SUCCESSION IN GENERAL
Ramirez v. Ramirez (111 SCRA 82)
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.:
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.
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) proindiviso de un te
rreno, con sus mejoras y edificaciones, situadoen
la
Manila.............................................................
P500,000.00
Una sexta parte (1/6) proindiviso de dos
parcelas de terreno situadas en
Rizal................... 658.34
Cuatrocientos noventa y uno (491) acciones
de la 'Central Azucarera de la Carlota a P17.00
por
.............................................................................
...8,347.00
Diez mil ochocientos seize (10,806) acciones
de la 'Central Luzon Milling Co.', disuelta y en
liquidacion a P0.15 por
..............................................1,620.90
Cuenta de Ahorros en el Philippine Trust
Co.........................................................................
..................... 2,350.73
TOTAL..............................................................
P512,976.97
MENOS:
Deuda al Banco de las Islas Filipinas, garan-
tizada con prenda de las acciones de La Carlota .........
P 5,000,00
VALOR LIQUIDO...........................................
P507,976.97
The testamentary dispositions are as follows:
A.—En nuda propiedad, a D. Roberto y D. Jorge
Ramirez, ambas menores de edad, residentes en Manila,
I.F., calle 'Alright, 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 reciprocal 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 Rapina
Avenida de los Reyes 13,
b.—Y en cuanto a las dos terceras partes restantes, a
favor de la nombrada Da. Wanda de Nrobleski con
Escolta,
sustitucion vulgar v fideicomisaria a saber:—
En cuanto a la mitad de dichas dos terceras partes, a
favor de D. Juan Pablo Jankowski, de Son Rapina Palma
de Mallorca; y encuanto a la mitad restante, a favor de
Antipolo, su sobrino, D. Horace V. Ramirez, San Luis Building,
Florida St. Ermita, Manila, I.F.
A pesar de las sustituciones fideiconiisarias
precedentemente ordinadas, las usufiructuarias
nombradas conjuntamente con los nudo propietarios,
podran en cualquier memento vender a tercero los
accion bienes objeto delegado, sin intervencion alguna de los
titulares fideicomisaarios.
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
accion 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
1
charged with the widow's usufruct and the remaining
two-thirds (2/3) with a usufruct in favor of Wanda.
Jorge and Roberto opposed the project of partition on
the grounds: (a) 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 the first heirs
Marcelle and Wanda) survived the testator; (b) that the
provisions for fideicommissary substitutions are also
invalid because 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 Wrobleski, who is an alien, violates
Section 5, Article III 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 win 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.)
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
appoint- judgment 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." (111 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 should not
wish, or should be incapacitated to accept the
inheritance.
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.
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 substitution vulgar reciprocal 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 as
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
2
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:
is the vesting of title to land in favor of aliens which is
proscribed by the Constitution.
IN VIEW OF THE FOREGOING, the estate of Jose
Eugenio Ramirez is hereby ordered distributed as
follows:

