it is not only with the questioned
signature appearing in the alleged holographic will marked as Exhibit X but
in the handwriting themselves, here you will notice the hesitancy and
tremors, do you notice that?
A. Yes, sir. 21
Evangeline Calugay declared that the holographic will was written, dated
and signed in the handwriting of the testator. She testified that:
Q. You testified that you stayed with the house of the spouses Matilde and
Justo Ramonal for the period of 22 years. Could you tell the court the
services if any which you rendered to Matilde Ramonal?
A. During my stay I used to go with her to the church, to the market and
then to her transactions.
Q. What else? What services that you rendered?
A. After my college days I assisted her in going to the bank, paying taxes
and to her lawyer.
Q. What was your purpose of going to her lawyer?
A. I used to be her personal driver.
Q. In the course of your stay for 22 years did you acquire familiarity of the
handwriting of Matilde Vda de Ramonal?
A. Yes, sir.
Q. How come that you acquired familiarity?
A. Because I lived with her since birth. 22
xxx xxx xxx
Q. Now, I am showing to you Exhibit S which is captioned "tugon" dated
Agosto 30, 1978 there is a signature here below item No. 1, will you tell this
court whose signature is this? cdtai
A. Yes, sir, that is her signature.
Q. Why do you say that is her signature?
A. I am familiar with her signature. 23
So, the only reason that Evangeline can give as to why she was familiar with
the handwriting of the deceased was because she lived with her since birth.
She never declared that she saw the deceased write a note or sign a
document.
The former lawyer of the deceased, Fiscal Waga, testified that:
Q. Do you know Matilde Vda de Ramonal?
A. Yes, sir I know her because she is my godmother the husband is my
godfather. Actually I am related to the husband by consanguinity.
Q. Can you tell the name of the husband?
A. The late husband is Justo Ramonal. 24
xxx xxx xxx
Q. Can you tell this court whether the spouses Justo Ramonal and Matilde
Ramonal have legitimate children?
A. As far as I know they have no legitimate children. 25
xxx xxx xxx
Q. You said after becoming a lawyer you practice your profession? Where?
A. Here in Cagayan de Oro City.
Q. Do you have services rendered with the deceased Matilde vda de
Ramonal?
A. I assisted her in terminating the partition, of properties.
Q. When you said assisted, you acted as her counsel? Any sort of counsel
as in what case is that, Fiscal?
A. It is about the project partition to terminate the property, which was
under the court before. 26
xxx xxx xxx
Q. Appearing in special proceeding no. 427 is the amended inventory
which is marked as exhibit N of the estate of Justo Ramonal and there
appears a signature over the type written word Matilde vda de Ramonal,
whose signature is this? LLphil
A. That is the signature of Matilde Vda de Ramonal.
Q. Also in exhibit n-3, whose signature is this?
A. This one here that is the signature of Mrs. Matilde vda de Ramonal. 27
xxx xxx xxx
Q. Aside from attending as counsel in that Special Proceeding Case No.
427 what were the other assistance wherein you were rendering
professional service to the deceased Matilde Vda de Ramonal?
A. I can not remember if I have assisted her in other matters but if there are
documents to show that I have assisted then I can recall. 28
25

xxx xxx xxx
Q. Now, I am showing to you exhibit S which is titled "tugon", kindly go over
this document, Fiscal Waga and tell the court whether you are familiar with
the handwriting contained in that document marked as exhibit "S"?
A. I am not familiar with the handwriting.
Q. This one, Matilde Vda de Ramonal, whose signature is this?
A. I think this signature here it seems to be the signature of Mrs. Matilde vda
de Ramonal.
Q. Now, in item No. 2 there is that signature here of Matilde Vda de
Ramonal, can you tell the court whose signature is this?
A. Well, that is similar to that signature appearing in the project of partition.
Q. Also in item no. 3 there is that signature Matilde Vda de Ramonal, can
you tell the court whose signature is that?
A. As I said, this signature also seems to be the signature of Matilde vda de
Ramonal. LLjur
Q. Why do you say that?
A. Because there is a similarity in the way it is being written.
Q. How about this signature in item no. 4, can you tell the court whose
signature is this?
A. The same is true with the signature in item no. 4. It seems that they are
similar. 29
xxx xxx xxx
Q. Mr. Prosecutor, I heard you when you said that the signature of Matilde
Vda de Ramonal Appearing in exhibit S seems to be the signature of
Matilde vda de Ramonal?
A. Yes, it is similar to the project of partition.
Q. So you are not definite that this is the signature of Matilde vda de
Ramonal. You are merely supposing that it seems to be her signature
because it is similar to the signature of the project of partition which you
have made?
A. That is true. 30
From the testimonies of these witnesses, the Court of Appeals allowed the
will to probate and disregard the requirement of three witnesses in case of
contested holographic will, citing the decision in Azaola vs. Singson, 31
ruling that the requirement is merely directory and not mandatory. LLpr
In the case of Ajero vs. Court of Appeals, 32 we said 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."
However, we cannot eliminate the possibility of a false document being
adjudged as the will of the testator, which is why if the holographic will is
contested, that law requires three witnesses to declare that the will was in
the handwriting of the deceased.
The will was found not in the personal belongings of the deceased but with
one of the respondents, who kept it even before the death of the
deceased. In the testimony of Ms. Binanay, she revealed that the will was
in her possession as early as 1985, or five years before the death of the
deceased. LexLib
There was no opportunity for an expert to compare the signature and the
handwriting of the deceased with other documents signed and executed
by her during her lifetime. The only chance at comparison was during the
cross-examination of Ms. Binanay when the lawyer of petitioners asked Ms.
Binanay to compare the documents which contained the signature of the
deceased with that of the holographic will and she is not a handwriting
expert. Even the former lawyer of the deceased expressed doubts as to the
authenticity of the signature in the holographic will.
A visual examination of the holographic will convince us that the strokes are
different when compared with other documents written by the testator. The
signature of the testator in some of the disposition is not readable. There
were uneven strokes, retracing and erasures on the will.
Comparing the signature in the holographic will dated August 30, 1978, 33
and the signatures in several documents such as the application letter for
pasture permit dated December 30, 1980, 34 and a letter dated June 16,
1978, 35 the strokes are different. In the letters, there are continuous flows of
the strokes, evidencing that there is no hesitation in writing unlike that of the
holographic will. We, therefore, cannot be certain that the holographic will
was in the handwriting by the deceased.
IN VIEW WHEREOF, the decision appealed from is SET ASIDE. The records are
ordered remanded to the court of origin with instructions to allow petitioners
to adduce evidence in support of their opposition to the probate of the
holographic will of the deceased Matilde Seo Vda. de Ramonal. cdtai
No costs.
26
[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.
RELOVA, J p:
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 holographic will itself, and not an alleged copy thereof,
must be produced, otherwise it would produce no effect, as held in Gan 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 document itself as material proof of authenticity." But, in Footnote 8 of said
the order was contrary to law and settled pronouncements and rulings of decision, it says that "Perhaps it may be proved by a photographic or
the Supreme Court, to which the appellant in turn filed an opposition. photostatic copy. Even a mimeographed or carbon copy; or by other
similar means, if any, whereby the authenticity of the handwriting of the
On July 23, 1979, the court set aside its order of February 23, 1979 and deceased may be exhibited and tested before the probate court."
dismissed the petition for the probate of the will of Ricardo B. Bonilla. The Evidently, the photostatic or xerox copy of the lost or destroyed holographic
court said: will may be admitted because then the authenticity of the handwriting of
'. . . It is our considered opinion that once the original copy of the the deceased can be determined by the probate court.
holographic will is lost, a copy thereof cannot stand in lieu of the original.
'In the case of Gan vs. Yap, 104 Phil. 509, 522, the Supreme Court held that WHEREFORE, the order of the lower court dated October 3, 1979, denying
'in the matter of holographic wills the law, it is reasonable to suppose, appellant's motion for reconsideration dated August 9, 1979, of the Order
regards the document itself as the material proof of authenticity of said wills. dated July 23, 1979, dismissing her petition to approve the will of the late
'MOREOVER, this Court notes that the alleged holographic will was Ricardo B. Bonilla, is hereby SET ASIDE.
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 SO ORDERED.
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 can
not 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 Gan 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
27
[G.R. Nos. 75005-06. February 15, 1990.]
JOSE RIVERA, petitioner, vs. INTERMEDIATE APPELLATE COURT and ADELAIDO
J. RIVERA, respondents.
CRUZ, J p:
Was there only one Venancio Rivera in Mabalacat, Pampanga, or were
there two?
On May 30, 1975, a prominent and wealthy resident of that town named
Venancio Rivera died. On July 28, 1975, Jose Rivera, claiming to be the only
surviving legitimate son of the deceased, filed a petition for the issuance of
letters of administration over Venancio's estate. Docketed as SP No. 1076,
this petition was opposed by Adelaido J. Rivera, who denied that Jose was
the son of the decedent. Adelaido averred that Venancio was his father
and did not die intestate but in fact left two holographic wills. 1
On November 7, 1975, Adelaido J. Rivera filed, also with the Regional Trial
Court of Angeles City, a petition for the probate of the holographic wills.
Docketed as SP No. 1091, this petition was in turn opposed by Jose Rivera,
who reiterated that he was the sole heir of Venancio's intestate estate. 2
On November 11, 1975, the two cases were consolidated. Adelaido J.
Rivera was later appointed special administrator. After joint trial, Judge
Eliodoro B. Guinto found that Jose Rivera was not the son of the decedent
but of a different Venancio Rivera who was married to Maria Vital. The
Venancio Rivera whose estate was in question was married to Maria
Jocson, by whom he had seven children, including Adelaido. Jose Rivera
had no claim to this estate because the decedent was not his father. The
holographic wills were also admitted to probate. 3
On appeal, the decision of the trial court was affirmed by the then
Intermediate Appellate Court. 4 Its decision is now the subject of this
petition, which urges the reversal of the respondent court.
In support of his claim that he was the sole heir of the late Venancio Rivera,
Jose sought to show that the said person was married in 1928 to Maria Vital,
who was his mother. He submitted for this purpose Exhibit A, the marriage
certificate of the couple, and Exhibit B, his own baptismal certificate where
the couple was indicated as his parents. The petitioner also presented
Domingo Santos, who testified that Jose was indeed the son of the couple
and that he saw Venancio and Jose together several times. 5 Jose himself
stressed that Adelaido considered him a half-brother and kissed his hand
as a sign of respect whenever they met. He insisted that Adelaido and his
brothers and sisters were illegitimate children, sired by Venancio with Maria
Jocson. 6
Adelaido, for his part, maintained that he and his brothers and sisters were
born to Venancio Rivera and Maria Jocson, who were legally married and
lived as such for many years. He explained that he could not present his
parents' marriage certificate because the record of marriages for 1942 in
Mabalacat were destroyed when the town was burned during the war, as
certified by Exhibit 6. 7 He also submitted his own birth certificate and those
of his sisters Zenaida and Yolanda Rivera, who were each described therein
as the legimitate children of Venancio Rivera and Maria Jocson. 8 Atty.
Regalado P. Morales, then 71 years of age, affirmed that he knew the
deceased and his parents, Magno Rivera and Gertrudes de los Reyes, and
it was during the Japanese occupation that Venancio introduced to him
Maria Jocson as his wife. 9 To prove that there were in fact two persons by
the same name of Venancio Rivera, Adelaido offered Venancio Rivera's
baptismal certificate showing that his parents were Magno Rivera and
Gertrudes de los Reyes, 10 as contrasted with the marriage certificate
submitted by Jose, which indicated that the Venancio Rivera subject
thereof was the son of Florencio Rivera and Estrudez Reyes. 11 He also
denied kissing Jose's hand or recognizing him as a brother. 12
We find in favor of Adelaido J. Rivera.
It is true that Adelaido could not present his parents' marriage certificate
because, as he explained it, the marriage records for 1942 in the
Mabalacat civil registry were burned during the war. Even so, he could still
rely on the presumption of marriage, since it is not denied that Venancio
Rivera and Maria Jocson lived together as husband and wife for many
years, begetting seven children in all during that time.
According to Article 220 of the Civil Code:
In case of doubt, all presumptions favor the solidarity of the family. Thus
every intendment of the law or fact leans toward the validity of marriage,
the indissolubility of the marriage bonds, the legitimacy of children, . . .
The Rules of Court, in Rule 131, provides:
SEC. 3. Disputable presumptions. The following presumptions are
satisfactory if uncontradicted, but may be contradicted and overcome by
other evidence:
xxx xxx xxx
(aa) That a man and woman deporting themselves as husband and wife
have entered into a lawful contract of marriage.
By contrast, although Jose did present his parents' marriage certificate,
Venancio was described therein as the son of Florencio Rivera. Presumably,
he was not the same Venancio Rivera described in Exhibit 4, his baptismal
certificate, as the son of Magno Rivera. While we realize that such
baptismal certificate is not conclusive evidence of Venancio's filiation
(which is not the issue here) it may nonetheless be considered to determine
his real identity. Jose insists that Magno and Florencio are one and the same
person, arguing that it is not uncommon for a person to be called by
different names. The Court is not convinced. There is no evidence that
Venancio's father was called either Magno or Florencio. What is more likely
is that two or more persons may live at the same time and bear the same
name, even in the same community. That is what the courts below found in
the cases at bar.
What this Court considers particularly intriguing is why, if it is true that he was
the legitimate son of Venancio Rivera, Jose did not assert his right as such
when his father was still alive. By his own account, Jose supported himself
and presumably also his mother Maria Vital as a gasoline attendant
and driver for many years. All the time, his father was residing in the same
town and obviously prospering and available for support. His alleged
father was openly living with another woman and raising another family,
but this was apparently accepted by Jose without protest, taking no step
whatsoever to invoke his status. If, as he insists, he and Venancio Rivera
were on cordial terms, there is no reason why the father did not help the
son and instead left Jose to fend for himself as a humble worker while his
other children by Maria Jocson enjoyed a comfortable life. Such paternal
discrimination is difficult to understand, especially if it is considered
assuming the claims to be true that Jose was the oldest and, by his own
account, the only legitimate child of Venancio Rivera.
And there is also Maria Vital, whose attitude is no less incomprehensible. As
Venancio's legitimate wife if indeed she was she should have objected
when her husband abandoned her and founded another family by
another woman, and in the same town at that. Seeing that the children of
Maria Jocson were being raised well while her own son Jose was practically
ignored and neglected, she nevertheless did not demand for him at least
support, if not better treatment, from his legitimate father. It is unnatural for
a lawful wife to say nothing if she is deserted in favor of another woman
and for a caring mother not to protect her son's interests from his wayward
father's neglect. The fact is that this forsaken wife never demanded support
from her wealthy if errant husband. She did not file a complaint for bigamy
or concubinage against Venancio Rivera and Maria Jocson, the alleged
partners in crime and sin. Maria Vital was completely passive and
complaisant.
Significantly, as noted by the respondent court, Maria Vital was not even
presented at the trial to support her son's allegations that she was the
decedent's lawful wife. Jose says this was not done because she was
already old and bedridden then. But there was no impediment to the
taking of her deposition in her own house. No effort was made toward this
end although her testimony was vital to the petitioner's cause. Jose
dismisses such testimony as merely "cumulative," but this Court does not
agree. Having alleged that Maria Jocson's marriage to Venancio Rivera
was null and void, Jose had the burden of proving that serious allegation.
We find from the evidence of record that the respondent court did not err
in holding that the Venancio Rivera who married Maria Jocson in 1942 was
not the same person who married Maria Vital, Jose's legitimate mother, in
1928. Jose belonged to a humbler family which had no relation whatsoever
with the family of Venancio Rivera and Maria Vital. This was more
prosperous and prominent. Except for the curious identity of names of the
28
head of each, there is no evidence linking the two families or showing that
the deceased Venancio Rivera was the head of both.

Now for the holographic wills. The respondent court considered them valid
because it found them to have been written, dated and signed by the
testator himself in accordance with Article 810 of the Civil Code. It also held
there was no necessity of presenting the three witnesses required under
Article 811 because the authenticity of the wills had not been questioned.

The existence and therefore also the authenticity of the holographic wills
were questioned by Jose Rivera. In his own petition in SP No. 1076, he
declared that Venancio Rivera died intestate; and in SP No. 1091, he
denied the existence of the holographic wills presented by Adelaido Rivera
for probate. In both proceedings, Jose Rivera opposed the holographic
wills submitted by Adelaido Rivera and claimed that they were spurious.
Consequently, it may be argued, the respondent court should have
applied Article 811 of the Civil Code, providing as follows:

In the probate of a holographic will, 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 of such witnesses shall be required.

The flaw in this argument is that, as we have already determined, Jose

Rivera is not the son of the deceased Venancio Rivera whose estate is in
question. Hence, being a mere stranger, he had no personality to contest
the wills and his opposition thereto did not have the legal effect of requiring
the three witnesses. The testimony of Zenaida and Venancio Rivera, Jr., who
authenticated the wills as having been written and signed by their father,
was sufficient.

WHEREFORE, the petition is DENIED and the challenged decision is

AFFIRMED, with costs against the petitioner.

SO ORDERED.

29
ARTICLE 814
G.R. No. L-26306 April 27, 1988 TESTATE ESTATE OF THE LATE GREGORIO
VENTURA MARIA VENTURA, executrix- appellant , MIGUEL VENTURA and
JUANA CARDONA, heirs-appellants, vs.
GREGORIA VENTURA and HER HUSBAND, EXEQUIEL VICTORIO, MERCEDES
VENTURA and HER HUSBAND, PEDRO D. CORPUZ, oppositors-appellees
PARAS, J p:
This is an appeal from the order of the Court of First Instance of Nueva Ecija,
Guimba, Branch V in Special Proceedings No. 812, Testate of the late
Gregorio Ventura, dated October 5, 1965, removing the appellant Maria
Ventura as executrix and administratrix of the estate of the late Gregorio
Ventura, and in her place appointing the appellees Mercedes Ventura and
Gregoria Ventura as joint administratrices of the estate. (Record on Appeal,
pp. 120-131.) LLphil
Appellant Maria Ventura is the illegitimate daughter of the deceased
Gregorio Ventura while Miguel Ventura and Juana Cardona are his son
and surviving spouse who are also the brother and mother of Maria
Ventura. On the other hand, appellees Mercedes and Gregoria Ventura
are the deceased's legitimate children with his former wife, the late Paulina
Simpliciano (Record on Appeal, p. 122) but the paternity of appellees was
denied by the deceased in his will (Record on Appeal, p. 4).
On December 14, 1953, Gregorio Ventura filed a petition for the probate of
his will which did not include the appellees and the petition was docketed
as Special Proceedings No. 812 (Record on Appeal, pp. 1-3). In the said will,
the appellant Maria Ventura, although an illegitimate child, was named
and appointed by the testator to be the executrix of his will and the
administratrix of his estate (Record on Appeal, p. 7).
In due course, said will was admitted to probate on January 14, 1954
(Record on Appeal, pp. 8-10). Gregorio Ventura died on September 26,
1955. On October 10, 1955, the appellant Maria Ventura filed a motion for
her appointment as executrix and for the issuance of letters testamentary
in her favor (Record on Appeal, pp. 10-11). On October 17, 1955, Maria
Ventura was appointed executrix and the corresponding letters
testamentary was issued in her favor (Record on Appeal, pp. 11-12).
On or about July 26, 1956, Maria Ventura submitted an inventory of the
estate of Gregorio Ventura (Record on Appeal, pp. 12-20).
On June 17, 1960, she filed her accounts of administration for the years 1955
to 1960, inclusive. (Record on Appeal, pp. 20-27). Said account of
administration was opposed by the spouses Mercedes Ventura and Pedro
Corpuz on July 25, 1960 (Record on Appeal, pp. 27-33) and by Exequiel
Victorio and Gregoria Ventura on August 5, 1963 (Record on Appeal, pp.
46-50). Both oppositions assailed the veracity of the report as not reflecting
the true income of the estate and the expenses which allegedly are not
administration expenses. But on January 25, 1961, Maria Ventura filed a
motion to hold in abeyance the approval of the accounts of administration
or to have their approval without the opposition of the spouses Mercedes
Ventura and Pedro Corpuz and Gregoria Ventura and Exequiel Victorio on
the ground that the question of the paternity of Mercedes Ventura and
Gregoria Ventura is still pending final determination before the Supreme
Court and that should they be adjudged the adulterous children of testator,
as claimed, they are not entitled to inherit nor to oppose the approval of
the accounts of administration (Record on Appeals, pp. 33-36). Spouses
Mercedes Ventura and Pedro Corpuz filed on February 2, 1961 their
opposition to the motion to hold in abeyance the approval of the accounts
of administration on the ground that Mercedes and Gregoria Ventura had
already been declared by the Court of First Instance in Civil Cases No. 1064
and 1476, which cases are supposed to be pending before the Supreme
Court, as the legitimate children of Gregorio Ventura, hence, they have
reason to protect their interest (Record on Appeal, pp. 36-39). On February
9, 1961, the motion to hold in abeyance the approval of the accounts was
denied (Record on Appeal, pp. 39-40).
It appears that on July 12, 1963, the Court set the case for pre-trial on August
7, 1963 in connection with the accounts of the executrix Maria Ventura
dated June 17, 1960 and the Motion to Annul Provision of Will dated July 14,
1962 of Mercedes Ventura (Record on Appeal, p. 45).
On October 22, 1963, four motions were filed by Mercedes Ventura and
Gregoria Ventura, namely: (1) motion to remove the executrix Maria
Ventura which was supplemented on April 27, 1965; (2) motion to require
her to deposit the harvest of palay of the property under administration in
a bonded warehouse; (3) motion to render an accounting of the proceeds
and expenses of Administration; and (4) motion to require her to include in
the inventory of the estate certain excluded properties (Record on Appeal,
pp. 50-53; 71). An opposition to said motions was filed by the heirs Juana
Cardona and Miguel Ventura and by the executrix Maria Ventura herself
(Record on Appeal, pp. 56-61; 61-70 and 71).
On motion of counsel for Exequiel Victorio and Gregoria Ventura the joint
motions to require an Up-to-date Accounting and to Require Executrix
Ventura to Include Excluded Properties in Her Inventory were ordered
withdrawn (Order dated February 2, 1965, Record on Appeal, p. 73). The
other two motions were however set for hearing.
The grounds of aforesaid joint motions to remove the executrix Maria
Ventura are: (1) that she is grossly incompetent; (2) that she has maliciously
and purposely concealed certain properties of the estate in the inventory;
(3) that she is merely an illegitimate daughter who can have no harmonious
relations with the appellees; (4) that the executrix has neglected to render
her accounts and failed to comply with the Order of the Court of
December 12, 1963, requiring her to file her accounts of administration for
the years 1961 to 1963 (Record on Appeal, pp. 70 and 75-76) and the Order
of June 11, 1964, reiterating aforesaid Order of December 12, 1963 (Record
on Appeal, p. 76); and (5) that she is with permanent physical defect
hindering her from efficiently performing her duties as an executrix (Record
on Appeal, pp. 50-53 and 74-79). LexLib
On May 17, 1965, the executrix Maria Ventura finally submitted her
accounts of administration covering the period 1961 to 1965 (Record on
Appeal, pp. 79-84) which were again opposed by the spouses Exequiel
Victorio and Gregoria Ventura on September 21, 1965 and by the spouses
Mercedes Ventura and Pedro Corpuz on September 29, 1965 (Record on
Appeal, pp. 106-120). On June 2, 1965, the executrix filed her supplemental
opposition to the aforesaid four motions, and prayed that the joint
supplemental motion to remove the executrix be denied or held in
abeyance until after the status of Mercedes and Gregoria Ventura as heirs
of the testator is finally decided (Record on Appeal, pp. 85-101). On June
3, 1965, the Court, finding that the estate taxes have not been paid,
ordered the administratrix to pay the same within thirty (30) days. On
September 13, 1965, the lower court denied the suspension of the
proceedings and deferred the resolution of the joint motion to remove
executrix Maria Ventura until after the examination of the physical fitness of
said executrix to undertake her duties as such. Also, it ordered the deposit
of all palay to be harvested in the next agricultural year and subsequent
years to be deposited in a bonded warehouse to be selected by the Court
and the palay so deposited shall not be withdrawn without the express
permission of the Court (Record on Appeal, pp. 103-105). On September 21,
1965, spouses Exequiel Victorio and Gregoria Ventura filed their opposition
to the accounts of administration of Maria Ventura dated May 17, 1965,
while that of spouses Mercedes Ventura and Pedro Corpuz was filed on
September 29, 1965, both oppositions alleging among others that said
accounts do not reflect the true and actual income of the estate and that
the expenses reported thereunder are fake, exorbitant and speculative
(Record on Appeal, pp. 106-120).
On October 5, 1965, the court a quo, finding that the executrix Maria
Ventura has squandered the funds of the estate, was inefficient and
incompetent, has failed to comply with the orders of the Court in the matter
of presenting up-to-date statements of accounts and neglected to pay the
real estate taxes of the estate, rendered the questioned decision, the
dispositive portion of which reads:
"WHEREFORE, Maria Ventura is hereby removed as executrix and
administratrix of the estate and in her place Mercedes Ventura and
Gregoria Ventura are hereby appointed joint administratrices of the estate
upon filing by each of them of a bond of P7,000.00. Let letters of
administration be issued to Mercedes Ventura and Gregoria Ventura upon
their qualification.
"IT IS SO ORDERED."
(Record on Appeal, pp. 120-131).
Hence, this appeal.
In their brief, appellants Maria Ventura and spouses Juana Cardona and
Miguel Ventura assign the following errors allegedly committed by the
probate court:
30

"ASSIGNMENT OF ERRORS
I interest as joint administratrices of the estate of the deceased Gregorio
"The lower court erred in ordering the removal of Maria Ventura as executrix
and administratrix of the will and estate of the deceased Gregorio Ventura
without giving her full opportunity to be heard and to present all her
evidence.
II
The lower court erred in finding that the executrix Maria Ventura had
squandered and dissipated the funds of the estate under her
administration.
III
The lower court erred in finding that the executrix Maria Ventura was
inefficient and incompetent.
IV
That, considering the circumstances surrounding the case, the lower court
erred in finding that the failure of Maria Ventura to submit her periodical
accounting had justified her removal as executrix.
V The crucial issue in this case is whether or not the removal of Maria Ventura
The lower court erred in considering as an established fact that the
appellees Mercedes Ventura and Gregoria Ventura are the legitimate
daughters of the deceased Gregorio Ventura.
VI
The lower court erred in finding that the devises and bequests in favor of
Maria Ventura and Miguel Ventura as specified in paragraph 8 of the last
Will and Testament of the late Gregorio Ventura have ipso facto been
annulled.
VII
The lower court erred in allowing the appellees Mercedes Ventura and
Gregoria Ventura to intervene in the hearing of the accounts of
administration submitted by the executrix Maria Ventura and/or in not
suspending the hearing of the said accounts until the said appellees have
finally established their status as legitimate children of the deceased
Gregorio Ventura. cdll
VIII
The lower court erred in appointing (even without a proper petition for
appointment and much less a hearing on the appointment of) the
appellees Mercedes Ventura and Gregoria Ventura who have an adverse
Ventura.
IX
The lower court erred in not appointing the surviving widow, Juana
Cardona, or Miguel Ventura, as administratrix of the estate of Gregorio
Ventura in case the removal of Maria Ventura as executrix and
administratrix thereof is legally justified.
X Mercedes Ventura and Gregoria Ventura the amount of P19,074.09 which
Considering that there are in fact two (2) factions representing opposite
interests in the estate, the lower court erred in not appointing Juana
Cardona, or Miguel Ventura, as one of the two (2) administratrices." (Joint
Brief for the Appellants, pp. 1-4)
On July 19, 1967, Atty. Arturo Tolentino (representing appellees Mercedes
Ventura and Pedro Corpuz) and Atty. Jose J. Francisco (representing
Gregoria and Exequiel Victorio), having failed to submit their respective
briefs within the period for the purpose, which expired on July 2 and May
29, 1967, respectively, the Supreme Court Resolved to consider this case
submitted for decision WITHOUT SAID APPELLEES' BRIEF (Rollo, p. 152).
as executrix is legally justified. This issue has, however, become moot and
academic in view of the decision of this Court in related cases.
At the outset, it is worthy to note that aside from the instant special
proceedings, there are two other civil cases involving the estate of the
deceased Gregorio Ventura, namely, Civil Cases Nos. 1064 and 1476. Civil
Case No. 1064 was filed on December 2, 1952 by herein appellee Gregoria
Ventura in the Court of First Instance of Nueva Ecija, Branch I, against the
other appellees herein Mercedes Ventura and their father, Gregorio
Ventura. Later Mercedes Ventura joined cause with Gregoria Ventura.
(Record on Appeal, p. 95). Gregoria and Mercedes Ventura claimed that
they are the legitimate children of Gregorio Ventura and his wife Paulina
Simpliciano, who died in 1943, and asked that one-half of the properties
described in the complaint be declared as the share of their mother in the
conjugal partnership, with them as the only forced heirs of their mother
Paulina (Joint Brief for the Appellants, pp. 53-68).
Subsequently, Civil Case No. 1476 was filed by Alipio, Eufracia and Juliana,
all surnamed Simpliciano, against Gregorio Ventura and the two sisters,
Mercedes and Gregoria Ventura, before the Court of First Instance of
Nueva Ecija, Branch I. They alleged that as the only children of Modesto
Simpliciano, sole brother of Paulina Simpliciano, they, instead of Mercedes
and Gregoria Ventura, whom they claimed are adulterous children of
Paulina with another man, Teodoro Ventura and as such are not entitled to
inherit from her, are the ones who should inherit the share of Paulina
Simpliciano in the conjugal partnership with Gregorio Ventura (Joint Brief
For The Appellants, pp. 69-79).
It appears that on November 4, 1959, after a joint hearing of Civil Cases Nos.
1064 and 1476, the lower court rendered its judgment, the dispositive
portion of which reads as follows:
"WHEREFORE, judgment is hereby rendered declaring Mercedes Ventura
and Gregoria Ventura to be the legitimate daughters of Paulina
Simpliciano and Gregorio Ventura; declaring that as such legitimate
daughters of Paulina Simpliciano they are entitled to 1/2 of the properties
described in paragraph six of the complaint; ordering the defendant Maria
Ventura, as administratrix of the estate of Gregorio Ventura to pay to
shall be divided equally between Mercedes and Gregoria Ventura;
declaring that Mercedes Ventura and Pedro Corpuz are the exclusive
owners of the properties described in the certificates of Title Nos. T-1102, T-
1212, T-1213, T-1214, Exhibits 32, 33, 34 and 35, respectively; ordering
Mercedes Ventura and Pedro D. Corpuz to pay to the conjugal partnership
of Gregorio Ventura and Paulina Simpliciano the sum of P100,000.00, one-
half of which shall pertain to the estate of Gregorio Ventura and the other
half to the estate of Paulina Simpliciano to whom Mercedes and Gregoria
Ventura have succeeded, to be divided between Mercedes and Gregoria
in equal parts; and dismissing Civil Case No. 1476. The parties are urged to
arrive at an amicable partition of the properties herein adjudicated within
twenty days from receipt of this decision. Upon their failure to do so, the
Court shall appoint commissioners to divide the properties in accordance
with the terms of the decision. Without pronouncements as to costs."
(Emphasis supplied). (Joint Brief for the Appellants, pp. 37-38.)
Thereafter, on July 14, 1962, Mercedes Ventura filed a motion to annul the
provisions of the will of the deceased Gregorio Ventura in Special
Proceedings No. 812, which motion was opposed by Miguel Ventura and
Juana Cardona and later by Maria Ventura. They claimed that the decision
dated November 4, 1959 in Civil Cases Nos. 1064 and 1476 was not yet final.
LexLib
On February 26, 1964, the trial court annulled the institution of the heirs in
the probated will of Gregorio Ventura. The motion for reconsideration of the
aforesaid order filed by executrix Maria Ventura was denied on June 11,
1964.
Accordingly, Maria Ventura appealed the February 26, 1964 and June 11,
1964 orders of the probate court in Special Proceedings No. 812 before the
Supreme Court and was docketed as G.R. No. L-23878. On May 27, 1977,
this Court, through then Associate Justice Antonio P. Barredo, ruled, as
follows:
"And so, acting on appellees' motion to dismiss appeal, it is Our considered
opinion that the decision in civil Cases Nos. 1064 and 1476 declaring that
appellees Mercedes and Gregoria Ventura are the legitimate children of
the deceased Gregorio Ventura and his wife, Paulina Simpliciano, and as
such are entitled to the annulment of the institution of heirs made in the
31
probated will of said deceased became final and executory upon the
finality of the order, approving the partition directed in the decision in
question. We need not indulge in any discussion as to whether or not, as of
the time the orders here in question were issued by the trial court said
decision had the nature of an interlocutory order only. To be sure, in the
case of Miranda, aforementioned, the opinion of the majority of the Court
may well be invoked against appellant's pose. In any event, even if the
Court were minded to modify again Miranda and go back to Fuentebella
and Zaldariaga, and it is not, as of now there can be no question that
the approval by the trial court in Civil Cases Nos. 1064 and 1476 of the
partition report of the commissioners appointed for the purpose, one of
whom, Emmanuel Mariano, is the husband of appellant, put a definite end
to those cases, leaving nothing else to be done in the trial court. That order
of approval is an appealable one, and inasmuch as no appeal has been
taken from the same, it is beyond dispute that the decision in controversy
has already become final and executory in all respects. Hence, the case
at bar has become moot and academic. (Ventura vs. Ventura, 77 SCRA
159, May 27, 1977)
As decided by the lower court and sustained by the Supreme Court,
Mercedes and Gregoria Ventura are the legitimate children of Gregorio
Ventura and his wife, the late Paulina Simpliciano. Therefore, as the nearest
of kin of Gregorio Ventura they are entitled to preference over the
illegitimate children of Gregorio Ventura, namely: Maria and Miguel
Ventura. Hence, under the aforestated preference provided in Section 6 of
Rule 78, the person or persons to be appointed administrator are Juana
Cardona, as the surviving spouse, or Mercedes and Gregoria Ventura as
nearest of kin, or Juana Cardona and Mercedes and Gregoria Ventura in
the discretion of the Court, in order to represent both interests.
PREMISES CONSIDERED, the appeal interposed by appellants Maria
Ventura, Juana Cardona and Miguel Ventura is hereby DISMISSED.
SO ORDERED.

Under Article 854 of the Civil Code, "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," and as a result, intestacy follows, thereby rendering
the previous appointment of Maria Ventura as executrix moot and
academic. This would now necessitate the appointment of another
administrator, under the following provision:

Section 6, Rule 78 of the Rules of Court:

"When and to whom letters of administration granted. If no executor is

named in the will, or the executor or executors are incompetent, refuse the
trust, or fail to give bond, or a person dies intestate, administration shall be
granted:

(a) To the surviving husband or wife, as the case may be or next of kin, or
both, in the discretion of the court, or to such person as such surviving
husband or wife, or next of kin, requests to have appointed, if competent
and willing to serve;"

xxx xxx xxx

In the case at bar, the surviving spouse of the deceased Gregorio Ventura
is Juana Cardona while the next of kin are: Mercedes and Gregoria Ventura
and Maria and Miguel Ventura. The "next of kin" has been defined as those
persons who are entitled under the statute of distribution to the decedent's
property (Cooper vs. Cooper, 43 Ind. A 620, 88 NE 341). It is generally said
that "the nearest of kin, whose interest in the estate is more preponderant,
is preferred in the choice of administrator. 'Among members of a class the
strongest ground for preference is the amount or preponderance of
interest. As between next of kin, the nearest of kin is to be preferred.'"
(Cabanas, et al. vs. Enage, et al., 40 Off. Gaz. 12 Suppl. 227; citing 12 Am.
Jur. Sec, 77, p. 416, cited in Francisco Vicente J., The Revised Rules of Court
in the Philippines, Vol. V-B, 1970 Ed., p. 23).
32
[G.R. No. 48840. December 29, 1943.]
ERNESTO M. GUEVARA, petitioner-appellant, vs. ROSARIO GUEVARA and her
husband PEDRO BUISON, respondents-appellees.
OZAETA, J p:
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:
"(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:
"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.
" she asserted, the betterment therein made by the testator in favor of his
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 dueo 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."
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,
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:
"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.
33
"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."
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:
"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 (
Leao vs. Leao, 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."
Let us look into the validity of these considerations. Section 1 of Rule 74
provides as follows:
"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."
That is a modification of section 596 of the Code of Civil Procedure, which
reads as follows:
"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."
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 Leao vs. Leao (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 non-presentation 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 Leao, appealed. In deciding the appeal this Court said:
34
"The principal assignment of error is that the lower court committed an error
in deciding that the heirs and legatees of the estate of Da. Paulina Ver
had voluntarily divided the estate among themselves."
In resolving that question this Court said:
"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."
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 vs. Rocha (1926), 48 Phil. 737, this Court
departed from the procedure sanctioned by the trial court and impliedly
approved by this Court in the Leao case, by holding that an extrajudicial
partition is not proper in testate succession. In the Riosa case the Court,
speaking thru Chief Justice Avancea, held:
"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:
"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."
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
35
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 vs. 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.

36
ARTICLE 817
[G.R. No. 22595. November 1, 1924.]
Testate Estate of Joseph G. Brimo. JUAN MICIANO, administrator, petitioner-
appellee, vs. ANDRE BRIMO, opponent-appellant.
ROMUALDEZ, J p:
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) the 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 Pietro
Lanza 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 of 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 testamentary
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, The fact is, however, that the said condition is void, being contrary to law,
himself, acknowledges it when he desires to be given an opportunity to for article 792 of the Civil Code provides the following:
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
"Impossible conditions and those contrary to law or good morals shall be
the receipt of certain testimony requested regarding the Turkish laws on the
considered as not imposed and shall not prejudice the heir or legatee in
matter.
any manner whatsoever, even should the testator otherwise provide."
The refusal to give the oppositor another opportunity to prove such laws
And said condition is contrary to law because it expressly ignores the
does not constitute an error. It is discretionary with the trial court, and, taking
testator's national law when, according to article 10 of the Civil Code
into consideration that the oppositor was granted ample opportunity to
above quoted, such national law of the testator is the one to govern his
introduce competent evidence, we find no abuse of discretion on the part
testamentary dispositions.
of the court in this particular.
Said condition then, in the light of the legal provisions above cited, is
There is, therefore, no evidence in the record that the national law of the
considered unwritten, and the institution of legatees in said will is
testator Joseph G. Brimo was violated in the testamentary dispositions in
unconditional and consequently valid and effective even as to the herein
question which, not being contrary to our laws in force, must be complied
oppositor.
with and executed.
It results from all this that the second clause of the will regarding the law
Therefore, the approval of the scheme of partition in this respect was not
which shall govern it, and to the condition imposed upon the legatees, is
erroneous.
null and void, being contrary to law.
In regard to the first assignment of error which deals with the exclusion of
All of the remaining clauses of said will with all their dispositions and requests
the herein appellant as a legatee, inasmuch as he is one of the persons
are perfectly valid and effective it not appearing that said clauses are
designated as such in the will, it must be taken into consideration that such
contrary to the testator's national laws.
exclusion is based on the last part of the second clause of the will, which
says:
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
"Second. I likewise desire to state that although, by law, I am a Turkish
appellant Andre Brimo as one of the legatees, and the scheme of partition
citizen, this citizenship having been conferred upon me by conquest and
submitted by the judicial administrator is approved in all other respects,
not by free choice, nor by nationality and, on the other hand, having
without any pronouncement as to costs. So ordered.
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.
37
[G.R. Nos. L-3087 & L-3088. July 31, 1954.]
In re: Testate Estate of the deceased JOSE B. SUNTAY. SILVINO SUNTAY,
petitioner-appellant, vs. FEDERICO C. SUNTAY, administrator-appellee.
PADILLA, J p:
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
further proceedings (63 Phil., 793). In spite of the fact that a commission
from the probate court was issued on 24 April 1937 for the taking of the
deposition of Go Toh, an attesting witness to the will, on 7 February 1938 the
probate court denied a motion for continuance of the hearing sent by
cablegram from China by the surviving widow and dismissed the petition.
In the meantime the Pacific War supervened. After liberation, claiming that
he had found among the files, records and documents of his late father a
will and testament in Chinese characters executed and signed by the
deceased on 4 January 1931 and that the same was filed, recorded and
probated in the Amoy district court, Province of Fookien, China, Silvino
Suntay filed a petition in the intestate proceedings praying for the probate
of the will executed in the Philippines on November 1929 (Exhibit B) or of the
will executed in Amoy, Fookien, China, on 4 January 1931 (Exhibit N).
There is no merit in the contention that the petitioner Silvino Suntay and his
mother Maria Natividad Lim Billian are estopped from asking for the
probate of the lost will or of the foreign will because of the transfer or
assignment of their share right, title and interest in the estate of the late Jose
B. Suntay to Jose G. Gutierrez and the spouses Ricardo Gutierrez and
Victoria Goo and the subsequent assignment thereof by the assignees to
Francisco Pascual and by the latter to Federico C. Suntay, for the validity
and legality of such assignments cannot be threshed out in this proceedings
which is concerned only with the probate of the will and testament
executed in the Philippines on November 1929 or of the foreign will
allegedly executed in Amoy on 4 January 1931 and claimed to have been
probated in the municipal district court of Amoy, Fookien province,
Republic of China.
As to prescription, the dismissal of the petition for probate of the will on 7
February 1938 was no bar to the filing of this petition on 18 June 1947, or
before the expiration of ten years.
As to the lost will, section 6, Rule 77, provides:
No will shall be proved as a lost or destroyed will unless the execution and
validity of the same be established, and the will is proved to have been in
existence at the time of the death of the testator, or is shown to have been
fraudulently or accidentally destroyed in the lifetime of the testator without
his knowledge, nor unless its provisions are clearly and distinctly proved by
at least two credible witnesses. When a lost will is proved, the provisions
thereof must be distinctly stated and certified by the judge, under the seal
of the court, and the certificate must be filed and recorded as other wills
are filed and recorded.
The witnesses who testified to the provisions of the lost will are Go Toh, an
attesting witness, Anastacio Teodoro and Ana Suntay. Manuel Lopez, who
was an attesting witness to the lost will, was dead at the time of the hearing
of this alternative petition. In his deposition Go Toh testifies that he was one
of the witnesses to the lost will consisting of twenty-three sheets signed by
Jose B. Suntay at the bottom of the will and each and every page thereof
in the presence of Alberto Barretto, Manuel Lopez and himself and
underneath the testator's signature the attesting witnesses signed and each
of them signed the attestation clause and each and every page of the will
in the presence of the testator and of the other witnesses (answers to the
31st, 41st, 42nd, 49th, 50th, 55th and 63rd interrogatories, Exhibit D-1), but
did not take part in the drafting thereof (answer to the 11th interrogatory,
Id.); that he knew the contents of the will written in Spanish although he
knew very little of that language (answers to the 22nd and 23rd
interrogatories and to X-2 cross-interrogatory, Id.) and all he knows about
the contents 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.
38
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 of 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 of 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 wills for Jose B. Suntay at the latter's request, the
rough draft of the first will was in his own handwriting, given to Manuel Lopez
for the final draft or typing and returned to him; that after checking up the
final with the rough draft he tore it and returned the final draft to Manuel
Lopez; that this draft was in favor of all the children and the widow (pp. 392-
4, 449, t. s. n., hearing of 21 February 1948); that two months later Jose B.
Suntay and Manuel Lopez called on him and the former asked him to draw
up another will favoring more his wife and child Silvino; that he had the
rough draft of the second will typed (pp. 395. 449 t. s. n., Id.) and gave it to
Manuel Lopez (p. 396. t. s. n., Id.); that he did not sign as witness the second
will of Jose B. Suntay copied from the typewritten draft [Exhibit B] (p. 420, t.
s. n., Id.); that the handwritten insertions or additions in lead pencil to Exhibit
B are not his (pp. 415-7, 435-6, 457, t. s. n., Id.); that the final draft of the first
will made up of four or five pages (p. 400, t. s. n., Id.) was signed and
executed, two or three months after Suntay and Lopez had called on him
(pp. 397-8, 403, 449, t. s. n., Id.) in his office at the Cebu Portland Cement in
the China Banking Building on Dasmarias street by Jose B. Suntay, Manuel
Lopez and a Chinaman who had all come from Hagonoy (p. 398, t. s. n.,
Id.); that on that occasion they brought an envelope (Exhibit A) where the
following words were written: "Testamento de Jose B. Suntay" (pp. 399, 404,
t, s. n., Id.); that after the signing of the will it was placed inside the envelope
(Exhibit A) together with an inventory of the properties of Jose B. Suntay and
the envelope was sealed by the signatures of the testator and the attesting
witnesses (pp. 398, 401, 441, 443, 461, t. s. n., Id.); that he again saw the
envelope (Exhibit A) in his house one Saturday in the later part of August
1934, brought by Go Toh and it was then in perfect condition (pp. 405-6,
411, 440-2, t. s. n., Id.); that on the following Monday Go Toh went to his law
office bringing along with him the envelope (Exhibit A) in the same
condition; that he told Go Toh that he would charge P25,000 as fee for
probating the will (pp. 406, 440-2, Id.); that Go Toh did not leave the
envelope (Exhibit A) either in his house or in his law office (p. 407, t. s. n., Id.);
that Go Toh said he wanted to keep it and on no occasion did Go Toh
leave it to him (pp. 409, 410, t. s. n., Id.).
The testimony of Go Toh taken and heard by Assistant Fiscal F. B. Albert in
connection with the complaint for estafa filed against Manuel Suntay for
the alleged snatching of the envelope (Exhibit A), corroborates the
testimony of Alberto Barretto to the effect that only one will was signed by
Jose B. Suntay at his office in which he (Alberto Barretto), Manuel Lopez and
Go Toh took part as attesting witnesses (p. 15, t. s. n., Exhibit 6). Go Toh
testified before the same assistant fiscal that he did not leave the will in the
hands of Anastacio Teodoro (p. 26, t. s. n., Exhibit 6). He said, quoting his
own words, "Because I can not give him this envelope even though the
contract (on fees) was signed. I have to bring that document to court or to
anywhere else myself." (p. 27, t. s. n., Exhibit 6).
As to the will claimed to have been executed on 4 January 1931 in Amoy,
China, the law on the point is 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 court, 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 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.
39
474, 476, 481, 503-4, t. s. n., hearing of 24 February 1948). The proceedings
had in the municipal district court of Amoy, China, may be likened to a
deposition or to a perpetuation of testimony, and even if it were so it does
not measure or come up to the standard of such proceedings in the
Philippines for lack of notice to all interested parties and the proceedings
were held at the back of such interested parties.
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., 793-97,
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 Barreto and Manuel Lopez as
attesting witnesses. On August 25, 1934, Go Toh, as attorney-in-fact of the
petitioner, arrived in the Philippine 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 Barreto, he prepared a will of the deceased to which he later
become a witness together with Go Toh and Manuel Lopez, an 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
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 Barreto 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".
40
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
Sunatay, 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 C), on motion of the then petitioned until 'further setting' in the order page and the attestation clause by the testator and the witnesses in the
of court dated March 18, 1937, upon motion of the petitioner (Exhibit H). 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.
"In the meantime, the deposition of Go Toh was being sought (Exhibit H).
"A year or so after the execution of the will, Jose B. Suntay together with his
"The hearing of the case was again set for February 7, 1936, by order of the
second wife Maria Natividad Lim Billian and Silvino Suntay who was then of
court dated January 5, 1938, upon motion of Emiliano Suntay and Jose
tender age went to reside in Amoy, Fookien, China, where he died on May
Suntay, Jr. On the same day of the hearing which had been set, the
14, 1934. The will was entrusted to the widow, Maria Natividad Lim Billian.
petitioner, then, Maria Natividad Lim Bilian, set 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 "Upon the death of Jose B. Suntay on May 14, 1934, Apolonio Suntay, the
was representing her died (Exhibit K). The court, instead of granting the oldest son now deceased, instituted the Intestate Proceedings No. 4892,
telegraphic motion for postponement, dismissed the case in the order upon the presumption that no will existed. Maria Natividad Lim Billian who
dated February 7, 1938 (Exhibit L). 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
"On July 3, 1947, the petitioner Silvino Suntay filed a motion for the
by Go Toh who was one of the attesting witnesses, and it was taken to the
consolidation of the intestate Estate of the deceased Jose B. Suntay,
law office of Barretto and Teodoro. The law firm of Barretto and Teodoro
Special Proceeding No. 4892 and the Testate Estate of Jose B. Suntay,
was composed of Atty. Alberto Barretto and Judge Anastacio Teodoro. The
Special Proceeding No. 4952, which latter case is the subject of the said
probate of the will was entrusted to the junior partner Judge Anastacio
alternative petition. The motion for the merger and consolidation of the two
Teodoro; and, upon the presentation of the sealed envelope to him, he
cases was granted on July 3, 1947.
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
"The oppositor, Federico C. Suntay, in the Testate Proceeding filed a motion Natividad Lim Billian, and as she (through Go Toh) could not agree to pay,
to dismiss the alternative petition on November 14, 1947, which was denied P20,000 as fees, the will was returned to Go Toh by Judge Anastacio
by the court in its resolution of November 22, 1947. The said oppositor not Teodoro after the latter had kept it in his safe, in his office, for three days.
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
"Subsequently, the will inside the envelope was snatched from Go Toh by
preliminary injunction, which was dismissed for lack of merit on January 27,
Manuel Suntay and Jose, Jr., which fact has been established in the
1948.
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
"In obedience to the decision of the Supreme Court (Exhibit O) and upon the envelope was wrapped (Exhibit C).
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
"The Testate Proceeding was filed nevertheless and in lieu of the lost will a
constrained to proceed with the hearing of the probate of the lost will, the
draft of the will (Exhibit B) was presented as secondary evidence for
draft of which is Exhibit B, or the admission and recording of the will which
probate. It was disallowed by this court through Judge Buenaventura
had been probated in Amoy, China.
Ocampo, but on appeal the Supreme Court remanded the case to this
court for further proceeding (Exhibit C ).
"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
"In the meantime, a Chinese will which was executed in Amoy Fookien,
begotten with her Apolonio, now deceased, Concepcion, Angel, Manuel,
China, on January 4, 1931, by Jose B. Suntay, written in Chinese characters
Federico, Ana, Aurora, Emiliano and Jose, Jr., all surnamed Suntay, and
(Exhibit P) was discovered in Amoy, China, among the papers left by Jose
second, to Maria Natividad Lim Billian with whom he had as the only child
B. Suntay, and said will had been allowed to probate in the Amoy District
Silvino Suntay, the petitioner herein.
Court, China, which is being also presented by Silvino Suntay for allowance
and recording in this court.
"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
"The said petition is opposed by Federico C. Suntay on the main ground
witnessed by Alberto Barretto, Manuel Lopez and Go Toh. The will was
that Maria Natividad Lim Billian and Silvino Suntay have no more interest in
prepared by said Alberto Barretto upon the instance of Jose B. Suntay, and
the properties left by Jose B. Suntay, because they have already sold their
it was written in the Spanish language which was understood and spoken
respective shares, interests and participations. But such a ground of
by said testator. After the due execution of the will, that is signing every
41
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 it 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. Be further testified that the first will he 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 "Section 8 of the same Rule provides as follows:
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
'If it appears at the time fixed for the hearing that the subscribing witnesses
prepared to Jose B. Suntay in the presence of Manuel Lopez, now
are dead or insane, or that none of them resides in the Philippines the court
deceased.
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.'
"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 "Manuel Lopez as one of the subscribing witnesses is dead. Atty. Alberto
witnesses, Atty. Alberto Barretto, Manuel Lopez and Go Toh, is the pivotal Barretto and Go Toh are still living. The former testified during the hearing,
point in this instant case. Judge Anastacio Teodoro testified that he opened while Go Toh's deposition was introduced in evidence which was admitted.
the sealed envelope when it was given to him by Go Toh preparatory to In the absence of the testimony of Manuel Lopez, deceased, the testimony
the presentation of the petition for the probate of the said will. As the lawyer of Judge Anastacio Teodoro and Ana Suntay was received.
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
"It is an established fact that the will, draft of which is Exhibit B, was lost or
he is worth his salt as a good lawyer; he could not perform the stunt of 'blind
destroyed; that it was executed and valid and that it existed at the time of
flying' in the judicial firmament. Every step must be taken with certainty and
the death of Jose B. Suntay. These circumstances also apply to the will
precision under any circumstances. Be could not have talked about the
(Exhibit P) which was executed in Amoy, China.
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 "The contents of the Chinese will is substantially the same as the draft (Exhibit
contrary notwithstanding. 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
"The testimony of Judge Anastacio Teodoro is corroborated by Go Toh, one
in this court. All the formalities of the law in China had been followed in its
of the attesting witnesses, in his deposition (Exhibit D-1).
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
"Ana Suntay, one of the heirs and who would be affected adversely by the and recorded in this jurisdiction.
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
"The said will (Exhibit P) in Chinese characters is presented as an alternate
snatching. She read it and she particularly remembers the manner in which
in case the will executed in the Philippines would not be allowed to
the properties were to be distributed. Exhibit B was shown to her on the
probate, or as a corroborative evidence that the will, the draft of which is
witness stand and she declared that the provision regarding the distribution
Exhibit B, has been duly executed in the Philippines by Jose B. Suntay.
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. "Rule 78 of the Rules of Court covers the allowance of will proved outside of
the Philippines and administration of estate thereunder.
"With respect to the proof of lost or destroyed will, Section 6 of Rule 77
provides as follows: "Section 1 of said rule provides:
'Wills proved and allowed in the United States, or any state or territory
'No will shall be proved as a lost or destroyed will unless the execution and
thereof, or in foreign country, according to the laws of such state, territory,
validity of the same be established, and the will is proved to have been in
or country, may be allowed, filed, and recorded by the proper Court of First
existence at the time of the death of the testator, or it is shown to have
Instance in the Philippines.'
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 "Section 2 of the same rule provides:
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
'When a copy of such will and the allowance thereof, duly authenticated,
other wills are filed and recorded.'
is filed with a petition for allowance in the Philippines, by the executor or
42
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 discover the real facts; it has 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 alterative 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 Pule 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 of 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
43
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 stand.
"It is evident, therefore, 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 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 may 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 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.'
"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. In 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. 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 wills 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 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.
'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 Yaez 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.)
44
"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 Consul 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 is 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 at 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 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
45
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.' " (Joses 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
presaumuntur 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 wrong-doer's most effective weapon. 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. 676, 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 as provided in his will which was lost or "Court: Witness may answer.
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
"WITNESS: I remember the main features of the will because as I said I was
proved by the testimony of Judge Anastacio Teodoro, Go Toh, and Ana
the one fighting for the postponement of the hearing of the intestate case
Suntay, supported conclusively by the draft of the lost will presented in
because I was asked by Don Alberto Barretto to secure the postponement
evidence as Exhibit "B", and even by the testimony of oppositor Federico C.
until the will that was executed by the deceased is sent here by the widow
Suntay himself.
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
It is to be recalled that the trial Judge, in his first decision of April 19, 1948, examined fully in connection with the facts alleged in the intestate, and
made the following express findings with respect to the testimony of Judge there was a striking fact in the intestate that Apolonio Suntay has.
Teodoro: "Judge Anastacio Teodoro testified that he opened the sealed
envelope when it was given to him by Go Toh preparatory to the
"ATTY. FERRIN: (Interrupting) May we ask that the witness answer
presentation of the petition for the probate of the said will. As the lawyer
categorically the questions of Atty. Recto, it seems that the answers of the
entrusted with that task, he had to examine the will and have it copied to
witness are kilometric . . .
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
"ATTY. RECTO: Sometimes the question cannot be answered fully unless the
flying' in the judicial firmament. Every step must be taken with certainty and
witness would relate and give all the facts.
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 "COURT: The Attorney for the Administrator may move for the striking out of
declaring that it was the exact draft of the will that was inside the envelope any testimony that is not responsive to the question.
(Exhibit A), the testimony of Atty. Alberto Barretto to the contrary
notwithstanding."
"ATTY. FERRIN: That is why, our objection, the answer is out of the question.
We should not forget, in this connection, that in the resolution on the motion
"COURT: Atty. Recto may propound another question.
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 "ATTY. RECTO: I heard the witness was saying something and he has not
that Judge Teodoro had the draft Exhibit "B" in his hands while testifying. We finished the sentence, and I want to ask the Court just to allow the witness
cannot see any justification for the observation, assuming that Judge to finish his sentence.
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
"COURT: You may finish.
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 "WITNESS: "A. There was a sentence, the point I was trying to check first was
had the draft in question before him while testifying as may be seen from whether the value of the estate left by the deceased was SIXTY THOUSAND
the following passages of the transcript: 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
"Q. And, have you read that will which was inside this envelope, Exhibit A?
very striking fact to me because the petition for intestate was for SIXTY
"A. Yes.
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 more or less the contents of the will?
"ATTY. FERRIN: With our objection, the best evidence is original will itself, Your
Honor.
"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
"ATTY. RECTO: We are precisely proving by means of secondary evidence, Lim Billian, and his son, Silvino, the only son in the second marriage, that was
the contents of the will, because according to the Supreme Court, and that very important for me to know.
is a fact already decided, that the will of Jose B. Suntay was lost and that is
res judicata.
46
"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 quite substantial share in the
betterment, around SIXTY THOUSAND (P60,000.00) for Concepcion,
Apolonio the 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 7.
"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 these 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 each approximately. The rest of the children will get approximately 29,000
document Exhibit B, there is also the handwriting in pencil which reads: 'La each. The way of distribution of the property of Jose B. Suntay, movable
otra sexta parte (6.a) corresponde a Bonifacio Lopez', can you recognize and immovable, and the outstanding debts to be collected was arranged
that handwriting? "A. Yes, sir, this is the handwriting of Don Alberto by Jose B. Suntay."
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
xxx xxx xxx
envelope, 'Alberto Barretto' and stroke identifies one hand as having written
those words.
"78. On the occasion of the execution of the testament of Jose B. Suntay,
state whether or not you say Exhibit B . . . Yes.
"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 "79. In the affirmative case, state if you know who had the possession of
envelope, Exhibit A? "A. This is exactly the contents of the original will Exhibit B and the testament the first time you saw them on that occasion.
which I received and kept in my office inside the safe for three (3) days, . . .Yes, I know who had possession of them.
and I precisely took special care in the credits left by the deceased, and I
remember among them, were the De Leon family, and Sandiko, well known "80. Can you say whether or not Jose B. Suntay happened to get those
to me, and then the disposition of the estate, divided into three (3) equal documents later on, on that same occasion? . . . He got them after the
parts, and I noticed that they are the contents of the will read." execution.
His Honor, Judge Pecson, was positive in his first decision that "the testimony "81. Please name the person who gave those documents to Mr. Suntay.
of Judge Anastacio Teodoro is corroborated by Go Toh, one of the . . . Alberto Barretto gave the documents to Jose B. Suntay,
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 "82. Did the person who gave those documents to Suntay say anything to
not have done so even if he tried because the original will was not read to him (Suntay) at the time of giving them? . . . Yes.
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 "83. If so what was it that he said, if he said any? . . . He said, 'You had
was there any occasion for him to have the contents of the said will, after better see if you went any correction.'
its execution and sealing inside the envelope (Exhibit A), read to him,
because it was opened only when Judge Teodoro had examined it and
"84. What did Mr. Suntay do after those documents were given to him? .
then subsequently snatched from Go Toh."
. . Jose B. Suntay looked at them and then gave one copy to Manuel Lopez
for checking.
The later position thus taken by Judge Pecson is palpably inconsistent with
the following unequivocal statements of Go Toh contained in his
"85. State whether or not Mr. Suntay gave one of those documents to
desposition taken in Amoy, China, on April 17, 1938, and in opositor's Exhibit
another man. . . . Yes.
"6":
"86. In the affirmative case, can you say which of the two documents was
"26. State what you know of the contents of that will. ". . . Regarding (1)
given and who the men was? . . . Yes he gave Exhibit B to Manuel Lopez.
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 "87. State whether or not Mr. Suntay said something to the man to whom he
amount will be divided into three equal parte of 240,000 parts each. The gave one of those documents. . . . Yes.
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
"88. In the affirmative case can you repeat more or less what Mr. Suntay
Suntay, 75,000 approximately; Apolonio Suntay, 50,000 pesos
said to that man? . . .. Be told him to read it for checking.
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 "89. State if you know what did the man do with one of those documents
get a total of 210,000 pesos approximately, Maria Natividad Lim Billian a given to him. . . . He took it and read it for checking.
total of 290,000 approximately, and Apolonio Suntay a total of 80,000
approximately, Concepcion Suntay and Jose Suntay will get 60,000 pesos
47
"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, "JUZGADO: Se estima.
because she has not had enough schooling and she does not possess
adequate knowledge of the Spanish language as shown by the fact that
"ABOGADO MEJIA:
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. 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?
"P. Cuantas paginas tenia aquel documento a que usted se refiere? R.
Probablemente seria mas de veinte (20) paginas.
"ABOGADO RECTO: Objecion, por falta de base, uno puede entender el
espaol y sin embargo no podra repetir lo que ha leido, y no se sabe
"P. No serian treinta (30) paginas? "ABOGADO RECTO: La testigo ha
todavia si ha estudiado el espaol bastante hasta el punto de poder
contestado ya que mas de veinte (20).
hablarlo.
"JUZGADO: Se estima.
"JUZGADO: Se estima.
"ABOGADO MEJIA:
Abogado Mejia.
"P. Usted personalmente leyo el documento? "R. Yo leyo mi hermano en
"P. Usted dijo que estaba puesto en castellano el supuesto testamento que
presencia mia.
Vda. leyo, usted poso el castellano? "R. Yo entiendo el castellano, pero
no puedo hablar bien.
"P. La pregunta es, si usted personalmente ha leido el documento? "R. Si,
lo he visto.
"P. Usted estudio el castellano en algun colegio? "R. Si, seor, en Sta.
Catalina.
"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
"P. Cuantos aos? "R. Nuestros estudios no han sido continuous porque
adjudicacion lo he leido para asegurarme a que porcion corrasponder a
mi padre noe ingresaba en el colegio y despues nos sacaba para estar
cada uno de nosotros.
afuera, y no era continuo nuestro estudio.
"P. Puede usted repetir poco mas o menos esa porcion a que se hacia la
"P. Pero en total, como cuantos meses o aos estaba usted en el colegio
distribucion del alegado testamento? "R. Como ya he declarado, que
aprendiendo el castellano? "R. Unos cuatro o cinco aos.
las propiedades de mi difunto padre se habian dividido en tres partes, una
tercera parte se nos adjudica a nosotros diez (10) hijos en primeros nupcias
y segunda nupcia, la segunda tercera parte los adjudica a la viuda y a "P. Entonces usted puede leer el castellano con facilidad, senora? "R. Si,
Silvino, y la otra tercera parte se lo adjudica a sus hijos como mejora a castellano sencillo puedo entender y lo puedo leer.
Silvino, Apolonio, Concepcion y Jose.
"P. Usted entiende las preguntas que se le dirigian aqui en castellano sin
"P. Eso, tal como usted personalmente lo leyo en el documento? "R. Si interpretacion o sin el interprete? "R. Si, Seor.
Senor.
"P. Puede usted contestar en castellano? "R. Bueno, pero como usted
"P. Quiere usted tener la bondad, seora, de repetir poco mas o menos las debe comprender quisiera asegurarme del significado antes de contestar,
palabras en ese documento que se distribuia las propiedades del defundo por eso quiero que la pregunta se me traduzca antes. asi puedo contestar
padre usted como usted relata aqui? "ABOGADO RECTO: Objetamos a la debidamente." (t. s. n. pp. 533-534.)
pregunta por falta de base, porque elle solamente sa fijo en la parte como
se distribuian las propiedades pero no ha dicho la testigo que ella lo ha We are really at a loss to understand why, without any change whatsoever
puesto de memoria, ni Vd. ha preguntado en que lenguaja estaba escrito in the evidence, the trial Judge reversed his first decision, particularly when
el testamento . . he announced therein that "it is now incumbent upon this court to delve
48
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 circumstantial features presently to be stated, that
clearly confirm the testimony of Judge Anastacio Teodoro, Go 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 on
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 P25,000.00, 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 w ill. 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?
PADILLA, J.:
"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 valued 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 out, 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
November 5, 1954
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, Maria Natividad Lim Billian, the mother of the
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
49
year 1929 by said deceased Jose B. Suntay. (P. 3, amended record on
appeal.)
If such last 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 1947);. . .
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, constitues res
judicata on these points: (a) that only one will was prepared by attorney
Baretto, 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, 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. (P. 796, supra.)
Appellant's contention that he 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 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 distinctly, 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 by the provisions of section 623 of the Code and 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 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 by 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
50
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 to 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 A. I think I remember correctly according to ex-Representative Vera who is
Ana was there, according to her testimony. So the sentence "he went the administrator whom I followed at that time, that was paid according to
away" in Ana's testimony must logically and reasonably refer to Manuel, the services rendered by Don Alberto Barretto with regard to our case in
who was a caller or visitor in the house of his brother Apolonio and not to the testamentaria but he also rendered services to my father.
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
Q. At least your Counsel said that there was an order of the Court ordering
evidence stands could it be said that the one who went away was
you to pay that, do you have that copy of the order?
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.
A. Yes, sir, I have, but I think that was burned. (P. 184, t. s. n., supra.)
There is a veiled insinuation in the dissent that Alberto Barretto testified as
So the sum of P16,000 was paid upon recommendation of the former
he did because he had been paid by Federico C. Suntay the sum of
administrator and order of the probate court for services rendered by
P16,000. Federico C. Suntay testifies on the point thus
Alberto Baretto not only in the probate proceedings but also for services
rendered to his father. But if this sum of P16,000 paid to Alberto Barretto
Q. You mentioned in your direct testimony that you paid certain amount to
upon recommendation of the previous administrator and order of the
Atty. Alberto Baretto for services rendered, how much did you pay?
probate court for professional services rendered in the probate
proceedings and to the deceased in his lifetime be taken against his
A. Around SIXTEEN THOUSAND (P16,000.00). 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
Q. When did you make the payment?
of 13 October 1947.) Would that not likewise or by the same token affect
his credibility? Is not the latter's interest more compelling than the former's?
A. During the Japanese time.
For the foregoing reasons, the motion for reconsideration is denied.
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.)
51
ARTICLE 818
[G.R. No. L-20234. December 23, 1964.]
PAULA DE LA CERNA, ET AL., petitioners, vs. MANUELA REBACA POTOT, ET AL.,
and THE HONORABLE COURT OF APPEALS, respondents.
REYES, J.B.L., J p:
Appeal by Paula de la Cerna and others from a decision of the Court of
Appeals, Sixth Division (C.A.-G.R. No. 23763-R) reversing that of the Court of
First Instance of Cebu (Civ. Case No. R-3819) and ordering the dismissal of
an action for partition.
The factual background appears in the following portion of the decision of
the Court of Appeals (Petition, Annex A, pp 2-4):
"It appears that on May 9, 1939, the spouses, Bernabe de la Cerna and
Gervasia Rebaca, executed a joint last will and testament in the local
dialect whereby they willed that 'our two parcels of land acquired during
our marriage together with all improvements thereon shall be given to
Manuela Rebaca, our niece, whom we have nurtured since childhood,
because God did not give us any child in our union, Manuela Rebaca
being married to Nicolas Potot', and that 'while each of the testator is yet
living, he or she will continue to enjoy the fruits of the two lands
aforementioned', the said two parcels of land being covered by Tax No.
4676 and Tax No. 6677, both situated in sitio Bucao, barrio Lugo, municipality
of Borbon, province of Cebu. Bernabe de la Cerna died on August 30, 1939,
and the aforesaid will was submitted to probate by said Gervasia and
Manuela before the Court of First Instance of Cebu which, after due
publication as required by law and there being no opposition, heard the
evidence, and, by Order of October 31, 1939, in Special Proceedings No.
499, 'declara legalizado el documento Exhibito A como el testamento y
ultima voluntad del finado Bernabe de la Cerna con derecho por parte de
su viuda superstite Gervasia Rebaca y otra testadora al proprio tiempo
segun el Exhibito A de gozar de los frutos de los terrenos descritos en dicho
documento; y habido consideracion de la cuantia de dichos bienes, se
derecta la distribucion sumaria de los mismos en favor de la legataria
universal Manuela Rebaca de Potot previa prestacion por parte de la
misma de una fianza en la suma de P500.00 para responder de
cualesquiera reclamaciones que se presentare contra los bienes del finado
Bernabe de la Cerna dentro de los aos desde esta fecha.' (Act. Esp. 499,
Testamentaria Finado Bernabe de la Cerna). Upon the death of Gervasia
Rebaca on October 14, 1952, another petition for the probate of the same
will insofar as Gervasia was concerned was filed on November 6, 1952,
being Special Proceedings No. 1016-R of the same Court of First Instance of
Cebu, but for failure of the petitioner, Manuela R. Potot, and her attorney,
Manuel Potot to appear, for the hearing of said petition, the case was
dismissed on March 30, 1954 (Spec. Proc. No. 1016-R, In the matter of the
Probate of the Will of Gervasia Rebaca)."
The Court of First Instance ordered the petition heard and declared the
testament null and void, for being executed contrary to the prohibition of
joint wills in the Civil Code (Art. 669, Civil Code of 1889 and Art. 818, Civil
Code of the Philippines); but on appeal by the testamentary heir, the Court It follows that the validity of the joint will, in so far as the estate of the wife
of Appeals reversed, on the ground that the decree of probate in 1939 was was concerned, must be, on her death, reexamined and adjudicated de
issued by a court of probate jurisdiction and conclusive on the due novo, since a joint will is considered a separate will of each testator. Thus
execution of the testament. Further, the Court of Appeals declared that: regarded, the holding of the Court of First Instance of Cebu that the joint
will is one prohibited by law was correct as to the participation of the
". . . It is true the law (Art. 669, old Civil Code; Art. 818, new Civil Code) deceased Gervasia Rebaca in the properties in question, for the reasons
prohibits the making of a will jointly by two or more persons either for their extensively discussed in our decision in Bilbao vs. Bilbao, 87 Phil. 144, that
reciprocal benefit or for the benefit of a third person. However, this form of explained the previous holding in Macrohon vs. Saavedra, 51 Phil., 267.
will has long been sanctioned by use, and the same has continued to be
used; and when, as in the present case, one such joint last will and Therefore, the undivided interest of Gervasia Rebaca should pass upon her
testament has been admitted to probate by final order of a Court of death to her heirs intestate, and not exclusively to the testamentary heir,
competent jurisdiction, there seems to be no alternative except to give unless some other valid will in her favor is shown to exist, or unless she be the
effect to the provisions thereof that are not contrary to law, as was done in only heir intestate of said Gervasia.
the case of Macrohon vs. Saavedra, 51 Phil. 267, wherein our Supreme
Court gave effect to the provisions of the joint will therein mentioned, saying It is unnecessary to emphasize that the fact that joint wills should be in
'assuming that the joint will in question is valid'." common usage could not make them valid when our Civil Codes
consistently invalidated them, because laws are only repealed by other
Whence this appeal by the heirs intestate of the deceased husband, subsequent laws, and no usage to the contrary may prevail against their
Bernabe de la Cerna. observance (Art. 5, Civ. Code of 1889; Art. 7, Civil Code of the Philippines of
1950).
The appealed decision correctly held that the final decree of probate,
entered in 1939 by the Court of First Instance of Cebu (when the testator, WITH THE FOREGOING MODIFICATION, the judgment of the Court of
Bernabe de la Cerna, died), has conclusive effect as to his last will and Appeals in CA-G.R. No. 23763-R is affirmed. No costs.
testament, despite the fact that even then the Civil Code already decreed
the invalidity of joint wills, whether in favor of the joint testators, reciprocally,
or in favor of a third party (Art. 669, old Civil Code). The error thus committed
by the probate court was an error of law, that should have been corrected
by appeal, but which did not affect the jurisdiction of the probate court,
nor the conclusive effect of its final decision, however erroneous. A final
judgment rendered on a petition for the probate of a will is binding upon
the whole world (Manalo vs. Paredes, 47 Phil. 938; In re Estate of Johnson,
39 Phil. 156); and public policy and sound practice demand that at the risk
of occasional errors, judgment of courts should become final at some
definite date fixed by law. Interest rei publicae ut finis sit litium (Dy Cay vs.
Crossfield, 38 Phil. 521, and other cases cited in 2 Moran, Comments on the
Rules of Court 1963 Ed., p. 322).
Petitioners, as heirs and successors of the late Bernabe de la Cerna, are
concluded by the 1939 decree admitting his will to probate. The contention
that being void the will cannot be validated, overlooks that the ultimate
decision on whether an act is valid or void rests with the courts, and here
they have spoken with finality when the will was probated in 1939. On this
count, the dismissal of their action for partition was correct.
But the Court of Appeals should have taken into account also, to avoid
future misunderstanding, that the probate decree in 1939 could only affect
the share of the deceased husband, Bernabe de la Cerna. It could not
include the disposition of the share of the wife, Gervasia Rebaca, who was
then still alive, and over whose interest in the conjugal properties the
probate court acquired no jurisdiction, precisely because her estate could
not then be in issue. Be it remembered that prior to the Civil Code, a will
could not be probated during the testator's lifetime.
52
ARTICLE 821
[G.R. No. L-32213. November 26, 1973.]
AGAPITA N. CRUZ, petitioner, vs. HON. JUDGE GUILLERMO P. VILLASOR,
Presiding Judge of Branch I, Court of First Instance of Cebu, and MANUEL B.
LUGAY, respondents.
ESGUERRA, J p:
Petition to review on certiorari the judgment of the Court of First Instance of
Cebu allowing the probate of the last will and testament of the late Valente
Z. Cruz. Petitioner-appellant Agapita N. Cruz, the surviving spouse of the
said deceased, opposed the allowance of the will (Exhibit "E"), alleging that
the will was executed through fraud, deceit, misrepresentation and undue
influence; that the said instrument was executed without the testator
having been fully informed of the contents thereof, particularly as to what
properties he was disposing; and that the supposed last will and testament
was not executed in accordance with law. Notwithstanding her objection,
the Court allowed the probate of the said last will and testament. Hence
this appeal by certiorari which was given due course.
The only question presented for determination, on which the decision of the
case hinges, is whether the supposed last will and testament of Valente Z.
Cruz (Exhibit "E") was executed in accordance with law, particularly Articles
805 and 806 of the new Civil Code, the first requiring at least three credible
witnesses to attest and subscribe to the will, and the second requiring the
testator and the witnesses to acknowledge the will before a notary public.
Of the three instrumental witnesses thereto, namely, Deogracias T.
Jamaoas, Jr., Dr. Francisco Paares, and Atty. Angel H. Teves, Jr., one of
them, the last named, is at the same time the Notary Public before whom
the will was supposed to have been acknowledged. Reduced to simpler
terms, the question was attested and subscribed by at least three credible
witnesses in the presence of the testator and of each other, considering
that the three attesting witnesses must appear before the notary public to
acknowledge the same. As the third witness is the notary public himself,
petitioner argues that the result is that only two witnesses appeared before
the notary public to acknowledge the will. On the other hand, private
respondent-appellee, Manuel B. Lugay, who is the supposed executor of
the will, following the reasoning of the trial court, maintains that there is
substantial compliance with the legal requirement of having at least three
attesting witnesses even if the notary public acted as one of them,
bolstering up his stand with 57 American Jurisprudence, p. 227 which,
insofar as pertinent, reads as follows:
"It is said that there are practical reasons for upholding a will as against the
purely technical reason that one of the witnesses required by law signed as
certifying to an acknowledgment of the testator's signature under oath
rather than as attesting the execution of the instrument."
After weighing the merits of the conflicting claims of the parties, We are number of witnesses must appear before the notary public to acknowledge
inclined to sustain that of the appellant that the last will and testament in the will. The result would be, as has been said, that only two witnesses
question was not executed in accordance with law. The notary public appeared before the notary public for that purpose. In the circumstances,
before whom the will was acknowledged cannot be considered as the the law would not be duly observed.
third instrumental witness since he cannot acknowledge before himself his
having signed the will. To acknowledge before means to avow (Javellana FOR ALL THE FOREGOING, the judgment appealed from is hereby reversed
v. Ledesma, 97 Phil. 258, 262; Castro v Castro, 100 Phil. 239, 247); to own as and the probate of the last will and testament of Valente Z. Cruz (Exhibit "E")
genuine, to assent, to admit; and "before" means in front or preceding in is declared not valid and hereby set aside.
space or ahead of. (The New Webster Encyclopedic Dictionary of the
English Language, p. 72; Funk & Wagnalls New Standard Dictionary of the Cost against the appellee.
English Language, p. 252; Webster's New International Dictionary 2d. p.
245.) Consequently, if the third witness were the notary public himself, he
would have to avow, assent, or admit his having signed the will in front of
himself. This cannot be done because he cannot split his personality into
two so that one will appear before the other to acknowledge his
participation in the making of the will. To permit such a situation to obtain
would be sanctioning a sheer absurdity.
Furthermore, the function of a notary public is, among others, to guard
against any illegal or immoral arrangements. Balinon v. De Leon, 50 O. G.
583.) That function would be defeated if the notary public were one of the
attesting or instrumental witnesses. For them he would be interested in
sustaining the validity of the will as it directly involves himself and the validity
of his own act. It would place him in an inconsistent position and the very
purpose of the acknowledgment, which is to minimize fraud (Report of the
Code Commission p. 106-107), would be thwarted.
Admittedly, there are American precedents holding that a notary public
may, in addition, act as a witness to the execution of the document he has
notarized. (Mahilum v. Court of Appeals, 64 O. G. 4017; 17 SCRA 482; Sawyer
v. Cox, 43 Ill. 130) There are others holding that his signing merely as a notary
in a will nonetheless makes him a witness thereunder (Ferguson v. Ferguson,
47 S. E. 2d. 346; In Re Douglas' Will, 83 N. Y. S. 2d. 641; Ragsdal v. Hill, 269 S.
W. 2d. 911, Tyson v. Utterback, 122 So. 496; In Re Baybee's Estate 160 N. W.
900; Merill v. Boal, 132 A. 721; See also Trenwith v. Smallwood, 15 So. 1030).
But these authorities do not serve the purpose of the law in this jurisdiction
or are not decisive of the issue herein, because the notaries public and
witnesses referred to in the aforecited cases merely acted as instrumental,
subscribing or attesting witnesses, and not as acknowledging witnesses.
Here the notary public acted not only as attesting witness but also as
acknowledging witness, a situation not envisaged by Article 805 of the Civil
Code which reads:
"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."
[Emphasis supplied]
To allow the notary public to act as third witness, or one of the attesting and
acknowledging witnesses, would have the effect of having only two
attesting witnesses to the will which would be in contravention of the
provisions of Article 805 requiring at least three credible witnesses to act as
such and of Article 806 which requires that the testator and the required
53
ARTICLE 824
[G.R. No. 7647. March 27, 1914.]
DOMINGO CALUYA, petitioner-appellant, vs. LUCIA DOMINGO,
respondent-appellee.
MORELAND, J p:
This is an appeal from a judgment of the Court of First Instance of the
Province of Ilocos Norte denying the probate of a will.
The learned court below based its judgment upon three grounds. The first
one was that, although the testator had signed by mark, it nowhere
appeared in the will who had written the signature or that it had been
written at his request. The second, that the witness Antonino Pandaraoan
could not really have signed the attestation clause because, at the time it
was executed, he was attending a session of the municipal council of
Piddig as a member thereof. Third: That as to the other witness, Segundino
Asis, the will mentioned and confirmed a sale of land to him by the testator,
and he being thereby an interested party his testimony could not be
believed.
We do not believe that any of the objections are well founded and the
judgment refusing its probate must, therefore, be reversed.
Section 618 of the Code of Civil Procedure provides in part:
"No will, except as provided in the preceding section, shall be valid to pass
any estate, real or personal, nor charge or affect the same, unless it be in
writing and signed by the testator, 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 each other. . . ."
It is nowhere required that, where the testator is unable to write, the fact
that his signature was written by some other person, at his request and
express direction, should appear in the body of the will itself. In the case of
Barut vs. Cabacungan (21 Phil. Rep., 461, 463) we held the following:
"From these provisions it is entirely clear that, with respect to the validity of
the will, it is unimportant whether the person who writes the name of the
testatrix signs his own or not. The important thing is that it clearly appears
that the name of the testatrix was signed at her express direction in the
presence of three witnesses and that they attested and subscribed it in her
presence and in the presence of each other. That is all the statute requires.
It may be wise as a practical matter that the one who signs the testator's
name signs also his own; but that is not essential to the validity of the will.
Whether one person or another signed the name of the testatrix in this case
is absolutely unimportant so far as the validity of her will is concerned. The
plain wording of the statute shows that the requirement laid down by the
trial court, if it did lay it down, is absolutely unnecessary under the law; and
the reasons underlying the provisions of the statute relating to the execution
of wills do not in any sense require such a provision. From the standpoint of
language it is an impossibility to draw from the words of the law the
inference that the person who signs the name of the testator must sign his
own name also. The law requires only three witnesses to a will, not four.
"Nor is such requirement found in any other branch of the law. The name of
a person who is unable to write may be signed by another, by express
direction, to any instrument known to the law. There is no necessity
whatever, so far as the validity of the instrument is concerned, for the person
who writes the name of the principal in the document to sign his own name
also. As a matter of policy it may be wise that he do so inasmusch as it
would give such intimation as would enable a person proving the
document to demonstrate more readily the execution by the principal. But
as a matter of essential validity of the document, it is unnecessary. The main
thing to be established in the execution of the will is the signature of the
testator. If that signature is proved, whether it be written by himself or by
another at his request, it is none the less valid, and the fact of such signature
can be proved as perfectly and as completely when the person signing for
the principal omits to sign his own name as it can when he actually signs.
To hold a will invalid for the lack of the signature of the person signing the
name of the principal is, in the particular case, a complete abrogation of
the law of wills, as it rejects and destroys a will which the statute expressly
declares is valid."
The section above quoted also provides that "the attestation clause shall
state the fact that the testator signed the will, or caused it to be signed by
some other person, at his express direction, in the presence of three
witnesses, and that they attested and subscribed it in his presence and in
the presence of each other. But the absence of such form of attestation
shall not render the will invalid if its is proven that the will was in fact signed
and attested as in this section provided."
Not only does attestation clause comply with the requirements of this
section, but it appears clearly proved in evidence that the name of the
testator was signed by another person at his request and under his direction
and in his presence and in the presence of the witnesses to the will.
Moreover, as appears from the last clause of the section, if the attestation
clause is defective, or even absent, the will is nevertheless valid provided it
is satisfactorily proved that it was in fact signed and executed as provided
by law.
As to the second objection, namely, that Antonino Pandaraoan could not
have signed the will as a witness thereto, as stated in the attestation clause,
because he was attending a meeting of the municipal council of Pidding
at the time the will is alleged to have been executed, we believe this also
to be without merit. It does appear in the evidence of the opposition that
the witness Pandaraoan was attending a meeting of the municipal council
of Pidding from something like 10 o'clock till 12:30 o'clock of the day on
which the will was executed and that the will was executed sometime
between 10 and 12 o'clock. Too much weight, however, can not be given
to the testimony relative to the precise time of the execution of the will. The
barrio of Pidding is only a short distance from the house in which the will was
executed and it would have taken but a short time to cover the distance.
The witness Pandaraoan himself testified directly and positively that, after
having left the meeting of the municipal council, he went to the house of
the testator by appointment and there signed the will as stated in the
attestation clause. He asserts that he covered the distance on horseback.
The other witnesses to be the will support this declaration. Not only this, but
the notary public who drew up the will and who translated it to the testator
and who was present at the time of its execution, declared and testified
that witnesses whose names appear upon the will were present at the time
it was executed by the testator and that they signed the same at his request
and in his presence and in the presence of each other. All of the witnesses
to the will unite in declaring that they were there present at the time the will
was executed and that they signed as witnesses in the presence of the
testator and of each other. The mere fact that there was a session of the
municipal council of Pidding about the same time that the will was
executed is not necessarily conclusive against the fact that Antonino
Pandaraoan was present and signed as a subscribing witness as he
declares. Mistakes in time are easily made among witnesses who measure
time not so much by clocks or watches as by the sun. Antonino Pandaraoan
testified that the municipal council began its session about 10 o'clock; that
in order to attend the execution of the will, as he had agreed with the
notary public he would do, he was obliged to leave the session before it
terminated; that he so left the session, mounted a horse and arrived at the
house of the testator at about 12 o'clock, in time to take part in the
execution of the will as stated in the attestation clause.
We do not believe that the clear and positive testimony of the witnesses to
the will and of the notary public is overcome by the evidence offered in
opposition to the probate.
As to the third ground upon which the court based its decision; namely, that
the will having mentioned and confirmed a sale of land to Segundino Asis,
one of the witnesses to the will, while not rendering the will entirely invalid,
throws great doubt upon the legality of its execution and especially the
testimony of said witness relating thereto.
Section 622 provides:
"If a person attests the execution of a will, to whom or to whose wife or
husband, or parent, or child, a beneficial devise, legacy, or interest, of or
affecting real or personal estate, is given by such will, such devise, legacy,
or interest shall, so far only as concerns such person, or the wife or husband,
or parent or child of such person, or anyone claiming under such person or
such wife or husband, or parent or child, be void, unless there are three
other competent witnesses to such will, and such person so attesting shall
be admitted as a witness as if such devise, legacy, or interest had not been
made or given. But a mere charge on the real or personal estate of the
testator, for the payment of debts, shall not prevent his creditors from being
competent witnesses to his will."
As will readily be seen on reading this section, nothing in the will before us
relative to the sale of land to Segundino Asis creates such an interest therein
as falls within the provisions thereof. Indeed, no interest of any kind was
created by the will in favor of Segundino Asis, nor did it convey or transfer
any interest to him. It simply mentioned a fact already consummated, a
sale already made. Even if, however, the will had conveyed an interest
Segundino Asis, it would not have been for that reason void. Only that
clause of the will conveying and interest to him would have been void; the
remainder could have stood and would have stood as a valid testament.
We are confident from a thorough examination of the record that a fair
preponderance of the evidence is in favor of the proponents, and there
being no legal impediment to the probate the court erred in refusing it.
The judgment appealed from is hereby reversed and the cause remanded
to the court whence it came with instructions to legalize and probate the
will in accordance with the petition.
54
ARTICLE 828
[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 p:
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 PAGBULUT-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 the express
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 will 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
55
barred by res adjudicata. They claim that this bar was brought about by SO ORDERED.
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 court, in the intestate proceeding, was without jurisdiction to rule
on the probate of the contested will. 6 After all, an action for probate, as it
implies, is founded on the presence of a will and with the objective of
proving its due execution and validity, 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.