Scaevola Maura, and Traviesas construe "degree" as One-half (1/2) thereof to his widow as her legitime;
designation, substitution, or transmission. The Supreme
Court of Spain has decidedly adopted this construction. One-half (1/2) thereof which is the free portion to
From this point of view, there can be only one Roberto and Jorge Ramirez in naked ownership and the
tranmission or substitution, and the substitute need not usufruct to Wanda de Wrobleski with a simple
be related to the first heir. Manresa, Morell and Sanchez substitution in favor of Juan Pablo Jankowski and Horace
Roman, however, construe the word "degree" as V. Ramirez.
generation, and the present Code has obviously followed
The distribution herein ordered supersedes that of the
this interpretation. by providing that the substitution
court a quo. No special pronouncement as to costs. SO
shall not go beyond one degree "from the heir originally
ORDERED.
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
3
 ARTICLE 728
Cuevas vs. Cuevas (G.R. No. L-8327, December 14,
1955)
G.R. No. L-8327 December 14, 1955
ANTONINA CUEVAS, plaintiff-appellant,
vs.
CRISPULO CUEVAS, defendant-appellee.
Pedro D. Maldia for appellant.
Teodoro P. Santiago for appellee.
REYES, J. B. L., J.:
On September 18, 1950, Antonina Cuevas executed a
notarized conveyance entitled "Donacin Mortis Causa,"
ceding to her nephew Crispulo Cuevas the northern half
of a parcel of unregistered land in barrio Sinasajan,
municipality of Penaranda, Province of Nueva Ecija
(Exhibit A). In the same instrument appears the
acceptance of Crispulo Cuevas.
"Subsequently, on May 26, 1952, the donor executed
another notarial instrument entitled "Revocacion de
Donacion Mortis Causa" (Exhibit B) purporting to set
aside the preceding conveyance; and on August 26,
1952, she brought action in the Court of First Instance
to recover the land conveyed, on the ground (1) that
the donation being mortis causa, it had been lawfully
revoked by the donor; and (2) even it if were a donation
inter vivos, the same was invalidated because (a) it was
not properly accepted; (b) because the donor did not
reserve sufficient property for her own maintenance,
and (c) because the donee was guilty of ingratitute, for
having refused to support the donor.
Issues having been joined, and trial had, the Court of
First Instance denied the recovery sought, and Antonina
Cuevas thereupon appealed. The Court of Appeals
forwarded the case to this Court because, the case
having been submitted on a stipulation of facts, the
appellant raised only questions of law.
The first issue tendered converns the true nature of the
deed "Exhibit A"; whether it embodies a donation inter
vivos, or a disposition of property mortis causa
revocable freely by the transferor at any time before
death. 1
It has been rules that neither the designation mortis
causa, nor the provision that a donation is "to take effect
at the death of the donor", is a controlling criterion in
defining the true nature of donations (Laureta vs. Mata,
44 Phil., 668; Concepcion vs. Concepcion, 91 Phil., 823).
Hence, the crux of the controversy revolves around the
following provisions of the deed of donation:
Dapat maalaman ni Crispulo Cuevas na samantalang
ako ay nabubuhay, and lupa na ipinagkakaloob ko sa
kaniya ay ako pa rin and patuloy na mamomosecion,
makapagparatrabaho, makikinabang at ang iba pang
karapatan sa pagmamayari ay sa akin pa rin hanggang
hindo ko binabawian ny buhay ng Maykapal at ito naman
ay hindi ko nga iya-alis pagkat kung ako ay mamatay
na ay inilalaan ko sa kaniya.
There is an apparent conflict in the expression above
quoted, in that the donor reserves to herself "the right
of possession, cultivation, harvesting and other rights
and attributes of ownership while I am not deprived of
life by the Almighty"; but right after, the same donor
states that she "will not takle away" (the property)
"because I reserve it for him (the donee) when I die."
The question to be decided is whetehr the donor
intended to part with the title to the property
immediately upon the execution of the deed, or only
later, when she had died. If the first, the donation is
operative inter vivos; if the second, we would be
confronted with a disposition mortis causa, void from
the beginning because the formalities of testaments
were not observed (new Civil Code, Arts. 728 and 828;
heirs of Bonsato vs. Court of Appeals, 250 Off. Gaz. (8),
p. 3568; Tuason vs. Posadas, 54 Phil., 289; Sent. Trib.
Sup. of Spain, 8 July 1943).
We agree with the Court below that the decisive proof
that the present donation is operative inter vivor lies in
the final phrase to the effect that the donor will not
dispose or take away ("hindi ko nga iya-alis" in the
original) the land "because I am reserving it to him upon
my death." By these words the donor expressly
renounced the right to freely dispose of the property in
favor of another (a right essential to full ownership) and
manifested the irrevocability of the conveyance of the
naked title to the property in favor of the donee. As
stated in our decision in Bonsato vs. Court of Appeals,
ante, such irrevocability is characteristic of donations
inter vivos, because it is incompatible with the idea of a
disposition post mortem. Witness article 828 of the New
Civil Code, that provides:
ART. 828. A will may be revoked by the testator at any
time before his death. Any waiver or restriction of this
right is void.
It is apparent from the entire context of the deed of
donation that the donor intended that she should retain
the entire beneficial ownership during her lifetime, but
that the naked title should irrevocably pass to the
donee. It is only thus that all the expressions heretofore
discussed can be given full effect; and when the donor
stated that she would continue to retain the
"possession, cultivation, harvesting and all other rights
and attributes of ownership," she meant only the
dominium utile, not the full ownership. As the Court
below correctly observed, the words "rights and
attributes of ownership" should be construed ejusdem
generis with the preceding rights of "possession,
cultivation and harvesting" expressly enumerated in the
deed. Had the donor meant to retain full or absolute
ownership she had no need to specify possession,
cultivation and harvesting, since all these rights are
embodied in full or absolute ownership; nor would she
then have excluded the right of free disposition from the
4
"rights and attributes of ownership" that she reserved
for herself.lawphi1.net

Hence, the Court below rightly concluded that the deed

Exhibit A was a valid donation inter vivos, with
reservation of beneficial title during the lifetime of the
donor. We may add that it is highly desirable that all
those who are called to prepare or notarize deeds of
donation should call the attention of the donors to the
necessity of clearly specifying whether, notwithstanding
the donation, they wish to retain the right to control and
dispose at will of the property before their death,
without need of the consent or intervention of the
beneficiary, since the express reservation of such right
would be conclusive indication that the liberality is to
exist only at the donor's death, and therefore, the
formalities of testaments should be observed; while, a
converso, the express waiver of the right of free
disposition would place the inter vivos character of the
donation beyond dispute (Heirs of Bonsato vs. Court of
Appeals, 50 Off. Gaz. (8), p. 3568).

The argument that there was no sufficient acceptance,

because the deed "merely recites that (1) the donee has
duly read all the contents of this donation; (2) that he
'shall fully respect all its terms'; and (3) that 'for the act
of benevolence' he is expressing his gratitude" but there
is no show of acceptance (Appellant's brief, p. 7), is
without basis. To respect the terms of the donation, and
at the same time express gratitude for the donor's
benevolence, constitutes sufficient acceptance, If the
donee did not accept, what had he to be grateful about?
We are no longer under the formulary system of the
Roman law, when specific expressions had to be used
under paid of nullity.

Also unmeritoriious is the contention that the donation

is void because the donor failed to reserve enough for
ther own support. As we have seen, she expressly
reserved to herself all the benefits derivable from the
donated property as long as she lived. During that time,
she suffered no diminution of income. If that was not
enough to support her, the deficiency was not dur to the
donation.

Finally, the donee is not rightfully chargeaboe with

ingratitude, because it was expressly stipulated that the
donee had a total income of only P30 a month, out of
which he had to support himself, his wife and his two
children. Evidently his means did not allow him to add
the donor's support to his own burdens.

Wherefore, the decision appealed from is affirmed. No

costs in this instance, appellant having obtained leave
to litigate as a pauper. So ordered.

5
Jutic vs. CA (August 27, 1987)
G.R. No. L-44628 August 27, 1987
CONSUELO SEVILLE JUTIC, JUAN JUTIC, CELESTINO
SEVILLE, TIBURCIO SEVILLE, RAVELLO SEVILLE,
SONITA SEVILLE, LUCY SEVILLE, EPIFANIA SEVILLE,
NARACY SEVILLE, EMMANUEL SEVILLE, ORLANDO
MANICAN, and PACIFICO MANICAN, petitioners,
vs.
THE COURT OF APPEALS, MANILA, VICENTE SULLAN,
TRINIDAD SULLAN, TERESITA SULLAN, ULYSSES
SULLAN, ALEJANDRINO SULLAN, BUENAVENTURA
SEVILLE, and ZOILO SEVILLE, respondents.
GUTIERREZ, JR., J.:
This is a petition to review on appeal by certiorari the
decision of the Court of Appeals which affirmed the
decision of the then Court of First Instance of Davao del
Norte, Branch 9. The dispositive portion of the decision
reads:
WHEREFORE, the decision appealed from is hereby
affirmed and this case is remanded to the courta quo for
implementation of, and compliance with Rule 69,
Revised Rules of Court, and to partition the property in
accordance with the rights as herein determined,
defined and declared, with costs against defendants-
appellants. (p. 48, Petitioner's brief)
Vicente Sullan and the other respondents filed a
complaint with the then Court of First Instance at
Tagum, Davao del Norte against the petitioners for
partition and accounting of the properties of Arsenio
Seville, alleging they are heirs of the decedent.
The petitioners, averred the following in their answer:
xxx xxx xxx
7. That the defendants are the owners of Lots 170 and
172 and improvements thereon, containing an area of
11.9499 and 9.6862 hectares, respectively, both
covered by Original Certificates of Title No. P-15964 .
8. That defendants are the surviving heirs of Melquiades
Seville. Melquiades Seville in turn is the brother of the
deceased Arsenio Seville. Arsenio Seville died ahead.
Melquiades Seville died later. During the lifetime of
Arsenio Seville he executed an instrument ... .
xxx xxx xxx
9. That Melquiades Seville and his family have been in
actual possession, occupation and cultivation of Lots
Nos. 170 and 172, Cad-283, since 1954 continuously
and peacefully in concept of owner, up to the time of his
death, and had introduced valuable improvements
thereon. After his demise his heirs, the defendants
herein, succeeded to the occupation and possession of
the said parcel of land and improvements with the
knowledge of the plaintiffs and with the acquiescence of
Arsenio Seville during his lifetime.
10. That even during the lifetime of the deceased
Arsenio Seville it had been his desire, intention and his
wish that Lots 170 and 172 shall be owned by
Melquiades Seville, the father of the herein defendants.
11. That the ownership over the said Lots l7O and l72,
Cad-283 and improvements had been vested,
transmitted, conveyed and/or descended unto the
defendants by virtue of Exhibit "1" of this answer and
through continuous possession and cultivation of the
land since 1954 continuously up to the present, in
concept of owner as alleged under paragraph "9" hereof.
12. That by reason of this unfounded action by the
plaintiffs, defendants have been compelled to engage