56
ARTICLE 832
[G.R. No. L-2538. September 21, 1951.]
Testate Estate of the Deceased MARIANO MOLO Y LEGASPI. JUANA JUAN
VDA. DE MOLO, petitioner-appellee, vs. LUZ, GLICERIA and CORNELIO
MOLO, oppositor-appellants.
BAUTISTA ANGELO, J p:
This is an appeal from an order of the Court of First Instance of Rizal
admitting to probate the last will and testament of the deceased Mariano
Molo y Legaspi executed on August 17, 1918. The oppositors- appellants
brought the case on appeal to this Court for the reason that the value of
the properties involved exceeds P50,000.
Mariano Molo y Legaspi died on January 24, 1941, in the municipality of
Pasay, province of Rizal, without leaving any forced heir either in the
descending or ascending line. He was survived, however, by his wife, the
herein petitioner Juana Juan Vda. de Molo, and by his nieces and nephew,
the oppositors-appellants, Luz, Gliceria and Cornelio, all surnamed Molo,
who were the legitimate children of Candido Molo y Legaspi, deceased
brother of the testator. Mariano Molo y Legaspi left two wills, one executed
on August 17, 1918, (Exhibit A) and another executed on June 20, 1939,
(Exhibit I). The latter will contains a clause which expressly revokes the will
executed in 1918.
On February 7, 1941, Juana Juan Vda. de Molo filed in the Court of First
Instance of Rizal a petition, which was docketed as special proceeding No.
8022, seeking the probate of the will executed by the deceased on June
20, 1939. There being no opposition, the will was probated. However, upon
petition filed by the herein oppositors, the order of the court admitting the
will to probate was set aside and the case was reopened. After hearing, at
which both parties presented their evidence, the court rendered decision
denying the probate of said will on the ground that the petitioner failed to
prove that the same was executed in accordance with law.
In view of the disallowance of the will executed on June 20, 1939, the widow
on February 24, 1944, filed another petition for the probate of the will
executed by the deceased on August 17, 1918, which was docketed as
special proceeding No. 56, in the same court. Again, the same oppositors
filed an opposition to the petition based on three grounds: (1) that
petitioner is now estopped from seeking the probate of the will of 1918; (2)
that said will has not been executed in the manner required by law and (3)
that the will has been subsequently revoked. But before the second petition
could be heard, the battle for liberation came and the records of the case
were destroyed. Consequently, a petition for reconstitution was filed, but
the same was found to be impossible because neither petitioner nor
oppositors could produce the copies required for its reconstitution. As a
result, petitioner filed a new petition on September 14, 1946, similar to the
one destroyed, to which the oppositors filed an opposition based on the
same grounds as those contained in their former opposition. Then, the case
was set for trial, and on May 28, 1948, the court issued an order admitting
the will to probate as already stated in the early part of this decision. From
this order the oppositors appealed assigning six errors, to wit:
"I. The probate court erred in not holding that the present petitioner
voluntarily and deliberately frustrated the probate of the will dated June
20, 1939, in special proceeding No. 8022, in order to enable her to obtain
the probate of another alleged will of Molo dated 1918.
"II. The court a quo erred in not holding that the petitioner is now estopped
from seeking the probate of Molo's alleged will of 1918.
"III. The lower court erred in not holding that petitioner herein has come to
court with 'unclean hands' and as such is not entitled to relief.
"IV. The probate court erred in not holding that Molo's alleged will of August
17, 1918 was not executed in the manner required by law.
"V. The probate court erred in not holding that the alleged will of 1918 was
deliberately revoked by Molo himself.
"VI. The lower court erred in not holding that Molo's will of 1918 was
subsequently revoked by the decedent's will of 1939."
In their first assignment of error, counsel for oppositors contend that the
probate court erred in not holding that the petitioner voluntarily and
deliberately frustrated the probate of the will dated June 20, 1939, in order
to enable her to obtain the probate of the will executed by the deceased
on August 17, 1918, pointing out certain facts and circumstances which in
their opinion indicate that petitioner connived with witness Canuto Perez in
an effort to defeat and frustrate the probate of the 1939 will because of her
knowledge that said will was intrinsically defective in that "the one and only
testamentary disposition thereof was a 'disposicin captatoria'". These
circumstances, counsel for the appellants contend, constitute a series of
steps deliberately taken by petitioner with a view to insuring the realization
of her plan of securing the probate of the 1918 will which she believed
would better safeguard her right to inherit from the deceased.
These imputations of fraud and bad faith allegedly committed in
connection with special proceedings No. 8022, now closed and
terminated, are vigorously met by counsel for petitioner who contends that
to raise them in these proceedings which are entirely new and distinct and
completely independent from the other is improper and unfair as they find
no support whatsoever in any evidence submitted by the parties in this
case. They are merely based on presumptions and conjectures not
supported by any proof. For this reason, counsel contends, the lower court
was justified in disregarding them and in passing them sub silentio in its
decision.
A careful examination of the evidence available in this case seems to justify
this contention. There is indeed no evidence which may justify the
insinuation that petitioner had deliberately intended to frustrate the
probate of the 1939 will of the deceased to enable her to seek the probate
of another will other than a mere conjecture drawn from the apparently
unexpected testimony of Canuto Perez that he went out of the room to
answer an urgent call of nature when Artemio Reyes was signing the will
and the failure of petitioner later to impeach the character of said witness
in spite of the opportunity given her by the court to do so. Apart from this
insufficiency of evidence, the record discloses that this failure has been
explained by petitioner when she informed the court that she was unable
to impeach the character of her witness Canuto Perez because of her
inability to find witnesses who may impeach him, and this explanation
stands uncontradicted. Whether this explanation is satisfactory or not, it is
not now for us to determine. It is an incident that comes within the province
of the former case. The failure of petitioner to present the testimony of
Artemio Reyes at the rehearing has also been explained, and it appears
that petitioner has failed because his whereabouts could not be found.
Whether this is true or not is not also for this Court to determine. It is likewise
within the province and function of the court in the former case. And the
unfairness of this imputation becomes more glaring when we take stock of
the developments that had taken place in these proceedings which show
in bold relief the true nature of the conduct, behavior and character of the
petitioner so bitterly assailed and held in disrepute by the oppositors.
It should be recalled that the first petition for the probate of the will
executed on June 20, 1939, was filed on February 7, 1941, by the petitioner.
There being no opposition, the will was probated. Subsequently, however,
upon petition of the herein oppositors, the order of the court admitting said
will to probate was set aside, over the vigorous opposition of the herein
petitioner, and the case was reopened. The reopening was ordered
because of the strong opposition of the oppositors who contended that the
will had not been executed as required by law. After the evidence of both
parties had been presented, the oppositors filed an extensive
memorandum wherein they reiterated their view that the will should be
denied probate. And on the strength of this opposition, the court disallowed
the will.
If petitioner then knew that the 1939 will was inherently defective and would
make the testamentary disposition in her favor invalid and ineffective,
because it is a "disposicin captatoria", which knowledge she may easily
acquire through consultation with a lawyer, there was no need for her to
go through the ordeal of filing the petition for the probate of the will. She
could accomplish her desire by merely suppressing the will or tearing or
destroying it, and then take steps leading to the probate of the will
executed in 1918. But her conscience was clear and bade her to take the
only proper step possible under the circumstances, which is to institute the
necessary proceedings for the probate of the 1939 will. This she did and the
will was admitted to probate. But then the unexpected happened. Over
her vigorous opposition, the herein appellants filed a petition for reopening,
and over her vigorous objection, the same was granted and the case was
reopened. Her motion for reconsideration was denied. Is it her fault that the
case was reopened? Is it her fault that the order admitting the will to
probate was set aside? That was a contingency which petitioner never
expected. Had appellants not filed their opposition to the probate of the
will and had they limited their objection to the intrinsic validity of said will,
their plan to defeat the will and secure the intestacy of the deceased
57
would have perhaps been accomplished. But they failed in their strategy.
If said will was denied probate it is due to their own effort. It is now unfair to
impute bad faith to petitioner simply because she exerted every effort to
protect her own interest and prevent the intestacy of the deceased to
happen.
Having reached the foregoing conclusions, it is obvious that the court did
not commit the second and third errors imputed to it by the counsel for
appellants. Indeed, petitioner cannot be considered guilty of estoppel
which would prevent her from seeking the probate of the 1918 will simply
because her effort to obtain the allowance of the 1939 will has failed
considering that in both the 1918 and 1939 wills she was instituted by her
husband as his universal heir. Nor can she be charged with bad faith far
having done so because of her desire to prevent the intestacy of her
husband. She cannot be blamed for being zealous in protecting her
interest.
The next contention of appellants refers to the revocatory clause contained
in the 1939 will of the deceased which was denied probate. They contend
that, notwithstanding the disallowance of said will, the revocatory clause is
valid and still has the effect of nullifying the prior will of 1918.
Counsel for petitioner meets this argument by invoking the doctrine laid
down in the case of Samson vs. Naval, (41 Phil., 838). He contends that the
facts involved in that case are on all fours with the facts of this case. Hence,
the doctrine in that case is here controlling.
There is merit in this contention. We have carefully read the facts involved
in the Samson case and we are indeed impressed by their striking similarity
with the facts of this case. We do not need to recite here what those facts
are; it is enough to point out that they contain many points and
circumstances in common. No reason, therefore, is seen why the doctrine
laid down in that case (which we quote hereunder) should not apply and
control the present case.
"A subsequent will, containing a clause revoking a previous will, having
been disallowed, for the reason that it was not executed in conformity with
the provisions of section 618 of the Code of Civil Procedure as to the making
of wills, cannot produce the effect of annulling the previous will, inasmuch
as said revocatory clause is void." (41 Phil., 838.)
Apropos of this question, counsel for oppositors make the remark that, while
they do not disagree with the soundness of the ruling laid down in the
Samson case, there is reason to abandon said ruling because it is archaic
or antiquated and runs counter to the modern trend prevailing in American
jurisprudence. They maintain that said ruling is no longer controlling but
merely represents the point of view of the minority and should, therefore,
be abandoned, more so if we consider the fact that section 623 of our
Code of Civil Procedure, which governs the revocation of wills, is of
American origin and as such should follow the prevailing trend of the
majority view in the United States. A long line of authorities is cited in support
of this contention. And these authorities hold the view, that "an express
revocation is immediately effective upon the execution of the subsequent
will, and does not require that it first undergo the formality of a probate
proceeding". (p 63, appellants' brief).
While there are many cases which uphold the view entertained by counsel
for oppositors, and that view appears to be controlling in the states where
the decisions had been promulgated, however, we are reluctant to fall in
line with the assertion that is now the prevailing view in the United States. In
the search we have made of American authorities on the subject, we found
ourselves in a pool of conflicting opinions perhaps because of the peculiar
provisions contained in the statutes adopted by each State on the subject
of revocation of wills. But the impression we gathered from a review and
study of the pertinent authorities is that the doctrine laid down in the
Samson case is still a good law. On page 328 of the American
Jurisprudence, Vol. 57, which is a revision published in 1948, we found the
following passages which in our opinion truly reflect the present trend of
American jurisprudence on this matter affecting the revocation of prior wills:
"SEC. 471. Observance of Formalities in Execution of Instrument.
Ordinarily, statutes which permit the revocation of a will by another writing
provide that to be effective as a revocation, the writing must be executed
with the same formalities which are required to be observed in the
execution of a will. Accordingly, where, under the statutes, attestation is
necessary to the making of a valid will, an unattested nontestamentary
writing is not effective to revoke a prior will. It has been held that a writing
fails as a revoking instrument where it is not executed with the formalities
requisite for the execution of a will, even though it is inscribed on the will
itself, although it may effect a revocation by cancellation or obliteration of
the words of the will. A testator cannot reserve to himself the power to
modify a will by a written instrument subsequently prepared but not
executed in the manner required for a will.
"SEC. 472. Subsequent Unexecuted, Invalid, or Ineffective Will or Codicil.
A will which is invalid because of the incapacity of the testator or of undue
influence can have no effect whatever as a revoking will. Moreover, a will
is not revoked by the unexecuted draft of a later one. Nor is a will revoked
by a defectively executed will or codicil, even though the latter contains a
clause expressly revoking the former will, in a jurisdiction where it is provided
by a controlling statute that no writing other than a testamentary instrument
is sufficient to revoke a will, for the simple reason that there is no revoking
will. Similarly where the statute provides that a will may be revoked by a
subsequent will or other writing executed with the same formalities as are
required in the execution of wills, a defectively executed will does not
revoke a prior will, since it cannot be said that there is a writing which
complies with the statute. Moreover, a will or codicil which, on account of
the manner in which it is executed, is sufficient to pass only personally does
not affect dispositions of real estate made by a former will, even though it
may expressly purport to do so. The intent of the testator to revoke is
immaterial, if he has not complied with the statute." (57 Am. Jur., 328, 329.)
We find the same opinion in the American Law Reports, Annotated, edited
in 1939. On page 1400, Volume 123, there appear many authorities on the
"application of rules where second will is invalid", among which a typical
one is the following:
"It is universally agreed that where the second will is invalid on account of
not being executed in accordance with the provisions of the statute, or
where the testator has not sufficient mental capacity to make a will or the
will is procured through undue influence, or the such, in other words, where
the second will is really no will, it does not revoke the first will or affect it in
any manner." Mort vs. Baker University (1935) 229 Mo. App., 632, 78 S. W.
(2d), 498."
These treaties cannot be mistaken. They uphold the view on which the
ruling in the Samson case is predicated. They reflect the opinion that this
ruling is sound and good and for this reason we see no justification for
abandoning it as now suggested by counsel for the oppositors.
It is true that our law on the matter (sec. 623, Code of Civil Procedure)
provides that a will may be revoked "by some will, codicil, or other writing
executed as provided in case of wills"; but it cannot be said that the 1939
will should be regarded, not as a will within the meaning of said word, but
as "other writing executed as provided in the case of wills", simply because
it was denied probate. And even if it be regarded as any other writing within
the meaning of said clause, there is authority for holding that unless said
writing is admitted to probate, it cannot have the effect of revocation. (See
57 Am. Jur. pp. 329-330).
But counsel for oppositors contend that, regardless of said revocatory
clause, said will of 1918 cannot still be given effect because of the
presumption that it was deliberately revoked by the testator himself. The
oppositors contend that the testator, after executing the 1939 will, and with
full knowledge of the revocatory clause contained in said will, himself
deliberately destroyed the original of the 1918 will, and that for this reason
the will submitted by petitioner for probate in these proceedings is only a
duplicate of said original.
There is no evidence which may directly indicate that the testator
deliberately destroyed the original of the 1918 will because of his
knowledge of the revocatory clause contained in the will he executed in
1939. The only evidence we have is that when the first will was executed in
1918, Juan Salcedo, who prepared it, gave the original and copies to the
testator himself and apparently they remained in his possession until he
executed his second will in 1939. And when the 1939 will was denied
probate on November 29, 1943, and petitioner was asked by her attorney
to look for another will, she found the duplicate copy (Exhibit A) among the
papers or files of the testator. She did not find the original.
If it can be inferred that the testator deliberately destroyed the 1918 will
because of his knowledge of the revocatory clause of the 1939 will, and it
is true that he gave a duplicate copy thereof to his wife, the herein
petitioner, the most logical step for the testator to take is to recall said
duplicate copy in order that it may likewise be destroyed. But this was not
done as shown by the fact that said duplicate copy remained in the
possession of petitioner. It is possible that because of the long lapse of
twenty-one (21) years since the first will was executed, the original of the will
had been misplaced or lost, and forgetting that there was a copy, the
testator deemed it wise to execute another will containing exactly the
same testamentary dispositions. Whatever may be the conclusion we may
58
draw from this chain of circumstances, the stubborn fact is that there is no
direct evidence of voluntary or deliberate destruction of the first will by the
testator. This matter cannot be left to mere inference or conjecture.
Granting for the sake of argument that the earlier will was voluntarily
destroyed by the testator after the execution of the second will, which
revoked the first, could there be any doubt, under this theory, that said
earlier will was destroyed by the testator in the honest belief that it was no
longer necessary because he had expressly revoked it in his will of 1939? In
other words, can we not say that the destruction of the earlier will was but
the necessary consequence of the testator's belief that the revocatory
clause contained in the subsequent will was valid and the latter would be
given effect? If such is the case, then it is our opinion that the earlier will can
still be admitted to probate under the principle of "dependent relative
revocation".
The remaining question to be determined refers to the sufficiency of the
evidence to prove the due execution of the will.
The will in question was attested, as required by law, by three witnesses,
Lorenzo Morales, Rufino Enriquez, and Angel Cuenca. The first two witnesses
died before the commencement of the present proceedings. So the only
instrumental witness available was Angel Cuenca and under our law and
precedents, his testimony is sufficient to prove the due execution of the will.
However, petitioner presented not only the testimony of Cuenca but
placed on the witness stand Juan Salcedo, the notary public who prepared
and notarized the will upon the express desire and instruction of the testator.
The testimony of these witnesses shows that the will had been executed in
the manner required by law. We have read their testimony and we were
impressed by their readiness and sincerity. We are convinced that they told
the truth.

"This doctrine is known as that of dependent relative revocation, and is Wherefore, the order appealed from is hereby affirmed, with costs against
usually applied where the testator cancels or destroys a will or executes an the appellants.
instrument intended to revoke a will with a present intention to make a new
testamentary disposition as a substitute for the old, and the new disposition
is not made or, if made, fails of effect for some reason. The doctrine is not
limited to the existence of some other document, however, and has been
applied where a will was destroyed as a consequence of a mistake of law
. . .." (68 C. J. p. 799).

"The rule is established that where the act of destruction is connected with
the making of another will so as fairly to raise the inference that the testator
meant the revocation of the old to depend upon the efficacy of the new
disposition intended to be substituted, the revocation will be conditional
and dependent upon the efficacy of the new disposition; and if, for any
reason, the new will intended to be made as a substitute is inoperative, the
revocation fails and the original will remains in full force." (Gardner, pp. 232,
233.)

"This is the doctrine of dependent relative revocation. The failure of the new
testamentary disposition, upon whose validity the revocation depends, is
equivalent to the non-fulfillment of a suspensive condition, and hence
prevents the revocation of the original will. But a mere intent to make at
some time a will in place of that destroyed will not render the destruction
conditional. It must appear that the revocation is dependent upon the
valid execution of a new will." (1 Alexander, p. 751; Gardner, p. 233.)

We hold, therefore, that even in the supposition that the destruction of the
original will by the testator could be presumed from the failure of the
petitioner to produce it in court, such destruction cannot have the effect
of defeating the prior will of 1918 because of the fact that it is founded on
the mistaken belief that the will of 1939 has been validly executed and
would be given due effect. The theory on which this principle is predicated
is that the testator did not intend to die intestate. And this intention is clearly
manifest when he executed two wills on two different occasions and
instituted his wife as his universal heir. There can therefore be no mistake as
to his intention of dying testate.

59
[G.R. No. 11823. February 11, 1918.]
CRISTINA SAMSON, DELFINA NAVAL, and SOR CONSOLACION EUGENIO,
petitioners-appellants, vs. MONICA NAVAL, ROSA NAVAL, and CELESTINA
NAVAL, objectors-appellants.
ARAULLO, J p:
On September 20, 1915, attorney Perfecto Gabriel presented in the Court
of First Instance of the city of Manila, for allowance as the will of Simeona F.
Naval, who died in said city two days previously, a document executed by
her on February 13, 1915, and in which he was appointed executor. The
case was recorded as No. 13386 and, after hearing the petition for
allowance filed by said executor. it was denied on the ground that said
document was not duly executed by the deceased as her last will and
testament, inasmuch as she did not sign it in the presence of three witnesses
and the two witnesses did not sign it in the presence of each other.
Thereafter the nieces and legatees of the same deceased filed in the same
court for allowance as her will, another document executed by her on
October 31, 1914, and, consequently, the case was registered under
another number, which was No. 13579. The petition for allowance was
opposed by Monica Naval, Rosa Naval, and Cristina Naval on the ground
that the will, the allowance of which is asked, could not be allowed,
because of the existence of another will of subsequent date, executed
during her lifetime by the same Simeona F. Naval, and because said will has
been revoked by another executed subsequently by her during her lifetime,
and, further, because said will has not been executed with the formalities
required by existing laws. Trial having taken place, at which evidence was
adduced, the court on February 8, 1916, issued an order, admitting said
second document and ordering its allowance as the last will and testament
of said deceased. From said order the opponents appealed to this court
and transmitted to us the corresponding declarations. Two of the
opponents, that is, Rosa and Cristina Naval, assigned, as errors committed
by the court, the following:
1. The finding of the court that the will of October 31. 1914, has not been
revoked by that of February 13, 1915;
2. The act of the court in permitting the petitioner to institute and proceed
with the proceedings relative to the last case for the allowance of the will,
No. 13579, notwithstanding that proceedings had already been had in the
other case No. 13386 and final judgment rendered therein; and
3. The act of the court in denying the motion for continuance of the trial on
the allowance of the will of October 31, 1914, which motion was presented
for the sole purpose of introducing evidence to show the falsity of the
signatures appearing in said will and submitting said signatures to the
Bureau of Science for analysis.
The other opponent, Monica Naval. assigned, besides the first two errors
already mentioned, the finding of the court that the disallowance of the
will of said deceased, dated February 13, 1915, on the ground that it was
not executed in such form that it could transmit real and personal property,
according to section 618 of the Code of Civil Procedure, also had the effect
of annulling the revocatory clause in said will.
From the evidence it appears, as we have already stated, that the trial
court declared that the first document presented by the executor of the
deceased, Simeona F. Naval, as a will executed by her on February 13,
1915, and which was the subject-matter of case No. 13386 of said court
could not be allowed, on the ground that it was not executed with the
requisites and formalities prescribed by law. Article 739 of the Civil Code
provides that a former will is by operation of law revoked by another valid
subsequent will, if the testator does not state in the later will his desire that
the former should subsist wholly or partly. In harmony with this provision of
substantive law, we find section 623 of the Code of Civil Procedure, which
provides that no will shall be revoked, except by implication of law,
otherwise than by some will, codicil, or other writing executed as provided
in case of wills.
Therefore, according to these legal provisions, in order that the will of
February 13, 1915, that is, the first document presented as the will of the
deceased Simeona F. Naval, could have the effect of revoking that which
was presented afterwards by the petitioners as executed by the same
deceased on October 31, 1914, that is, on a date previous to the execution
of the first, it was necessary and indispensable that the later will, that is, that
first presented for allowance, should be perfect or valid, that is, executed
as provided by law in case of wills.
It also appears from the record that the opponents themselves maintained
that said later will, that is, that of February 13, 1915, was not perfect, or
executed as provided by law in case of wills, and the Court of First Instance
of Manila has so held in disallowing said document as the will of the
deceased. So that it is very evident that the second will presented, that is,
that of October 31, 1914, was not and could not have been revoked by the
first, and the court was not in error in so holding in the order appealed from.
We deem it unnecessary to add a single word more or cite well-known
doctrines and opinions of jurists in support of what has already been stated.
As to the second error assigned by the opponents, we believe it sufficient
to refer to what the court below stated in the judgment appealed from. It
is as follows:
"The court finds no in congruency in the presentation of a prior will when
another will of subsequent date has been disallowed. Disregarding the fact
that the petitioners in this case were not those who presented the will in No.
13386, in which the petition was presented by the same D. Perfecto Gabriel
as executor, it is proper to take into account that the object of a petition
for allowance is to ask for an order declaring that a will has been executed
in accordance with the requisites and formalities required by law. This is a
question for the court to decide and is out of the control of the party who
presents the will. The allowance or disallowance of a will by a competent
court depends upon whether the evidence adduced at the trial shows or
does not show that the formalities required by law have been complied
with, and this cannot be determined in advance, as a general rule, by the
person who presents the testament, for he has not always concurred in or
seen the execution of the will.
"If, therefore, the person who presents a will and asks that it be allowed does
not secure its allowance, and he has in his possession another will, or has
information that another exists, he does not contradict himself by asking for
the allowance of the will of earlier date merely because the later will was
declared invalid by the proper court. If in this case there is any who adopts
a contradictory position, it is the respondent himself, inasmuch as in case
No. 13386 he alleged, as a ground for the disallowance of the will then
presented, that it was not executed in accordance with the law, and now
he maintains the contrary, for he claims that said will revoked that which is
now presented."
With respect to the third error, it is beyond doubt that the court did not
commit it, for it appears that when the examination of the witness, Cristina
Samson, was finished and the court told Attorney Lualhati, counsel for the
respondents, to continue adducing his evidence, he said he had no more
proof, although he added that he would ask the court to grant him
permission to send the will of 1914 to the Bureau of Science, which petition
was objected to by the attorney for the proponents and denied by the
court. Immediately thereafter the attorney for the opponents asked for the
continuance of the trial, which was also denied by the court, after
objection was made by the proponents. The attorney for the opponents
excepted to said ruling.
Therefore, the petition of said attorney for the remission of said will to the
Bureau of Science, in the terms in which it was made to the court, after he
had stated that he had no more evidence to present, signified that he left
it to the discretion of the court to grant it or not. Furthermore, no exception
was taken to the order denying this motion, and although the attorney for
the opponents excepted to the order denying the motion for continuance
of the trial, such exception was completely useless and ineffective for the
purpose of alleging before this court that the trial court erred in that respect,
for said resolution, being one of those left to the discretion of the court in
the exercise of its functions, according to section 141 of the Code of Civil
Procedure, it could not be the subject of an exception, unless the court, in
denying said motion, abused its discretional power and thereby prejudiced
the essential rights of the respondents, which is not the case here.
The error which, in addition to the first two already mentioned, has been
assigned by the opponent and appellant, Monica Naval, refers, according
to her, to the court's action in declaring that the disallowance of the will of
the deceased Simeona F. Naval, dated February 13, 1915, for the reason
that it was not executed in such manner and form that it could transmit real
and personal property, according to the provisions of section 618 of the
Code of Civil Procedure, also had the effect of annulling the revocatory
clause of said will.
First of all, it is not true that the court made such statement in the terms given
in said assignment of error, that is, it is not true that the court declared that,
because said will was not executed in the form required by law in order that
it may transmit real and personal property, according to the provisions of
60
section 618, the disallowance of said will also had the effect of annulling
the revocatory clause therein contained. In the order appealed from there
is no declaration or conclusion made in these terms. The court did not say
that the annulment of the revocatory clause in said will was the effect or
consequence of the fact that it was not allowed on the ground that it was
not executed in the form required by law in order that it may transmit real
and personal property. Referring to the construction, given by the
respondent to sections 618 and 623 of the Code of Civil Procedure, to the
effect that a subsequent will may revoke a previous will, although the later
will has not been allowed by the competent court, it being sufficient that
the intention of the testator to revoke the previous will should be clearly
expressed, and that, while the requisite of allowance is necessary in order
that it may transmit property from one person to another, it is not necessary
in order that it might produce other effects, for example, the effect of a
revocatory clause, or a clause of acknowledgment of a child, what the
court declared, we repeat, was that although the revocation of a will
should have been effected, not by means of another will or codicil, but by
means of a document, as authorized by said section 623, which document
should have the requisites and conditions fixed in section 618, the
presentation of the document to the court was necessary in order that the
latter might allow it, by declaring that it was executed with the formalities
required by law for the execution of a will, and finally concluding that, just
as it must be proved that the requisites of section 618 have been complied
with in order that a will may be of value through its allowance, so without
such allowance the revocatory clause like the other provisions of the will,
has no value or effect except to show extraneous matters, as, for example,
the acknowledgment of natural children, of some debt or obligation. In
such case, the document could produce effect, but not as a will, but simply
as a written admission made by the person executing it.
And it is beyond doubt that the revocatory clause contained in a
document, like the present, which contains provisions proper of a will, as
those relating to legacies and distribution of the properties of the testator
after his death as well as the appointment of executors, is not matter
extraneous to the will, but merely a part thereof, intimately connected with
it as well as with the will or wills, the revocation of which is declared in said
clause; in short, the desire of the testator declared in the revocatory clause
is related to the desire of the same testator expressed in the provisions of
the testament in which said clause is found and to that which he might
have expressed in the testaments which he may have previously executed.
There is such relation between the revocatory clause and the will which
contains it, that if the will does not produce legal effects, because it has not
been executed in accordance with the provisions of the law, neither would
the revocatory clause therein produce legal effects. And if, in the present
case, the so-called will of the deceased, Simeona F. Naval, dated February
13, 1915, was not duly executed by her, as her last will and testament, as
declared by the court in its decision of November 19, 1915, in case No.
133~6, for which reason its allowance was denied, neither may it be
maintained that the revocatory clause contained in said will is the
expression of the last will of said deceased. The disallowance of the will,
therefore, produced the effect of annulling the revocatory clause, not
exactly because said will was not executed in such form that it could
transmit real and personal property, as inaccurately alleged by the
appellant, Monica Naval, to be the court's finding, upon which said
assignment of error is based, but because it was proved that said will was
not executed or signed with the formalities and requisites required by
section 618 of the Code of Civil Procedure, a cause which also produces
the nullity of the same will, according to section 634 of said law; and of
course what is invalid in law can produce no effect whatever.
"If the instrument propounded as a revocation be in form a will, it must be
perfect as such, and be subscribed and attested as is required by the
statute. An instrument intended to be a will, but failing of its effect as such
on account of some imperfection in its structure or for want of due
execution, cannot be set up for the purpose of revoking a former will." (40
Cyc., p. 1177, and cases cited therein.)
"A subsequent will containing a clause revoking an earlier will must, as a
general rule, be admitted to probate before the clause of revocation can
have any effect, and the same kind, quality, and method of proof is
required for the establishment of the subsequent will as was required for the
establishment of the former will." (40 Cyc., p. 1178, and cases cited therein.)
But admitting that the will said to have been executed by the deceased
Simeona F. Naval on February 13, 1915, notwithstanding its inefficacy to
transmit property for the reason that it has not been executed, according
to the provisions of said section 618 of the Code of Civil Procedure, should
be considered as executed by her in order to express her desire, appearing
in one of its clauses, to revoke and annul any previous will of hers, as stated
in clause 13, this being the argument adduced by the appellant, Monica
Naval, in support of said assignment of error neither could it be
maintained that, the allowance of said will having been denied by the
court on November 11, 1915, said revocatory clause subsists and the
intention expressed by the testatrix therein is valid and legally effective, for
the simple reason that, in order that a will may be revoked by a document
it is necessary, according to the conclusive provisions of section 623 of said
procedural law, that such document be executed according to the
provisions relating to will in section 618, and the will in question, or,
according to the respondent, the so-called document, was not executed
according to the provisions of said section, according to the express finding
of the trial court in its order of November 11, 1915, acquiesced in by the
opponent herself, and which is now final and executory. Therefore, the
disallowance of said will and the declaration that it was not executed
according to the provisions of law as to wills, produced the effect of
annulling said revocatory clause.
In support of the argument advanced in her brief said appellant, Monica
Naval, cites the declaration made by the Supreme Court of Massachusetts
in Wallis vs. Wallis (114 Mass., 510, 512), which, according to the appellant
herself, was in the following terms:
"If it be shown that a later will was duly executed and attested, containing
a clause expressly revoking former wills, nothing else appearing as to its
contents, it is nevertheless good as a revocation, but it can only be made
available by setting it up in opposition to the probate of the earlier will."
In the decision of said case the finding referred to be by the appellant
appears not to have been made by the Supreme Court of Massachusetts.
The syllabus of said decision says:
"When a will revoking a former will is in existence, it must be established in
the Probate Court; but when it has been lost or destroyed, and its contents
cannot be sufficiently proved to admit it to probate, it may nevertheless be
availed of as a revocation in opposition to the probate of the will revoked
by it."
And in the body of the decision there is a declaration, to which the
appellant must have desired to refer in her brief, which declaration says:
"If it can be proved that a later will was duly executed, attested and
subscribed, and that it contained a clause expressly revoking all former wills,
but evidence of the rest of its contents cannot be obtained, it is
nevertheless a good revocation; and it can be made available only by
allowing it to be set up in opposition to the probate of the earlier will," . . ..
The facts of the case in which this decision was rendered are different from
the facts of the case at bar. That was a case concerning a will filed by one
of the children of the testatrix, Mary Wallis, as her last will, to the allowance
of which another son objected, alleging that said will had been revoked by
another executed by the same deceased subsequent to the will that was
filed, and that it had been fraudulently destroyed or taken by his brother,
the proponent and his wife or by one of them, in order to deprive him of the
rights conferred upon him by said will. Therefore, the will said to have been
subsequently executed by the -testatrix and in which, according to the
oppositor, the clause revocatory of the former will appeared, was not
presented by said oppositor, while the previous will was, on the contrary,
filed for allowance by the son of the testatrix, who appeared to be favored
therein, said oppositor having alleged that the subsequent will, that is, that
containing the revocatory clause, had been drawn, subscribed and
executed in accordance with the provisions of the law, a fact which he
was ready to prove just as he was ready to prove that it had been
destroyed or suppressed by the proponent, his brother and his wife, or one
of them. In the case at bar, the subsequent will containing the revocatory
clause of the previous will executed by the deceased Simeona F. Naval
was presented to the court for allowance and it was disallowed a fact
which gave opportunity to the legatees of said deceased to present a
previous will executed by her on October 31, 1914, and said two wills having
been successively presented, evidence as to them was also successively
adduced for their allowance by the court.
Therefore, the declaration made by the Supreme Court of Massachusetts
in Wallis vs. Wallis (supra), to the effect that a subsequent will containing a
revocatory clause of previous wills, constitutes a valid revocation and may
be used in objecting to the allowance of the previous will, even when it is
not possible to obtain proof of the remainder of the contents of said
subsequent will, refers to the case in which the latter had been taken away,
destroyed or suppressed, and it was impossible to present it for allowance,
but requires for that purpose that it be proved that said subsequent will has
been executed, attested, and subscribed in due form and that it
contained, furthermore, that revocatory clause. This is what said
declaration and, in relation thereto, also what the syllabus of the decision
thereof clearly says. The court, through Chief Justice Gray, in giving its
opinion, thus began by saying:
61
"By our law, no will can be revoked by any subsequent instrument, other provisions, by the will presented and alleged as executed by the same
than a 'will, codicil or writing, signed, attested and subscribed in the manner deceased subsequently on February 13, 1915, the allowance of which was
provided for making a will.' And when an instrument of revocation is in denied by the Court of First Instance of Manila, the court below was not in
existence and capable of being propounded for probate, its validity should error in ordering the allowance of said will, that is, of that of October 31,
be tried by a direct proceeding instituted for the purpose in the Probate 1914, as the last will and testament of said deceased.
Court. (Loughton vs. Atkins, 1 Pick., 535. )"
Wherefore, the order appealed from is affirmed, with the costs of this
It results, therefore, that while perfect parity does not exist between the instance against the appellants. So ordered.
case decided by the Supreme Court of Massachusetts, to which the
appellant Monica Naval refers, and that which is now before us, it is wholly
unquestionable that, whether the case deals with a subsequent will
revocatory of a previous will, which may possibly be presented to a probate
court for allowance, or of a subsequent will, also revocatory of a previous
will, which could not be presented for allowance, because it has been
taken or hidden, or mislaid in order that such will may constitute a valid
revocation and be utilized in the second case, although the remaining
provisions may not be proven, in opposition to the allowance of the
previous will, it is necessary to prove, that it was executed, attested, and
subscribed in due form, and, of course, also that it contained a clause
expressly revoking the previous will, or, what is the same thing, that said
subsequent will had been executed according to the provisions relating to
wills, as expressed in section 623 of the procedural law in force.

There can be no doubt whatever that this applies when the revocation had
been made to appear in a writing or document susceptible of presentation
for allowance, like the so-called will of the deceased Simeona F. Naval,
dated February 13, 1915, and considered by said respondent and
appellant as a mere document of revocation, for, as already seen in said
decision invoked by her, the requisite as to signing, attesting, and
subscribing in the form, required by law for the execution of wills in order
that it may revoke a previous will, is also required in a will as well as in a
codicil, or in a writing, and in referring to a document of revocation, it is also
expressed that its validity should be proved in a direct proceeding,
instituted for the purpose in a probate court. In the case at bar, the
document, executed by the deceased, Simeona F. Naval, as her last will
and testament, dated February 13, 1915, has been presented for
allowance; its validity has been proved by means of said procedure in the
Court of Probate of Manila, and that court denied its allowance, on the
ground that the document in question had not been duly executed by the
deceased, as her last will and testament, because she did not sign in the
presence of three witnesses, and two of these witnesses did not sign in the
presence of each other, or what is the same thing, that said document had
not been attested and subscribed in the manner established by law for the
execution of wills, or, in other words, as provided by law in case of wills, as
stated by section 623 of said procedural law, and this resolution was
acquiesced in, as already stated, by the respondents in this case, and is,
therefore, final and executory.

In conclusion, the doctrine laid down in the decision of the Supreme Court
of Massachusetts, invoked by the appellant, Monica Naval, is in conformity
with the provision of said section 623 of our procedural law and article 739
of the Civil Code, and the will executed by the deceased Simeona F. Naval
on October 31, 1914, not having been revoked, according to these
62
ARTICLE 838
[G.R. No. 115925. August 15, 2003.]
SPOUSES RICARDO PASCUAL and CONSOLACION SIOSON, petitioners, vs.
COURT OF APPEALS and REMEDIOS S. EUGENIO-GINO, respondents.
CARPIO, J p:
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 attorney's fees. HASTCa
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 CANUTO's 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:
xxx xxx xxx
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 akin 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. (Italics 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 ngayo'y nakikilalang Lote No. 2-
A at Lote No. 2-E ng Plano de Subdivision Psd-34713. (Italics 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 CATALINA's 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 CANUTO's share
in Lot 2. REMEDIOS prayed for the cancellation of CONSOLACION's 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
CONSOLACION's 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 CONSOLACION's 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 CATALINA's 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 attorney's 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 CATALINA's LAST WILL from which REMEDIOS claims to
derive her title has not been admitted to probate. Under Article 838 of the
63
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 court's 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 attorney's 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
On 31 January 1994, the Court of Appeals rendered judgment reversing the
decision of the trial court. The appellate court held that what REMEDIOS
filed was a suit to enforce an implied trust allegedly created in her favor
when CONSOLACION fraudulently registered her title over Lot Nos. 2-A and
2-E. Consequently, the prescriptive period for filing the complaint is ten
years, not four. The Court of Appeals counted this ten-year period from 19
November 1982. Thus, when REMEDIOS filed her complaint on 4 February
1988, the ten-year prescriptive period had not yet expired.
The appellate court held that CATALINA's unprobated LAST WILL does not
preclude REMEDIOS from seeking reconveyance of Lot Nos. 2-A and 2-E as
the LAST WILL may subsequently be admitted to probate. The dispositive
portion of the appellate court's ruling provides:
WHEREFORE, the decision appealed from is REVERSED and SET ASIDE. The
Registry of Deeds of Rizal or Metro Manila, District III, is ordered to place
Transfer Certificate of Title No. (232252) 1321 under the name of Remedios
S. Eugenio-Gino as executor of the will of Catalina Sioson and cancel the
names of the Spouses Ricardo Pascual and Consolacion 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 attorney's 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.
The Issues
Petitioners allege the following assignment of errors:
I. THE COURT OF APPEALS ERRED IN HOLDING THAT PRIVATE RESPONDENT'S
CAUSE OF ACTION IS NOT BARRED BY PRESCRIPTION WHICH FINDING IS
MANIFESTLY CONTRARY TO LAW AND THE APPLICABLE DECISIONS OF THIS
HONORABLE COURT.
II. THE COURT OF APPEALS ERRED IN NOT HOLDING THAT PRIVATE
RESPONDENT DOES NOT HAVE ANY TITLE AND HAS UTTERLY FAILED TO PROVE
ANY TITLE TO THE LOTS INVOLVED IN THIS CASE, AND IN ORDERING THE
CANCELLATION OF THE CERTIFICATE OF TITLE OF PETITIONERS.
III. THE COURT OF APPEALS ACTED WITH GRAVE ABUSE OF DISCRETION
AMOUNTING TO LACK OF JURISDICTION AND IN GROSS VIOLATION OF THE
RULES OF COURT IN ORDERING THE ENTIRE PROPERTY COVERED BY TRANSFER
CERTIFICATE OF TITLE NO. (232252) 1321 TO BE PLACED IN THE NAME OF
PRIVATE RESPONDENT, BECAUSE THE CLAIM OF PRIVATE RESPONDENT IS
LIMITED ONLY TO ONE-HALF () PORTION OF THE PROPERTY, AND THE OTHER
HALF THEREOF UNQUESTIONABLY BELONGS TO PETITIONERS.
IV. THE COURT OF APPEALS ERRED IN HOLDING THAT PETITIONERS ACTED
FRAUDULENTLY AND IN BAD FAITH IN SECURING THEIR CERTIFICATE OF TITLE
TO THE PROPERTY INVOLVED IN THIS CASE, AND IN ORDERING PETITIONERS
TO PAY PRIVATE RESPONDENTS MORAL DAMAGES, EXEMPLARY DAMAGES
AND ATTORNEY'S FEES. 11
The pivotal questions are: (1) whether prescription bars the action filed by
REMEDIOS, and (2) whether REMEDIOS is a real party-in-interest.
The Ruling of the Court
The petition has merit.
The Action is Barred by Prescription
The trial court held that the action filed by REMEDIOS is one based on fraud.
REMEDIOS' action seeks to recover real property that petitioners allegedly
acquired through fraud. Consequently, the trial court held that the action
prescribes in four years counted from REMEDIOS' actual discovery of
petitioners' adverse title. The trial court concluded that REMEDIOS belatedly
filed her suit on 4 February 1988 because she actually knew of petitioners'
adverse title since 19 November 1982.
On the other hand, the Court of Appeals held that what REMEDIOS filed
was a suit to enforce an implied trust. REMEDIOS had ten years counted
from actual notice of the breach of trust, that is, the assertion of adverse
title, within which to bring her action. The appellate court held that
REMEDIOS seasonably filed her complaint on 4 February 1988 because she
allegedly discovered petitioners' adverse title only on 19 November 1982.
What REMEDIOS filed was an action to enforce an implied trust but the
same is already barred by prescription.
Prescriptive Period is 10 Years Counted
From Registration of Adverse Title
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 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 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 Court's 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 . . . are not
prepared to count the period from such date in this case. We note the
64
petitioner's 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. (Italics 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 CANUTO's 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 VICTORIANO's 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 CATALINA's 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
CATALINA's 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 CONSOLACION's 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 CATALINA's 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 CATALINA's LAST WILL. However, since the probate court
has not admitted CATALINA's 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 CATALINA's 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, . . .
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 . . . 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 fact that the parcels sold to
them by Canuto Sioson, assuming there was such a sale, were different
parcels of land, Lots 2-A and 2-E being the properties of the late Catalina
Sioson who bequeathed the same to the plaintiff.
xxx xxx xxx
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 . .
. 29 (Italics 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. SO ORDERED.
65
[G.R. No. L-57848. June 19, 1982.]
RAFAEL E. MANINANG and SOLEDAD L. MANINANG, petitioners, vs. COURT
OF APPEALS, HON. RICARDO L. PRONOVE, JR., as Judge of the Court of First
Instance of Rizal and BERNARDO S. ASENETA, respondents.
MELENCIO-HERRERA, J p:
A Petition to Review the Decision of April 28, 1981 of respondent Appellate
Court in CA-G.R. No. 12032-R entitled "Rafael E. Maninang and Soledad L.
Maninang vs. Hon. Ricardo Pronove, Judge of the Court of First Instance of
Rizal, Pasig, Branch XI, and Bernardo S. Aseneta".
Pertinent to the controversy are the following antecedental facts:
On May 21, 1977, Clemencia Aseneta, single, died at the Manila Sanitarium
Hospital at age 81. She left a holographic will, the pertinent portions of
which are quoted hereunder: LexLib
xxx xxx xxx
"It is my will that all my real properties located in Manila, Makati, Quezon
City, Albay and Legaspi City and all my personal properties shall be
inherited upon my death by Dra. Soledad L. Maninang with whose family I
have lived continuously for around the last 30 years now. Dra. Maninang
and her husband Pamping have been kind to me. . . . I have found peace
and happiness with them even during the time when my sisters were still
alive and especially now when I am now being troubled by my nephew
Bernardo and niece Salvacion. I am not incompetent as Nonoy would like
me to appear. I know what is right and wrong. I can decide for myself. I do
not consider Nonoy as my adopted son. He has made me do things against
my will."
"xxx xxx xxx"
On June 9, 1977, petitioner Soledad Maninang filed a Petition for probate
of the Will of the decedent with the Court of First Instance-Branch IV,
Quezon City (Sp. Proc. No. Q-23304, hereinafter referred to as the Testate
Case).
On July 25, 1977, herein respondent Bernardo Aseneta, who, as the
adopted son, claims to be the sole heir of decedent Clemencia Aseneta,
instituted intestate proceedings with the Court of First Instance-Branch XI,
Pasig, Rizal (Sp. Proc. No. 8569, called hereinafter the Intestate Case; for
brevity).
On December 23, 1977, the Testate and Intestate Cases were ordered
consolidated before Branch XI, presided by respondent Judge.
Respondent Bernardo then filed a Motion to Dismiss the Testate Case on the
ground that the holographic will was null and void because he, as the only
compulsory heir, was preterited and, therefore, intestacy should ensue. In
support of said Motion to Dismiss, respondent Bernardo cited the cases of
Neri vs. Akutin (72 Phil. 322); Nuguid vs. Nuguid (17 SCRA 449), and Ramos
vs. Baldovino (2 CA Rep. 2nd, 878).
In her Opposition to said Motion to Dismiss, petitioner Soledad averred that
it is still the rule that in a case for 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; and that respondent Bernardo was effectively disinherited by the
decedent. 2
On September 8, 1980, the lower Court ordered the dismissal of the Testate
Case in this wise:
"For reasons stated in the motion to dismiss filed by petitioner Bernardo S.
Aseneta which the Court finds meritorious, the petition for probate of will
filed by Soledad L. Maninang and which was docketed as Sp. Proc. No. Q-
23304 is DISMISSED, without pronouncement as to costs."
On December 19, 1980, the lower Court denied reconsideration for lack of
merit and in the same Order appointed Bernardo as the administrator of
the intestate estate of the deceased Clemencia Aseneta "considering that
he is a forced heir of said deceased while oppositor Soledad Maninang is
not, and considering further that Bernardo Aseneta has not been shown to
be unfit to perform the duties of the trust."
Petitioners Maninang resorted to a Certiorari Petition before respondent
Court of Appeals alleging that the lower Court exceeded its jurisdiction in
issuing the Orders of dismissal of the Testate Case (September 8, 1980) and
denial of reconsideration (December 19, 1980).
On April 28, 1981, respondent Court 3 denied Certiorari and ruled that the
trial Judge's Order of dismissal was final in nature as it finally disposed of the
Testate Case and, therefore, appeal was the proper remedy, which
petitioners failed to avail of. Continuing, it said that even granting that the
lower Court committed errors in issuing the questioned Orders, those are
errors of judgment reviewable only by appeal and not by Certiorari.
Thus, this Petition before us.
We find that the Court a quo a quo acted in excess of its jurisdiction when
it dismissed the Testate Case. Generally, the probate of a Will is mandatory.
"No will shall pass either real or personal property unless it is proved and
allowed in accordance with the Rules of Court."
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.
Normally, the probate of a Will does not look into its intrinsic validity.
". . . The authentication of a will decides no other question than such as
touch upon the capacity of the testator and the compliance with those
requisites or solemnities which the law prescribes for the validity of wills. It
does not determine nor even by implication prejudge the validity or
efficiency (sic) of the provisions, these may be impugned as being vicious
or null, notwithstanding its authentication. The questions relating to these
points remain entirely unaffected, and may be raised even after the will has
been authenticated . . ."
"Opposition to the intrinsic validity or legality of the provisions of the will
cannot be entertained in Probate proceeding because its only purpose is
merely to determine if the will has been executed in accordance with the
requirements of the law."
Respondent Bernardo, however, relies on the pronouncement in Nuguid vs.
Nuguid 8 , reading:
"In a proceeding 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 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 that issue. (Emphasis supplied)
Our ruling in Balanay vs. Hon. Martinez 9 had a similar thrust:
"The trial court acted correctly in passing upon the will's intrinsic validity even
before its formal validity had been established. The probate of a will might
become an idle ceremony if on its face it appears to be intrinsically void.
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."
The Nuguid and the Balanay cases provide the exception rather than the
rule. The intrinsic validity of the Wills in those cases was passed upon even
before probate because "practical considerations" so demanded.
Moreover, for the parties in the Nuguid case, the "meat of the controversy"
was the intrinsic validity of the Will; in fact, the parties in that case "shunted
aside the question of whether or not the Will should be allowed probate."
Not so in the case before us now where the probate of the Will is insisted on
by petitioners and a resolution on the extrinsic validity of the Will
demanded.
Moreover, in the Nuguid case, this Court ruled that the Will was intrinsically
invalid as it completely preterited the parents of the testator. In the instant
case, a crucial issue that calls for resolution is whether under the terms of
the decedent's Will, private respondent had been preterited or disinherited,
and if the latter, whether it was a valid disinheritance. Preterition and
disinheritance are two diverse concepts.
". . . 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.' (Neri vs. Akutin, 72 Phil. 325). Disinheritance, in turn, 'is a
testamentary disposition depriving any compulsory heirs of his share in the
legitime for a cause authorized by law.' (Justice J.B.L. Reyes and R.C. Puno,
'An Outline of Philippine Civil Law', 1956 ed., Vol. III, p. 8, citing cases)
Disinheritance is always 'voluntary', preterition, upon the other hand, is
presumed to be 'involuntary' (Sanchez Roman, Estudios de Derecho Civil
2nd edition, Volumen 2.o, p. 1131)."
66
The effects of preterition and disinheritance are also totally different.

". . . The effects flowing from preterition are totally different from those of
disinheritance. Preterition under Article 854 of the New Civil Code 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', but only 'insofar as it
may prejudice the person disinherited', which last phrase was omitted in the
case of preterition (III Tolentino, Civil Code of the Philippines, 1961 Edition,
p. 172). Better stated yet, in disinheritance the nullity is limited to that portion
of the estate of which the disinherited heirs have been illegally deprived."

By virtue of the dismissal of the Testate Case, the determination of that

controversial issue has not been thoroughly considered. We gather from the
assailed Order of the trial Court that its conclusion was that respondent
Bernardo has been preterited. We are of opinion, however, that from the
face of the Will, that conclusion is not indubitable.

As held in the case of Vda. de Precilla vs. Narciso

". . . it is as important a matter of public interest that a purported will is not
denied legalization on dubious grounds. Otherwise, the very institution of
testamentary succession will be shaken to its foundation, . . ."
Coming now to the procedural aspect, suffice it to state that in view of our
finding that respondent Judge had acted in excess of his jurisdiction in
dismissing the Testate Case, Certiorari is a proper remedy. An act done by
a Probate Court in excess of its jurisdiction may be corrected by Certiorari.
13 And even assuming the existence of the remedy of appeal, we harken
to the rule that in the broader interests of justice, a petition for Certiorari
may be entertained, particularly where appeal would not afford speedy
and adequate relief.

WHEREFORE, the Decision in question is set aside and the Orders of the
Court of First Instance-Branch XI, Rizal, dated September 8, 1980 and
December 19, 1980, are nullified. Special Proceeding No. Q-23304 is hereby
remanded to said Court of First Instance-Branch XI, Rizal, therein to be
reinstated and consolidated with Special Proceeding No. 8569 for further
proceedings.

No pronouncement as to costs.

SO ORDERED.

67
[G.R. No. 45629. September 22, 1938.]
ATILANO G. MERCADO, petitioner, vs. ALFONSO SANTOS, Judge of First
Instance of Pampanga, and IIGO S. DAZA, Provincial Fiscal of Pampanga,
respondents. ROSARIO BASA DE LEON, ET AL., intervenors.
LAUREL, J p:
On May 28, 1931, the petitioner herein filed in the Court of First Instance of
Pampanga a petition for the probate of the will of his deceased wife, Ines
Basa. Without any opposition, and upon the testimony of Benigno F.
Gabino, one of the attesting witnesses, the probate court, on June 27, 1931,
admitted the will to probate. Almost three years later, on April 11, 1934, the
five intervenors herein moved ex parte to reopen the proceedings, alleging
lack of jurisdiction of the court to probate the will and to close the
proceedings. Because filed ex parte, the motion was denied. The same
motion was filed a second time, but with notice to the adverse party. The
motion was nevertheless denied by the probate court on May 24, 1934. On
appeal to this court, the order of denial was affirmed on July 26, 1935. (Basa
vs. Mercado, 33 off. Gaz., 2521.)
It appears that on October 27, 1932, i. e., sixteen months after the probate
of the will of Ines Basa, intervenor Rosario Basa de Leon filed with the justice
of the peace court of San Fernando, Pampanga, a complaint against the
petitioner herein, for falsification or forgery of the will probated as above
indicated. The petitioner was arrested. He put up a bond in the sum of
P4,000 and engaged the services of an attorney to undertake his defense.
Preliminary investigation of the case was continued twice upon petition of
the complainant. The complaint was finally dismissed, at the instance of the
complainant herself, in an order dated December 8, 1932. Three months
later, or on March 2, 1933, the same intervenor charged the petition for the
second time with the same offense, presenting the complaint this time in
the justice of the peace court of Mexico, Pampanga. The petitioner was
again arrested, again put up a bond in the sum of P4,000, and engaged
the services of counsel to defend him. This second complaint, after
investigation, was also dismissed, again at the instance of the complainant
herself who alleged that the petitioner was in poor health. That was on April
27, 1933. Some nine months later, on February 2, 1934, to be exact, the
same intervenor accused the same petitioner for the third time of the same
offense. The information was filed by the provincial fiscal of Pampanga in
the justice of the peace court of Mexico. The petitioner was again arrested,
again put up a bond of P4,000, and engaged the services of defense
counsel. The case was dismissed on April 24, 1934, after due investigation,
on the ground that the will alleged to have been falsified had already been
probated and there was no evidence that the petitioner had forged the
signature of the testatrix appearing thereon, but that, on the contrary, the
evidence satisfactorily established the authenticity of the signature
aforesaid. Dissatisfied with the result, the provincial fiscal, on May 9, 1934,
moved in the Court of First Instance of Pampanga for reinvestigation of the
case. The motion was granted on May 23, 1934, and, for the fourth time, the
petitioner was arrested, filed a bond and engaged the services of counsel
to handle his defense. The reinvestigation dragged on for almost a year until
February 18, 1934, when the Court of First Instance ordered that the case
be tried on the merits. The petitioner interposed a demurrer on November
25, 1935, on the ground that the will alleged to have been forged had
already been probated. This demurrer was overruled on December 24,
1935, whereupon an exception was taken and a motion for reconsideration
and notice of appeal were filed. The motion for reconsideration and the
proposed appeal were denied on January 14, 1936. The case proceeded
to trial, and forthwith petitioner moved to dismiss the case claiming again
that the will alleged to have been forged had already been probated and,
further, that the order probating the will is conclusive as to the authenticity
and due execution thereof. The motion was overruled and the petitioner
filed with the Court of Appeals a petition for certiorari with preliminary
injunction to enjoin the trial court from further proceedings in the matter.
The injunction was issued and thereafter, on June 19, 1937, the Court of
Appeals denied the petition for certiorari, and dissolved the writ of
preliminary injunction. Three justices dissented in a separate opinion. The
case is now before this court for review on certiorari.
Petitioner contends: (1) that the probate of the will of his deceased wife is
a bar to his criminal prosecution for the alleged forgery of the said will; and,
(2) that he has been denied the constitutional right to a speedy trial.
1. Section 306 of our Code of Civil Procedure provides as to the effect of
judgment:
"SEC. 306. Effect of judgment. The effect of a judgment or final order in
an action or special proceeding before a court or judge of the Philippine
Islands or of the United States, or of any State or Territory of the United States,
having jurisdiction to pronounce the judgment or order, may be as follows:
"1. In case of a judgment or order against a specific thing, or in respect to
the probate of a will, or the administration of the estate of a deceased
person, or in respect to the personal, political, or legal condition or relation
of a particular person, the judgment or order is conclusive upon the title of
the thing, the will or administration, or the condition or relation of the person:
Provided, That the probate of a will or granting of letters of administration
shall only be prima facie evidence of the death of the testator or intestate:
xxx xxx xxx
(Emphasis ours.)
Section 625 of the same Code is more explicit as to the conclusiveness of
the due execution of a probated will. It says:
"SEC. 625. Allowance Necessary, and Conclusive as to Execution. No will
shall pass either the real or personal estate, unless it is proved and allowed
in the Court of First Instance, or by appeal to the Supreme Court; and the
allowance by the court of a will of real and personal estate shall be
conclusive as to its due execution." (Emphasis ours.)
In Manahan vs. Manahan (58 Phil., 448, 451), we held:
". . . The decree of probate is conclusive with respect to the due execution
thereof and it cannot be impugned on any of the grounds authorized by
law, except that of fraud, in any separate or independent action or
proceeding. (Sec. 625, Code of Civil Procedure; Castaneda vs. Alemany, 3
Phil., 426; Pimentel vs. Palanca, 5 Phil., 436; Sahagun vs. De Gorostiza, 7 Phil.,
347; Limjuco vs. Ganara, 11 Phil., 393; Montaano vs. Suesa, 14 Phil., 676; In
re Estate of Johnson, 39 Phil., 156; Riera vs. Palmaron, 40 Phil., 105; Austria vs.
Ventenilla, 21 Phil., 180; Ramirez vs. Gmur, 42 Phil., 855; and Chiong Joc-soy
vs. Vano, 8 Phil., 119."
In 28 R. C. L., p. 377, section 378, it is said:
"The probate of a will by the probate court having jurisdiction thereof is
usually considered as conclusive as to its due execution and validity, and is
also conclusive that the testator was of sound and disposing mind at the
time when he executed the will, and was not acting under duress, menace,
fraud, or undue influence, and that the will is genuine and not a forgery."
(Emphasis ours.)
As our law on wills, particularly section 625 of our Code of Civil Procedure
aforequoted, was taken almost bodily from the Statutes of Vermont, the
decisions of the Supreme Court of that State relative to the effect of the
probate of a will are of persuasive authority in this jurisdiction. The Vermont
statute as to the conclusiveness of the due execution of a probated will
reads as follows:
"SEC. 2356. No will shall pass either real or personal estate, unless it is proved
and allowed in the probate court, or by appeal in the country or supreme
court; and the probate of a will of real or personal estate shall be conclusive
as to its due execution." (Vermont Statutes, p. 451.)
Said the Supreme Court of Vermont in the case of Missionary Society vs.
Eelss (68 Vt., 497, 504): "The probate of a will by the probate court having
jurisdiction thereof, upon the due notice, is conclusive as to its due
execution against the whole world. (Vt. St., sec. 2336; Foster's Exrs. vs.
Dickerson, 64 Vt., 233.)"
The probate of a will in this jurisdiction is a proceeding in rem. The provision
of notice by publication as a prerequisite to the allowance of a will is
constructive notice to the whole world, and when probate is granted, the
judgment of the court is binding upon everybody, even against the State.
This court held in the case of Manalo vs. Paredes and Philippine Food Co.
(47 Phil., 938):
"The proceeding for the probate of a will is one in rem (40 Cyc., 1265), and
the court acquires jurisdiction over all the persons interested, through the
publication of the notice prescribed by section 630 of the Code of Civil
Procedure, and any order that may be entered therein is binding against
all of them.
"Through the publication of the petition for the probate of the will, the court
acquires jurisdiction over all such persons as are interested in said will; and
any judgment that may be rendered after said proceeding is binding
against the world."
In Everrett vs. Wing (103 Vt., 488, 492), the Supreme Court of Vermont held:
"In this State the probate of a will is a proceeding in rem, being in form and
substance upon the will itself to determine its validity. The judgment
68
determines the status of the instrument, whether it is or is not the will of the
testator. When the proper steps required by law have been taken the
judgment is binding upon everybody, and makes the instrument as to all
the world just what the judgment declares it to be. (Woodruff vs. Taylor, 20
Vt., 65, 73; Burbeck vs. Little, 50 Vt., 713; 715; Missionary Society vs. Eells, 68
Vt., 497, 504; 35 Atl. 463.) The proceedings before the probate court are
statutory and are not governed by common-law rules as to parties or
causes of action. (Holdrige vs. Holdrige's Estate, 53 Vt., 546, 550; Purdy vs.
Estate of Purdy, 67 Vt. 50, 55; 30 Atl., 695.) No process is issued against
anyone in such proceedings, but all persons interest in determining the state
or conditions of the instrument are constructively notified by the publication
of notice as required by G. L. 3219. (Woodruff vs. Taylor, supra; In re Warner's
Estate 98 Vt., 254; 271; 127 Atl., 362.)"
Section 333, paragraph 4, of the Code of Civil Procedure establishes an
incontrovertible presumption in favor of judgments declared by it to be
conclusive:
"SEC. 333. Conclusive Presumptions. The following presumptions or
deductions, which the law expressly directs to be made from particular
facts, are deemed conclusive:
"xxx xxx xxx
"4. The judgment or order of a court, when declared by this code to be
conclusive."
Conclusive presumptions are inferences which the law makes so
peremptory that it will not allow them to be overturned by any contrary
proof however strong. (Brant vs. Morning Journal Ass'n., 80 N. Y. S., 1002,
1004; 81 App. Div., 183; see, also, Joslyn vs. Puloer, 59 Hun., 129, 140; 13 N. Y.
S., 311.) The will in question having been probated by a competent court,
the law will not admit any proof to overthrow the legal presumption that it
is genuine and not a forgery.
The majority decision of the Court of Appeals cites English decisions to
bolster up its conclusion that "the judgment admitting the will to probate is
binding upon the whole world as to the due execution and genuineness of
the will insofar as civil rights and liabilities are concerned, but not for the
purpose of punishment of a crime." The cases of Dominus Rex vs. Vincent,
93 English Reports, Full Reprint, 648 and Dominus Rex vs. Rodes, 93 English
Reports, Full Reprint, 795, the first case being decided in 1721, were cited to
illustrate the earlier English decisions to the effect that upon indictment for
forging a will, the probating of the same is conclusive evidence in the
defendant's favor of its genuine character. Reference is made, however,
to the cases of Rex vs. Gibson, 168 English Reports, Full Reprint, 836, footnote
(a), decided in 1802, and Rex vs. Buttery and Macnamarra, 168 English
Reports, Full Reprint, 836, decided in 1818, which establish a contrary rule.
Citing these later cases, we find the following quotation from Black on
Judgments, Vol. II, page 764:
"A judgment admitting a will to probate cannot be attacked collaterally
although the will was forged; and a payment to the executor names therein
of a debt due the decedent will discharge the same, notwithstanding the
spurious character of the instrument probated. It has also been held that,
upon an indictment for forging a will, the probate of the paper in question
is conclusive evidence in the defendant's favor of its genuine character.
But this particular point has lately been ruled otherwise."
It was the case of Rex vs. Buttery, supra, which induced the Supreme Court
of Massachusetts in the case of Waters vs. Stickney (12 Allen 1; 90 Am. Dec.,
122) also cited by the majority opinion, to hold that "according to later and
sounder decisions, the probate, though conclusive until set aside of the
disposition of the property, does not protect the forger from punishment."
This was reproduced in 28 R. C. L., p. 376, and quoted in Barry vs. Walker
9103 Fla., 533; 137 So., 711, 715), and Thompson vs. Freeman (149 So., 740,
742), also cited in support of the majority opinion of the Court of Appeals.
The dissenting opinion of the Court of Appeals in the instant case under
review makes a cursory study of the statutes obtaining in England,
Massachusetts and Florida, and comes to the conclusion that the decisions
cited in the majority opinion do not appear to "have been promulgated in
the face of statutes similar to ours." The dissenting opinion cites Wharton's
Criminal Evidence (11th ed., sec. 831), to show that the probate of a will in
testamentary causes (Ewell's Blackstone [1910], p. 460), were determined
England is only prima facie proof of the validity of the will (Op. Cit. quoting
Marriot vs. Marriot, 93 English Reprint, 770); and 21 L. R. A. (pp. 686-689 and
note), to show that in Massachusetts there is no statute making the probate
of a will conclusive, and that in Florida the statute (sec. 1810, Revised
Statutes) makes the probate conclusive evidence as to the validity of the
will with regard to personal, and prima facie as to real estate. The cases
decided by the Supreme Court of Florida cited by the majority opinion,
supra, refer to wills of both personal and real estate.
The petitioner cites the case of State vs. McGlynn (20 Cal., 233, decided in
1862), in which Justice Norton of the Supreme Court of California, makes
the following review of the nature of probate proceedings in England with
respect to wills personal and real property:
"In England, the probate of wills of personal estate belongs to the
Ecclesiastical Courts. No probate of a will relating to real estate is there
necessary. The real estate, upon the death of the party seized, passes
immediately to the devisee under the will if there be one; or if there be no
will, to the heir at law. The person who thus becomes entitled takes
possession. If one person claims to be the owner under a will, and another
denies the validity of the will and claims to be the owner as heir at law, an
action of ejectment is brought against the party who may be in possession
by the adverse claimant; and on the trial of such an action, the validity of
the will is contested, and evidence may be given by the respective parties
as to any fraud practiced upon him, or as to the actual execution of it, or
as to any other circumstance affecting its character as a valid devise of the
real estate in dispute. The decision upon the validity of the will in such action
becomes res adjudicata, and is binding and conclusive upon the parties to
that action and upon any reason who may subsequently acquire the title
from either of those parties; but the decision has no effect upon other
parties, and does not settle what may be called the status or character of
the will, leaving it subject to be enforced as a valid will, or defeated as
invalid, whenever other parties may have a contest depending upon it. A
judicial determination of the character of the will itself. It does not
necessarily or ordinarily arise from any controversy between adverse
claimants, but is necessary in order to authorize a disposition of the personal
estate in pursuance of its provisions. In case of any controversy between
adverse claimants of the personal estate, the probate is given in evidence
and is binding upon the parties, who are not at liberty to introduce any
other evidence as to the validity of the will."
The intervenors, on the other hand, attempt to show that the English law on
wills is different from that stated in the case of State vs. McGlynn, supra,
citing the following statutes:
1. The Wills Act, 1837 (7 Will. 4 E 1 Vict. c. 26).
2. The Court of Probate Act, 1857 (20 & 21 Vict. c. 77).
3. The Judicature Act, 1873 (36 & 37 Vict. c. 66).
The Wills Act of 1837 provides that probate may be granted of "every
instrument purporting to be testamentary and executed in accordance
with the statutory requirements . . . if it disposes of property, whether
personal or real." the Ecclesiastical Courts which took charge of
by the Court of Probate Act of 1857, and the Court of Probate in turn was,
together with other courts, incorporated into the Supreme Court of
Judicature, and transformed into the Probate Division thereof, by the
Judicature Act of 1873. (Lord Halsbury, The Laws of England [1910], pp. 151-
156.) The intervenors overlook the fact, however, that the case of Rex vs.
Buttery and Macnamarra, supra, upon which they rely in support of their
theory that the probate of a forged will does not protect the forger from
punishment, was decided long before the foregoing amendatory statutes
to the English law on wills were enacted. The case of State vs. McGlynn may
be considered, therefore, as more or less authoritative on the law of
England at the time of the promulgation of the decision in the case of Rex
vs. Buttery and Macnamarra.
In the case of State vs. McGlynn, the Attorney-General of California filed an
information to set aside the probate of the will of one Broderick, after the
lapse of one year provided by the law of California for the review of an
order probating a will, in order that the estate may be escheated to the
State of California, on the ground that the probated will was forged and
that Broderick therefore died intestate, leaving no heirs, representatives or
devisees capable of inheriting his estate. Upon these facts, the Supreme
Court of California held:
"The fact that a will purporting to be the genuine will of Broderick, devising
his estate to a devisee capable of inheriting and holding it, has been
admitted to probate and established as a genuine will by the decree of a
Probate Court having jurisdiction of the case, renders it necessary to decide
whether that decree, and the will established by it, or either of them, can
be set aside and vacated by the judgment of any other court. If it shall be
found that the decree of the Probate Court, not reversed by the appellate
court, is final and conclusive, and not liable to be vacated or questioned
by any other court, either incidentally or by any direct proceeding, for the
purpose of impeaching it, and that so long as the probate stands the will
must be recognized and admitted in all courts to be valid, then it will be
immaterial and useless to inquire whether the will in question was in fact
genuine or forged." (State vs. McGlynn, 20 Cal., 233; 81 Am. Dec., 118, 121.)
69
Although in the foregoing case the information filed by the State was to set
aside the decree of probate on the ground that the will was forged, we see
no difference in principle between that case and the case at bar. A subtle
distinction could perhaps be drawn between setting aside a decree of
probate, and declaring a probated will to be a forgery. it is clear, however,
that a duly probated will cannot be declared to be a forgery without
disturbing in a way the decree allowing said will to probate. It is at least
anomalous that a will should be regarded as genuine for one purpose and
spurious for another.
The American and English cases show a conflict of authorities on the
question as to whether or not the probate of a will bars criminal prosecution
of the alleged forger of the probated will. We have examined some
important cases and have come to the conclusion that no fixed standard
may be adopted or drawn therefrom, in view of the conflict no less than of
diversity of statutory provisions obtaining in different jurisdictions. It
behooves us, therefore, as the court of last resort, to choose that rule most
consistent with our statutory law, having in view the needed stability of
property rights and the public interest in general. To be sure, we have
seriously reflected upon the dangers of evasion from punishment of culprits
deserving of the severity of the law in cases where, as here, forgery is
discovered after the probate of the will and the prosecution is had before
the prescription of the offense. By and large, however, the balance seems
inclined in favor of the view that we have taken. Not only does the law
surround the execution of the will with the necessary formalities and require
probate to be made after an elaborate judicial proceeding, but section
113, not to speak of section 513, of our Code of Civil Procedure provides for
an adequate remedy to any party who might have been adversely
affected by the probate of a forged will, much in the same way as other
parties against whom a judgment is rendered under the same or similar
circumstances. (Pecson vs. Coronel, 43 Phil., 358.) The aggrieved party may
file an application for relief with the proper court within a reasonable time,
but in no case exceeding six months after said court has rendered the
judgment of probate, on the ground of mistake, inadvertence, surprise or
excusable neglect. An appeal lies to review the action of a court of first
instance when that court refuses to grant relief. (Banco Espaol-Filipino vs.
Palanca, 37 Phil., 921; Philippine Manufacturing Co. vs. Imperial, 47 Phil., 810;
Samia vs. Medina, 56 Phil., 613.) After a judgment allowing a will to be
probated has become final and unappelable, and after the period fixed
by section 113 of the Code of Civil Procedure has expired, the law as an
expression of the legislative wisdom goes no further and the case ends
there.
". . . The court of chancery has no capacity, as the authorities have settled,
to judge or decide whether a will is or is not a forgery; and hence there
would be an incongruity in its assuming to set aside a probate decree
establishing a will, on the ground that the decree was procured by fraud,
when it can only arrive at the fact of such fraud by first deciding that the
will was a forgery. There seems, therefore, to be a substantial reason, so long
as a court of chancery is not allowed to judge of the validity of a will, except
as shown by the probate, for the exception of probate decrees from the
jurisdiction which courts of chancery exercise in setting aside other
judgments obtained by fraud. But whether the exception be founded in
good reason or otherwise, it has become too firmly established to be
disregarded. At the present day, it would not be a greater assumption to
deny the general rule that courts of chancery may set aside judgments
procured by fraud, than to deny the exception to that rule in the case of
probate decrees. We must acquiesce in the principle established by the
authorities, if we are unable to approve of the reason. Judge Story was a
staunch advocate for the most enlarged jurisdiction of courts of chancery,
and was reluctant to allow the exception in cases of wills, but was
compelled to yield to the weight of authority. He says: 'No other excepted
case is known to exist; and it is not easy to discover the grounds upon which
this exception stands, in point of reason or principle, although it is clearly
settled by authority.' (1 Story's Eq. Jur. sec. 440.)" (State vs. McGlyn,, 20 Cl.,
233; 81 Am. Dec., 118, 129. See, also, Tracy vs. Muir, 121 American State
Reports, 118, 125.).
We hold, therefore, that in view of the provisions of sections 306, 333 and
625 of our Code of Civil Code Procedure, criminal action will not lie in this
jurisdiction against the forger of a will which had been duly admitted to
probate by a court of competent jurisdiction.
The resolution of the foregoing legal question is sufficient to dispose of the
case. However, the other legal question with reference to the denial to the
accused of his right to a speedy trial having been squarely raised and
submitted, we shall proceed to consider the same in the light of cases
already adjudicated by this court.
2. The Constitution of the Philippines provides that "In all criminal
prosecutions the accused . . . shall enjoy the right . . . to have a speedy . . .
trial . . . (Art. III, sec, 1, par. 17. See, also G. O. No. 58 sec. 15, NO. 7.) Similar
provisions are to be found in the President's Instructions to the Second
Philippine Commission (par. 11), the Philippine Bill of July 1, 1902 (sec. 5, par.
2) and the Jones Act of August 29, 1916 (sec. 3, par. 2). The provision in the
foregoing organic acts appear to have been taken from similar provisions
in the Constitution of the United States (6th Amendment) and those of the
various states of the American Union. A similar injunction is contained in the
Malolos Constitution ( art. 8, Title IV), not to speak of other constitutions.
More than once this court had occasion to set aside the proceedings in
criminal cases to give effect to the constitutional injunction of speedy trial.
(Conde vs. Judge of First Instance and Fiscal of Tayabas [1923], 45 Phil., 173;
Conde vs. Rivera and Unson [1924], 45 Phil., 650; People vs. Castaeda and
Fernandez [1936]), 35 Off. GAz., 1269; Kalaw vs. Apostol, Oct. 15, 1937, G. R.
No. 45591; Esguerra vs. De la Costa, Aug. 30, 1938, G. R. NO. 46039.)
In Conde vs. Rivera and Unson, supra, decided before the adoption of our
Constitution, we said:
"Philippine organic and statutory law expressly guarantee that in all criminal
prosecutions the accused shall enjoy the right to have a speedy trial.
Aurelia Conde, like all other accused persons, has a right to a speedy trial
in order that if innocent she may go free, and she has been deprived of
that right in defiance of law. Dismissed from her humble position, and
compelled to dance attendance on courts while investigations and trials
are arbitrarily postponed without her consent, is palpably and openly unjust
to her and a detriment to the public. By the use of reasonable diligence,
the prosecution could have settled upon the appropriate information,
could have settled upon the appropriate information, could have
attended to the formal preliminary examination, and could have prepared
the case for a trial free from vexatious, capricious, and oppressive delays."
In People vs. Castaeda and Fernandez, supra, this court found that the
accused had not been given a fair and impartial trial. The case was to have
been remanded to the court a quo for a new trial before an impartial
judge. This step, however, was found unnecessary. A review of the
evidence convinced this court that a judgment of conviction for theft, as
changed, could not be sustained and, having in view the right to a speedy
trial guaranteed by the Constitution to every person accused of crime,
entered a judgment acquitting the accused, with costs de oficio. We said:
". . . The Constitution, Article III, section 1, paragraph 17, guarantees to every
accused person the right to a speedy trial. This criminal proceeding has
been dragging on for almost five years now. The accused have twice
appealed to this court for redress from the wrong that they have suffered
at the hands of the trial court. At least one of them, namely Pedro
Fernandez alias Piro, had been confined in prison from July 20, 1932 to
November 27, 1934, for inability to post the required bond of P3,000 which
was finally reduced to P300. The Government should be the last to set an
example of delay and oppression in the administration of justice and it is
the moral and legal obligation of this court to see that the criminal
proceedings against the accused come to an end and that they be
immediately discharged from the custody of the law. (Conde vs. Rivera and
Unson, 45 Phil., 651.)"
In Kalaw vs. Apostol, supra, the petitioner invoked and this court applied
and gave effect to the doctrines stated in the second Conde case, supra.
In granting the writs prayed for, this court, after referring to the constitutional
and statutory provisions guaranteeing to persons accused of crime the right
to a speedy trial, said:
"Se infiere de los preceptos legales transcritos que todo acusado en causa
criminal tiene derecho a ser juzgado pronta y publicamente. Juicio rapido
significa un juicio que se celebra de acuerdo con la ley de procedimiento
criminal y los reglamentos, libre de dilaciones vejatorias, caprichosas y
opresivas (Burnett vs. State, 76 Ark., 295; 88 S. W., 956; 113 AMSR, 94; Stewart
vs. State, 13 Ark., 720; Peo. vs. Shufelt, 61 Mich, 237; 28 N. W., 79; Nixon vs.
State, 10 Miss., 497; 41 AMD., 601; State vs. Cole, 4 Okl., Cr., 25; 109 P., 736;
State vs. Caruthers, 1 Okl. Cr., 428; 98 P., 474; State vs. Keefe, 17 Wyo., 227,
98 p., 122; 22 IRANS, 896; 17 Ann. Cas., 161). Segun los hechos admitidos
resulta que al recurrente se le concedio vista parcial del asunto, en el
Juzgado de Primera Instancia de Samar, solo despues de haber
transcurrido ya mas de un ao y medio desde la presentacion de la
primera querella y desde la recepcion de la causa en dicho Juzgado, y
despues de haberse transferido dos veces la vista del asunto sin su
consentimiento. A esto debe aadirse que la primera transferencia de vista
era claramente injustificada porque el motivo que se alego consistio
unicamente en la conveniencia personal del ofendido y su abogado, no
habiendose probado suficientemente la alegacion del primero de que se
hallaba enfermo. Es cierto que el recurrente habia pedido que, en vez de
seialarse a vista el asunto para el mayo de 1936, lo fuera para el noviembre
70
del mismo ao; pero, aparte de que la razon que alego era bastante fuerte
porque su abogado se oponia a comparecer por compromisos urgentes
contraidos con anterioridad y en tal circunstancia hubiera quedado
indefenso si hubiese sido obligado a entrar en juicio, aparece que la vista
se pospuso por el Juzgado a motu proprio, por haber cancelado todo el
calendario judicial preparado por el Escribano para el mes de junio.
Declaramos, con visto de estos hechos, que al recurrente se le privo de su
derecho fundamental de ser juzgado prontamente."
Esguerra vs. De la Costa, supra, was a petition for mandamus to compel
the respondent judge of the Court of First Instance of Rizal to dismiss the
complaint filed in a criminal case against the petitioner, to cancel the bond
put up by the said petitioner and to declare the costs de oficio. In
accepting the contention that the petitioner had been denied speedy trial,
this court said:
"Consta que en menos de un ao el recurrente fue procesado
criminalmente por el ageldao delito de abusos deshonestos, en el Juzgado
de Paz del Municipio de Cainta, Rizal. Como consecuencia de las
denuncias que contra el se presentaron fue arrestado tres veces y para
gozar de libertad provisional, en espera de los juicios, se vio obligado a
prestar tres fianzas por la suma de P1,000 cada una. Si no se da fin al
proceso que ultimamente se ha incoado contra el recurrente la
incertidumbre continuara cerniendose sobre el y las consiguientes
molestias y preocupaciones continuaran igualmente abrumandole. El
Titulo III, articulo 1, No. 17, de la Constitucio preceptua que en todo proceso
criminal el acusado tiene derecho de ser juzgado pronta y publicamente.
El Articulo 15, No. 7, de la Orden General No. 58 dispone asimismo que en
las causas criminales el acusado tendra derecho a ser juzgado pronta y
publicamente. Si el recurrente era realmente culpable del delito que se le
imputo, tenia de todos modos derechos a que fuera juzgado pronta y
publicamente y sin dilaciones arbitrarias y vejatorias. Hemos declarado
reiteradamente que existe un remedio positivo para los casos en que se
viola el derecho constitucional del acusado de ser juzgado prontamente.
El acusado que es privado de su derecho fundamental de ser enjuiciado
rapidamente tiene derecho a pedir que se le ponga en libertad, si
estuviese detenido, o a que la causa que pende contra el sea sobreseida
definitivamente. (Conde contra Rivera y Unson, 45 Jur. Fil., 682; In the matter
of Ford [1911], 160 Cal., 334; U. S. vs. Fox [1880], 3 Mont., 512; Kalaw contra
Apostol, R. G. No. 45591, Oct. 15, 1937; Pueblo contra Castaeda y
Fernandez, 35 Gac. Of., 1357.)"
We are again called upon to vindicate the fundamental right to a speedy
trial. The facts of the present case may be at variance with those of the
cases hereinabove referred to. Nevertheless, we are of the opinion that,
under the circumstances, we should consider the substance of the right
instead of indulging in more or less academic or undue factual
differentiations. The petitioner herein has been arrested four times, has put
up a bond in the sum of P4,000 and has engaged the services of counsel
to undertake his defense an equal number of times. The first arrest was
made upon a complaint filed by one of the intervenors herein for alleged
falsification of a will which, sixteen months before, had been probated in
court. This complaint, after investigation, was dismissed at the complaint's
own request. The second arrest was made upon a complaint charging the
same offense and this complaint, too, was dismissed at the behest of the
complainant herself who alleged the quite startling ground that the
petitioner was in poor health. The third arrest was made following the filing
of an information by the provincial fiscal of Pampanga, which information
was dismissed, after due investigation, because of insufficiency of the
evidence. The fourth arrest was made when the provincial fiscal secured a
reinvestigation of the case against the petitioner on the pretext that he had
additional evidence to present, although such evidence does not appear
to have ever been presented.
It is true that provincial fiscal did not intervene in the case until February 2,
1934, when he presented an information charging the petitioner, for the
third time, of the offense of falsification. This, however, does not matter. The
prosecution of offenses is a matter of public interest and it is the duty of the
government or those acting in its behalf to prosecute all cases to their
termination without oppressive, capricious and vexatious delay. The
Constitution does not say that the right to a speedy trial may be availed of
only where the prosecution for crime is commenced and undertaken by
the fiscal. It does not exclude from its operation cases commenced by
private individuals. Where once a person is prosecuted criminally, he is
entitled to a speedy trial, irrespective of the nature of the offense or the
manner in which it is authorized to be commenced. In any event, even the
actuations of the fiscal himself in this case is not entirely free from criticism.
From October 27, 1932, when the first complaint was filed in the justice of
the peace court of San Fernando, to February 2, 1934, when the provincial
fiscal filed his information with the justice of the peace of Mexico, one year,
three months and six days transpired; and from April 27, 1933, when the
second criminal complaint was dismissed by the justice of the peace of
Mexico, to February 2, 1934, nine months and six days elapsed. The
investigation following the fourth arrest, made after the fiscal had secured
a reinvestigation of the case, appears also to have dragged on for about
a year. There obviously has been a delay, and considering the antecedent
facts and circumstances within the knowledge of the fiscal, the delay may
not at all be regarded as permissible. In Kalaw vs. Apostol, supra, we
observed that the prosecuting officer is in charge of and has under his
direction and control all prosecutions for public offenses (secs. 1681 and
2465 of the Rev. Adm. Code), and that it is his duty to see that criminal cases
are heard without vexatious, capricious and oppressive delays so that the
courts of justice may dispose of them on the merits and determine whether
the accused is guilty or not. This is as clear an admonition as could be
made. an accused person is entitled to a trial at the earliest opportunity.
(Sutherland on the Constitution, p. 664; United States vs. Fox, 3 Mont., 512.)
He cannot be oppressed by delaying the commencement of trial for an
unreasonable length of time. If the proceedings pending trial are deferred,
the trial itself is necessarily delayed. It is not to be supposed, of course, that
the Constitution intends to remove from the prosecution every reasonable
opportunity to prepare for trial. Impossibilities cannot be expected or
extraordinary efforts required on the part of the prosecutor or the court. As
stated by the Supreme Court of the United States, "The right of a speedy
trial is necessarily relative. It is consistent with delays and depends upon
circumstances. It secures rights to a defendant. It does preclude the rights
of public justice." (Beavers vs. Haubert [1905], 198 U. S. 86; 25 S. Ct., 573; 49
Law. ed., 950, 954.)
It may be true, as seems admitted by counsel for the intervenors, in
paragraph 8, page 3 of his brief, that the delay was due to "the efforts
towards reaching an amicable extrajudicial compromise," but this fact, we
think, casts doubt instead upon the motive which led the intervenors to
bring criminal action against the petitioner. The petitioner claims that the
intention of the intervenors was to press upon settlement, with the
continuous threat of criminal prosecution, notwithstanding the probate of
the will alleged to have been falsified. Argument of counsel for the
petitioner in this regard is not without justification. Thus after the filing of the
second complaint with the justice of the peace court of Mexico,
complainant herself, as we have seen, asked for dismissal of the complaint,
on the ground that "el acusado tenia la salud bastante delicada," and,
apparently because of failure to arrive at any settlement, she decided to
renew her complaint.
Counsel for the intervenors contend and the contention is sustained by
the Court of Appeals that the petitioner did not complain heretofore of
the denial of his constitutional right to a speedy trial. This is a mistake. When
the petitioner, for the fourth time, was ordered arrested by the Court of First
Instance of Pampanga, he moved for reconsideration of the order of arrest,
alleging, among other things, "Que por estas continuas acusaciones e
investigaciones, el acusado compareciente no obsdtante su mal estado
de salud desde el ao 1932 en que tuvo que ser operado por padecer de
tuberculosis ha tenido que sostener litigios y ha sufrido la mar de
humiliaciones y zozobras y ha incurrido en enormes gastos y molestias y ha
desatendido su quebrantada salud." The foregoing allegation was inserted
on page 6 of the amended petition for certiorari presented to the Court of
Appeals. The constitutional issue also appears to have been actually raised
and considered in the Court of Appeals. In the majority opinion of that
court, it is stated:
"Upon the foregoing facts, counsel for the petitioner submits for the
consideration of this court the following questions of law: First, that the
respondent court acted arbitrarily and with abuse of its authority, with
serious damage and prejudice to the rights and interests of the petitioner,
in allowing that the latter be prosecuted and arrested for the fourth time,
and that he be subjected, also for the fourth time, to a preliminary
investigation for the same offense, thereby converting the court into an
instrument of oppression and vengeance on the pat of the alleged
offended parties, Rosario Basa et al.;. . .."
And in the dissenting opinion, we find the following opening paragraph:
"We cannot join in a decision declining to stop a prosecution that has
dragged for about five years and caused the arrest on four different
occasions of a law abiding citizen for the alleged offense of falsifying a will
that years before, had been declared genuine and valid by a court of
competent jurisdiction."
From the view we take of the instant case, the petitioner is entitled to have
the criminal proceedings against him quashed. The judgment of the Court
of Appeals is hereby reversed, without pronouncement regarding costs. So
ordered.
71
[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
DECISION
GUERRERO, J p:
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 will 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 filing of the complaint up to complete
restoration plus Fifty Thousand Pesos (P50,000.00) as attorney's fees and
costs. cdll
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, Doa Florentina Ralla,
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 Doa
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:
"(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 abovenamed heirs in the left margin of every page
(parafo primero).
(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 Doa
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.
(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 Doa 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 shall 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 Doa Florentina, also known as Doa
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 wills 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 Doa Tinay written
in Spanish reads, as translated:
"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 Francisca Alsua, Pablo Alsua, Fernando Alsua and Amparo
Alsua. The other five (5) died during their minority, single and without
children.
72

"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 Francisca 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. II; 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.
(SGD.) FLORENTINA 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 Doa Tinay filed before the
Court of First Instance of Albay their respective petitions for the probate of
their respective holographic wills which were docketed as Special
Proceedings No. 484 (Jesus Alsua, Petitioner) and Special Proceedings No.
485 (Doa Florentina Ralla de Alsua, Petitioner).
On August 14, 1956, the spouses Don Jesus and Doa Tinay executed their
mutual and reciprocal codicils amending and supplementing their
respective holographic wills. 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
Doa 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. cdrep
The codicil executed by Doa Tinay written in Spanish reads, as translated:
"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. II; 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 all 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 Francisca 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 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 pertain 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.
Ligao, Albay, Philippines, August 14, 1956.
(SGD.) FLORENTINA RALLA DE ALSUA"
(Joint Record on Appeal, pp. 423-425, CA-G.R. No. 54492-R)
And as stated previously, on the same day, August 14, 1956, Don Jesus
executed also a separate but similar codicil in exactly the same terms and
conditions as the above codicil of his wife. Also on the same day of August
14, 1956, the spouses Don Jesus and Doa Tinay both filed their respective
supplemental petitions for the probate of their respective codicils in the
probate proceedings earlier filed. On February 19, 1957, their respective
holographic wills and the codicils thereto were duly admitted to probate.
Upon the death of Doa Tinay on October 2, 1959, Don Jesus was named
executor to serve without bond in an order issued by the probate court on
October 13, 1959. Letters testamentary having been issued in favor of Don
Jesus, he took his oath of office and performed his duties as such until July
1, 1960.
Thereafter in the early part of November, 1959, Don Jesus cancelled his
holographic will in the presence of his bookkeeper and secretary, Esteban
P. Ramirez, whom he instructed to make a list of all his remaining properties
with their corresponding descriptions. His lawyer, Atty. Gregorio Imperial, Sr.
was then instructed to draft a new will which was duly signed by Don Jesus
and his attesting witnesses on November 14, 1959 at his home in Ligao,
Albay. This notarial will and testament (Exh. A) of Don Jesus executed on
November 14, 1959 had three essential features: (a) it expressly cancelled,
revoked and annulled all the provisions of Don Jesus' holographic will of
January 5, 1955 and his codicil of August 14, 1956; (b) it provided for the
collation of all his properties donated to his four living children by virtue of
the "Escritura de Particion Extrajudicial" of 1949, and that such properties be
taken into account in the partition of his estate among the children; and
(c) it instituted his children as legatees/devisees of certain specific
properties, and as to the rest of the properties and whatever may be
subsequently acquired in the future, before his death, were to be given to
Francisca and Pablo, naming Francisca as executrix to serve without a
bond. LLpr
After all debts, funeral charges and other expenses of the estate of Doa
Tinay had been paid, all her heirs including Don Jesus, submitted to the
probate court for approval a deed of partition executed on December 19,
1959 (Exh. 7-Q) and which essentially confirmed the provisions of the
partition of 1949, the holographic will and codicil of Doa Tinay. On July 6,
1960, the court approved the partition of 1959 and on January 6, 1961
declared the termination of the proceedings on the estate of Doa Tinay.
On May 6, 1964, Don Jesus Alsua died.
On May 20, 1964, petitioner herein Francisca Alsua Betts, as the executrix
named in the will of November 14, 1959, filed a petition for the probate of
said new will of Don Jesus Alsua before the Court of First Instance of Albay
73
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,
Doa Tinay, and all his children, Francisca, 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 Doa Tinay in December, 1959. LLphil
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 Francisca Alsua-Betts, specifically, 3
parcels of the 33 agricultural lands to Pablo and the rest to Francisca, the
oppositors also raised in issue the non-inclusion of said properties in the
inventory of the estate of their late father. In answer, Francisca 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 Francisca 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:
"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, Francisca 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
"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
Francisca 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:
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 of the herein private respondents as oppositors to the will in formally
agreeing in writing jointly with the petitioner Francisca Alsua de Betts that
their father, Don Jesus Alsua, be appointed by the court executor of the will
of their mother in Special Proceedings No. 485, Testate Estate of Doa
Florentina Ralla de Alsua and in subsequently petitioning the court not to
require Don Jesus Alsua to file any accounting as executor in the
proceedings, which petitioners claim and was upheld by the trial court as
constituting estoppel on the part of the private respondents from
questioning the competence of Don Jesus Alsua.
The principle of estoppel is not applicable in probate proceedings, a ruling
laid down in the case of Testate Estate of the Late Procopia Apostol.
Benedicta Obispo, et al vs. Remedios Obispo, 50 O.G. 614, penned by
Justice J.B.L. Reyes, an eminent and recognized authority on Civil Law when
he was still in the Court of Appeals, and We quote:
"Finally, probate proceedings involve public interest, and the application
therein of the rule of estoppel, when it will block the ascertainment of the
truth as to the circumstances surrounding the execution of a testament,
would seem inimical to public policy. Over and above the interest of private
parties is that of the state to see that testamentary dispositions be carried
out if, and only if, executed conformably to law.
The Supreme Court of New York aptly said in Re Canfield's Will, 300 N.Y.S.,
502:
"The primary purpose of the proceeding is not to establish the existence of
the right of any living person, but to determine whether or not the decedent
has performed the acts specified by the pertinent statutes, which are the
essential prerequisites to personal direction of the mode of devolution of his
property on death. There is no legal but merely a moral duty resting upon a
proponent to attempt to validate the wishes of the departed, and he may
and frequently does receive no personal benefit from the performance of
the act.
One of the most fundamental conceptions of probate law, is that it is the
duty of the court to effectuate, in so far as may be compatible with the
public interest, the devolutionary wishes of a deceased person (Matter of
Watson's Will, 262 N.Y., 284, 294, 186, N.E., 787; Matter of Marriman's Estate,
124 Misc. 320, 325, 208, N.Y.S., 672; Foley, S., affirmed 217 app. Div., 733, 216
N.Y.S., 126, Henderson, S., Matter of 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.'"
74

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:
"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."
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:
". . . 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,
On October 2, 1959, Doa 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 his 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 will 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 second floor. Soon Don Jesus came down, carrying
with him the will to be signed placed inside a cartolina folder. He greeted
Don Gregorio, Mr. Balan, and Atty. Imperial and immediately joined them
in conversation. Mr. Gaya called for Mr. Jose Madarieta, whose residence
is just across the road from the house of Don Jesus. Mr. Madarieta was
already informed by Don Jesus himself about the fact of signing the will that
morning, and so, on being advised by Mr. Gaya that the Imperials had
already arrived, Madarieta proceeded to the residence of Don Jesus,
without much delay. With the coming of Madarieta and the coming back
of Gaya, there were now six people gathered in the living room, namely:
Don Jesus Alsua, Don Gregorio Imperial, Atty. Jorge S. Imperial, Mr. Ramon
Balana, Mr. Jose Madarieta, and Mr. Jose Gaya. All the witnesses who
testified for the petitioner declared that Don Jesus was in bright and lively
conversation which ran from problems of farming and the merits of French-
made wines. At 11:00 o'clock, Don Gregorio made a remark that it is about
time to do what they were there for, and this was followed by a more or less
statement from Jesus, who said:
'Precisamente es por lo que he llamado a ustedes que esten presentes
para ser testigos de mi ultimo voluntad y testamento que ha sido
preparado por el abogado Sr. Gregorio Imperial segun mis instrucciones
cuyo documento tengo aqui conmigo y encuentro que, despues de lo he
leido, esta satisfactoriamente hecho segun mis instrucciones, Como saben
ustedes tengo cuatro (4) hijos todos ellos.' (pp. 43-44, t.s.n., hearing of
December 7, 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 will, and
sealed it with his notarial seal, 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 them. (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. LLphil
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 Doa
Tinay together with their four children Francisca, 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 hereinbefore stated and to implement its provisions, Don Jesus
75
and Doa Tinay subsequently executed separately their respective
holographic wills 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 Doa Tinay, Don Jesus was appointed executor of the will and
in due time the partition of the properties or estate of Doa Tinay was
approved by the probate court on July 6, 1960. llcd
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:
"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:
"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 formalities 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. cdll
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 Doa 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
76
public instrument, an essential requirement under Article 633 which
provides as follows:
"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 Doa 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 Doa 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
will 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 Doa 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 Doa Tinay and We find no indication whatsoever that Doa
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:
"Cuatro. Que si yo adquieriese nuevase propiedades despues de otorgado
ests 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 mis 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 Doa Tinay would
acquire after the execution of her will. LLpr
Likewise, the codicil of Doa 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:
"Dejo a mi esposo Jesus Alsua como su legitima y como herencia que se
sacara de mi 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
corresponde tal como arriba declaro, incluyendo todos aquellos 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:
"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 Doa Tinay in the event that she should be the surviving spouse.
To stress the point, Doa 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 Doa Tinay's
will and codicil did not stipulate that Don Jesus will bestow the properties
equally to the children, it follows that all the properties of Doa Tinay
bequeathed to Don Jesus under her holographic will 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 Doa 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 will 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. prcd
After clearly establishing that only Don Jesus was named as sole heir
instituted to the remaining estate of Doa 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 will 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:
"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 will. 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 will, nothing will be
gained. On the contrary, this litigation will 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 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. . . ."
The last Will and Testament of Don Jesus executed on November 14, 1959
contained an express revocation of his holographic will 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
77
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 Francisca; and a
statement naming Francisca 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 will 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 Doa 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 disposed of by him to whomsoever he may choose. LLpr
If he now favored Francisca 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:
". . . 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 will. 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 bequest. 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 allow 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 Francisca 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:
"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 will.
Mere weakness of mind or partial imbecility from disease of body or from
age does not render a person incapable of making a will.
"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 will 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 was 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:
"Precisamente es por lo que he llamado a ustedes que esten presentes
para ser testigos de mi ultima voluntad y testamento que ha sido
preparado por el abogado Sr. Gregorio Imperial segun mis instrucciones
cuyo documento tengo aqui con migo y encuentro que, despues de lo he
leido, esta satisfactoriamente hecho segun mis instrucciones, Como saben
ustedes tengo cuatro (4) hijos todos ellos."
Clearly then, Don Jesus knew exactly what his actions were and the full
implications thereof.
In rejecting probate of the will, 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 life" 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 selling the properties under question to
petitioner Francisca 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 disregard 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 will of Don Jesus. The fact that
Don Jesus did not cause his will to be probated during his lifetime while his
previous holographic will 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 will. 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. LLpr
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 Francisca 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
78
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 OG
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 (Evangelista 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 26, 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 Special Proceedings No. 699 and Civil Case No. 3068 is hereby reinstated,
receipt of a Bank of Philippine Island Check No. 0252 in the amount of with costs against respondents.
Seventy Thousand Pesos (P70,000.00) for the sale of 33 parcels of
agricultural land to Francisca under the same date; again, Pablo did not SO ORDERED.
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 Francisca, 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 P47,355.29, drawn by Francisca
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. prcd
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 Francisca and discriminate against the other
children. The two contracts of sale executed by Don Jesus in favor of
Francisca 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 if 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
Francisca 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 "X-
1" to complete payment on the estate and inheritance tax on the estate of
his wife to the Bureau of Internal Revenue. Cdpr
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
79
[G.R. No. 124715. January 24, 2000.]
RUFINA LUY LIM, petitioner, vs. COURT OF APPEALS, AUTO TRUCK TBA
CORPORATION, SPEED DISTRIBUTING, INC., ACTIVE DISTRIBUTORS, ALLIANCE
MARKETING CORPORATION, ACTION COMPANY, INC., respondents.
"4. Pastor Lim, likewise, had Time, Savings and Current Deposits with the
"3. The late Pastor Y. Lim personally owned during his lifetime the following following banks: (a) Metrobank, Grace Park, Caloocan City and Quezon
business entities, to wit: Avenue, Quezon City Branches and (b) First Intestate Bank (formerly
Producers Bank), Rizal Commercial Banking Corporation and in other banks
Business Entity Address: whose identities are yet to be determined.

xxx xxx xxx "5. That the following real properties, although registered in the name of the
BUENA, J p: above entities, were actually acquired by Pastor Y. Lim during his marriage
Alliance Marketing, Inc. Block 3, Lot 6, Dacca with petitioner, to wit:
May a corporation, in its universality, be the proper subject of and be
included in the inventory of the estate of a deceased person? LibLex BF Homes, Corporation Title Location

Petitioner disputes before us through the instant petition for review on Paraaque, xxx xxx xxx
certiorari, the decision 1 of the Court of Appeals promulgated on 18 April
1996, in CA-GR SP No. 38617, which nullified and set aside the orders dated Metro Manila. k. Auto Truck TCT No. 617726 Sto. Domingo
04 July 1995 2, 12 September 1995 3 and 15 September 1995 4 of the xxx xxx xxx
Regional Trial Court of Quezon City, Branch 93, sitting as a probate court. TBA Corporation Cainta, Rizal
Speed Distributing Inc. 910 Barrio Niog,
Petitioner Rufina Luy Lim is the surviving spouse of the late Pastor Y. Lim q. Alliance Marketing TCT No. 27896 Prance,
whose estate is the subject of probate proceedings in Special Proceedings Aguinaldo Highway,
Q-95-23334, entitled, "In Re: Intestate Estate of Pastor Y. Lim Rufina Luy Lim, Metro Manila
represented by George Luy, Petitioner". Bacoor, Cavite. Copies of the above-mentioned Transfer Certificate of Title and/or Tax
xxx xxx xxx Declarations are hereto attached as Annexes "C" to "W".
Private respondents Auto Truck Corporation, Alliance Marketing
Corporation, Speed Distributing, Inc., Active Distributing, Inc. and Action Auto Truck TBA Corp. 2251 Roosevelt Avenue, xxx xxx xxx
Company are corporations formed, organized and existing under Philippine
laws and which owned real properties covered under the Torrens system. Quezon City. "7. The aforementioned properties and/or real interests left by the late
xxx xxx xxx Pastor Y. Lim, are all conjugal in nature, having been acquired by him
On 11 June 1994, Pastor Y. Lim died intestate. Herein petitioner, as surviving during the existence of his marriage with petitioner. cda
spouse and duly represented by her nephew George Luy, filed on 17 March Active Distributors, Inc. Block 3, Lot 6, Dacca BF
1995, a joint petition 5 for the administration of the estate of Pastor Y. Lim "8. There are other real and personal properties owned by Pastor Y. Lim
before the Regional Trial Court of Quezon City. Homes, Paraaque, which petitioner could not as yet identify. Petitioner, however will submit to
this Honorable Court the identities thereof and the necessary documents
Private respondent corporations, whose properties were included in the Metro Manila. covering the same as soon as possible."
inventory of the estate of Pastor Y. Lim, then filed a motion 6 for the lifting of xxx xxx xxx
lis pendens and motion 7 for exclusion of certain properties from the estate On 04 July 1995, the Regional Trial Court acting on petitioner's motion issued
of the decedent. Action Company 100 20th Avenue an order 10 , thus:

In an order 8 dated 08 June 1995, the Regional Trial Court of Quezon City,
Branch 93, sitting as a probate court, granted the private respondents' twin
motions, in this wise:
"Wherefore, the Register of Deeds of Quezon City is hereby ordered to lift,
expunge or delete the annotation of lis pendens on Transfer Certificates of
Title Nos. 116716, 116717, 116718, 116719 and 5182 and it is hereby further
ordered that the properties covered by the same titles as well as those
properties by (sic) Transfer Certificate of Title Nos. 613494, 363123, 236236
and 263236 are excluded from these proceedings.
SO ORDERED."
Subsequently, Rufina Luy Lim filed a verified amended petition 9 which
contained the following averments:
Murphy, Quezon City
or
92-D Mc-Arthur Highway
Valenzuela Bulacan.
"3.1 Although the above business entities dealt and engaged in business
with the public as corporations, all their capital, assets and equity were
however, personally owned by the late Pastor Y Lim. Hence the alleged
stockholders and officers appearing in the respective articles of
incorporation of the above business entities were mere dummies of Pastor
Y. Lim, and they were listed therein only for purposes of registration with the
Securities and Exchange Commission.
"Wherefore, the order dated 08 June 1995 is hereby set aside and the
Registry of Deeds of Quezon City is hereby directed to reinstate the
annotation of lis pendens in case said annotation had already been
deleted and/or cancelled said TCT Nos. 116716, 116717, 116718, 116719
and 51282.
Further more (sic), said properties covered by TCT Nos. 613494, 365123,
236256 and 236237 by virtue of the petitioner are included in the instant
petition.
SO ORDERED."
On 04 September 1995, the probate court appointed Rufina Lim as special
administrator 11 and Miguel Lim and Lawyer Donald Lee, as co-special
80
administrators of the estate of Pastor Y. Lim, after which letters of
administration were accordingly issued.
In an order 12 dated 12 September 1995, the probate court denied anew
private respondents' motion for exclusion, in this wise:
"The issue precisely raised by the petitioner in her petition is whether the
corporations are the mere alter egos or instrumentalities of Pastor Lim,
Otherwise (sic) stated, the issue involves the piercing of the corporate veil,
a matter that is clearly within the jurisdiction of this Honorable Court and not
the Securities and Exchange Commission. Thus, in the case of Cease vs.
Court of Appeals, 93 SCRA 483, the crucial issue decided by the regular
court was whether the corporation involved therein was the mere extension
of the decedent. After finding in the affirmative, the Court ruled that the
assets of the corporation are also assets of the estate.
A reading of P.D. 902, the law relied upon by oppositors, shows that the
SEC's exclusive (sic) applies only to intra-corporate controversy. It is simply a
suit to settle the intestate estate of a deceased person who, during his
lifetime, acquired several properties and put up corporations as his
instrumentalities.
SO ORDERED."
On 15 September 1995, the probate court acting on an ex parte motion
filed by petitioner, issued an order 13 the dispositive portion of which reads:
"Wherefore, the parties and the following banks concerned herein under
enumerated are hereby ordered to comply strictly with this order and to
produce and submit to the special administrators, through this Honorable
Court within (5) five days from receipt of this order their respective records
of the savings/current accounts/time deposits and other deposits in the
names of Pastor Lim and/or corporations above-mentioned, showing all the
transactions made or done concerning savings/current accounts from
January 1994 up to their receipt of this court order.
xxx xxx xxx
SO ORDERED."
Private respondent filed a special civil action for certiorari 14 , with an
urgent prayer for a restraining order or writ of preliminary injunction, before
the Court of Appeals questioning the orders of the Regional Trial Court,
sitting as a probate court.
On 18 April 1996, the Court of Appeals, finding in favor of herein private
respondents, rendered the assailed decision 15 , the decretal portion of
which declares:
"Wherefore, premises considered, the instant special civil action for
certiorari is hereby granted, The impugned orders issued by respondent
court on July 4, 1995 and September 12, 1995 are hereby nullified and set
aside. The impugned order issued by respondent on September 15, 1995 is
nullified insofar as petitioner corporations" bank accounts and records are
concerned.
SO ORDERED."
Through the expediency of Rule 45 of the Rules of Court, herein petitioner
Rufina Luy Lim now comes before us with a lone assignment of error: 16
"The respondent Court of Appeals erred in reversing the orders of the lower
court which merely allowed the preliminary or provisional inclusion of the
private respondents as part of the estate of the late deceased (sic) Pastor
Y. Lim with the respondent Court of Appeals arrogating unto itself the power
to repeal, to disobey or to ignore the clear and explicit provisions of Rules
81, 83, 84 and 87 of the Rules of Court and thereby preventing the
petitioner, from performing her duty as special administrator of the estate
as expressly provided in the said Rules."
Petitioner's contentions tread on perilous grounds.
In the instant petition for review, petitioner prays that we affirm the orders
issued by the probate court which were subsequently set aside by the Court
of Appeals.
Yet, before we delve into the merits of the case, a review of the rules on
jurisdiction over probate proceedings is indeed in order.
The provisions of Republic Act 7691 17 , which introduced amendments to
Batas Pambansa Blg. 129, are pertinent:
"SECTION 1. Section 19 of Batas Pambansa Blg. 129, otherwise known as the
"Judiciary Reorganization Act of 1980", is hereby amended to read as
follows:
SECTION 19. Jurisdiction in civil cases. Regional Trial Courts shall exercise
exclusive jurisdiction:
xxx xxx xxx
(4) In all matters of probate, both testate and intestate, where the gross
value of the estate exceeds One Hundred Thousand Pesos (P100,000) or, in
probate matters in Metro Manila, where such gross value exceeds Two
Hundred Thousand Pesos (P200,000);
xxx xxx xxx
SECTION 3. Section 33 of the same law is hereby amended to read as
follows: cdll
SECTION 33. Jurisdiction of Metropolitan Trial Courts, Municipal Trial Courts
and Municipal Circuit Trial Courts in Civil Cases. Metropolitan Trial Courts,
Municipal Trial Courts and Municipal Circuit Trial Courts shall exercise:
1. Exclusive original jurisdiction over civil actions and probate proceedings,
testate and intestate, including the grant of provisional remedies in proper
cases, where the value of the personal property, estate or amount of the
demand does not exceed One Hundred Thousand Pesos (P100,000) or, in
Metro Manila where such personal property, estate or amount of the
demand does not exceed Two Hundred Thousand Pesos (P200,000),
exclusive of interest, damages of whatever kind, attorney's fees, litigation
expenses and costs, the amount of which must be specifically alleged,
Provided, that interest, damages of whatever kind, attorney's litigation
expenses and costs shall be included in the determination of the filing fees,
Provided further, that where there are several claims or causes of actions
between the same or different parties, embodied in the same complaint,
the amount of the demand shall be the totality of the claims in all the
causes of action, irrespective of whether the causes of action arose out of
the same or different transactions;
xxx xxx xxx
Simply put, the determination of which court exercises jurisdiction over
matters of probate depends upon the gross value of the estate of the
decedent.
As to the power and authority of the probate court, petitioner relies heavily
on the principle that a probate court may pass upon title to certain
properties, albeit provisionally, for the purpose of determining whether a
certain property should or should not be included in the inventory.
In a litany of cases, We defined the parameters by which the court may
extend its probing arms in the determination of the question of title in
probate proceedings.
This Court, in PASTOR, JR. vs. COURT OF APPEALS, 18 held:
". . . 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."
We reiterated the rule in PEREIRA vs. COURT OF APPEALS: 19
". . . The function of resolving whether or not a certain property should be
included in the inventory or list of properties to be administered by the
administrator is one clearly within the competence of the probate court.
However, the court's determination is only provisional in character, not
conclusive, and is subject to the final decision in a separate action which
may be instituted by the parties."
Further, in MORALES vs. CFI OF CAVITE 20 citing CUIZON vs. RAMOLETE, 21
We made an exposition on the probate court's limited jurisdiction:
81
"It is a well-settled rule that a probate court or one in charge of proceedings
whether testate or intestate cannot adjudicate or determine title to
properties claimed to be a part of the estate and which are equally
claimed to belong to outside parties. All that the said court could do as
regards said properties is to determine whether they should or should not
be included in the inventory or list of properties to be administered by the
administrator. If there is no dispute, well and good; but if there is, then the
parties, the administrator and the opposing parties have to resort to an
ordinary action for a final determination of the conflicting claims of title
because the probate court cannot do so."
Again, in VALERA vs. INSERTO, 22 We had occasion to elucidate, through
Mr. Justice Andres Narvasa: 23
"Settled is the rule that a Court of First Instance (now Regional Trial Court),
acting as a probate court, exercises but limited jurisdiction, and thus has no
power to take cognizance of and determine the issue of title to property
claimed by a third person adversely to the decedent, unless the claimant
and all other parties having legal interest in the property consent, expressly
or impliedly, to the submission of the question to the probate court for
adjudgment, or the interests of third persons are not thereby prejudiced,
the reason for the exception being that the question of whether or not a
particular matter should be resolved by the court in the exercise of its
general jurisdiction or of its limited jurisdiction as a special court (e.g.
probate, land registration, etc.), is in reality not a jurisdictional but in essence
of procedural one, involving a mode of practice which may be waived. . .
. the possession of third parties and more important, covered by a transfer
. . . . These considerations assume greater cogency where, as here, the
Torrens title is not in the decedent's name but in others, a situation on which
this Court has already had occasion to rule. . .."(italics Ours)
Petitioner, in the present case, argues that the parcels of land covered
under the Torrens system and registered in the name of private respondent
corporations should be included in the inventory of the estate of the
decedent Pastor Y. Lim, alleging that after all the determination by the
probate court of whether these properties should be included or not is
merely provisional in nature, thus, not conclusive and subject to a final
determination in a separate action brought for the purpose of adjudging
once and for all the issue of title.
Yet, under the peculiar circumstances, where the parcels of land are
registered in the name of private respondent corporations, the
jurisprudence pronounced in BOLISAY vs. ALCID 24 is of great essence and
finds applicability, thus:
"It does not matter that respondent-administratrix has evidence purporting
to support her claim of ownership, for, on the other hand, petitioners have
a Torrens title in their favor, which under the law is endowed with
incontestability until after it has been set aside in the manner indicated in
the law itself, which, of course, does not include, bringing up the matter as
a mere incident in special proceedings for the settlement of the estate of
deceased persons. . . . "
". . . . In regard to such incident of inclusion or exclusion, We hold that if a
property covered by Torrens title is involved, the presumptive
conclusiveness of such title should be given due weight, and in the absence
of strong compelling evidence to the contrary, the holder thereof should
be considered as the owner of the property in controversy until his title is
nullified or modified in an appropriate ordinary action, particularly, when as
in the case at bar, possession of the property itself is in the persons named
in the title. . . . "
A perusal of the records would reveal that no strong compelling evidence
was ever presented by petitioner to bolster her bare assertions as to the title
of the deceased Pastor Y. Lim over the properties. Even so, P.D. 1529,
otherwise known as, "The Property Registration Decree", proscribes
collateral attack on Torrens Title, hence:
xxx xxx xxx
SECTION 48. Certificate not subject to collateral attack. A certificate of
title shall not be subject to collateral attack. It cannot be altered, modified
or cancelled except in a direct proceeding in accordance with law."
In CUIZON vs. RAMOLETE, where similarly as in the case at bar, the property
subject of the controversy was duly registered under the Torrens system, We
categorically stated:
". . . Having been apprised of the fact that the property in question was in
certificate of title issued in the name of such third parties, the respondent
court should have denied the motion of the respondent administrator and
excluded the property in question from the inventory of the property of the
estate. It had no authority to deprive such third persons of their possession
and ownership of the property. . . . " cdtai
Inasmuch as the real properties included in the inventory of the estate of
the late Pastor Y. Lim are in the possession of and are registered in the name
of private respondent corporations, which under the law possess a
personality separate and distinct from their stockholders, and in the
absence of any cogency to shred the veil of corporate fiction, the
presumption of conclusiveness of said titles in favor of private respondents
should stand undisturbed.
Accordingly, the probate court was remiss in denying private respondents'
motion for exclusion. While it may be true that the Regional Trial Court,
acting in a restricted capacity and exercising limited jurisdiction as a
probate court, is competent to issue orders involving inclusion or exclusion
of certain properties in the inventory of the estate of the decedent, and to
adjudge, albeit, provisionally the question of title over properties, it is no less
true that such authority conferred upon by law and reinforced by
jurisprudence, should be exercised judiciously, with due regard and caution
to the peculiar circumstances of each individual case.
Notwithstanding that the real properties were duly registered under the
Torrens system in the name of private respondents, and as such were to be
afforded the presumptive conclusiveness of title, the probate court
obviously opted to shut its eyes to this gleamy fact and still proceeded to
issue the impugned orders.
By its denial of the motion for exclusion, the probate court in effect acted
in utter disregard of the presumption of conclusiveness of title in favor of
private respondents. Certainly, the probate court through such brazen act
transgressed the clear provisions of law and infringed settled jurisprudence
on this matter.
Moreover, petitioner urges that not only the properties of private
respondent corporations are properly part of the decedent's estate but
also the private respondent corporations themselves. To rivet such flimsy
contention, petitioner cited that the late Pastor Y. Lim during his lifetime,
organized and wholly-owned the five corporations, which are the private
respondents in the instant case. 25 Petitioner thus attached as Annexes "F"
26 and "G" 27 of the petition for review affidavits executed by Teresa Lim
and Lani Wenceslao which among others, contained averments that the
incorporators of Uniwide Distributing, Inc. included on the list had no actual
participation in the organization and incorporation of the said corporation.
The affiants added that the persons whose names appeared on the articles
of incorporation of Uniwide Distributing, Inc., as incorporators thereof, are
mere dummies since they have not actually contributed any amount to the
capital stock of the corporation and have been merely asked by the late
Pastor Y. Lim to affix their respective signatures thereon.
It is settled that a corporation is clothed with personality separate and
distinct from that of the persons composing it. It may not generally be held
liable for that of the persons composing it. It may not be held liable for the
personal indebtedness of its stockholders or those of the entities connected
with it. 28
Rudimentary is the rule that a corporation is invested by law with a
personality distinct and separate from its stockholders or members. In the
same vein, a corporation by legal fiction and convenience is an entity
shielded by a protective mantle and imbued by law with a character alien
to the persons comprising it.
Nonetheless, the shield is not at all times invincible. Thus, in FIRST PHILIPPINE
INTERNATIONAL BANK vs. COURT OF APPEALS 29 , We enunciated:
". . . When the fiction is urged as a means of perpetrating a fraud or an
illegal act or as a vehicle for the evasion of an existing obligation, the
circumvention of statutes, the achievement or perfection of a monopoly or
generally the perpetration of knavery or crime, the veil with which the law
covers and isolates the corporation from the members or stockholders who
compose it will be lifted to allow for its consideration merely as an
aggregation of individuals. . . . "
Piercing the veil of corporate entity requires the court to see through the
protective shroud which exempts its stockholders from liabilities that
ordinarily, they could be subject to, or distinguishes one corporation from a
seemingly separate one, were it not for the existing corporate fiction. 30
82
The corporate mask may be lifted and the corporate veil may be pierced
when a corporation is just but the alter ego of a person or of another
corporation. Where badges of fraud exist, where public convenience is
defeated; where a wrong is sought to be justified thereby, the corporate
fiction or the notion of legal entity should come to naught. 31
As to the order 36 of the lower court, dated 15 September 1995, the Court
of Appeals correctly observed that the Regional Trial Court, Branch 93
acted without jurisdiction in issuing said order; The probate court had no
authority to demand the production of bank accounts in the name of the
private respondent corporations.

Further, the test in determining the applicability of the doctrine of piercing WHEREFORE, in view of the foregoing disquisitions, the instant petition is
the veil of corporate fiction is as follows: 1) Control, not mere majority or hereby DISMISSED for lack of merit and the decision of the Court of Appeals
complete stock control, but complete domination, not only of finances but which nullified and set aside the orders issued by the Regional Trial Court,
of policy and business practice in respect to the transaction attacked so Branch 93, acting as a probate court, dated 04 July 1995 and 12 September
that the corporate entity as to this transaction had at the time no separate 1995 is AFFIRMED.
mind, will or existence of its own; (2) Such control must have been used by
the defendant to commit fraud or wrong, to perpetuate the violation of a SO ORDERED.
statutory or other positive legal duty, or dishonest and unjust act in
contravention of plaintiffs legal right; and (3) The aforesaid control and
breach of duty must proximately cause the injury or unjust loss complained
of. The absence of any of these elements prevent "piercing the corporate
veil." 32

Mere ownership by a single stockholder or by another corporation of all or

nearly all of the capital stock of a corporation is not of itself a sufficient
reason for disregarding the fiction of separate corporate personalities. 33

Moreover, to disregard the separate juridical personality of a corporation,

the wrong-doing must be clearly and convincingly established. It cannot
be presumed. 34

Granting arguendo that the Regional Trial Court in this case was not merely
acting in a limited capacity as a probate court, petitioner nonetheless
failed to adduce competent evidence that would have justified the court
to impale the veil of corporate fiction. Truly, the reliance reposed by
petitioner on the affidavits executed by Teresa Lim and Lani Wenceslao is
unavailing considering that the aforementioned documents possess no
weighty probative value pursuant to the hearsay rule. Besides it is
imperative for us to stress that such affidavits are inadmissible in evidence
inasmuch as the affiants were not at all presented during the course of the
proceedings in the lower court. To put it differently, for this Court to uphold
the admissibility of said documents would be to relegate from Our duty to
apply such basic rule of evidence in a manner consistent with the law and
jurisprudence.

Our pronouncement in PEOPLE BANK AND TRUST COMPANY vs. LEONIDAS

35 finds pertinence:

"Affidavits are classified as hearsay evidence since they are not generally
prepared by the affiant but by another who uses his own language in
writing the affiant's statements, which may thus be either omitted or
misunderstood by the one writing them. Moreover, the adverse party is
deprived of the opportunity to cross-examine the affiants. For this reason,
affidavits are generally rejected for being hearsay, unless the affiant
themselves are placed on the witness stand to testify thereon."

83
[G.R. No. 12767. November 16, 1918.]
In the matter of the estate of EMIL H. JOHNSON. EBBA INGEBORG JOHNSON,
applicant-appellant.
STREET, J p:
On February 4, 1916, Emil H. Johnson, a native of Sweden and a naturalized
citizen of the United States, died in the city of Manila, leaving a will, dated
September 9, 1915, by which he disposed of an estate, the value of which,
as estimated by him, was P231,800. This document is an holographic
instrument, being written in the testator's own handwriting, and is signed by
himself and two witnesses only, instead of three witnesses required by
Section 618 of the Code of Civil Procedure. This will, therefore, was not
executed in conformity with the provisions of law generally applicable to
wills executed by inhabitants of these Islands, and hence could not have
been proved under Section 618.
On February 9, 1916, however, a petition was presented in the Court of First
Instance of the city of Manila for the probate of this will, on the ground that
Johnson was at the time of his death a citizen of the State of Illinois, United
States of America; that the will was duly executed in accordance with the
laws of that State; and hence could properly be probated here pursuant
to Section 636 of the Code of Civil Procedure. This section reads as follows:
"Will made here by alien. A will made within the Philippine Islands by a
citizen or subject of another state or country, which is executed in
accordance with the law of the state or country of which he is a citizen or
subject, and which might be proved and allowed by the law of his own
state or country, may be proved, allowed, and recorded in the Philippine
Islands, and shall have the same effect as if executed according to the laws
of these Islands."
The hearing on said application was set for March 6, 1916, and three weeks
publication of notice was ordered in the "Manila Daily Bulletin." Due
publication was made pursuant to this order of the court. On March 6, 1916,
witnesses were examined relative to the execution of the will; and upon
March 16th thereafter the document was declared to be legal and was
admitted to probate. At the same time an order was made nominating
Victor Johnson and John T. Pickett as administrators of the estate, with the
will annexed. Shortly thereafter Pickett signified his desire not to serve, and
Victor Johnson was appointed sole administrator.
By the will in question the testator gives to his brother Victor one hundred
shares of the corporate stock in the Johnson-Pickett Rope Company; to his
father and mother in Sweden, the sum of P20,000; to his daughter Ebba
Ingeborg, the sum of P5,000; to his wife, Alejandra Ibaez, the sum of P75
per month, if she remains single; to Simeona Ibaez, spinster, P65 per month,
if she remains single. The rest of the property is left to the testator's five
children Mercedes, Encarnacion, Victor, Eleonor and Alberto.
The biographical facts relative to the deceased necessary to an
understanding of the case are these: Emil H. Johnson was born in Sweden,
May 25, 1877, from which country he emigrated to the United States and
lived in Chicago, Illinois, from 1893 to 1898. On May 9, 1898, at Chicago, he
was married to Rosalie Ackeson, and immediately thereafter embarked for
the Philippine Islands as a soldier in the Army of the United States. As a result
of relations between Johnson and Rosalie Ackeson a daughter, named
Ebba Ingeborg, was born a few months after their marriage. This child was
christened in Chicago by a pastor of the Swedish Lutheran Church upon
October 16, 1898.
After Johnson was discharged as a soldier from the service of the United
States he continued to live in the Philippine Islands, and on November 20,
1902, the wife, Rosalie Johnson, was granted a decree of divorce from him
in the Circuit Court of Cook County, Illinois, on the ground of desertion. A
little later Johnson appeared in the United States on a visit and on January
10, 1903, procured a certificate of naturalization at Chicago. From Chicago
he appears to have gone to Sweden, where a photograph, exhibited in
evidence in this case, was taken in which he appeared in a group with his
father, mother, and the little daughter, Ebba Ingeborg, who was then living
with her grandparents in Sweden. When this visit was concluded, the
deceased returned to Manila, where he prospered in business and
continued to live until his death.
In this city he appears to have entered into marital relations with Alejandra
Ibaez, by whom he had three children, to wit, Mercedes, baptized May
31, 1903; Encarnacion, baptized April 29, 1906; and Victor, baptized
December 9, 1907. The other two children mentioned in the will were borne
to the deceased by Simeona Ibaez.
On June 12, 1916, or about three months after the will had been probated,
the attorneys for Ebba Ingeborg Johnson entered an appearance in her
behalf and noted an exception to the order admitting the will to probate.
On October 31, 1916, the same attorneys moved the court to vacate the
order of March 16 and also various other orders in the case. On February
20, 1917, this motion was denied, and from this action of the trial court the
present appeal has been perfected.
As will be discerned, the purpose of the proceeding on behalf of the
petitioner is to annul the decree of probate and put the estate into intestate
administration, thus preparing the way for the establishment of the claim of
the petitioner as the sole legitimate heir of her father.
The grounds upon which the petitioner seeks to avoid the probate are four
in number and may be stated, in the same sequence in which they are set
forth in the petition, as follows:
(1) Emil H. Johnson was a resident of the city of Manila and not a resident
of the State of Illinois at the time the will in question was executed;
(2) The will is invalid and inadequate to pass real and personal property in
the State of Illinois;
(3) The order admitting the will to probate was made without notice to the
petitioner; and
(4) The order in question was beyond the jurisdiction of the court.
It cannot of course be maintained that a court of first instance lacks
essential jurisdiction over the probate of wills. The fourth proposition above
stated must, accordingly, be interpreted in relation with the third and must
be considered as a corollary deduced from the latter. Moreover, both the
third and fourth grounds stated take precedence, by reason of their more
fundamental implications, over the first two; and a logical exposition of the
contentions of the petitioner is expressed in the two following propositions:
"(I) The order admitting the will to probate was beyond the jurisdiction of
the court and void because made without notice to the petitioner;
"(II) The judgment from which the petitioner seeks relief should be set aside
because the testator was not a resident of the State of Illinois and the will
was not in conformity with the laws of that State."
In the discussion which is to follow we shall consider the problems arising in
this case in the order last above indicated. Upon the question, then, of the
jurisdiction of the court, it is apparent from an inspection of the record of
the proceedings in the court below that all the steps prescribed by law as
prerequisites to the probate of a will were complied with in every respect
and that the probate was effected in external conformity with all legal
requirements. This much is unquestioned. It is, however, pointed out in the
argument submitted in behalf of the petitioner, that, at the time the court
made the order of publication, it was apprised of the fact that the
petitioner lived in the United States and that as daughter and heir she was
necessarily interested in the probate of the will. It is, therefore, insisted that
the court should have appointed a date for the probate of the will
sufficiently far in the future to permit the petitioner to be present either in
person or by representation; and it is said that the failure of the court thus
to postpone the probate of the will constitutes an infringement of that
provision of the Philippine Bill which declares that property shall not be
taken without due process of law.
On this point we are of the opinion that the proceedings for the probate of
the will were regular and that the publication was sufficient to give the court
jurisdiction to entertain the proceeding and to allow the will to be
probated.
As was said in the case of In re Davis (136 Cal., 590, 596), "the proceeding
as to the probate of a will is essentially one in rem, and in the very nature of
things the state is allowed a wide latitude in determining the character of
the constructive notice to be given to the world in a proceeding where it
has absolute possession of the res. It would be an exceptional case where
a court would declare a statute void, as depriving a party of his property
without due process of law, the proceeding being strictly in rem, and the
res within the state, upon the ground that the constructive notice
prescribed by the statute was unreasonably short."
In that case the petitioner had been domiciled in the Hawaiian Islands at
the time of the testator's death; and it was impossible, in view of the
distance and means of communication then existing, for the petitioner to
appear and oppose the probate on the day set for the hearing in
California. It was nevertheless held that publication in the manner
prescribed by statute constituted due process of law. (See Estate of Davis,
151 Cal., 318; Tracy vs. Muir, 151 Cal., 363.)
In the Davis case (136 Cal., 590) the court commented upon the fact that,
under the laws of California, the petitioner had a full year within which she
might have instituted a proceeding to contest the will; and this was stated
as one of the reasons for holding that publication in the manner provided
by statute was sufficient. The same circumstance was commented upon in
O' Callaghan vs. O' Brien (199 U.S., 89), decided in the Supreme Court of
the United States. This case arose under the laws of the State of Washington,
and it was alleged that a will had been there probated without the notice
of application for probate having been given as required by law. It was
insisted that this was an infringement of the Fourteenth Amendment of the
Constitution of the United States. This contention was, however, rejected
and it was held that the statutory right to contest the will within a year was
84
a complete refutation of the argument founded on the idea of a violation
of the due process provision.
The laws of these Islands, in contrast with the laws in force in perhaps all of
the States of the American Union, contain no special provision, other than
that allowing an appeal in the probate proceedings, under which relief of
any sort can be obtained from an order of a court of first instance
improperly allowing or disallowing a will. We do, however, have a provision
of a general nature authorizing a court under certain circumstances to set
aside any judgment, order, or other proceeding whatever. This provision is
found in Section 113 of the Code of Civil Procedure, which reads as follows:
"Upon such terms as may be just the court may relieve a party or his legal
representative from a judgment, order or other proceeding taken against
him through his mistake, inadvertence, surprise or excusable neglect;
Provided, That application therefor be made within a reasonable time, but
in no case exceeding six months after such judgment, order, or proceeding
was taken."
The use of the word "judgment, order or other proceeding" in this section
indicates an intention on the part of the Legislature to give a wide latitude
to the remedy here provided, and in our opinion its operation is not to be
restricted to judgments or orders entered in ordinary contentious litigation
where a plaintiff impleads a defendant and brings him into court by
personal service of process. In other words the utility of the provision is not
limited to actions proper but extends to all sorts of judicial proceedings.
In the second section of the Code of Civil Procedure it is declared that the
provisions of this Code shall be liberally construed to promote its object and
to assist the parties in obtaining speedy justice. We think that the intention
thus exhibited should be applied in the interpretation of Section 113; and
we hold that the word "party," used in this section, means any person having
an interest in the subject matter of the proceeding who is in a position to
be concluded by the judgment, order, or other proceeding taken.
The petitioner, therefore, in this case could have applied, under the section
cited, at any time within six months from March 16, 1916, and upon showing
that she had been precluded from appearing in the probate proceedings
by conditions over which she had no control and that the order admitting
the will to probate had been erroneously entered upon insufficient proof or
upon a supposed state of facts contrary to the truth, the court would have
been authorized to set the probate aside and grant a rehearing. It is no
doubt true that six months was, under the circumstances, a very short
period of time within which to expect the petitioner to appear and be
prepared to contest the probate with the proof which she might have
desired to collect from remote countries. Nevertheless, although the time
allowed for the making of such application was inconveniently short, the
remedy existed; and the possibility of its use is proved in this case by the
circumstance that on June 12, 1916, she in fact here appeared in court by
her attorneys and excepted to the order admitting the will to probate.
It results that, in conformity with the doctrine announced in the Davis case,
above cited, the proceedings in the court below were conducted in such
manner as to constitute due process of law. The law supplied a remedy by
which the petitioner might have gotten a hearing and have obtained relief
from the order by which she is supposed to have been injured; and though
the period within which the application should have been made was short,
the remedy was both possible and practicable.
From what has been said it follows that the order of March 16, 1916,
admitting the will of Emil H. Johnson to probate cannot be declared null
and void merely because the petitioner was unavoidably prevented from
appearing at the original hearing upon the matter of the probate of the will
in question. Whether the result would have been the same if our system of
procedure had contained no such provision as that expressed in Section
113 is a matter which we need not here consider.
Intimately connected with the question of the jurisdiction of the court, is
another matter which may be properly discussed at this juncture. This
relates to the interpretation to be placed upon Section 636 of the Code of
Civil Procedure. The position is taken by the appellant that this section is
applicable only to wills of aliens, and in this connection attention is directed
to the fact that the epigraph of this section speaks only of the will made
here by an alien and to the further fact that the word "state" in the body of
the section is not capitalized. From this it is argued that Section 636 is not
applicable to the will of a citizen of the United States residing in these
Islands.
We consider these suggestions of little weight and are of the opinion that,
by the most reasonable interpretation of the language used in the statute,
the words "another state or country" include the United States and the
States of the American Union, and that the operation of the statute is not
limited to wills of aliens. It is a rule of hermeneutics that punctuation and
capitalization are aids of low degree in interpreting the language of a
statute and can never control against the intelligible meaning of the written
words. Furthermore, the epigraph, or heading, of a section, being nothing
more than a convenient index to the contents of the provision, cannot
have the effect of limiting the operative words contained in the body of
the text. It results that if Emil H. Johnson was at the time of his death a citizen
of the United States and of the State of Illinois, his will was provable under
this section in the courts of the Philippine Islands, provided the instrument
was so executed as to be admissible to probate under the laws of the State
of Illinois.
We are thus brought to consider the second principal proposition stated at
the outset of this discussion, which raises the question whether the order of
probate can be set aside in this proceeding on the other ground stated in
the petition, namely, that the testator was not a resident of the State of
Illinois and that the will was not made in conformity with the laws of that
State.
The order of the Court of First Instance admitting the will to probate recites,
among other things:
"That upon the date when the will in question was executed Emil H. Johnson
was a citizen of the United States, naturalized in the State of Illinois, County
of Cook, and that the will in question was executed in conformity with the
dispositions of the law of the State of Illinois."
We consider this equivalent to a finding that upon the date of the execution
of the will the testator was a citizen of the State of Illinois and that the will
was executed in conformity with the laws of that State. Upon the last point
the finding is express; and in our opinion the statement that the testator was
a citizen of the United States, naturalized in the State of Illinois, should be
taken to imply that he was a citizen of the State of Illinois, as well as of the
United States.
The naturalization laws of the United States require, as a condition
precedent to the granting of the certificate of naturalization, that the
applicant should have resided at least five years in the United States and
for one year within the State or territory where the court granting the
naturalization papers is held; and in the absence of clear proof to the
contrary it should be presumed that a person naturalized in a court of a
certain State thereby becomes a citizen of that State as well as of the
United States.
In this connection it should be remembered that the Fourteenth
Amendment to the Constitution of the United States declares, in its opening
words, that all persons naturalized in the United States, and subject to the
jurisdiction thereof, are citizens of the United States and of the State wherein
they reside.
It is noteworthy that the petition by which it is sought to annul the probate
of this will does not assert that the testator was not a citizen of Illinois at the
date when the will was executed. The most that is said on this point is he
was "never a resident of the State of Illinois after the year 1898, but became
and was a resident of the city of Manila," etc. But residence in the Philippine
Islands is compatible with citizenship in Illinois; and it must be considered
that the allegations of the petition on this point are, considered in their
bearing as an attempt to refute citizenship in Illinois, wholly insufficient.
As the Court of First Instance found that the testator was a citizen of the
State of Illinois and that the will was executed in conformity with the laws of
that State, the will was necessarily and properly admitted to probate. And
how is it possible to evade the effect of these findings?
In Section 625 of the Code of Civil Procedure it is declared that "the
allowance by the court of a will of real or personal property shall be
conclusive as to its due execution."
The due execution of a will involves conditions relating to a number of
matters, such as the age and mental capacity of the testator, the signing
of the document by the testator, or by someone in his behalf, and the
acknowledgment of the instrument by him in the presence of the required
number of witnesses who affix their signatures to the will to attest the act.
The proof of all these requisites is involved in the probate; and as to each
and all of them the probate is conclusive. (Castaneda vs. Alemany, 3 Phil.
Rep., 426; Pimentel vs. Palanca, 5 Phil. Rep., 436; Chiong Joc-Soy vs. Vano,
8 Phil. Rep., 119; Sanchez vs. Pascual, 11 Phil. Rep., 395; Montanano vs.
Suesa, 14 Phil. Rep., 676.)
Our reported cases do not contain the slightest intimation that a will which
has been probated according to law, and without fraud, can be annulled,
in any other proceeding whatever, on account of any supposed irregularity
or defect in the execution of the will or on account of any error in the action
of the court upon the proof adduced before it. This court has never been
called upon to decide whether, in case the probate of a will should be
procured by fraud, relief could be granted in some other proceeding; and
no such question is now presented. But it is readily seen that if fraud were
alleged, this would introduce an entirely different factor in the case. In
Austria vs. Ventenilla (21 Phil. Rep., 180, 184), it was suggested but not
decided that relief might be granted in case the probate of a will were
procured by fraud.
The circumstance that the judgment of the trial court recites that the will
was executed in conformity with the law of Illinois and also, in effect, that
the testator was a citizen of that State places the judgment upon an
85
unassailable basis so far as any supposed error apparent upon the face of
the judgment is concerned. It is, however, probable that even if the
judgment had not contained these recitals, there would have been a
presumption from the admission of the will to probate as the will of a citizen
of Illinois that the facts were as recited in the order of probate.
As was said by this court in the case of Banco Espaol-Filipino vs. Palanca
(37 Phil. Rep., 921), "There is no principle of law better settled than that after
jurisdiction has once been acquired, every act of a court of general
jurisdiction shall be presumed to have been rightly done. This rule is applied
to every judgment or decree rendered in the various stages of the
proceedings from their initiation to their completion (Voorhees vs. United
States Bank, 10 Pet., 314;35 U.S., 449); and if the record is silent with respect
to any fact which must have been established before the court could have
rightly acted, it will be presumed that such fact was properly brought to its
knowledge."
The Court of First Instance is a court of original and general jurisdiction; and
there is no difference in its faculties in this respect whether exercised in
matters of probate or exerted in ordinary contentious litigation. The trial
court therefore necessarily had the power to determine the facts upon
which the propriety of admitting the will to probate depended; and the
recital of those facts in the judgment was probably not essential to its
validity. No express ruling is, however, necessary on this point.
What has been said effectually disposes of the petition considered in its
aspect as an attack upon the order of probate for error apparent on the
face of the record. But the petitioner seeks to have the judgment reviewed,
it being asserted that the findings of the trial court especially on the
question of the citizenship of the testator are not supported by the
evidence. It needs but a moment's reflection, however, to show that in such
a proceeding as this it is not possible to reverse the original order on the
ground that the findings of the trial court are unsupported by the proof
adduced before that court. The only proceeding in which a review of the
evidence can be secured is by appeal, and the case is not before us upon
appeal from the original order admitting the will to probate. The present
proceedings by petition to set aside the order of probate and the appeal
herein is from the order denying this relief. It is obvious that on appeal from
an order refusing to vacate a judgment it is not possible to review the
evidence upon which the original judgment was based. To permit this
would operate unduly to protract the right of appeal.
However, for the purpose of arriving at a just conception of the case from
the point of view of the petitioner, we propose to examine the evidence
submitted upon the original hearing, in connection with the allegations of
the petition, in order to see, first, whether the evidence submitted to the trial
court was sufficient to justify its findings, and, secondly, whether the petition
contains any matter which would justify the court in setting the judgment,
aside. In this connection we shall for a moment ignore the circumstance
that the petition was filed after the expiration of the six months allowed by
Section 113 of the Code of Civil Procedure.
The principal controversy is over the citizenship of the testator. The evidence
adduced upon this point in the trial court consists of the certificate of
naturalization granted upon January 10, 1903, in the Circuit Court of Cook
County, Illinois, in connection with certain biographical facts contained in
the oral evidence. The certificate of naturalization supplies incontrovertible
proof that upon the date stated the testator became a citizen of the United
States, and inferentially also a citizen of said State. In the testimony
submitted to the trial court it appears that, when Johnson first came to the
United States as a boy, he took up his abode in the State of Illinois and there
remained until he came as a soldier in the United States Army to the
Philippine Islands. Although he remained in these Islands for sometime after
receiving his discharge, no evidence was adduced showing that at the
time he returned to the United States, in the autumn of 1902, he had then
abandoned Illinois as the State of his permanent domicile; and on the
contrary the certificate of naturalization itself recites that at that time he
claimed to be a resident of Illinois.
Now, if upon January 10, 1903, the testator became a citizen of the United
States and of the State of Illinois, how has he lost the character of citizen
with respect to either of these jurisdictions? There is no law in force by virtue
of which any person of foreign nativity can become a naturalized citizen of
the Philippine Islands; and it was, therefore, impossible for the testator, even
if he had so desired, to expatriate himself from the United States and
change his political status from a citizen of the United States to a citizen of
these Islands. This being true, it is to be presumed that he retained his
citizenship in the State of Illinois along with his status as a citizen of the United
States. It would be novel doctrine to Americans living in the Philippine
Islands to be told that by living here they lose their citizenship in the State of
their naturalization or nativity.
We are not unmindful of the fact that when a citizen of one State leaves it
and takes up his abode in another State with no intention of returning, he
immediately acquires citizenship in the State of his new domicile. This is in
accordance with that provision of the Fourteenth Amendment to the
Constitution of the United States which says that every citizen of the United
States is a citizen of the State wherein he resides. The effect of this provision
necessarily is that a person transferring his domicile from one State to
another loses his citizenship in the State of his original abode upon acquiring
citizenship in the State of his new abode. The acquisition of the new State
citizen ship extinguishes the old. That situation, in our opinion, has no
analogy to that which arises when a citizen of an American State comes to
reside in the Philippine Islands. Here he cannot acquire a new citizenship;
nor by the mere change of domicile does he lose that which he brought
with him.
The proof adduced before the trial court must therefore be taken as
showing that, at the time the will was executed, the testator was, as stated
in the order of probate, a citizen of the State of Illinois. This, in connection
with the circumstance that the petition does not even so much as deny
such citizenship but only asserts that the testator was a resident of the
Philippine Islands, demonstrates the impossibility of setting the probate
aside for lack of the necessary citizenship on the part of the testator. As
already observed, the allegation of the petition on this point is wholly
insufficient to justify any relief whatever.
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.
But it is insisted in the brief for the appellant that the will in question was not
properly admissible to probate because it contains provisions which cannot
be given effect consistently with the laws of the Philippine Islands; and it is
suggested that as the petitioner is a legitimate heir of the testator she
cannot be deprived of the legitime to which she is entitled under the law
governing testamentary successions in these Islands. Upon this point it is
sufficient to say that the probate of the will does not affect the intrinsic
validity of its provisions, the decree of probate being conclusive only as
regards the due execution of the will. ( Code of Civil Procedure, Secs. 625,
614; Sahagun vs. De Gorostiza, 7 Phil. Rep., 347, 349; Chiong Joc-Soy vs.
Vano, 8 Phil. Rep., 119, 121; Limjuco vs. Ganara, 11 Phil. Rep., 393, 395.)
If, therefore, upon the distribution of this estate, it should appear that any
legacy given by the will or other disposition made therein is contrary to the
law applicable in such case, the will must necessarily yield upon that point
and the law must prevail. Nevertheless, it should not be forgotten that the
intrinsic validity of the provisions of this will must be determined by the law
of Illinois and not, as the appellant apparently assumes, by the general
provisions here applicable in such matters; for in the second paragraph of
article 10 of the Civil Code it is declared that "legal and testamentary
successions, with regard to the order of succession, as well as to the amount
of the successional rights and to the intrinsic validity of their provisions, shall
86
be regulated by the laws of the nation of the person whose succession is in
question, whatever may be the nature of the property and the country
where it may be situate."
From what has been said, it is, we think, manifest that the petition submitted
to the court below on October 31, 1916, was entirely insufficient to warrant
the setting aside of the order probating the will in question, whether said
petition be considered as an attack on the validity of the decree for error
apparent, or whether it be considered as an application for a rehearing
based upon the new evidence submitted in the affidavits which
accompany the petition. And in this latter aspect the petition is subject to
the further fatal defect that it was not presented within the time allowed by
law.

It follows that the trial court committed no error in denying the relief sought.
The order appealed from is accordingly affirmed with costs. So ordered.

87
[G.R. No. L-29184. January 30, 1989.]
BENEDICTO LEVISTE, petitioner, vs. THE COURT OF APPEALS, HON. JUDGE LUIS
B. REYES, COURT OF FIRST INSTANCE OF MANILA, ROSA DEL ROSARIO, RITA
BANU, CARMEN DE GUZMAN-MARQUEZ, JESUS R. DE GUZMAN, RAMON R. DE
GUZMAN, JACINTO R. DE GUZMAN, & ANTONIO R. DE GUZMAN, respondents.
GRIO-AQUINO, J p:
The issue in this case is whether or not an attorney who was engaged on a
contingent fee basis may, in order to collect his fees, prosecute an appeal
despite his client's refusal to appeal the decision of the trial court.
On September 7, 1963, the petitioner, a practicing attorney, entered into a
written agreement with the private respondent Rosa del Rosario to appear
as her counsel in a petition for probate of the holographic will of the late
Maxima C. Reselva. Under the will, a piece of real property at Sales Street,
Quiapo, Manila, was bequeathed to Del Rosario. It was agreed that
petitioner's contingent fee would be thirty-five per cent (35%) of the
property that Rosa may receive upon the probate of the will (Annex "A", p.
59, Rollo).
In accordance with their agreement, Leviste performed the following
services as Del Rosario's counsel:
(1)Thoroughly researched and studied the law on probate and succession;
(2)Looked for and interviewed witnesses, and took their affidavits;
(3)Filed the petition for probate is Special Proceeding No. 58325;
(4)Made the proper publications;
(5)Presented at the trial the following witnesses:
a)Eleuterio de Jesus
b)Lucita de Jesus
c)Purita L. Llanes
d)Rita Banu
e)Jesus Lulod.
On August 20, 1965, Leviste received a letter from Ms. Del Rosario, informing
him that she was terminating his services as her counsel due to "conflicting
interest." This consisted, according to the letter, in petitioner's moral
obligation to protect the interest of his brother-in-law, Gaudencio M. Llanes,
whom Del Rosario and the other parties in the probate proceeding
intended to eject as lessee of the property which was bequeathed to Del
Rosario under the will (Annex "B", p. 60, Rollo). cdrep
On September 20, 1965, petitioner filed a "Motion to Intervene to Protect His
Rights to Fees for Professional Services." (Annex "B", p. 60, Rollo.).
In an order dated November 12, 1965 the trial court denied his motion on
the ground that he had "not filed a claim for attorney's fees nor recorded
his attorney's lien." (p. 3, Rollo.)
On November 23, 1965, petitioner filed a "Formal Statement of Claim or
Attorney's Fees and Recording of Attorney's Lien," which was noted in the
court's order of December 20, 1965 (Annexes "D" and "E", pp. 63 & 64, Rollo).
Although the order denying his motion to intervene had become final,
petitioner continued to receive copies of the court's orders, as well as the
pleadings of the other parties in the case. He also continued to file
pleadings. The case was submitted for decision without the respondents'
evidence.
On November 23, 1966, Del Rosario and Rita Banu, the special
administratrix-legatee, filed a "Motion To Withdraw Petition for Probate"
alleging that Del Rosario waived her rights to the devise in her favor and
agreed that the De Guzman brothers and sisters who opposed her petition
for probate, shall inherit all the properties left by the decedent. (Annex "F",
p. 65, Rollo.)
In an order of April 13, 1967 the trial court denied the motion to withdraw
the petition for being contrary to public policy (Annex "G", pp. 66-67, Rollo).
Nonetheless, on August 28, 1967, the court disallowed the will, holding that
the legal requirements for its validity were not satisfied as only two witnesses
testified that the will and the testatrix's signature were in the handwriting of
Maxima Reselva.
The petitioner filed an appeal bond, notice of appeal, and record on
appeal. The private respondents filed a motion to dismiss the appeal on the
ground that petitioner was not a party in interest.
The petitioner opposed the motion to dismiss his appeal, claiming that he
has a direct and material interest in the decision sought to be reviewed. He
also asked that he be substituted as party-petitioner, in lieu of his former
client, Ms. Del Rosario.
On March 28, 1968, the trial judge dismissed the appeal and denied
petitioner's motion for substitution:
The petitioner filed in the Court of Appeals a petition for mandamus (CA-
G.R. No. 41248) praying that the trial court be ordered to give due course
to his appeal and to grant his motion for substitution. llcd
On May 22, 1968, the Court of Appeals dismissed the petition for being
insufficient in form and substance as the petitioner did not appear to be
the proper party to appeal the decision in Special Proceeding No. 58325
(Annex I, p. 77, Rollo).
Upon the denial of his motion for reconsideration, petitioner appealed by
certiorari to this Court, assigning the following errors against the Court of
Appeals' resolution:
1.The Court of Appeals erred in finding that the petitioner appears not to
be the proper party to appeal the decision in Sp. Proc. No. 58325 of the
Court of First Instance of Manila.
2.Assuming the petitioner's right of appeal is doubtful, the Court of Appeals
erred in dismissing his petition for mandamus; and
3.The Court of Appeals erred in not reversing the decision in Sp. Proc. No.
58325 denying the probate of the holographic will of the late Maxima C.
Reselva, said decision being patently erroneous.
Under his first assignment of error, petitioner argues that by virtue of his
contract of services with Del Rosario, he is a creditor of the latter, and that
under Article 1052 of the Civil Code which provides:
"ART. 1052.If the heir repudiates the inheritance to the prejudice of his own
creditors, the latter may petition the court to authorize them to accept it in
the name of the heir.
"The acceptance shall benefit the creditors only to an extent sufficient to
cover the amount of their credits. The excess, should there be any, shall in
no case pertain to the renouncer, but shall be adjudicated to the persons
to whom, in accordance with the rules established in this Code, it may
belong."
he has a right to accept for his client Del Rosario to the extent of 35% thereof
the devise in her favor (which she in effect repudiated) to protect his
contingent attorney's fees.
The argument is devoid of merit. Article 1052 of the Civil Code does not
apply to this case. That legal provision protects the creditor of a repudiating
heir. Petitioner is not a creditor of Rosa del Rosario. The payment of his fees
is contingent and dependent upon the successful probate of the
holographic will. Since the petition for probate was dismissed by the lower
court, the contingency did not occur. Attorney Leviste is not entitled to his
fee.
Furthermore, Article 1052 presupposes that the obligor is an heir. Rosa del
Rosario is not a legal heir of the late Maxima C. Reselva. Upon the dismissal
of her petition for probate of the decedent's will, she lost her right to inherit
any part of the latter's estate. There is nothing for the petitioner to accept
in her name.
This Court had ruled in the case of Recto vs. Harden, 100 Phil. 1427, that "the
contract (for contingent attorney's fees) neither gives, nor purports to give,
to the appellee (lawyer) any right whatsoever, personal or real, in and to
her (Mrs. Harden's) aforesaid share in the conjugal partnership. The amount
thereof is simply a basis for the computation of said fees."
88
The Court of Appeals did not err in dismissing the petition for mandamus, for
while it is true that, as contended by the petitioner, public policy favors the
probate of a will, it does not necessarily follow that every will that is
presented for probate, should be allowed. The law lays down procedures
which should be observed and requisites that should be satisfied before a
will may be probated. Those procedures and requirements were not
followed in this case resulting in the disallowance of the will. There being no
valid will, the motion to withdraw the probate petition was inconsequential.
prLL

Petitioner was not a party to the probate proceeding in the lower court. He
had no direct interest in the probate of the will. His only interest in the estate
is an indirect interest as former counsel for a prospective heir. In Paras vs.
Narciso, 35 Phil. 244, We had occasion to rule that one who is only indirectly
interested in a will may not interfere in its probate. Thus:

". . . the reason for the rule excluding strangers from contesting the will, is
not that thereby the court may be prevented from learning facts which
would justify or necessitate a denial of probate, but rather that the courts
and the litigants should not be molested by the intervention in the
proceedings of persons with no interest in the estate which would entitle
them to be heard with relation thereto." (Paras vs. Narciso, 35 Phil. 244, 246.)

Similary, in Morente vs. Firmalino, 40 O.G. 21st Supp. 1, We held:

"We are of the opinion that the lower court did not err in holding that notice
of an attorney's lien did not entitle the attorney-appellant to subrogate
himself in lieu of his client. It only gives him the right to collect a certain
amount for his services in case his client is awarded a certain sum by the
court."

WHEREFORE, the petition for certiorari is denied for lack of merit. Costs
against the petitioner.

SO ORDERED.

89
[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.
YNARES-SANTIAGO, J p:
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: llcd
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 Alejandro's death,
petitioner, who claims to have taken care of Alejandro before he died, filed
a special proceeding for the probate of the latter's last will and testament.
In 1981, the court issued an order admitting Alejandro's 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 appellant's 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 TCT's, private respondents filed a motion for cancellation
of said titles and for issuance of new titles in their names. Petitioner opposed
the motion. LLjur
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 Alejandro's 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: cdtai
whether the will submitted is indeed, the decedent's 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 judicata with 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.
90
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. cdtai

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, Alejandro's 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 spouse's estate.

Petitioner's 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.

91
[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.
MENDOZA, J p:
These are petitions for review on certiorari of the decisions of the Thirteenth
and the Special Eight 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. LibLex
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 o'clock in the morning, copies of
which were served to Arturo de Santos Foundation, Inc. and Ms. Pacita de
los Reyes Phillips (Officer's 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.
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 petitioner's 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 (testator's
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.
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 respondent's motion, Judge Salvador Abad Santos of Branch
65 issued an order, dated June 28, 1996, appointing her as special
administrator of Dr. De Santos's estate. cda
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 testator's 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 petitioner's 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 petitioner's 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:
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,
92
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.
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 petitioner's 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 court's 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. prLL
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 respondent's
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 testator's 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.
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 testator's 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 testator's 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 testator's 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
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.
93
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 latter's 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: llcd
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.
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
decedent's estate is, therefore, not direct or immediate.
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 respondent's 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.
LibLex
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.
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 testator's
(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 testator's 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
94
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.

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.

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.

WHEREFORE, the petition is DENIED and the decisions of the Court of

Appeals are hereby AFFIRMED. llcd

SO ORDERED.

95
[G.R. No. L-23445. June 23, 1966.]
REMEDIOS NUGUID, petitioner-appellant, vs. FELIX NUGUID and PAZ
SALONGA NUGUID, oppositors-appellees.
SANCHEZ, J p:
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 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.
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 represented, 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 he 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 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 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 nullity 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 is 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; 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
betterments 4 shall be valid, in so far as they are not inofficious. . ."
articulo 851, en el que se expresa que se anulara la institucion de heredero
A comprehensive understanding of the term preterition employed in the
law becomes a necessity. On this point Manresa comments:
"La pretericion consiste en omitir al heredero en el testamento. O no se le
nombra siquiera, o aun nombrandole como padre, hijo, etc., no se
leinstituye 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 aquelloa 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. 5
It may now appear trite but 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 the 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:34-25). 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, 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 "anular siempre la
institucin de heredero, dando carcter 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 aade limitacion alguna, como en el
en cuanto perjudique a la legitima del desheredado. 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 Snches Roman:
96

"La consequencia 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, hubiere 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, Snchez Romn
cites the "Memoria annual del Tribunal Supremo, 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 alguno favorable a
lo 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 distribuido 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 seo 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 que
no outoriza 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 convertir este
juicio en regla de interpretacin, 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,
annulment 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. Snchez Romn, speaking of
the two component parts of Article 814, now 854, states that preterition
annuls the institution of the heir "totalmente por la pretericin"; but added
(in reference to legacies and bequests), "pero subsistiendo, . . . todas
aquellas otras disposiciones que no se refieren a la institucin de heredero
. . . " 13 As Manresa puts it, annulment throws open to intestate succession
the entire inheritance including la porcin libre (que) no hubiese dispuesto
en virtud de legado, mejora o donacin." 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." 15 From this, petitioner draws
the conclusion that Article 854 "does not apply to the case at bar." This
argument fails to appreciate the distinction between preterition 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 privacin expresa de la legitima constituye
le desheredacin. La privacin tcita de la misma se denomina
pretericin. 18 Snchez Romn 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 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,"
but 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, adquieren el derecho a todo; deshereda dos, solo les
corresponde un tercio o dos tercios, 22 segn 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. 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 application at all. And the remaining provisions contained
in said articles 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 a thing separate and distinct
from legacies or betterment. 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.
97
[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 APPEALS, JUAN Y. REYES, JUDGE OF BRANCH I, COURT OF FIRST
INSTANCE OF CEBU and LEWELLYN BARLITO QUEMADA, respondents.
PLANA, J p:
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 Pia-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 P5,000.00.
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. LLjur
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 same 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 will. 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
claimants 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. Quemada4.5%
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.
cdphil
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. prcd
Hence, this Petition for Review by certiorari with prayer for a writ of
preliminary 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, filed by petitioners
on March 26, 1981, followed by a Supplemental Petition with Urgent Prayer
for Restraining Order.
98

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 they 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. LLjur
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 will 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.] LLjur
(b)The rule is that execution of a judgment must conform to that decreed
in the dispositive part of the decision. (Philippine-American Insurance Co.
vs. Honorable Flores, 97 SCRA 811.) However, in case of ambiguity or
uncertainty, the body of the decision may be scanned for guidance in
construing the judgment. (Heirs of Presto vs. Galang, 78 SCRA 534; Fabular
vs. Court of Appeals, 119 SCRA 329; Robles vs. Timario, 107 Phil. 809.)
The Order sought to be executed by the assailed Order of execution is the
Probate Order of December 5, 1972 which allegedly resolved the question
of ownership of the disputed mining properties. The said Probate Order
enumerated the issues before the Probate Court, thus:
"Unmistakably, there are three aspects in these proceedings: (1) the
probate of the holographic will; (2) the intestate estate aspect; and (3) the
administration proceedings for the purported estate of the decedent in the
Philippines.
"In its broad and total perspective the whole proceedings are being
impugned by the oppositors on jurisdictional grounds, i.e., that the fact of
the decedent's residence and existence of properties in the Philippines
have not been established.
"Specifically placed in issue with respect to the probate proceedings are:
(a) whether or not the holographic will (Exhibit "J") has lost its efficacy as the
last will and testament upon the death of Alvaro Pastor, Sr. on June 5, 1966,
in Cebu City, Philippines; (b) Whether or not the said will has been executed
with all the formalities required by law; and (c) Did the late presentation of
the holographic will affect the validity of the same?
"Issues In the Administration Proceedings are as follows: (1) Was the ex-parte
appointment of the petitioner as special administrator valid and proper?
(2) Is there any indispensable necessity for the estate of the decedent to
be placed under administration? (3) Whether or not petition is qualified to
be a special administrator of the estate; and (4) Whether or not the
properties listed in the inventory (submitted by the special administrator but
not approved by the Probate Court) are to be excluded."
Then came what purports to be the dispositive portion:
"Upon the foregoing premises, this Court rules on and resolves some of the
problems and issues presented in these proceedings, as follows:
"(a)The Court has acquired jurisdiction over the probate proceedings As it
hereby allows and approves the so-called holographic will of testator
Alvaro Pastor, Sr., executed on July 31, 1961 with respect to its extrinsic
validity, the same having been duly authenticated pursuant to the
requisites or solemnities prescribed by law. Let, therefore, a certificate of its
allowance be prepared by the Branch Clerk of this Court to be signed by
this Presiding Judge, and attested by the seal of the Court, and thereafter
attached to the will, and the will and certificate filed and recorded by the
clerk. Let attested copies of the will and of the certificate of allowance
thereof be sent to Atlas Consolidated Mining & Development Corporation,
Goodrich Bldg., Cebu City, and the Register of Deeds of Cebu or of Toledo
City, as the case may be, for recording.
"(b)There was a delay in the granting of the letters testamentary or of
administration for as a matter of fact, no regular executor and/or
administrator has been appointed up to this time and the appointment
of a special administrator was, and still is, justified under the circumstances
to take possession and charge of the estate of the deceased in the
Philippines (particularly in Cebu) until the problems causing the delay are
decided and the regular executor and/or administrator appointed.
"(c)There is a necessity and propriety of a special administrator and later on
an executor and/or administrator in these proceedings, in spite of this
Court's declaration that the oppositors are the forced heirs and the
petitioner is merely vested with the character of a voluntary heir to the
99
extent of the bounty given to him (under) the will insofar as the same will
not prejudice the legitimes of the oppositors, for the following reasons:
1.To submit a complete inventory of the estate of the decedent-testator
Alvaro Pastor, Sr.;
2.To administer and to continue to put to prolific utilization of the properties
of the decedent;
3.To keep and maintain the houses and other structures and fences
belonging to the estate, since the forced heirs are residing in Spain, and
prepare them for delivery to the heirs in good order after partition and when
directed by the Court, but only after the payment of estate and inheritance
taxes;
"(d)Subject to the outcome of the suit for reconveyance of ownership and
possession of real and personal properties in Civil Case No. 274-T before
Branch IX of the Court of First Instance of Cebu, the intestate estate
administration aspect must proceed, unless, however, it is duly proven by
the oppositors that debts of the decedent have already been paid, that
there had been an extrajudicial partition or summary one between the
forced heirs, that the legacy to be given and delivered to the petitioner
does not exceed the free portion of the estate of the testator, that the
respective shares of the forced heirs have been fairly apportioned,
distributed and delivered to the two forced heirs of Alvaro Pastor, Sr., after
deducting the property willed to the petitioner, and the estate and
inheritance taxes have already been paid to the Government thru the
Bureau of Internal Revenue.
"The suitability and propriety of allowing petitioner to remain as special
administrator or administrator of the other properties of the estate of the
decedent, which properties are not directly or indirectly affected by the
provisions of the holographic will (such as bank deposits, land in Mactan,
etc.), will be resolved in another order as separate incident, considering
that this order should have been properly issued solely as a resolution on
the issue of whether or not to allow and approve the aforestated will."
(Emphasis supplied.)
Nowhere in the dispositive portion is there a declaration of ownership of
specific properties. On the contrary, it is manifest therein that ownership was
not resolved. For it confined itself to the question of extrinsic validity of the
will, and the need for and propriety of appointing a special administrator.
Thus it allowed and approved the holographic will "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 reel 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." prLL
(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 Probate 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 farfetched.
(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 has 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 judiciary 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. llcd
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.
100

(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 inclusio unius est exclusio 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 militates
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. llcd
Likewise, at the time petitioner PASTOR, JR. filed 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.
101
[G.R. No. 124715. January 24, 2000.] "3. The late Pastor Y. Lim personally owned during his lifetime the following "4. Pastor Lim, likewise, had Time, Savings and Current Deposits with the
business entities, to wit: following banks: (a) Metrobank, Grace Park, Caloocan City and Quezon
RUFINA LUY LIM, petitioner, vs. COURT OF APPEALS, AUTO TRUCK TBA Avenue, Quezon City Branches and (b) First Intestate Bank (formerly
CORPORATION, SPEED DISTRIBUTING, INC., ACTIVE DISTRIBUTORS, ALLIANCE Business Entity Address: Producers Bank), Rizal Commercial Banking Corporation and in other banks
MARKETING CORPORATION, ACTION COMPANY, INC., respondents. whose identities are yet to be determined.
xxx xxx xxx
BUENA, J p: "5. That the following real properties, although registered in the name of the
Alliance Marketing, Inc. Block 3, Lot 6, Dacca above entities, were actually acquired by Pastor Y. Lim during his marriage
May a corporation, in its universality, be the proper subject of and be with petitioner, to wit:
included in the inventory of the estate of a deceased person? LibLex BF Homes,
Corporation Title Location
Petitioner disputes before us through the instant petition for review on Paraaque,
certiorari, the decision 1 of the Court of Appeals promulgated on 18 April xxx xxx xxx
1996, in CA-GR SP No. 38617, which nullified and set aside the orders dated Metro Manila.
04 July 1995 2, 12 September 1995 3 and 15 September 1995 4 of the xxx xxx xxx k. Auto Truck TCT No. 617726 Sto. Domingo
Regional Trial Court of Quezon City, Branch 93, sitting as a probate court.
Speed Distributing Inc. 910 Barrio Niog, TBA Corporation Cainta, Rizal
Petitioner Rufina Luy Lim is the surviving spouse of the late Pastor Y. Lim
whose estate is the subject of probate proceedings in Special Proceedings Aguinaldo Highway, q. Alliance Marketing TCT No. 27896 Prance,
Q-95-23334, entitled, "In Re: Intestate Estate of Pastor Y. Lim Rufina Luy Lim,
represented by George Luy, Petitioner". Bacoor, Cavite. Metro Manila
xxx xxx xxx Copies of the above-mentioned Transfer Certificate of Title and/or Tax
Private respondents Auto Truck Corporation, Alliance Marketing Declarations are hereto attached as Annexes "C" to "W".
Corporation, Speed Distributing, Inc., Active Distributing, Inc. and Action Auto Truck TBA Corp. 2251 Roosevelt Avenue,
Company are corporations formed, organized and existing under Philippine xxx xxx xxx
laws and which owned real properties covered under the Torrens system. Quezon City.
xxx xxx xxx "7. The aforementioned properties and/or real interests left by the late
On 11 June 1994, Pastor Y. Lim died intestate. Herein petitioner, as surviving Pastor Y. Lim, are all conjugal in nature, having been acquired by him
spouse and duly represented by her nephew George Luy, filed on 17 March Active Distributors, Inc. Block 3, Lot 6, Dacca BF during the existence of his marriage with petitioner. cda
1995, a joint petition 5 for the administration of the estate of Pastor Y. Lim
before the Regional Trial Court of Quezon City. Homes, Paraaque, "8. There are other real and personal properties owned by Pastor Y. Lim
which petitioner could not as yet identify. Petitioner, however will submit to
Private respondent corporations, whose properties were included in the Metro Manila. this Honorable Court the identities thereof and the necessary documents
inventory of the estate of Pastor Y. Lim, then filed a motion 6 for the lifting of xxx xxx xxx covering the same as soon as possible."
lis pendens and motion 7 for exclusion of certain properties from the estate
of the decedent. Action Company 100 20th Avenue On 04 July 1995, the Regional Trial Court acting on petitioner's motion issued
an order 10 , thus:
In an order 8 dated 08 June 1995, the Regional Trial Court of Quezon City, Murphy, Quezon City
Branch 93, sitting as a probate court, granted the private respondents' twin "Wherefore, the order dated 08 June 1995 is hereby set aside and the
motions, in this wise: or Registry of Deeds of Quezon City is hereby directed to reinstate the
annotation of lis pendens in case said annotation had already been
"Wherefore, the Register of Deeds of Quezon City is hereby ordered to lift, 92-D Mc-Arthur Highway deleted and/or cancelled said TCT Nos. 116716, 116717, 116718, 116719
expunge or delete the annotation of lis pendens on Transfer Certificates of and 51282.
Title Nos. 116716, 116717, 116718, 116719 and 5182 and it is hereby further Valenzuela Bulacan.
ordered that the properties covered by the same titles as well as those "3.1 Although the above business entities dealt and engaged in business Further more (sic), said properties covered by TCT Nos. 613494, 365123,
properties by (sic) Transfer Certificate of Title Nos. 613494, 363123, 236236 with the public as corporations, all their capital, assets and equity were 236256 and 236237 by virtue of the petitioner are included in the instant
and 263236 are excluded from these proceedings. however, personally owned by the late Pastor Y Lim. Hence the alleged petition.
stockholders and officers appearing in the respective articles of
SO ORDERED." incorporation of the above business entities were mere dummies of Pastor SO ORDERED."
Y. Lim, and they were listed therein only for purposes of registration with the
Subsequently, Rufina Luy Lim filed a verified amended petition 9 which Securities and Exchange Commission. On 04 September 1995, the probate court appointed Rufina Lim as special
contained the following averments: administrator 11 and Miguel Lim and Lawyer Donald Lee, as co-special

102
administrators of the estate of Pastor Y. Lim, after which letters of
administration were accordingly issued.
In an order 12 dated 12 September 1995, the probate court denied anew
private respondents' motion for exclusion, in this wise:
"The issue precisely raised by the petitioner in her petition is whether the
corporations are the mere alter egos or instrumentalities of Pastor Lim,
Otherwise (sic) stated, the issue involves the piercing of the corporate veil,
a matter that is clearly within the jurisdiction of this Honorable Court and not
the Securities and Exchange Commission. Thus, in the case of Cease vs.
Court of Appeals, 93 SCRA 483, the crucial issue decided by the regular
court was whether the corporation involved therein was the mere extension
of the decedent. After finding in the affirmative, the Court ruled that the
assets of the corporation are also assets of the estate.
A reading of P.D. 902, the law relied upon by oppositors, shows that the
SEC's exclusive (sic) applies only to intra-corporate controversy. It is simply a
suit to settle the intestate estate of a deceased person who, during his
lifetime, acquired several properties and put up corporations as his
instrumentalities.
SO ORDERED."
On 15 September 1995, the probate court acting on an ex parte motion
filed by petitioner, issued an order 13 the dispositive portion of which reads:
"Wherefore, the parties and the following banks concerned herein under
enumerated are hereby ordered to comply strictly with this order and to
produce and submit to the special administrators, through this Honorable
Court within (5) five days from receipt of this order their respective records
of the savings/current accounts/time deposits and other deposits in the
names of Pastor Lim and/or corporations above-mentioned, showing all the
transactions made or done concerning savings/current accounts from
January 1994 up to their receipt of this court order.
xxx xxx xxx
SO ORDERED."
Private respondent filed a special civil action for certiorari 14 , with an
urgent prayer for a restraining order or writ of preliminary injunction, before
the Court of Appeals questioning the orders of the Regional Trial Court,
sitting as a probate court.
On 18 April 1996, the Court of Appeals, finding in favor of herein private
respondents, rendered the assailed decision 15 , the decretal portion of
which declares:
"Wherefore, premises considered, the instant special civil action for
certiorari is hereby granted, The impugned orders issued by respondent
court on July 4, 1995 and September 12, 1995 are hereby nullified and set
aside. The impugned order issued by respondent on September 15, 1995 is
nullified insofar as petitioner corporations" bank accounts and records are
concerned.
SO ORDERED."
Through the expediency of Rule 45 of the Rules of Court, herein petitioner
Rufina Luy Lim now comes before us with a lone assignment of error: 16
"The respondent Court of Appeals erred in reversing the orders of the lower
court which merely allowed the preliminary or provisional inclusion of the
private respondents as part of the estate of the late deceased (sic) Pastor
Y. Lim with the respondent Court of Appeals arrogating unto itself the power
to repeal, to disobey or to ignore the clear and explicit provisions of Rules
81, 83, 84 and 87 of the Rules of Court and thereby preventing the
petitioner, from performing her duty as special administrator of the estate
as expressly provided in the said Rules."
Petitioner's contentions tread on perilous grounds.
In the instant petition for review, petitioner prays that we affirm the orders
issued by the probate court which were subsequently set aside by the Court
of Appeals.
Yet, before we delve into the merits of the case, a review of the rules on
jurisdiction over probate proceedings is indeed in order.
The provisions of Republic Act 7691 17 , which introduced amendments to
Batas Pambansa Blg. 129, are pertinent:
"SECTION 1. Section 19 of Batas Pambansa Blg. 129, otherwise known as the
"Judiciary Reorganization Act of 1980", is hereby amended to read as
follows:
SECTION 19. Jurisdiction in civil cases. Regional Trial Courts shall exercise
exclusive jurisdiction:
xxx xxx xxx
(4) In all matters of probate, both testate and intestate, where the gross
value of the estate exceeds One Hundred Thousand Pesos (P100,000) or, in
probate matters in Metro Manila, where such gross value exceeds Two
Hundred Thousand Pesos (P200,000);
xxx xxx xxx
SECTION 3. Section 33 of the same law is hereby amended to read as
follows: cdll
SECTION 33. Jurisdiction of Metropolitan Trial Courts, Municipal Trial Courts
and Municipal Circuit Trial Courts in Civil Cases. Metropolitan Trial Courts,
Municipal Trial Courts and Municipal Circuit Trial Courts shall exercise:
1. Exclusive original jurisdiction over civil actions and probate proceedings,
testate and intestate, including the grant of provisional remedies in proper
cases, where the value of the personal property, estate or amount of the
demand does not exceed One Hundred Thousand Pesos (P100,000) or, in
Metro Manila where such personal property, estate or amount of the
demand does not exceed Two Hundred Thousand Pesos (P200,000),
exclusive of interest, damages of whatever kind, attorney's fees, litigation
expenses and costs, the amount of which must be specifically alleged,
Provided, that interest, damages of whatever kind, attorney's litigation
expenses and costs shall be included in the determination of the filing fees,
Provided further, that where there are several claims or causes of actions
between the same or different parties, embodied in the same complaint,
the amount of the demand shall be the totality of the claims in all the
causes of action, irrespective of whether the causes of action arose out of
the same or different transactions;
xxx xxx xxx
Simply put, the determination of which court exercises jurisdiction over
matters of probate depends upon the gross value of the estate of the
decedent.
As to the power and authority of the probate court, petitioner relies heavily
on the principle that a probate court may pass upon title to certain
properties, albeit provisionally, for the purpose of determining whether a
certain property should or should not be included in the inventory.
In a litany of cases, We defined the parameters by which the court may
extend its probing arms in the determination of the question of title in
probate proceedings.
This Court, in PASTOR, JR. vs. COURT OF APPEALS, 18 held:
". . . 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."
We reiterated the rule in PEREIRA vs. COURT OF APPEALS: 19
". . . The function of resolving whether or not a certain property should be
included in the inventory or list of properties to be administered by the
administrator is one clearly within the competence of the probate court.
However, the court's determination is only provisional in character, not
conclusive, and is subject to the final decision in a separate action which
may be instituted by the parties."
Further, in MORALES vs. CFI OF CAVITE 20 citing CUIZON vs. RAMOLETE, 21
We made an exposition on the probate court's limited jurisdiction:
103

"It is a well-settled rule that a probate court or one in charge of proceedings
whether testate or intestate cannot adjudicate or determine title to
properties claimed to be a part of the estate and which are equally
claimed to belong to outside parties. All that the said court could do as
regards said properties is to determine whether they should or should not
be included in the inventory or list of properties to be administered by the
administrator. If there is no dispute, well and good; but if there is, then the
parties, the administrator and the opposing parties have to resort to an
ordinary action for a final determination of the conflicting claims of title
because the probate court cannot do so."
Again, in VALERA vs. INSERTO, 22 We had occasion to elucidate, through
Mr. Justice Andres Narvasa: 23
"Settled is the rule that a Court of First Instance (now Regional Trial Court),
acting as a probate court, exercises but limited jurisdiction, and thus has no
power to take cognizance of and determine the issue of title to property
claimed by a third person adversely to the decedent, unless the claimant
and all other parties having legal interest in the property consent, expressly
or impliedly, to the submission of the question to the probate court for
adjudgment, or the interests of third persons are not thereby prejudiced,
the reason for the exception being that the question of whether or not a
particular matter should be resolved by the court in the exercise of its
general jurisdiction or of its limited jurisdiction as a special court (e.g.
probate, land registration, etc.), is in reality not a jurisdictional but in essence
of procedural one, involving a mode of practice which may be waived. . .
. categorically stated:
. . . . These considerations assume greater cogency where, as here, the
Torrens title is not in the decedent's name but in others, a situation on which
this Court has already had occasion to rule. . .."(italics Ours)
Petitioner, in the present case, argues that the parcels of land covered
under the Torrens system and registered in the name of private respondent
corporations should be included in the inventory of the estate of the
decedent Pastor Y. Lim, alleging that after all the determination by the
probate court of whether these properties should be included or not is
merely provisional in nature, thus, not conclusive and subject to a final
determination in a separate action brought for the purpose of adjudging
once and for all the issue of title.
Yet, under the peculiar circumstances, where the parcels of land are
registered in the name of private respondent corporations, the
jurisprudence pronounced in BOLISAY vs. ALCID 24 is of great essence and
finds applicability, thus:
"It does not matter that respondent-administratrix has evidence purporting
to support her claim of ownership, for, on the other hand, petitioners have
a Torrens title in their favor, which under the law is endowed with
incontestability until after it has been set aside in the manner indicated in
the law itself, which, of course, does not include, bringing up the matter as
a mere incident in special proceedings for the settlement of the estate of
deceased persons. . . . "
". . . . In regard to such incident of inclusion or exclusion, We hold that if a
property covered by Torrens title is involved, the presumptive
conclusiveness of such title should be given due weight, and in the absence
of strong compelling evidence to the contrary, the holder thereof should
be considered as the owner of the property in controversy until his title is
nullified or modified in an appropriate ordinary action, particularly, when as
in the case at bar, possession of the property itself is in the persons named
in the title. . . . "
A perusal of the records would reveal that no strong compelling evidence
was ever presented by petitioner to bolster her bare assertions as to the title
of the deceased Pastor Y. Lim over the properties. Even so, P.D. 1529,
otherwise known as, "The Property Registration Decree", proscribes
collateral attack on Torrens Title, hence:
xxx xxx xxx
SECTION 48. Certificate not subject to collateral attack. A certificate of
title shall not be subject to collateral attack. It cannot be altered, modified
or cancelled except in a direct proceeding in accordance with law."
In CUIZON vs. RAMOLETE, where similarly as in the case at bar, the property
subject of the controversy was duly registered under the Torrens system, We
". . . Having been apprised of the fact that the property in question was in
the possession of third parties and more important, covered by a transfer
certificate of title issued in the name of such third parties, the respondent
court should have denied the motion of the respondent administrator and
excluded the property in question from the inventory of the property of the
estate. It had no authority to deprive such third persons of their possession
and ownership of the property. . . . " cdtai
Inasmuch as the real properties included in the inventory of the estate of
the late Pastor Y. Lim are in the possession of and are registered in the name
of private respondent corporations, which under the law possess a
personality separate and distinct from their stockholders, and in the
absence of any cogency to shred the veil of corporate fiction, the
presumption of conclusiveness of said titles in favor of private respondents
should stand undisturbed.
Accordingly, the probate court was remiss in denying private respondents'
motion for exclusion. While it may be true that the Regional Trial Court,
acting in a restricted capacity and exercising limited jurisdiction as a
probate court, is competent to issue orders involving inclusion or exclusion
of certain properties in the inventory of the estate of the decedent, and to
adjudge, albeit, provisionally the question of title over properties, it is no less
true that such authority conferred upon by law and reinforced by
jurisprudence, should be exercised judiciously, with due regard and caution
to the peculiar circumstances of each individual case.
Notwithstanding that the real properties were duly registered under the
Torrens system in the name of private respondents, and as such were to be
afforded the presumptive conclusiveness of title, the probate court
obviously opted to shut its eyes to this gleamy fact and still proceeded to
issue the impugned orders.
By its denial of the motion for exclusion, the probate court in effect acted
in utter disregard of the presumption of conclusiveness of title in favor of
private respondents. Certainly, the probate court through such brazen act
transgressed the clear provisions of law and infringed settled jurisprudence
on this matter.
Moreover, petitioner urges that not only the properties of private
respondent corporations are properly part of the decedent's estate but
also the private respondent corporations themselves. To rivet such flimsy
contention, petitioner cited that the late Pastor Y. Lim during his lifetime,
organized and wholly-owned the five corporations, which are the private
respondents in the instant case. 25 Petitioner thus attached as Annexes "F"
26 and "G" 27 of the petition for review affidavits executed by Teresa Lim
and Lani Wenceslao which among others, contained averments that the
incorporators of Uniwide Distributing, Inc. included on the list had no actual
participation in the organization and incorporation of the said corporation.
The affiants added that the persons whose names appeared on the articles
of incorporation of Uniwide Distributing, Inc., as incorporators thereof, are
mere dummies since they have not actually contributed any amount to the
capital stock of the corporation and have been merely asked by the late
Pastor Y. Lim to affix their respective signatures thereon.
It is settled that a corporation is clothed with personality separate and
distinct from that of the persons composing it. It may not generally be held
liable for that of the persons composing it. It may not be held liable for the
personal indebtedness of its stockholders or those of the entities connected
with it. 28
Rudimentary is the rule that a corporation is invested by law with a
personality distinct and separate from its stockholders or members. In the
same vein, a corporation by legal fiction and convenience is an entity
shielded by a protective mantle and imbued by law with a character alien
to the persons comprising it.
Nonetheless, the shield is not at all times invincible. Thus, in FIRST PHILIPPINE
INTERNATIONAL BANK vs. COURT OF APPEALS 29 , We enunciated:
". . . When the fiction is urged as a means of perpetrating a fraud or an
illegal act or as a vehicle for the evasion of an existing obligation, the
circumvention of statutes, the achievement or perfection of a monopoly or
generally the perpetration of knavery or crime, the veil with which the law
covers and isolates the corporation from the members or stockholders who
compose it will be lifted to allow for its consideration merely as an
aggregation of individuals. . . . "
104

Piercing the veil of corporate entity requires the court to see through the
protective shroud which exempts its stockholders from liabilities that
ordinarily, they could be subject to, or distinguishes one corporation from a
seemingly separate one, were it not for the existing corporate fiction. 30
"Affidavits are classified as hearsay evidence since they are not generally
prepared by the affiant but by another who uses his own language in
writing the affiant's statements, which may thus be either omitted or
misunderstood by the one writing them. Moreover, the adverse party is
deprived of the opportunity to cross-examine the affiants. For this reason,
affidavits are generally rejected for being hearsay, unless the affiant
themselves are placed on the witness stand to testify thereon." prLL

The corporate mask may be lifted and the corporate veil may be pierced
when a corporation is just but the alter ego of a person or of another
corporation. Where badges of fraud exist, where public convenience is
defeated; where a wrong is sought to be justified thereby, the corporate
fiction or the notion of legal entity should come to naught. 31
As to the order 36 of the lower court, dated 15 September 1995, the Court
of Appeals correctly observed that the Regional Trial Court, Branch 93
acted without jurisdiction in issuing said order; The probate court had no
authority to demand the production of bank accounts in the name of the
private respondent corporations.

Further, the test in determining the applicability of the doctrine of piercing WHEREFORE, in view of the foregoing disquisitions, the instant petition is
the veil of corporate fiction is as follows: 1) Control, not mere majority or hereby DISMISSED for lack of merit and the decision of the Court of Appeals
complete stock control, but complete domination, not only of finances but which nullified and set aside the orders issued by the Regional Trial Court,
of policy and business practice in respect to the transaction attacked so Branch 93, acting as a probate court, dated 04 July 1995 and 12 September
that the corporate entity as to this transaction had at the time no separate 1995 is AFFIRMED.
mind, will or existence of its own; (2) Such control must have been used by
the defendant to commit fraud or wrong, to perpetuate the violation of a SO ORDERED.
statutory or other positive legal duty, or dishonest and unjust act in
contravention of plaintiffs legal right; and (3) The aforesaid control and
breach of duty must proximately cause the injury or unjust loss complained
of. The absence of any of these elements prevent "piercing the corporate
veil." 32

Mere ownership by a single stockholder or by another corporation of all or

nearly all of the capital stock of a corporation is not of itself a sufficient
reason for disregarding the fiction of separate corporate personalities. 33

Moreover, to disregard the separate juridical personality of a corporation,

the wrong-doing must be clearly and convincingly established. It cannot
be presumed. 34

Granting arguendo that the Regional Trial Court in this case was not merely
acting in a limited capacity as a probate court, petitioner nonetheless
failed to adduce competent evidence that would have justified the court
to impale the veil of corporate fiction. Truly, the reliance reposed by
petitioner on the affidavits executed by Teresa Lim and Lani Wenceslao is
unavailing considering that the aforementioned documents possess no
weighty probative value pursuant to the hearsay rule. Besides it is
imperative for us to stress that such affidavits are inadmissible in evidence
inasmuch as the affiants were not at all presented during the course of the
proceedings in the lower court. To put it differently, for this Court to uphold
the admissibility of said documents would be to relegate from Our duty to
apply such basic rule of evidence in a manner consistent with the law and
jurisprudence.

Our pronouncement in PEOPLE BANK AND TRUST COMPANY vs. LEONIDAS

35 finds pertinence:

105
[G.R. No. 78778. December 3, 1990.]
LEONIDA CORONADO, FELIX BUENO, MELANIA RETIZOS, BERNARDINO
BUENASEDA and JOVITA MONTEFALCON, petitioners, vs. THE COURT OF
APPEALS and JUANA BUENO ALBOVIAS, respondents.
PARAS, J p:
This is a petition for review on certiorari seeking to reverse the decision * of
the respondent appellate court dated March 3, 1987 CA-G.R. CV No. 06911
entitled "Juana (Bueno) Albovias et al., v. Leonida Coronado, et al.,"
affirming the decision of the lower court, the decretal portion of which
reads: LLphil
"WHEREFORE, premises considered, judgment is hereby rendered:
1. Declaring Leonida Coronado to have no title or interest over the property
in question, hence, has no authority to dispose of the same in favor of her
co-defendants;
2. Declaring the sales executed by Coronado and subsequent transactions
involving the same property null and void ab initio;
3. Declaring the plaintiff to be the true and legal owner of the subject
parcel of land;
4. Ordering the defendants to vacate the subject premises and to surrender
possession thereof unto the plaintiff;
5. Ordering the defendants to jointly and severally pay unto the plaintiff the
sum of P2,000.00 as attorney's fees and P10,000.00 as moral and exemplary
damages.
Costs against the defendants." (Rollo, p. 17)
As found by the respondent appellate court, the property subject of this
case is a parcel of land situated in Nagcarlan, Laguna, containing 277
square meters, more particularly described as follows: prcd
"A parcel of land situated in the Poblacion, Municipality of Nagcarlan,
province of Laguna. Bounded on the North, by property of Epifania Irlandez
(formerly Bonifacio Formentera); on the East, by that of Julio Lopez; on the
South, by that of Dalmacio Monterola (formerly Domingo Bueno); and on
the West, by C. Lirio Street. Containing an area of two hundred seventy
seven (277) square meters, more or less. Assessed at P3,320.00 under tax
declaration No. 241." (Ibid., p. 15)
Said parcel of land is being contested by Juana Albovias, herein private
respondent, on the one hand, and Leonida Coronado, Felix Bueno,
Melania Retizos, Bernardino Buenseda and Jovita Montefalcon, herein
petitioners, on the other hand.
Juana Albovias (JUANA, for brevity) claims that the property in question is a
portion of a bigger lot referred to as Parcel G in the last will and testament
executed in 1918 by Melecio Artiaga, grandfather of JUANA. This bigger lot
was inherited under that will by JUANA, her brother Domingo Bueno, and
two other grandchildren, namely Bonifacio and Herminigildo, both
surnamed Formentera. Parcel G is described as follows:
"Isang lagay na lupa na ang bahagi ay walang tanim na halaman at ang
bahagi naman ay may tanim na saguing, tumatayo sa gawin Canloran ng
Calle Avenida Rizal nitong Nagcarlan, at humahangan sa Ibaba; sa ari
cong Testador; sa Silangan, sa cay Enrique Jovellano; sa Ilaya, sa namatay
na Perfecto Nanagas, at sa Canloran, tubig na pinamamagatang San
Cido." (Ibid., p. 16)
JUANA further claims that sometime in 1925 or 1926, C. Lirio Street was
created by the Municipality of Nagcarla traversing said Parcel G and thus
dividing it into two portions, one on the west of C. Lirio St. and the other to
the east of said street. Parcel G was divided by the heirs in the following
manner; the land was divided into two portions, the northern portion of
which was adjudicated in favor of the Formenteras and the southern
portion was given to JUANA and Doming Bueno. The southern portion in
turn was partitioned between JUANA and Domingo Bueno, the former
getting the northern part adjoining the lot of the Formenteras, and the latter
the southern part which adjoins the lot of Perfecto Nanagas (not owned by
Dalmacio Monterola). The part allocated to Domingo was later sold by him
to Dalmacio Monterola, owner of the adjoining property (Ibid.). LLjur
Moreover, JUANA claims that her property was included together with the
two parcels of land owned by Dalmacio Monterola, which were sold by
Monterola's successor-in-interest Leonida Coronado (now married to Felix
Bueno) to Melania Retizos on April 18, 1970. Melania Retizos in turn sold the
lots, including that one being claimed by JUANA, to the spouse Bernardino
Buenaseda and Jovita Montefalcon, now the present possessors thereof,
sometime in 1974 (Ibid., pp. 16-17).
On the other hand, Leonida Coronado and her co-petitioners
(CORONADO, for brevity) claim that the property in question was
bequeathed to Leonida Coronado under a Will executed by Dr. Dalmacio
Monterola, who was allegedly in possession thereof even before the
outbreak of World War II (Ibid., p. 107).
Parenthetically, said will was probated under Sp. Proc. No. SC-283, entitled
"Testate Estate of the Deceased Monterola Leonida F. Coronado, petitioner
(Ibid., p. 105). JUANA, together with her husband, opposed the said
probate. Despite their opposition, however, the Will was allowed by the
then Court of First Instance of Laguna, Sta. Cruz Branch (Ibid., p. 106). On
appeal, said decision was affirmed by the Court of Appeals in CA-G.R. No.
40353, entitled "Leonida F. Coronado, petitioner-appellee v. Heirs of Dr.
Dalmacio Monterola, oppositors-appellants" (Ibid.). It is not apparent,
however, from the record whether or not said decision has already become
final and executory.
As a result of the conflicting claims over the property in question, JUANA
filed an action for quieting of title, declaratory relief and damages against
CORONADO in the Regional Trial Court of the Fourth Judicial Region,
Branch XXVI, Sta. Cruz, Laguna, docketed as Civil Case No. 7345 (Ibid., p.
4).
As adverted to above (first par.), the lower court rendered judgment in
favor of JUANA.
Not satisfied with the decision of the lower court, CORONADO elevated the
case to the Court of Appeals, which affirmed the decision appealed from
(Ibid., p. 20). Hence, this petition. prLL
CORONADO raised the following assigned errors:
I
THE RESPONDENT COURT OF APPEALS SERIOUSLY ERRED IN ARRIVING AT A
CONCLUSION WHICH IS CONTRARY TO THE FACTS AND CIRCUMSTANCES OF
THE CASE AND IN NOT APPLYING THE APPLICABLE PROVISION OF LAW AND
JURISPRUDENCE LAID DOWN BY THIS HONORABLE COURT. (Ibid., p. 108)
II
THERE IS NO EVIDENCE PRESENTED TO SHOW THAT THE LAND IN QUESTION
CLAIMED BY PRIVATE RESPONDENT IS THE SAME PROPERTY ADJUDICATED TO
JUANA BUENO UNDER THE WILL OF THE DECEASED MELECIO ARTIAGA;
NEITHER IS THERE EVIDENCE TO SHOW THAT SAID WILL HAD BEEN PROBATED.
(Ibid., p. 114)
III
PRIVATE RESPONDENT IS IN ESTOPPEL FROM QUESTIONING THE OWNERSHIP
OF THE PETITIONER OVER THE LAND IN QUESTION HAVING FAILED TO RAISE
THE SAME IN THE ESTATE PROCEEDING IN THE TRIAL COURT AND EVEN ON
APPEAL. (Ibid., p. 119)
IV
THE RESPONDENT COURT OF APPEALS MISAPPRECIATED THE EVIDENCE
SUBMITTED AND FACTS ADMITTED ON RECORD. IT THEREFORE COMMITTED
GRAVE AND SERIOUS ERROR. (Ibid., p. 121)
As required by this Court, CORONADO filed their memorandum on May 8,
1989 (Ibid., p. 105); while that of JUANA was filed on October 13, 1989 (Ibid.,
p. 139). LLpr
The petition is devoid of merit.
Under the first assigned error, CORONADO assails the respondent appellate
court's finding that Dr. Dalmacio Monterola could not have acquired the
subject land by acquisitive prescription. Citing Art. 1116 of the New Civil
Code in relation to Section 41 of the Code of Civil Procedure, CORONADO
claims that JUANA had already foreclosed whatever right or legal title she
had over the property in question, the reason being that Monterola's
106
continued possession of the said property for over ten years since 1934
ripened into full and absolute ownership (Ibid., p. 112).
The argument has no factual basis.
Time and again, it has been ruled that the jurisdiction of the Supreme Court
in cases brought to it from the Court of Appeals is limited to reviewing and
revising the errors of law imputed to it, its findings of fact being conclusive.
It is not the function of the Supreme Court to analyze or weigh such
evidence all over again, its jurisdiction being limited to reviewing errors of
law that might have been committed. Absent, therefore, a showing that
the findings complained of are totally devoid of support in the record, so
that they are so glaringly erroneous as to constitute serious abuse of
discretion, such findings must stand, for the Supreme Court is not expected
or required to examine or contrast the oral and documentary evidence
submitted by the parties (Andres v. Manufacturers Hanover & Trust
Corporation, G.R. 82670, September 15, 1989). There are no convincing
reasons in the instant case to depart from this rule.
As found by the respondent appellate court, Monterola never claimed
ownership over the property in question. As a matter of fact, one of the
deeds of donation executed by Monterola in favor of Leonida Coronado
acknowledged that the boundary owner on the property conveyed to her
is JUANA. This is precisely the reason why during the lifetime of the late
Dalmacio Monterola, JUANA had always been allowed to enter and reap
the benefits or produce of the said property. It was only after the death of
said Monterola in 1970 that Leonida Coronado prohibited JUANA from
entering it (Ibid., p. 18). LexLib
Even assuming arguendo that Monterola was indeed in continued
possession of the said property for over ten years since 1934, said possession
is insufficient to constitute the fundamental basis of the prescription.
Possession, under the Civil Code, to constitute the foundation of a
prescriptive right, must be possession under claim of title (en concepto de
dueno), or to use the common law equivalent of the term, it must be
adverse. Acts of possessory character performed by one who holds by
mere tolerance of the owner are clearly not en concepto de dueno, and
such possessory acts, no matter how long so continued, do not start the
running of the period of prescription (Manila Electric Company v.
Intermediate Appellate Court, G.R. 71393, June 28, 1989).
In this case, Monterola, as found by the respondent appellate court and
the lower court, never categorically claimed ownership over the property
in question, much less his possession thereof en concepto de dueno.
Accordingly, he could not have acquired said property by acquisitive
prescription.
"It follows that Leonida Coronado could not have derived ownership of the
land in question from her predecessor-in-interest Dalmacio Monterola,
whether by prescription or by some other title. Neither can she claim
acquisitive prescription in her own name. It was only in 1970 after the death
of Dalmacio Monterola that she asserted her claim of ownership adverse
to that of plaintiff-appellee. Having knowledge that she had no title over
the land in question, she must be deemed to have claimed it in bad faith.
Under Article 1137 of the Civil Code, ownership and other real rights over
immovables prescribe through uninterrupted adverse possession thereof for
thirty years, without need of title or good faith. And even granting that she
had no notice or defect in her title and was, therefore, in good faith, a
period of ten years of possession is necessary for her to acquire the land by
ordinary prescription. (Article 1134, Civil Code). But she can claim to have
possessed the land only in 1968, the year the Monterola lots were donated
to her. The period, however, was interrupted in 1975, or 7 years after, when
the complaint below was filed." (Rollo, pp. 18-19)
Under the second assigned error, CORONADO claims that the will under
which JUANA inherited the property in question from her grandfather,
Melecio Artiaga, was never probated; hence, said transfer for ownership
was ineffectual considering that under Rule 75, Sec. 1 of the Rules of Court
(formerly Sec. 125 of Act No. 190), no will shall pass either real or personal
property unless it is proved and allowed in the proper court (Ibid., p. 115).
The contention is without merit. LibLex
While it is true that no will shall pass either real or personal property unless it
is proved and allowed in the proper court (Art. 838, Civil Code), the
questioned will, however, may be sustained on the basis of Article 1056 of
the Civil Code of 1899, which was in force at the time said document was
executed by Melecio Artiaga in 1918. The said article read as follows:
"Article 1056. If the testator should make a partition of his properties 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 heir." (Mang-Oy v. Court of Appeals,
144 SCRA 33 [1986])
In this case, nowhere was it alleged nor shown that Leonida Coronado is
entitled to legitime from Melecio Artiaga. The truth of the matter is that the
record is bereft of any showing that Leonida Coronado and the late
Melecio Artiaga were related to each other.
Under the third assigned error, CORONADO claims that JUANA is estopped
from questioning the ownership of Leonida Coronado over the land in
question having failed to raise the same in the estate proceedings in the
trial court and even on appeal (Rollo, p. 119).
determine nor even by implication prejudge the validity or efficiency of the
provisions of the will, thus may be impugned as being vicious or null,
notwithstanding its authentication. The question relating to these points
remain entirely unaffected, and may be raised even after the will has been
authenticated (Maninang, et al., v. Court of Appeals, 114 SCRA 473 [1982]).
Consequently, JUANA is not estopped from questioning the ownership of
the property in question, notwithstanding her having objected to the
probate of the will executed by Monterola under which Leonida Coronado
is claiming title to the said property. Cdpr
Under the fourth assigned error, it is alleged by CORONADO that JUANA's
petition is weak for want of factual and legal support; the weakness of
JUANA's position lies in the fact that she did not only fail to identify the
subject land, but also failed to explain the discrepancy in the boundary of
the property she is claiming to be hers (Rollo, p. 125).
The contention is unavailing.
The fact that JUANA failed to identify the property in question and to
explain the discrepancy in the boundary of said property, assuming they
are true, is immaterial, in view of the findings of the lower court as to the
identity of the property in question. Moreover, the lower court found
sufficient evidence to support the conclusion that the property in question
is the same property adjudicated to JUANA under the will of Melecio
Artiaga, and that CORONADO has no right whatsoever to said property
(Ibid., p. 20). Such findings are conclusive upon this Court (Reynolds
Philippine Corporation v. Court of Appeals, 169 SCRA 220 [1989]).
PREMISES CONSIDERED, the decision appealed from is hereby AFFIRMED.
SO ORDERED.

Anent the contention of CORONADO that Leonida Coronado could tack
her possession to that of Monterola, so that claim of legal title or ownership
over the subject property, even against the petitioners, the Buenasesas,
who are purchasers for value and in good faith, is a foregone or settled
issue, the respondent appellate court aptly answered the same in this wise:
The contention is likewise without merit.
Normally, the probate of a will does not look into its intrinsic validity. The
authentication of a will decides no other questions than such as touch upon
the capacity of the testator and the compliance with those requisites or
solemnities which the law prescribes for the validity of the wills. It does not
107
[G.R. No. 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.
GUTIERREZ, JR., J p:
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. LLjur
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 will 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 Wills 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. Cdpr
On January 11, 1978, an opposition to the reprobate of the will was filed by
herein petitioner alleging among other things, that he has every reason to
believe that the will in question is a forgery; that the intrinsic provisions of the
will are null and void; and that even if pertinent American laws on intrinsic
provisions are invoked, the same could not apply inasmuch as they would
work injustice and injury to him.
On December 1, 1978, however, the petitioner through his counsel, Atty.
Franco Loyola, filed a Motion to Dismiss Opposition (With Waiver of Rights or
Interests) stating that he "has been able to verify the veracity thereof (of the
will) and now confirms the same to be truly the probated will of his daughter
Adoracion." Hence, an ex-parte presentation of evidence for the
reprobate of the questioned will was made.
On January 10, 1979, the respondent judge issued an order to wit:
"At the hearing, it has been satisfactorily established that Adoracion C.
Campos, in her lifetime, was a citizen of the United States of America with
a permanent residence at 4633 Ditman Street, Philadelphia, PA 19124,
(Exhibit D); that when alive, Adoracion C. Campos executed a Last Will and
Testament in the county of Philadelphia, Pennsylvania, U.S.A., according to
the laws thereat (Exhibits E-3 to E-3-b); that while in temporary sojourn in the
Philippines, Adoracion C. Campos died in the City of Manila (Exhibit C)
leaving property both in the Philippines and in the United States of America;
that the Last Will and Testament of the late Adoracion C. Campos was
admitted and granted probate by the Orphan's Court Division of the Court
of Common Pleas, the probate court of the Commonwealth of
Pennsylvania, County of Philadelphia, U.S.A., and letters of administration
were issued in favor of Clement J. McLaughlin, all in accordance with the
laws of the said foreign country on procedure and allowance of wills
(Exhibits E to E-10); and that the petitioner is not suffering from any
disqualification which would render her unfit as administratrix of the estate
in the Philippines of the late Adoracion C. Campos.
"WHEREFORE, the Last Will and Testament of the late Adoracion C. Campos
is hereby admitted to and allowed probate in the Philippines, and Nenita
Campos Paguia is hereby appointed Administratrix of the estate of said
decedent; let Letters of Administration with the Will annexed issue in favor
of said Administratrix upon her filing of a bond in the amount of P5,000.00
conditioned under the provisions of Section I, Rule 81 of the Rules of Court.
Another manifestation was filed by the petitioner on April 14, 1979,
confirming the withdrawal of his opposition, acknowledging the same to be
his voluntary act and deed.
On May 25, 1979, Hermogenes Campos filed a petition for relief, praying
that the order allowing the will be set aside on the ground that the
withdrawal of his opposition to the same was secured through fraudulent
means. According to him, the "Motion to Dismiss Opposition" was inserted
among the papers which he signed in connection with two Deeds of
Conditional Sales which he executed with the Construction and
Development Corporation of the Philippines (CDCP). He also alleged that
the lawyer who filed the withdrawal of the opposition was not his 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. cdll
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 ex-parte hearing 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.
108

"4) He denied petitioner's petition for Relief on the ground that no evidence
was adduced to support the Petition for Relief when no Notice nor hearing
was set to afford petitioner to prove the merit of his petition a denial of
the due process and a grave abuse of discretion amounting to lack of
jurisdiction.
"5) He acquired no jurisdiction over the testate case, the fact that the
Testator at the time of death was a usual resident of Dasmarias, Cavite,
consequently Cavite Court of First Instance has exclusive jurisdiction over
the case (De Borja vs. Tan, G.R. No. L-7792, July 1955)."
The first two issues raised by the petitioner are anchored on the allegation
that the respondent judge acted with grave abuse of discretion when he
allowed the withdrawal of the petitioner's opposition to the reprobate of
the will.
We find no grave abuse of discretion on the part of the respondent judge.
No proof was adduced to support petitioner's contention that the motion
to withdraw was secured through fraudulent means and that Atty. Franco
Loyola was not his counsel of record. The records show that after the filing
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. LLpr
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 v. 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 will 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. prcd
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 the Adoracion at the time of her death was a
citizen and permanent resident of Pennsylvania, United States of America
an 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. v. Hon. Manuel Lazaro, et al., G.R. No.
63284, April 4, 1984). LLphil
WHEREFORE, the petition for certiorari and prohibition is hereby dismissed
for lack of merit.
SO ORDERED.
109
[G.R. No. 83484. February 12, 1990.]
CELEDONIA SOLIVIO, petitioner, vs. THE HONORABLE COURT OF APPEALS and
CONCORDIA JAVELLANA VILLANUEVA, respondents.
MEDIALDEA, J p:
This is a petition for review of the decision dated January 26, 1988 of the
Court of Appeals in CA-GR CV No. 09010 (Concordia Villanueva v.
Celedonia Solivio) affirming the decision of the trial court in Civil Case No.
13207 for partition, reconveyance of ownership and possession and
damages, the dispositive portion of which reads as follows:
"WHEREFORE, judgment is hereby rendered for the plaintiff and against
defendant:
"a) Ordering that the estate of the late Esteban Javellana, Jr. be divided
into two (2) shares: one-half for the plaintiff and one-half for defendant.
From both shares shall be equally deducted the expenses for the burial,
mausoleum and related expenditures. Against the share of defendants
shall be charged the expenses for scholarship, awards, donations and the
'Salustia Solivio Vda. de Javellana Memorial Foundation;'
"b) Directing the defendant to submit an inventory of the entire estate
property, including but not limited to, specific items already mentioned in
this decision and to render an accounting of the property of the estate,
within thirty (30) days from receipt of this judgment; one-half (1/2) of this
produce shall belong to plaintiff;
"c) Ordering defendant to pay plaintiff P5,000.00 as expenses of litigation;
P10,000.00 for and as attorney's fees plus costs."
"SO ORDERED." (pp. 42-43, Rollo)
This case involves the estate of the late novelist, Esteban Javellana, Jr.,
author of the first post-war Filipino novel "Without Seeing the Dawn," who
died a bachelor, without descendants, ascendants, brothers, sisters,
nephews or nieces. His only surviving relatives are: (1) his maternal aunt,
petitioner Celedonia Solivio, the spinster half-sister of his mother, Salustia
Solivio; and (2) the private respondent, Concordia Javellana-Villanueva,
sister of his deceased father, Esteban Javellana, Sr.
He was a posthumous child. His father died barely ten (10) months after his
marriage in December, 1916 to Salustia Solivio and four months before
Esteban, Jr. was born.
Salustia and her sister, Celedonia (daughter of Engracio Solivio and his
second wife Josefa Fernandez), a teacher in the Iloilo Provincial High
School, brought up Esteban, Jr.
Salustia brought to her marriage paraphernal properties (various parcels of
land in Calinog, Iloilo covered by 24 titles) which she had inherited from her
mother, Gregoria Celo, Engracio Solivio's first wife (p. 325, Record), but no
conjugal property was acquired during her short-lived marriage to Esteban,
Sr.
On October 11, 1959, Salustia died, leaving all her properties to her only
child, Esteban, Jr., including a house and lot in La Paz, Iloilo City, where she,
her son, and her sister lived. In due time, the titles of all these properties were
transferred in the name of Esteban, Jr.
During his lifetime, Esteban, Jr. had, more than once, expressed to his aunt
Celedonia and some close friends his plan to place his estate in a
foundation to honor his mother and to help poor but deserving students
obtain a college education. Unfortunately, he died of a heart attack on
February 26, 1977 without having set up the foundation.
Two weeks after his funeral, Concordia and Celedonia talked about what
to do with Esteban's properties. Celedonia told Concordia about Esteban's
desire to place his estate in a foundation to be named after his mother,
from whom his properties came, for the purpose of helping indigent
students in their schooling. Concordia agreed to carry out the plan of the
deceased. This fact was admitted by her in her "Motion to Reopen and or
Reconsider the Order dated April 3, 1978" which she filed on July 27, 1978 in
Special Proceeding No. 2540, where she stated:
"4. That petitioner knew all along the narrated facts in the immediately
preceding paragraph [that herein movant is also the relative of the
deceased within the third degree, she being the younger sister of the late
Esteban Javellana, father of the decedent herein], because prior to the
filing of the petition they (petitioner Celedonia Solivio and movant
Concordia Javellana) have agreed to make the estate of the decedent a
foundation, besides they have closely known each other due to their
filiation to the decedent and they have been visiting each other's house
which are not far away for (sic) each other." (p. 234, Record; emphasis
supplied.)
Pursuant to their agreement that Celedonia would take care of the
proceedings leading to the formation of the foundation, Celedonia in good
faith and upon the advice of her counsel, filed on March 8, 1977 Spl.
Proceeding No. 2540 for her appointment as special administratrix of the
estate of Esteban Javellana, Jr. (Exh. 2). Later, she filed an amended
petition (Exh. 5) praying that letters of administration be issued to her; that
she be declared sole heir of the deceased; and that after payment of all
claims and rendition of inventory and accounting, the estate be
adjudicated to her (p. 115, Rollo). prcd
After due publication and hearing of her petition, as well as her amended
petition, she was declared sole heir of the estate of Esteban Javellana, Jr.
She explained that this was done for three reasons: (1) because the
properties of the estate had come from her sister, Salustia Solivio; (2) that
she is the decedent's nearest relative on his mother's side; and (3) with her
as sole heir, the disposition of the properties of the estate to fund the
foundation would be facilitated.
On April 3, 1978, the court (Branch II, CFI, now Branch 23, RTC) declared her
the sole heir of Esteban, Jr. Thereafter, she sold properties of the estate to
pay the taxes and other obligations of the deceased and proceeded to
set up the "SALUSTIA SOLIVIO VDA. DE JAVELLANA FOUNDATION" which she
caused to be registered in the Securities and Exchange Commission on July
17, 1981 under Reg. No. 0100027 (p. 98, Rollo).
Four months later, or on August 7, 1978, Concordia Javellana-Villanueva
filed a motion for reconsideration of the court's order declaring Celedonia
as "sole heir" of Esteban, Jr., because she too was an heir of the deceased.
On October 27, 1978, her motion was denied by the court for tardiness (pp.
80-81, Record). Instead of appealing the denial, Concordia filed on
January 7, 1980 (or one year and two months later), Civil Case No. 13207 in
the Regional Trial Court of Iloilo, Branch 26, entitled "Concordia Javellana-
Villanueva v. Celedonia Solivio" for partition, recovery of possession,
ownership and damages.
On September 3, 1984, the said trial court rendered judgment in Civil Case
No. 13207, in favor of Concordia Javellana-Villanueva.
On Concordia's motion, the trial court ordered the execution of its
judgment pending appeal and required Celedonia to submit an inventory
and accounting of the estate. In her motions for reconsideration of those
orders, Celedonia averred that the properties of the deceased had already
been transferred to, and were in the possession of, the "Salustia Solivio Vda.
de Javellana Foundation." The trial court denied her motions for
reconsideration.
In the meantime, Celedonia perfected an appeal to the Court of Appeals
(CA-GR CV No. 09010). On January 26, 1988, the Court of Appeals, Eleventh
Division, rendered judgment affirming the decision of the trial court in toto.
Hence, this petition for review wherein she raised the following legal issues:
LLjur
1. whether Branch 26 of the RTC of Iloilo had jurisdiction to entertain Civil
Case No. 13207 for partition and recovery of Concordia Villanueva's share
of the estate of Esteban Javellana, Jr. even while the probate proceedings
(Spl. Proc. No. 2540) were still pending in Branch 23 of the same court;
2. whether Concordia Villanueva was prevented from intervening in Spl.
Proc. No. 2540 through extrinsic fraud;
3. whether the decedent's properties were subject to reserva troncal in
favor of Celedonia, his relative within the third degree on his mother's side
from whom he had inherited them; and
4. whether Concordia may recover her share of the estate after she had
agreed to place the same in the "Salustia Solivio Vda. de Javellana
Foundation," and notwithstanding the fact that conformably with said
110
agreement, the Foundation has been formed and properties of the estate
have already been transferred to it.
I. The question of jurisdiction
After a careful review of the records, we find merit in the petitioner's
contention that the Regional Trial Court, Branch 26, lacked jurisdiction to
entertain Concordia Villanueva's action for partition and recovery of her
share of the estate of Esteban Javellana, Jr. while the probate proceedings
(Spl. Proc. No. 2540) for the settlement of said estate are still pending in
Branch 23 of the same court, there being as yet no orders for the submission
and approval of the administratrix's inventory and accounting, distributing
the residue of the estate to the heir, and terminating the proceedings (p.
31, Record).
It is the order of distribution directing the delivery of the residue of the estate
to the persons entitled thereto that brings to a close the intestate
proceedings, puts an end to the administration and thus far relieves the
administrator from his duties (Santiesteban v. Santiesteban, 68 Phil. 367,
Philippine Commercial and Industrial Bank v. Escolin, et al., L-27860, March
29, 1974, 56 SCRA 266).
The assailed order of Judge Adil in Spl. Proc. No. 2540 declaring Celedonia
as the sole heir of the estate of Esteban Javellana, Jr. did not toll the end of
the proceedings. As a matter of fact, the last paragraph of the order
directed the administratrix to "hurry up the settlement of the estate." The
pertinent portions of the order are quoted below:
"2. As regards the second incident [Motion for Declaration of Miss
Celedonia Solivio as Sole Heir, dated March 7, 1978], it appears from the
record that despite the notices posted and the publication of these
proceedings as required by law, no other heirs came out to interpose any
opposition to the instant proceeding. It further appears that herein
Administratrix is the only claimant-heir to the estate of the late Esteban
Javellana who died on February 26, 1977.
"During the hearing of the motion for declaration as heir on March 17, 1978,
it was established that the late Esteban Javellana died single, without any
known issue, and without any surviving parents. His nearest relative is the
herein Administratrix, an elder [sic] sister of his late mother who reared him
and with whom he had always been living with [sic] during his lifetime.
"xxx xxx xxx"
"2. Miss Celedonia Solivio, Administratrix of this estate, is hereby declared as
the sole and legal heir of the late Esteban S. Javellana, who died intestate
on February 26, 1977 at La Paz, Iloilo City.
"The Administratrix is hereby instructed to hurry up with the settlement of this
estate so that it can be terminated. (pp. 14-16, Record).
In view of the pendency of the probate proceedings in Branch 11 of the
Court of First Instance (now RTC, Branch 23), Concordia's motion to set aside
the order declaring Celedonia as sole heir of Esteban, and to have herself
(Concordia) declared as co-heir and recover her share of the properties of
the deceased, was properly filed by her in Spl. Proc. No. 2540. Her remedy
when the court denied her motion, was to elevate the denial to the Court
of Appeals for review on certiorari. However, instead of availing of that
remedy, she filed more than one year later, a separate action for the same
purpose in Branch 26 of the court. We hold that the separate action was
improperly filed for it is the probate court that has exclusive jurisdiction to
make a just and legal distribution of the estate.
"The probate court, in the exercise of its jurisdiction to make distribution, has
power to determine the proportion or parts to which each distributee is
entitled . . . The power to determine the legality or illegality of the
testamentary provision is inherent in the jurisdiction of the court making a
just and legal distribution of the inheritance . . . To hold that a separate and
independent action is necessary to that effect, would be contrary to the
general tendency of the jurisprudence of avoiding multiplicity of suits; and
is further, expensive, dilatory, and impractical." (Marcelino v. Antonio, 70
Phil. 388).
"A judicial declaration that a certain person is the only heir of the decedent
is exclusively within the range of the administratrix proceedings and can not
properly be made an independent action." (Litam v. Espiritu, 100 Phil. 364)
"A separate action for the declaration of heirs is not proper." (Pimentel v.
Palanca, 5 Phil. 436)
In the interest of orderly procedure and to avoid confusing and conflicting
dispositions of a decedent's estate, a court should not interfere with
probate proceedings pending in a co-equal court. Thus, did we rule in
Guilas v. Judge of the Court of First Instance of Pampanga, L-26696, January
31, 1972, 43 SCRA 111, 117, where a daughter filed a separate action to
annul a project of partition executed between her and her father in the
proceedings for the settlement of the estate of her mother:
"The probate court loses jurisdiction of an estate under administration only
after the payment of all the debts and the remaining estate delivered to
the heirs entitled to receive the same. The finality of the approval of the
project of partition by itself alone does not terminate the probate
proceeding (Timbol v. Cano, 1 SCRA 1271, 1276, L-15445, April 29, 1961;
Siguiong v. Tecson, 89 Phil. pp. 28, 30). As long as the order of the distribution
of the estate has not been complied with, the probate proceedings cannot
be deemed closed and terminated (Siguiong v. Tecson, supra); because a
judicial partition is not final and conclusive and does not prevent the heirs
from bringing an action to obtain his share, provided the prescriptive period
therefore has not elapsed (Mari v. Bonilla, 83 Phil. 137). The better practice,
however, for the heir who has not received his share, is to demand his share
through a proper motion in the same probate or administration
proceedings, or for reopening of the probate or administrative proceedings
if it had already been closed, and not through an independent action,
which would be tried by another court or Judge which may thus reverse a
decision or order of the probate or intestate court already final and
executed and re-shuffle properties long ago distributed and disposed of"
(Ramos v. Ortuzar, 89 Phil. 730, 741-742; Timbol v. Cano, supra; Jingco v.
Daluz, L-5107, April 24, 1953, 92 Phil. 1082; Roman Catholic v. Agustines, L-
14710, March 29, 1960, 107 Phil. 455, 460-461; Emphasis supplied)
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)
However, in the Guilas case, supra, since the estate proceedings had been
closed and terminated for over three years, the action for annulment of the
project of partition was allowed to continue. Considering that in the instant
case, the estate proceedings are still pending, but nonetheless, Concordia
had lost her right to have herself declared as co-heir in said proceedings,
We have opted likewise to proceed to discuss the merits of her claim in the
interest of justice. cdphil
The orders of the Regional Trial Court, Branch 26, in Civil Case No. 13207
setting aside the probate proceedings in Branch 23 (formerly Branch 11) on
the ground of extrinsic fraud, and declaring Concordia Villanueva to be a
co-heir of Celedonia to the estate of Esteban, Jr., ordering the partition of
the estate, and requiring the administratrix, Celedonia, to submit an
inventory and accounting of the estate, were improper and officious, to
say the least, for these matters lie within the exclusive competence of the
probate court.
II. The question of extrinsic fraud
Was Concordia prevented from intervening in the intestate proceedings by
extrinsic fraud employed by Celedonia? It is noteworthy that extrinsic fraud
was not alleged in Concordia's original complaint in Civil Case No. 13207. It
was only in her amended complaint of March 6, 1980, that extrinsic fraud
was alleged for the first time.
"Extrinsic fraud, as a ground for annulment of judgment, is any act or
conduct of the prevailing party which prevented a fair submission of the
controversy (Francisco v. David, 38 O.G. 714). A fraud 'which prevents a
party from having a trial or presenting all of his case to the court, or one
which operates upon matters pertaining, not to the judgment itself, but to
the manner by which such judgment was procured so much so that there
was no fair submission of the controversy. For instance, if through fraudulent
111
machination by one [his adversary], a litigant was induced to withdraw his
defense or was prevented from presenting an available defense or cause
of action in the case wherein the judgment was obtained, such that the
aggrieved party was deprived of his day in court through no fault of his own,
the equitable relief against such judgment may be availed of. (Yatco v.
Sumagui, 44623-R, July 31, 1971)." (cited in Philippine Law Dictionary, 1972
Ed. by Moreno; Varela v. Villanueva, et al., 95 Phil. 248)
"A judgment may be annulled on the ground of extrinsic or collateral fraud,
as distinguished from intrinsic fraud, which connotes any fraudulent scheme
executed by a prevailing litigant 'outside the trial of a case against the
defeated party, or his agents, attorneys or witnesses, whereby said
defeated party is prevented from presenting fully and fairly his side of the
case . . . The overriding consideration is that the fraudulent scheme of the
prevailing litigant prevented a party from having his day in court or from
presenting his case. The fraud, therefore, is one that affects and goes into
the jurisdiction of the court.'" (Libudan v. Gil, L-21163, May 17, 1972, 45 SCRA
17, 27-29; Sterling Investment Corp. v. Ruiz, L-30694, October 31, 1969, 30
SCRA 318, 323)
The charge of extrinsic fraud is, however, unwarranted for the following
reasons: Cdpr
1. Concordia was not unaware of the special proceeding intended to be
filed by Celedonia. She admitted in her complaint that she and Celedonia
had agreed that the latter would "initiate the necessary proceeding" and
pay the taxes and obligations of the estate. Thus paragraph 6 of her
complaint alleged:
"6. . . . for the purpose of facilitating the settlement of the estate of the late
Esteban Javellana, Jr. at the lowest possible cost and the least effort, the
plaintiff and the defendant agreed that the defendant shall initiate the
necessary proceeding, cause the payment of taxes and other obligations,
and to do everything else required by law, and thereafter, secure the
partition of the estate between her and the plaintiff," [although Celedonia
denied that they agreed to partition the estate, for their agreement was to
place the estate in a foundation.] (p. 2, Record; emphasis supplied)
Evidently, Concordia was not prevented from intervening in the
proceedings. She stayed away by choice. Besides, she knew that the estate
came exclusively from Esteban's mother, Salustia Solivio, and she had
agreed with Celedonia to place it in a foundation as the deceased had
planned to do.
2. The probate proceedings are proceedings in rem. Notice of the time and
place of hearing of the petition is required to be published (Sec. 3, Rule 76
in relation to Sec. 3, Rule 79, Rules of Court). Notice of the hearing of
Celedonia's original petition was published in the "Visayan Tribune" on April
25, May 2 and 9, 1977 (Exh. 4, p. 197, Record). Similarly, notice of the hearing
of her amended petition of May 26, 1977 for the settlement of the estate
was, by order of the court, published in "Bagong Kasanag" (New Light)
issues of May 27, June 3 and 10, 1977 (pp. 182-305, Record). The publication
of the notice of the proceedings was constructive notice to the whole
world. Concordia was not deprived of her right to intervene in the
proceedings for she had actual, as well as constructive notice of the same.
As pointed out by the probate court in its order of October 27, 1978:
". . . The move of Concordia Javellana, however, was filed about five
months after Celedonia Solivio was declared as the sole heir . . .
"Considering that this proceeding is one in rem and had been duly
published as required by law, despite which the present movant only came
to court now, then she is guilty of laches for sleeping on her alleged right."
(p. 22, Record).
The court noted that Concordia's motion did not comply with the requisites
of a petition for relief from judgment nor a motion for new trial.
The rule is stated in 49 Corpus Juris Secundum 8030 as follows:
"Where petition was sufficient to invoke statutory jurisdiction of probate
court and proceeding was in rem, no subsequent errors or irregularities are
available on collateral attack." (Bedwell v. Dean 132 So. 20)
Celedonia's allegation in her petition that she was the sole heir of Esteban
within the third degree on his mother's side was not false. Moreover, it was
made in good faith and in the honest belief that because the properties of
Esteban had come from his mother, not his father, she, as Esteban's nearest
surviving relative on his mother's side, is the rightful heir to them. It would
have been self-defeating and inconsistent with her claim of sole heirship if
she stated in her petition that Concordia was her co-heir. Her omission to so
state did not constitute extrinsic fraud.
"Failure to disclose to the adversary, or to the court, matters which would
defeat one's own claim or defense is not such extrinsic fraud as will justify or
require vacation of the judgment." (49 C.J.S. 489, citing Young v. Young, 2
SE 2d 622; First National Bank & Trust Co. of King City v. Bowman, 15 SW 2d
842; Price v. Smith, 109 SW 2d 1144, 1149).
It should be remembered that a petition for administration of a decedent's
estate may be filed by any "interested person" (Sec. 2, Rule 79, Rules of
Court). The filing of Celedonia's petition did not preclude Concordia from
filing her own.
III. On the question of reserva troncal
We find no merit in the petitioner's argument that the estate of the
deceased was subject to reserva troncal and that it pertains to her as his
only relative within the third degree on his mother's side. The reserva troncal
provision of the Civil Code is found in Article 891 which reads as follows:
"ART. 891. The ascendant who inherits from his descendant any property
which the latter may have acquired by gratuitous title from another
ascendant, or a brother or sister, is obliged to reserve such property as he
may have acquired by operation of law for the benefit of relatives who are
within the third degree and who belong to the line from which said property
came."
The persons involved in reserva troncal are:
"1. The person obliged to reserve is the reservor (reservista) the ascendant
who inherits by operation of law property from his descendants.
"2. The persons for whom the property is reserved are the reservees
(reservatorios) relatives within the third degree counted from the
descendant (propositus), and belonging to the line from which the property
came.
"3. The propositus the descendant who received by gratuitous title and
died without issue, making his other ascendant inherit by operation of law."
(p. 692, Civil Law by Padilla, Vol. II, 1956 Ed.)
Clearly, the property of the deceased, Esteban Javellana, Jr., is not
reservable property, for Esteban, Jr. was not an ascendant, but the
descendant of his mother, Salustia Solivio, from whom he inherited the
properties in question. Therefore, he did not hold his inheritance subject to
a reservation in favor of his aunt, Celedonia Solivio, who is his relative within
the third degree on his mother's side. The reserva troncal applies to
properties inherited by an ascendant from a descendant who inherited it
from another ascendant or a brother or sister. It does not apply to property
inherited by a descendant from his ascendant, the reverse of the situation
covered by Article 891.
Since the deceased, Esteban Javellana, Jr., died without descendants,
ascendants, illegitimate children, surviving spouse, brothers, sisters,
nephews or nieces, what should apply in the distribution of his estate are
Articles 1003 and 1009 of the Civil Code which provide: LLphil
"ART. 1003. If there are no descendants, ascendants, illegitimate children,
or a surviving spouse, the collateral relatives shall succeed to the entire
estate of the deceased in accordance with the following articles.
"ART. 1009. Should there be neither brothers nor sisters, nor children of
brothers or sisters, the other collateral relatives shall succeed to the estate.
"The latter shall succeed without distinction of lines or preference among
them by reason of relationship by the whole blood."
Therefore, the Court of Appeals correctly held that:
"Both plaintiff-appellee and defendant-appellant being relatives of the
decedent within the third degree in the collateral line, each, therefore, shall
succeed to the subject estate 'without distinction of line or preference
among them by reason of relationship by the whole blood,' and is entitled
to one-half (1/2) share and share alike of the estate." (p. 57, Rollo)
IV. The question of Concordia's one-half share
112
However, inasmuch as Concordia had agreed to deliver the estate of the
deceased to the foundation in honor of his mother, Salustia Solivio Vda. de
Javellana (from whom the estate came), an agreement which she ratified
and confirmed in her "Motion to Reopen and/or Reconsider Order dated
April 3, 1978" which she filed in Spl. Proceeding No. 2540:
"4. That . . . prior to the filing of the petition they (petitioner Celedonia Solivio
and movant Concordia Javellana) have agreed to make the estate of the
decedent a foundation, besides they have closely known each other due
to their filiation to the decedent and they have been visiting each other's
house which are not far away for (sic) each other." (p. 234, Record;
emphasis supplied)
she is bound by that agreement. It is true that by that agreement, she did
not waive her inheritance in favor of Celedonia, but she did agree to place
all of Esteban's estate in the "Salustia Solivio Vda. de Javellana Foundation"
which Esteban, Jr., during his lifetime, planned to set up to honor his mother
and to finance the education of indigent but deserving students as well.
Her admission may not be taken lightly as the lower court did. Being a
judicial admission, it is conclusive and no evidence need be presented to
prove the agreement (Cunanan v. Amparo, 80 Phil. 227; Granada v.
Philippine National Bank, L-20745, Sept. 2, 1966, 18 SCRA 1; Sta. Ana v.
Maliwat, L-23023, Aug. 31, 1968, 24 SCRA 1018; People v. Encipido, G.R.
70091, Dec. 29, 1986, 146 SCRA 478; and Rodillas v. Sandiganbayan, G.R.
58652, May 20, 1988, 161 SCRA 347). cdrep
The admission was never withdrawn or impugned by Concordia who,
significantly, did not even testify in the case, although she could have done
so by deposition if she were supposedly indisposed to attend the trial. Only
her husband, Narciso, and son-in-law, Juanito Domin, actively participated
in the trial. Her husband confirmed the agreement between his wife and
Celedonia, but he endeavored to dilute it by alleging that his wife did not
intend to give all, but only one-half, of her share to the foundation (p. 323,
Record)
"4. To direct or undertake surveys and studies in the community to
determine community needs and be able to alleviate partially or totally
said needs.
"5. To maintain and provide the necessary activities for the proper care of
the Solivio-Javellana mausoleum at Christ the King Memorial Park, Jaro,
Iloilo City, and the Javellana Memorial at the West Visayas State College,
as a token of appreciation for the contribution of the estate of the late
Esteban S. Javellana which has made this foundation possible. Also, in
perpetuation of his Roman Catholic beliefs and those of his mother,
Gregorian masses or their equivalents will be offered every February and
October, and Requiem masses every February 25th and October 11th, their
death anniversaries, as part of this provision.
"6. To receive gifts, legacies, donations, contributions, endowments and
financial aids or loans from whatever source, to invest and reinvest the
funds, collect the income thereof and pay or apply only the income or such
part thereof as shall be determined by the Trustees for such endeavors as
may be necessary to carry out the objectives of the Foundation.
"7. To acquire, purchase, own, hold, operate, develop, lease, mortgage,
pledge, exchange, sell, transfer, or otherwise, invest, trade, or deal, in any
manner permitted by law, in real and personal property of every kind and
description or any interest herein.
"8. To do and perform all acts and things necessary, suitable or proper for
the accomplishments of any of the purposes herein enumerated or which
shall at any time appear conducive to the protection or benefit of the
corporation, including the exercise of the powers, authorities and attributes
concerned upon the corporation organized under the laws of the
Philippines in general, and upon domestic corporation of like nature in
particular." (pp. 9-10, Rollo)
As alleged without contradiction in the petition for review:
"Further, the Foundation had constructed the Esteban S. Javellana
Multipurpose Center at the West Visayas State University for teachers' and
students' use, and has likewise contributed to religious, civic and cultural
fund-raising drives, amongst others." (p. 10, Rollo)
Having agreed to contribute her share of the decedent's estate to the
Foundation, Concordia is obligated to honor her commitment as
Celedonia has honored hers.
WHEREFORE, the petition for review is granted. The decision of the trial court
and the Court of Appeals are hereby SET ASIDE. Concordia J. Villanueva is
declared an heir of the late Esteban Javellana, Jr. entitled to one-half of his
estate. However, comformably with the agreement between her and her
co-heir, Celedonia Solivio, the entire estate of the deceased should be
conveyed to the "Salustia Solivio Vda. de Javallana Foundation," of which
both the petitioner and the private respondent shall be trustees, and each
shall be entitled to nominate an equal number of trustees to constitute the
Board of Trustees of the Foundation which shall administer the same for the
purposes set forth in its charter. The petitioner, as administratrix of the estate,
shall submit to the probate court an inventory and accounting of the estate
of the deceased preparatory to terminating the proceedings therein.
SO ORDERED.

The records show that the "Salustia Solivio Vda. de Javellana Foundation"
was established and duly registered in the Securities and Exchange
Commission under Reg. No. 0100027 for the following principal purposes:
"1. To provide for the establishment and/or setting-up of scholarships for
such deserving students as the Board of Trustees of the Foundation may
decide of at least one scholar each to study at West Visayas State College,
and the University of the Philippines in the Visayas, both located in Iloilo City.
"2. To provide a scholarship for at least one scholar for St. Clements
Redemptorist Community for a deserving student who has the religious
vocation to become a priest.
"3. To foster, develop, and encourage activities that will promote the
advancement and enrichment of the various fields of educational
endeavors, especially in literary arts. Scholarships provided for by this
foundation may be named after its benevolent benefactors as a token of
gratitude for their contributions.
"The Foundation began to function in June, 1982, and three (3) of its eight
Esteban Javellana scholars graduated in 1986, one (1) from UPV graduated
Cum Laude and two (2) from WVSU graduated with honors; one was a Cum
Laude and the other was a recipient of Lagos Lopez award for teaching for
being the most outstanding student teacher.
"The Foundation has four (4) high school scholars in Guiso Barangay High
School, the site of which was donated by the Foundation. The School has
been selected as the Pilot Barangay High School for Region VI.
"The Foundation has a special scholar, Fr. Elbert Vasquez, who would be
ordained this year. He studied at St. Francis Xavier Major Regional Seminary
at Davao City. The Foundation likewise is a member of the Redemptorist
Association that gives yearly donations to help poor students who want to
become Redemptorist priests or brothers. It gives yearly awards for Creative
writing known as the Esteban Javellana Award.
113
[G.R. No. 106720. September 15, 1994.]
SPOUSES ROBERTO AND THELMA AJERO, petitioners, vs. THE COURT OF
APPEALS AND CLEMENTE SAND, respondents.
PUNO, J p:
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. prLL
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 testatrix, (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 character of 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 (Emphasis 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:
"Article 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."
"Article 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. llcd
Thus, this appeal which is impressed with merit.
Section 9, Rule 76 of the Rules of Court provides that wills 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:
"Article 839: The will shall be disallowed in any of the following cases:
114

(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 decedents. 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. cdrep
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: cdrep
"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 omision de la salvedad no
anula el testamento, segun la regla de jurisprudencia establecida en la
sentencia de 4 de Abril de 1895.'" 8 (Emphasis 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.
"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. LexLib
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. LexLib
SO ORDERED.

It is also proper to note that the requirements of authentication of changes

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
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:
"Article 678: A will is called holographic when the testator writes it himself in
the form and with the requisites required in Article 688.
"Article 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.
115
[G.R. No. L-31048. January 20, 1976.]
LUCENA MAGALLANES, petitioner, vs. HON. UNION KAYANAN, Presiding
Judge of Branch IV, CFI, Quezon and the HEIRS OF ELIGIO MAGALLANES,
respondents.
MARTIN, J p:
The validity of a summary judgment rendered in the Court of First Instance
of Quezon, in Special Proceedings No. 3913, entitled Re: Summary
Settlement of the Estate of Filomena Magallanes, Lucena Magallanes,
petitioner, versus Heirs of Eligio Magallanes, oppositors, is the main issue in
this petition for review.
On August 4, 1960, petitioner Lucena Magallanes filed a "Solicitud" praying
that Lot No. 2657 covered by Original Certificate of Title No. 1091 and one-
half (1/2) of Lot No. 3465 covered by Original Certificate of Title No. 6447,
both of the Register of Deeds of Tayabas (Quezon) be partitioned and
distributed among the heirs of the deceased Filomena Magallanes.
On October 31, 1961, private respondents, the Heirs of Eligio Magallanes,
namely: Maria San Buenaventura, Godofredo Magallanes and Carmen
Magallanes de Ingente, filed their opposition and motion to dismiss the
"Solicitud", claiming title and ownership over the parcels of land in question
and raising the issue that the trial court is devoid of jurisdiction to resolve the
issues raised in the pleadings.
On July 12, 1968, the private respondents filed a petition for summary
judgment on the pleadings praying that their absolute right of ownership
over the properties in question be recognized and confirmed. Petitioner
filed her opposition to the petition for summary judgment on the ground
that in a summary settlement of an estate, the Court has no jurisdiction to
pass finally and definitely upon the title or ownership over the properties
involved therein; and that summary judgment is not proper, there being a
genuine issue or material controversy raised by the pleadings of the parties.
On March 21, 1969, the lower court rendered a summary judgment on the
pleadings submitted by the parties confirming the private respondents'
(Heirs of Eligio Magallanes) absolute and exclusive right of ownership and
possession over the whole of Lot No. 2657 and the one-half undivided
portion of Lot No. 3465 and ordering the Register of Deeds of Quezon
Province to cancel the Notice of Lis Pendens on Original Certificate of Title
No. 1091 covering Lot No. 2657. prcd
On April 22, 1969, the petitioner moved for reconsideration of the aforesaid
summary judgment and/or new trial but the lower court on June 19, 1969
denied the motion for reconsideration for being pro forma and declared its
decision dated March 21, 1969 to be final and executory. Accordingly, a
writ of execution was issued and served upon the petitioner on July 14, 1969.
However, even before said date, petitioner was able to perfect her appeal
on June 30, 1969, with the filing of the notice of appeal, appeal bond and
record on appeal.
In her brief, petitioner presses upon the lower court the following errors:
I deceased and his estate and not by virtue of any right of inheritance from
"THE TRIAL COURT ERRED IN PASSING UPON FINALLY AND DEFINITELY THE TITLE
TO OR OWNERSHIP OF LOT 2657 OF THE LUCENA CADASTRE, COVERED BY
ORIGINAL CERTIFICATE OF TITLE NO. 1091 OF THE REGISTER OF DEEDS OF
TAYABAS AND ONE-HALF (1/2) OF LOT NO. 3465 OF THE LUCENA CADASTRE,
COVERED BY CERTIFICATE OF TITLE NO. 6447 OF THE REGISTER OF DEEDS OF
TAYABAS, WHEN IT HAS NO JURISDICTION TO SO ACT, THE PETITIONER
HAVING CONSISTENTLY REFUSED TO SUBMIT THAT ISSUE TO THE JURISDICTION
OF THE TRIAL COURT.
II
"THE TRIAL COURT ERRED IN NOT MERELY DETERMINING IN THE DECISION
DATED MARCH 21, 1969 WHETHER OR NOT THE PROPERTIES IN QUESTION
SHOULD BE INCLUDED IN THE INVENTORY ASSUMING THE AFORESAID
DECISION RENDERED THROUGH SUMMARY JUDGMENT WAS PROPER AND
REGULAR.
III
"THE TRIAL COURT ERRED IN RENDERING THE DECISION DATED MARCH 21,
1969 THROUGH SUMMARY JUDGMENT, WITHOUT TRIAL, WHERE (THERE) ARE
GENUINE ISSUES AND MATERIAL CONTROVERSY, THE PETITIONER CLAIMING
IN HER PLEADINGS THAT SHE AND HER CO-HEIRS OWN THE REALTIES IN
QUESTION BY INHERITANCE FROM THE DECEASED FILOMENA MAGALLANES
WHILE THE RESPONDENTS CLAIM OWNERSHIP OVER THE AFORESAID REALTIES
BY PURCHASE FROM THE DECEASED FILOMENA MAGALLANES DURING HER
LIFETIME.
IV
"THE TRIAL COURT ERRED WHEN IT HELD IN ITS ORDER ON JUNE 19, 1969 THAT
THE MOTION FOR RECONSIDERATION DATED APRIL 21, 1969 IS PRO FORMA
AND DID NOT SUSPEND THE RUNNING OF THE PERIOD TO APPEAL.
V An examination of the pleadings in this case clearly shows that there is a
"THE TRIAL COURT ERRED IN HOLDING THE DECISION DATED MARCH 21, 1969
FINAL AND EXECUTORY.
VI
"THE TRIAL COURT ERRED IN ORDERING THE ISSUANCE OF A WRIT OF
EXECUTION IN THE SAME ORDER OF JUNE 19, 1969.
VII
"THE TRIAL COURT ERRED IN ISSUING THE WRIT OF EXECUTION DATED JUNE 19,
1969 WHICH IS VOID AND OF NO EFFECT."
We find merit in the petitioner's argument that the lower court has no
jurisdiction to pass finally and definitely upon the title or ownership of the
properties involved in the summary settlement of the estate of the
deceased Filomena Magallanes instituted by the petitioner. Well
established is the doctrine that the property, whether real or personal,
which are alleged to form part of the estate of a deceased person but
claimed by another to be his property by adverse title to that of the
the deceased, cannot be determined by the probate court. Such
questions must be submitted to the Court of First Instance in the exercise of
its general jurisdiction to try and determine ordinary actions. 1 The probate
court may do so only for the purpose of determining whether or not a given
property should be included in the inventory of the estate of the deceased,
but such determination is not conclusive and is still subject to a final decision
in a separate action to be instituted between the parties. 2 Likewise, the
probate court may also determine questions of title to property if the parties
voluntarily submitted to its jurisdiction and introduced evidence to prove
ownership. 3
In the case at bar, the action instituted by the petitioner was not for the
purpose of determining whether or not a given property should be included
in the inventory of the estate of the deceased. The action was for partition
and distribution of the properties left by the deceased. Neither have all of
the parties voluntarily submitted the issue of ownership for resolution by the
court. As a matter of fact the petitioner opposed the petition of private
respondents to have the issue of ownership or title decided in the
proceeding for the settlement of the estate of the deceased. It was
therefore erroneous for the lower court to resolve the question of title or,
ownership over the properties in said proceeding. It could only pass upon
such a question in the exercise of its general jurisdiction in an ordinary
action. LLphil
Petitioner faulted the lower court for rendering summary judgment on the
case. Summary judgment can be availed of where no genuine issue as to
any material fact is raised in the pleadings. 4 Where there is an issue or issues
of fact joined by the parties or where the facts pleaded by the parties are
disputed or contested, neither one of them can pray for a summary
judgment to take the place of a trial. 5 Summary judgment can be
rendered only where there are no questions of fact in issue or where the
material allegations of the pleadings are not disputed.
genuine issue or material controversy raised therein. Thus, petitioner claims
that she and her co-heirs have the right to inherit the properties in question
as they form part of the estate of Filomena Magallanes. On the other hand,
herein private respondents contend that they acquired the ownership over
the said properties by purchase from Filomena Magallanes during her
lifetime. In the face of the conflicting claims of both petitioner and
respondents a factual dispute certainly arises which can only be properly
settled by means of a trial on the merits. Summary judgment was, therefore,
uncalled for in the premises.
Petitioner also assailed the order of the lower court denying her motion for
reconsideration of the summary judgment in question as pro forma. A
motion for new trial or reconsideration on the ground that the judgment is
contrary to law, which does not point out the supposed defects in the
judgment is pro forma. Section 2, Rule 37 of the Rules of Court requires the
116
movant for the new trial to point out the findings of fact or conclusions of
law supposed to be insufficiently borne out by the evidence or contrary to
law. 6 A reading of the motion for reconsideration of the aforesaid summary
judgment shows specifically the conclusions reached by the lower court
which are contrary to law, the lack of jurisdiction on the part of the lower
court to resolve the issue of ownership and possession of properties left by
a deceased person in the settlement of his estate and the propriety of the
rendition of the summary judgment on the pleadings submitted by the
parties. Although the former pleadings of the petitioner already contained
allegations on the question of jurisdiction and the propriety of the summary
judgment, this fact does not make the motion for reconsideration pro forma
because it expressly made reference to what portion of the lower court's
conclusion are contrary to law and to established jurisprudence. In a case
7 the Supreme Court held that the motion for new trial or reconsideration
cannot be considered as simply pro forma where it not only states that the
decision is contrary to law but also explains in detail relevant facts for
seeking its revocation. Since the motion for reconsideration is not pro forma,
the filing of the same on time stopped the running of the period within which
to appeal the decision. It was therefore an error on the part of the lower
court to issue a writ of execution of the decision in question before it has
become final and executory. LLpr

Finally, private respondents claim that the trial court erred in approving
petitioner's record on appeal after it had lost jurisdiction over the case.
There is no need to resolve the assigned error. It is elementary that in a
petition for certiorari like the case before Us, the submission of a record on
appeal is not necessary.

WHEREFORE, in view of all the foregoing judgment is hereby rendered:

1. Declaring the decision of the lower court dated March 21, 1968 and the
writ of execution dated June 19, 1969 null and void; and

2. Remanding the case to the lower court as a court of general jurisdiction

to settle the title and ownership over the parcels of land in question
between Lucena Magallanes who claims to have inherited the same from
Filomena Magallanes and the heirs of Eligio Magallanes who claim to have
purchased them.

Costs against the private respondents.

SO ORDERED.

117
[G.R. No. 55509. April 27, 1984.]
ETHEL GRIMM ROBERTS, petitioner, vs. JUDGE TOMAS R. LEONIDAS, Branch
38, Court of First Instance of Manila; MAXINE TATE-GRIMM, EDWARD MILLER
GRIMM II and LINDA GRIMM, respondents.
AQUINO, J p:
The question in this case is whether a petition for allowance of wills and to
annul a partition, approved in an intestate proceeding by Branch 20 of the
Manila Court of First Instance, can be entertained by its Branch 38 (after a
probate in the Utah district court). Cdpr
Antecedents. Edward M. Grimm, an American resident of Manila, died
at 78 in the Makati Medical Center on November 27, 1977. He was survived
by his second wife, Maxine Tate Grimm, and their two children, named
Edward Miller Grimm II (Pete) and Linda Grimm, and by Juanita Grimm
Morris and Ethel Grimm Roberts (McFadden), his two children by a first
marriage which ended in divorce (Sub-Annexes A and B, pp. 36-47, Rollo).
He executed on January 23, 1959 two wills in San Francisco, California. One
will disposed of his Philippine estate which he described as conjugal
property of himself and his second wife. The second will disposed of his
estate outside the Philippines.
In both wills, the second wife and two children were favored. The two
children of the first marriage were given their legitimes in the will disposing
of the estate situated in this country. In the will dealing with his property
outside this country, the testator said:
"I purposely have made no provision in this will for my daughter, Juanita
Grimm Morris, or my daughter, Elsa Grimm McFadden (Ethel Grimm
Roberts), because I have provided for each of them in a separate will
disposing of my Philippine property." (First clause, pp. 43-47, Rollo).
The two wills and a codicil were presented for probate by Maxine Tate
Grimm and E. La Var Tate on March 7, 1978 in Probate No. 3720 of the Third
Judicial District Court of Tooele County, Utah. Juanita Grimm Morris of
Cupertino, California and Mrs. Roberts of 15 C. Benitez Street, Horseshoe
Village, Quezon City were notified of the probate proceeding (Sub-Annex
C, pp. 48-55, Rollo).
Maxine admitted that she received notice of the intestate petition filed in
Manila by Ethel in January, 1978 (p. 53, Rollo). In its order dated April 10,
1978, the Third Judicial District Court admitted to probate the two wills and
the codicil. It was issued upon consideration of the stipulation dated April
4, 1978 "by and between the attorneys for Maxine Tate Grimm, Linda
Grimm, Edward Miller Grimm II, E. La Var Tate, Juanita Kegley Grimm (first
wife), Juanita Grimm Morris and Ethel Grimm Roberts" (Annex C, pp. 48-51,
Rollo).
Two weeks later, or on April 25, 1978, Maxine and her two children Linda
and Pete, as the first parties, and Ethel, Juanita Grimm Morris and their
mother Juanita Kegley Grimm, as the second parties, with knowledge of
the intestate proceeding in Manila, entered into a compromise agreement
in Utah regarding the estate. It was signed by David E. Salisbury and Donald
B. Holbrook, as lawyers of the parties, by Pete and Linda and the attorney-
in-fact of Maxine and by the attorney-in-fact of Ethel, Juanita Grimm Morris
and Juanita Kegley Grimm. LLphil
In that agreement, it was stipulated that Maxine, Pete and Ethel would be
designated as personal representatives (administrators) of Grimm's
Philippine estate (par. 2). It was also stipulated that Maxine's one-half
conjugal share in the estate should be reserved for her and that would not
be less than $1,500,000 plus the homes in Utah and Santa Mesa, Manila (par.
4). The agreement indicated the computation of the "net distributable
estate". It recognized that the estate was liable to pay the fees of the
Angara law firm (par. 5).
It was stipulated in paragraph 6 that the decedent's four children "shall
share equally in the Net Distributable Estate" and that Ethel and Juanita
Morris should each receive at least 12-1/2% of the total of the net
distributable estate and marital share. A supplemental memorandum also
dated April 25, 1978 was executed by the parties (Sub-Annex F, pp. 49-61,
Annex, F-1, pp. 75-76, Testate case).
Intestate proceeding No. 113024. At this juncture, it should be stated that
forty-three days after Grimm's death, or January 9, 1978, his daughter of the
first marriage, Ethel, 49, through lawyers Deogracias T. Reyes and Gerardo
B. Macaraeg, filed with Branch 20 of the Manila Court of First Instance
intestate proceeding No. 113024 for the settlement of his estate. She was
named special administratrix.
On March 11, the second wife, Maxine, through the Angara law office, filed
an opposition and motion to dismiss the intestate proceeding on the
ground of the pendency of Utah of a proceeding for the probate of
Grimm's will. She also moved that she be appointed special administratrix.
She submitted to the court a copy of Grimm's will disposing of his Philippine
estate. It is found in pages 58 to 64 of the record.
The intestate court in its orders of May 23 and June 2 noted that Maxine,
through a new lawyer, William C. Limqueco (partner of Gerardo B.
Macaraeg, p. 78, testate case), withdrew that opposition and motion to
dismiss and, at the behest of Maxine, Ethel and Pete, appointed them joint
administrators. Apparently, this was done pursuant to the aforementioned
Utah compromise agreement. The court ignored the will already found in
the record.
The three administrators submitted an inventory. With the authority and
approval of the court, they sold for P75,000 on March 21, 1979 the so-called
Palawan Pearl Project, a business owned by the deceased. Linda and
Juanita allegedly conformed with the sale (pp. 120-129, Record). It turned
out that the buyer, Makiling Management Co., Inc., was incorporated by
Ethel and her husband, Rex Roberts, and by lawyer Limqueco (Annex L, p.
90, testate case). prLL
Also with the court's approval and the consent of Linda and Juanita, they
sold for P1,546,136 to Joseph Server and others 193,267 shares of RFM
Corporation (p. 135, Record).
Acting on the declaration of heirs and project of partition signed and filed
by lawyers Limqueco and Macaraeg (not signed by Maxine and her two
children), Judge Conrado M. Molina in his order of July 27, 1979
adjudicated to Maxine one-half (4/8) of the decedent's Philippine estate
and one-eighth (1/8) each to his four children or 12-1/2% (pp. 140-142,
Record). No mention at all was made of the will in that order. prcd
Six days later, or on August 2, Maxine and her two children replaced
Limqueco with Octavio del Callar as their lawyer, who on August 9, moved
to defer approval of the project of partition. The court considered the
motion moot considering that it had already approved the declaration of
heirs and project of partition (p. 149, Record).
Lawyer Limqueco in a letter to Maxine dated August 2, 1979 alleged that
he was no longer connected with Makiling Management Co., Inc. when
the Palawan Pearl Project was sold: that it was Maxine's son Pete who
negotiated the sale with Rex Roberts and that he (Limqueco) was going to
sue Maxine for the lies she imputed to him (Annex H, p. 78, testate case).
Ethel submitted to the court a certification of the Assistant Commissioner of
Internal Revenue dated October 2, 1979. It was stated therein that Maxine
paid P1,992,233.69 as estate tax and penalties and that he interposed no
objection to the transfer of the estate to Grimm's heirs (p. 153, Record). The
court noted the certification as in conformity with its order of July 27, 1979.
After November, 1979 or for a period of more than five months, there was
no movement or activity in the intestate case. On April 18, 1980 Juanita
Grimm Morris, through Ethel's lawyers, filed a motion for accounting "so that
the Estate properties can be partitioned among the heirs and the present
intestate estate be closed." Del Callar, Maxine's lawyer was notified of that
motion.
Before that motion could be heard, or on June 10, 1980, the Angara law
firm filed again its appearance in collaboration with Del Callar as counsel
for Maxine and her two children, Linda and Pete. It should be recalled that
the firm had previously appeared in the case as Maxine's counsel on March
11, 1978, when it filed a motion to dismiss the intestate proceeding and
furnished the court with a copy of Grimm's will. As already noted, the firm
was then superseded by lawyer Limqueco.
Petition to annul partition and testate proceeding No. 134559. On
September 8, 1980, Rogelio A. Vinluan of the Angara law firm, in behalf of
Maxine, Pete and Linda, filed in Branch 38 of the lower court a petition
praying for the probate of Grimm's two wills (already probated in Utah), that
the 1979 partition approved by the intestate court be set aside and the
letters of administration revoked, that Maxine be appointed executrix and
118
that Ethel and Juanita Morris be ordered to account for the properties
received by them and to return the same to Maxine (pp. 25-35, Rollo).

Grimm's second wife and two children alleged that they were defraud due
to the machinations of the Roberts spouses, that the 1978 Utah compromise
agreement was illegal, that the intestate proceeding is void because
Grimm died testate and that the partition was contrary to the decedent's
wills.

Ethel filed a motion to dismiss the petition. Judge Leonidas denied it for lack
of merit in his order of October 27, 1980. Ethel then filed a petition for
certiorari and prohibition in this Court, praying that the testate proceeding
be dismissed, or, alternatively that the two proceedings be consolidated
and heard in Branch 20 and that the matter of the annulment of the Utah
compromise agreement be heard prior to the petition for probate (pp. 22-
23, Rollo). LLphil

Ruling. We hold that respondent judge did not commit any grave abuse
of discretion, amounting to lack of jurisdiction, in denying Ethel's motion to
dismiss.

A testate proceeding is proper in this case because Grimm died with two
wills and "no will shall pass either real or personal property unless it is proved
and allowed" (Art. 838, Civil Code; sec. 1, Rule 75, Rules of Court).

The probate of the will is mandatory (Guevara vs. Guevara, 74 Phil. 479 and
98 Phil. 249; Baluyot vs. Pao, L-42088, May 7, 1976, 71 SCRA 86). It is
anomalous that the estate of a person who died testate should be settled
in an intestate proceeding. Therefore, the intestate case should be
consolidated with the testate proceeding and the judge assigned to the
testate proceeding should continue hearing the two cases.

Ethel may file within twenty days from notice of the finality of this judgment
an opposition and answer to the petition unless she considers her motion to
dismiss and other pleadings sufficient for the purpose. Juanita G. Morris, who
appeared in the intestate case, should be served with copies of orders,
notices and other papers in the testate case.

WHEREFORE, the petition is dismissed. The temporary restraining order is

dissolved. No costs.

SO ORDERED.

119
[G.R. No. L-45425. March 27, 1992.]
CELSA L. VDA. DE KILAYKO, ENCARNACION L. VDA. DE PANLILIO and
REMEDIOS L. VDA. DE GUINTO, petitioners, vs. HON. JUDGE ERNESTO TENGCO
of the Court of First Instance of Negros Occidental, Bacolod City, Branch IV
and RODOLFO LIZARES and AMELO LIZARES, as Judicial Administrators of the
Estate of the late EUSTAQUIA LIZARES, respondents.
ROMERO, J p:
These consolidated cases seek to annul the orders 1 dated September 20,
1978, January 7, 1977 and January 31, 1977 of the then Court of First
Instance of Negros Occidental, Branch IV, respectively, cancelling the
notice of lis pendens filed by Celsa L. Vda. de Kilayko, et al. with the Register
of Deeds of Negros Occidental, denying the motion for reconsideration of
the order dated September 20, 1976 filed by Celsa L. Vda. de Kilayko, et al.,
and holding in abeyance the resolution of defendants' motion to dismiss.
prLL
The undisputed facts of the case are as follows:
On November 20, 1962, the late Maria Lizares y Alunan executed a
"Testamento" 2 which contains among its provisions, the following:
DECIMA Asimismo, ordeno y dispongo que mi participacion consistente
en una tercera parte (1/3) de una catorce (1/14) avas partes proindivisas
de la Hda. Minuluan, que he adquirido mediante permuta de mi hermano
Dr. Antonio A. Lizares, se adjudique, como por el presente se adjudica, a
mi sobrina Eustaquia Lizares; ENTENDIENDOSE, sin embargo, que en el caso
de que mi citada sobrina Eustaquia Lizares muera soltera o sin
descendientes legitimos, mi referida participacion en la Hda. Minuluan se
adjudicara a mi hermano Antonio A. Lizares que me sobrevivan.
UNDECIMA Tambien ordeno y dispongo que el resto de todas mis
propiendades, incluyendo mis participaciones, derechos e intereses (no
dispuestos mas arriba) en las Haciendas "Minuluan" (Lotes Nos. 439, 403,
1273, 1274, 1278, 1279 y 1280 del Catastro de Talisay, Negros Occidental) y
"Matab-ang" (Lotes Nos. 514, 550, 552, 553 y 1287-C del Catastro de Talisay,
Negros Occidental), situadas en el Municipio de Talisay, Provincia de
Negros Occidental, I.F., el resto de mis acciones en la Central Talisay-Silay
Milling Co., Inc. (unas 2,860 acciones) y de la Financing Corporation of the
Philippines (unas 53,636 acciones), registradas a mi nombre y no heredadas
de mi difunta madre Da. Enrica A. Vda. de Lizares, mis acciones en la
Central Bacolod-Murcia Milling Co., Inc., Negros Navigation Co. y otras
Compaas Mineras, y todos los demas bienes no mencionados en este
testamento y que me pertenezcan en la fecha de mi muerte, se
adjudiquen, como por el presente adjudico, a mi sobrina Srta. Eustaquia
Lizares, hija de mi difunto hermano Don Simplicio Lizares, en
reconocimiento de los valiosos servicios y cuidados que mi citada sobrina
me ha prestado y signe prestandome hasta ahora. Ordeno, sin embargo,
a mi referida sobrina, Srta. Eustaquia Lizares, que ella se haga cargo de
pagar todas las obligaciones que tengo y que gravan sobre las
propriedades adjudicadas a la misma. Asimismo ordeno a mi citada
sobrina que ella mande celebrar una Misa Gregoriana cada ao en
sufragio de mi alma, y misas ordinarias en sufragio de las almas de mi
difunto Padre y de mi difunta Madre, el 6 de Marzo y 17 de Deciembre de
cada ao, respectivamente, y mande celebrar todos los aos la fiesta de
San Jose en Talisay como lo hago hasta ahora. En el caso de que mi citada
sobrina, Srta. Eustaquia Lizares, falleciere sin dejar descendientes legitimos,
ordeno y dispongo que mi participacion consistente en una sexta parte
(1/6) de la Hda. Matab-ang, con su correspondiente cuota de azucar y
otros mejoras, se adjudique a mis hermanas y hermano antes mencionados
y que me sobrevivan (Emphasis supplied).
On January 28, 1968, Maria Lizares y Alunan died without any issue leaving
said "testamento" in the possession and custody of her niece, Eustaquia
Lizares. 3 On February 6, 1968, Eustaquia filed a petition for the settlement
of the testate estate of Maria Lizares y Alunan, before the Court of First
Instance of Negros Occidental, Branch IV, docketed as Special
Proceedings No. 8452. 4
The required publication of the notice of hearing of the petition having
been made, in due course, the probate court issued an order declaring the
will probated and appointing Estaquia as the executrix of the estate of
Maria Lizares. 5
On July 10, 1968, Eustaquia filed a project of partition 6 which was granted
by the probate court in an order dated January 8, 1971. Simultaneously,
said court declared the heirs, devisees, legatees and usufructuaries
mentioned in the project of partition as the only heirs, devisees, legatees
and usufructuaries of the estate; adjudicated to them the properties
respectively assigned to each and every one of them, and ordered the
Register of Deeds of Negros Occidental and Bacolod City to effect the
corresponding transfer of the real properties to said heirs as well as the
transfer of shares, stocks, and dividends in different corporations,
companies and partnerships in the name of Maria Lizares to the heirs and
legatees, and the closure of the testate proceedings of Maria Lizares. 7
Thereafter, Eustaquia filed an urgent motion to reopen the testate
proceedings in order that some properties of Maria Lizares which had been
omitted in the partition be adjudicated to her. 8 The Court granted the
motion and correspondingly reopened the testate proceedings. It
adjudicated to Eustaquia certain shares of stocks, a revolving fund
certificate, plantation credits and sugar quota allocations, and real or
personal properties of Maria Lizares which were not given by her to any
other person in her last will and testament. 9
On November 28, 197Z, the heirs of Maria Lizares, namely: Encarnacion L.
Vda. de Panlilio, Remedios L. Vda. de Guinto, Felicidad Paredes Llopez,
Rosario Paredes Mendoza and Eustaquia Lizares executed an agreement
of partition and subdivision, thereby terminating their co-ownership over
Lots Nos. 550, 514, 553, 1287-C of plan SWO-7446, and 552, all of the
Cadastral Survey of Talisay covered by Transfer Certificates of Title Nos. T-
65004, T-65005; T-65006, T-65007, and T-65008. 10
A year later or on November 23, 1973, Eustaquia Lizares died single without
any descendant. 11 In due time, Rodolfo Lizares and Amelo Lizares were
appointed joint administrators of Eustaquia's intestate estate.
On the strength of the testamentary provisions contained in paragraphs 10
and 11 of the will of Maria Lizares, which were allegedly in the nature of a
simple substitution, Celsa Vda. de Kilayko, Encarnacion Vda. de Panlilio,
and Remedios Vda. de Guinto (hereinafter collectively referred to as Celsa
L. Vda. de Kilayko, et al.) filed a motion in Special Proceedings No. 8452 to
reopen once again the testate estate proceedings of Maria Lizares. They
prayed among others that a substitute administrator be appointed; that the
order dated January 8, 1971 be reconsidered and amended by declaring
them as heirs to 1/3 of 1/14 of Hda. Minuluan and to 1/6 of Hda. Matab-
ang, both of which form an aggregate area of 33 hectares; that the
Register of Deeds of Negros Occidental, after such amendment, be
ordered to register at the back of their respective certificates of title, the
order of probate and a "declaration" that movants are the heirs of said
properties, and correspondingly issue new certificates of title in their names.
12
Two (2) sets of intestate heirs of the deceased Eustaquia Lizares namely:
Socorro L. Vda. de Escario, Rodolfo Lizares, Mario Lizares, Lucrecia Gustilo,
and Aurora Lizares Wagner opposed the aforesaid motion. They alleged
that the court had no more jurisdiction to reopen the testate estate
proceedings of Maria Lizares as the order of closure had long become final
and that the testamentary provisions sought to be enforced are null and
void. 13
On April 6, 1974, the Court issued an order denying the motion to reopen
the testate proceedings and holding that inasmuch as the settlement of an
estate is a proceeding in rem, the judgment therein is binding against the
whole world. It observed that inspite of the fact that the movants knew that
the court had jurisdiction over them, they did not take part in the
proceedings nor did they appeal the order of January 8, 1871. Thus, the
court concluded, even if the said order was erroneous, and since the error
was not jurisdictional, the same could have been corrected only by a
regular appeal. The period for filing a motion for reconsideration having
expired, the court opined that the movants could have sought relief from
judgment under Rule 38 of the Rules of Court, but unfortunately for the
movants, the period for filing such remedy had also elapsed. 14
Celsa L. Vda. de Kilayko, et al. then filed a motion for reconsideration of
said order. It was denied on June 17, 1974. 15 Hence, on October 14, 1974,
the said movants filed a complaint for recovery of ownership and
possession of real property against the joint administrators of the estate of
Eustaquia Lizares, Rodolfo and Amelo Lizares. It was docketed as Civil Case
No. 11639 with the then Court of First Instance of Negros Occidental, Branch
IV. 16 On the same date, they availed of their rights under Rule 14, Section
24 of Rules of Court by filing a notice of lis pendens with the Register of
Deeds of Negros Occidental. 17
As duly appointed judicial joint administrators of the estate of the late
Eustaquia Lizares, Rodolfo Lizares and Amelo Lizares (the joint administrators
120
for brevity), filed a motion to dismiss alleging that the court had no
jurisdiction over the subject matter or nature of the case; the cause of
action was barred by prior judgment, and the complaint stated no cause
of action. 18 This motion was opposed by the plaintiffs.
On January 23, 1975, the joint administrators filed a motion for the
cancellation of the notice of lis pendens on the contentions that there
existed exceptional circumstances which justified the cancellation of the
notice of lis pendens and that no prejudice would be caused to the
plaintiffs. 19 The latter opposed said motion. The defendants having filed a
reply thereto, the plaintiffs filed a rejoinder reiterating their arguments in
their opposition to the motion for cancellation of notice of lis pendens. 20
On September 20, 1976, respondent judge issued an order granting the
motion for cancellation of notice of lis pendens. 21 The court simultaneously
held in abeyance the resolution of the motion to dismiss the complaint.
The joint administrators filed their answer to the complaint in Civil Case No.
11639. 22 Thereafter, they filed a motion for preliminary hearing on
affirmative defenses. 23 Celsa L. Vda. de Kilayko, et al. vigorously opposed
said motion. 24
On November 3, 1976, Celsa L. Vda. de Kilayko, et al. filed a motion praying
for the reconsideration of the order dated September 20, 1976. 25 The joint
administrators having filed an opposition thereto, 26 on January 7, 1977 the
lower court denied the aforesaid motion for reconsideration. 27 It held that
while a notice of lis pendens would serve as notice to strangers that a
particular property was under litigation, its annotation upon the certificates
of title to the properties involved was not necessary because such
properties, being in custodia legis, could not just be alienated without the
approval of the court. Moreover, the court added, a notice of lis pendens
would prejudice any effort of the estate to secure crop loans which were
necessary for the viable cultivation and production of sugar to which the
properties were planted.
Upon receipt of a copy of said order, Celsa L. Vda. de Kilayko, et al. filed in
this Court a motion for extension of time to file a petition for review on
certiorari. Docketed as G.R. No. L-45425, the petition contends that the
grounds of lis pendens, namely, that the properties are in custodia legis and
the lending institutions would not grant crop loans to the estate, are not the
legal grounds provided for under Sec. 24, Rule 14 of the Rules of Court for
the cancellation of a notice of lis pendens.
Meanwhile, on January 31, 1977, the lower court issued an order stating that
since on September 21, 1976 it had held in abeyance the resolution of the
motion to dismiss, it was also proper to suspend the resolution of the
affirmative defenses interposed by the defendants until after trial on the
merits of the case. Accordingly, the court set the date of pre-trial for March
24, 1977. 28
On April 13, 1977, the joint administrators filed before this Court a petition for
certiorari, prohibition and/or mandamus with prayer for a writ of preliminary
injunction. It was docketed as G.R. No. L-45965. Petitioners contend that the
lower court had no jurisdiction over Civil Case No. 11639 as it involves the
interpretation of the will of Maria Lizares, its implementation and/or the
adjudication of her properties. They assert that the matter had been settled
in Special Proceedings No. 8452 which had become final and
unappealable long before the complaint in Civil Case No. 11639 was filed,
and therefore, the cause of action in the latter case was barred by the
principle of res judicata. They aver that the claim of Celsa, Encarnacion
and Remedios, sisters of Maria Lizares, over the properties left by their niece
Eustaquia and which the latter had inherited by will from Maria Lizares, was
groundless because paragraphs 10 and 11 of Maria's will on which Celsa L.
Vda. de Kilayko, et al. base their claim, conceived of a fideicommissary
substitution of heirs. Petitioners contend that said provisions of the will are
not valid because under Article 863 of the Civil Code, they constitute an
invalid fideicommissary substitution of heirs.
On April 26, 1977, this Court issued a temporary restraining order enjoining
the lower court from further proceeding with the trial of Civil Case No.
11839. 29 After both G.R. Nos. L-45425 and L-45965 had been given due
course and submitted for decision, on January 20, 1986, the two cases were
consolidated.
The petition in G.R. No. L-45965 is impressed with merit.
In testate succession, there can be no valid partition among the heirs until
after the will has been probated. 30 The law enjoins the probate of a will
and the public requires it, because unless a 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. 31 The authentication of a will
decides no other question than such as touch upon the capacity of the
testator and the compliance with those requirements or solemnities which
the law prescribes for the validity of a will. 32
Pertinent to the issue interposed by the petitioners in G.R. No. L-45965 is
Section 1, Rule 90 of the Rules of Court which reads:
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 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."
Applying this rule, in the cases of De Jesus v. Daza, 33 and Torres vs.
Encarnacion, 34 the Court said:
". . . (T)he probate court, having the custody and control of the entire
estate, is the most logical authority to effectuate this provision, within the
estate proceeding, proceeding being the most convenient one in which
this power and function of the court can be exercised and performed
without the necessity of requiring the parties to undergo the inconvenience
and litigate an entirely different action."
Some decisions of the Court pertinent to the issue that the probate court
has the jurisdiction to settle the claims of an heir and the consequent
adjudication of the properties, are worth mentioning. In the cases of Arroyo
v. Gerona, 35 and Benedicto v. Javellana, 36 this Court said:
". . . any challenge to the validity of a will, any objection to the
authentication thereof, and every demand or claim which any heir,
legatee or party interested in a testate or intestate succession may make,
must be acted upon and decided within the same special proceedings,
not in a separate action, and the same judge having jurisdiction in the
administration of the estate shall take cognizance of the question raised,
inasmuch as when the day comes he will be called upon to make
distribution and adjudication of the property to the interested parties . . ."
(Emphasis supplied).
The probate court, in the exercise of its jurisdiction to distribute the estate,
has the power to determine the proportion or parts to which each
distributee is entitled . . . 37 A project of partition is merely a proposal for the
distribution of the hereditary estate which the court may accept or reject.
It is the court that makes that distribution of the estate and determines the
persons entitled thereto. 38
In the instant case, the records will show that in the settlement of the testate
estate of Maria Lizares, the executrix, Eustaquia Lizares submitted on
January 8, 1971, a project of partition in which the parcels of land, subject
matters of the complaint for reconveyance, were included as property of
the estate and assigned exclusively to Eustaquia as a devisee of Maria
Lizares. In accordance with said project of partition which was approved
by the probate court, Encarnacion Lizares Vda. de Panlilio, Remedios
Lizares Vda. de Guinto, Felicidad Paredes Llopez, Rosario Paredes Mendoza
and Eustaquia Lizares executed an Agreement of Partition and Subdivision
on November 28, 1972, whereby they agreed to terminate their co-
ownership over Lots Nos. 550, 514, 553, 1287-C of SWO-7446 and 552
covered by Transfer Certificates of Title Nos. T-65004, T-65005, T-65006, T-
65007 and T-65008. These facts taken altogether show that the Lizares sisters
recognized the decree of partition sanctioned by the probate court and in
fact reaped the fruits thereof. llcd
Hence, they are now precluded from attacking the validity of the partition
or any part of it in the guise of a complaint for reconveyance. A party
121
cannot, in law and in good conscience be allowed to reap the fruits of a
partition, agreement or judgment and repudiate what does not suit him. 39
Thus, where a piece of land has been included in a partition and there is
no allegation that the inclusion was effected through improper means or
without petitioner's knowledge, the partition barred any further litigation on
said title and operated to bring the property under the control and
jurisdiction of the court for its proper disposition according to the tenor of
the partition. 40 The question of private respondents' title over the lots in
question has been concluded by the partition and became a closed
matter.
The admission made by Celsa L. Vda. de Kilayko, et al. in their complaint,
Civil Case No. 11639, that Eustaquia had been in possession of the
questioned lots since March 2, 1971 up to the time of her death indicates
that the distribution pursuant to the decree of partition has already been
carried out. Moreover, it cannot be denied that when Celsa L. Vda. de Kilay
ko, et al. moved for the reopening of the testate estate proceedings of
Maria Lizares, the judicial decree of partition and order of closure of such
proceedings was already final and executory, the then reglementary
period of thirty (30) days having elapsed from the time of its issuance, with
no timely appeal having been filed by them. Therefore, they cannot now
be permitted to question the adjudication of the properties left by will of
Maria Lizares, by filing an independent action for the reconveyance of the
very same properties subject of such partition.
A final decree of distribution of the estate of a deceased person vests the
title to the land of the estate in the distributees. If the decree is erroneous, it
should be corrected by opportune appeal, for once it becomes final, its
binding effect is like any other judgment in rem, unless properly set aside for
lack of jurisdiction or fraud. Where the court has validly issued a decree of
distribution and the same has become final, the validity or invalidity of the
project of partition becomes irrelevant. 41
It is a fundamental concept in the origin of every jural system, a principle of
public policy, that at the risk of occasional errors, judgments of courts should
become final at some definite time fixed by law, interest rei publicae ut finis
sit litum. "The very object of which the courts were constituted was to put
an end to controversies." 42 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. Even then, the better practice
to secure relief is the opening of the same by proper motion within the
reglementary period, instead of an independent action, the effect of which
if successful, would be for another court or judge to throw out a decision or
order already final and executed and reshuffle properties long ago
distributed and disposed of. 43
The fundamental principle upon which the doctrine of res judicata rests is
that parties ought not to be permitted to litigate the same issue more than
once, that, when a right or fact has been judicially tried and determined
by a court of competent jurisdiction, or an opportunity for such trial has
been given, the judgment of the court, so long as it remains unreversed, court ordered the cancellation of said notice on the principal reason that
should be conclusive upon the parties and those in privity with them in law the administrators of the properties involved are subject to the supervision
or estate. 44 of the court and the said properties are under custodia legis. Therefore,
such notice was not necessary to protect the rights of Celsa L. Vda. de Kilay
All the requisites for the existence of res judicata are present. Thus, the order ko, et al. More so in this case where it turned out that their claim to the
approving the distribution of the estate of Maria Lizares to the heirs instituted properties left by Eustaquia is without any legal basis. LibLex
in said will has become final and unappealable; the probate court that
rendered judgment had jurisdiction over the subject matter and over the WHEREFORE, the petition for review on certiorari in L-45425 is hereby DENIED
parties; the judgment or orders had been rendered on the merits; the but the petition for certiorari and prohibition and/or mandamus in L-45965
special proceedings for the settlement of the estate of Maria Lizares was a is GRANTED. The temporary restraining order of April 26, 1977 which was
proceeding in rem that was directed against the whole world including issued by the Court in L-45965 is made PERMANENT. Costs against the
Celsa L. Vda. de Kilay ko, et al., so that it can be said that there is a similarity petitioners in L-45425.
of parties in Special Proceedings No. 8452 and Civil Case No. 11639, the
judicial administrators of Eustaquia being privy to Celsa L. Vda. de Kilay ko, SO ORDERED.
et al; there is identity of subject matter involved in both actions, namely, the
properties left by Maria Lizares; there is identity of causes of action because
in the first action there was a declaration of the probate court in its order
dated April 6, 1974, that although the testatrix intended a fideicommissary
substitution in paragraphs 10 and 11 of her will, the substitution can have no
effect because the requisites for it to be valid, had not been satisfied. 45
Granting that res judicata has not barred the institution of Civil Case No.
11639, the contention of Celsa L. Vda. de Kilay ko et al. that they are
conditional substitute heirs of Eustaquia in the testate estate of Maria Lizares
46 is not meritorious. While the allegation of the joint administrators that
paragraphs 10 and 11 of Maria Lizares' last will and testament conceives of
a fideicommissary substitution under Article 863 of the Civil Code is also
baseless as said paragraphs do not impose upon Eustaquia a clear
obligation to preserve the estate in favor of Celsa L. Vda. de Kilay ko, et al.,
neither may said paragraphs be considered as providing for a vulgar or
simple substitution. cdll
It should be remembered that when a testator merely names an heir and
provides that if such heir should die a second heir also designated shall
succeed, there is no fideicommissary substitution. The substitution should
then be construed as a vulgar or simple substitution under Art. 859 of the
Civil Code but it shall be effective only if the first heir dies before the testator.
47 In this case, the instituted heir, Eustaquia, survived the testatrix, Maria
Lizares. Hence, there can be no substitution of heirs for, upon Maria Lizares
death, the properties involved unconditionally devolved upon Eustaquia.
Under the circumstances, the sisters of Maria Lizares could only inherit the
estate of Eustaquia by operation of the law of intestacy.
With respect to the cancellation of the notice of lis pendens on the
properties involved, there is no merit in the contention of Celsa L. Vda. de
Kilay ko, et al., that the lower court acted contrary to law and/or gravely
abused its discretion in cancelling the notice of lis pendens. The
cancellation of such a precautionary notice, being a mere incident in an
action, may be ordered by the court having jurisdiction over it at any given
time. 48 Under Sec. 24, Rule 14 of the Rules of Court, a notice of lis pendens
may be cancelled "after proper showing that the notice is for the purpose
of molesting the adverse party, or that it is not necessary to protect the
rights of the party who caused it to be recorded." 49 In this case, the lower
122
[G.R. No. L-4602. August 31, 1951.]
JOSEFA PEAFLORIDA VDA. DE ARANCILLO and VICENTE ARANCILLO,
movants-appellants, vs. REHABILITATION FINANCE CORPORATION,
oppositor-appellee.
DECISION
FERIA, J p:
The facts in this case as stated in appellants' brief and accepted as correct
by the appellee are the following:
"On February 19, 1947, Carmen Ubalde executed a deed of donation inter
vivos in favor of Asencion Arancillo, predecessor-in-interest of Josefa
Peaflorida Vda. de Arancillo and Vicente Arancillo (herein movants-
appellants ), involving a certain parcel of land, identified as Lot No. 7669 of
the Cadastral Survey of Pototan, Iloilo, and covered by Original Certificate
of Title No. 41448 of the land records of the province of Iloilo. Dr. Asencion
Arancillo, the donee, died on June 18, 1948, in the city of Manila and was
succeeded in all his property rights by herein movants-appellants. Lot No.
7679 was mortgaged to the Agricultural and Industrial Bank, predecessor-
in- interest of appellee, prior to the execution of the aforementioned
donation. On July 29, 1948, Carmen Ubalde, the registered owner,
liquidated her mortgage indebtedness to the Agricultural and Industrial
Bank and executed a new mortgage in favor of the Agricultural and
Industrial Bank, now Rehabilitation Finance Corporation, the owner's copy
of Torrens Title No. 41448 covering Lot No. 7679 has been in the possession
of the mortgagee. On October 13, 1948, movants-appellants requested the
oppositor-appellee to lend them the owner's copy of Torrens Title No. 41448
covering Lot No. 7679 in order that they could register the aforementioned
deed of donation without prejudice to the rights of the Rehabilitation
Finance Corporation as mortgagee of the property in question. The
oppositor- appellee refused; and, hence, on November 19, 1948,
appellants filed a motion in court, praying that the said Rehabilitation
Finance Corporation be compelled to deliver the owner's duplicate copy
of the Torrens title aforementioned to the Register of Deeds of Iloilo in order
that the deed of donation could be registered (Record Appeal, pp. 1-5).
Said motion, which was opposed by appellee (Record Appeal, pp. 6-7) was
denied by the Court of First Instance of Iloilo in its order dated November
29, 1948 (Record Appeal, pp. 8-9). Movants- appellants filed a motion for
reconsideration which was denied by the lower court in its order dated
December 20, 1948 (Record Appeal, pp. 22-27.)"
The appellants in their first and second assignments of errors, submit the
following arguments:
"(a) In the light of the decision of the Supreme Court in the case of Bank of
the Philippine Islands vs. Ty Camco Sobrino et al., the refusal of the
Rehabilitation Finance Corporation to surrender the owner's copy of the
Torrens title to the Register of Deeds or its opposition to the registration of
the deed of donation in question is equivalent to questioning the validity of
said donation which can only be done in an ordinary action.
"(b) The validity of the prohibition contained in the mortgage contract in
the case at bar to the effect that the mortgagor shall not sell, dispose of, or
encumber the mortgaged property without the consent of the mortgagee
is not in issue.
"(c) The prohibition mentioned in the preceding paragraph must be
interpreted and construed in relation to the other stipulation of the same
contract which states that in case the property mortgaged is sold or
conveyed in spite of the prohibition, the vendee shell assume the mortgage
together with the vendor.
"(d) In view of the principles on interpretation of contracts laid down in
Articles 1284 and 1285 of the Civil Code and sec. 59 of Rules 123 of the Rules
of Court, the aforementioned stipulation qualifying the prohibition must be
made applicable to the instant case." (Appellants Brief, pp. 12, 13.)
The mortgage contract executed by the appellants' predecessor in interest
in favor of the defunct Agricultural and Industrial Bank and now the
appellee, contains the following proviso:
"The Mortgagor shall not sell, dispose of nor in any manner encumber the
mortgaged property, without the written consent of the Mortgagee. If in
spite of this stipulation the property is sold, the Vendee shall assume the
mortgage in the terms and conditions under which it is constituted, it being
understood that the assumption by the Vendee shall not release the
Vendor of his obligation to the Agricultural & Industrial Bank; on the
contrary, both Vendor and Vendee shall be jointly and severally liable for
said mortgage obligation." (Record on Appeal, pp. 22-23.)
The question involved in the present case is not the validity of the donation,
but whether or not the appellee may be compelled against its will to give
its consent to the registration of said donation, in view of the above quoted
stipulation. The appellee does not and can not question the validity of the
transfer by donation to the appellants or their predecessor in interest of the
property mortgaged, because said property, being registered in
accordance with the Torrens Systems or Act No. 496, can not be considered
as transfered until and unless said transfer has been registered.
In the case of Philippine Industrial Co. vs. El Hogar Filipino and Vallejo, (45
Phil. 336, 339, 341), this Court held that the prohibition in a mortgage
contract against the encumbrance sale or disposal of the property
mortgaged without the consent of the mortgagee is valid, because it is not
contrary to law, morals, or public interest (sec. 1255 of the Civil Code). Such
prohibition being valid, it follows that the appellee can not be compelled
by the courts to give its consent to the registration of the deed of donation
of the property mortgaged by delivering for that purpose the transfer
certificate of title in its possession. Otherwise the mortgagor may
circumvent the prohibition by compelling the mortgagee to do what the
latter has the right not to do, or give its consent against its will to the sale or
disposal or encumbrance of the mortgaged property.
The decision in the case of Bank of the Philippine Islands vs. Ty Camco, et
al. (57 Phil., 803) is not applicable to the present case. In said case the
second mortgage had already been registered in the office of the Register
of Deeds when the motion to cancel such registration was filed. And this
Court held that the Court of First Instance of Pangasinan was correct in
holding that the cancellation of the registration of said second mortgage
involves the question of validity thereof; and the said court had no
jurisdiction to pass upon that question. However, in deciding said question
upon the request of the parties, this Court held that the second mortgage
in said case was valid because the mortgage contract, read in its entirety,
does not give the mortgagee the right to treat the second mortgage as null
and void, but only to immediately foreclose the mortgage as a penalty for
such violation. This Court did not pass upon the validity of an agreement
made expressly in a contract, giving the mortgagee the right to treat such
second mortgage or disposal without the mortgagee's consent as null and
void, as a penalty for such violation. While, in the present case the donation
has not been yet registered, and therefore the question of validity of the
transfer by donation of the property mortgaged to the appellants is not and
can not be the question in issue.
The decision in the case of Ty Camco has not reversed or modified the ruling
laid down in the case of Philippine Industrial Co. vs. El Hogar Filipino (45 Phil.,
336), which held valid the prohibition to sell, dispose of, or in any manner
encumber the mortgaged property such as the one contained in the
above quoted paragraph of the mortgage contract under consideration.
Although the owner's certificate of title has been delivered by the
mortgagor to the mortgagee and is in the possession of the latter, it is still
possible that the mortgagor may sell, dispose of or in any manner
encumbrance the mortgaged property, and register the sale, transfer or
encumbrance in the owner's certificate of title, without the written consent
of the mortgagee; for as the attorney for the appellee says, the certificate
of title may be borrowed by the mortgagor from the mortgagee for a
purpose other than the registration of a document of transfer or second
encumbrance, or it may be accidentally lost and found by another person,
or it may be stolen and delivered to the mortgagor, in which cases the
transfer or second mortgage may have the opportunity of effecting the
registration of a subsequent instrument of transfer or second encumbrance,
without the consent of the mortgagee.
As to the appellants' third assignment of error, the lower court was right in
holding that "It is neither for this Court nor for the movants to inquire into the
reasons why the mortgagee does not welcome any change in the position
of the mortgage debtor. It is enough that the agreement prohibiting the
disposition of the mortgaged property by the mortgagor without the
consent of the mortgagee is valid and binding." Besides, as the appellee's
attorney says in connection with this particular case: "On this point, we wish
to state that in the matter of granting loans the Rehabilitation Finance
Corporation does not consider the sufficiency of securities alone. As a
government institution, it is guided by certain policies designed to
accomplish a governmental program. It is in pursuance of those policies
that it has seen fit to include certain conditions in the mortgage contract
which if violated might hamper such program."
In view of the foregoing, the order appealed from is affirmed with costs
against the appellants.
123
[G.R. No. 110427. February 24, 1997.]
The Incompetent, CARMEN CAIZA, 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 p:
On November 20, 1989, being then ninety-four (94) years of age, Carmen
Caiza, 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 judgment 1 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.
Caiza 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 Caiza as
plaintiff, suing through her legal guardian, Amparo Evangelista.
The amended Complaint 5 pertinently alleged that plaintiff Caiza 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 Caiza 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, Caiza 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 first letter of
demand dated February 3, 1990."
In their Answer with Counterclaim, the defendants declared that they had
been living in Caiza's house since the 1960's; that in consideration of their
faithful service they had been considered by Caiza 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 Caiza's favor,
6 the Estradas being ordered to vacate the premises and pay Caiza
P5,000.00 by way of attorney's fees.
But on appeal, 7 the decision was reversed by the Quezon City Regional
Trial Court, Branch 96. 8 By judgment rendered on October 21, 1992, 9 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."
cdphil
Caiza sought to have the Court of Appeals reverse the decision of
October 21, 1992, but failed in that attempt. In a decision 10 promulgated
on June 2, 1993, the Appellate Court 11 affirmed the RTC's judgment in toto
. It ruled that (a) the proper remedy for Caiza 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 Caiza," 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
Caiza that defendants are to remain and are to continue in their
occupancy and possession, so much so that Caiza's supervening
incompetency can not be said to have vested in her guardian the right or
authority to drive the defendants out." 12
Through her guardian, Caiza 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." 13
In the responsive pleading filed by them on this Court's requirement, 14 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 Caiza, which "occupancy can even ripen into full ownership
once the holographic will of petitioner Carmen Caiza is admitted to
probate." They conclude, on those postulates, that it is beyond the power
of Caiza's legal guardian to oust them from the disputed premises.
Carmen Caiza died on March 19, 1994, 15 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. 16
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 Caiza'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 Caiza 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. 17 An inquiry into the averments of the
amended complaint in the Court of origin is thus in order. 18
The amended Complaint alleges:19
"6. That the plaintiff, Carmen Caiza, 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 Caiza, 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;
124
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 20 is quoted below:
"WHEREFORE, in the interest of justice and the rule of law, plaintiff, Carmen
Caiza, 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. 61 Scout Tobias, Quezon City, so that its possession can be restored to
the plaintiff, Carmen Caiza: 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 Caiza's house by tolerance having
been "allowed to live temporarily . . . (therein) for free, out of . . . (Caiza's)
kindness;"
2) that Caiza 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, Caiza 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 Caiza, 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, 21 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. 22
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 . . .
(Caiza'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 (Caiza) of the possession
of . . . (her property) by force, intimidation, threat, strategy, or stealth."
The argument is arrant sophistry. Caiza'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 act of liberality be
implicitly, but no less certainly, accompanied by the necessary burden on
the Estradas of returning the house to Caiza 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. 23 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. 24 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. 25 Thus, in Asset Privatization Trust vs. Court of Appeals,
26 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, 27 the 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. 28 Now, the complaint filed by Caiza'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 Caiza 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 Caiza 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 Caiza 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; 29 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.).
30 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 Caiza.
Her Letters of Guardianship 31 dated December 19, 1989 clearly installed
her as the "guardian over the person and properties of the incompetent
CARMEN CAIZA 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 .
. ." 32 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. 33 It also became her right and duty to get possession of, and
exercise control over, Caiza's property, both real and personal, it being
recognized principle that the ward has no right to possession or control of
125
his property during her incompetency. 34 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, 35 and bring and defend such actions as may be
needful for this purpose. 36
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' 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." 37
interest of the deceased. The court charges involved in procuring such
appointment, if defrayed by the opposing party, may be recovered as
costs. The heirs of the deceased may be allowed to be substituted for the
deceased, without requiring the appointment of an executor or
administrator and the court may appoint guardian ad litem for the minor
heirs.
To be sure, an ejectment case survives the death of a party. Caiza's
demise did not extinguish the desahucio suit instituted by her through her
guardian. 41 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. cda
SO ORDERED.

III
As already stated, Carmen Caiza passed away during the pendency of
this appeal. The Estradas thereupon moved to dismiss the petition, arguing
that Caiza's death automatically terminated the guardianship, Amparo
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, 38 the rule affords no advantage to the Estradas. Amparo
Evangelista, as niece of Carmen Caiza, is one of the latter's only two (2)
surviving heirs, the other being Caiza's nephew, Ramon C. Nevado. On
their motion and by Resolution of this Court 39 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.: 40

"SEC. 17. 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
126
[G.R. No. L-39247. June 27, 1975.]
In the Matter of the Petition to Approve the Will of Leodegaria Julian. FELIX
BALANAY, JR., petitioner, vs. HON. ANTONIO M. MARTINEZ, Judge of the
Court of First Instance of Davao Branch VI; AVELINA B. ANTONIO and DELIA
B. LANABAN, respondents.
AQUINO, J p:
Felix Balanay, Jr. appealed by certiorari from the order of the Court of First
Instance of Davao dated February 28, '974, declaring illegal and void the
will of his mother, Leodegaria Julian, converting the testate proceeding into
an intestate proceeding and ordering the issuance of the corresponding
notice to creditors (Special Case No. '808). The antecedents of the appeal
are as follows:
Leodegaria Julian, a native of Sta. Maria, Ilocos Sur, died on February '2,
'973 in Davao City at the age of sixty-seven. She was survived by her
husband, Felix Balanay, Sr., and by their six legitimate children named Felix
Balanay, Jr., Avelina B. Antonio, Beatriz B. Solamo, Carolina B. Manguiob,
Delia B. Lanaban and Emilia B. Pabaonon.
Felix J. Balanay, Jr. filed in the lower court a petition dated February 27, '973
for the probate of his mother's notarial will dated September 5, '970 which
is written in English. In that will Leodegaria Julian declared (a) that she was
the owner of the "southern half" of nine conjugal lots (par. II); (b) that she
was the absolute owner of two parcels of land which she inherited from her
father (par. III), and (c) that it was her desire that her properties should not
be divided among her heirs during her husband's lifetime and that their
legitimes should be satisfied out of the fruits of her properties (Par. IV).
Then, in paragraph V of the will she stated that after her husband's death
(he was eighty-two years old in '973) her paraphernal lands and all the
conjugal lands (which she described as "my properties") should be divided
and distributed in the manner set forth in that part of her will. She devised
and partitioned the conjugal lands as if they were all owned by her. She
disposed of in the will her husband's one-half share of the conjugal assets. *
Felix Balanay, Sr. and Avelina B. Antonio opposed the probate of the will on
the grounds of lack of testamentary capacity, undue influence, preterition
of the husband and alleged improper partition of the conjugal estate. The
oppositors claimed that Felix Balanay, Jr. should collate certain properties
which he had received from the testatrix.
Felix Balanay, Jr., in his reply to the opposition, attached thereto an affidavit
of Felix Balanay, Sr. dated April '8, '973 wherein he withdrew his opposition
to the probate of the will and affirmed that he was interested in its probate.
On the same date Felix Balanay, Sr. signed an instrument captioned
"Conformation (sic) of Division and Renunciation of Hereditary Rights"
wherein he manifested that out of respect for his wife's will he "waived and
renounced" his hereditary rights in her estate in favor of their six children. In
that same instrument he confirmed the agreement, which he and his wife
had perfected before her death, that their conjugal properties would be
partitioned in the manner indicated in her will.
Avelina B. Antonio, an oppositor, in her rejoinder contended that the
affidavit and "conformation" of Felix Balanay, Sr. were void. The lower court
in its order of June '8, '973 "denied" the opposition and reset for hearing the
probate of the will. It gave effect to the affidavit and conformity of Felix
Balanay, Sr. In an order dated August 28, '973 it appointed its branch clerk
of court as special administrator of the decedent's estate.
Mrs. Antonio moved for the reconsideration of the lower court's order of
June '8, '973 on the grounds (a) that the testatrix illegally claimed that she
was the owner of the southern half of the conjugal lots and (b) that she
could not partition the conjugal estate by allocating portions of the nine
lots to her children. Felix Balanay, Jr., through his counsel, Hermenegildo
Cabreros, opposed that motion. The lower court denied it in its order of
October '5, '973.
In the meanwhile, another lawyer appeared in the case. David O.
Montaa, Sr., claiming to be the lawyer of petitioner Felix Balanay, Jr. (his
counsel of record was Atty. Cabreros), filed a motion dated September 25,
'973 for "leave of court to withdraw probate of alleged will of Leodegaria
Julian and requesting authority to proceed by intestate estate
proceeding." In that motion Montaa claimed to be the lawyer not only of
the petitioner but also of Felix Balanay, Sr., Beatriz B. Solamo, Carolina B.
Manguiob and Emilia B. Pabaonon.
Montaa in his motion assailed the provision of the will which partitioned
the conjugal assets or allegedly effected a compromise of future legitimes.
He prayed that the probate of the will be withdrawn and that the
proceeding be converted into an intestate proceeding. In another motion
of the same date he asked that the corresponding notice to creditors be
issued.
Avelina B. Antonio and Delia B. Lanaban, through Atty. Jose B. Guyo, in their
comments dated October '5, '973 manifested their conformity with the
motion for the issuance of a notice to creditors. They prayed that the will be
declared void for being contrary to law and that an intestacy be declared.
The lower court, acting on the motions of Atty. Montaa, assumed that the
issuance of a notice to creditors was in order since the parties had agreed
on that point. It adopted the view of Attys. Montaa and Guyo that the will
was void. So, in its order of February 28, '974 it dismissed the petition for the
probate, converted the testate proceeding into an intestate proceeding,
ordered the issuance of a notice to creditors and set the intestate
proceeding for hearing on April ' and 2, '974. The lower court did not
abrogate its prior orders of June '8 and October '5, '973. The notice to
creditors was issued on April ', '974 and published on May 2, 9 and '6 in the
Davao Star in spite of petitioner's motion of April '7, '974 that its publication
be held in abeyance.
Felix Balanay, Jr., through a new counsel, Roberto M. Sarenas, in a verified
motion dated April '5, '974, asked for the reconsideration of the lower court's
order of February 28, '974 on the ground that Atty. Montaa had no
authority to withdraw the petition for the allowance of the will. Attached to
the motion was a copy of a letter dated March 27, '974 addressed to Atty.
Montaa and signed by Felix Balanay, Jr., Beatriz V. Solamo, Carolina B.
Manguiob and Emilia B. Pabaonon, wherein they terminated Montana's
services and informed him that his withdrawal of the petition for the probate
of the will was without their consent and was contrary to their repeated
reminder to him that their mother's will was "very sacred' to them.
Avelina B. Antonio and Delia B. Lanaban opposed the motion for
reconsideration. The lower court denied the motion in its order of June 29,
'974. It clarified that it declared the will void on the basis of its own
independent assessment of its provisions and not because of Atty.
Montaa's arguments.
The basic issue is whether the probate court erred in passing upon the
intrinsic validity of the will, before ruling on its allowance or formal validity,
and in declaring it void.
We are of the opinion that in view of certain unusual provisions of the will,
which are of dubious legality, and because of the motion to withdraw the
petition for probate (which the lower court assumed to have been filed with
the petitioner's authorization), the trial court acted correctly in passing upon
the will's intrinsic validity even before its formal validity had been
established. The probate of a will might become an idle ceremony if on its
face it appears to be intrinsically void. 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 (Nuguid vs. Nuguid, 64 O.G.
'527, '7 SCRA 449. Compare with Sumilang vs. Ramagosa, L-23'35,
December 26, '967, 2' SCRA '369; Cacho vs. Udan, L-'9996, April 30, '965, '3
SCRA 693).
But the probate court erred in declaring in its order of February 28, '974 that
the will was void and in converting the testate proceeding into an intestate
proceeding notwithstanding the fact that in its order of June '8, '973 it gave
effect to the surviving husband's conformity to the will and to his
renunciation of his hereditary rights which presumably included his one-half
share of the conjugal estate.
The rule is that "the invalidity of one of several dispositions contained in a
will does not result in the invalidity of the other dispositions, unless it is to be
presumed that the testator would not have made such other dispositions if
the first invalid disposition had not been made" (Art. 792, Civil Code).
"Where some of the provisions of a will are valid and others invalid, the valid
parts will be upheld if they can be separated from the invalid without
defeating the intention of the testator or interfering with the general
testamentary scheme, or doing injustice to the beneficiaries" (95 C.J.S. 873).
The statement of the testatrix that she owned the "southern half" of the
conjugal lands is contrary to law because, although she was a coowner
thereof, her share was inchoate and proindiviso (Art. '43, Civil Code;
127
Madrigal and Paterno vs. Rafferty and Concepcion, 38 Phil. 4'4). But that
illegal declaration does not nullify the entire will. It may be disregarded.
The provision of the will that the properties of the testatrix should not be
divided among her heirs during her husband's lifetime but should be kept
intact and that the legitimes should be paid in cash is contrary to article
'080 of the Civil Code which reads:
"ART. '080. 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.
"A parent who, in the interest of his or her family, desires to keep any
agricultural, industrial, or manufacturing enterprise intact, may avail himself
of the right granted him in this article, by ordering that the legitime of the
other children to whom the property is not assigned, be paid in cash.
('056a)"
The testatrix in her will made a partition of the entire conjugal estate among
her six children (her husband had renounced his hereditary rights and his
one-half conjugal share). She did not assign the whole estate to one or
more children as envisaged in article '080. Hence, she had no right to
require that the legitimes be paid in cash. On the other hand, her estate
may remain undivided only for a period of twenty years. So, the provision
that the estate should not be divided during her husband's lifetime would
at most be effective only for twenty years from the date of her death unless
there are compelling reasons for terminating the coownership (Art. '083,
Civil Code).
Felix Balanay, Sr. could validly renounce his hereditary rights and his one-
half share of the conjugal partnership (Arts. '79['] and '04', Civil Code) but
insofar as said renunciation partakes of a donation of his hereditary rights
and his one-half share in the conjugal estate (Art. '050['] Civil Code), it
should be subject to the limitations prescribed in articles 750 and 752 of the
Civil Code. A portion of the estate should be adjudicated to the widower
for his support and maintenance. Or at least his legitime should be
respected.
Subject to the foregoing observations and the rules on collation, the will is
intrinsically valid and the partition therein may be given effect if it does not
prejudice the creditors and impair the legitimes. The distribution and
partition would become effective upon the death of Felix Balanay, Sr. In the
meantime, the net income should be equitably divided among the children
and the surviving spouse.
It should be stressed that by reason of the surviving husband's conformity to
his wife's will and his renunciation of his hereditary rights, his one-half
conjugal share be a part of his deceased wife's estate. His conformity had
the effect of validating the partition made in paragraph V of the will without
prejudice, of course, to the rights of the creditors and the legitimes of the
compulsory heirs.
Article 793 of the Civil Code provides that "property acquired after the
making of a will shall only pass thereby, as if the testator had possessed it at
the time of making the will, should it expressly appear by the will that such
was his intention". Under article 930 of the Civil Code "the legacy or devise
of a thing belonging to another person is void, if the testator erroneously
believed that the thing pertained to him. But if the thing bequeathed,
though not belonging to the testator when he made the will, afterwards
becomes his, by whatever title, the disposition shall take effect."
In the instant case there is no doubt that the testatrix and her husband
intended to partition the conjugal estate in the manner set forth in
paragraph V of her will. It is true that she could dispose of by will only her
half of the conjugal estate (Art. '70, Civil Code) but since the husband, after
the dissolution of the conjugal partnership, had assented to her
testamentary partition of the conjugal estate, such partition has become
valid, assuming that the will may be probated.
The instant case is different from the Nuguid case, supra, where the testatrix
instituted as heir her sister and preterited her parents. Her will was intrinsically
void because it preterited her compulsory heirs in the direct line. Article 854
of the Civil Code 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." Since the preterition of the parents annulled the
institution of the sister of the testatrix and there were no legacies and
devises, total intestacy resulted (Art. 960[2], Civil Code).
In the instant case, the preterited heir was the surviving spouse. His
preterition did not produce intestacy. Moreover, he signified his conformity
to his wife's will and renounced his hereditary rights.
It results that the lower court erred in not proceeding with the probate of
the will as contemplated in its uncancelled order of June '8, '97'3. Save in
an extreme case where the will on its face is intrinsically void, it is the
probate court's duty to pass first upon the formal validity of the will.
Generally, the probate of the will is mandatory (Art. 838, Civil Code;
Guevara vs. Guevara, 74 Phil. 479 and 98 Phil. 249; Fernandez vs. Dimagiba,
L-23638, October '2, '967, 2' SCRA 428).
As aptly stated by Mr. Justice Barredo, "the very existence of a purported
testament is in itself prima facie proof that the supposed testator has willed
that his estate should be distributed in the manner therein provided, and it
is incumbent upon the state that, if legally tenable, such desire be given
effect independent of the attitude of the parties affected thereby"
(Resolution, Vda. de Precilla vs. Narciso, L-27200, August '8, '972, 46 SCRA
538, 565).
To give effect to the intention and wishes of the testatrix is the first and
principal law in the matter of testaments (Dizon-Rivera vs. Dizon, L-2456',
June 30, '970, 33 SCRA 554, 56'). Testacy is preferable to intestacy. An
interpretation that will render a testamentary disposition operative takes
precedence over a construction that will nullify a provision of the will (Arts.
788 and 79', Civil Code).
Testacy is favored. Doubts are resolved in favor of testacy especially where
the will evinces an intention on the part of the testator to dispose of
practically his whole estate. So compelling is the principle that intestacy
should be avoided and that the wishes of the testator should prevail that
sometimes the language of the will can be varied for the purpose of giving
it effect (Austria vs. Reyes, L-23079, February 27, '970, 3' SCRA 754, 762).
As far as is legally possible, the expressed desire of the testator must be
followed and the dispositions of the properties in his will should be upheld
(Estorque vs. Estorque, L-'9573, June 30, '970, 33 SCRA 540, 546).
The law has a tender regard for the wishes of the testator as expressed in
his will because any disposition therein is better than that which the law can
make (Castro vs. Bustos, L-259'3, February 28, '969, 27 SCRA 327, 34').
Two other errors of the lower court may be noticed. It erred in issuing a
notice to creditors although no executor or regular administrator has been
appointed. The record reveals that it appointed a special administrator. A
notice to creditors is not in order if only a special administrator has been
appointed. Section ', Rule 86 of the Rules of Court, in providing that
"immediately after granting letters of testamentary or of administration, the
court shall issue a notice requiring all persons having money claims against
the decedent to file them in the office of the clerk of said court" clearly
contemplates the appointment of an executor or regular administrator and
not that of a special administrator.
It is the executor or regular administrator who is supposed to oppose the
claims against the estate and to pay such claims when duly allowed (Sec.
'0, Rule 86 and sec. ', Rule 88, Rules of Court).
We also take this occasion to point out that the probate court's
appointment of its branch clerk of court as special administrator (p. 30,
Rollo) is not a salutary practice because it might engender the suspicion
that the probate Judge and his clerk of court are in cahoots in milking the
decedent's estate. Should the branch clerk of court commit any abuse or
devastavit in the course of his administration, the probate Judge might find
it difficult to hold him to a strict accountability. A court employee should
devote his official time to his official duties and should not have as a sideline
the administration of a decedent's estate.
WHEREFORE, the lower court's orders of February 28, and June 29, '974 are
set aside and its order of June '8, '973, setting for hearing the petition for
probate, is affirmed. The lower court is directed to conduct further
proceedings in Special Case No. '808 in consonance with this opinion.
Costs, against the private respondents.
SO ORDERED.
128
[G.R. No. L-32213. November 26, 1973.]
AGAPITA N. CRUZ, petitioner, vs. HON. JUDGE GUILLERMO P. VILLASOR,
Presiding Judge of Branch I, Court of First Instance of Cebu, and MANUEL B.
LUGAY, respondents.
ESGUERRA, J p:
Petition to review on certiorari the judgment of the Court of First Instance of
Cebu allowing the probate of the last will and testament of the late Valente
Z. Cruz. Petitioner-appellant Agapita N. Cruz, the surviving spouse of the
said deceased, opposed the allowance of the will (Exhibit "E"), alleging that
the will was executed through fraud, deceit, misrepresentation and undue
influence; that the said instrument was executed without the testator
having been fully informed of the contents thereof, particularly as to what
properties he was disposing; and that the supposed last will and testament
was not executed in accordance with law. Notwithstanding her objection,
the Court allowed the probate of the said last will and testament. Hence
this appeal by certiorari which was given due course.
The only question presented for determination, on which the decision of the
case hinges, is whether the supposed last will and testament of Valente Z.
Cruz (Exhibit "E") was executed in accordance with law, particularly Articles
805 and 806 of the new Civil Code, the first requiring at least three credible
witnesses to attest and subscribe to the will, and the second requiring the
testator and the witnesses to acknowledge the will before a notary public.
Of the three instrumental witnesses thereto, namely, Deogracias T.
Jamaoas, Jr., Dr. Francisco Paares, and Atty. Angel H. Teves, Jr., one of
them, the last named, is at the same time the Notary Public before whom
the will was supposed to have been acknowledged. Reduced to simpler
terms, the question was attested and subscribed by at least three credible
witnesses in the presence of the testator and of each other, considering
that the three attesting witnesses must appear before the notary public to
acknowledge the same. As the third witness is the notary public himself,
petitioner argues that the result is that only two witnesses appeared before
the notary public to acknowledge the will. On the other hand, private
respondent-appellee, Manuel B. Lugay, who is the supposed executor of
the will, following the reasoning of the trial court, maintains that there is
substantial compliance with the legal requirement of having at least three
attesting witnesses even if the notary public acted as one of them,
bolstering up his stand with 57 American Jurisprudence, p. 227 which,
insofar as pertinent, reads as follows:
"It is said that there are practical reasons for upholding a will as against the
purely technical reason that one of the witnesses required by law signed as
certifying to an acknowledgment of the testator's signature under oath
rather than as attesting the execution of the instrument."
After weighing the merits of the conflicting claims of the parties, We are
inclined to sustain that of the appellant that the last will and testament in
question was not executed in accordance with law. The notary public
before whom the will was acknowledged cannot be considered as the appeared before the notary public for that purpose. In the circumstances,
third instrumental witness since he cannot acknowledge before himself his the law would not be duly observed.
having signed the will. To acknowledge before means to avow (Javellana
v. Ledesma, 97 Phil. 258, 262; Castro v Castro, 100 Phil. 239, 247); to own as FOR ALL THE FOREGOING, the judgment appealed from is hereby reversed
genuine, to assent, to admit; and "before" means in front or preceding in and the probate of the last will and testament of Valente Z. Cruz (Exhibit "E")
space or ahead of. (The New Webster Encyclopedic Dictionary of the is declared not valid and hereby set aside.
English Language, p. 72; Funk & Wagnalls New Standard Dictionary of the
English Language, p. 252; Webster's New International Dictionary 2d. p. Cost against the appellee.
245.) Consequently, if the third witness were the notary public himself, he
would have to avow, assent, or admit his having signed the will in front of
himself. This cannot be done because he cannot split his personality into
two so that one will appear before the other to acknowledge his
participation in the making of the will. To permit such a situation to obtain
would be sanctioning a sheer absurdity.
Furthermore, the function of a notary public is, among others, to guard
against any illegal or immoral arrangements. Balinon v. De Leon, 50 O. G.
583.) That function would be defeated if the notary public were one of the
attesting or instrumental witnesses. For them he would be interested in
sustaining the validity of the will as it directly involves himself and the validity
of his own act. It would place him in an inconsistent position and the very
purpose of the acknowledgment, which is to minimize fraud (Report of the
Code Commission p. 106-107), would be thwarted.
Admittedly, there are American precedents holding that a notary public
may, in addition, act as a witness to the execution of the document he has
notarized. (Mahilum v. Court of Appeals, 64 O. G. 4017; 17 SCRA 482; Sawyer
v. Cox, 43 Ill. 130) There are others holding that his signing merely as a notary
in a will nonetheless makes him a witness thereunder (Ferguson v. Ferguson,
47 S. E. 2d. 346; In Re Douglas' Will, 83 N. Y. S. 2d. 641; Ragsdal v. Hill, 269 S.
W. 2d. 911, Tyson v. Utterback, 122 So. 496; In Re Baybee's Estate 160 N. W.
900; Merill v. Boal, 132 A. 721; See also Trenwith v. Smallwood, 15 So. 1030).
But these authorities do not serve the purpose of the law in this jurisdiction
or are not decisive of the issue herein, because the notaries public and
witnesses referred to in the aforecited cases merely acted as instrumental,
subscribing or attesting witnesses, and not as acknowledging witnesses.
Here the notary public acted not only as attesting witness but also as
acknowledging witness, a situation not envisaged by Article 805 of the Civil
Code which reads:
"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."
[Emphasis supplied]
To allow the notary public to act as third witness, or one of the attesting and
acknowledging witnesses, would have the effect of having only two
attesting witnesses to the will which would be in contravention of the
provisions of Article 805 requiring at least three credible witnesses to act as
such and of Article 806 which requires that the testator and the required
number of witnesses must appear before the notary public to acknowledge
the will. The result would be, as has been said, that only two witnesses
129
[G.R. No. 144915. February 23, 2004.]
CAROLINA CAMAYA, FERDINAND CAMAYA, EDGARDO CAMAYA and
ANSELMO MANGULABNAN, petitioners, vs. BERNARDO PATULANDONG,
respondent.
CARPIO MORALES, J p:
Before this Court is a petition for review on certiorari under Rule 45 of the
1997 Revised Rules of Court seeking the reversal of the Court of Appeals
Decision dated June 19, 2000 in CA-G.R. CV No. 53757, "In re: Petition for
the Probate of the Codicil (Will) of Rufina Reyes; Bernardo Patulandong v.
Anselmo Mangulabnan v. Carolina G. Camaya, Ferdinand Camaya and
Edgardo Camaya."
On November 17, 1972, Rufina Reyes (testatrix) executed a notarized will
wherein she devised, among others, Lot No. 288-A to her grandson Anselmo
Mangulabnan (Mangulabnan). The pertinent portion of her will reads:
IKALIMA. Aking inihahayag at ginagawa na tagapagmana, sa aking
kusang loob, ang pinalaki kong APO na si ANSELMO P. MANGULABNAN,
may sapat na gulang, kasal kay Flora Umagap, at naninirahan sa San
Lorenzo, Gapan, Nueva Ecija, at anak ng aking anak na si SIMPLICIA, at sa
aking APO na si ANSELMO ay aking ipinagkakaloob at ipinamamana, sa
aking pagkamatay, ang mga sumusunod kong pagaari:
LOT NO. TITLE NO. KINALALAGYAN NABANGGIT SA
288-A NT-47089 Sta. Cruz (1) p. 2
3348-A 100629 Poblacion (2) p. 2
3349-B 100630 Poblacion (3) p. 2
xxx xxx xxx 1 (Underscoring in the original; italics supplied)
The testatrix's son Bernardo Patulandong (Patulandong), respondent
herein, was in the will appointed as the executor.
During her lifetime, the testatrix herself filed a petition for the probate of her
will before the then Court of First Instance (CFI) of Nueva Ecija where it was
docketed as Sp. Pro. No. 128.
By Order 2 of January 11, 1973, the CFI admitted the will to probate.
On June 27, 1973, the testatrix executed a codicil modifying above-quoted
paragraph five of her will in this wise:
UNA. Ang Lote No. 288-A na nakalagay sa barrio ng Sta. Cruz, Gapan,
Nueva Ecija, magsukat 36,384 metro cuadrados, at nagtataglay ng TCT No.
NT-47089, na aking ipinamana sa aking apong si ANSELMO P.
MANGULABNAN, sangayon sa Pangkat IKA-LIMA, pp. 56, ng aking HULING
HABILIN (Testamento), ay ipinasiya kong ipagkaloob at ipamana sa aking
mga anak na sina BERNARDO, SIMPLICIA, GUILLERMA at JUAN
nagaapellidong PATULANDONG, at sa aking apong si ANSELMO P.
MANGULABNAN, sa magkakaparehong bahagi na tig-ikalimang bahagi
bawat isa sa kanila. ADaSET
IKALAWA. Na maliban sa pagbabagong ito, ang lahat ng mga tadhana
ng aking HULING HABILIN ay aking pinagtitibay na muli.
xxx xxx xxx 3 (Underscoring in the original; italics supplied)
On May 14, 1988, the testatrix died.
Mangulabnan later sought the delivery to him by executor Patulandong of
the title to Lot 288-A. Patulandong refused to heed the request, however,
in view of the codicil which modified the testator's will.
Mangulabnan thus filed an "action for partition" against Patulandong with
the Regional Trial Court of Gapan, Nueva Ecija, docketed as Civil Case No.
552 (the partition case).
On June 8, 1989, the trial court rendered a decision in the partition case, 4
the dispositive portion of which reads:
WHEREFORE, the court orders the partitioning of the properties and the
defendant to deliver the copy of the Transfer Certificate of Title No. NT-
47089.
However, in view of the case cited by the plaintiff himself, the court holds
that the partition is without prejudice [to]. . . the probate of the codicilin
accordance with the Rules of Court, [P]alacios vs. Catimbang Palacios
cited by the plaintiff:
"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 of his petition
and if he should die before he had a chance to present such petition, the
ordinary probate proceedings after the testator's death would be in order."
The Court also orders that the right of the tenants of the agricultural land in
question should be protected meaning to say that the tenants should not
be ejected. (Emphasis and underscoring supplied)
On July 17, 1989 Patulandong filed before the Regional Trial Court of Nueva
Ecija a petition 5 for probate of the codicil of the testatrix, docketed as Sp.
Proc. No. 218.
On December 28, 1989, the probate court issued an Order 6 setting the
petition for hearing and ordering the publication of said order.
On February 7, 1991, by virtue of the decision in the partition case,
Mangulabnan caused the cancellation of the title of the testatrix over Lot
No. 288-A and TCT No. NT-215750 7 was issued in his name.
Mangulabnan later sold to herein petitioners Camayas Lot No. 288-A by a
Deed of Sale dated February 19, 1991. 8 TCT No. NT-215750 was thus
cancelled and TCT No. NT-216446 9 was issued in the name of the Camayas.
On January 16, 1996, the trial rendered a decision 10 in Sp. Proc. No. 218
admitting the codicil to probate and disposing as follows:
WHEREFORE, in view of all the foregoing, judgment is hereby rendered in
the following manner:
1. Declaring Transfer Certificate of Title No. NT-215750 issued by the Register
of Deeds of Nueva Ecija in the name of Anselmo Mangulabnan dated
February 7, 1991 and the Deed of Absolute Sale executed by him in favor
of the intervenors Carolina, Ferdinand and Edgardo, all surnamed Camaya
on February 19, 1991 and Transfer Certificate of Title No. NT-216446 under
date March 18, 1991 issued in the names of the above-named intervenors
as NULL and VOID and of no force and effect; and,
2. Ordering the Register of Deeds of Nueva Ecija to cancel Transfer
Certificate of Title Nos. NT-215750 and NT-216446 and reissue the
corresponding Certificate of Titles to Bernardo R. Patulandong, Filipino,
married to Gorgonia Mariano residing at San Vicente, Gapan, Nueva Ecija,
Juan R. Patulandong, Filipino, widower and residing at San Lorenzo, Gapan,
Nueva Ecija; Guillerma R. Patulandong Linsangan of legal age, Filipino,
widow and residing at San Vicente, Gapan, Nueva Ecija, Simplicia R.
Patulandong Mangulabnan, of legal age, widow, and residing at San
Lorenzo, Gapan, Nueva Ecija and her grandson, Anselmo Mangulabnan
with full personal circumstances stated herein to the extent of one fifth (1/5)
each pursuant to the approved codicil (will) of Rufina Reyes dated June 27,
1973. 11
The Camayas who had been allowed to intervene in Sp. Proc. No. 218, and
Mangulabnan, filed a Motion for Reconsideration of the above-said
decision but it was denied by Order 12 of February 28, 1996. DCaSHI
On appeal to the Court of Appeals, the Camayas and Mangulabnan
(hereinafter referred to as petitioners) raised the following errors:
1. THERE WERE SERIOUS SUBSTANTIAL DEPARTURES FROM THE FORMALITIES
REQUIRED BY THE RULES, THE LAW, AND THE AUTHORITY OF THE REGIONAL
TRIAL COURT SITTING AS A PROBATE COURT.
2. THE OPPOSITOR DID NOT ONLY ACQUIRE LOT NO. 288-A BY WILL BUT HE
ALSO ACQUIRED THE SAME BY PARTITION IN A CIVIL CASE WHERE THE
DECISION HAS ALREADY REACHED ITS FINALITY AND THEREFORE CAN NO
LONGER BE NEGATED BY A QUESTIONABLE CODICIL.
3. THAT THE SUBJECT LOT 288-A IS NO LONGER WITHIN THE REACHED (sic) OF
THE PETITIONER CONSIDERING THAT THE OPPOSITOR VENDOR HAD A CLEAN
TITLE AND THAT THE INTERVENORS-VENDEES HAD ACQUIRED THE SAME BY
WAY OF SALE AS INNOCENT PURCHASER IN GOOD FAITH AND FOR VALUE.
13
130
By Decision 14 of June 19, 2000, the Court of Appeals affirmed that of the
trial court.
Hence, the present petition for Review on Certiorari proffering the following
issues:
1. Whether the probate court exceeded its jurisdiction when it declared null
and void and ordered the cancellation of the TCTs of petitioners and the
deed of sale; and
2. Whether the final judgment in Civil Case No. 552 bars the allowance of
the codicil.
As to the first issue, petitioners contend that under the law, the probate
court has no power, authority, and jurisdiction to declare null and void the
sale and titles of petitioners; 15 and that the probate court can only resolve
the following issues:
1. Whether or not the instrument which is offered for probate is the last will
and testament of the decedent; in other words, the question is one of
identity[;]
2. Whether or not the will has been executed in accordance with the
formalities prescribed by law; in other words, the question is one of due
execution[; and]
3. Whether the testator had testamentary capacity at the time of the
execution of the will; in other words, the question is one of capacity. 16
In Cuizon v. Ramolete, 17 this Court elucidated on the limited jurisdiction of
a probate court, to wit:
It is well-settled rule that a probate court or one in charge of proceedings
whether testate or intestate cannot adjudicate or determine title to
properties claimed to be a part of the estate and which are equally
claimed to belong to outside parties. All that said court could do as regards
said properties is to determine whether they should or should not be
included in the inventory or list of properties to be administered by the
administrator. If there is no dispute, well and good; but if there is, then the
parties, the administrator, and the opposing parties have to resort to an
ordinary action for a final determination of the conflicting claims of title
because the probate court cannot do so.
xxx xxx xxx
Having been apprised of the fact that the property in question was in the
possession of third parties and more important, covered by a transfer
certificate of title issued in the name of such third parties, the respondent
court should have denied the motion of the respondent administrator and
excluded the property in question from the inventory of the property of the
estate. It had no authority to deprive such third persons of their possession
and ownership of the property. . . . (Emphasis and Underscoring supplied)
Following Cuizon, the probate court exceeded its jurisdiction when it further SO ORDERED.
declared the deed of sale and the titles of petitioners null and void, it
having had the effect of depriving them possession and ownership of the
property.
Moreover, following Section 48 of the Property Registry Decree which reads:
aSIDCT
SECTION 48. Certificate not subject to collateral attack. A certificate of
title shall not be subject to collateral attack. It cannot be altered, modified,
or cancelled except in a direct proceeding in accordance with law,
petitioners' titles cannot, under probate proceedings, be declared null and
void.
As to the second issue, petitioners argue that by allowing the codicil to
probate, it in effect amended the final judgment in the partition case which
is not allowed by law; 18 and that petitioner Camayas are innocent
purchasers for value and enjoy the legal presumption that the transfer was
lawful. 19
Petitioners' first argument does not persuade.
Though the judgment in the partition case had become final and executory
as it was not appealed, it specifically provided in its dispositive portion that
the decision was "without prejudice [to] . . . the probate of the codicil." The
rights of the prevailing parties in said case were thus subject to the outcome
of the probate of the codicil.
The probate court being bereft of authority to rule upon the validity of
petitioners' titles, there is no longer any necessity to dwell on the merits of
petitioners Camayas' claim that they are innocent purchasers for value and
enjoy the legal presumption that the transfer was lawful.
WHEREFORE, the petition is GRANTED IN PART.
The Decision of the Court of Appeals dated June 19, 2000 in CA-G.R. CV
No. 53757 affirming the January 16, 1996 Decision of Regional Trial Court,
Branch 35, of Gapan, Nueva Ecija, is hereby AFFIRMED with MODIFICATION.
The decision allowing the codicil is AFFIRMED, but the 1) declaration as null
and void of Transfer Certificate of Title No. NT-215750 issued on February 7,
1991 by the Register of Deeds of Nueva Ecija in the name of Anselmo
Mangulabnan, the February 19, 1991 Deed of Absolute Sale executed by
him in favor of the intervenors herein petitioners Carolina, Ferdinand and
Edgardo Camaya, and Transfer Certificate of Title No. NT-216446 issued on
March 18, 1991 in favor of the petitioners Camayas, and 2) the order for the
Register of Deeds of Nueva Ecija to cancel Transfer Certificate of Title Nos.
NT-215750 and NT-216446 and reissue the corresponding Certificate of Titles
to Bernardo R. Patulandong, Juan R. Patulandong, Guillerma R.
Patulandong Linsangan, Simplicia R. Patulandong Mangulabnan, and
Anselmo Mangulabnan to the extent of one-fifth (1/5) each pursuant to the
approved codicil are SET ASIDE, without prejudice to respondent and his
co-heirs' ventilation of their right in an appropriate action.
131
[G.R. No. 133000. October 2, 2001.]
PATRICIA NATCHER, petitioner, vs. HON. COURT OF APPEALS AND THE HEIRS
OF GRACIANO DEL ROSARIO LETICIA DEL ROSARIO, EMILIA DEL ROSARIO-
MANANGAN, ROSALINDA FUENTES LLANA, RODOLFO FUENTES, ALBERTO
FUENTES, EVELYN DEL ROSARIO, and EDUARDO DEL ROSARIO, respondents.
BUENA, J p:
May a Regional Trial Court, acting as a court of general jurisdiction in an
action for reconveyance and annulment of title with damages, adjudicate
matters relating to the settlement of the estate of a deceased person
particularly in questions as to advancement of property made by the
decedent to any of the heirs?
Sought to be reversed in this petition for review on certiorari under Rule 45
is the decision 1 of public respondent Court of Appeals, the decretal portion
of which declares:
"Wherefore in view of the foregoing considerations, judgment appealed
from is reversed and set aside and another one entered annulling the Deed
of Sale executed by Graciano Del Rosario in favor of defendant-appellee
Patricia Natcher, and ordering the Register of Deeds to Cancel TCT No.
186059 and reinstate TCT No. 107443 without prejudice to the filing of a
special proceeding for the settlement of the estate of Graciano Del Rosario
in a proper court. No costs.
"So ordered."
Spouses Graciano del Rosario and Graciana Esguerra were registered
owners of a parcel of land with an area of 9,322 square meters located in
Manila and covered by Transfer Certificate of Title No. 11889. Upon the
death of Graciana in 1951, Graciano, together with his six children, namely:
Bayani, Ricardo, Rafael, Leticia, Emiliana and Nieves, entered into an
extrajudicial settlement of Graciana's estate on 09 February 1954
adjudicating and dividing among themselves the real property subject of
TCT No. 11889. Under the agreement, Graciano received 8/14 share while
each of the six children received 1/14 share of the said property.
Accordingly, TCT No. 11889 was cancelled, and in lieu thereof, TCT No.
35980 was issued in the name of Graciano and the six children.
Further, on 09 February 1954, said heirs executed and forged an
"Agreement of Consolidation-Subdivision of Real Property with Waiver of
Rights" where they subdivided among themselves the parcel of land
covered by TCT No. 35980 into several lots. Graciano then donated to his
children, share and share alike, a portion of his interest in the land
amounting to 4,849.38 square meters leaving only 447.60 square meters
registered under Graciano's name, as covered by TCT No. 35988.
Subsequently, the land subject of TCT No. 35988 was further subdivided into
two separate lots where the first lot with a land area of 80.90 square meters
was registered under TCT No. 107442 and the second lot with a land area
of 396.70 square meters was registered under TCT No. 107443. Eventually,
Graciano sold the first lot 2 to a third person but retained ownership over
the second lot. 3 AHSaTI
On 20 March 1980, Graciano married herein petitioner Patricia Natcher.
During their marriage, Graciano sold the land covered by TCT No. 107443
to his wife Patricia as a result of which TCT No. 186059 4 was issued in the
latter's name. On 07 October 1985, Graciano died leaving his second wife
Patricia and his six children by his first marriage, as heirs.
In a complaint 5 filed in Civil Case No. 71075 before the Regional Trial Court
of Manila, Branch 55, herein private respondents alleged that upon
Graciano's death, petitioner Natcher, through the employment of fraud,
misrepresentation and forgery, acquired TCT No. 107443, by making it
appear that Graciano executed a Deed of Sale dated 25 June 1987 6 in
favor of herein petitioner resulting in the cancellation of TCT No. 107443 and
the issuance of TCT No. 186059 in the name of Patricia Natcher. Similarly,
herein private respondents alleged in said complaint that as a
consequence of such fraudulent sale, their legitimes have been impaired.
In her answer 7 dated 19 August 1994, herein petitioner Natcher averred
that she was legally married to Graciano on 20 March 1980 and thus, under
the law, she was likewise considered a compulsory heir of the latter.
Petitioner further alleged that during Graciano's lifetime, Graciano already
distributed, in advance, properties to his children, hence, herein private
respondents may not anymore claim against Graciano's estate or against
herein petitioner's property.
After trial, the Regional Trial Court of Manila, Branch 55, rendered a decision
dated 26 January 1996 holding: 8
"1) The deed of sale executed by the late Graciano del Rosario in favor of
Patricia Natcher is prohibited by law and thus a complete nullity. There
being no evidence that a separation of property was agreed upon in the
marriage settlements or that there has been decreed a judicial separation
of property between them, the spouses are prohibited from entering (into)
a contract of sale;
"2) The deed of sale cannot be likewise regarded as a valid donation as it
was equally prohibited by law under Article 133 of the New Civil Code;
"3) Although the deed of sale cannot be regarded as such or as a donation,
it may however be regarded as an extension of advance inheritance of
Patricia Natcher being a compulsory heir of the deceased."
On appeal, the Court of Appeals reversed and set aside the lower court's
decision ratiocinating, inter alia:
"It is the probate court that has exclusive jurisdiction to make a just and legal
distribution of the estate. The court a quo, trying an ordinary action for
reconveyance/annulment of title, went beyond its jurisdiction when it
performed the acts proper only in a special proceeding for the settlement
of estate of a deceased person. . . .
". . . Thus the court a quo erred in regarding the subject property as an
advance inheritance. What the court should have done was merely to rule
on the validity of (the) sale and leave the issue on advancement to be
resolved in a separate proceeding instituted for that purpose. . . ."
Aggrieved, herein petitioner seeks refuge under our protective mantle
through the expediency of Rule 45 of the Rules of Court and assails the
appellate court's decision "for being contrary to law and the facts of the
case."
We concur with the Court of Appeals and find no merit in the instant
petition.
Section 3, Rule 1 of the 1997 Rules of Civil Procedure defines civil action and
special proceedings, in this wise:
" . . . a) A civil action is one by which a party sues another for the
enforcement or protection of a right, or the prevention or redress of a
wrong.
"A civil action may either be ordinary or special. Both are governed by the
rules for ordinary civil actions, subject to specific rules prescribed for a
special civil action.
"xxx xxx xxx
"c) A special proceeding is a remedy by which a party seeks to establish a
status, a right or a particular fact." IHcSCA
As could be gleaned from the foregoing, there lies a marked distinction
between an action and a special proceeding. An action is a formal
demand of one's right in a court of justice in the manner prescribed by the
court or by the law. It is the method of applying legal remedies according
to definite established rules. The term "special proceeding" may be defined
as an application or proceeding to establish the status or right of a party,
or a particular fact. Usually, in special proceedings, no formal pleadings are
required unless the statute expressly so provides. In special proceedings, the
remedy is granted generally upon an application or motion." 9 HcSETI
Citing American Jurisprudence, a noted authority in Remedial Law
expounds further:
"It may accordingly be stated generally that actions include those
proceedings which are instituted and prosecuted according to the
ordinary rules and provisions relating to actions at law or suits in equity, and
that special proceedings include those proceedings which are not ordinary
in this sense, but is instituted and prosecuted according to some special
mode as in the case of proceedings commenced without summons and
prosecuted without regular pleadings, which are characteristics of ordinary
actions. . . . A special proceeding must therefore be in the nature of a
132
distinct and independent proceeding for particular relief, such as may be
instituted independently of a pending action, by petition or motion upon
notice." 10
Applying these principles, an action for reconveyance and annulment of
title with damages is a civil action, whereas matters relating to settlement
of the estate of a deceased person such as advancement of property
made by the decedent, partake of the nature of a special proceeding,
which concomitantly requires the application of specific rules as provided
for in the Rules of Court.
Clearly, matters which involve settlement and distribution of the estate of
the decedent fall within the exclusive province of the probate court in the
exercise of its limited jurisdiction.
Thus, under Section 2, Rule 90 of the Rules of Court, questions as to
advancement made or alleged to have been made by the deceased to
any heir may be heard and determined by the court having jurisdiction of
the estate proceedings; and the final order of the court thereon shall be
binding on the person raising the questions and on the heir.
While it may be true that the Rules used the word "may", it is nevertheless
clear that the same provision 11 contemplates a probate court when it
speaks of the "court having jurisdiction of the estate proceedings".
Corollarily, the Regional Trial Court in the instant case, acting in its general
jurisdiction, is devoid of authority to render an adjudication and resolve the
issue of advancement of the real property in favor of herein petitioner
Natcher, inasmuch as Civil Case No. 71075 for reconveyance and
annulment of title with damages is not, to our mind, the proper vehicle to
thresh out said question. Moreover, under the present circumstances, the
RTC of Manila, Branch 55 was not properly constituted as a probate court
so as to validly pass upon the question of advancement made by the
decedent Graciano Del Rosario to his wife, herein petitioner Natcher.
HESCcA
At this point, the appellate court's disquisition is elucidating:
"Before a court can make a partition and distribution of the estate of a
deceased, it must first settle the estate in a special proceeding instituted for
the purpose. In the case at hand, the court a quo determined the
respective legitimes of the plaintiffs-appellants and assigned the subject
property owned by the estate of the deceased to defendant-appellee
without observing the proper proceedings provided (for) by the Rules of
Court. From the aforecited discussions, it is clear that trial courts trying an
ordinary action cannot resolve to perform acts pertaining to a special
proceeding because it is subject to specific prescribed rules. Thus, the court
a quo erred in regarding the subject property as an advance inheritance."
12
In resolving the case at bench, this Court is not unaware of our
pronouncement in Coca vs. Borromeo 13 and Mendoza vs. Teh 14 that
whether a particular matter should be resolved by the Regional Trial Court
(then Court of First Instance) in the exercise of its general jurisdiction or its
limited probate jurisdiction is not a jurisdictional issue but a mere question
of procedure. In essence, it is a procedural question involving a mode of
practice "which may be waived." 15
Notwithstanding, we do not see any waiver on the part of herein private
respondents inasmuch as the six children of the decedent even assailed
the authority of the trial court, acting in its general jurisdiction, to rule on this
specific issue of advancement made by the decedent to petitioner.
Analogously, in a train of decisions, this Court has consistently enunciated
the long standing principle that although generally, a probate court may
not decide a question of title or ownership, yet if the interested parties are
all heirs, or the question is one of collation or advancement, or the parties
consent to the assumption of jurisdiction by the probate court and the rights
of third parties are not impaired, then the probate court is competent to
decide the question of ownership. 16 ITDSAE
Similarly in Mendoza vs. Teh, we had occasion to hold:
"In the present suit, no settlement of estate is involved, but merely an
allegation seeking appointment as estate administratrix which does not
necessarily involve settlement of estate that would have invited the
exercise of the limited jurisdiction of a probate court. 17 (emphasis supplied)
Of equal importance is that before any conclusion about the legal share
due to a compulsory heir may be reached, it is necessary that certain steps
be taken first. 18 The net estate of the decedent must be ascertained, by
deducting all payable obligations and charges from the value of the
property owned by the deceased at the time of his death; then, all
donations subject to collation would be added to it. With the partible estate
thus determined, the legitime of the compulsory heir or heirs can be
established; and only thereafter can it be ascertained whether or not a
donation had prejudiced the legitimes. 19
A perusal of the records, specifically the antecedents and proceedings in
the present case, reveals that the trial court failed to observe established
rules of procedure governing the settlement of the estate of Graciano Del
Rosario. This Court sees no cogent reason to sanction the non-observance
of these well-entrenched rules and hereby holds that under the prevailing
circumstances, a probate court, in the exercise of its limited jurisdiction, is
indeed the best forum to ventilate and adjudge the issue of advancement
as well as other related matters involving the settlement of Graciano Del
Rosario's estate. HaTSDA
WHEREFORE, premises considered, the assailed decision of the Court of
Appeals is hereby AFFIRMED and the instant petition is DISMISSED for lack of
merit.
SO ORDERED.
133
[G.R. No. 168156. December 6, 2006.]
HEIRS OF ROSENDO LASAM, Represented by Rogelio Lasam and Atty.
Edward P. Llonillo, petitioners, vs. VICENTA UMENGAN,respondent.
CALLEJO, SR., J p:
Before the Court is the petition for review on certiorari filed by the Heirs of
Rosendo Lasam, represented by Rogelio M. Lasam and Atty. Edward P.
Llonillo, seeking the reversal of the Decision 1 dated February 16, 2005 of
the Court of Appeals (CA) in CA-G.R. SP No. 80032. The assailed decision
reversed and set aside the decision of the Regional Trial Court (RTC) of
Tuguegarao City, Cagayan and dismissed, for lack of merit, the complaint
for unlawful detainer file by the said heirs against respondent Vicenta
Umengan.
The RTC decision affirmed that of the Municipal Trial Court in Cities (MTCC)
of the same city, Branch III, which had rendered judgment in favor of the
heirs of Rosendo Lasam and directed the ejectment of respondent Vicenta
Umengan from the lot subject of litigation.
The present petition likewise seeks the reversal of the CA Resolution dated
May 17, 2005 denying the motion for reconsideration filed by the heirs of
Rosendo Lasam.
As culled from the records, the backdrop of the present case is as follows
Sale dated March 3, 1975, appearing as Doc. No. 88, Page No. 36, Book
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. cSATEH
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
It is further ordered the defendant shall pay the Heirs of Rosendo Lasam the
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:
. . . 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 . . . 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. IDScTE
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
Umengan's 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.
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
attorney's 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 RTC's and the MTCC's holding that
the purported Testamento Abierto of Isabel Cuntapay prevails over Vicenta
Umengan's 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
134
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 court's 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. DCTHaS
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 respondent's 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
respondent's 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 latter's possession of the subject lot was by
mere tolerance of Rosendo Lasam who inherited the same from Isabel
Cuntapay.
According to petitioners, respondent's predecessors-in-interest from whom
she derived her claim over the subject lot by donation and sale could not
have conveyed portions thereof to her, 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. Their respective estates have not been settled
up to now. HTAIcD
It is also the contention of petitioners that the CA should have dismissed
outright respondent's petition filed therewith for failure to comply with the
technical requirements of the Rules of Court. Specifically, the petition was
not allegedly properly verified, lacked statement of material dates and
written explanation on why personal service was not made.
This last contention of petitioners deserves scant consideration. The
technical requirements for filing an appeal 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 in choosing to overlook the technical
defects of respondent's appeal. After all, technicality should not be
allowed to stand in the way of equitably and completely resolving the rights
and obligations of the parties. 9
The Court shall now resolve the substantive issues raised by petitioners.
It is well settled that in ejectment suits, the only issue for resolution is the
physical or material possession of the property involved, independent of
any claim of ownership by any of the party litigants. However, the issue of
ownership may be provisionally ruled upon for the sole purpose of
determining who is entitled to possession de facto. 10
In the present case, petitioners base their claim of right to possession on the
theory that their father, Rosendo Lasam, 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, respondent's 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:
135
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 testator's death shall
govern. ICHcTD
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 testator's 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 Cuntapay's
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 respondent's 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 respondent's 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 xxx 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. aSDCIE
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 parties, subject matter and causes of action. 16
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 Cuntapay's will, the respondents filed the present complaint for
unlawful detainer. Viewed from this perspective, we have no doubt that
the court's 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 decedent's 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 respect
to the part or portion which might be adjudicated to him, a community of
ownership being thus formed among the co-owners of the estate which
remains undivided.'" 18
Contrary to the assertion of petitioners, therefore, the conveyances made
by the children of Isabel Cuntapay by her first marriage to respondent are
136
valid insofar as their pro indiviso shares are concerned. Moreover, the CA
justifiably held that these conveyances, as evidenced by the deed of
donation and deed of sale presented by respondent, coupled 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 based on Isabel Cuntapay's last will and testament
which, to date, has not been probated; hence, has no force and effect
and under which no right can be claimed by petitioners. Significantly, the
probative value of the other 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. SHTEaA

In conclusion, it is well to stress the CA's admonition that

. . . our ruling on the issue of physical possession does not affect title to the
property 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 directly contesting the ownership of or the title to the
property. 19

Likewise, it is therefore in this context that the CA's finding on the validity of
Isabel Cuntapay's last will and testament must be considered. Such is
merely a provisional ruling thereon for the sole purpose of determining who
is entitled to possession de facto.

WHEREFORE, premises considered, the petition is DENIED. The assailed

Decision dated February 16, 2005 and the Resolution dated May 17, 2005
of the Court of Appeals in CA-G.R. SP No. 80032 are AFFIRMED.

SO ORDERED.

137
[G.R. No. 156407. January 15, 2014.]
THELMA M. ARANAS, petitioner, vs. TERESITA V. MERCADO, FELIMON V.
MERCADO, CARMENCITA M. SUTHERLAND, RICHARD V. MERCADO, MA.
TERESITA M. ANDERSON, and FRANKLIN L. MERCADO, respondents.
BERSAMIN, J p:
The probate court is authorized to determine the issue of ownership of
properties for purposes of their inclusion or exclusion from the inventory to
be submitted by the administrator, but its determination shall only be
provisional unless the interested parties are all heirs of the decedent, or the
question is one of collation or advancement, or the parties consent to the
assumption of jurisdiction by the probate court and the rights of third parties
are not impaired. Its jurisdiction extends to matters incidental or collateral
to the settlement and distribution of the estate, such as the determination
of the status of each heir and whether property included in the inventory is
the conjugal or exclusive property of the deceased spouse. HSDCTA
Antecedents
Emigdio S. Mercado (Emigdio) died intestate on January 12, 1991, survived
by his second wife, Teresita V. Mercado (Teresita), and their five children,
namely: Allan V. Mercado, Felimon V. Mercado, Carmencita M. Sutherland,
Richard V. Mercado, and Maria Teresita M. Anderson; and his two children
by his first marriage, namely: respondent Franklin L. Mercado and petitioner
Thelma M. Aranas (Thelma).
Emigdio inherited and acquired real properties during his lifetime. He
owned corporate shares in Mervir Realty Corporation (Mervir Realty) and
Cebu Emerson Transportation Corporation (Cebu Emerson). He assigned his
real properties in exchange for corporate stocks of Mervir Realty, and sold
his real property in Badian, Cebu (Lot 3353 covered by Transfer Certificate
of Title No. 3252) to Mervir Realty.
On June 3, 1991, Thelma filed in the Regional Trial Court (RTC) in Cebu City
a petition for the appointment of Teresita as the administrator of Emigdio's
estate (Special Proceedings No. 3094-CEB). 1 The RTC granted the petition
considering that there was no opposition. The letters of administration in
favor of Teresita were issued on September 7, 1992.
As the administrator, Teresita submitted an inventory of the estate of
Emigdio on December 14, 1992 for the consideration and approval by the
RTC. She indicated in the inventory that at the time of his death, Emigdio
had "left no real properties but only personal properties" worth P6,675,435.25
in all, consisting of cash of P32,141.20; furniture and fixtures worth P20,000.00;
pieces of jewelry valued at P15,000.00; 44,806 shares of stock of Mervir
Realty worth P6,585,585.80; and 30 shares of stock of Cebu Emerson worth
P22,708.25. 2 cEAIHa
Claiming that Emigdio had owned other properties that were excluded
from the inventory, Thelma moved that the RTC direct Teresita to amend
the inventory, and to be examined regarding it. The RTC granted Thelma's
motion through the order of January 8, 1993.
On January 21, 1993, Teresita filed a compliance with the order of January
8, 1993, 3 supporting her inventory with copies of three certificates of stocks
covering the 44,806 Mervir Realty shares of stock; 4 the deed of assignment
executed by Emigdio on January 10, 1991 involving real properties with the
market value of P4,440,651.10 in exchange for 44,407 Mervir Realty shares
of stock with total par value of P4,440,700.00; 5 and the certificate of stock
issued on January 30, 1979 for 300 shares of stock of Cebu Emerson worth
P30,000.00. 6
On January 26, 1993, Thelma again moved to require Teresita to be
examined under oath on the inventory, and that she (Thelma) be allowed
30 days within which to file a formal opposition to or comment on the
inventory and the supporting documents Teresita had submitted.
On February 4, 1993, the RTC issued an order expressing the need for the
parties to present evidence and for Teresita to be examined to enable the
court to resolve the motion for approval of the inventory. 7
On April 19, 1993, Thelma opposed the approval of the inventory, and
asked leave of court to examine Teresita on the inventory.
With the parties agreeing to submit themselves to the jurisdiction of the
court on the issue of what properties should be included in or excluded from
the inventory, the RTC set dates for the hearing on that issue. 8
Ruling of the RTC
After a series of hearings that ran for almost eight years, the RTC issued on
March 14, 2001 an order finding and holding that the inventory submitted
by Teresita had excluded properties that should be included, and
accordingly ruled:
WHEREFORE, in view of all the foregoing premises and considerations, the
Court hereby denies the administratrix's motion for approval of inventory.
The Court hereby orders the said administratrix to re-do the inventory of
properties which are supposed to constitute as the estate of the late
Emigdio S. Mercado by including therein the properties mentioned in the
last five immediately preceding paragraphs hereof and then submit the
revised inventory within sixty (60) days from notice of this order.
The Court also directs the said administratrix to render an account of her
administration of the estate of the late Emigdio S. Mercado which had
come to her possession. She must render such accounting within sixty (60)
days from notice hereof.
SO ORDERED. 9
On March 29, 2001, Teresita, joined by other heirs of Emigdio, timely sought
the reconsideration of the order of March 14, 2001 on the ground that one
of the real properties affected, Lot No. 3353 located in Badian, Cebu, had
already been sold to Mervir Realty, and that the parcels of land covered
by the deed of assignment had already come into the possession of and
registered in the name of Mervir Realty. 10 Thelma opposed the motion.
On May 18, 2001, the RTC denied the motion for reconsideration, 11 stating
that there was no cogent reason for the reconsideration, and that the
movants' agreement as heirs to submit to the RTC the issue of what
properties should be included or excluded from the inventory already
estopped them from questioning its jurisdiction to pass upon the issue.
Decision of the CA
Alleging that the RTC thereby acted with grave abuse of discretion in
refusing to approve the inventory, and in ordering her as administrator to
include real properties that had been transferred to Mervir Realty, Teresita,
joined by her four children and her stepson Franklin, assailed the adverse
orders of the RTC promulgated on March 14, 2001 and May 18, 2001 by
petition for certiorari, stating:
I
THE HONORABLE RESPONDENT JUDGE HAS COMMITTED GRAVE ABUSE OF
JURISDICTION(sic) AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN
HOLDING THAT THE REAL PROPERTY WHICH WAS SOLD BY THE LATE EMIGDIO
S. MERCADO DURING HIS LIFETIME TO A PRIVATE CORPORATION (MERVIR
REALTY CORPORATION) BE INCLUDED IN THE INVENTORY OF THE ESTATE OF
THE LATE EMIGDIO S. MERCADO.
II
THE HONORABLE RESPONDENT JUDGE HAS COMMITTED GRAVE ABUSE OF
JURISDICTION(sic) AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN
HOLDING THAT REAL PROPERTIES WHICH ARE IN THE POSSESSION OF AND
ALREADY REGISTERED IN THE NAME (OF) PRIVATE CORPORATION (MERVIR
REALTY CORPORATION) BE INCLUDED IN THE INVENTORY OF THE ESTATE OF
THE LATE EMIGDIO S. MERCADO. ECTAHc
III
THE HONORABLE RESPONDENT JUDGE HAS COMMITTED GRAVE ABUSE OF
DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN HOLDING
THAT PETITIONERS ARE NOW ESTOPPED FROM QUESTIONING ITS
JURISDICTION IN PASSING UPON THE ISSUE OF WHAT PROPERTIES SHOULD BE
INCLUDED IN THE INVENTORY OF THE ESTATE OF THE LATE EMIGDIO
MERCADO. 12
On May 15, 2002, the CA partly granted the petition for certiorari, disposing
as follows: 13
WHEREFORE, FOREGOING PREMISES CONSIDERED, this petition is GRANTED
partially. The assailed Orders dated March 14, 2001 and May 18, 2001 are
hereby reversed and set aside insofar as the inclusion of parcels of land
known as Lot No. 3353 located at Badian, Cebu with an area of 53,301
square meters subject matter of the Deed of Absolute Sale dated
November 9, 1989 and the various parcels of land subject matter of the
138
Deeds of Assignment dated February 17, 1989 and January 10, 1991 in the
revised inventory to be submitted by the administratrix is concerned and
affirmed in all other respects.
SO ORDERED.
The CA opined that Teresita, et al. had properly filed the petition for
certiorari because the order of the RTC directing a new inventory of
properties was interlocutory; that pursuant to Article 1477 of the Civil Code,
to the effect that the ownership of the thing sold "shall be transferred to the
vendee" upon its "actual and constructive delivery," and to Article 1498 of
the Civil Code, to the effect that the sale made through a public instrument
was equivalent to the delivery of the object of the sale, the sale by Emigdio
and Teresita had transferred the ownership of Lot No. 3353 to Mervir Realty
because the deed of absolute sale executed on November 9, 1989 had
been notarized; that Emigdio had thereby ceased to have any more
interest in Lot 3353; that Emigdio had assigned the parcels of land to Mervir
Realty as early as February 17, 1989 "for the purpose of saving, as in avoiding
taxes with the difference that in the Deed of Assignment dated January 10,
1991, additional seven (7) parcels of land were included"; that as to the
January 10, 1991 deed of assignment, Mervir Realty had been "even at the
losing end considering that such parcels of land, subject matter(s) of the
Deed of Assignment dated February 12, 1989, were again given monetary
consideration through shares of stock"; that even if the assignment had
been based on the deed of assignment dated January 10, 1991, the
parcels of land could not be included in the inventory "considering that
there is nothing wrong or objectionable about the estate planning
scheme"; that the RTC, as an intestate court, also had no power to take
cognizance of and determine the issue of title to property registered in the
name of third persons or corporation; that a property covered by the
Torrens system should be afforded the presumptive conclusiveness of title;
that the RTC, by disregarding the presumption, had transgressed the clear
provisions of law and infringed settled jurisprudence on the matter; and that
the RTC also gravely abused its discretion in holding that Teresita, et al. were
estopped from questioning its jurisdiction because of their agreement to
submit to the RTC the issue of which properties should be included in the
inventory. HCATEa
The CA further opined as follows:
In the instant case, public respondent court erred when it ruled that
petitioners are estopped from questioning its jurisdiction considering that
they have already agreed to submit themselves to its jurisdiction of
determining what properties are to be included in or excluded from the
inventory to be submitted by the administratrix, because actually, a
reading of petitioners' Motion for Reconsideration dated March 26, 2001
filed before public respondent court clearly shows that petitioners are not
questioning its jurisdiction but the manner in which it was exercised for
which they are not estopped, since that is their right, considering that there
is grave abuse of discretion amounting to lack or in excess of limited
jurisdiction when it issued the assailed Order dated March 14, 2001 denying
the administratrix's motion for approval of the inventory of properties which
were already titled and in possession of a third person that is, Mervir Realty
Corporation, a private corporation, which under the law possessed a
personality distinct and separate from its stockholders, and in the absence
of any cogency to shred the veil of corporate fiction, the presumption of
conclusiveness of said titles in favor of Mervir Realty Corporation should
stand undisturbed.
Besides, public respondent court acting as a probate court had no
authority to determine the applicability of the doctrine of piercing the veil
of corporate fiction and even if public respondent court was not merely
acting in a limited capacity as a probate court, private respondent
nonetheless failed to adjudge competent evidence that would have
justified the court to impale the veil of corporate fiction because to
disregard the separate jurisdictional personality of a corporation, the
wrongdoing must be clearly and convincingly established since it cannot
be presumed. 14
On November 15, 2002, the CA denied the motion for reconsideration of
Teresita, et al. 15
Issue
Did the CA properly determine that the RTC committed grave abuse of
discretion amounting to lack or excess of jurisdiction in directing the
inclusion of certain properties in the inventory notwithstanding that such
properties had been either transferred by sale or exchanged for corporate
shares in Mervir Realty by the decedent during his lifetime?
Ruling of the Court
The appeal is meritorious.
I determination of the ownership as basis for inclusion or exclusion from the
Was certiorari the proper recourse
to assail the questioned orders of the RTC?
The first issue to be resolved is procedural. Thelma contends that the resort
to the special civil action for certiorari to assail the orders of the RTC by
Teresita and her co-respondents was not proper.
Thelma's contention cannot be sustained.
The propriety of the special civil action for certiorari as a remedy depended
on whether the assailed orders of the RTC were final or interlocutory in
nature. In Pahila-Garrido v. Tortogo, 16 the Court distinguished between
final and interlocutory orders as follows:
The distinction between a final order and an interlocutory order is well
known. The first disposes of the subject matter in its entirety or terminates a
particular proceeding or action, leaving nothing more to be done except
to enforce by execution what the court has determined, but the latter does
not completely dispose of the case but leaves something else to be
decided upon. An interlocutory order deals with preliminary matters and
the trial on the merits is yet to be held and the judgment rendered. The test
to ascertain whether or not an order or a judgment is interlocutory or final
is: does the order or judgment leave something to be done in the trial court
with respect to the merits of the case? If it does, the order or judgment is
interlocutory; otherwise, it is final.
The order dated November 12, 2002, which granted the application for the
writ of preliminary injunction, was an interlocutory, not a final, order, and
should not be the subject of an appeal. The reason for disallowing an
appeal from an interlocutory order is to avoid multiplicity of appeals in a
single action, which necessarily suspends the hearing and decision on the
merits of the action during the pendency of the appeals. Permitting multiple
appeals will necessarily delay the trial on the merits of the case for a
considerable length of time, and will compel the adverse party to incur
unnecessary expenses, for one of the parties may interpose as many
appeals as there are incidental questions raised by him and as there are
interlocutory orders rendered or issued by the lower court. An interlocutory
order may be the subject of an appeal, but only after a judgment has been
rendered, with the ground for appealing the order being included in the
appeal of the judgment itself.
The remedy against an interlocutory order not subject of an appeal is an
appropriate special civil action under Rule 65, provided that the
interlocutory order is rendered without or in excess of jurisdiction or with
grave abuse of discretion. Then is certiorari under Rule 65 allowed to be
resorted to. TCASIH
The assailed order of March 14, 2001 denying Teresita's motion for the
approval of the inventory and the order dated May 18, 2001 denying her
motion for reconsideration were interlocutory. This is because the inclusion
of the properties in the inventory was not yet a final determination of their
ownership. Hence, the approval of the inventory and the concomitant
inventory were provisional and subject to revision at anytime during the
course of the administration proceedings.
In Valero Vda. de Rodriguez v. Court of Appeals, 17 the Court, in affirming
the decision of the CA to the effect that the order of the intestate court
excluding certain real properties from the inventory was interlocutory and
could be changed or modified at anytime during the course of the
administration proceedings, held that the order of exclusion was not a final
but an interlocutory order "in the sense that it did not settle once and for all
the title to the San Lorenzo Village lots." The Court observed there that:
The prevailing rule is that for the purpose of determining whether a certain
property should or should not be included in the inventory, the probate
court may pass upon the title thereto but such determination is not
conclusive and is subject to the final decision in a separate action
regarding ownership which may be instituted by the parties (3 Moran's
Comments on the Rules of Court,1970 Edition, pages 448-9 and 473;
Lachenal vs. Salas, L-42257, June 14, 1976, 71 SCRA 262, 266). 18 (Bold
emphasis supplied)
To the same effect was De Leon v. Court of Appeals, 19 where the Court
declared that a "probate court, whether in a testate or intestate
proceeding, can only pass upon questions of title provisionally," and
139
reminded, citing Jimenez v. Court of Appeals, that the "patent reason is the
probate court's limited jurisdiction and the principle that questions of title or
ownership, which result in inclusion or exclusion from the inventory of the
property, can only be settled in a separate action." Indeed, in the cited
case of Jimenez v. Court of Appeals, 20 the Court pointed out:
All that the said court could do as regards the said properties is determine
whether they should or should not be included in the inventory or list of
properties to be administered by the administrator. If there is a dispute as to
the ownership, then the opposing parties and the administrator have to
resort to an ordinary action for a final determination of the conflicting
claims of title because the probate court cannot do so. (Bold emphasis
supplied)
On the other hand, an appeal would not be the correct recourse for
Teresita, et al. to take against the assailed orders. The final judgment rule
embodied in the first paragraph of Section 1, Rule 41, Rules of Court, 21
which also governs appeals in special proceedings, stipulates that only the
judgments, final orders (and resolutions) of a court of law "that completely
disposes of the case, or of a particular matter therein when declared by
these Rules to be appealable" may be the subject of an appeal in due
course. The same rule states that an interlocutory order or resolution
(interlocutory because it deals with preliminary matters, or that the trial on
the merits is yet to be held and the judgment rendered) is expressly made
non-appealable.
Multiple appeals are permitted in special proceedings as a practical
recognition of the possibility that material issues may be finally determined
at various stages of the special proceedings. Section 1, Rule 109 of the Rules
of Court enumerates the specific instances in which multiple appeals may
be resorted to in special proceedings, viz.:
Section 1. Orders or judgments from which appeals may be taken. An
interested person may appeal in special proceedings from an order or
judgment rendered by a Court of First Instance or a Juvenile and Domestic
Relations Court, where such order or judgment:
(a) Allows or disallows a will;
(b) Determines who are the lawful heirs of a deceased person, or the
distributive share of the estate to which such person is entitled;
(c) Allows or disallows, in whole or in part, any claim against the estate of
a deceased person, or any claim presented on behalf of the estate in offset
to a claim against it;
(d) Settles the account of an executor, administrator, trustee or guardian;
(e) Constitutes, in proceedings relating to the settlement of the estate of a
deceased person, or the administration of a trustee or guardian, a final
determination in the lower court of the rights of the party appealing, except
that no appeal shall be allowed from the appointment of a special
administrator; and
(f) Is the final order or judgment rendered in the case, and affects the
substantial rights of the person appealing, unless it be an order granting or
denying a motion for a new trial or for reconsideration.
Clearly, the assailed orders of the RTC, being interlocutory, did not come
under any of the instances in which multiple appeals are permitted.
II
Did the RTC commit grave abuse of discretion
in directing the inclusion of the properties
in the estate of the decedent?
In its assailed decision, the CA concluded that the RTC committed grave
abuse of discretion for including properties in the inventory notwithstanding
their having been transferred to Mervir Realty by Emigdio during his lifetime,
and for disregarding the registration of the properties in the name of Mervir
Realty, a third party, by applying the doctrine of piercing the veil of
corporate fiction.
Was the CA correct in its conclusion?
The answer is in the negative. It is unavoidable to find that the CA, in
reaching its conclusion, ignored the law and the facts that had fully
warranted the assailed orders of the RTC.
Under Section 6 (a), Rule 78 of the Rules of Court, the letters of
administration may be granted at the discretion of the court to the surviving
spouse, who is competent and willing to serve when the person dies
intestate. Upon issuing the letters of administration to the surviving spouse,
the RTC becomes duty-bound to direct the preparation and submission of
the inventory of the properties of the estate, and the surviving spouse, as
the administrator, has the duty and responsibility to submit the inventory
within three months from the issuance of letters of administration pursuant
to Rule 83 of the Rules of Court,viz.:
Section 1. Inventory and appraisal to be returned within three months.
Within three (3) months after his appointment every executor or
administrator shall return to the court a true inventory and appraisal of all
the real and personal estate of the deceased which has come into his
possession or knowledge. In the appraisement of such estate, the court
may order one or more of the inheritance tax appraisers to give his or their
assistance. THacES
The usage of the word all in Section 1, supra, demands the inclusion of all
the real and personal properties of the decedent in the inventory. 22
However, the word all is qualified by the phrase which has come into his
possession or knowledge, which signifies that the properties must be known
to the administrator to belong to the decedent or are in her possession as
the administrator. Section 1 allows no exception, for the phrase true
inventory implies that no properties appearing to belong to the decedent
can be excluded from the inventory, regardless of their being in the
possession of another person or entity.
The objective of the Rules of Court in requiring the inventory and appraisal
of the estate of the decedent is "to aid the court in revising the accounts
and determining the liabilities of the executor or the administrator, and in
malting a final and equitable distribution (partition) of the estate and
otherwise to facilitate the administration of the estate." 23 Hence, the RTC
that presides over the administration of an estate is vested with wide
discretion on the question of what properties should be included in the
inventory. According to Peralta v. Peralta, 24 the CA cannot impose its
judgment in order to supplant that of the RTC on the issue of which
properties are to be included or excluded from the inventory in the
absence of "positive abuse of discretion," for in the administration of the
estates of deceased persons, "the judges enjoy ample discretionary powers
and the appellate courts should not interfere with or attempt to replace the
action taken by them, unless it be shown that there has been a positive
abuse of discretion." 25 As long as the RTC commits no patently grave
abuse of discretion, its orders must be respected as part of the regular
performance of its judicial duty.
There is no dispute that the jurisdiction of the trial court as an intestate court
is special and limited. The trial court cannot adjudicate title to properties
claimed to be a part of the estate but are claimed to belong to third parties
by title adverse to that of the decedent and the estate, not by virtue of any
right of inheritance from the decedent. All that the trial court can do
regarding said properties is to determine whether or not they should be
included in the inventory of properties to be administered by the
administrator. Such determination is provisional and may be still revised. As
the Court said in Agtarap v. Agtarap: 26
The general rule is that the jurisdiction of the trial court, either as a probate
court or an intestate court, relates only to matters having to do with the
probate of the will and/or settlement of the estate of deceased persons,
but does not extend to the determination of questions of ownership that
arise during the proceedings. The patent rationale for this rule is that such
court merely exercises special and limited jurisdiction. As held in several
cases, a probate court or one in charge of estate proceedings, whether
testate or intestate, cannot adjudicate or determine title to properties
claimed to be a part of the estate and which are claimed to belong to
outside parties, not by virtue of any right of inheritance from the deceased
but by title adverse to that of the deceased and his estate. All that the said
court could do as regards said properties is to determine whether or not
they should be included in the inventory of properties to be administered
by the administrator. If there is no dispute, there poses no problem, but if
there is, then the parties, the administrator, and the opposing parties have
to resort to an ordinary action before a court exercising general jurisdiction
for a final determination of the conflicting claims of title. TcHDIA
However, this general rule is subject to exceptions as justified by expediency
and convenience.
First, the probate court may provisionally pass upon in an intestate or a
testate proceeding the question of inclusion in, or exclusion from, the
inventory of a piece of property without prejudice to final determination of
ownership in a separate action. Second, if the interested parties are all heirs
140
to the estate, or the question is one of collation or advancement, or the
parties consent to the assumption of jurisdiction by the probate court and
the rights of third parties are not impaired, then the probate court is
competent to resolve issues on ownership. Verily, its jurisdiction extends to
matters incidental or collateral to the settlement and distribution of the
estate, such as the determination of the status of each heir and whether
the property in the inventory is conjugal or exclusive property of the
deceased spouse. 27 (Italics in the original; bold emphasis supplied)
It is clear to us that the RTC took pains to explain the factual bases for its
directive for the inclusion of the properties in question in its assailed order of
March 14, 2001, viz.:
In the first place, the administratrix of the estate admitted that Emigdio
Mercado was one of the heirs of Severina Mercado who, upon her death,
left several properties as listed in the inventory of properties submitted in
Court in Special Proceedings No. 306-R which are supposed to be divided
among her heirs. The administratrix admitted, while being examined in
Court by the counsel for the petitioner, that she did not include in the
inventory submitted by her in this case the shares of Emigdio Mercado in
the said estate of Severina Mercado. Certainly, said properties constituting
Emigdio Mercado's share in the estate of Severina Mercado should be
included in the inventory of properties required to be submitted to the Court
in this particular case.
In the second place, the administratrix of the estate of Emigdio Mercado
also admitted in Court that she did not include in the inventory shares of
stock of Mervir Realty Corporation which are in her name and which were
paid by her from money derived from the taxicab business which she and
her husband had since 1955 as a conjugal undertaking. As these shares of
stock partake of being conjugal in character, one-half thereof or of the
value thereof should be included in the inventory of the estate of her
husband.
In the third place, the administratrix of the estate of Emigdio Mercado
admitted, too, in Court that she had a bank account in her name at Union
Bank which she opened when her husband was still alive. Again, the money
in said bank account partakes of being conjugal in character, and so, one-
half thereof should be included in the inventory of the properties
constituting as estate of her husband.
In the fourth place, it has been established during the hearing in this case
that Lot No. 3353 of Pls-657-D located in Badian, Cebu containing an area
of 53,301 square meters as described in and covered by Transfer Certificate
of Title No. 3252 of the Registry of Deeds for the Province of Cebu is still
registered in the name of Emigdio S. Mercado until now. When it was the
subject of Civil Case No. CEB-12690 which was decided on October 19,
1995, it was the estate of the late Emigdio Mercado which claimed to be
the owner thereof. Mervir Realty Corporation never intervened in the said
case in order to be the owner thereof. This fact was admitted by Richard
Mercado himself when he testified in Court. . . . So the said property located
in Badian, Cebu should be included in the inventory in this case. AECacS
Fifthly and lastly, it appears that the assignment of several parcels of land
by the late Emigdio S. Mercado to Mervir Realty Corporation on January 10,
1991 by virtue of the Deed of Assignment signed by him on the said day
(Exhibit N for the petitioner and Exhibit 5 for the administratrix) was a transfer
in contemplation of death. It was made two days before he died on
January 12, 1991. A transfer made in contemplation of death is one
prompted by the thought that the transferor has not long to live and made
in place of a testamentary disposition (1959 Prentice Hall, p. 3909). Section
78 of the National Internal Revenue Code of 1977 provides that the gross
estate of the decedent shall be determined by including the value at the
time of his death of all property to the extent of any interest therein of which
the decedent has at any time made a transfer in contemplation of death.
So, the inventory to be approved in this case should still include the said
properties of Emigdio Mercado which were transferred by him in
contemplation of death. Besides, the said properties actually appeared to
be still registered in the name of Emigdio S. Mercado at least ten (10)
months after his death, as shown by the certification issued by the Cebu
City Assessor's Office on October 31, 1991 (Exhibit O). 28
Thereby, the RTC strictly followed the directives of the Rules of Court and
the jurisprudence relevant to the procedure for preparing the inventory by
the administrator. The aforequoted explanations indicated that the
directive to include the properties in question in the inventory rested on
good and valid reasons, and thus was far from whimsical, or arbitrary, or
capricious.
Firstly, the shares in the properties inherited by Emigdio from Severina
Mercado should be included in the inventory because Teresita, et al. did
not dispute the fact about the shares being inherited by Emigdio.
Secondly, with Emigdio and Teresita having been married prior to the
effectivity of the Family Code in August 3, 1988, their property regime was
the conjugal partnership of gains. 29 For purposes of the settlement of
Emigdio's estate, it was unavoidable for Teresita to include his shares in the
conjugal partnership of gains. The party asserting that specific property
acquired during that property regime did not pertain to the conjugal
partnership of gains carried the burden of proof, and that party must prove
the exclusive ownership by one of them by clear, categorical, and
convincing evidence. 30 In the absence of or pending the presentation of
such proof, the conjugal partnership of Emigdio and Teresita must be
provisionally liquidated to establish who the real owners of the affected
properties were, 31 and which of the properties should form part of the
estate of Emigdio. The portions that pertained to the estate of Emigdio must
be included in the inventory.
Moreover, although the title over Lot 3353 was already registered in the
name of Mervir Realty, the RTC made findings that put that title in dispute.
Civil Case No. CEB-12692, a dispute that had involved the ownership of Lot
3353, was resolved in favor of the estate of Emigdio, and Transfer Certificate
of Title No. 3252 covering Lot 3353 was still in Emigdio's name. Indeed, the
RTC noted in the order of March 14, 2001, or ten years after his death, that
Lot 3353 had remained registered in the name of Emigdio.
Interestingly, Mervir Realty did not intervene at all in Civil Case No. CEB-
12692. Such lack of interest in Civil Case No. CEB-12692 was susceptible of
various interpretations, including one to the effect that the heirs of Emigdio
could have already threshed out their differences with the assistance of the
trial court. This interpretation was probable considering that Mervir Realty,
whose business was managed by respondent Richard, was headed by
Teresita herself as its President. In other words, Mervir Realty appeared to be
a family corporation.
Also, the fact that the deed of absolute sale executed by Emigdio in favor
of Mervir Realty was a notarized instrument did not sufficiently justify the
exclusion from the inventory of the properties involved. A notarized deed of
sale only enjoyed the presumption of regularity in favor of its execution, but
its notarization did not per se guarantee the legal efficacy of the
transaction under the deed, and what the contents purported to be. The
presumption of regularity could be rebutted by clear and convincing
evidence to the contrary. 32 As the Court has observed in Suntay v. Court
of Appeals: 33
. . . . Though the notarization of the deed of sale in question vests in its favor
the presumption of regularity, it is not the intention nor the function of the
notary public to validate and make binding an instrument never, in the first
place, intended to have any binding legal effect upon the parties thereto.
The intention of the parties still and always is the primary consideration in
determining the true nature of a contract. (Bold emphasis supplied)
It should likewise be pointed out that the exchange of shares of stock of
Mervir Realty with the real properties owned by Emigdio would still have to
be inquired into. That Emigdio executed the deed of assignment two days
prior to his death was a circumstance that should put any interested party
on his guard regarding the exchange, considering that there was a finding
about Emigdio having been sick of cancer of the pancreas at the time. 34
In this regard, whether the CA correctly characterized the exchange as a
form of an estate planning scheme remained to be validated by the facts
to be established in court.
The fact that the properties were already covered by Torrens titles in the
name of Mervir Realty could not be a valid basis for immediately excluding
them from the inventory in view of the circumstances admittedly
surrounding the execution of the deed of assignment. This is because:
The Torrens system is not a mode of acquiring titles to lands; it is merely a
system of registration of titles to lands. However, justice and equity demand
that the titleholder should not be made to bear the unfavorable effect of
the mistake or negligence of the State's agents, in the absence of proof of
his complicity in a fraud or of manifest damage to third persons. The real
purpose of the Torrens system is to quiet title to land and put a stop forever
to any question as to the legality of the title, except claims that were noted
in the certificate at the time of registration or that may arise subsequent
thereto. Otherwise, the integrity of the Torrens system shall forever be sullied
by the ineptitude and inefficiency of land registration officials, who are
ordinarily presumed to have regularly performed their duties. 35 cEAIHa
141
Assuming that only seven titled lots were the subject of the deed of
assignment of January 10, 1991, such lots should still be included in the
inventory to enable the parties, by themselves, and with the assistance of
the RTC itself, to test and resolve the issue on the validity of the assignment.
The limited jurisdiction of the RTC as an intestate court might have
constricted the determination of the rights to the properties arising from that
deed, 36 but it does not prevent the RTC as intestate court from ordering
the inclusion in the inventory of the properties subject of that deed. This is
because the RTC as intestate court, albeit vested only with special and
limited jurisdiction, was still "deemed to have all the necessary powers to
exercise such jurisdiction to make it effective." 37
REINSTATES the orders issued on March 14, 2001 and May 18, 2001 by the
Regional Trial Court in Cebu; DIRECTS the Regional Trial Court in Cebu to
proceed with dispatch in Special Proceedings No. 3094-CEB entitled
Intestate Estate of the late Emigdio Mercado, Thelma Aranas, petitioner,
and to resolve the case; and ORDERS the respondents to pay the costs of
suit.
SO ORDERED.

Lastly, the inventory of the estate of Emigdio must be prepared and

submitted for the important purpose of resolving the difficult issues of
collation and advancement to the heirs. Article 1061 of the Civil Code
required every compulsory heir and the surviving spouse, herein Teresita
herself, to "bring into the mass of the estate any property or right which he
(or she) may have received from the decedent, during the lifetime of the
latter, by way of donation, or any other gratuitous title, in order that it may
be computed in the determination of the legitime of each heir, and in the
account of the partition." Section 2, Rule 90 of the Rules of Court also
provided that any advancement by the decedent on the legitime of an
heir "may be heard and determined by the court having jurisdiction of the
estate proceedings, and the final order of the court thereon shall be
binding on the person raising the questions and on the heir." Rule 90 thereby
expanded the special and limited jurisdiction of the RTC as an intestate
court about the matters relating to the inventory of the estate of the
decedent by authorizing it to direct the inclusion of properties donated or
bestowed by gratuitous title to any compulsory heir by the decedent. 38

The determination of which properties should be excluded from or included

in the inventory of estate properties was well within the authority and
discretion of the RTC as an intestate court. In making its determination, the
RTC acted with circumspection, and proceeded under the guiding policy
that it was best to include all properties in the possession of the administrator
or were known to the administrator to belong to Emigdio rather than to
exclude properties that could turn out in the end to be actually part of the
estate. As long as the RTC commits no patent grave abuse of discretion, its
orders must be respected as part of the regular performance of its judicial
duty. Grave abuse of discretion means either that the judicial or quasi-
judicial power was exercised in an arbitrary or despotic manner by reason
of passion or personal hostility, or that the respondent judge, tribunal or
board evaded a positive duty, or virtually refused to perform the duty
enjoined or to act in contemplation of law, such as when such judge,
tribunal or board exercising judicial or quasi-judicial powers acted in a
capricious or whimsical manner as to be equivalent to lack of jurisdiction.
39

In light of the foregoing, the CA's conclusion of grave abuse of discretion

on the part of the RTC was unwarranted and erroneous.

WHEREFORE, the Court GRANTS the petition for review on certiorari;

REVERSES and SETS ASIDE the decision promulgated on May 15, 2002;
142
[G.R. No. 192828. November 28, 2011.]
RAMON S. CHING AND PO WING PROPERTIES, INC., petitioners, vs. HON.
JANSEN R. RODRIGUEZ, in his capacity as Presiding Judge of the Regional
Trial Court of Manila, Branch 6, JOSEPH CHENG, JAIME CHENG, MERCEDES
IGNE AND LUCINA SANTOS, substituted by her son, EDUARDO S. BALAJADIA,
respondents.
RESOLUTION
REYES, J p:
The Case
Before us is a Petition for Review on Certiorari 1 under Rule 45 of the Rules of
Court assailing the December 14, 2009 Decision 2 and July 8, 2010
Resolution 3 of the Court of Appeals (CA) in CA-G.R. SP No. 99856. The
dispositive portion of the assailed Decision reads:
WHEREFORE, in view of all the foregoing premises, judgment is hereby
rendered by us DENYING the petition filed in this case and AFFIRMING the
assailed Orders dated March 15, 2007 and May 16, 2007 issued by the
respondent Judge of the Regional Trial Court (RTC), Branch 6, in Manila in
Civil Case No. 02-105251. 4
The assailed Resolution denied the petitioners' Motion for Reconsideration.
The Factual Antecedents
Sometime between November 25, 2002 and December 3, 2002, 5 the
respondents filed a Complaint 6 against the petitioners and Stronghold
Insurance Company, Global Business Bank, Inc. (formerly PhilBank), Elena
Tiu Del Pilar, Asia Atlantic Resources Ventures, Inc., Registers of Deeds of
Manila and Malabon, and all persons claiming rights or titles from Ramon
Ching (Ramon) and his successors-in-interest.
The Complaint, captioned as one for "Disinheritance, Declaration of Nullity
of Agreement and Waiver, Affidavit of Extra-Judicial Settlement, Deed of
Absolute Sale, Transfer Certificates of Title with Prayer for [the] Issuance of
[a] Temporary Restraining Order and [a] Writ of Preliminary Injunction," was
docketed as Civil Case No. 02-105251 and raffled to Branch 8 of the
Regional Trial Court of Manila (RTC). CIETDc
In the Complaint, the respondents alleged the following as causes of
action:
First Cause of Action. They are the heirs of Lim San, also known as Antonio
Ching/Tiong Cheng/Ching Cheng Suy (Antonio). Respondents Joseph
Cheng (Joseph) and Jaime Cheng (Jaime) are allegedly the children of
Antonio with his common-law wife, respondent Mercedes Igne (Mercedes).
Respondent Lucina Santos (Lucina) claimed that she was also a common-
law wife of Antonio. The respondents averred that Ramon misrepresented
himself as Antonio's and Lucina's son when in truth and in fact, he was
adopted and his birth certificate was merely simulated. On July 18, 1996,
Antonio died of a stab wound. Police investigators identified Ramon as the
prime suspect and he now stands as the lone accused in a criminal case
for murder filed against him. Warrants of arrest issued against him have
remained unserved as he is at large. From the foregoing circumstances and
upon the authority of Article 919 7 of the New Civil Code (NCC), the
respondents concluded that Ramon can be legally disinherited, hence,
prohibited from receiving any share from the estate of Antonio.
Second Cause of Action. On August 26, 1996, prior to the conclusion of the
police investigations tagging Ramon as the prime suspect in the murder of
Antonio, the former made an inventory of the latter's estate. Ramon
misrepresented that there were only six real estate properties left by
Antonio. The respondents alleged that Ramon had illegally transferred to
his name the titles to the said properties. Further, there are two other parcels
of land, cash and jewelries, plus properties in Hongkong, which were in
Ramon's possession.
Third Cause of Action. Mercedes, being of low educational attainment, was
sweet-talked by Ramon into surrendering to him a Global Business Bank, Inc.
(Global Bank) Certificate of Time Deposit of P4,000,000.00 in the name of
Antonio, and the certificates of title covering two condominium units in
Binondo which were purchased by Antonio using his own money but which
were registered in Ramon's name. Ramon also fraudulently misrepresented
to Joseph, Jaime and Mercedes that they will promptly receive their
complete shares, exclusive of the stocks in Po Wing Properties, Inc. (Po
Wing), from the estate of Antonio. Exerting undue influence, Ramon had
convinced them to execute an Agreement 8 and a Waiver 9 on August 20,
1996. The terms and conditions stipulated in the Agreement and Waiver,
specifically, on the payment by Ramon to Joseph, Jaime and Mercedes of
the amount of P22,000,000.00, were not complied with. Further, Lucina was
not informed of the execution of the said instruments and had not received
any amount from Ramon. Hence, the instruments are null and void.
Fourth Cause of Action. Antonio's 40,000 shares in Po Wing, which constitute
60% of the latter's total capital stock, were illegally transferred by Ramon to
his own name through a forged document of sale executed after Antonio
died. Po Wing owns a ten-storey building in Binondo. Ramon's claim that he
bought the stocks from Antonio before the latter died is baseless. Further,
Lucina's shares in Po Wing had also banished into thin air through Ramon's
machinations. DcITaC
Fifth Cause of Action. On October 29, 1996, Ramon executed an Affidavit
of Extra-Judicial Settlement of Estate 10 adjudicating solely to himself
Antonio's entire estate to the prejudice of the respondents. By virtue of the
said instrument, new Transfer Certificates of Title (TCTs) covering eight real
properties owned by Antonio were issued in Ramon's name. Relative to the
Po Wing shares, the Register of Deeds of Manila had required Ramon to
post a Surety Bond conditioned to answer for whatever claims which may
eventually surface in connection with the said stocks. Co-defendant
Stronghold Insurance Company issued the bond in Ramon's behalf.
Sixth Cause of Action. Ramon sold Antonio's two parcels of land in Navotas
to co-defendant Asia Atlantic Business Ventures, Inc. Another parcel of
land, which was part of Antonio's estate, was sold by Ramon to co-
defendant Elena Tiu Del Pilar at an unreasonably low price. By reason of
Ramon's lack of authority to dispose of any part of Antonio's estate, the
conveyances are null and void ab initio.
Since Ramon is at large, his wife, Belen Dy Tan Ching, now manages
Antonio's estate. She has no intent to convey to the respondents their shares
in the estate of Antonio. DcTaEH
The respondents thus prayed for the following in their Complaint:
1. . . . a temporary restraining order be issued restraining the defendant
RAMON CHING and/or his attorney-in-fact Belen Dy Tan Ching from
disposing, selling or alienating any property that belongs to the estate of
the deceased ANTONIO CHING;
xxx xxx xxx
4. . . .
a.) Declaring that the defendant RAMON CHING who murdered his father
ANTONIO CHING disqualified as heir and from inheriting to (sic) the estate
of his father;
b.) Declaring the nullity of the defendant RAMON CHING transfer (sic) of
the six [6] parcels of land from the name of his father ANTONIO CHING to
his name covered by TCT No. . . . ;
c.) Declaring the nullity of the AGREEMENT and WAIVER executed by
plaintiffs . . . in favor of . . . RAMON CHING for being patently immoral,
invalid, illegal, simulated and (sic) sham;
d.) Declaring the nullity of the transfer of the shares of stocks at (sic) PO
WING from the names of ANTONIO CHING and LUCINA SANTOS to the
defendant ANTONIO CHING's name for having been illegally procured
through the falsification of their signatures in the document purporting the
transfer thereof;
e.) Declaring the nullity and to have no force and effect the AFFIDAVIT OF
SETTLEMENT OF ESTATE executed by . . . RAMON CHING for being contrary
to law and existing jurisprudence;
f.) Declaring the nullity of the DEED OF SALES (sic) executed by . . . RAMON
CHING (i) over two (2) parcels of land . . . to defendant ASIA ATLANTIC
BUSINESS VENTURES, Inc.; and (ii) one (1) parcel of land . . . sold to . . . ELENA
TIU DEL PILAR for having illegally procured the ownership and titles of the
above properties;
xxx xxx xxx 11
The petitioners filed with the RTC a Motion to Dismiss 12 alleging forum
shopping, litis pendentia, res judicata and the respondents as not being the
real parties in interest. ADSTCa
143
On July 30, 2004, the RTC issued an Omnibus Order 13 denying the
petitioners' Motion to Dismiss.
The respondents filed an Amended Complaint 14 dated April 7, 2005
impleading Metrobank as the successor-in-interest of co-defendant Global
Bank. The Amended Complaint also added a seventh cause of action
relative to the existence of a Certificate of Premium Plus Acquisition (CPPA)
in the amount of P4,000,000.00 originally issued by PhilBank to Antonio. The
respondents prayed that they be declared as the rightful owners of the
CPPA and that it be immediately released to them. Alternatively, the
respondents prayed for the issuance of a hold order relative to the CPPA to
preserve it during the pendency of the case.
On April 22, 2005, the petitioners filed their Consolidated Answer with
Counterclaim. 15
On October 28, 2005, the RTC issued an Order 16 admitting the respondents'
Amended Complaint. The RTC stressed that Metrobank had already filed
Manifestations admitting that as successor-in-interest of Global Bank, it now
possesses custody of Antonio's deposits. Metrobank expressed willingness to
abide by any court order as regards the disposition of Antonio's deposits.
The petitioners' Motion for Reconsideration filed to assail the aforecited
Order was denied by the RTC on May 3, 2006.
On May 29, 2006, the petitioners filed their Consolidated Answer with
Counterclaim to the respondents' Amended Complaint.
On August 11, 2006, the RTC issued a pre-trial order. 17
On January 18, 2007, the petitioners filed a Motion to Dismiss 18 the
respondents' Amended Complaint on the alleged ground of the RTC's lack
of jurisdiction over the subject matter of the Complaint. The petitioners
argued that since the Amended Complaint sought the release of the CPPA
to the respondents, the latter's declaration as heirs of Antonio, and the
propriety of Ramon's disinheritance, the suit partakes of the nature of a
special proceeding and not an ordinary action for declaration of nullity.
Hence, jurisdiction pertains to a probate or intestate court and not to the
RTC acting as an ordinary court.
On March 15, 2007, the RTC issued an Order 19 denying the petitioners'
Motion to Dismiss on grounds: IADaSE
In the case at bar, an examination of the Complaint would disclose that
the action delves mainly on the question of ownership of the properties
described in the Complaint which can be properly settled in an ordinary
civil action. And as pointed out by the defendants, the action seeks to
declare the nullity of the Agreement, Waiver, Affidavit of Extra-Judicial
Settlement, Deed of Absolute Sale, Transfer Certificates of Title, which were
all allegedly executed by defendant Ramon Ching to defraud the plaintiffs.
The relief of establishing the status of the plaintiffs which could have
translated this action into a special proceeding was nowhere stated in the
Amended Complaint. With regard [to] the prayer to declare the plaintiffs
as the rightful owner[s] of the CPPA and that the same be immediately
released to them, in itself poses an issue of ownership which must be proved
by plaintiffs by substantial evidence. And as emphasized by the plaintiffs,
the Amended Complaint was intended to implead Metrobank as a co-
defendant.
As regards the issue of disinheritance, the court notes that during the Pre-
trial of this case, one of the issues raised by the defendants Ramon Ching
and Po Wing Properties is: Whether or not there can be disinheritance in
intestate succession? Whether or not defendant Ramon Ching can be
legally disinherited from the estate of his father? To the mind of the Court,
the issue of disinheritance, which is one of the causes of action in the
Complaint, can be fully settled after a trial on the merits. And at this stage,
it has not been sufficiently established whether or not there is a will. 20
(Emphasis supplied.)
The above Order, and a subsequent Order dated May 16, 2007 denying
the petitioners' Motion for Reconsideration, became the subjects of a
petition for certiorari filed with the CA. The petition, docketed as CA-G.R. SP
No. 99856, raised the issue of whether or not the RTC gravely abused its
discretion when it denied the petitioners' Motion to Dismiss despite the fact
that the Amended Complaint sought to establish the status or rights of the
respondents which subjects are within the ambit of a special proceeding.
On December 14, 2009, the CA rendered the now assailed Decision 21
denying the petition for certiorari on grounds:
Our in-depth assessment of the condensed allegations supporting the
causes of action of the amended complaint induced us to infer that
nothing in the said complaint shows that the action of the private
respondents should be threshed out in a special proceeding, it appearing
that their allegations were substantially for the enforcement of their rights
against the alleged fraudulent acts committed by the petitioner Ramon
Ching. The private respondents also instituted the said amended complaint
in order to protect them from the consequence of the fraudulent acts of
Ramon Ching by seeking to disqualify Ramon Ching from inheriting from
Antonio Ching as well as to enjoin him from disposing or alienating the
subject properties, including the P4 Million deposit with Metrobank. The
intestate or probate court has no jurisdiction to adjudicate such issues,
which must be submitted to the court in the exercise of its general
jurisdiction as a regional trial court. Furthermore, we agree with the trial
court that the probate court could not take cognizance of the prayer to
disinherit Ramon Ching, given the undisputed fact that there was no will to
be contested in a probate court. CcEHaI
The petition at bench apparently cavils the subject amended complaint
and complicates the issue of jurisdiction by reiterating the grounds or
defenses set up in the petitioners' earlier pleadings. Notwithstanding, the
jurisdiction of the court over the subject matter is determined by the
allegations of the complaint without regard to whether or not the private
respondents (plaintiffs) are entitled to recover upon all or some of the
causes of action asserted therein. In this regard, the jurisdiction of the court
does not depend upon the defenses pleaded in the answer or in the motion
to dismiss, lest the question of jurisdiction would almost entirely depend
upon the petitioners (defendants). 22 Hence, we focus our resolution on the
issue of jurisdiction on the allegations in the amended complaint and not
on the defenses pleaded in the motion to dismiss or in the subsequent
pleadings of the petitioners.
In fine, under the circumstances of the present case, there being no
compelling reason to still subject the action of the petitioners in a special
proceeding since the nullification of the subject documents could be
achieved in the civil case, the lower court should proceed to evaluate the
evidence of the parties and render a decision thereon upon the issues that
it defined during the pre-trial in Civil Case No. 02-105251. 23 (emphasis
supplied)
The petitioners' Motion for Reconsideration was denied by the CA through
a Resolution 24 issued on July 8, 2010.
The Issue
The instant Petition for Review on Certiorari 25 is anchored on the issue of:
WHETHER OR NOT THE RTC SHOULD HAVE GRANTED THE MOTION TO DISMISS
FILED BY THE PETITIONERS ON THE ALLEGED GROUND OF THE RTC'S LACK OF
JURISDICTION OVER THE SUBJECT MATTER OF THE AMENDED COMPLAINT, TO
WIT, (A) FILIATIONS WITH ANTONIO OF RAMON, JAIME AND JOSEPH; (B)
RIGHTS OF COMMON-LAW WIVES, LUCINA AND MERCEDES, TO BE
CONSIDERED AS HEIRS OF ANTONIO; (C) DETERMINATION OF THE EXTENT OF
ANTONIO'S ESTATE; AND (D) OTHER MATTERS WHICH CAN ONLY BE
RESOLVED IN A SPECIAL PROCEEDING AND NOT IN AN ORDINARY CIVIL
ACTION.
The petitioners argue that only a probate court has the authority to
determine (a) who are the heirs of a decedent; (b) the validity of a waiver
of hereditary rights; (c) the status of each heir; and (d) whether the property
in the inventory is conjugal or the exclusive property of the deceased
spouse. 26 Further, the extent of Antonio's estate, the status of the
contending parties and the respondents' alleged entitlement as heirs to
receive the proceeds of Antonio's CPPA now in Metrobank's custody are
matters which are more appropriately the subjects of a special proceeding
and not of an ordinary civil action. STcAIa
The respondents opposed 27 the instant petition claiming that the
petitioners are engaged in forum shopping. Specifically, G.R. Nos. 175507
28 and 183840, 29 both involving the contending parties in the instant
petition were filed by the petitioners and are currently pending before this
Court. Further, in Mendoza v. Hon. Teh, 30 the SC declared that whether a
particular matter should be resolved by the RTC in the exercise of its general
jurisdiction or its limited probate jurisdiction, is not a jurisdictional issue but a
mere question of procedure. Besides, the petitioners, having validly
submitted themselves to the jurisdiction of the RTC and having actively
participated in the trial of the case, are already estopped from challenging
the RTC's jurisdiction over the respondents' Complaint and Amended
Complaint. 31
144
The Court's Ruling
We resolve to deny the instant petition.
The petitioners failed to comply with a lawful order of this Court directing
them to file their reply to the respondents' Comment/Opposition to the
instant Petition. While the prescribed period to comply expired on March
15, 2011, the petitioners filed their Manifestation that they will no longer file
a reply only on October 10, 2011 or after the lapse of almost seven months.
Further, no reversible errors were committed by the RTC and the CA when
they both ruled that the denial of the petitioners' second motion to dismiss
Civil Case No. 02-105251 was proper.
Even without delving into the procedural allegations of the respondents
that the petitioners engaged in forum shopping and are already estopped
from questioning the RTC's jurisdiction after having validly submitted to it
when the latter participated in the proceedings, the denial of the instant
Petition is still in order. Although the respondents' Complaint and Amended
Complaint sought, among others, the disinheritance of Ramon and the
release in favor of the respondents of the CPPA now under Metrobank's
custody, Civil Case No. 02-105251 remains to be an ordinary civil action,
and not a special proceeding pertaining to a settlement court.
An action for reconveyance and annulment of title with damages is a civil
action, whereas matters relating to settlement of the estate of a deceased
person such as advancement of property made by the decedent, partake
of the nature of a special proceeding, which concomitantly requires the
application of specific rules as provided for in the Rules of Court. 32 A
special proceeding is a remedy by which a party seeks to establish a status,
a right, or a particular fact. 33 It is distinguished from an ordinary civil action
where a party sues another for the enforcement or protection of a right, or
the prevention or redress of a wrong. 34 To initiate a special proceeding, a
petition and not a complaint should be filed.
Under Article 916 of the NCC, disinheritance can be effected only through
a will wherein the legal cause therefor shall be specified. This Court agrees
with the RTC and the CA that while the respondents in their Complaint and
Amended Complaint sought the disinheritance of Ramon, no will or any
instrument supposedly effecting the disposition of Antonio's estate was ever
mentioned. Hence, despite the prayer for Ramon's disinheritance, Civil
Case No. 02-105251 does not partake of the nature of a special proceeding
and does not call for the probate court's exercise of its limited jurisdiction.
TaCIDS
The petitioners also argue that the prayers in the Amended Complaint,
seeking the release in favor of the respondents of the CPPA under
Metrobank's custody and the nullification of the instruments subject of the
complaint, necessarily require the determination of the respondents' status
as Antonio's heirs.
It bears stressing that what the respondents prayed for was that they be
declared as the rightful owners of the CPPA which was in Mercedes'
possession prior to the execution of the Agreement and Waiver. The
respondents also prayed for the alternative relief of securing the issuance issues raised and the prayers indicated therein are matters which need not
by the RTC of a hold order relative to the CPPA to preserve Antonio's be threshed out in a special proceeding.
deposits with Metrobank during the pendency of the case. It can thus be
said that the respondents' prayer relative to the CPPA was premised on WHEREFORE, the instant petition is DENIED. The petitioners' (a) Opposition to
Mercedes' prior possession of and their alleged collective ownership of the the respondents' Motion to Admit Substitution of Party; 38 and (b)
same, and not on the declaration of their status as Antonio's heirs. Further, Manifestation 39 through counsel that they will no longer file a reply to the
it also has to be emphasized that the respondents were parties to the respondents' Comment/Opposition to the instant petition are NOTED.
execution of the Agreement 35 and Waiver 36 prayed to be nullified.
Hence, even without the necessity of being declared as heirs of Antonio, SO ORDERED.
the respondents have the standing to seek for the nullification of the
instruments in the light of their claims that there was no consideration for
their execution, and that Ramon exercised undue influence and
committed fraud against them. Consequently, the respondents then
claimed that the Affidavit of Extra-Judicial Settlement of Antonio's estate
executed by Ramon, and the TCTs issued upon the authority of the said
affidavit, are null and void as well. Ramon's averment that a resolution of
the issues raised shall first require a declaration of the respondents' status as
heirs is a mere defense which is not determinative of which court shall
properly exercise jurisdiction.
In Marjorie Cadimas v. Marites Carrion and Gemma Hugo, 37 the Court
declared:
It is an elementary rule of procedural law that jurisdiction of the court over
the subject matter is determined by the allegations of the complaint
irrespective of whether or not the plaintiff is entitled to recover upon all or
some of the claims asserted therein. As a necessary consequence, the
jurisdiction of the court cannot be made to depend upon the defenses set
up in the answer or upon the motion to dismiss, for otherwise, the question
of jurisdiction would almost entirely depend upon the defendant. What
determines the jurisdiction of the court is the nature of the action pleaded
as appearing from the allegations in the complaint. The averments in the
complaint and the character of the relief sought are the matters to be
consulted.
In sum, this Court agrees with the CA that the nullification of the documents
subject of Civil Case No. 02-105251 could be achieved in an ordinary civil
action, which in this specific case was instituted to protect the respondents
from the supposedly fraudulent acts of Ramon. In the event that the RTC
will find grounds to grant the reliefs prayed for by the respondents, the only
consequence will be the reversion of the properties subject of the dispute
to the estate of Antonio. Civil Case No. 02-105251 was not instituted to
conclusively resolve the issues relating to the administration, liquidation and
distribution of Antonio's estate, hence, not the proper subject of a special
proceeding for the settlement of the estate of a deceased person under
Rules 73-91 of the Rules of Court. cDSAEI
The respondents' resort to an ordinary civil action before the RTC may not
be strategically sound, because a settlement proceeding should thereafter
still follow, if their intent is to recover from Ramon the properties alleged to
have been illegally transferred in his name. Be that as it may, the RTC, in the
exercise of its general jurisdiction, cannot be restrained from taking
cognizance of respondents' Complaint and Amended Complaint as the
145
[G.R. No. 169144. January 26, 2011.]
IN RE: IN THE MATTER OF THE PETITION TO APPROVE THE WILL OF RUPERTA
PALAGANAS WITH PRAYER FOR THE APPOINTMENT OF SPECIAL
ADMINISTRATOR,
MANUEL MIGUEL PALAGANAS and BENJAMIN GREGORIO PALAGANAS,
petitioners, vs. ERNESTO PALAGANAS, respondent.
ABAD, J p:
This case is about the probate before Philippine court of a will executed
abroad by a foreigner although it has not been probated in its place of
execution.
The Facts and the Case
On November 8, 2001 Ruperta C. Palaganas (Ruperta), a Filipino who
became a naturalized United States (U.S.) citizen, died single and childless.
In the last will and testament she executed in California, she designated her
brother, Sergio C. Palaganas (Sergio), as the executor of her will for she had
left properties in the Philippines and in the U.S.
On May 19, 2003 respondent Ernesto C. Palaganas (Ernesto), another
brother of Ruperta, filed with the Regional Trial Court (RTC) of Malolos,
Bulacan, a petition for the probate of Ruperta's will and for his appointment
as special administrator of her estate. 1 On October 15, 2003, however,
petitioners Manuel Miguel Palaganas (Manuel) and Benjamin Gregorio
Palaganas (Benjamin), nephews of Ruperta, opposed the petition on the
ground that Ruperta's will should not be probated in the Philippines but in
the U.S. where she executed it. Manuel and Benjamin added that, assuming
Ruperta's will could be probated in the Philippines, it is invalid nonetheless
for having been executed under duress and without the testator's full
understanding of the consequences of such act. Ernesto, they claimed, is
also not qualified to act as administrator of the estate.
Meantime, since Ruperta's foreign-based siblings, Gloria Villaluz and Sergio,
were on separate occasions in the Philippines for a short visit, respondent
Ernesto filed a motion with the RTC for leave to take their deposition, which
it granted. On April 13, 2004 the RTC directed the parties to submit their
memorandum on the issue of whether or not Ruperta's U.S. will may be
probated in and allowed by a court in the Philippines.
On June 17, 2004 the RTC issued an order: 2 (a) admitting to probate
Ruperta's last will; (b) appointing respondent Ernesto as special
administrator at the request of Sergio, the U.S.-based executor designated
in the will; and (c) issuing the Letters of Special Administration to Ernesto.
Aggrieved by the RTC's order, petitioner nephews Manuel and Benjamin
appealed to the Court of Appeals (CA), 3 arguing that an unprobated will
executed by an American citizen in the U.S. cannot be probated for the
first time in the Philippines.
On July 29, 2005 the CA rendered a decision, 4 affirming the assailed order
of the RTC, 5 holding that the RTC properly allowed the probate of the will,
subject to respondent Ernesto's submission of the authenticated copies of
the documents specified in the order and his posting of required bond. The
CA pointed out that Section 2, Rule 76 of the Rules of Court does not require
prior probate and allowance of the will in the country of its execution,
before it can be probated in the Philippines. The present case, said the CA,
is different from reprobate, which refers to a will already probated and
allowed abroad. Reprobate is governed by different rules or procedures.
Unsatisfied with the decision, Manuel and Benjamin came to this Court.
The Issue Presented
The key issue presented in this case is whether or not a will executed by a
foreigner abroad may be probated in the Philippines although it has not
been previously probated and allowed in the country where it was
executed.
The Court's Ruling
Petitioners Manuel and Benjamin maintain that wills executed by foreigners
abroad must first be probated and allowed in the country of its execution
before it can be probated here. This, they claim, ensures prior compliance
with the legal formalities of the country of its execution. They insist that local
courts can only allow probate of such wills if the proponent proves that: (a)
the testator has been admitted for probate in such foreign country, (b) the
will has been admitted to probate there under its laws, (c) the probate
court has jurisdiction over the proceedings, (d) the law on probate
procedure in that foreign country and proof of compliance with the same,
and (e) the legal requirements for the valid execution of a will.
But our laws do not prohibit the probate of wills executed by foreigners
abroad although the same have not as yet been probated and allowed in
the countries of their execution. A foreign will can be given legal effects in
our jurisdiction. Article 816 of the Civil Code states that the will of an alien
who is abroad produces effect in the Philippines if made in accordance
with the formalities prescribed by the law of the place where he resides, or
according to the formalities observed in his country. 6
In this connection, Section 1, Rule 73 of the 1997 Rules of Civil Procedure
provides that if the decedent is an inhabitant of a foreign country, the RTC
of the province where he has an estate may take cognizance of the
settlement of such estate. Sections 1 and 2 of Rule 76 further state that the
executor, devisee, or legatee named in the 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.
Our rules require merely that the petition for the allowance of a will must
show, so far as known to the petitioner: (a) the jurisdictional facts; (b) the
names, ages, and residences of the heirs, legatees, and devisees of the
testator or decedent; (c) the probable value and character of the property
of the estate; (d) the name of the person for whom letters are prayed; and
(e) if the will has not been delivered to the court, the name of the person
having custody of it. Jurisdictional facts refer to the fact of death of the
decedent, his residence at the time of his death in the province where the
probate court is sitting, or if he is an inhabitant of a foreign country, the
estate he left in such province. 7 The rules do not require proof that the
foreign will has already been allowed and probated in the country of its
execution.
In insisting that Ruperta's will should have been first probated and allowed
by the court of California, petitioners Manuel and Benjamin obviously have
in mind the procedure for the reprobate of will before admitting it here. But,
reprobate or re-authentication of a will already probated and allowed in a
foreign country is different from that probate where the will is presented for
the first time before a competent court. Reprobate is specifically governed
by Rule 77 of the Rules of Court. Contrary to petitioners' stance, since this
latter rule applies only to reprobate of a will, it cannot be made to apply to
the present case. In reprobate, the local court acknowledges as binding
the findings of the foreign probate court provided its jurisdiction over the
matter can be established.
Besides, petitioners' stand is fraught with impractically. If the instituted heirs
do not have the means to go abroad for the probate of the will, it is as good
as depriving them outright of their inheritance, since our law requires that
no will shall pass either real or personal property unless the will has been
proved and allowed by the proper court. 8
Notably, the assailed RTC order of June 17, 2004 is nothing more than an
initial ruling that the court can take cognizance of the petition for probate
of Ruperta's will and that, in the meantime, it was designating Ernesto as
special administrator of the estate. The parties have yet to present
evidence of the due execution of the will, i.e., the testator's state of mind
at the time of the execution and compliance with the formalities required
of wills by the laws of California. This explains the trial court's directive for
Ernesto to submit the duly authenticated copy of Ruperta's will and the
certified copies of the Laws of Succession and Probate of Will of California.
WHEREFORE, the Court DENIES the petition and AFFIRMSthe Court of
Appeals decision in CA-G.R. CV 83564 dated July 29, 2005.
SO ORDERED.
146
ARTICLE 847
[G.R. No. 8927. March 10, 1914.]
ASUNCION NABLE JOSE ET AL., plaintiffs-appellants, vs. MARIA IGNACIA
USON ET AT., defendants-appellees.
MORELAND, J p:
The question involved in this appeal arises from the interpretation of the first
and second clauses of a rodicil to the will of Filomena Uson. They read as
follows:
"First. I declare that all the property which belongs to me as conjugal
property, referred to in my said testament, shall be the property of my
aforesaid husband, Don Rafael Sison; in case all or part of said property
exists at my husband's death, it is my will that at his death my sisters and
nieces hereinafter named succeed him as heirs.
"Second. I declare to be my sisters in lawful wedlock the persons named
Doa Antonia Uson, now deceased, who has left two daughters called
Maria Rosario, widow, of Estanislao Lengson; Ignacia Uson, married to Don
Vicente Puzon; Eufemia Uson, now deceased, who is survived by three
daughters called Maria Salud, Maria Amparo, and Maria Asuncion; and
Maria Pilar Uson; Maria Manaoag Uson, unmarried, issue had by our
deceased father Don Daniel Uson with one Leonarda Fernandez, alias
Andao de Lingayen, so that they may have and enjoy it in equal parts as
good sisters and relatives."
The court below found that the children of the deceased sisters should take
only that portion which their respective mothers would have taken if they
had been alive at the time the will was made; that the property should be
divided into six equal parts corresponding to the number of sisters; that
each living sisters should take one-sixth, and the children of each deceased
sister should also take one-sixth, each one-sixth to be divided among said
children equally.
This appeal taken from the judgment entered upon that finding, appellants
asserting that under a proper construction of the paragraphs of the codicil
above-quoted the property should be divided equally between the living
sisters and the children of the deceased sisters, share and share alike, a
niece taking the same share that a sister receives.
We are of the opinion that the appellant's contention is well founded. We
see no words or phrases in the clauses quoted which lead necessarily to the
construction placed upon those paragraphs by the learned court below.
On the other hand, we find expression which seem to indicate with fair
clearness that it was the intention of the testatrix to divide her property
equally between her sisters and nieces. The court below based its
construction upon the theory that the other construction would be "an
admission that the testatrix desired to favor her deceased sister Eufemia
Uson, who left three children, more than her other deceased sister Antonia
Uson, who left two children, and moreover both would be more favored
than any of the other four surviving sisters, one of whom was married at the
time of the execution of the said codicil and without doubt had children."
As we look at the codicil we observe, first, that the testatrix, in the first
paragraph thereof, declares that after her husband's death she desires that
"my sisters and nieces, as hereinafter named, shall succeed him as heirs."
We note, in the second place, that the testatrix, in the second paragraph
of the codicil, names and identifies each one of her heirs then living, or
each one of the persons whom she desires shall succeed her husband in
the property. Among those mentioned specifically are the nieces as well as
the sisters. The nieces are referred to in no way different from the sisters.
Each one stands out in the second paragraph of the codicil as clearly as
the other and under exactly the same conditions.
In the third place, we note, with interest, the last clause of the second
paragraph of the codicil which, it seems to us, taken together with the last
clause of the first paragraph of the codicil, is decisive of the intention of the
testatrix. In the last clause she says that she names all of the persons whom
she desires to take under her will by name "so that they may take and enjoy
the property in equal parts as good sisters and relatives."
We have then in the first paragraph a declaration as to who the testatrix
desires shall become the owners of her property on the death of her
husband. Among them we find the names of the nieces as well as of the
sisters. We have also the final declaration of the testatrix that she desires
that the sisters and nieces shall take and enjoy the property in equal parts.
That being so, it appears to us that the testatrix's intention is fairly clear, so
clear in fact that it is unnecessary to bring in extraneous arguments to reach
a conclusion as to what she intended.
The judgment appealed from is hereby modified by declaring that, of the
property passing under the codicil hereinabove referred to, the living sisters
and the children of the deceased sisters shall take per capita and in equal
parts, and as so modified the judgment is affirmed. No costs in this instance.
147
ARTICLE 850
[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.
CASTRO, J p:
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-Meez, 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, 1969, 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, 1969 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, et 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-Meez,
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-Meez, 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
"V
"Kung ako ay bawian ng Dios ng buhay, ay aking ipinamamana ang aking
mga ari-ariang maiiwan, sa kaparaanang sumusunod:
148
"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 (1/2) 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 (1/2) 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 (1/2) 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 act which the court could legally do. Every court has the inherent power to
whatever false cause the testator may have written in his will for the amend and control its processes and orders so as to make them
institution of heirs. Such institution may be annulled only when one is conformable to law and justice. 6 That the court a quo has limited the
satisfied, after an examination of the will, that the testator clearly would not extent of the petitioners' intervention is also within its powers as articulated
have made the institution if he had known the cause for it to be false. Now, by the Rules of Court. 7
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 ACCORDINGLY, the present petition is denied, at petitioners cost.
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 de scribe 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 estate by intestacy a result which would subvert the clear wishes
of the decedent.
Whatever doubts one entertains in his mind should be swept away by these
explicit injunctions in the Civil Code: "The words of a will are to receive an
interpretation which will give to every expression some effect, rather than
one which will render any of the expressions inoperative; and of two modes
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
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, 1969, suffice it to state that, as borne by the records,
the subsequent orders complained of served merely to clarify the first an
149
ARTICLE 854
[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.
MENDOZA, J p:
These are petitions for review on certiorari of the decisions of the Thirteenth
and the Special Eight 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. LibLex
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 o'clock in the morning, copies of
which were served to Arturo de Santos Foundation, Inc. and Ms. Pacita de
los Reyes Phillips (Officer's 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.
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 petitioner's 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 (testator's
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.
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 respondent's motion, Judge Salvador Abad Santos of Branch
65 issued an order, dated June 28, 1996, appointing her as special
administrator of Dr. De Santos's estate. cda
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 testator's 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 petitioner's 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 petitioner's 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:
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.
150
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.
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 petitioner's 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 court's 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. prLL
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 respondent's
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 testator's 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.
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 testator's 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 testator's 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 testator's 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
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.
151
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 latter's 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: llcd
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.
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
decedent's estate is, therefore, not direct or immediate.
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 respondent's 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.
LibLex
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.
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 testator's
(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 testator's 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
152
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.

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.

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.

WHEREFORE, the petition is DENIED and the decisions of the Court of

Appeals are hereby AFFIRMED.

SO ORDERED.

153
[G.R. No. 72706. October 27, 1987.]
CONSTANTINO C. ACAIN, petitioner, vs. HON. INTERMEDIATE APPELLATE
COURT (Third Special Cases Division), VIRGINIA A. FERNANDEZ and ROSA
DIONGSON, respondents.
PARAS, J p:
This is a petition for review on certiorari of the decision * of respondent Court
of Appeals in AC-G.R. SP No. 05744 promulgated on August 30, 1985 (Rollo,
p. 108) ordering the dismissal of the petition in Special Proceedings No. 591-
A-CEB and its Resolution issued on October 23, 1985 (Rollo, p. 72) denying
respondents' (petitioners herein) motion for reconsideration.
The dispositive portion of the questioned decision reads as follows:
"WHEREFORE, the petition is hereby granted and respondent Regional Trial
Court of the Seventh Judicial Region, Branch XIII (Cebu City), is hereby
ordered to dismiss the petition in Special Proceedings No. 591-A-CEB. No
special pronouncement is made as to costs."
The antecedents of the case, based on the summary of the Intermediate
Appellate Court, now Court of Appeals, (Rollo, pp. 108-109) are as follows:
On May 29, 1984 petitioner Constantino Acain filed in the Regional Trial
Court of Cebu City Branch XIII, a petition for the probate of the will of the
late Nemesio Acain and for the issuance to the same petitioner of letters
testamentary, docketed as Special Proceedings No. 591-A-CEB (Rollo, p.
29), on the premise that Nemesio Acain died leaving a will in which
petitioner and his brothers Antonio, Flores and Jose and his sisters Anita,
Concepcion, Quirina and Laura were instituted as heirs. The will allegedly
executed by Nemesio Acain on February 17, 1960 was written in Bisaya
(Rollo, p. 27) with a translation in English (Rollo, p. 31) submitted by petitioner
without objection raised by private respondents. The will contained
provisions on burial rites, payment of debts, and the appointment of a
certain Atty. Ignacio G. Villagonzalo as the executor of the testament. On
the disposition of the testator's property, the will provided:
"THIRD: All my shares that I may receive from our properties, house, lands
and money which I earned jointly with my wife Rosa Diongson shall all be
given by me to my brother SEGUNDO ACAIN, Filipino, widower, of legal age
and presently residing at 357-C Sanciangko Street, Cebu City. In case my
brother Segundo Acain predeceases me, all the money properties, lands,
houses there in Bantayan and here in Cebu City which constitute my share
shall be given by me to his children, namely: Anita, Constantino,
Concepcion, Quirina, Laura, Flores, Antonio and Jose all surnamed Acain."
Obviously, Segundo pre-deceased Nemesio. Thus, it is the children of
Segundo who are claiming to be heirs, with Constantino as the petitioner in
Special Proceedings No. 591-A-CEB. LLphil
After the petition was set for hearing in the lower court on June 25, 1984 the
oppositors (respondents herein Virginia A. Fernandez, a legally adopted
daughter of the deceased and the latter's widow Rosa Diongson Vda. de
Acain) filed a motion to dismiss on the following grounds: (1) the petitioner
has no legal capacity to institute these proceedings; (2) he is merely a
universal heir and (3) the widow and the adopted daughter have been
preterited. (Rollo, p. 158). Said motion was denied by the trial judge.
After the denial of their subsequent motion for reconsideration in the lower
court, respondents filed with the Supreme Court a petition for certiorari and
prohibition with preliminary injunction which was subsequently referred to
the Intermediate Appellate Court by Resolution of the Court dated March
11, 1985 (Memorandum for Petitioner, p. 3; Rollo, p. 159).
Respondent Intermediate Appellate Court granted private respondents'
petition and ordered the trial court to dismiss the petition for the probate of
the will of Nemesio Acain in Special Proceedings No. 591-A-CEB.
His motion for reconsideration having been denied, petitioner filed this
present petition for the review of respondent Court's decision on December
18, 1985 (Rollo, p. 6). Respondents' Comment was filed on June 6, 1986
(Rollo, p. 146).
On August 11, 1986 the Court resolved to give due course to the petition
(Rollo, p. 153). Respondents' Memorandum was filed on September 22, 1986
(Rollo, p. 157); the Memorandum for petitioner was filed on September 29,
1986 (Rollo, p. 177).
Petitioner raises the following issues (Memorandum for Petitioner,
p. 4):
(A) The petition filed in AC-G.R. No. 05744 for certiorari and prohibition with
preliminary injunction is not the proper remedy under the premises;
(B) The authority of the probate courts is limited only to inquiring into the
extrinsic validity of the will sought to be probated and it cannot pass upon
the intrinsic validity thereof before it is admitted to probate;
(C) The will of Nemesio Acain is valid and must therefore, be admitted to
probate. The preterition mentioned in Article 854 of the New Civil Code
refers to preterition of "compulsory heirs in the direct line," and does not
apply to private respondents who are not compulsory heirs in the direct line;
their omission shall not annul the institution of heirs;
(D) DICAT TESTATOR ET ERIT LEX. What the testator says will be the law;
(E) There may be nothing in Article 854 of the New Civil Code that suggests
that mere institution of a universal heir in the will would give the heir so
instituted a share in the inheritance but there is a definite distinct intention
of the testator in the case at bar, explicitly expressed in his will. This is what
matters and should be inviolable.
(F) As an instituted heir, petitioner has the legal interest and standing to file
the petition in Sp. Proc. No. 591-A-CEB for probate of the will of Nemesio
Acain; and
(G) Article 854 of the New Civil Code is a bill of attainder. It is therefore
unconstitutional and ineffectual.
The pivotal issue in this case is whether or not private respondents have
been preterited. llcd
Article 854 of the Civil Code 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 devisees and legacies shall be valid insofar as they are not inofficious.
If the omitted compulsory heirs should die before the testator, the institution
shall be effectual, without prejudice to the right of representation."
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
(Nuguid v. Nuguid, 17 SCRA 450 [1966]; Maninang v. Court of Appeals, 114
SCRA 478 [1982]). Insofar as the widow is concerned, Article 854 of the Civil
Code may not apply as she does not ascend or descend from the testator,
although she is a compulsory heir. Stated otherwise, even if the surviving
spouse is a compulsory heir, there is no preterition even if she is omitted from
the inheritance, for she is not in the direct line. (Art. 854, Civil Code)
However, the same thing cannot be said of the other respondent Virginia
A. Fernandez, whose legal adoption by the testator has not been
questioned by petitioner (Memorandum for the Petitioner, pp. 8-9). Under
Article 39 of P.D. No. 603, known as the Child and Youth Welfare Code,
adoption gives to the adopted person the same rights and duties as if he
were a legitimate child of the adopter and makes the adopted person a
legal heir of the adopter. It cannot be denied that she was totally omitted
and preterited in the will of the testator and that both adopted child and
the widow were deprived of at least their legitime. Neither can it be denied
that they were not expressly disinherited. Hence, this is a clear case of
preterition of the legally adopted child.
Preterition annuls the institution of an heir and annulment throws open to
intestate succession the entire inheritance including "la porcion libre (que)
no hubiese dispuesto en virtual de legado, mejora o donacion" (Manresa,
as cited in Nuguid v. Nuguid, supra, Maninang v. Court of Appeals, 114
SCRA [1982]). The only provisions which do not result in intestacy are the
legacies and devises made in the will for they should stand valid and
respected, except insofar as the legitimes are concerned.
The universal institution of petitioner together with his brothers and sisters to
the entire inheritance of the testator results in totally abrogating the will
because the nullification of such institution of universal heirs - without any
other testamentary disposition in the will - amounts to a declaration that
154
nothing at all was written. Carefully worded and in clear terms, Article 854
of the Civil Code offers no leeway for inferential interpretation (Nuguid v.
Nuguid), supra. No legacies nor devises having been provided in the will
the whole property of the deceased has been left by universal title to
petitioner and his brothers and sisters. The effect of annulling the institution
of heirs will be, necessarily, the opening of a total intestacy (Neri v. Akutin,
74 Phil. 185 [1943]) except that proper legacies and devises must, as
already stated above, be respected.
We now deal with another matter. In order that a person may be allowed
to intervene in a probate proceeding he must have an interest in the estate,
or in the will, or in the property to be affected by it either as executor or as
a claimant of the estate and an interested party is one who would be
benefited by the estate such as an heir or one who has a claim against the
estate like a creditor (Sumilang v. Ramagosa, 21 SCRA 1369/1967).
Petitioner is not the appointed executor, neither a devisee or a legatee
there being no mention in the testamentary disposition of any gift of an
individual item of personal or real property he is called upon to receive
(Article 782, Civil Code). At the outset, he appears to have an interest in the
will as an heir, defined under Article 782 of the Civil Code as a person called
to the succession either by the provision of a will or by operation of law.
However, intestacy having resulted from the preterition of respondent
adopted child and the universal institution of heirs, petitioner is in effect not
an heir of the testator. He has no legal standing to petition for the probate
of the will left by the deceased and Special Proceedings No. 591-A-CEB
must be dismissed. Cdpr
The rule, however, is not inflexible and absolute. Under exceptional
circumstances, the probate court is not powerless to do what the situation
constrains it to do and pass upon certain provisions of the will
(Nepomuceno v. Court of Appeals, supra). In Nuguid v. Nuguid the
oppositors to the probate moved to dismiss on the ground of absolute
preterition. The probate court acting on the motion held that the will in
question was a complete nullity and dismissed the petition without costs.
On appeal the Supreme Court upheld the decision of the probate court,
induced by practical considerations. The Court said:
"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.
After all there exists a justiciable controversy crying for solution."
In Saguimsim v. Lindayag (6 SCRA 874 [1962]) the motion to dismiss the
petition by the surviving spouse was grounded on petitioner's lack of legal
capacity to institute the proceedings which was fully substantiated by the
evidence during the hearing held in connection with said motion. The Court
upheld the probate court's order of dismissal. LLpr
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 (Cayetano v. Leonidas, supra; Nuguid v.
Nuguid, supra). The remedies of certiorari and prohibition were properly
availed of by private respondents.
Thus, this Court ruled that where the grounds for dismissal are indubitable,
the defendants had the right to resort to the more speedy, and adequate
remedies of certiorari and prohibition to correct a grave abuse of
discretion, amounting to lack of jurisdiction, committed by the trial court in
not dismissing the case, (Vda. de Bacang v. Court of Appeals, supra) and
even assuming the existence of the remedy of appeal, the Court harkens
to the rule that in the broader interests of justice, a petition for certiorari may
be entertained, particularly where appeal would not afford speedy and
adequate relief. (Maninang v. Court of Appeals, supra). prcd
PREMISES CONSIDERED, the petition is hereby DENIED for lack of merit and
the questioned decision of respondent Court of Appeals promulgated on
August 30, 1985 and its Resolution dated October 23, 1985 are hereby
AFFIRMED.
SO ORDERED.

In Cayetano v. Leonidas, supra one of the issues raised in the motion to

As a general rule certiorari cannot be a substitute for appeal, except when
the questioned order is an oppressive exercise of judicial authority (People
v. Villanueva, 110 SCRA 465 [1981]; Vda. de Caldito v. Segundo, 117 SCRA
573 [1982]; Co Chuan Seng v. Court of Appeals, 128 SCRA 308 [1984]; and
Bautista v. Sarmiento, 138 SCRA 587 [1985]). It is axiomatic that the remedies
of certiorari and prohibition are not available where the petitioner has the
remedy of appeal or some other plain, speedy and adequate remedy in
the course of law (D.D. Comendador Construction Corporation v. Sayo (118
SCRA 590 [1982]). They are, however, proper remedies to correct a grave
abuse of discretion of the trial court in not dismissing a case where the
dismissal is founded on valid grounds (Vda. de Bacang v. Court of Appeals,
125 SCRA 137 [1983]).
Special Proceedings No. 591-CEB is for the probate of a will. As stated by
respondent Court, the general rule is that the probate court's authority is
limited only to the extrinsic validity of the will, the due execution thereof, the
testator'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.
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 (Nuguid v. Nuguid, 17
SCRA 449 [1966]; Sumilang v. Ramagosa, supra; Maninang v. Court of
Appeals, 114 SCRA 478 [1982]; Cayetano v. Leonidas, 129 SCRA 522 [1984];
and Nepomuceno v. Court of Appeals, 139 SCRA 206 [1985]).
dismiss the petition deals with the validity of the provisions of the will.
Respondent Judge allowed the probate of the will. The Court held that as
on its face the will appeared to have preterited the petitioner the
respondent judge should have denied its probate outright. Where
circumstances demand that intrinsic validity of testamentary provisions be
passed upon even before the extrinsic validity of the will is resolved, the
probate court should meet the issue. (Nepomuceno v. Court of Appeals,
supra; Nuguid v. Nuguid, supra).
In the instant case private respondents filed a motion to dismiss the petition
in Sp. Proceedings No. 591-CEB of the Regional Trial Court of Cebu on the
following grounds: (1) petitioner has no legal capacity to institute the
proceedings; (2) he is merely a universal heir; and (3) the widow and the
adopted daughter have been preterited (Rollo, p. 158). It was denied by
the trial court in an order dated January 21, 1985 for the reason that "the
grounds for the motion to dismiss are matters properly to be resolved after
a hearing on the issues in the course of the trial on the merits of the case
(Rollo, p. 32). A subsequent motion for reconsideration was denied by the
trial court on February 15, 1985 (Rollo, p. 109).
For private 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 as petitioner and his brothers and sisters were instituted as
universal heirs coupled with the obvious fact that one of the private
respondents had been preterited would have been an exercise in futility. It
155
[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.
TINGA, J p:
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. acCITS
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 Escao 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.
jur2005cda
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; ASHaTc
(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
latter's death. Thus, upon Don Julian's 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
156
The trial court ruled that at the time of Don Julian's 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 court's 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 Julian's two sets of heirs their
future legitimes in his estate except as regards his (Don Julian's) 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 and Don Julian himself could no longer dispose of
the same, including Lot No. 63. The disposition in the CFI decision constitutes
res judicata. 30 Don Julian could have disposed of only his conjugal share
in the Hacienda Medalla Milagrosa. 31
The appellate court likewise emphasized that nobody in his right judgment
would preterit his legal heirs by simply executing a document like the
Supplemental Deed which practically covers all properties which Don
Julian had reserved in favor of his heirs from the second marriage. It also
found out that the blanks reserved for the Book No. and Page No. at the
upper right corner of TCT No. T-375, "to identify the exact location where the
said title was registered or transferred," were not filled up, thereby indicating
that the TCT is "spurious and of dubious origin." 32
Aggrieved by the appellate court's decision, petitioner elevated it to this
Court via a petition for review on certiorari, raising pure questions of law.
DcaSIH
Before this Court, petitioner assigns as errors the following rulings of the
appellate court, to wit: (a) that future legitime can be determined,
adjudicated and reserved prior to the death of Don Julian; (b) that Don
Julian had no right to dispose of or assign Lot No. 63 to petitioner because
he reserved the same for his heirs from the second marriage pursuant to the
Compromise Agreement; (c) that the Supplemental Deed was tantamount
to a preterition of his heirs from the second marriage; and (d) that TCT No.
T-375 in the name of petitioner is spurious for not containing entries on the
Book No. and Page No. 33
While most of petitioner's legal arguments have merit, the application of the
appropriate provisions of law to the facts borne out by the evidence on
record nonetheless warrants the affirmance of the result reached by the
Court of Appeals in favor of respondents.
Being the key adjudicative provision, paragraph 13 of the Compromise
Agreement has to be quoted again:
13. That in the event of death of Julian L. Teves, the properties herein
adjudicated to Josefa Teves Escao 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)
With the quoted paragraph as basis, the Court of Appeals ruled that the
adjudication in favor of the heirs of Don Julian from the second marriage
became automatically operative upon the approval of the Compromise
Agreement, thereby vesting on them the right to validly dispose of Lot No.
63 in favor of respondents.
Petitioner argues that the appellate court erred in holding that future
legitime can be determined, adjudicated and reserved prior to the death
of Don Julian. The Court agrees. Our declaration in Blas v. Santos 34 is
relevant, where we defined future inheritance as any property or right not
in existence or capable of determination at the time of the contract, that
a person may in the future acquire by succession. Article 1347 of the New
Civil Code explicitly 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; HEcaIC
(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.
xxx xxx xxx
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
157
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 Julian's 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 Julian's desire along this line. 48 Hence, the total omission
from inheritance of Don Julian's heirs from the second marriage, a
requirement for preterition to exist, is hardly imaginable as it is unfounded.
IcESaA
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 court's ruling, the
appearance of a mere thumbmark of Don Julian instead of his signature in
the Supplemental Deed would not affect the validity of petitioner's 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 owner's duplicate upon entry of new certificate.
No voluntary instrument shall be registered by the Register of Deeds unless
the owner's 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)
xxx xxx xxx
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 owner's 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 owner's duplicate of
the grantor's 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 owner's 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. CIaHDc
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 owner's duplicate of OCT No. 5203 was
lost, a petition for the reconstitution of the said owner's duplicate was filed
in court, and the court issued an order for the reconstitution of the owner's
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
158
else. Since what was lost is the owner's copy of OCT No. 5203, only that
owner's copy could be ordered replaced. Thus, the Register of Deeds
exceeded his authority in issuing not just a reconstituted owner's 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 title even
designating the very number of the new transfer certificate of title itself
the 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 owner's 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:
xxx xxx xxx
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
latter's 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. HCacDE
From the properties at Bais
Adjudicated to Don Julian L. Teves
xxx xxx xxx
Lot No. 63, Tax Dec. No. 33, Certificate of Title No. 5203, together with all
improvements. Assessed value P2,720.00
xxx xxx xxx
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 petitioner's 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 mortgage 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. AcHCED
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.
159
[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.
AZCUNA, J p:
This is a petition for certiorari 1 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. IaEScC
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
proceedings 5 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. aDHCEA
SO ORDERED. 7
Petitioners' motion for reconsideration was denied by the RTC in its order
dated October 14, 1999.
Petitioners contend that:
160
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 mandated to proceed with the hearing of the testate case; and,
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
Lastly, the continuation of the proceedings in the intestate case will work
injustice to petitioners, and will render nugatory the disinheritance of
Alfredo. CDAHaE
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 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 heir 16 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. HSEIAT
161
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.

SO ORDERED.

162
(G.R. No. 165748, September 14, 2011)
Heirs of Policronio M. Ureta, Sr. vs. Heirs of Liberato M. Ureta
MENDOZA, J p:
These consolidated petitions for review on certiorari under Rule 45 of the
1997 Revised Rules of Civil Procedure assail the April 20, 2004 Decision 1 of
the Court of Appeals (CA), and its October 14, 2004 Resolution 2 in C.A.-
G.R. CV No. 71399, which affirmed with modification the April 26, 2001
Decision 3 of the Regional Trial Court, Branch 9, Kalibo, Aklan (RTC) in Civil
Case No. 5026.
The Facts
In his lifetime, Alfonso Ureta (Alfonso) begot 14 children, namely, Policronio,
Liberato, Narciso, Prudencia, Vicente, Francisco, Inocensio, Roque, Adela,
Wenefreda, Merlinda, Benedicto, Jorge, and Andres. The children of
Policronio (Heirs of Policronio), are opposed to the rest of Alfonso's children
and their descendants (Heirs of Alfonso).
Alfonso was financially well-off during his lifetime. He owned several
fishpens, a fishpond, a sari-sari store, a passenger jeep, and was engaged
in the buying and selling of copra. Policronio, the eldest, was the only child
of Alfonso who failed to finish schooling and instead worked on his father's
lands.
Sometime in October 1969, Alfonso and four of his children, namely,
Policronio, Liberato, Prudencia, and Francisco, met at the house of
Liberato. Francisco, who was then a municipal judge, suggested that in
order to reduce the inheritance taxes, their father should make it appear
that he had sold some of his lands to his children. Accordingly, Alfonso
executed four (4) Deeds of Sale covering several parcels of land in favor of
Policronio, 4 Liberato, 5 Prudencia, 6 and his common-law wife, Valeriana
Dela Cruz. 7 The Deed of Sale executed on October 25, 1969, in favor of
Policronio, covered six parcels of land, which are the properties in dispute
in this case.
Since the sales were only made for taxation purposes and no monetary
consideration was given, Alfonso continued to own, possess and enjoy the
lands and their produce.
When Alfonso died on October 11, 1972, Liberato acted as the
administrator of his father's estate. He was later succeeded by his sister
Prudencia, and then by her daughter, Carmencita Perlas. Except for a
portion of parcel 5, the rest of the parcels transferred to Policronio were
tenanted by the Fernandez Family. These tenants never turned over the
produce of the lands to Policronio or any of his heirs, but to Alfonso and,
later, to the administrators of his estate.
Policronio died on November 22, 1974. Except for the said portion of parcel
5, neither Policronio nor his heirs ever took possession of the subject lands.
On April 19, 1989, Alfonso's heirs executed a Deed of Extra-Judicial Partition,
8 which included all the lands that were covered by the four (4) deeds of
sale that were previously executed by Alfonso for taxation purposes.
Conrado, Policronio's eldest son, representing the Heirs of Policronio, signed
the Deed of Extra-Judicial Partition in behalf of his co-heirs. CAHTIS
After their father's death, the Heirs of Policronio found tax declarations in his
name covering the six parcels of land. On June 15, 1995, they obtained a
copy of the Deed of Sale executed on October 25, 1969 by Alfonso in favor
of Policronio.
Not long after, on July 30, 1995, the Heirs of Policronio allegedly learned
about the Deed of Extra-Judicial Partition involving Alfonso's estate when it
was published in the July 19, 1995 issue of the Aklan Reporter.
Believing that the six parcels of land belonged to their late father, and as
such, excluded from the Deed of Extra-Judicial Partition, the Heirs of
Policronio sought to amicably settle the matter with the Heirs of Alfonso.
Earnest efforts proving futile, the Heirs of Policronio filed a Complaint for
Declaration of Ownership, Recovery of Possession, Annulment of
Documents, Partition, and Damages 9 against the Heirs of Alfonso before
the RTC on November 17, 1995 where the following issues were submitted:
(1) whether or not the Deed of Sale was valid; (2) whether or not the Deed
of Extra-Judicial Partition was valid; and (3) who between the parties was
entitled to damages.
The Ruling of the RTC
On April 26, 2001, the RTC dismissed the Complaint of the Heirs of Policronio
and ruled in favor of the Heirs of Alfonso in a decision, the dispositive portion
of which reads:
WHEREFORE, the Court finds that the preponderance of evidence tilts in
favor of the defendants, hence the instant case is hereby DISMISSED.
The counterclaims are likewise DISMISSED.
With costs against plaintiffs.
SO ORDERED.
The RTC found that the Heirs of Alfonso clearly established that the Deed of
Sale was null and void. It held that the Heirs of Policronio failed to rebut the
evidence of the Heirs of Alfonso, which proved that the Deed of Sale in the
possession of the former was one of the four (4) Deeds of Sale executed by
Alfonso in favor of his 3 children and second wife for taxation purposes; that
although tax declarations were issued in the name of Policronio, he or his
heirs never took possession of the subject lands except a portion of parcel
5; and that all the produce were turned over by the tenants to Alfonso and
the administrators of his estate and never to Policronio or his heirs.
The RTC further found that there was no money involved in the sale. Even
granting that there was, as claimed by the Heirs of Policronio, P2,000.00 for
six parcels of land, the amount was grossly inadequate. It was also noted
that the aggregate area of the subject lands was more than double the
average share adjudicated to each of the other children in the Deed of
Extra-Judicial Partition; that the siblings of Policronio were the ones who
shared in the produce of the land; and that the Heirs of Policronio only paid
real estate taxes in 1996 and 1997. The RTC opined that Policronio must
have been aware that the transfer was merely for taxation purposes
because he did not subsequently take possession of the properties even
after the death of his father.
The Deed of Extra-Judicial Partition, on the other hand, was declared valid
by the RTC as all the heirs of Alfonso were represented and received equal
shares and all the requirements of a valid extra-judicial partition were met.
The RTC considered Conrado's claim that he did not understand the full
significance of his signature when he signed in behalf of his co-heirs, as a
gratutitous assertion. The RTC was of the view that when he admitted to
have signed all the pages and personally appeared before the notary
public, he was presumed to have understood their contents.
Lastly, neither party was entitled to damages. The Heirs of Alfonso failed to
present testimony to serve as factual basis for moral damages, no
document was presented to prove actual damages, and the Heirs of
Policronio were found to have filed the case in good faith.
The Ruling of the CA
Aggrieved, the Heirs of Policronio appealed before the CA, which rendered
a decision on April 20, 2004, the dispositive portion of which reads as follows:
WHEREFORE, the appeal is PARTIALLY GRANTED. The appealed Decision,
dated 26 April 2001, rendered by Hon. Judge Dean R. Telan of the Regional
Trial Court of Kalibo, Aklan, Branch 9, is hereby AFFIRMED with
MODIFICATION: ATEHDc
1.) The Deed of Sale in favor of Policronio Ureta, Sr., dated 25 October 1969,
covering six (6) parcels of land is hereby declared VOID for being
ABSOLUTELY SIMULATED;
2.) The Deed of Extra-Judicial Partition, dated 19 April 1989, is ANNULLED;
3.) The claim for actual and exemplary damages are DISMISSED for lack of
factual and legal basis.
The case is hereby REMANDED to the court of origin for the proper partition
of ALFONSO URETA'S Estate in accordance with Rule 69 of the 1997 Rules of
Civil Procedure. No costs at this instance.
SO ORDERED.
The CA affirmed the finding of the RTC that the Deed of Sale was void. It
found the Deed of Sale to be absolutely simulated as the parties did not
intend to be legally bound by it. As such, it produced no legal effects and
did not alter the juridical situation of the parties. The CA also noted that
Alfonso continued to exercise all the rights of an owner even after the
execution of the Deed of Sale, as it was undisputed that he remained in
possession of the subject parcels of land and enjoyed their produce until his
death.
Policronio, on the other hand, never exercised any rights pertaining to an
owner over the subject lands from the time they were sold to him up until
his death. He never took or attempted to take possession of the land even
after his father's death, never demanded delivery of the produce from the
tenants, and never paid realty taxes on the properties. It was also noted
that Policronio never disclosed the existence of the Deed of Sale to his
children, as they were, in fact, surprised to discover its existence. The CA,
thus, concluded that Policronio must have been aware that the transfer
was only made for taxation purposes.
The testimony of Amparo Castillo, as to the circumstances surrounding the
actual arrangement and agreement between the parties prior to the
execution of the four (4) Deeds of Sale, was found by the CA to be
unrebutted. The RTC's assessment of the credibility of her testimony was
accorded respect, and the intention of the parties was given the primary
consideration in determining the true nature of the contract. ISHCcT
163
Contrary to the finding of the RTC though, the CA annulled the Deed of
Extra-Judicial Partition due to the incapacity of one of the parties to give
his consent to the contract. It held that before Conrado could validly bind
his co-heirs to the Deed of Extra-Judicial Partition, it was necessary that he
be clothed with the proper authority. The CA ruled that a special power of
attorney was required under Article 1878 (5) and (15) of the Civil
Code.Without a special power of attorney, it was held that Conrado lacked
the legal capactiy to give the consent of his co-heirs, thus, rendering the
Deed of Extra-Judicial Partition voidable under Article 1390 (1) of the Civil
Code.
As a consequence, the CA ordered the remand of the case to the RTC for
the proper partition of the estate, with the option that the parties may still
voluntarily effect the partition by executing another agreement or by
adopting the assailed Deed of Partition with the RTC's approval in either
case. Otherwise, the RTC may proceed with the compulsory partition of the
estate in accordance with the Rules.
With regard to the claim for damages, the CA agreed with the RTC and
dismissed the claim for actual and compensatory damages for lack of
factual and legal basis.
Both parties filed their respective Motions for Reconsideration, which were
denied by the CA for lack of merit in a Resolution dated October 14, 2004.
In their Motion for Reconsideration, the Heirs of Policronio argued that the
RTC violated the best evidence rule in giving credence to the testimony of
Amparo Castillo with regard to the simulation of the Deed of Sale, and that
prescription had set in precluding any question on the validity of the
contract.
The CA held that the oral testimony was admissible under Rule 130, Section
9 (b) and (c), which provides that evidence aliunde may be allowed to
explain the terms of the written agreement if the same failed to express the
true intent and agreement of the parties thereto, or when the validity of the
written agreement was put in issue. Furthermore, the CA found that the Heirs
of Policronio waived their right to object to evidence aliunde having failed
to do so during trial and for raising such only for the first time on appeal.
With regard to prescription, the CA ruled that the action or defense for the
declaration of the inexistence of a contract did not prescribe under Article
1410 of the Civil Code.
On the other hand, the Heirs of Alfonso argued that the Deed of Extra-
Judicial Partition should not have been annulled, and instead the preterited
heirs should be given their share. The CA reiterated that Conrado's lack of
capacity to give his co-heirs' consent to the extra-judicial settlement
rendered the same voidable.
Hence, the present Petitions for Review on Certiorari.
The Issues
The issues presented for resolution by the Heirs of Policronio in G.R. No.
165748 are as follows:
I.
Whether the Court of Appeals is correct in ruling that the Deed of Absolute
Sale of 25 October 1969 is void for being absolutely fictitious and in relation
therewith, may parol evidence be entertained to thwart its binding effect
after the parties have both died?
Assuming that indeed the said document is simulated, whether or not the
parties thereto including their successors in interest are estopped to
question its validity, they being bound by Articles 1412 and 1421 of the Civil
Code?
II.
Whether prescription applies to bar any question respecting the validity of
the Deed of Absolute Sale dated 25 October 1969? Whether prescription
applies to bar any collateral attack on the validity of the deed of absolute
sale executed 21 years earlier?
III.
Whether the Court of Appeals correctly ruled in nullifying the Deed of
Extrajudicial Partition because Conrado Ureta signed the same without the
written authority from his siblings in contravention of Article 1878 in relation
to Article 1390 of the Civil Code and in relation therewith, whether the
defense of ratification and/or preterition raised for the first time on appeal
may be entertained? DTIaHE
The issues presented for resolution by the Heirs of Alfonso in G.R. No. 165930
are as follows:
I.
Whether or not grave error was committed by the Trial Court and Court of
Appeals in declaring the Deed of Sale of subject properties as absolutely
simulated and null and void thru parol evidence based on their factual
findings as to its fictitious nature, and there being waiver of any objection
based on violation of the parol evidence rule.
II.
Whether or not the Court of Appeals was correct in holding that Conrado
Ureta's lack of capacity to give his co-heirs' consent to the Extra-Judicial
Partition rendered the same voidable.
III.
Granting arguendo that Conrado Ureta was not authorized to represent his
co-heirs and there was no ratification, whether or not the Court of Appeals
was correct in ordering the remand of the case to the Regional Trial Court
for partition of the estate of Alfonso Ureta.
IV.
Since the sale in favor of Policronio Ureta Sr. was null and void ab initio, the
properties covered therein formed part of the estate of the late Alfonso
Ureta and was correctly included in the Deed of Extrajudicial Partition even
if no prior action for nullification of the sale was filed by the heirs of Liberato
Ureta.
V.
Whether or not the heirs of Policronio Ureta Sr. can claim that estoppel
based on Article 1412 of the Civil Code as well as the issue of prescription
can still be raised on appeal.
These various contentions revolve around two major issues, to wit: (1)
whether the Deed of Sale is valid, and (2) whether the Deed of Extra-
Judicial Partition is valid. Thus, the assigned errors shall be discussed jointly
and in seriatim.
The Ruling of the Court
Validity of the Deed of Sale
Two veritable legal presumptions bear on the validity of the Deed of Sale:
(1) that there was sufficient consideration for the contract; and (2) that it
was the result of a fair and regular private transaction. If shown to hold,
these presumptions infer prima facie the transaction's validity, except that
it must yield to the evidence adduced. 10
As will be discussed below, the evidence overcomes these two
presumptions.
Absolute Simulation
First, the Deed of Sale was not the result of a fair and regular private
transaction because it was absolutely simulated. CTacSE
The Heirs of Policronio argued that the land had been validly sold to
Policronio as the Deed of Sale contained all the essential elements of a
valid contract of sale, by virtue of which, the subject properties were
transferred in his name as evidenced by the tax declaration. There being
no invalidation prior to the execution of the Deed of Extra-Judicial Partition,
the probity and integrity of the Deed of Sale should remain undiminished
and accorded respect as it was a duly notarized public instrument.
The Heirs of Policronio posited that his loyal services to his father and his
being the eldest among Alfonso's children, might have prompted the old
man to sell the subject lands to him at a very low price as an advance
inheritance. They explained that Policronio's failure to take possession of the
subject lands and to claim their produce manifests a Filipino family practice
wherein a child would take possession and enjoy the fruits of the land sold
by a parent only after the latter's death. Policronio simply treated the lands
the same way his father Alfonso treated them where his children enjoyed
usufructuary rights over the properties, as opposed to appropriating them
exclusively to himself. They contended that Policronio's failure to take
actual possession of the lands did not prove that he was not the owner as
he was merely exercising his right to dispose of them. They argue that it was
an error on the part of the CA to conclude that ownership by Policronio was
not established by his failure to possess the properties sold. Instead,
emphasis should be made on the fact that the tax declarations, being
indicia of possession, were in Policronio's name.
They further argued that the Heirs of Alfonso failed to appreciate that the
Deed of Sale was clear enough to convey the subject parcels of land.
Citing jurisprudence, they contend that there is a presumption that an
instrument sets out the true agreement of the parties thereto and that it was
executed for valuable consideration, 11 and where there is no doubt as to
the intention of the parties to a contract, the literal meaning of the
stipulation shall control. 12 Nowhere in the Deed of Sale is it indicated that
the transfer was only for taxation purposes. On the contrary, the document
164
clearly indicates that the lands were sold. Therefore, they averred that the
literal meaning of the stipulation should control.
The Court disagrees.
The Court finds no cogent reason to deviate from the finding of the CA that
the Deed of Sale is null and void for being absolutely simulated. The Civil
Code provides: EcICSA
Art. 1345. Simulation of a contract may be absolute or relative. The former
takes place when the parties do not intend to be bound at all; the latter,
when the parties conceal their true agreement.
Art. 1346. An absolutely simulated or fictitious contract is void. A relative
simulation, when it does not prejudice a third person and is not intended for
any purpose contrary to law, morals, good customs, public order or public
policy binds the parties to their real agreement.
Valerio v. Refresca 13 is instructive on the matter of simulation of contracts:
In absolute simulation, there is a colorable contract but it has no substance
as the parties have no intention to be bound by it. The main characteristic
of an absolute simulation is that the apparent contract is not really desired
or intended to produce legal effect or in any way alter the juridical situation
of the parties. As a result, an absolutely simulated or fictitious contract is
void, and the parties may recover from each other what they may have
given under the contract. However, if the parties state a false cause in the
contract to conceal their real agreement, the contract is relatively
simulated and the parties are still bound by their real agreement. Hence,
where the essential requisites of a contract are present and the simulation
refers only to the content or terms of the contract, the agreement is
absolutely binding and enforceable between the parties and their
successors in interest.
Lacking, therefore, in an absolutely simulated contract is consent which is
essential to a valid and enforceable contract. 14 Thus, where a person, in
order to place his property beyond the reach of his creditors, simulates a
transfer of it to another, he does not really intend to divest himself of his title
and control of the property; hence, the deed of transfer is but a sham. 15
Similarly, in this case, Alfonso simulated a transfer to Policronio purely for
taxation purposes, without intending to transfer ownership over the subject
lands.
The primary consideration in determining the true nature of a contract is the
intention of the parties. If the words of a contract appear to contravene
the evident intention of the parties, the latter shall prevail. Such intention is
determined not only from the express terms of their agreement, but also
from the contemporaneous and subsequent acts of the parties. 16 The true
intention of the parties in this case was sufficiently proven by the Heirs of
Alfonso.
The Heirs of Alfonso established by a preponderance of evidence 17 that
the Deed of Sale was one of the four (4) absolutely simulated Deeds of Sale
which involved no actual monetary consideration, executed by Alfonso in
favor of his children, Policronio, Liberato, and Prudencia, and his second
wife, Valeriana, for taxation purposes.
Amparo Castillo, the daughter of Liberato, testified, to wit:
Q: Now sometime in the year 1969 can you recall if your grandfather and
his children [met] in your house?
A: Yes sir, that was sometime in October 1969 when they [met] in our house,
my grandfather, my late uncle Policronio Ureta, my late uncle Liberato
Ureta, my uncle Francisco Ureta, and then my auntie Prudencia Ureta they
talk[ed] about, that idea came from my uncle Francisco Ureta to [sell] some
parcels of land to his children to lessen the inheritance tax whatever
happened to my grandfather, actually no money involved in this sale.
Q: Now you said there was that agreement, verbal agreement. [W]here
were you when this Alfonso Ureta and his children gather[ed] in your house?
A: I was near them in fact I heard everything they were talking [about]
xxx xxx xxx
Q: Were there documents of sale executed by Alfonso Ureta in furtherance
of their verbal agreement?
A: Yes sir.
Q: To whom in particular did your grandfather Alfonso Ureta execute this
deed of sale without money consideration according to you?
A: To my uncle Policronio Ureta and to Prudencia Ureta Panadero.
Q: And who else? aTADCE
A: To Valeriana dela Cruz.
Q: How about your father?
A: He has. 18
The other Deeds of Sale executed by Alfonso in favor of his children
Prudencia and Liberato, and second wife Valeriana, all bearing the same
date of execution, were duly presented in evidence by the Heirs of Alfonso,
and were uncontested by the Heirs of Policronio. The lands which were the
subject of these Deeds of Sale were in fact included in the Deed of Extra-
Judicial Partition executed by all the heirs of Alfonso, where it was expressly
stipulated:
That the above-named Amparo U. Castillo, Prudencia U. Paradero,
Conrado B. Ureta and Merlinda U. Rivera do hereby recognize and
acknowledge as a fact that the properties presently declared in their
respective names or in the names of their respective parents and are
included in the foregoing instrument are actually the properties of the
deceased Alfonso Ureta and were transferred only for the purpose of
effective administration and development and convenience in the
payment of taxes and, therefore, all instruments conveying or affecting the
transfer of said properties are null and void from the beginning. 19
As found by the CA, Alfonso continued to exercise all the rights of an owner
even after the execution of the Deeds of Sale. It was undisputed that
Alfonso remained in possession of the subject lands and enjoyed their
produce until his death. No credence can be given to the contention of
the Heirs of Policrionio that their father did not take possession of the subject
lands or enjoyed the fruits thereof in deference to a Filipino family practice.
Had this been true, Policronio should have taken possession of the subject
lands after his father died. On the contrary, it was admitted that neither
Policronio nor his heirs ever took possession of the subject lands from the
time they were sold to him, and even after the death of both Alfonso and
Policronio.
It was also admitted by the Heirs of Policronio that the tenants of the subject
lands never turned over the produce of the properties to Policronio or his
heirs but only to Alfonso and the administrators of his estate. Neither was
there a demand for their delivery to Policronio or his heirs. Neither did
Policronio ever pay real estate taxes on the properties, the only payment
on record being those made by his heirs in 1996 and 1997 ten years after his
death. In sum, Policronio never exercised any rights pertaining to an owner
over the subject lands. cEDIAa
The most protuberant index of simulation of contract is the complete
absence of an attempt in any manner on the part of the ostensible buyer
to assert rights of ownership over the subject properties. Policronio's failure
to take exclusive possession of the subject properties or, in the alternative,
to collect rentals, is contrary to the principle of ownership. Such failure is a
clear badge of simulation that renders the whole transaction void. 20
It is further telling that Policronio never disclosed the existence of the Deed
of Sale to his children. This, coupled with Policronio's failure to exercise any
rights pertaining to an owner of the subject lands, leads to the conclusion
that he was aware that the transfer was only made for taxation purposes
and never intended to bind the parties thereto.
As the above factual circumstances remain unrebutted by the Heirs of
Policronio, the factual findings of the RTC, which were affirmed by the CA,
remain binding and conclusive upon this Court. 21
It is clear that the parties did not intend to be bound at all, and as such, the
Deed of Sale produced no legal effects and did not alter the juridical
situation of the parties. The Deed of Sale is, therefore, void for being
absolutely simulated pursuant to Article 1409 (2) of the Civil Code which
provides:
Art. 1409. The following contracts are inexistent and void from the
beginning:
xxx xxx xxx
(2) Those which are absolutely simulated or fictitious;
xxx xxx xxx
For guidance, the following are the most fundamental characteristics of
void or inexistent contracts:
1) As a general rule, they produce no legal effects whatsoever in
accordance with the principle "quod nullum est nullum producit effectum."
2) They are not susceptible of ratification.
3) The right to set up the defense of inexistence or absolute nullity cannot
be waived or renounced.
165

4) The action or defense for the declaration of their inexistence or absolute
nullity is imprescriptible.
5) The inexistence or absolute nullity of a contract cannot be invoked by a
person whose interests are not directly affected. 22
Since the Deed of Sale is void, the subject properties were properly
included in the Deed of Extra-Judicial Partition of the estate of Alfonso.
Absence and Inadequacy of Consideration
The second presumption is rebutted by the lack of consideration for the
Deed of Sale.
In their Answer, 23 the Heirs of Alfonso initially argued that the Deed of Sale
was void for lack of consideration, and even granting that there was
consideration, such was inadequate. The Heirs of Policronio counter that
the defenses of absence or inadequacy of consideration are not grounds
to render a contract void.
The Heirs of Policronio contended that under Article 1470 of the Civil Code,
gross inadequacy of the price does not affect a contract of sale, except
as it may indicate a defect in the consent, or that the parties really intended
a donation or some other act or contract. Citing jurisprudence, they argued
that inadequacy of monetary consideration does not render a
conveyance inexistent as liberality may be sufficient cause for a valid
contract, whereas fraud or bad faith may render it either rescissible or
voidable, although valid until annulled. 24 Thus, they argued that if the
contract suffers from inadequate consideration, it remains valid until
annulled, and the remedy of rescission calls for judicial intervention, which
remedy the Heirs of Alfonso failed to take.
It is further argued that even granting that the sale of the subject lands for
a consideration of P2,000.00 was inadequate, absent any evidence of the
fair market value of the land at the time of its sale, it cannot be concluded
that the price at which it was sold was inadequate. 25 As there is nothing in
the records to show that the Heirs of Alfonso supplied the true value of the
land in 1969, the amount of P2,000.00 must thus stand as its saleable value.
On this issue, the Court finds for the Heirs of Alfonso.
For lack of consideration, the Deed of Sale is once again found to be void.
It states that Policronio paid, and Alfonso received, the P2,000.00 purchase
price on the date of the signing of the contract: cISAHT
That I, ALFONSO F. URETA, . . . for and in consideration of the sum of TWO
THOUSAND (P2,000.00) PESOS, Philippine Currency, to me in hand paid by
POLICRONIO M. URETA, . . . , do hereby CEDE, TRANSFER, and CONVEY, by
way of absolute sale, . . . six (6) parcels of land . . . . 26 [Emphasis ours]
Although, on its face, the Deed of Sale appears to be supported by
valuable consideration, the RTC found that there was no money involved
in the sale. 27 This finding was affirmed by the CA in ruling that the sale is
void for being absolutely simulated. Considering that there is no cogent
reason to deviate from such factual findings, they are binding on this Court.
It is well-settled in a long line of cases that where a deed of sale states that
the purchase price has been paid but in fact has never been paid, the
deed of sale is null and void for lack of consideration. 28 Thus, although the
contract states that the purchase price of P2,000.00 was paid by Policronio
to Alfonso for the subject properties, it has been proven that such was never
in fact paid as there was no money involved. It must, therefore, follow that
the Deed of Sale is void for lack of consideration.
Given that the Deed of Sale is void, it is unnecessary to discuss the issue on
the inadequacy of consideration.
Parol Evidence and Hearsay
The Heirs of Policronio aver that the rules on parol evidence and hearsay
were violated by the CA in ruling that the Deed of Sale was void.
They argued that based on the parol evidence rule, the Heirs of Alfonso
and, specifically, Amparo Castillo, were not in a position to prove the terms
outside of the contract because they were not parties nor successors-in-
interest in the Deed of Sale in question. Thus, it is argued that the testimony
of Amparo Castillo violates the parol evidence rule.
Stemming from the presumption that the Heirs of Alfonso were not parties
to the contract, it is also argued that the parol evidence rule may not be
properly invoked by either party in the litigation against the other, where at
least one of the parties to the suit is not a party or a privy of a party to the
written instrument in question and does not base a claim on the instrument
or assert a right originating in the instrument or the relation established
thereby. 29
Their arguments are untenable. HCaDIS
The objection against the admission of any evidence must be made at the
proper time, as soon as the grounds therefor become reasonably
apparent, and if not so made, it will be understood to have been waived.
In the case of testimonial evidence, the objection must be made when the
objectionable question is asked or after the answer is given if the
objectionable features become apparent only by reason of such answer.
30 In this case, the Heirs of Policronio failed to timely object to the testimony
of Amparo Castillo and they are, thus, deemed to have waived the benefit
of the parol evidence rule.
Granting that the Heirs of Policronio timely objected to the testimony of
Amparo Castillo, their argument would still fail.
Section 9 of Rule 130 of the Rules of Court provides:
Section 9. Evidence of written agreements. When the terms of an
agreement have been reduced to writing, it is considered as containing all
the terms agreed upon and there can be, between the parties and their
successors in interest, no evidence of such terms other than the contents of
the written agreement.
However, a party may present evidence to modify, explain or add to the
terms of written agreement if he puts in issue in his pleading:
(a) An intrinsic ambiguity, mistake or imperfection in the written agreement;
(b) The failure of the written agreement to express the true intent and
agreement of the parties thereto;
(c) The validity of the written agreement; or
(d) The existence of other terms agreed to by the parties or their successors
in interest after the execution of the written agreement.
The term "agreement" includes wills.
[Emphasis ours]
Paragraphs (b) and (c) are applicable in the case at bench.
The failure of the Deed of Sale to express the true intent and agreement of
the parties was clearly put in issue in the Answer 31 of the Heirs of Alfonso to
the Complaint. It was alleged that the Deed of Sale was only made to
lessen the payment of estate and inheritance taxes and not meant to
transfer ownership. The exception in paragraph (b) is allowed to enable the
court to ascertain the true intent of the parties, and once the intent is clear,
it shall prevail over what the document appears to be on its face. 32 As the
true intent of the parties was duly proven in the present case, it now prevails
over what appears on the Deed of Sale.
The validity of the Deed of Sale was also put in issue in the Answer, and was
precisely one of the issues submitted to the RTC for resolution. 33 The
operation of the parol evidence rule requires the existence of a valid written
agreement. It is, thus, not applicable in a proceeding where the validity of
such agreement is the fact in dispute, such as when a contract may be
void for lack of consideration. 34 Considering that the Deed of Sale has
been shown to be void for being absolutely simulated and for lack of
consideration, the Heirs of Alfonso are not precluded from presenting
evidence to modify, explain or add to the terms of the written agreement.
The Heirs of Policronio must be in a state of confusion in arguing that the
Heirs of Alfonso may not question the Deed of Sale for not being parties or
successors-in-interest therein on the basis that the parol evidence rule may
not be properly invoked in a proceeding or litigation where at least one of
the parties to the suit is not a party or a privy of a party to the written
instrument in question and does not base a claim on the instrument or assert
a right originating in the instrument or the relation established thereby. If
their argument was to be accepted, then the Heirs of Policronio would
themselves be precluded from invoking the parol evidence rule to exclude
the evidence of the Heirs of Alfonso.
Indeed, the applicability of the parol evidence rule requires that the case
be between parties and their successors-in-interest. 35 In this case, both the
Heirs of Alfonso and the Heirs of Policronio are successors-in-interest of the
parties to the Deed of Sale as they claim rights under Alfonso and Policronio,
respectively. The parol evidence rule excluding evidence aliunde,
however, still cannot apply because the present case falls under two
exceptions to the rule, as discussed above.
With respect to hearsay, the Heirs of Policronio contended that the rule on
hearsay was violated when the testimony of Amparo Castillo was given
weight in proving that the subject lands were only sold for taxation purposes
as she was a person alien to the contract. Even granting that they did not
object to her testimony during trial, they argued that it should not have
been appreciated by the CA because it had no probative value
whatsoever. 36
The Court disagrees.
It has indeed been held that hearsay evidence whether objected to or not
cannot be given credence for having no probative value. 37 This principle,
however, has been relaxed in cases where, in addition to the failure to
object to the admissibility of the subject evidence, there were other pieces
of evidence presented or there were other circumstances prevailing to
support the fact in issue. In Top-Weld Manufacturing, Inc. v. ECED S.A., 38
this Court held: cTEICD
166
Hearsay evidence alone may be insufficient to establish a fact in an
injunction suit (Parker v. Furlong, 62 P. 490) but, when no objection is made
thereto, it is, like any other evidence, to be considered and given the
importance it deserves. (Smith v. Delaware & Atlantic Telegraph &
Telephone Co., 51 A 464). Although we should warn of the undesirability of
issuing judgments solely on the basis of the affidavits submitted, where as
here, said affidavits are overwhelming, uncontroverted by competent
evidence and not inherently improbable, we are constrained to uphold the
allegations of the respondents regarding the multifarious violations of the
contracts made by the petitioner.
In the case at bench, there were other prevailing circumstances which
corroborate the testimony of Amparo Castillo. First, the other Deeds of Sale
which were executed in favor of Liberato, Prudencia, and Valeriana on the
same day as that of Policronio's were all presented in evidence. Second, all
the properties subject therein were included in the Deed of Extra-Judicial
Partition of the estate of Alfonso. Third, Policronio, during his lifetime, never
exercised acts of ownership over the subject properties (as he never
demanded or took possession of them, never demanded or received the
produce thereof, and never paid real estate taxes thereon). Fourth,
Policronio never informed his children of the sale.
As the Heirs of Policronio failed to controvert the evidence presented, and
to timely object to the testimony of Amparo Castillo, both the RTC and the
CA correctly accorded probative weight to her testimony.
Prior Action Unnecessary
The Heirs of Policronio averred that the Heirs of Alfonso should have filed an
action to declare the sale void prior to executing the Deed of Extra-Judicial
Partition. They argued that the sale should enjoy the presumption of
regularity, and until overturned by a court, the Heirs of Alfonso had no
authority to include the land in the inventory of properties of Alfonso's
estate. By doing so, they arrogated upon themselves the power of
invalidating the Deed of Sale which is exclusively vested in a court of law
which, in turn, can rule only upon the observance of due process. Thus, they
contended that prescription, laches, or estoppel have set in to militate
against assailing the validity of the sale.
The Heirs of Policronio are mistaken.
A simulated contract of sale is without any cause or consideration, and is,
therefore, null and void; in such case, no independent action to rescind or
annul the contract is necessary, and it may be treated as non-existent for
all purposes. 39 A void or inexistent contract is one which has no force and
effect from the beginning, as if it has never been entered into, and which
cannot be validated either by time or ratification. A void contract produces
no effect whatsoever either against or in favor of anyone; it does not
create, modify or extinguish the juridical relation to which it refers. 40
Therefore, it was not necessary for the Heirs of Alfonso to first file an action
to declare the nullity of the Deed of Sale prior to executing the Deed of
Extra-Judicial Partition.
Personality to Question Sale
The Heirs of Policronio contended that the Heirs of Alfonso are not parties,
heirs, or successors-in-interest under the contemplation of law to clothe
them with the personality to question the Deed of Sale. They argued that
under Article 1311 of the Civil Code, contracts take effect only between
the parties, their assigns and heirs. Thus, the genuine character of a
contract which personally binds the parties cannot be put in issue by a
person who is not a party thereto. They posited that the Heirs of Alfonso
were not parties to the contract; neither did they appear to be
beneficiaries by way of assignment or inheritance. Unlike themselves who
are direct heirs of Policronio, the Heirs of Alfonso are not Alfonso's direct
heirs. For the Heirs of Alfonso to qualify as parties, under Article 1311 of the
Civil Code, they must first prove that they are either heirs or assignees. Being
neither, they have no legal standing to question the Deed of Sale.
They further argued that the sale cannot be assailed for being barred under
Article 1421 of the Civil Code which provides that the defense of illegality
of a contract is not available to third persons whose interests are not directly
affected.
Again, the Court disagrees.
Article 1311 and Article 1421 of the Civil Code provide:
Art. 1311. Contracts take effect only between the parties, their assigns and
heirs, . . .
Art. 1421. The defense of illegality of contracts is not available to third
persons whose interests are not directly affected.
The right to set up the nullity of a void or non-existent contract is not limited
to the parties, as in the case of annullable or voidable contracts; it is
extended to third persons who are directly affected by the contract. Thus,
where a contract is absolutely simulated, even third persons who may be
prejudiced thereby may set up its inexistence. 41 The Heirs of Alfonso are
the children of Alfonso, with his deceased children represented by their
children (Alfonso's grandchildren). The Heirs of Alfonso are clearly his heirs
and successors-in-interest and, as such, their interests are directly affected,
thereby giving them the right to question the legality of the Deed of Sale.
CHTcSE
Inapplicability of Article 842
The Heirs of Policronio further argued that even assuming that the Heirs of
Alfonso have an interest in the Deed of Sale, they would still be precluded
from questioning its validity. They posited that the Heirs of Alfonso must first
prove that the sale of Alfonso's properties to Policronio substantially
diminished their successional rights or that their legitimes would be unduly
prejudiced, considering that under Article 842 of the Civil Code, one who
has compulsory heirs may dispose of his estate provided that he does not
contravene the provisions of the Civil Code with regard to the legitime of
said heirs. Having failed to do so, they argued that the Heirs of Alfonso
should be precluded from questioning the validity of the Deed of Sale.
Still, the Court disagrees.
Article 842 of the Civil Code provides:
Art. 842. 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.
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.
This article refers to the principle of freedom of disposition by will. What is
involved in the case at bench is not a disposition by will but by Deed of Sale.
Hence, the Heirs of Alfonso need not first prove that the disposition
substantially diminished their successional rights or unduly prejudiced their
legitimes.
Inapplicability of Article 1412
The Heirs of Policronio contended that even assuming that the contract was
simulated, the Heirs of Alfonso would still be barred from recovering the
properties by reason of Article 1412 of the Civil Code, which provides that if
the act in which the unlawful or forbidden cause does not constitute a
criminal offense, and the fault is both on the contracting parties, neither
may recover what he has given by virtue of the contract or demand the
performance of the other's undertaking. As the Heirs of Alfonso alleged that
the purpose of the sale was to avoid the payment of inheritance taxes, they
cannot take from the Heirs of Policronio what had been given to their
father.
On this point, the Court again disagrees. EHSIcT
Article 1412 of the Civil Code is as follows:
Art. 1412. If the act in which the unlawful or forbidden cause consists does
not constitute a criminal offense, the following rules shall be observed:
(1) When the fault is on the part of both contracting parties, neither may
recover what he has given by virtue of the contract, or demand the
performance of the other's undertaking;
(2) When only one of the contracting parties is at fault, he cannot recover
what he has given by reason of the contract, or ask for the fulfillment of
what has been promised him. The other, who is not at fault, may demand
the return of what he has given without any obligation to comply with his
promise.
Article 1412 is not applicable to fictitious or simulated contracts, because
they refer to contracts with an illegal cause or subject-matter. 42 This article
presupposes the existence of a cause, it cannot refer to fictitious or
simulated contracts which are in reality non-existent. 43 As it has been
determined that the Deed of Sale is a simulated contract, the provision
cannot apply to it.
Granting that the Deed of Sale was not simulated, the provision would still
not apply. Since the subject properties were included as properties of
Alfonso in the Deed of Extra-Judicial Partition, they are covered by
corresponding inheritance and estate taxes. Therefore, tax evasion, if at all
present, would not arise, and Article 1412 would again be inapplicable.
Prescription
From the position that the Deed of Sale is valid and not void, the Heirs of
Policronio argued that any question regarding its validity should have been
initiated through judicial process within 10 years from its notarization in
accordance with Article 1144 of the Civil Code.Since 21 years had already
elapsed when the Heirs of Alfonso assailed the validity of the Deed of Sale
in 1996, prescription had set in. Furthermore, since the Heirs of Alfonso did
not seek to nullify the tax declarations of Policronio, they had impliedly
acquiesced and given due recognition to the Heirs of Policronio as the
rightful inheritors and should, thus, be barred from laying claim on the land.
The Heirs of Policronio are mistaken.
Article 1410 of the Civil Code provides:
Art. 1410. The action for the declaration of the inexistence of a contract
does not prescribe.
167

This is one of the most fundamental characteristics of void or inexistent
contracts. 44
As the Deed of Sale is a void contract, the action for the declaration of its
nullity, even if filed 21 years after its execution, cannot be barred by
prescription for it is imprescriptible. Furthermore, the right to set up the
defense of inexistence or absolute nullity cannot be waived or renounced.
45 Therefore, the Heirs of Alfonso cannot be precluded from setting up the
defense of its inexistence.
Validity of the Deed of Extra-Judicial Partition
The Court now resolves the issue of the validity of the Deed of Extra-Judicial
Partition.
Unenforceability
The Heirs of Alfonso argued that the CA was mistaken in annulling the Deed
of Extra-Judicial Partition due to the incapacity of Conrado to give the
consent of his co-heirs for lack of a special power of attorney. They
contended that what was involved was not the capacity to give consent
in behalf of the co-heirs but the authority to represent them. They argue
that the Deed of Extra-Judicial Partition is not a voidable or an annullable
contract under Article 1390 of the Civil Code, but rather, it is an
unenforceable or, more specifically, an unauthorized contract under
Articles 1403 (1) and 1317 of the Civil Code.As such, the Deed of Extra-
Judicial Partition should not be annulled but only be rendered
unenforceable against the siblings of Conrado.
They further argued that under Article 1317 of the Civil Code, when the
persons represented without authority have ratified the unauthorized acts,
the contract becomes enforceable and binding. They contended that the
Heirs of Policronio ratified the Deed of Extra-Judicial Partition when Conrado
took possession of one of the parcels of land adjudicated to him and his
siblings, and when another parcel was used as collateral for a loan entered
into by some of the Heirs of Policronio. The Deed of Extra-Judicial Partition
having been ratified and its benefits accepted, the same thus became
enforceable and binding upon them.
The Heirs of Alfonso averred that granting arguendo that Conrado was not
authorized to represent his co-heirs and there was no ratification, the CA
should not have remanded the case to the RTC for partition of Alfonso's
estate. They argued that the CA should not have applied the Civil Code
general provision on contracts, but the special provisions dealing with
succession and partition. They contended that contrary to the ruling of the
CA, the extra-judicial partition was not an act of strict dominion, as it has
been ruled that partition of inherited land is not a conveyance but a
confirmation or ratification of title or right to the land. 46 Therefore, the law
requiring a special power of attorney should not be applied to partitions.
DHEaTS
On the other hand, the Heirs of Policronio insisted that the CA
pronouncement on the invalidity of the Deed of Extra-Judicial Partition
should not be disturbed because the subject properties should not have
been included in the estate of Alfonso, and because Conrado lacked the
written authority to represent his siblings. They argued with the CA in ruling
that a special power of attorney was required before Conrado could sign
in behalf of his co-heirs.
The Heirs of Policronio denied that they ratified the Deed of Extra-Judicial
Partition. They claimed that there is nothing on record that establishes that
they ratified the partition. Far from doing so, they precisely questioned its
execution by filing a complaint. They further argued that under Article 1409
(3) of the Civil Code, ratification cannot be invoked to validate the illegal
act of including in the partition those properties which do not belong to the
estate as it provides another mode of acquiring ownership not sanctioned
by law.
Furthermore, the Heirs of Policronio contended that the defenses of
unenforceability, ratification, and preterition are being raised for the first
time on appeal by the Heirs of Alfonso. For having failed to raise them
during the trial, the Heirs of Alfonso should be deemed to have waived their
right to do so.
The Court agrees in part with the Heirs of Alfonso.
To begin, although the defenses of unenforceability, ratification and
preterition were raised by the Heirs of Alfonso for the first time on appeal,
they are concomitant matters which may be taken up. As long as the
questioned items bear relevance and close relation to those specifically
raised, the interest of justice would dictate that they, too, must be
considered and resolved. The rule that only theories raised in the initial
proceedings may be taken up by a party thereto on appeal should refer to
independent, not concomitant matters, to support or oppose the cause of
action. 47
In the RTC, the Heirs of Policronio alleged that Conrado's consent was
vitiated by mistake and undue influence, and that he signed the Deed of
Extra-Judicial Partition without the authority or consent of his co-heirs.
The RTC found that Conrado's credibility had faltered, and his claims were
rejected by the RTC as gratuitous assertions. On the basis of such, the RTC
ruled that Conrado duly represented his siblings in the Deed of Extra-
Judicial Partition.
On the other hand, the CA annulled the Deed of Extra-Judicial Partition
under Article 1390 (1) of the Civil Code, holding that a special power of
attorney was lacking as required under Article 1878 (5) and (15) of the Civil
Code.These articles are as follows:
Art. 1878. Special powers of attorney are necessary in the following cases:
xxx xxx xxx
(5) To enter into any contract by which the ownership of an immovable is
transmitted or acquired either gratuitously or for a valuable consideration;
xxx xxx xxx
(15) Any other act of strict dominion.
Art. 1390. The following contracts are voidable or annullable, even though
there may have been no damage to the contracting parties:
(1) Those where one of the parties is incapable of giving consent to a
contract; HICEca
(2) Those where the consent is vitiated by mistake, violence, intimidation,
undue influence or fraud.
These contracts are binding, unless they are annulled by a proper action in
court. They are susceptible of ratification.
This Court finds that Article 1878 (5) and (15) is inapplicable to the case at
bench. It has been held in several cases 48 that partition among heirs is not
legally deemed a conveyance of real property resulting in change of
ownership. It is not a transfer of property from one to the other, but rather,
it is a confirmation or ratification of title or right of property that an heir is
renouncing in favor of another heir who accepts and receives the
inheritance. It is merely a designation and segregation of that part which
belongs to each heir. The Deed of Extra-Judicial Partition cannot, therefore,
be considered as an act of strict dominion. Hence, a special power of
attorney is not necessary.
In fact, as between the parties, even an oral partition by the heirs is valid if
no creditors are affected. The requirement of a written memorandum
under the statute of frauds does not apply to partitions effected by the heirs
where no creditors are involved considering that such transaction is not a
conveyance of property resulting in change of ownership but merely a
designation and segregation of that part which belongs to each heir. 49
Neither is Article 1390 (1) applicable. Article 1390 (1) contemplates the
incapacity of a party to give consent to a contract. What is involved in the
case at bench though is not Conrado's incapacity to give consent to the
contract, but rather his lack of authority to do so. Instead, Articles 1403 (1),
1404, and 1317 of the Civil Code find application to the circumstances
prevailing in this case. They are as follows:
Art. 1403. The following contracts are unenforceable, unless they are
ratified:
(1) Those entered into in the name of another person by one who has been
given no authority or legal representation, or who has acted beyond his
powers;
Art. 1404. Unauthorized contracts are governed by Article 1317 and the
principles of agency in Title X of this Book.
Art. 1317. No one may contract in the name of another without being
authorized by the latter, or unless he has by law a right to represent him.
AIHECa
A contract entered into in the name of another by one who has no
authority or legal representation, or who has acted beyond his powers, shall
be unenforceable, unless it is ratified, expressly or impliedly, by the person
on whose behalf it has been executed, before it is revoked by the other
contracting party.
Such was similarly held in the case of Badillo v. Ferrer:
The Deed of Extrajudicial Partition and Sale is not a voidable or an
annullable contract under Article 1390 of the New Civil Code. Article 1390
renders a contract voidable if one of the parties is incapable of giving
consent to the contract or if the contracting party's consent is vitiated by
mistake, violence, intimidation, undue influence or fraud. . . .
168
The deed of extrajudicial partition and sale is an unenforceable or, more
specifically, an unauthorized contract under Articles 1403(1) and 1317 of
the New Civil Code. 50
Therefore, Conrado's failure to obtain authority from his co-heirs to sign the
Deed of Extra-Judicial Partition in their behalf did not result in his incapacity
to give consent so as to render the contract voidable, but rather, it
rendered the contract valid but unenforceable against Conrado's co-heirs
for having been entered into without their authority.
A closer review of the evidence on record, however, will show that the
Deed of Extra-Judicial Partition is not unenforceable but, in fact, valid,
binding and enforceable against all the Heirs of Policronio for having given
their consent to the contract. Their consent to the Deed of Extra-Judicial
Partition has been proven by a preponderance of evidence.
Regarding his alleged vitiated consent due to mistake and undue influence
to the Deed of Extra-Judicial Partition, Conrado testified, to wit:
Q: Mr. Ureta you remember having signed a document entitled deed of
extra judicial partition consisting of 11 pages and which have previously
[been] marked as Exhibit I for the plaintiffs?
A: Yes sir.
Q: Can you recall where did you sign this document?
A: The way I remember I signed that in our house.
Q: And who requested or required you to sign this document?
A: My aunties.
Q: Who in particular if you can recall?
A: Nay Pruding Panadero.
Q: You mean that this document that you signed was brought to your house
by your Auntie Pruding Pa[r]adero [who] requested you to sign that
document?
A: When she first brought that document I did not sign that said document
because I [did] no[t] know the contents of that document.
Q: How many times did she bring this document to you [until] you finally
signed the document?
A: Perhaps 3 times.
Q: Can you tell the court why you finally signed it?
A: Because the way she explained it to me that the land of my grandfather
will be partitioned. IEAHca
Q: When you signed this document were your brothers and sisters who are
your co-plaintiffs in this case aware of your act to sign this document?
A: They do not know.
xxx xxx xxx
Q: After you have signed this document did you inform your brothers and
sisters that you have signed this document?
A: No I did not. 51
xxx xxx xxx
Q: Now you read the document when it was allegedly brought to your
house by your aunt Pruding Pa[r]adero?
A: I did not read it because as I told her I still want to ask the advise of my
brothers and sisters.
Q: So do I get from you that you have never read the document itself or
any part thereof?
A: I have read the heading.
xxx xxx xxx
Q: And why is it that you did not read all the pages of this document
because I understand that you know also how to read in English?
A: Because the way Nay Pruding explained to me is that the property of my
grandfather will be partitioned that is why I am so happy.
xxx xxx xxx
Q: You mean to say that after you signed this deed of extra judicial partition
up to the present you never informed them?
A: Perhaps they know already that I have signed and they read already the
document and they have read the document.
Q: My question is different, did you inform them?
A: The document sir? I did not tell them.
Q: Even until now?
A: Until now I did not inform them. 52
This Court finds no cogent reason to reverse the finding of the RTC that
Conrado's explanations were mere gratuitous assertions not entitled to any
probative weight. The RTC found Conrado's credibility to have faltered
when he testified that perhaps his siblings were already aware of the Deed
of Extra-Judicial Partition. The RTC was in the best position to judge the
credibility of the witness' testimony. The CA also recognized that Conrado's
consent was not vitiated by mistake and undue influence as it required a
special power of attorney in order to bind his co-heirs and, as such, the CA
thereby recognized that his signature was binding to him but not with
respect to his co-heirs. Findings of fact of the trial court, particularly when
affirmed by the CA, are binding to this Court. 53
Furthermore, this Court notes other peculiarities in Conrado's testimony.
Despite claims of undue influence, there is no indication that Conrado was
forced to sign by his aunt, Prudencia Paradero. In fact, he testified that he
was happy to sign because his grandfather's estate would be partitioned.
Conrado, thus, clearly understood the document he signed. It is also worth
noting that despite the document being brought to him on three separate
occasions and indicating his intention to inform his siblings about it,
Conrado failed to do so, and still neglected to inform them even after he
had signed the partition. All these circumstances negate his claim of
vitiated consent. Having duly signed the Deed of Extra-Judicial Partition,
Conrado is bound to it. Thus, it is enforceable against him.
Although Conrado's co-heirs claimed that they did not authorize Conrado
to sign the Deed of Extra-Judicial Partition in their behalf, several
circumstances militate against their contention. 2005jurcd
First, the Deed of Extra-Judicial Partition was executed on April 19, 1989, and
the Heirs of Policronio claim that they only came to know of its existence on
July 30, 1995 through an issue of the Aklan Reporter. It is difficult to believe
that Conrado did not inform his siblings about the Deed of Extra-Judicial
Partition or at least broach its subject with them for more than five years
from the time he signed it, especially after indicating in his testimony that
he had intended to do so.
Second, Conrado retained possession of one of the parcels of land
adjudicated to him and his co-heirs in the Deed of Extra-Judicial Partition.
Third, after the execution of the partition on April 19, 1989 and more than a
year before they claimed to have discovered the existence of the Deed of
Extra-Judicial Partition on July 30, 1995, some of the Heirs of Policronio,
namely, Rita Solano, Macario Ureta, Lilia Tayco, and Venancio Ureta
executed on June 1, 1994, a Special Power of Attorney 54 in favor of their
sister Gloria Gonzales, authorizing her to obtain a loan from a bank and to
mortgage one of the parcels of land adjudicated to them in the Deed of
Extra-Judicial Partition to secure payment of the loan. They were able to
obtain the loan using the land as collateral, over which a Real Estate
Mortgage 55 was constituted. Both the Special Power of Attorney and the
Real Estate Mortgage were presented in evidence in the RTC, and were not
controverted or denied by the Heirs of Policronio.
Fourth, in the letter dated August 15, 1995, sent by the counsel of the Heirs
of Policronio to the Heirs of Alfonso requesting for amicable settlement,
there was no mention that Conrado's consent to the Deed of Extra-Judicial
Partition was vitiated by mistake and undue influence or that they had
never authorized Conrado to represent them or sign the document on their
behalf. It is questionable for such a pertinent detail to have been omitted.
The body of said letter is reproduced hereunder as follows:
Greetings:
Your nephews and nieces, children of your deceased brother Policronio
Ureta, has referred to me for appropriate legal action the property they
inherited from their father consisting of six (6) parcels of land which is
covered by a Deed of Absolute Sale dated October 25, 1969. These
169
properties ha[ve] already been transferred to the name of their deceased
father immediately after the sale, machine copy of the said Deed of Sale is
hereto attached for your ready reference.
Lately, however, there was published an Extra-judicial Partition of the estate
of Alfonso Ureta, which to the surprise of my clients included the properties
already sold to their father before the death of said Alfonso Ureta. This
inclusion of their property is erroneous and illegal because these properties
were covered by the Deed of Absolute Sale in favor of their father
Policronio Ureta no longer form part of the estate of Alfonso Ureta. Since
Policronio Ureta has [sic] died in 1974 yet, these properties have passed by
hereditary succession to his children who are now the true and lawful
owners of the said properties.
My clients are still entitled to a share in the estate of Alfonso Ureta who is
also their grandfather as they have stepped into the shoes of their
deceased father Policronio Ureta. But this estate of Alfonso Ureta should
already exclude the six (6) parcels of land covered by the Deed of Absolute
Sale in favor of Policronio Ureta.
My clients cannot understand why the properties of their late father [should]
be included in the estate of their grandfather and be divided among his
brothers and sisters when said properties should only be divided among
themselves as children of Policronio Ureta.
Since this matter involves very close members of the same family, I have
counseled my clients that an earnest effort towards a compromise or
amicable settlement be first explored before resort to judicial remedy is
pursued. And a compromise or amicable settlement can only be reached
if all the parties meet and discuss the problem with an open mind. To this
end, I am suggesting a meeting of the parties on September 16, 1995 at
2:00 P.M. at B Place Restaurant at C. Laserna St., Kalibo, Aklan. It would be
best if the parties can come or be represented by their duly designated
attorney-in-fact together with their lawyers if they so desire so that the
problem can be discussed unemotionally and intelligently. SACTIH
I would, however, interpret the failure to come to the said meeting as an
indication that the parties are not willing to or interested in amicable
settlement of this matter and as a go signal for me to resort to legal and/or
judicial remedies to protest the rights of my clients.
Thank you very much. 56
Based on the foregoing, this Court concludes that the allegation of
Conrado's vitiated consent and lack of authority to sign in behalf of his co-
heirs was a mere afterthought on the part of the Heirs of Policronio. It
appears that the Heirs of Policronio were not only aware of the existence of
the Deed of Extra-Judicial Partition prior to June 30, 1995 but had, in fact,
given Conrado authority to sign in their behalf. They are now estopped from
questioning its legality, and the Deed of Extra-Judicial Partition is valid,
binding, and enforceable against them.
In view of the foregoing, there is no longer a need to discuss the issue of
ratification.
Preterition debts; that the heirs of Policronio Ureta, Sr. were represented by Conrado
The Heirs of Alfonso were of the position that the absence of the Heirs of B. Ureta; all the parties signed the document, was witnessed and duly
Policronio in the partition or the lack of authority of their representative acknowledged before Notary Public Adolfo M. Iligan of Kalibo, Aklan; that
results, at the very least, in their preterition and not in the invalidity of the the document expressly stipulated that the heirs to whom some of the
entire deed of partition. Assuming there was actual preterition, it did not properties were transferred before for taxation purposes or their children,
render the Deed of Extra-Judicial Partition voidable. Citing Article 1104 of expressly recognize and acknowledge as a fact that the properties were
the Civil Code, they aver that a partition made with preterition of any of transferred only for the purpose of effective administration and
the compulsory heirs shall not be rescinded, but the heirs shall be development convenience in the payment of taxes and, therefore, all
proportionately obliged to pay the share of the person omitted. Thus, the instruments conveying or effecting the transfer of said properties are null
Deed of Extra-Judicial Partition should not have been annulled by the CA. and void from the beginning (Exhs. 1-4, 7-d). 58
Instead, it should have ordered the share of the heirs omitted to be given
to them. Considering that the Deed of Sale has been found void and the Deed of
The Heirs of Alfonso also argued that all that remains to be adjudged is the Extra-Judicial Partition valid, with the consent of all the Heirs of Policronio
right of the preterited heirs to represent their father, Policronio, and be duly given, there is no need to remand the case to the court of origin for
declared entitled to his share. They contend that remand to the RTC is no partition.
longer necessary as the issue is purely legal and can be resolved by the WHEREFORE, the petition in G.R. No. 165748 is DENIED. The petition in G.R.
provisions of the Civil Code for there is no dispute that each of Alfonso's heirs No. 165930 is GRANTED. The assailed April 20, 2004 Decision and October
received their rightful share. Conrado, who received Policronio's share, 14, 2004 Resolution of the Court of Appeals in CA-G.R. CV No. 71399, are
should then fully account for what he had received to his other co-heirs and hereby MODIFIED in this wise: AEIcSa
be directed to deliver their share in the inheritance. (1) The Deed of Extra-Judicial Partition, dated April 19, 1989, is VALID, and
These arguments cannot be given credence.
Their posited theory on preterition is no longer viable. It has already been (2) The order to remand the case to the court of origin is hereby DELETED.
determined that the Heirs of Policronio gave their consent to the Deed of
Extra-Judicial Partition and they have not been excluded from it.
Nonetheless, even granting that the Heirs of Policronio were denied their
lawful participation in the partition, the argument of the Heirs of Alfonso
would still fail.
Preterition under Article 854 of the Civil Code is as follows:
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.
If the omitted compulsory heirs should die before the testator, the institution
shall be effectual, without prejudice to the right of representation.
Preterition has been defined as the total omission of a compulsory heir from
the inheritance. 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. 57 Preterition is thus a concept of testamentary succession and
requires a will. In the case at bench, there is no will involved. Therefore,
preterition cannot apply.
Remand Unnecessary
The Deed of Extra-Judicial Partition is in itself valid for complying with all the
legal requisites, as found by the RTC, to wit:
A perusal of the Deed of Extra-judicial Partition would reveal that all the
heirs and children of Alfonso Ureta were represented therein; that nobody
was left out; that all of them received as much as the others as their shares;
that it distributed all the properties of Alfonso Ureta except a portion of
parcel 29 containing an area of 14,000 square meters, more or less, which
was expressly reserved; that Alfonso Ureta, at the time of his death, left no
170
[G.R. No. 198994. February 3, 2016.]
IRIS MORALES, petitioner, vs. ANA MARIA OLONDRIZ, ALFONSO JUAN
OLONDRIZ, JR., ALEJANDRO MORENO OLONDRIZ, ISABEL ROSA OLONDRIZ
and FRANCISCO JAVIER MARIA OLONDRIZ, respondents.
DECISION
BRION, J p:
This is a petition for review on certiorari filed by Iris Morales from the May 27,
2011 decision and October 12, 2011 resolution of the Court of Appeals (CA)
in CA-G.R. SP No. 102358. 1 The CA denied Morales' petition for certiorari
from the Regional Trial Court's (RTC) July 12, 2007 and October 30, 2007
orders in SP. Proc. No. 03-0060 and SP. Proc. No. 03-0069. 2
Antecedents
Alfonso Juan P. Olondriz, Sr. (the decedent) died on June 9, 2003. He was
survived by his widow, Ana Maria Ortigas de Olondriz, and his children:
Alfonso Juan O. Olondriz, Jr., Alejandro Marino O. Olondriz, Isabel Rosa O.
Olondriz, Angelo Jose O. Olondriz, and Francisco Javier Maria Bautista
Olondriz. His widow and children are collectively referred to as the
respondent heirs.
Believing that the decedent died intestate, the respondent heirs filed a
petition with the Las Pias RTC for the partition of the decedent's estate and
the appointment of a special administrator on July 4, 2003. The case was
raffled to Branch 254 and docketed as Sp. Proc. Case No. SP-03-0060.
On July 11, 2003, the RTC appointed Alfonso Juan O. Olondriz, Jr. as special
administrator.
However, on July 28, 2003, Iris Morales filed a separate petition with the RTC
alleging that the decedent left a will dated July 23, 1991. Morales prayed
for the probate of the will and for her appointment as special administratrix.
Her petition was also raffled to Branch 254 and docketed as Sp. Proc. Case
No. SP-03-0069.
The pertinent portions of the decedent's will reads:
1. Upon my death, IRIS MORALES OLONDRIZ shall be the executor hereof
and administrator of my estate until its distribution in accordance herewith.
...
2. My entire estate shall be divided into six (6) parts to be distributed equally
among and between (1) IRIS MORALES OLONDRIZ, my children (2)
ALFONSO JUAN OLONDRIZ, JR., (3) ALEJANDRO OLONDRIZ, (4) ISABEL
OLONDRIZ, (5) ANGELO OLONDRIZ, and their mother (6) MARIA ORTEGAS
OLONDRIZ, SR. 3
Notably, the will omitted Francisco Javier Maria Bautista Olondriz, an
illegitimate son of the decedent.
On September 1, 2003, Morales filed a manifestation in Sp. Proc. Case No.
SP-03-0060 and moved to suspend the intestate proceedings in order to
give way to the probate proceedings in Sp. Proc. Case No. SP-03-0069. The
respondent heirs opposed Morales' motion for suspension and her petition
for allowance of the will.
On November 27, 2003, the RTC consolidated Sp. Proc. Case No. SP-03-0060
with Sp. Proc. Case No. SP-03-0069.
On January 6, 2004, the respondent heirs moved to dismiss the probate
proceedings because Francisco was preterited from the will.
On January 10, 2006, Morales agreed to the holding of an evidentiary
hearing to resolve the issue of preterition. Thus, the RTC ordered the parties
to submit their factual allegations to support or negate the existence of
preterition. Only the respondent heirs complied with this order.
After several postponements at the instance of Morales, the reception of
evidence for the evidentiary hearing was scheduled on May 29, 2006.
However, Morales failed to appear, effectively waiving her right to present
evidence on the issue of preterition.
On June 23, 2006, the RTC, through Judge Gloria Butay Aglugub,
suspended the intestate proceedings in Sp. Proc. Case No. SP-03-0060 and
set the case for probate. The RTC reasoned that probate proceedings take
precedence over intestate proceedings.
The respondent heirs moved for reconsideration of the suspension order but
the RTC denied the motion on September 1, 2006. The RTC also summarily
revoked the Letters of Administration previously issued to Alfonso, Jr.
RTC and the CA both found that Francisco was preterited from the will; and
The respondent heirs moved for reconsideration of the summary revocation
of the Letters of Administration. They also moved for the inhibition of Judge
Aglugub of Branch 254.
On November 16, 2006, the RTC granted the motion for inhibition. The case
was transferred to Branch 253 presided by Judge Salvador V. Timbang, Jr.
On July 12, 2007, the RTC resolved (1) the respondent heirs' motion for
reconsideration of the revocation of the Letters of Administration and (2)
Morales' motion to be appointed Special Administratrix of the estate. The
RTC noted that while testacy is preferred over intestacy, courts will not
hesitate to set aside probate proceedings if it appears that the probate of
the will might become an idle ceremony because the will is intrinsically void.
The RTC observed: (1) that Morales expressly admitted that Francisco Javier
Maria Bautista Olondriz is an heir of the decedent; (2) that Francisco was
clearly omitted from the will; and (3) that based on the evidentiary hearings,
Francisco was clearly preterited. Thus, the RTC reinstated Alfonso, Jr. as
administrator of the estate and ordered the case to proceed in intestacy.
Morales moved for reconsideration which the RTC denied on October 30,
2007, for lack of merit.
On February 7, 2008, Morales filed a petition for certiorari against the orders
of the RTC. Morales alleged that the RTC acted with grave abuse of
discretion in proceeding intestate despite the existence of the will. The
petition was docketed as CA-G.R. SP No. 102358.
On May 27, 2011, the CA dismissed Morales' petition for certiorari. The CA
reasoned that while probate proceedings take precedence over intestate
proceedings, the preterition of a compulsory heir in the direct line annuls
the institution of heirs in the will and opens the entire inheritance into
intestate succession. 4 Thus, the continuation of the probate proceedings
would be superfluous and impractical because the inheritance will be
adjudicated intestate. The CA concluded that the RTC did not act with
grave abuse of discretion.
Morales moved for reconsideration which the CA denied on October 12,
2011. Hence, she filed the present petition for review on certiorari on
December 5, 2011.
The Petition
Morales maintains that the RTC committed grave abuse of discretion when
it ordered the case to proceed intestate because: (1) the probate of a
decedent's will is mandatory; (2) the RTC Branch 254 already ordered the
case to proceed into probate; (3) the order setting the case for probate
already attained finality; (3) the probate court cannot touch on the intrinsic
validity of the will; and (4) there was no preterition because Francisco
received a house and lot inter vivos as an advance on his legitime.
The respondent heirs counter: (1) that it is within the RTC's jurisdiction to
reverse or modify an interlocutory order setting the case for probate; (2)
that the petitioner failed to mention that she did not appear in any of the
evidentiary hearings to disprove their allegation of preterition; (3) that the
(4) that Francisco's preterition annulled the institution of heirs and opened
the case into intestacy. They conclude that the RTC did not exceed its
jurisdiction or act with grave abuse of discretion when it reinstated Alfonso,
Jr. as the administrator of the estate and ordered the case to proceed
intestate.
Our Ruling
We join the ruling of the CA.
Preterition consists in the omission of a compulsory heir from the will, either
because he is not named or, although he is named as a father, son, etc.,
he is neither instituted as an heir nor assigned any part of the estate without
expressly being disinherited tacitly depriving the heir of his legitime. 5
Preterition requires that the omission is total, meaning the heir did not also
receive any legacies, devises, or advances on his legitime. 6
In other words, preterition is the complete and total omission of a
compulsory heir from the testator's inheritance without the heir's express
disinheritance.
Article 854 of the Civil Code states the legal effects of preterition:
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.
171
If the omitted compulsory heirs should die before the testator, the institution
shall be effectual, without prejudice to the right of representation.
(emphasis supplied)
Under the Civil Code,the preterition of a compulsory heir in the direct line
shall annul the institution of heirs, but the devises and legacies shall remain
valid insofar as the legitimes are not impaired. Consequently, if a will does
not institute any devisees or legatees, the preterition of a compulsory heir in
the direct line will result in total intestacy. 7
In the present case, the decedent's will evidently omitted Francisco
Olondriz as an heir, legatee, or devisee. As the decedent's illegitimate son,
Francisco is a compulsory heir in the direct line. Unless Morales could show
otherwise, Francisco's omission from the will leads to the conclusion of his
preterition.
During the proceedings in the RTC, Morales had the opportunity to present
evidence that Francisco received donations inter vivos and advances on
his legitime from the decedent. However, Morales did not appear during
the hearing dates, effectively waiving her right to present evidence on the
issue. We cannot fault the RTC for reaching the reasonable conclusion that
there was preterition.
We will not entertain the petitioner's factual allegation that Francisco was
not preterited because this Court is not a trier of facts. Furthermore, the CA
concurred with the RTC's conclusion. We see no cogent reason to deviate
from the factual findings of the lower courts.
become final and executory in the same manner that a final judgment
does. 13 An interlocutory order does not result in res judicata. 14 It remains
under the control of the court and can be modified or rescinded at any
time before final judgment. 15
Certiorari is a limited form of review confined to errors of jurisdiction. An error
of jurisdiction is one where the officer or tribunal acted without or in excess
of its jurisdiction, or with grave abuse of discretion amounting to lack or
excess of jurisdiction. 16 As discussed, it is well within the jurisdiction of the
probate court to pass upon the intrinsic validity of the will if probate
proceedings might become an idle ceremony due to the nullity of the will.
On the other hand, grave abuse of discretion is the capricious and
whimsical exercise of judgment equivalent to an evasion of positive duty,
or a virtual refusal to act at all in contemplation of the law. 17 It is present
when power is exercised in a despotic manner by reason, for instance, of
passion and hostility. Morales failed to show that the RTC acted in such a
capricious and despotic manner that would have warranted the CA's grant
of her petition for certiorari. On the contrary, the RTC acted appropriately
in accordance with the law and jurisprudence.
WHEREFORE, the petition is DISMISSED. Costs against the petitioner.
SO ORDERED.

The remaining question is whether it was proper for the RTC to (1) pass upon
the intrinsic validity of the will during probate proceedings and (2) order the
case to proceed intestate because of preterition.

The general rule is that in probate proceedings, the scope of the court's
inquiry is limited to questions on the extrinsic validity of the will; the probate
court will only determine the will's formal validity and due execution. 8
However, this rule is not inflexible and absolute. 9 It is not beyond the
probate court's jurisdiction to pass upon the intrinsic validity of the will when
so warranted by exceptional circumstances. 10 When practical
considerations demand that the intrinsic validity of the will be passed upon
even before it is probated, the probate court should meet the issue.

The decedent's will does not contain specific legacies or devices and
Francisco's preterition annulled the institution of heirs. The annulment
effectively caused the total abrogation of the will, resulting in total intestacy
of the inheritance. 12 The decedent's will, no matter how valid it may
appear extrinsically, is null and void. The conduct of separate proceedings
to determine the intrinsic validity of its testamentary provisions would be
superfluous. Thus, we cannot attribute error much less grave abuse of
discretion on the RTC for ordering the case to proceed intestate.

Finally, there is no merit in the petitioner's argument that the previous order
setting the case for probate barred the RTC from ordering the case to
proceed intestate. The disputed order is merely interlocutory and can never
172
ARTICLE 857
[G.R. Nos. L-27860 & 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.
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. aisa dc
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 the
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.
173
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 he
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, 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" is approved.
SO ORDERED. cd
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
174
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 (state 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 or 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 aid 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
175
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. cdt
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 as 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 Administratrix
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 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 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
176
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 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."
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 retainers
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;
177
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 he 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, herein before
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 but
separate expedientesin 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 a '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 the 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
178
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 eases 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., in so far 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
179
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 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 are hereby APPROVED.
The said executor is further authorized to execute subsequent sales,
conveyances, leases and mortgages of the properties lift 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 16, 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 Administrative 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:
180

'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 cause 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 and
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 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 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.
181
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 Administration 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 on 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
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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 interfering 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 and 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
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, pre-deceasing 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 validity 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
assets 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 Honorable 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
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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 entirety 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 of the 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, 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.' (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 entirety 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
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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 kinds of substitution, meaningfully stated that: ". . .
cuando el testador instituye un 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' Will is 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
through undersigned counsel, unto this Honorable Court most respectfully
(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,
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 reglementary 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
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
185
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 his 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;
186

"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:
"O R D E R
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 prejudicial 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. 1612, 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, 1967
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 reply 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.
187

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 other 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
practical for the Court to dispose of all these cases together. 4
The assignments of error read thus:
"I to IV
THE ORDER COURT ERRED IN APPROVING THE FINAL DEEDS OF SALE IN
FAVOR OF THE APPELLEES, PEPITO G. IYULORES, ESPIRIDION PARTISALA,
WINIFREDO C. ESPADA AND ROSARIO ALINGASA, 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.
V to VIII
THE LOWER COURT ERRED IN APPROVING THE DEEDS OF SALE IN FAVOR OF
THE APPELLEES, PEPITO G. IYULORES, ESPIRIDION PARTISALA, WINIFREDO C.
ESPADA AND ROSARIO ALINGASA, COVERING PARCELS OF LAND FOR
WHICH THEY HAVE NEVER PAID IN FULL IN ACCORDANCE WITH THE
ORIGINAL CONTRACTS TO SELL.
IX to XII
THE LOWER COURT ERRED IN DETERMINING THE RIGHTS OF OWNERSHIP OVER
REAL PROPERTY OF THE APPELLEES, PEPITO G. IYULORES, ESPIRIDION
PARTISALA, WINIFREDO C. ESPADA AND ROSARIO ALINGASA, WHILE ACTING
AS A PROBATE COURT.
XIII to XV
THE LOWER COURT ERRED IN APPROVING THE FINAL DEEDS OF SALE IN
FAVOR OF THE APPELLEES ADELFA PREMAYLON (LOT NO. 102), SANTIAGO
PACAONSIS, AND ADELFA PREMAYLON (LOT NO. 104), 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.
XVI to XVIII
THE LOWER COURT ERRED IN APPROVING THE DEEDS OF SALE IN FAVOR OF
THE APPELLEES ADELFA PREMAYLON (LOT NO. 102), SANTIAGO PACAONSIS,
AND ADELFA PREMAYLON (LOT NO. 104) COVERING PARCELS OF LAND FOR
WHICH THEY HAVE NEVER PAID IN FULL IN ACCORDANCE WITH THE
ORIGINAL CONTRACTS TO SELL.
XIX to XXI
188
THE LOWER COURT ERRED IN DETERMINING THE RIGHTS 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 SELL
WHICH WERE CANCELLED AND RESCINDED.
XXX to XXXIV
THE LOWER COURT ERRED IN DETERMINING THE RIGHTS OF OWNERSHIP OVER
REAL PROPERTY OF THE APPELLEES, 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, FLORENIA 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.
189

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 main brief as appellant.
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 herein below 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 or not a special civil action of certiorari or prohibition
may be 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
certiorari and 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
III
On Whether or Not There is Still Any Part of the Testate
Estate of Mrs. Hodges that may be Adjudicated to her brothers
190

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 court's 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 the 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
191
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 21, 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 los 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, 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: cdtai
"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 e 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 Net worth 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-
192
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, courtesy,
or a statutory interest? (X) Yes () No
"2d. Does the surviving spouse contemplate renouncing the will and
electing to take dower, courtesy, 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 interest 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 land 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;
193
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., 586; 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 discussed, 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.
194

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 may be 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 the
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 them 6 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 lifetime 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 Code 7 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
195
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, 1985, 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 to 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 or 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."
196

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.
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."
In its main brief dated February 26, 1968, PCIB asserts:
"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], Sec. 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 an
fideicommissary 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.
197
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.
198

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 notion 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 may be 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 may be." (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 countersign 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, amy 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.
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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 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 LXXVI
should be as they are hereby overruled.
Assignments of error I to IV,
XIII to XV, XXII to XXV, XXXV
to XXXVI, 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 Barriod,
executed on February 21, 1958; the contract to sell between the deceased,
Charles Newton Hodges, and the appellee, Pruficacion 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, 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 involked 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 which are exactly of this nature. Consequently, the
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 by 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 repurcussions 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 acts as administratrix involving expenditures from the
estate made by her either conjoinly 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.
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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, XXXLX to XL,
XLVII to XLLX, LII and LIII to LXI.
PCIB raises under those 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 priority of not disturbing the lower
court's orders sanctioning the sales questioned in all these appeals 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
provision 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) the pactum commissorium or
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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 Manres 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.
That 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 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 a point to urge 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 were invariably
approved as prayed for.
Nothing else appears to have been done either by the court a quo or by
Hodges until December 25, 1962. Importantly to be noted, despite 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 dealt 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
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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, to 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 a 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 the 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 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 o 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
203
ordered in the Court's resolution of September 8, 1972 and as further
clarified in the dispositive portion of this 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 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 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 exclusively in Special Proceedings 1672, without
prejudice to the resolution by the trial court of the pending motions for its
removal as administrator 12 ; 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
complete segregation 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.
Appellant PCIB is ordered to pay, within five (5) days from notice hereof,
thirty-one additional appeal docket fees, but this decision shall nevertheless
become final as to each of the parties herein after fifteen (15) days from
the respective notices to them hereof in accordance with the rules.
Costs against petitioner-appellant PCIB.
204
ARTICLE 859
[G.R. No. 113725. June 29, 2000.]
JOHNNY S. RABADILLA, 1 petitioner, vs. COURT OF APPEALS AND MARIA
MARLENA 2 COSCOLLUELA Y BELLEZA VILLACARLOS, respondents.
PURISIMA, J p:
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 xxx 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 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.
Cdpr
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
205
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 may be 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. LexLib
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. dctai
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 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 non-compliance 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
206
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:
ARTICLE 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.
ARTICLE 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 the 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, Suffice it to state that a Will is a personal, solemn, revocable and free act
Marlena Coscolluela Belleza, during the lifetime of the latter. However, the by which a person disposes of his property, to take effect after his death. 25
testatrix did not make Dr. Jorge Rabadilla's inheritance and the effectivity Since the Will expresses the manner in which a person intends how his
of his institution as a devisee, dependent on the performance of the said properties be disposed, the wishes and desires of the testator must be strictly
obligation. It is clear, though, that should the obligation be not complied followed. Thus, a Will cannot be the subject of a compromise agreement
with, the property shall be turned over to the testatrix's near descendants. which would thereby defeat the very purpose of making a Will.
The manner of institution of Dr. Jorge Rabadilla under subject Codicil is
evidently modal in nature because it imposes a charge upon the instituted WHEREFORE, the petition is hereby DISMISSED and the decision of the Court
heir without, however, affecting the efficacy of such institution. of Appeals, dated December 23, 1993, in CA-G.R. No. CV-35555 AFFIRMED.
No Pronouncement as to costs. prcd
Then too, since testamentary dispositions are generally acts of liberality, an
obligation imposed upon the heir should not be considered a condition SO ORDERED.
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.
207
[G.R. No. L-27952. February 15, 1982.]
TESTATE ESTATE OF JOSE EUGENIO RAMIREZ, MARIA LUISA PALACIOS,
Administratrix, petitioner-appellee, vs. MARCELLE D. VDA. DE RAMIREZ, ET
AL., oppositors, JORGE and ROBERTO RAMIREZ, Legatees, oppositors-
appellants.
ABAD SANTOS, J p:
The main issue in this appeal is the manner of partitioning the testate estate
of Jose Eugenio Ramirez among the principal beneficiaries, namely: his
widow Marcelle Demoron de Ramirez; his two grandnephews Roberto and
Jorge Ramirez; and his companion Wanda de Wrobleski.
The task is not trouble-free because the widow Marcelle is a French who
lives in Paris, while the companion Wanda is an Austrian who lives in Spain.
Moreover, the testator provided for substitutions. llcd
Jose Eugenio Ramirez, a Filipino national, died in Spain on December 11,
1964, with only his widow as compulsory heir. His will was admitted to
probate by the Court of First Instance of Manila, Branch X, on July 27, 1965.
Maria Luisa Palacios was appointed administratrix of the estate. In due time
she submitted an inventory of the estate as follows:
"INVENTARIO
Una sexta parte (1/6) pro-indivisa de un terreno,
con su mejoras y edificaciones, situado en la
Escolta, Manila P500,000.00
Una sexta parte (1/6) pro-indivisa de dos parcelas
de terreno situadas en Antipolo, Rizal 658.34
Cuatrocientos noventa y un (491) acciones de la 'Central
Azucarera de la Carlota' a P17.00 por accion 8,347.00
Diez mil ochocientos seiz (10,806) acciones de la
'Central Luzon Milling Co.,' disuelta y en liquidacion,
a P0.15 por accion 1,620.90
Cuenta de Ahorros en el Philippine Trust Co. 2,350.73
Jorge and Roberto opposed the project of partition on the grounds: (a)
TOTAL P512,976.97
MENOS:
Deuda al Banco de las Islas Pilipinas, garantizada
con prenda de las acciones de La Carlota P5,000.00
that the provisions for fideicommissary substitutions are also invalid because
VALOR LIQUIDO P507,976.97"
The testamentary dispositions are as follows:
"A. En nuda propiedad, a D. Roberto y D. Jorge Ramirez, ambos menores
de edad, residentes en Manila, I. F., calle Wright, No. 1818, Malate, hijos de
su sobrino D. Jose Ma. Ramirez, con sustitucion vulgar a favor de sus
respectivos descendientes, y, en su defecto, con sustitucion vulgar
reciproca entre ambos.
"El precedente legado en nuda propiedad de la participacion indivisa de
la finca Santa-Cruz Building, lo ordena el testador a favor de los legatarios
nombrados, en atencion a que dicha propiedad fue creacion del querido
padre del otorgante y por ser aquellos continuadores del apellido Ramirez.
"B. Y en usufructo a saber:
a. En cuanto a una tercera parte, a favor de la esposa del testador, Da.
Marcelle Ramirez, domiciliada en IE PECO, calle del General Gallieni, No.
33, Seine, Francia, con sustitucion vulgar u fideicomisaria a favor de Da.
Wanda de Wrobleski, de Palma de Mallorca, Son Rapia, Avenida de los
Reyes 13,
b. Y en cuanto a las dos terceras partes restantes, a favor de la
nombrado Da. Wanda de Wrobleski, con sustitucion vulgar y fideicomisaria,
a saber:
"En cuanto a la mitad de dichas dos terceras partes, a favor de D. Juan
Pablo Jankowski, de Son Rapia, Palma de Mallorca; y en cuanto a la
mitad restante, a favor de su sobrino, D. Horace V. Ramirez, San Luis
Building, Florida St. Ermita, Manila, I.F.
"A pesar de las sustituciones fideicomisarias precedentemente ordinadas,
las usufructuarias nombradas conjuntamente con los nudo propietarios,
podran en cualquier momento vender a tercero los bienes objeto
delegado, sin intervencion alguna de los titulares fideicomisarios."
On June 23, 1966, the administratrix submitted a project of partition as
follows: the property of the deceased is to be divided into two parts. One
part shall go to the widow "en pleno dominio" in satisfaction of her legitime;
the other part or "free portion" shall go to Jorge and Roberto Ramirez "en
nuda propriedad." Furthermore, one third (1/3) of the free portion is
charged with the widow's usufruct and the remaining two-third (2/3) with a
usufruct in favor of Wanda.
should not wish, or should be incapacitated to accept the inheritance.
that the provisions for vulgar substitution in favor of Wanda de Wrobleski
with respect to the widow's usufruct and in favor of Juan Pablo Jankowski
and Horacio V. Ramirez, with respect to Wanda's usufruct are invalid
because of the first heirs (Marcelle and Wanda) survived the testator; (b)
the first heirs are not related to the second heirs or substitutes within the first
degree, as provided in Article 863 of the Civil Code; (c) that the grant of a
usufruct over real property in the Philippines in favor of Wanda de Wrobleski,
who is an alien, violates Section 5, Article XIII of the Philippine Constitution;
and that (d) the proposed partition of the testator's interest in the Santa
Cruz (Escolta) Building between the widow Marcelle, and the appellants,
violates the testator's express will to give this property to them. Nonetheless,
the lower court approved the project of partition in its order dated May 3,
1967. It is this order which Jorge and Roberto have appealed to this Court.
1. The widow's legitime.
The appellant's do not question the legality of giving Marcelle one-half of
the estate in full ownership. They admit that the testator's dispositions
impaired his widow's legitime. Indeed, under Art. 900 of the Civil Code "If
the only survivor is the widow or widower, she or he shall be entitled to one-
half of the hereditary estate." And since Marcelle alone survived the
deceased, she is entitled to one-half of his estate over which he could
impose no burden, encumbrance, condition or substitution of any kind
whatsoever. (Art. 904, par. 2, Civil Code). cdrep
It is the one-third usufruct over the free portion which the appellants
question and justifiably so. It appears that the court a quo approved the
usufruct in favor of Marcelle because the testament provides for a usufruct
in her favor of one-third of the estate. The court a quo erred for Marcelle
who is entitled to one-half of the estate "en pleno dominio" as her legitime
and which is more than what she is given under the will is not entitled to
have any additional share in the estate. To give Marcelle more than her
legitime will run counter to the testator's intention for as stated above his
dispositions even impaired her legitime and tended to favor Wanda.
2. The substitutions.
It may be useful to recall that "Substitution is the appointment of another
heir so that he may enter into the inheritance in default of the heir originally
instituted." (Art. 857, Civil Code.) And that there are several kinds of
substitutions, namely: simple or common, brief or compendious, reciprocal,
and fideicommissary. (Art. 858, Civil Code.) According to Tolentino,
"Although the Code enumerates four classes, there are really only two
principal classes of substitutions: the simple and the fideicommissary. The
others are merely variations of these two." (III Civil Code, p. 185 [1973]).
The simple or vulgar is that provided in Art. 859 of the Civil Code which
reads:
"ART. 859. The testator may designate one or more persons to substitute the
heir or heirs instituted in case such heir or heirs should die before him, or
"A simple substitution, without a statement of the cases to which it refers,
shall comprise the three mentioned in the preceding paragraph, unless the
testator has otherwise provided."
The fideicommissary substitution is described in the Civil Code as follows:
"ART. 863. A fideicommissary substitution by virtue of which the fiduciary or
first heir instituted is entrusted with the obligation to preserve and to transmit
to a second heir the whole or part of inheritance, shall be valid and shall
take effect, provided such substitution does not go beyond one degree
from the heir originally instituted, and provided further that the fiduciary or
first heir and the second heir are living at time of the death of the testator."
208
It will be noted that the testator provided for a vulgar substitution in respect
of the legacies of Roberto and Jorge Ramirez, the appellants, thus: "con
sustitucion vulgar a favor de sus respectivos descendientes, y, en su
defecto, con substitucion vulgar reciproca entre ambos." The appellants
do not question the legality of the substitution so provided.
The appellants question the "sustitucion vulgar y fideicomisaria a favor de
Da. Wanda de Wrobleski" in connection with the one-third usufruct over the
estate given to the widow Marcelle. However, this question has become
moot because as We have ruled above, the widow is not entitled to any
usufruct.
The appellants also question the "sustitucion vulgar y fideicomisaria" in
connection with Wanda's usufruct over two-thirds of the estate in favor of
Juan Pablo Jankowski and Horace V. Ramirez.
They allege that the substitution in its vulgar aspect is void because Wanda
survived the testator or stated differently because she did not predecease
the testator. But dying before the testator is not the only case for vulgar
substitution for it also includes refusal or incapacity to accept the
inheritance as provided in Art. 859 of the Civil Code, supra. Hence, the
vulgar substitution is valid.
As regards the substitution in its fideicommissary aspect, the appellants are
correct in their claim that it is void for the following reasons:
(a) The substitutes (Juan Pablo Jankowski and Horace V. Ramirez) are not
related to Wanda, the heir originally instituted. Art. 863 of the Civil Code
validates a fideicommissary substitution "provided such substitution does
not go beyond one degree from the heir originally instituted."
What is meant by "one degree" from the first heir is explained by Tolentino
as follows:
"Scaevola, Maura, and Traviesas construe 'degree' as designation,
substitution, or transmission. The Supreme Court of Spain has decidedly
adopted this construction. From this point of view, there can be only one
transmission or substitution, and the substitute need not be related to the
first heir. Manresa, Morell, and Sanchez Roman, however, construe the word
'degree' as generation, and the present Code has obviously followed this
interpretation, by providing that the substitution shall not go beyond one
degree 'from the heir originally instituted.' The Code thus clearly indicates
that the second heir must be related to and be one generation from the
first heir.
"From this, it follows that the fideicommissary can only be either a child or a
parent of the first heir. These are the only relatives who are one generation
or degree from the fiduciary." (Op. cit., pp. 193-194.).
(b) There is no absolute duty imposed on Wanda to transmit the usufruct to
the substitutes as required by Arts. 865 and 867 of the Civil Code. In fact, the
appellee admits "that the testator contradicts the establishment of a
fideicommissary substitution when he permits the properties subject of the
usufruct to be sold upon mutual agreement of the usufructuaries and the
naked owners." (Brief, p. 26).
3. The usufruct of Wanda.
The appellants claim that the usufruct over real properties of the estate in
favor of Wanda is void because it violates the constitutional prohibition
against the acquisition of lands by aliens.
The 1935 Constitution which is controlling provides as follows:
"SEC. 5. Save in cases of hereditary succession, no private agricultural land
shall be transferred or assigned except to individuals, corporations, or
associations qualified to acquire or hold lands of the public domain in the
Philippines." (Art. XIII.).
The court a quo upheld the validity of the usufruct given to Wanda on the
ground that the Constitution covers not only succession by operation of law
but also testamentary succession. We are of the opinion that the
Constitutional provision which enables aliens to acquire private lands does
not extend to testamentary succession for otherwise the prohibition will be
for naught and meaningless. Any alien would be able to circumvent the
prohibition by paying money to a Philippine landowner in exchange for a
devise of a piece of land.
This opinion notwithstanding, We uphold the usufruct in favor of Wanda
because a usufruct, albeit a real right, does not vest title to the land in the
usufructuary and it is the vesting of title to land in favor of aliens which is
proscribed by the Constitution. LexLib
IN VIEW OF THE FOREGOING, the estate of Jose Eugenio Ramirez is hereby
ordered distributed as follows:
One-half (1/2) thereof to his widow as her legitime;
One-half (1/2) thereof which is the free portion to Roberto and Jorge
Ramirez in naked ownership and the usufruct to Wanda de Wrobleski with
a simple substitution in favor of Juan Pablo Jankowski and Horace V.
Ramirez.
The distribution herein ordered supersedes that of the court a quo. No
special pronouncement as to costs.
SO ORDERED.
209
ARTICLE 863
Testate Estate 0f Jose Eugenio Ramirez vs. Vda. De Ramirez (G.R. No. L-
27952, February 15, 1982) --- supra
PCIB vs. Pablico (56 SCRA 266) --- supra, p. 173
Rabadilla vs. CA (June 29, 2000) --- supra, p. 205
ARTICLE 882
Rabadilla vs. CA (June 29, 2000) --- supra, p. 205
ARTICLE 888
REGINA FRANCISCO AND ZENAIDA PASCUAL, petitioners, vs. AIDA
FRANCISCO-ALFONSO, respondent.||| (Francisco v. Francisco-Alfonso,
G.R. No. 138774, [March 8, 2001], 406 PHIL 556-565)
PARDO, J p:
May a legitimate daughter be deprived of her share in the estate of her
deceased father by a simulated contract transferring the property of her
father to his illegitimate children?
The case before the Court is an appeal via certiorari from the decision of
the Court of Appeals 1 declaring void the deed of sale of two parcels of
land conveyed to petitioners who are illegitimate children of the deceased
to the exclusion of respondent, his sole legitimate daughter.
The facts 2 are:
Respondent Aida Francisco-Alfonso (hereafter Aida) is the only daughter of
spouses Gregorio Francisco and Cirila de la Cruz, who are now both
deceased.
Petitioners, on the other hand, are daughters of the late Gregorio Francisco
with his common law wife Julia Mendoza, with whom he begot seven (7)
children.
Gregorio Francisco (hereafter Gregorio) owned two parcels of residential
land, situated in Barangay Lolomboy, Bocaue, Bulacan, covered by TCT
Nos. T-32740 and T-117160. When Gregorio was confined in a hospital in
1990, he confided to his daughter Aida that the certificates of title of his
property were in the possession of Regina Francisco and Zenaida Pascual.
After Gregorio died on July 20, 1990, 3 Aida inquired about the certificates
of title from her half sisters. They informed her that Gregorio had sold the
land to them on August 15, 1983. After verification, Aida learned that there
was indeed a deed of absolute sale in favor of Regina Francisco and
Zenaida Pascual. Thus, on August 15, 1983, Gregorio executed a "Kasulatan
sa Ganap na Bilihan, whereby for P25,000.00, he sold the two parcels of
land to Regina Francisco and Zenaida Pascual. By virtue of the sale, the
Register of Deeds of Bulacan issued TCT No. T-59.585 to Regina Francisco
and TCT T-59.586 to Zenaida Pascual. 4
On April 1, 1991, Aida filed with the Regional Trial Court, Bulacan a
complaint against petitioners for annulment of sale with damages. 5 She
alleged that the signature of her late father, Gregorio Francisco, on the
Kasulatan sa Ganap na Bilihan dated August 15, 1983, was a forgery.
In their joint answer to the complaint, petitioners denied the alleged forgery
or simulation of the deed of sale. After due proceedings, on July 21, 1994,
the trial court rendered a decision dismissing the complaint. The dispositive
portion reads:
"WHEREFORE, on the basis of the evidence adduced and the law
applicable thereon, the Court hereby renders judgment:
"a) sustaining the validity of the "Kasulatan Sa Ganap Na Bilihan" (Exh. "G")
executed on 15 August 1993 by the late Gregorio Francisco in favor of the
defendants;
"b) affirming the validity of the Transfer Certificates of Title No. T-59.585 (Exh.
"I") issued to defendant Regina Francisco and No. T-59.386 (Exh. "H") issued
to defendant Zenaida Pascual; and
"c) dismissing the complaint as well as the defendants' counterclaim for
damages and attorney's fees for lack of merit." 6
In time 7 , respondent Alfonso appealed to the Court of Appeals. 8
After due proceedings, on April 30, 1999, the Court of Appeals promulgated
its decision reversing that of the trial court, the dispositive portion of which
reads:
"WHEREFORE, the Decision dated July 21, 1994 of the court a quo is
REVERSED and SET ASIDE and another rendered as follows:
"1. The Kasulatan Sa Ganap na Bilihan dated August 15, 1983 (Exhibit "G") is
declared null and void from the beginning and TCT Nos. T-59.585 (M) and T-
59-586 (M), both of the Registry of Deeds of Bulacan (Meycauayan Branch)
in the names of Regina Francisco and Zenaida Pascual, respectively, are
annulled and cancelled;
"2. The Register of Deeds of Bulacan (Meycauayan Branch) is ordered to
cancel the aforementioned TCT Nos. T-59.585 (M) and T-59.586 (M) and to
reinstate Transfer Certificates of Title Nos. T-132740 and T-117160 both in the
name of Gregorio Francisco.
"3. Defendants-appellees Regina Francisco and Zenaida Pascual jointly
and solidarily are ordered to pay plaintiff-appellant Alfonso the amount of
P5,000.00 as moral damages, P5,000.00 as exemplary damages and
P5,000.00 as attorney's fees.
"4. The counterclaim of defendants-appellees is dismissed for lack of merit.
"Costs of suit against said defendants-appellees." 9
Hence, this petition. 10
The main issue raised is whether the Supreme Court may review the factual
findings of the appellate court. The jurisdiction of this Court in cases brought
before it from the Court of Appeals under Rule 45 of the Revised Rules of
Court is limited to review of pure errors of law. It is not the function of this
Court to analyze or weigh evidence all over again, unless there is a showing
that the findings of the lower court are totally devoid of support or are
glaringly erroneous as to constitute grave abuse of discretion. 11
The findings of fact of the Court of Appeals supported by substantial
evidence are conclusive and binding on the parties and are not
reviewable by this Court, 12 unless the case falls under any of the
recognized exceptions to the rule. 13
Petitioner has failed to prove that the case falls within the exceptions. 14
We affirm the decision of the Court of Appeals because:
First: The kasulatan was simulated. There was no consideration for the
contract of sale. Felicitas de la Cruz, a family friend of the Franciscos,
testified that Zenaida Pascual and Regina Francisco did not have any
source of income in 1983, when they bought the property, until the time
when Felicitas testified in 1991. 15
As proof of income, however, Zenaida Pascual testified that she was
engaged in operating a canteen, working as cashier in Mayon Night Club
as well as buying and selling RTW (Ready to Wear) items in August of 1983
and prior thereto.
Zenaida alleged that she paid her father the amount of P10,000.00. She did
not withdraw money from her bank account at the Rural Bank of
Meycauayan, Bulacan, to pay for the property. She had personal savings
other than those deposited in the bank. Her gross earnings from the RTW for
three years was P9,000.00, and she earned P50.00 a night at the club. 16
Regina Francisco, on the other hand, was a market vendor, selling nilugaw,
earning a net income of P300.00 a day in 1983. She bought the property
from the deceased for P15,000.00. 17 She had no other source of income.
We find it incredible that engaging in buy and sell could raise the amount
of P10,000.00, or that earnings in selling goto could save enough to pay
P15,000.00, in cash for the land.
The testimonies of petitioners were incredible considering their inconsistent
statements as to whether there was consideration for the sale and also as
210
to whether the property was bought below or above its supposed market
value. They could not even present a single witness to the kasulatan that
would prove receipt of the purchase price.

Since there was no cause or consideration for the sale, the same was a
simulation and hence, null and void. 18

Second: Even if the kasulatan was not simulated, it still violated the Civil
Code 19 provisions insofar as the transaction affected respondent's
legitime. The sale was executed in 1983, when the applicable law was the
Civil Code, not the Family Code.

Obviously, the sale was Gregorio's way to transfer the property to his
illegitimate daughters 20 at the expense of his legitimate daughter. The sale
was executed to prevent respondent Alfonso from claiming her legitime
and rightful share in said property. Before his death, Gregorio had a change
of heart and informed his daughter about the titles to the property.

According to Article 888, Civil Code:

"The legitime of 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."

Gregorio Francisco did not own any other property. If indeed the parcels of
land involved were the only property left by their father, the sale in fact
would deprive respondent of her share in her father's estate. By law, she is
entitled to half of the estate of her father as his only legitimate child. 21

The legal heirs of the late Gregorio Francisco must be determined in proper
testate or intestate proceedings for settlement of the estate. His compulsory
heir can not be deprived of her share in the estate save by disinheritance
as prescribed by law. 22

WHEREFORE, the petition is hereby DENIED. The decision of the Court of

Appeals in CA-G.R. CV No. 48545 is AFFIRMED, in toto.

No costs.

SO ORDERED.

211
ARTICLE 891
[G.R. No. L-29901. August 31, 1977.]
IGNACIO FRIAS CHUA, DOMINADOR CHUA and REMEDIOS CHUA,
petitioners, vs. THE COURT OF FIRST INSTANCE OF NEGROS OCCIDENTAL,
BRANCH V and SUSANA DE LA TORRE, in her capacity as Administratrix of
the Intestate Estate of Consolacion de la Torre, respondents.
MARTIN, J p:
Petition for review of the decision of the respondent Court which dismissed
the complaint of petitioners in Civil Case No. 7839-A, entitled "Ignacio Frias
Chua, et al. vs. Susana de la Torre, Administratrix of the Intestate Estate of
Consolacion de la Torre."
It appears that in the first marriage of Jose Frias Chua with Patricia S. Militar
alias Sy Quio, he sired three children, namely: Ignacio, Lorenzo and Manuel,
all surnamed Frias Chua. When Patricia S. Militar died, Jose Frias Chua
contracted a second marriage with Consolacion de la Torre with whom he
had a child by the name of Juanito Frias Chua. Manuel Frias Chua died
without leaving any issue. Then in 1929, Jose Frias Chua died intestate
leaving his widow Consolacion de la Torre and his son Juanito Frias Chua of
the second marriage and sons Ignacio Frias Chua and Lorenzo Frias Chua
of his first marriage. In Intestate Proceeding No. 4816, the lower court issued
an order dated January 15, 1931 1 adjudicating, among others, the one-
half (1/2) portion of Lot No. 399 and the sum of P8,000.00 in favor of Jose
Frias Chua's widow, Consolacion de la Torre, the other half of Lot No. 399 in
favor of Juanito Frias Chua, his son in the second marriage; marriage;
P3,000.00 in favor of Lorenzo Frias Chua; and P1,550.00 in favor of Ignacio
Frias, Chua , his sons in the second marriage; By the virtue of said
adjudication, Transfer Certificate of Title No. TR-980 (14483) 2 dated April 28,
1932 was issued by the Register of Deeds in the names of Consolacion de
la Torre and Juanito Frias Chua as owners-pro-indiviso of Lot No. 339.
On February 27, 1952, Juanito Frias Chua of the second marriage died
intestate without any issue. After his death, is mother Consolacion de la
Torre succeeded to his pro-indiviso share of her son Juanito as a result of
which Transfer Certificate of Title No. 31796 covering the whole Lot No. 399
was issued in her name. Then on March 5, 1966, Consolacion de la Torre
died intestate leaving no direct heir either in the descending or ascending
line except her brother and sisters. cdrep
In the "Intestate Estate of Consolacion de la Torre", docketed as Sp. Proc.
No. 7839-A, the petitioners herein, Ignacio Frias Chua, of the first marriage
and Dominador and Remedios Chua, the supposed legitimate children of
the deceased Lorenzo Frias Chua, also of the first marriage filed the
complaint a quo 3 (subsequently segregated as distinct suit and docketed
as Civil Case No. 7839-A) on May 11, 1966 before the respondent Court of
First Instance of Negros Occidental, Branch V, praying that the one-half
(1/2) portion of Lot No. 399 which formerly belonged to Juanito Frias Chua
but which passed to Consolacion de la Torre upon the latter's death, be
declared as reservable property for the reason that the lot in question was
subject to reserva troncal pursuant to Article 981 of the New Civil code.
private respondent as administratrix of the estate of the Consolacion de la
Torre and the heirs of the latter traversed individually the complaint of
petitioners. 4
On July 29, 1968, the respondent Court rendered a decision dismissing the
complaint of petitioners. Hence this instant petition.
The pertinent provision on reserva troncal under the New Civil Code
provides:
"ART. 891. The ascendant who inherits from his descendant any property
which the latter may have required by gratuitous title from another
ascendant, or a brother or sister, is obliged to reserve such property as he
may have acquired by operation of law for the benefit of relatives who are
within the third degree and belong to the line Iron which said property
came."
Pursuant to the foregoing provision, in order that a property may be
impressed with a reservable character the following requisites must exist, to
wit: (1) that the property was acquired by a descendant from an
ascendant or from a brother or sister by gratuitous title; (2) that said
descendant died without an issue: (3) that the property is inherited by
another ascendant by operation of law; and (4) that there are relatives
within the third degree belonging to the line from which said property
came. 5 In the case before Us, all of the foregoing requisites are present.
Thus, as borne out by the records, Juanito Frias Chua of the second
marriage died intestate in 1952; he died without leaving any issue; his pro-
indiviso of 1/2 share of Lot No. 399 was acquired by his mother, Consolacion
de la Torre by operation of law. When Consolacion de la Torre died, Juanito
Frias Chua who died intestate had relatives within the third degree. These
relatives are Ignacio Frias Chua and Dominador Chua and Remedios Chua,
the supposed legitimate children of the deceased Lorenzo Frias Chua, who
are the petitioners herein.
The crux of the problem in instant petition is focused on the first requisite of
reserva troncal whether the property in question as acquired by Juanito
Frias Chua from his father, Jose Frias Chua, gratuitously or not. In resolving
this point, the respondent Court said:
"It appears from Exh. "3", which is part of Exh. "D", that the property in
question was not acquired by Consolacion de la Torre and Juanito Frias
Chua gratuitously but for a consideration, namely, that the legatees were
to pay the interest and cost and other fees resulting from Civil Case No.
5300 of this Court As such it is undeniable that the lot in question is not
subject to a reserva troncal, under Art. 891 of the New Civil Code, and as
such the plaintiff's complaint must fail."
We are not prepared to sustain the respondent Court's conclusion that the
lot in question is not subject to a reserva troncal under Art. 891 of the New
Civil Code. It is, As explained by Manresa which this Court quoted with
approval in Cabardo v. Villanueva, 44 Phil. 186, "The transmission is
gratuitous or by gratuitous title when the recipient does not give anything
in return." It matters not whether the property transmitted be or be not
subject to any prior charges; what is essential is that the transmission be
made gratuitously, or by an act of mere liberality of the person making it,
without imposing any obligation on the part of the recipient; and that the
person receiving the property gives or does nothing in return; or, as ably put
by an eminent Filipino commentator, 6 "the essential thing is that the person
who transmits it does so gratuitously, from pure generosity, without requiring
from the transferee any prestation." It is evident from the record that the
transmission of the property in question to Juanito Frias Chua of the second
marriage upon the death of his father Jose Frias Chua was by means of a
hereditary succession and therefore gratuitous. It is true that there is the
order (Exh. "D") of the probate Court in Intestate Proceeding No. 4816 which
states in express terms: cdrep
"2. Se adjudicada por el presente a favor de Consolacion de la Torre,
viuda, mayor de edad, y de su hijo, Juanito Frias Chua, menor de edad,
todos residentes de San Enrique, Negros Occidental, I.F., como herederos
del finado Jose Frias Chua Choo, estas propiadades:
14483
La parcela de terreno conocida por Lote No. 399 del Catastro de la
Carlota, Negros Occidental, de 191.954 metros cuadrados y cubierto por
el Certificado de Titulo No. 11759, en partes equales pro-indiviso; por con
la obligacion de pagar a las Standard Oil Co. of New York la deuda de
P3,971.20, sus intereses, costas y demas gastos resultantes del asunto civil
No. 5300 de este Jusgado."
But the obligation of paying the Standard Oil Co. of New York the amount
of P3,971.20 is imposed upon Consolacion de la Torre and Juanito Frias
Chua not personally by the deceased Jose Frias Chua in his last will and
testament but by an order of the court in the Testate Proceeding No. 4816
dated January 15, 1931. As long as the transmission of the property to the
heirs is free from any condition imposed by the deceased himself and the
property is given out of pure generosity, it is gratuitous. It does not matter if
later the court orders one of the heirs, in this case Juanito Frias Chua, to pay
the Standard Oil Co. of New York the amount of P3,971.20 This does not
change the gratuitous nature of the transmission of the property to him. As
far as the deceased Jose Frias Chua is concerned the transmission of the
property to his heirs is gratuitous. This being the case the lot in question is
subject to reserva troncal under Art. 891 of the New Civil Code.
It is contended that the distribution of the shares of the estate of Jose Frias
Chua to the respondent heirs or legatees was agreed upon by the heirs in
their project of partition based on the last will and testament of Jose Frias
Chua. But petitioners claim that the supposed Last Will and Testament of
Jose Frias Chua was never probated. The fact that the will was not
probated was admitted in paragraph 6 of the respondents' answer. 7 There
is nothing mentioned in the decision of the trial court in Civil Case No. 7839
A which is the subject of the present appeal nor in the order of January 15,
1931 of the trial court in the Testate Estate Proceeding No. 4816 nor in the
private respondents' brief, that the Last Will and Testament of Jose Frias
Chua has ever been probated. With the foregoing, it is easy to deduce that
if the Last Will and Testament has in fact been probated there would have
been no need for the testamentary heirs to prepare a project of partition
among themselves. The very will itself could be made the basis for the
adjudication of the estate as in fact they did in their project of partition with
212
Juanito Frias Chua getting one-half of Lot 399 by inheritance as a son of the
deceased Jose Frias Chua by the latter's second marriage.

According to the records, Juanito Frias Chua died on February 27, 1952
without any issue. After his death his mother Consolacion de la Torre
succeeded to his one-half pro-indiviso share of Lot 399. This was, however,
subject to the condition that the property was reservable in character
under Art. 891 of the Civil Code in favor of relatives within the third degree
of Jose Frias Chua from whom the property came. These relatives are the
petitioners herein. cdphil

It is claimed that the complaint of petitioners to recover the one-half portion

of Lot 399 which originally belonged to Juanito Frias Chua has already
prescribed when it was filed on May 11, 1966. We do not believe so. It must
be remembered that the petitioners herein are claiming as reservees of the
property in question and their cause of action as reservees did not arise until
the time the reservor, Consolacion de la Torre, died in March 1966. When
the petitioners therefore filed their complaint to recover the one-half (1/2)
portion of Lot 399, they were very much in time to do so.

IN VIEW OF THE FOREGOING, the decision appealed from is hereby set

aside. The petitioners Ignacio Frias Chua, Dominador Chua and Remedios
Chua are declared owners of 1/2 undivided portion of Lot 399; and the
Register of Deeds of Negros Occidental is hereby ordered to cancel.
Transfer Certificate of Title No. 31796 covering Lot No. 399 issued in the name
of Consolacion de la Torre and to issue a new Certificate of Title in the
names of Consolacion de la Torre, 1/2 undivided portion; Ignacio Frias
Chua, 1/4 undivided portion; and Dominador Chua and Remedios Chua,
1/4 undivided portion, of said lot. Without pronouncement as to costs.

SO ORDERED.

213
[G.R. No. L-34395. May 19, 1981.]
BEATRIZ L. GONZALEZ, petitioner, vs. COURT OF FIRST INSTANCE OF MANILA
(BRANCH V), BENITO F. LEGARDA, ROSARIO L. VALDES, ALEJANDRO
LEGARDA, TERESA LEGARDA, JOSE LEGARDA, BENITO LEGARDA Y
FERNANDEZ, CARMEN LEGARDA Y FERNANDEZ, FILOMENA LEGARDA Y
HERNANDEZ, CARMEN LEGARDA Y HERNANDEZ, ALEJANDRO LEGARDA Y
HERNANDEZ, RAMON LEGARDA Y HERNANDEZ, FILOMENA LEGARDA Y
LOBREGAT, JAIME LEGARDA Y LOBREGAT, CELSO LEGARDA Y LOBREGAT,
ALEJANDRO LEGARDA Y LOBREGAT, MA. TERESA LEGARDA Y LOBREGAT, MA.
ANTONIA LEGARDA Y LOBREGAT, JOSE LEGARDA Y LOBREGAT, ROSARIO
LEGARDA Y LOBREGAT, BENITO LEGARDA Y LOBREGAT, EDUARDO LEGARDA
Y LOBREGAT, TRINIDAD F. LEGARDA, and the ESTATE OF DOA FILOMENA
ROCES DE LEGARDA, respondents.
AQUINO, J p:
Beatriz Legarda Gonzalez appealed from the decision of the Court of First
Instance of Manila, dismissing her complaint for partition, accounting,
reconveyance and damages and holding, as not subject to reserva
troncal, the properties which her mother Filomena Roces inherited in 1943
from Filomena Legarda (Civil Case No. 73335). The facts are as follows:
Benito Legarda y De la Paz, the son of Benito Legarda y Tuason, died in
Manila on June 17, 1933. He was survived by his widow, Filomena Roces,
and their seven children: four daughters named Beatriz, Rosario, Teresa and
Filomena and three sons named Benito, Alejandro and Jose.
On July 12, 1939, the real properties left by Benito Legarda y Tuason were
partitioned in three equal portions by his daughters, Consuelo and Rita, and
the heirs of his deceased son Benito Legarda y De la Paz who were
represented by Benito F. Legarda.
Filomena Legarda y Roces died intestate and without issue on March 19,
1943. Her sole heiress was her mother, Filomena Roces Vda. de Legarda.
Mrs. Legarda executed on May 12, 1947 an affidavit adjudicating
extrajudicially to herself the properties which she inherited from her
deceased daughter, Filomena Legarda. The said properties consist of the
following:
(a) Savings deposit in the National City Bank of New York with a credit
balance of P3,699.63.
(b) 1,429 shares of the Benguet Consolidated Mining Company and a 1/7
interest in certain shares of the San Miguel Brewery, Tuason & Legarda, Ltd.,
Philippine Guaranty Company, Insular Life Assurance Company and the
Manila Times.
(c) 1/7 of the properties described in TCT Nos. 80226, 80237 to 80243 (7 titles),
80260, 80261 and 57512 of the Manila registry of deeds.
1/21st of the properties covered by TCT Nos. 48164, 84714, 48201, 48202,
48205, 48203, 48206, 48160 and 48192 of the Manila registry of deeds;
1/21st of the property described in TCT No. 4475 of the registry of deeds of
Rizal, now Quezon City; 1/14th of the property described in TCT No. 966 of
the registry of deeds of Baguio;
1/7th of the lot and improvements at 127 Aviles described in TCT No. 41862
of the Manila registry of deeds;
1/7th of the lots and improvements at 181 San Rafael described in TCT Nos.
50495 and 48161 of the Manila registry of deeds;
properties which should be inherited by Filomena Legarda's three sisters
1/7th of the property described in TCT No. 48163 of the Manila registry of
deeds (Streets);
1/21st of the properties described in TCT Nos. 48199 and 57551 of the Manila
registry of deeds (Streets and Estero);
2/21st of the property described in TCT No. 13458 of the registry of deeds of
Tayabas.
These are the properties in litigation in this case. As a result of the affidavit
of adjudication, Filomena Roces succeeded her deceased daughter
Filomena Legarda as co-owner of the properties held proindiviso by her
other six children.
Mrs. Legarda on March 6, 1953 executed two hand-written identical
documents wherein she disposed of the properties, which she inherited
from her daughter, in favor of the children of her sons, Benito, Alejandro and
Jose (sixteen grandchildren in all). The document reads:
"A mis hijos:
"Dispongo que se reparta a todos mis nietos, hijos de Ben, Mandu y Pepito,
los bienes que he heredado de mi difunta hija Filomena y tambien los
acciones de la Distileria 'La Rosario' recientemente comprada a los
hermanos Valdes Legarda.
"De los bienes de mi hija Filomena se deducira un lote de terreno que yo
he donada a las Hijas de Jesus, en Guipit.
"La casa No. 181 San Rafael, la cedo a mi hijo Mandu, solo la casa; porque
ella esta construida sobre terreno de los hermanos Legarda Roces.
"(Sgd.) FILOMENA ROCES LEGARDA
"6 Marzo 1953"
During the period from July, 1958 to February, 1959 Mrs. Legarda and her six
surviving children partitioned the properties consisting of the one-third share
in the estate of Benito Legarda y Tuason which the children inherited in
representation of their father, Benito Legarda y De la Paz.
Mrs. Legarda died on September 22, 1967. Her will was admitted to probate
as a holographic will in the order dated July 16, 1968 of the Court of First
Instance of Manila in Special Proceeding No. 70878, Testate Estate of
Filomena Roces Vda. de Legarda. The decree of probate was affirmed by
the Court of Appeals in Legarda vs. Gonzalez, CA-G.R. No. 43480-R, July 30,
1976.
In the testate proceeding, Beatriz Legarda Gonzalez, a daughter of the
testatrix, filed on May 20, 1968 a motion to exclude from the inventory of
her mother's estate the properties which she inherited from her deceased
daughter, Filomena, on the ground that said properties are reservable
and three brothers and not by the children of Benito, Alejandro and Jose,
all surnamed Legarda. That motion was opposed by the administrator,
Benito F. Legarda.
Without awaiting the resolution on that motion, Mrs. Gonzalez filed on June
20, 1968 an ordinary civil action against her brothers, sisters, nephews and
nieces and her mother's estate for the purpose of securing a declaration
that the said properties are reservable properties which Mrs. Legarda could
not bequeath in her holographic will to her grandchildren to the exclusion
of her three daughters and her three sons (See Paz vs. Madrigal, 100 Phil.
1085).
As already stated, the lower court dismissed the action of Mrs. Gonzalez. In
this appeal under Republic Act No. 5440 she contends in her six assignments
of error that the lower court erred in not regarding the properties in question
as reservable properties under article 891 of the Civil Code.
On the other hand, defendants-appellees in their six counter-assignments
of error contend that the lower court erred in not holding that Mrs. Legarda
acquired the estate of her daughter Filomena Legarda in exchange for her
conjugal and hereditary shares in the estate of her husband Benito Legarda
y De la Paz and in not holding that Mrs. Gonzalez waived her right to the
reservable properties and that her claim is barred by estoppel, laches and
prescription.
The preliminary issue raised by the private respondents as to the timeliness
of Mrs. Gonzalez' petition for review is a closed matter. This Court in its
resolution of December 16, 1971 denied respondents' motion to dismiss and
gave due course to the petition for review.
In an appeal under Republic Act No. 5440 only legal issues can be raised
under undisputed facts. Since on the basis of the stipulated facts the lower
court resolved only the issue of whether the properties in question are
subject to reserva troncal, that is the only legal issue to be resolved in this
appeal.
The other issues raised by the defendants-appellees, particularly those
involving factual matters, cannot be resolved in this appeal. As the trial
court did not pass upon those issues, there is no ruling which can be
reviewed by this Court.
214

The question is whether the disputed properties are reservable properties
under article 891 of the Civil Code, formerly article 811, and whether
Filomena Roces Vda. de Legarda could dispose of them in her will in favor
of her grandchildren to the exclusion of her six children.
Did Mrs. Legarda have the right to convey mortis causa what she inherited
from her daughter Filomena to the reservees within the third degree and to
bypass the reservees in the second degree or should that inheritance
automatically go to the reservees in the second degree, the six children of
Mrs. Legarda?
As will hereinafter be shown that is not a novel issue or a question of first
impression. It was resolved in Florentino vs. Florentino, 40 Phil. 480. Before
discussing the applicability to this case of the doctrine in the Florentino case
and other pertinent rulings, it may be useful to make a brief discourse on
the nature of reserva troncal, also called lineal, familiar, extraordinaria o
semi-troncal.
Much time, effort and energy were spent by the parties in their five briefs in
descanting on the nature of reserva troncal, which together with the
reserva viudal and reversion legal, was abolished by the Code Commission
to prevent the decedent's estate from being entailed, to eliminate the
uncertainty in ownership caused by the reservation (which uncertainty
impedes the improvement of the reservable property) and to discourage
the confinement of property within a certain family for generations which
situation allegedly leads to economic oligarchy and is incompatible with
the socialization of ownership.
The Code Commission regarded the reservas as remnants of feudalism
which fomented agrarian unrest. Moreover, the reservas, insofar as they
penalize legitimate relationship, is considered unjust and inequitable.
However, the lawmaking body, not agreeing entirely with the Code
Commission, restored the reserva troncal, a legal institution which,
according to Manresa and Castan Tobeas, has provoked questions and
doubts that are difficult to resolve.
Reserva troncal is provided for in article 811 of the Spanish Civil Code, now
article 891, which reads:
"ART. 811. El ascendiente que heredare de su descendiente bienes que ste
hubiese adquirido por titulo lucrativo de otro ascendiente, o de un
hermano, se halla obligado reservar los que hubiere adquirido por
ministerio de la ley en favor de los parientes que esten dentro del tercer
grado y pertenezcan a la linea de donde los bienes proceden."
"ART. 891. The ascendant who inherits from his descendant any property
which the latter may have acquired by gratuitous title from another
ascendant, or a brother or sister, is obliged to reserve such property as he
may have acquired by operation of law for the benefit of relatives who are
within the third degree and who belong to the line from which said property
came. "
In reserva troncal, (1) a descendant inherited or acquired by gratuitous title
property from an ascendant or from a brother or sister; (2) the same
property is inherited by another ascendant or is acquired by him by
operation of law from the said descendant, and (3) the said ascendant
should reserve the said property for the benefit of relatives who are within
the third degree from the deceased descendant ( prepositus) and who
belong to the line from which the said property came.
So, three transmissions are involved: (1) a first transmission by lucrative title
(inheritance or donation) from an ascendant or brother or sister to the
deceased descendant; (2) a posterior transmission, by operation of law
(intestate succession or legitime) from the deceased descendant
(causante de la reserva) in favor of another ascendant, the reservor or
reservista, which two transmissions precede the reservation, and (3) a third
transmission of the same property (in consequence of the reservation) from
the reservor to the reservees (reservatarios) or the relatives within the third
degree from the deceased descendant belonging to the line of the first
ascendant, brother or sister of the deceased descendant (6 Castan
Tobeas, Derecho Civil, Part I, 1960, 6th Ed., pp. 198-9).
If there are only two transmissions there is no reserva. Thus, where one
Bonifacia Lacerna died and her properties were inherited by her son, Juan
Marbebe, upon the death of Juan, those lands should be inherited by his
half-sister, to the exclusion of his maternal first cousins. The said lands are not
reservable property within the meaning of article 811 (Lacerna vs. Vda. de
Corcino, 111 Phil. 872).
The persons involved in reserva troncal are (1) the ascendant or brother or
sister from whom the property was received by the descendant by lucrative
or gratuitous title, (2) the descendant or prepositus ( propositus) who
received the property, (3) the reservor (reservista), the other ascendant
who obtained the property from the prepositus by operation of law and (4)
the reservee (reservatario) who is within the third degree from the prepositus
and who belongs to the line (linea o tronco) from which the property came
and for whom the property should be reserved by the reservor.
The reservees may be half-brothers and sisters (Rodriguez vs. Rodriguez, 101
Phil. 1098; Chua vs. Court of First Instance of Negros Occidental, L-29901,
August 31, 1977, 78 SCRA 412). Fourth degree relatives are not included
(Jardin vs. Villamayor, 72 Phil. 392).
The rationale of reserva troncal is to avoid "el peligro de que bienes
poseidos secularmente por una familia pasen bruscamente a titulo gratuito
a manos extraas por el azar de los enlaces y muertes prematuras", or
"impedir que, por un azar de la vida, personas extraas a una familia
puedan adquirir bienes que sin aquel hubieran quedado en ella" (6 Castan
Tobeas, Derecho Civil, Part 1, 6th Ed., 1960, p. 203; Padura vs. Baldovino,
104 Phil. 1065).
An illustration of reserva troncal is found in Edroso vs. Sablan, 25 Phil. 295. In
that case, Pedro Sablan inherited two parcels of land from his father
Victoriano. Pedro died in 1902, single and without issue. His mother,
Marcelina Edroso, inherited from him the two parcels of land.
It was held that the land was reservable property in the hands of Marcelina.
The reservees were Pablo Sablan and Basilio Sablan, the paternal uncles of
Pedro Sablan, the prepositus. Marcelina could register the land under the
Torrens system in her name but the fact that the land was reservable
property in favor of her two brothers-in-law, should they survive her, should
be noted in the title.
In another case, it appears that Maria Aglibot died intestate in 1906. Her
one-half share of a parcel of conjugal land was inherited by her daughter,
Juliana Maalac. When Juliana died intestate in 1920, said one-half share
was inherited by her father, Anacleto Maalac who owned the other one-
half portion.
Anacleto died intestate in 1942, survived by his second wife and their six
children. It was held that the said one-half portion was reservable property
in the hands of Anacleto Maalac and, upon his death, should be inherited
by Leona Aglibot and Evarista Aglibot, sisters of Maria and maternal aunts
of Juliana Maalac, who belonged to the line from which said one-half
portion came (Aglibot vs. Maalac, 114 Phil. 964).
Other illustrations of reserva troncal are found in Florentino vs. Florentino, 40
Phil. 480; Nieva and Alcala vs. Alcala and Deocampo, 41 Phil. 915;
Maghirang and Gutierrez vs. Balcita, 46 Phil. 551; Lunsod vs. Ortega, 46 Phil.
664; Dizon vs. Galang, 48 Phil. 601; Riosa vs. Rocha, 48 Phil. 737; Centeno vs.
Centeno, 52 Phil. 322; Velayo Bernardo vs. Siojo, 58 Phil. 89; Director of Lands
vs. Aguas, 63 Phil. 279; Fallorfina vs. Abille, CA 39 O.G. 1784.
The person from whom the degree should be reckoned is the descendant,
or the one at the end of the line from which the property came and upon
whom the property last revolved by descent. He is called the prepositus
(Cabardo vs. Villanueva, 44 Phil. 186, 190).
In the Cabardo case, one Cornelia Abordo inherited property from her
mother, Basilia Cabardo. When Cornelia died, her estate passed to her
father, Lorenzo Abordo. In his hands, the property was reservable property.
Upon the death of Lorenzo, the person entitled to the property was Rosa
Cabardo, a maternal aunt of Cornelia, who was her nearest relative within
the third degree.
First cousins of the prepositus are in the fourth degree and are not reservees.
They cannot even represent their parents because representation is
confined to relatives within the third degree (Florentino vs. Florentino, 40 Phil.
480).
Within the third degree, the nearest relatives exclude the more remote
subject to the rule of representation. But the representative should be within
the third degree from the prepositus (Padura vs. Baldovino, 104 Phil. 1065).
215
Reserva troncal contemplates legitimate relationship. Illegitimate
relationship and relationship by affinity are excluded.
Gratuitous title or titulo lucrativo refers to a transmission wherein the
recipient gives nothing in return such as donation and succession (Cabardo
vs. Villanueva, 44 Phil. 186-189-190, citing 6 Manresa, Codigo Civil, 7th Ed.,
1951, p. 360).
The reserva creates two resolutory conditions, namely, (1) the death of the
ascendant obliged to reserve and (2) the survival, at the time of his death,
of relatives within the third degree belonging to the line from which the
property came (Sienes vs. Esparcia, 111 Phil. 349, 353).
The reservor has the legal title and dominion to the reservable property but
subject to the resolutory condition that such title is extinguished if the
reservor predeceased the reservee. The reservor is a usufructuary of the
reservable property. He may alienate it subject to the reservation. The
transferee gets the revocable and conditional ownership of the reservor.
The transferee's rights are revoked upon the survival of the reservees at the
time of the death of the reservor but become indefeasible when the
reservees predecease the reservor. (Sienes vs. Esparcia, 111 Phil. 349, 353;
Edroso vs. Sablan, 25 Phil. 295; Lunsod vs. Ortega, 46 Phil. 664; Florentino vs.
Florentino, 40 Phil. 480; Director of Lands vs. Aguas, 63 Phil. 279.)
The reservor's title has been compared with that of the vendee a retro in a
pacto de retro sale or to a fideicomiso condicional.
The reservor's alienation of the reservable property is subject to a resolutory
condition, meaning that if at the time of the reservor's death, there are
reservees, the transferee of the property should deliver it to the reservees. If
there are no reservees at the time of the reservor's death, the transferee's
title would become absolute (Lunsod vs. Ortega, 46 Phil. 664; Gueco vs.
Lacson, 118 Phil. 944; Nono vs. Nequia, 93 Phil. 120).
On the other hand, the reservee has only an inchoate, expectant or
contingent right. His expectant right would disappear if he predeceased
the reservor. It would become absolute should the reservor predecease the
reservee.
The reservee cannot impugn any conveyance made by the reservor but
he can require that the reservable character of the property be recognized
by the purchaser (Riosa vs. Rocha, 48 Phil. 737; Edroso vs. Sablan, 25 Phil.
295, 312-3; Gueco vs. Lacson, 118 Phil. 944).
There is a holding that the renunciation of the reservee's right to the
reservable property is illegal for being a contract regarding future
inheritance (Velayo Bernardo vs. Siojo, 58 Phil. 89, 96).
And there is a dictum that the reservee's right is a real right which he may
alienate and dispose of conditionally. The condition is that the alienation
shall transfer ownership to the vendee only if and when the reservee
survives the reservor (Sienes vs. Esparcia, 111 Phil. 349, 353).
"The reservatario receives the property as a conditional heir of the
descendant ( prepositus), said property merely reverting to the line of origin
from which it had temporarily and accidentally strayed during the
reservista's lifetime. The authorities are all agreed that there being
reservatarios that survive the reservista, the latter must be deemed to have
enjoyed no more than a life interest in the reservable property." (J. J.B.L.
Reyes in Cano vs. Director of Lands, 105 Phil. 1, 5.)
"Even during the reservista's lifetime, the reservatarios, who are the ultimate
acquirers of the property, can already assert the right to prevent the
reservista from doing anything that might frustrate their reversionary right,
and, for this purpose, they can compel the annotation of their right in the
registry of property even while the reservista is alive" (Ley Hipotecaria de
Ultramar, Arts. 168, 199; Edroso vs. Sablan, 25 Phil. 295).
This right is incompatible with the mere expectancy that corresponds to the
natural heirs of the reservista. It is likewise clear that the reservable property
is no part of the estate of the reservista who may not dispose of them (it) by
will, so long as there are reservatarios existing (Arroyo vs. Gerona, 58 Phil.
226, 237).
"The latter, therefore, do not inherit from the reservista but from the
descendant prepositus, of whom the reservatarios are the heirs mortis
causa, subject to the condition that they must survive the reservista."
(Sanchez Roman, Vol. VI, Tomo 2, p. 286; Manresa, Commentaries, Vol. 6,
6th Ed., pp. 274, 310, cited by J. J.B.L. Reyes in Padura vs. Baldovino, L-11960,
December 27, 1958, 104 Phil. 1065).
Hence, upon the reservista's death, the reservatario nearest to the
prepositus becomes, "automatically and by operation of law, the owner of
the reservable property." (Cano vs. Director of Lands, 105 Phil. 1, 5.)
In the instant case, the properties in question were indubitably reservable
properties in the hands of Mrs. Legarda. Undoubtedly, she was a reservor.
The reservation became a certainty when at the time of her death the
reservees or relatives within the third degree of the prepositus Filomena
Legarda were living or they survived Mrs. Legarda.
So, the ultimate issue in this case is whether Mrs. Legarda, as reservor, could
convey the reservable properties by will or mortis causa to the reservees
within the third degree (her sixteen grandchildren) to the exclusion of the
reservees in the second degree, her three daughters and three sons.
As indicated at the outset, that issue is already res judicata or cosa juzgada.
We hold that Mrs. Legarda could not convey in her holographic will to her
sixteen grandchildren the reservable properties which she had inherited
from her daughter Filomena because the reservable properties did not form
part of her estate (Cabardo vs. Villanueva, 44 Phil. 186, 191). The reservor
cannot make a disposition mortis causa of the reservable properties as long
as the reservees survived the reservor.
As repeatedly held in the Cano and Padura cases, the reservees inherit the
reservable properties from the prepositus, not from the reservor.
Article 891 clearly indicates that the reservable properties should be
inherited by all the nearest relatives within the third degree from the
prepositus who in this case are the six children of Mrs. Legarda. She could
not select the reservees to whom the reservable property should be given
and deprive the other reservees of their share therein.
To allow the reservor in this case to make a testamentary disposition of the
reservable properties in favor of the reservees in the third degree and,
consequently, to ignore the reservees in the second degree would be a
glaring violation of article 891. That testamentary disposition cannot be
allowed.
We have stated earlier that this case is governed by the doctrine of
Florentino vs. Florentino, 40 Phil. 480, a similar case, where it was ruled:
"Reservable property left, through a will or otherwise, by the death of
ascendant (reservista) together with his own property in favor of another of
his descendants as forced heir, forms no part of the latter's lawful
inheritance nor of the legitime, for the reason that, as said property
continued to be reservable, the heir receiving the same as an inheritance
from his ascendant has the strict obligation of its delivery to the relatives,
within the third degree, of the predecessor in interest ( prepositus), without
prejudicing the right of the heir to an aliquot part of the property, if he has
at the same time the right of a reservatario" (reservee).
In the Florentino case, it appears that Apolonio Florentino II and his second
wife Severina Faz de Leon begot two children, Mercedes and Apolonio III.
These two inherited properties from their father. Upon Apolonio III's death in
1891, his properties were inherited by his mother, Severina, who died in 1908.
In her will she instituted her daughter Mercedes as heiress to all her
properties, including those coming from her deceased husband through
their son, Apolonio III.
The surviving children, begotten by Apolonio II with his first wife Antonia Faz
de Leon and the descendants of the deceased children of his first marriage,
sued Mercedes Florentino for the recovery of their share in the reservable
properties, which Severina de Leon had inherited from Apolonio III, which
the latter had inherited from his father Apolonio II and which Severina willed
to her daughter Mercedes.
Plaintiff's theory was that the said properties, as reservable properties, could
not be disposed of in Severina's will in favor of Mercedes only. That theory
was sustained by this Court.
It was held that the said properties, being reservable properties, did not
form part of Severina's estate and could not be inherited from her by her
daughter Mercedes alone.
216
As there were seven reservees, Mercedes was entitled, as a reservee, to
one-seventh of the properties. The other six-sevenths portions were
adjudicated to the other six reservees.
Under the rule of stare decisis et non quieta movere, we are bound to follow
in this case the doctrine of the Florentino case. That doctrine means that as
long as during the reservor's lifetime and upon his death there are relatives
within the third degree of the prepositus, regardless of whether those
reservees are common descendants of the reservor and the ascendant
from whom the property came, the property retains its reservable
character. The property should go to the nearest reservees. The reservor
cannot, by means of his will, choose the reservee to whom the reservable
property should be awarded.
The alleged opinion of Sanchez Roman that there is no reserva troncal
when the only relatives within the third degree are the common
descendants of the predeceased ascendant and the ascendant who
would be obliged to reserve is irrelevant and sans binding force in the light
of the ruling in the Florentino case.
It is contended by the appellees herein that the properties in question are
not reservable properties because only relatives within the third degree
from the paternal line have survived and that when Mrs. Legarda willed the
said properties to her sixteen grandchildren, who are third-degree relatives
of Filomena Legarda who belong to the paternal line, the reason for the
reserva troncal has been satisfied: "to prevent persons outside a family from
securing, by some special accident of life, property that would otherwise
have remained therein."
That same contention was advanced in the Florentino case where the
reservor willed the reservable properties to her daughter, a full-blood sister
of the prepositus and ignored the other six reservors, the relatives of the half-
blood of the prepositus.
It should be repeated that the reservees do not inherit from the reservor but
from the prepositus, of whom the reservees are the heirs mortis causa
subject to the condition that they must survive the reservor (Padura vs.
Baldovino, L-11960, December 27, 1958, 104 Phil. 1065).
The trial court said that the disputed properties lost their reservable
character due to the non-existence of third degree relatives of Filomena
Legarda at the time of the death of the reservor, Mrs. Legarda, belonging
to the Legarda family, "except third-degree relatives who pertain to both"
the Legarda and Roces lines.
That holding is erroneous. The reservation could have been extinguished
only by the absence of reservees at the time of Mrs. Legarda's death. Since
at the time of her death, there were (and still are) reservees belonging to
the second and third degrees, the disputed properties did not lose their
reservable character. The disposition of the said properties should be made
in accordance with article 891 or the rule on reserva troncal and not in
accordance with the reservor's holographic will. The said properties did not
form part of Mrs. Legarda's estate (Cano vs. Director of Lands, 105 Phil. 1, 4).
WHEREFORE, the lower court's decision is reversed and set aside. It is hereby
adjudged that the properties inherited by Filomena Roces Vda. de Legarda
from her daughter Filomena Legarda, with all the fruits and accessions
thereof, are reservable properties which belong to Beatriz, Rosario, Teresa,
Benito, Alejandro and Jose, all surnamed Legarda y Roces, as reservees.
The shares of Rosario L. Valdes and Benito F. Legarda, who died in 1969 and
1973, respectively, should pertain to their respective heirs. Costs against the
private respondents.
SO ORDERED.

In rejecting that contention, this Court held that the reservable property
bequeathed by the reservor to her daughter does not form part of the
reservor's estate nor of the daughter's estate but should be given to all the
seven reservees or nearest relatives of the prepositus within the third
degree.

This Court noted that, while it is true that by giving the reservable property
to only one reservee it did not pass into the hands of strangers, nevertheless,
it is likewise true that the heiress of the reservor was only one of the reservees
and there is no reason founded upon law and justice why the other
reservees should be deprived of their shares in the reservable property (pp.
894-5).

Applying that doctrine to this case, it results that Mrs. Legarda could not
dispose of in her will the properties in question even if the disposition is in
favor of the relatives within the third degree from Filomena Legarda. The
said properties, by operation of article 891, should go to Mrs. Legarda's six
children as reservees within the second degree from Filomena Legarda.
217
[G.R. No. L-28032. September 24, 1986.]
FRANCISCA TIOCO DE PAPA, MANUEL TIOCO, NICOLAS TIOCO and
JANUARIO PAP, plaintiffs-appellees, vs. DALISAY TONGKO CAMACHO,
PRIMO TONGKO and GODOFREDO CAMACHO, defendants-appellants.
NARVASA, J p:
This case, which involves the application of Article 891 of the Civil Code on
reserva troncal, was submitted for judgment in the lower court by all the
parties on the following "Stipulation of Facts and Partial Compromise":
"1. They stipulate that the defendant Dalisay D. Tongko-Camacho and the
plaintiffs, Francisca Tioco de Papa, Manuel Tioco and Nicolas Tioco, are
legitimate relatives, plaintiffs being said defendant's grandaunt and
granduncles.
2. They stipulate that plaintiffs and defendant Dalisay D. Tongo-Camacho
have as a common ancestor the late Balbino Tioco (who had a sister by
the name of Romana Tioco), father of plaintiffs and great grandfather of
defendant. The family relationship of the parties is as shown in the chart
attached hereto as Annex 'A' and made an integral part of this stipulation.
3. They stipulate that Romana Tioco during her lifetime gratuitously donated
four (4) parcels of land to her niece Toribia Tioco (legitimate sister of
plaintiffs), which parcels of land are presently covered by Transfer
Certificates of Title Nos. A-64165, 64166 and 64167 of the Registry of Deeds
of Manila, copies of which are attached to this stipulation as Annexes 'B', 'B-
1', and 'B-2'.
4. They stipulate that Toribia Tioco died intestate in 1915, survived by her
husband, Eustacio Dizon, and their two legitimate children, Faustino Dizon
and Trinidad Dizon (mother of defendant Dalisay D. Tongko-Camacho) and
leaving the afore-mentioned four (4) parcels of land as the inheritance of
her said two children in equal pro-indiviso shares.
5. They stipulate that in 1928, Balbino Tioco died intestate, survived by his
legitimate children by his wife Marciana Felix (among them plaintiffs) and
legitimate grandchildren Faustino Dizon and Trinidad Dizon. In the partition
of his estate, three (3) parcels of land now covered by Transfer Certificates
of Title Nos. 16545 and 16554 of the Registry of Deeds of Manila, copies of
which are attached hereto as Annexes 'C' and 'C-1', were adjudicated as
the inheritance of the late Toribia Tioco, but as she had predeceased her
father, Balbino Tioco, the said three (3) parcels of land devolved upon her
two legitimate children Faustino Dizon and Trinidad Dizon in equal pro-
indiviso shares.
6. They stipulate that in 1937, Faustino Dizon died intestate, single and
without issue, leaving his one-half (1/2) pro-indiviso share in the seven (7)
parcels of land above-mentioned to his father, Eustacio Dizon, as his sole
intestate heir, who received the said property subject to a reserva troncal
which was subsequently annotated on the Transfer Certificates of Title
Annexes 'B', 'B-1', 'B-2', 'C' and 'C-1'.
7. They stipulate that in 1939 Trinidad Dizon-Tongko died intestate, and her
rights and interests in the parcels of land abovementioned were inherited
by her only legitimate child, defendant Dalisay D. Tongko-Camacho,
subject to the usufructuary right of her surviving husband, defendant Primo
Tongko.
8. They stipulate that on June 14, 1965, Eustacio Dizon died intestate,
survived his only legitimate descendant, defendant Dalisay D. Tongko-
Camacho.
9. The parties agree that defendant Dalisay D. Tongko-Camacho now owns
one-half (1/2) of all the seven (7) parcels of land abovementioned as her
inheritance from her mother, Trinidad Dizon-Tongko.
10. Defendant Dalisay D. Tongko-Camacho also claims, upon legal advice,
the other half of the said seven (7) parcels of land abovementioned by
virtue of the reserva troncal imposed thereon upon the death of Faustino
Dizon and under the laws on intestate succession; but the plaintiffs, also
upon legal advice, oppose her said claim because they claim three-fourths
(3/4) of the one-half pro-indiviso interest in said parcel of land, which
interest was inherited by Eustacio Dizon from Faustino Dizon, or three-eights
(3/8) of the said parcels of land, by virtue of their being also third degree
relatives of Faustino Dizon.
11. The parties hereby agree to submit for judicial determination in this case
the legal issue of whether defendant Dalisay D. Tongko-Camacho is
entitled to the whole of the seven (7) parcels of land in question, or whether
the plaintiffs, as third degree relatives of Faustino Dizon are reservatarios
(together with said defendant) of the one-half pro-indiviso share therein
which was inherited by Eustacio Dizon from his son Faustino Dizon, and
entitled to three-fourths (3/4) of said one-half pro-indiviso share, or three-
eights (3/8) of said seven (7) parcels of land, and, therefore, to three eights
(3/8) of the rentals collected and to be collected by defendant Dalisay P.
Tongko Camacho from the tenants of said parcels of land, minus the
expenses and/or real estate taxes corresponding to plaintiffs' share in the
rentals.
12. In view of the fact that the parties are close blood relatives and have
acted upon legal advice in pursuing their respective claims, and in order to
restore and preserve harmony in their family relations, they hereby waive all
their claims against each other for damages (other than legal interest on
plaintiffs' share in the rentals which this Honorable Court may deem proper
to award), attorney's fees and expenses of litigation which shall be borne
by the respective parties." 1
On the basis thereof, the lower Court declared the plaintiffs Francisco Tioco,
Manuel Tioco and Nicolas Tioco, as well as the defendant Dalisay Tongko-
Camacho, entitled, as reservatarios, to one-half of the seven parcels of
land in dispute, in equal proportions, rendering judgment as follows: LLpr
". . . Resolving, therefore, the legal question submitted by the parties, the
court holds that plaintiffs Francisca Tioco, Manuel Tioco and Nicolas Tioco
are entitled to three fourths (3/4) of one-half (1/2) pro-indiviso shares or
three-eights (3/8) of the seven (7) parcels of land involved in this action.
Consequently, they are, likewise, entitled to three-eights (3/8) of the rentals
collected and to be collected by the defendant Dalisay D. Tioco-
Camacho from the tenants of the said parcels of land, minus the expenses
and/or real estate taxes corresponding to plaintiffs' share in the rentals.
IN VIEW OF THE FOREGOING, and inasmuch as the parties expressly waived
all their claims against each other for damages including attorney's fees
and expenses of litigation other than the legal interests on plaintiffs' share in
the rentals, the court renders judgment adjudging the plaintiffs entitled to
three-eights (3/8) of the seven (7) parcels of land described in Transfer
Certificate of Title Nos. T-64165, T-64166, T-64167, T-16546 and T-16554 of the
Registry of Deeds of Manila. The defendant Dalisay D. Tioco-Camacho is
hereby ordered to make an accounting of all rents received by her on the
properties involved in this action for the purpose of determining the legal
interests which should be paid to the plaintiffs on their shares in the rentals
of the property in question.
SO ORDERED." 2
Not satisfied, the defendant appealed to this Court.
The issue raised is whether, as contended by the plaintiffs-appellees and
ruled by the lower Court, all relatives of the praepositus within the third
degree in the appropriate line succeed without distinction to the reservable
property upon the death of the reservista, as seems to be implicit in Art. 891
of the Civil Code,which reads: LLpr
"Art. 891. The ascendant who inherits from his descendant any property
which the latter may have acquired by gratuitous title from another
ascendant, or a brother or sister, is obliged to reserve such property as he
may have acquired by operation of law for the benefit of relatives who are
within the third degree and who belong to the line from which said property
came. (811)",
or, as asserted by the defendant-appellant, the rights of said relatives are
subject to, and should be determined by, the rules on intestate succession.
That question has already been answered in Padura vs. Baldovino, 3 where
the reservatario was survived by eleven nephews and nieces of the
praepositus in the line of origin, four of whole blood and seven of half blood,
and the claim was also made that all eleven were entitled to the
reversionary property in equal shares. This Court, speaking through Mr.
Justice J.B.L. Reyes, declared the principles of intestacy to be controlling,
and ruled that the nephews and nieces of whole blood were each entitled
to a share double that of each of the nephews and nieces of half blood in
accordance with Article 1006 of the Civil Code.Said the Court:
"The issue in this appeal may be formulated as follows: In a case of reserva
troncal where the only reservatarios (reserves) surviving the reservista, and
belonging to the line of origin, are nephews of the descendant (prepositus),
but some are nephews of the half blood and the others are nephews of the
218
whole blood, should the reserved properties be apportioned among them
equally, or should the nephews of the whole blood take a share twice as
large as that of the nephews of the half blood?
"xxx xxx xxx
The case is one of first impression and has divided the Spanish
commentators on the subject. After mature reflection, we have concluded
that the position of the appellants is correct. The reserva troncal is a special
rule designed primarily to assure the return of the reservable property to the
third degree relatives belonging to the line from which the property
originally came, and avoid its being dissipated into and by the relatives of
the inheriting ascendant (reservista).
"xxx xxx xxx
The stated purpose of the reserva is accomplished once the property has
devolved to the specified relatives of the line of origin. But from this time on,
there is no further occasion for its application. In the relations between one
reservatario and another of the same degree there is no call for applying
Art. 891 any longer; wherefore, the respective share of each in the
reversionary property should be governed by the ordinary rules of intestate
succession. In this spirit the jurisprudence of this Court and that of Spain has
resolved that upon the death of the ascendant reservista, the reservable
property should pass, not to all the reservatarios as a class but only to those
nearest in degree to the descendant (prepositus), excluding those
reservatarios of more remote degree (Florentino vs. Florentino, 40 Phil. 489-
490; T.S. 8 Nov. 1894; Dir. Gen. de los Registros, Resol. 20 March 1905). And
within the third degree of relationship from the descendant (prepositus), the
right of representation operates in favor of nephews (Florentino vs.
Florentino, supra).
"Following the order prescribed by law in legitimate succession when there
are relatives of the descendant within the third degree, the right of the
nearest relative, called reservatario, over the property which the reservista
(person holding it subject to reservation) should return to him, excludes that
of the one more remote. The right of representation cannot be alleged
when the one claiming same as a reservatario of the reservable property is
not among the relatives within the third degree belonging to the line from
which such property came, inasmuch as the right granted by the Civil Code
in Article 811 is in the highest degree personal and for the exclusive benefit
of designated persons who are within the third degree of the person from
whom the reservable property came. Therefore, relatives of the fourth and
the succeeding degrees can never be considered as reservatarios, since
the law does not recognize them as such.
"In spite of what has been said relative to the right of representation on the
part of one alleging his right as reservatario who is not within the third
degree of relationship, nevertheless there is right of representation on the
part of reservatarios who are within the third degree mentioned by law, as
in the case of nephews of the deceased person from whom the reservable
property came . . ." (Florentino vs. Florentino, 40 Phil. 480, 489-490) (Emphasis
supplied) See also Nieva and Alcala vs. Alcala and de Ocampo, 41 Phil.
915).
Proximity of degree and right of representation are basic principles of
ordinary intestate succession; so is the rule that whole blood brothers and
nephews are entitled to a share double that of brothers and nephews of
half blood. If in determining the rights of the reservatarios inter se, proximity
of degree and the right of representation of nephews are made to apply,
the rule of double share for immediate collaterals of the whole blood should
be likewise operative.
In other words, the reserva troncal merely determines the group of relatives
(reservatarios) to whom the property should be returned; but within that
group, the individual right to the property should be decided by the
applicable rules of ordinary intestate succession, since Art. 891 does not
specify otherwise. This conclusion is strengthened by the circumstance that
the reserva being an exceptional case, its application should be limited to
what is strictly needed to accomplish the purpose of the law. As expressed
by Manresa in his Commentaries (Vol. 6, 6th Ed., p. 250):
". . . crendose un verdadero estado excepcional del derecho, no debe
ampliarse, sino m s bien restringirse, el alcance del precepto, manteniendo
la excepcion mientras fuere necesaria y estuviese realmente contenida en
la disposicion, y aplicando las reglas generales y fundamentales del
Codigo en materia de sucesion, en aquellos extremos no resueltos de un
modo expreso, y que quedan fuera de la propia esfera de accion de la
reserva que se crea."
The restrictive interpretation is the more imperative in view of the new Civil
Code's hostility to successional reservas and reversions, as exemplified by
the suppression of the reserva viudal and the reversion legal of the Code of
1889 (Art. 812 and 968-980)."
Reversion of the reservable property being governed by the rules on
intestate succession, the plaintiffs-appellees must be held without any right
thereto because, as aunt and uncles, respectively, of Faustino Dizon (the
praepositus), they are excluded from the succession by his niece, the
defendant-appellant, although they are related to him within the same
degree as the latter. To this effect is Abellana vs. Ferraris 4 where Arts. 1001,
1004, 1005 and 1009 of the Civil Code were cited and applied:
"Nevertheless, the trial court was correct when it held that, in case of
intestacy, nephews and nieces of the de cujus exclude all other collaterals
(aunts and uncles, first cousins, etc.) from the succession. This is readily
apparent from Articles 1001, 1004, 1005 and 1009 of the Civil Code of the
Philippines, that provide as follows:
"Art. 1001. Should brothers and sisters or their children survive with the widow
or widower, the latter shall be entitle to one-half of the inheritance and the
brothers and sisters or their children to the other half."
"Art. 1004. Should the only survivors be brothers and sisters of the full blood,
they shall inherit in equal shares."
"Art. 1005. Should brothers and sisters survive together with nephews and
nieces who are the children of the decedent's brothers and sisters of the full
blood, the former shall inherit per capita, and the latter per stirpes."
"Art. 1009. Should there be neither brothers nor sisters, nor children of
brothers and sisters, the other collateral relatives shall succeed to the
estate."
Under the last article (1009), the absence of brothers, sisters, nephews and
nieces of the decedent is a precondition to the other collaterals (uncles,
cousins, etc.) being called to the succession. This was also and more clearly
the case under the Spanish Civil Code of 1889, that immediately preceded
the Civil Code now in force (R.A. 386). Thus, Articles 952 and 954 of the Code
of 1889 prescribed as follows:
"Art. 952. In the absence of brothers or sisters and of nephews or nieces,
children of the former, whether of the whole blood or not, the surviving
spouse, if not separated by a final decree of divorce shall succeed to the
entire estate of the deceased."
"Art. 954. Should there be neither brothers nor sisters, nor children of brothers
or sisters, nor a surviving spouse, the other collateral relatives shall succeed
to the estate of deceased.
The latter shall succeed without distinction of lines or preference among
them by reason of the whole blood."
It will be seen that under the preceding articles, brothers and sisters and
nephews and nieces inherited ab intestato ahead of the surviving spouse,
while other collaterals succeeded only after the widower or widow. The
present Civil Code of the Philippines merely placed the spouse on a par
with the nephews and nieces and brothers and sisters of the deceased, but
without altering the preferred position of the latter vis a vis the other
collaterals."
"xxx xxx xxx
We, therefore, hold, and so rule, that under our laws of succession, a
decedent's uncles and aunts may not succeed ab intestato so long as
nephews and nieces of the decedent survive and are willing and qualified
to succeed. . . ."
This conclusion is fortified by the observation, also made in Padura, supra,
that as to the reservable property, the reservatarios do not inherit from the
reservista, but from the descendant praepositus: LLjur
". . . It is likewise clear that the reservable property is no part of the estate of
the reservista, who may not dispose of it by will, as long as there are
reservatarios existing (Arroyo vs. Gerona, 58 Phil. 237). The latter, therefore,
do not inherit from the reservista, but from the descendant prepositus, of
219
whom the reservatarios are the heirs mortis causa, subject to the condition
that they must survive the reservista. (Sanchez Roman, Vol. VI, Tomo 2, p.
286; Manresa, Commentaries, Vol. 6, 6th Ed., pp. 274, 310) . . ."

To the same effect is Cano vs. Director of Lands 5 , where it was ruled that
intestacy proceedings to determine the right of a reservatario are not
necessary where the final decree of the land court ordering issuance of title
in the name of the reservista over property subject to reserva troncal
identifies the reservatario and there are no other claimants to the latter's
rights as such:

"The contention that an intestacy proceeding is still necessary rests upon

the assumption that the reservatario will succeed in, or inherit, the
reservable property from the reservista. This is not true. The reservatario is not
the reservista's successor mortis causa nor is the reservable property part of
the reservista's estate; the reservatario receives the property as a
conditional heir of the descendant (prepositus), said property merely
reverting to the line of origin from which it had temporarily and accidentally
strayed during the reservista's lifetime. The authorities are all agreed that
there being reservatarios that survive the reservista, the matter must be
deemed to have enjoyed no more than a life interest in the reservable
property.

It is a consequence of these principles that upon the death of the reservista,

the reservatario nearest to the prepositus (the appellee in this case)
becomes, automatically and by operation of law, the owner of the
reservable property. As already stated, that property is no part of the estate
of the reservista, and does not even answer for the debts of the latter . . ."

Had the reversionary property passed directly from the praepositus, there is
no doubt that the plaintiffs-appellees would have been excluded by the
defendant-appellant under the rules of intestate succession. There is no
reason why a different result should obtain simply because "the transmission
of the property was delayed by the interregnum of the reserva;" 6 i.e., the
property took a "detour" through an ascendant thereby giving rise to the
reservation before its transmission to the reservatario.
Upon the stipulated facts, and by virtue of the rulings already cited, the
defendant-appellant Dalisay Tongko-Camacho is entitled to the entirety of
the reversionary property to the exclusion of the plaintiffs-appellees.

WHEREFORE, the appealed judgment of the lower Court is reversed and set
aside and the complaint is dismissed, with costs against the plaintiffs-
appellants.

SO ORDERED.

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[G.R. No. 176422. March 20, 2013.]
MARIA MENDOZA, in her own capacity and as Attorney-in-fact of
DEOGRACIAS, MARCELA, DIONISIA, ADORACION, all surnamed MENDOZA,
REMEDIOS MONTILLA, FELY BAUTISTA, JULIANA GUILALAS and ELVIRA
MENDOZA, petitioners, vs. JULIA POLICARPIO DELOS SANTOS, substituted by
her heirs, CARMEN P. DELOS SANTOS, ROSA BUENAVENTURA, ZENAIDA P.
DELOS SANTOS VDA. DE MATEO, LEONILA P. DELOS SANTOS, ELVIRA P. DELOS
SANTOS VDA. DE JOSE, TERESITA P. DELOS SANTOS-CABUHAT, MERCEDITA P.
DELOS SANTOS, LYDIA P. DELOS SANTOS VDA. DE HILARIO, PERFECTO P.
DELOS SANTOS, JR., and CECILIA M. MENDOZA, respondents.
REYES, J p:
Reserva troncal is a special rule designed primarily to assure the return of a
reservable property to the third degree relatives belonging to the line from
which the property originally came, and avoid its being dissipated into and
by the relatives of the inheriting ascendant. 1
The Facts
The properties subject in the instant case are three parcels of land located
in Sta. Maria, Bulacan: (1) Lot 1681-B, with an area of 7,749 square meters;
2 (2) Lot 1684, with an area of 5,667 sq m; 3 and (3) Lot No. 1646-B, with an
area of 880 sq m. 4 Lot Nos. 1681-B and 1684 are presently in the name of
respondent Julia Delos Santos 5 (respondent). Lot No. 1646-B, on the other
hand, is also in the name of respondent but co-owned by Victoria
Pantaleon, who bought one-half of the property from petitioner Maria
Mendoza and her siblings.
Petitioners are grandchildren of Placido Mendoza (Placido) and Dominga
Mendoza (Dominga). Placido and Dominga had four children: Antonio,
Exequiel, married to Leonor, Apolonio and Valentin. Petitioners Maria,
Deogracias, Dionisia, Adoracion, Marcela and Ricardo are the children of
Antonio. Petitioners Juliana, Fely, Mercedes, Elvira and Fortunato, on the
other hand, are Valentin's children. Petitioners alleged that the properties
were part of Placido and Dominga's properties that were subject of an oral
partition and subsequently adjudicated to Exequiel. After Exequiel's death,
it passed on to his spouse Leonor and only daughter, Gregoria. After
Leonor's death, her share went to Gregoria. In 1992, Gregoria died intestate
and without issue. They claimed that after Gregoria's death, respondent,
who is Leonor's sister, adjudicated unto herself all these properties as the
sole surviving heir of Leonor and Gregoria. Hence, petitioners claim that the
properties should have been reserved by respondent in their behalf and
must now revert back to them, applying Article 891 of the Civil Code on
reserva troncal. aAEIHC
Respondent, however, denies any obligation to reserve the properties as
these did not originate from petitioners' familial line and were not originally
owned by Placido and Dominga. According to respondent, the properties
were bought by Exequiel and Antonio from a certain Alfonso Ramos in 1931.
It appears, however, that it was only Exequiel who was in possession of the
properties. 6
The Regional Trial Court (RTC) of Malolos, Bulacan, Branch 6, found merit in
petitioners' claim and granted their action for Recovery of Possession by
Reserva Troncal, Cancellation of TCT and Reconveyance. In its Decision
dated November 4, 2002, the RTC disposed as follows:
WHEREFORE, premised from the foregoing judgment [is] hereby rendered:
1. Ordering [respondents] (heirs of Julia Policarpio) to reconvey the three
(3) parcels of land subject of this action in the name of the plaintiffs
enumerated in the complaint including intervenor Maria Cecilia M.
Mendoza except one-half of the property described in the old title[,] TCT
No. T-124852(M) which belongs to Victorina Pantaleon;
2. Ordering the Register of Deeds of Bulacan to cancel the titles in the name
of Julia Policarpio[,] TCT No. T-149033(M), T-183631(M) and T-149035(M) and
reconvey the same to the enumerated plaintiffs; [and]
3. No pronouncement as to claims for attorney's fees and damages and
costs.
SO ORDERED. 7
On appeal, the Court of Appeals (CA) reversed and set aside the RTC
decision and dismissed the complaint filed by petitioners. The dispositive
portion of the CA Decision dated November 16, 2006 provides:
WHEREFORE, premises considered, the November 4, 2002 Decision of the
Regional Trial Court, Br. 6, Third Judicial Region, Malolos, Bulacan, is
REVERSED and SET ASIDE. The Third Amended Complaint in Civil Case No.
609-M-92 is hereby DISMISSED. Costs against the Plaintiffs-Appellants.
AHCETa
SO ORDERED. 8
Petitioners filed a motion for reconsideration but the CA denied the same
per Resolution 9 dated January 17, 2007.
In dismissing the complaint, the CA ruled that petitioners failed to establish
that Placido and Dominga owned the properties in dispute. 10 The CA also
ruled that even assuming that Placido and Dominga previously owned the
properties, it still cannot be subject to reserva troncal as neither Exequiel
predeceased Placido and Dominga nor did Gregoria predecease
Exequiel. 11
Now before the Court, petitioners argue that:
A.
THE HONORABLE [CA] GRIEVOUSLY ERRED IN HOLDING THAT THE SUBJECT
PROPERTIES ARE NOT RESERVABLE PROPERTIES, COMING AS THEY DO FROM
THE FAMILY LINE OF THE PETITIONERS MENDOZAS.
B.
THE HONORABLE [CA] GRIEVOUSLY ERRED IN HOLDING THAT THE
PETITIONERS MENDOZAS DO NOT HAVE A RIGHT TO THE SUBJECT PROPERTIES
BY VIRTUE OF THE LAW ON RESERVA TRONCAL. 12
Petitioners take exception to the ruling of the CA, contending that it is
sufficient that the properties came from the paternal line of Gregoria for it
to be subject to reserva troncal. They also claim the properties in
representation of their own predecessors, Antonio and Valentin, who were
the brothers of Exequiel. 13
Ruling of the Court
This petition is one for review on certiorari under Rule 45 of the Rules of Court.
The general rule in this regard is that it should raise only questions of law.
There are, however, admitted exceptions to this rule, one of which is when
the CA's findings are contrary to those of the trial court. 14 This being the
case in the petition at hand, the Court must now look into the differing
findings and conclusion of the RTC and the CA on the two issues that arise
one, whether the properties in dispute are reservable properties and two,
whether petitioners are entitled to a reservation of these properties. HEcTAI
Article 891 of the Civil Code on
reserva troncal
The principle of reserva troncal is provided in Article 891 of the Civil Code:
Art. 891. The ascendant who inherits from his descendant any property
which the latter may have acquired by gratuitous title from another
ascendant, or a brother or sister, is obliged to reserve such property as he
may have acquired by operation of law for the benefit of relatives who are
within the third degree and belong to the line from which said property
came. (Emphasis ours)
There are three (3) lines of transmission in reserva troncal. The first
transmission is by gratuitous title, whether by inheritance or donation, from
an ascendant/brother/sister to a descendant called the prepositus. The
second transmission is by operation of law from the prepositus to the other
ascendant or reservor, also called the reservista. The third and last
transmission is from the reservista to the reservees or reservatarios who must
be relatives within the third degree from which the property came. 15
The lineal character of the reservable property is reckoned from the
ascendant from whom the prepositus received the property by gratuitous
title.
Based on the circumstances of the present case, Article 891 on reserva
troncal is not applicable.
The fallacy in the CA's resolution is that it proceeded from the erroneous
premise that Placido is the ascendant contemplated in Article 891 of the
Civil Code.From thence, it sought to trace the origin of the subject
properties back to Placido and Dominga, determine whether Exequiel
predeceased Placido and whether Gregoria predeceased Exequiel.
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The persons involved in reserva troncal are: DTcACa
(1) The ascendant or brother or sister from whom the property was received
by the descendant by lucrative or gratuitous title;
(2) The descendant or prepositus (propositus) who received the property;
(3) The reservor (reservista), the other ascendant who obtained the
property from the prepositus by operation of law; and
(4) The reservee (reservatario) who is within the third degree from the
prepositus and who belongs to the (linea o tronco) from which the property
came and for whom the property should be reserved by the reservor. 16
It should be pointed out that the ownership of the properties should be
reckoned only from Exequiel's as he is the ascendant from where the first
transmission occurred, or from whom Gregoria inherited the properties in
dispute. The law does not go farther than such ascendant/brother/sister in
determining the lineal character of the property. 17 It was also immaterial
for the CA to determine whether Exequiel predeceased Placido and
Dominga or whether Gregoria predeceased Exequiel. What is pertinent is
that Exequiel owned the properties and he is the ascendant from whom
the properties in dispute originally came. Gregoria, on the other hand, is the
descendant who received the properties from Exequiel by gratuitous title.
Moreover, Article 891 simply requires that the property should have been
acquired by the descendant or prepositus from an ascendant by gratuitous
or lucrative title. A transmission is gratuitous or by gratuitous title when the
recipient does not give anything in return. 18 At risk of being repetitious,
what was clearly established in this case is that the properties in dispute
were owned by Exequiel (ascendant). After his death, Gregoria
(descendant/prepositus) acquired the properties as inheritance.
Ascendants, descendants and
collateral relatives under Article
964 of the Civil Code
Article 891 provides that the person obliged to reserve the property should
be an ascendant (also known as the reservor/reservista) of the
descendant/prepositus. Julia, however, is not Gregoria's ascendant; rather,
she is Gregoria's collateral relative.
Article 964 of the Civil Code provides for the series of degrees among
ascendants and descendants, and those who are not ascendants and
descendants but come from a common ancestor, viz.: DAEaTS
Art. 964. A series of degrees forms a line, which may be either direct or
collateral.
A direct line is that constituted by the series of degrees among ascendants
and descendants.
A collateral line is that constituted by the series of degrees among persons
who are not ascendants and descendants, but who come from a common
ancestor. (Emphasis and italics ours)
Gregoria's ascendants are her parents, Exequiel and Leonor, her
grandparents, great-grandparents and so on. On the other hand,
Gregoria's descendants, if she had one, would be her children,
grandchildren and great-grandchildren. Not being Gregoria's ascendants,
both petitioners and Julia, therefore, are her collateral relatives. In
determining the collateral line of relationship, ascent is made to the
common ancestor and then descent to the relative from whom the
computation is made. In the case of Julia's collateral relationship with
Gregoria, ascent is to be made from Gregoria to her mother Leonor (one
line/degree), then to the common ancestor, that is, Julia and Leonor's
parents (second line/degree), and then descent to Julia, her aunt (third
line/degree). Thus, Julia is Gregoria's collateral relative within the third
degree and not her ascendant.
First cousins of the
descendant/prepositus are fourth
degree relatives and cannot be
considered reservees/reservatarios
Moreover, petitioners cannot be considered reservees/reservatarios as they
are not relatives within the third degree of Gregoria from whom the
properties came. The person from whom the degree should be reckoned is
the descendant/prepositus the one at the end of the line from which the
property came and upon whom the property last revolved by descent. 19
It is Gregoria in this case. Petitioners are Gregoria's fourth degree relatives,
being her first cousins. First cousins of the prepositus are fourth degree
relatives and are not reservees or reservatarios. 20
They cannot even claim representation of their predecessors Antonio and
Valentin as Article 891 grants a personal right of reservation only to the
relatives up to the third degree from whom the reservable properties came.
The only recognized exemption is in the case of nephews and nieces of the
prepositus, who have the right to represent their ascendants (fathers and
mothers) who are the brothers/sisters of the prepositus and relatives within
the third degree. 21 In Florentino v. Florentino, 22 the Court stated: cSaADC
Following the order prescribed by law in legitimate succession, when there
are relatives of the descendant within the third degree, the right of the
nearest relative, called reservatario, over the property which the reservista
(person holding it subject to reservation) should return to him, excludes that
of the one more remote. The right of representation cannot be alleged
when the one claiming same as a reservatario of the reservable property is
not among the relatives within the third degree belong to the line from
which such property came, inasmuch as the right granted by the Civil Code
in [A]rticle 811 [now Article 891] is in the highest degree personal and for
the exclusive benefit of the designated persons who are the relatives, within
the third degree, of the person from whom the reservable property came.
Therefore, relatives of the fourth and the succeeding degrees can never be
considered as reservatarios, since the law does not recognize them as such.
. . . [N]evertheless there is right of representation on the part of reservatarios
who are within the third degree mentioned by law, as in the case of
nephews of the deceased person from whom the reservable property
came. . . . . 23 (Emphasis and underscoring ours)
The conclusion, therefore, is that while it may appear that the properties
are reservable in character, petitioners cannot benefit from reserva troncal.
First, because Julia, who now holds the properties in dispute, is not the other
ascendant within the purview of Article 891 of the Civil Code and second,
because petitioners are not Gregoria's relatives within the third degree.
Hence, the CA's disposition that the complaint filed with the RTC should be
dismissed, only on this point, is correct. If at all, what should apply in the
distribution of Gregoria's estate are Articles 1003 and 1009 of the Civil
Code,which provide:
Art. 1003. If there are no descendants, ascendants, illegitimate children, or
a surviving spouse, the collateral relatives shall succeed to the entire estate
of the deceased in accordance with the following articles.
Art. 1009. Should there be neither brothers nor sisters, nor children of brothers
or sisters, the other collateral relatives shall succeed to the estate.
The latter shall succeed without distinction of lines or preference among
them by reason of relationship by the whole blood. TAacIE
Nevertheless, the Court is not in the proper position to determine the proper
distribution of Gregoria's estate at this point as the cause of action relied
upon by petitioners in their complaint filed with the RTC is based solely on
reserva troncal. Further, any determination would necessarily entail
reception of evidence on Gregoria's entire estate and the heirs entitled
thereto, which is best accomplished in an action filed specifically for that
purpose.
A reservista acquires ownership of
the reservable property until the
reservation takes place or is
extinguished
Before concluding, the Court takes note of a palpable error in the RTC's
disposition of the case. In upholding the right of petitioners over the
properties, the RTC ordered the reconveyance of the properties to
petitioners and the transfer of the titles in their names. What the RTC should
have done, assuming for argument's sake that reserva troncal is applicable,
is have the reservable nature of the property registered on respondent's
titles. In fact, respondent, as reservista, has the duty to reserve and to
annotate the reservable character of the property on the title. 24 In reserva
troncal, the reservista who inherits from a prepositus, whether by the latter's
wish or by operation of law, acquires the inheritance by virtue of a title
perfectly transferring absolute ownership. All the attributes of ownership
belong to him exclusively. 25
The reservor has the legal title and dominion to the reservable property but
subject to the resolutory condition that such title is extinguished if the
reservor predeceased the reservee. The reservor is a usufructuary of the
222
reservable property. He may alienate it subject to the reservation. The
transferee gets the revocable and conditional ownership of the reservor.
The transferee's rights are revoked upon the survival of the reservees at the
time of the death of the reservor but become indefeasible when the
reservees predecease the reservor. 26 (Citations omitted)

It is when the reservation takes place or is extinguished, 27 that a

reservatario becomes, by operation of law, the owner of the reservable
property. 28 In any event, the foregoing discussion does not detract from
the fact that petitioners are not entitled to a reservation of the properties in
dispute.

WHEREFORE, the petition is DENIED. The Decision dated November 16, 2006
and Resolution dated January 17, 2007 of the Court of Appeals in CA-G.R.
CV No. 77694 insofar as it dismissed the Third Amended Complaint in Civil
Case No. 609-M-92 are AFFIRMED. This Decision is without prejudice to any
civil action that the heirs of Gregoria Mendoza may file for the settlement
of her estate or for the determination of ownership of the properties in
question.

SO ORDERED.

223