services of counsel for which they bound themselves to
pay P3,000.00 as attomey's fees.
13. That Melquiades Seville during his lifetime had taken
legal steps to perfect titles to these parcels of land in his
name." (pp. 11, 14-15, Record on Appeal).
On September 19, 1972, the trial court rendered
judgment in favor of the private respondents. The
petitioners appealed to the Court of Appeals. The Court
of Appeals affirmed the trial court's decision.
Involved in this appeal is the issue of whether or not
there was a valid donation from Arsenio Seville to
Melquiades Seville.
The facts of the case are briefly stated as follows —
During his lifetime, Arsenio Seville owned — (1) a parcel
of agricultural land described as Lot No. 170 situated at
Anquibit, Asuncion (Saug), Davao del Norte containing
an area of 11-9499 hectares, more or less; (2) a parcel
of agricultural land described as Lot No. 172 likewise
situated at Anquibit, Asuncion (Saug), Davao del Norte
with an area of 9.6862 hectares; (3) a residential house
erected on Lot 172; (4) rice and corn mills and their
respective paraphernalia valued at P5,000.00; and (5)
five (5) carabaos in the possession of the then
defendants (pp. 6-9, Petitioners' brief).
On March 4, 1963, Arsenio Seville executed an affidavit
in favor of Melquiades Seville, which reads:
AFFIDAVIT
I, ARSENIO SEVILLE, of legal age, WIDOWER, Filipino,
and a resident of Anquibit, Cambanogoy, Saug, Davao,
Philippines, after having been duly sworn to in
accordance with law do hereby depose and say, as
follows:
That I am the declared and legal owner of a certain
parcel of land otherwise known as Lot Nos. 172 and 170
Cad- 283, containing an area of 21.6361 has., and
situated at Cambanogoy, Saug, Davao and covered by
HA No. V-77791 (E-69793) and approved by the
Director of Lands as per Order issued on March 5, 1954;
That I am a widower as indicated above and that I have
no one to inherit all my properties except my brother
Melquiades Seville who appears to be the only and
6
rightful person upon whom I have the most sympathy
since I have no wife and children;
That it is my desire that in case I will die I will assign all
my rights, interest, share and participation over the
above- mentioned property and that he shall succeed to
me in case of my death, however, as long as I am alive
I will be the one to possess, enjoy and benefit from the
produce of my said land and that whatever benefits it
will give me in the future I shall be the one to enjoy it;
That I make this affidavit to make manifest my intention
and desire as to the way the above-mentioned property
shall be dispose of and for whatever purpose it may
serve.
xxx xxx xxx
(ld
On May 24, 1968, Arsenio Seville mortgaged said
properties to the Philippine National Bank in
consideration of a loan. This was done with the
knowledge and acquiescence of Melquiades Seville.
On May 15, 1970, Arsenio Seville died intestate, single,
without issue, and without any debt. He was survived
by his brothers, Buenaventura Seville and Zoilo Seville
who are included as respondents; brother Melquiades
Seville; and sisters Encarnacion Seville and Petra
Seville. Thereafter, Melquiades died and is survived by
his children Consuelo, Celestino, Tiburcio, Ravelo,
Sonita, Lucy, Epifania, Naracy and Emmanuel, all
surnamed Seville. Sisters Encarnacion and Petra died
later. Encarnacion is survived by her children Trinidad,
Teresita, Ulysses and Alejandrino, all surnamed Sullan
and her husband Vicente Sullan while Petra Seville is
survived by her children Orlando Manican and Pacifico
Manican.
The children of Melquiades Seville are now claiming
exclusive ownership of the properties and
improvements thereon on the basis of the instrument
executed by Arsenio Seville in favor of Melquiades
Seville and on their alleged actual possession,
occupation, and cultivation of Lots Nos. 170 and 172
since 1954 continuously and peacefully in the concept
of owner up to the time of Arsenio Seville's death.
The petitioners assign the following alleged errors of the
respondent court:
I in question to the petitioners. ... .
THE COURT OF APPEALS ERRED IN NOT CONSIDERING
THE AFFIDAVIT IN QUESTION A DEED OR INSTRUMENT
OF DONATION INTER VIVOS:
II
THE COURT OF APPEALS ERRED IN NOT RULING
CATEGORICALLY THAT ARSENIO SEVILLE COULD
VALIDLY DISPOSE OR DONATE THE PROPERTIES IN
QUESTION.
III
THE COURT OF APPEALS ERRED IN NOT VACATING THE
JUDGMENT OF THE LOWER COURT AND ENTERED (SIC)
A NEW ONE HOLDING THAT THE AFFIDAVIT IN
QUESTION IS A DEED OF DONATION AND THAT THE
DONATION IS A DONATION INTER VIVOS THUS
VALIDLY CONVEYING THE LAND UNTO THE DONEE
MELQUIADES SEVILLE. (p. 10, Petitioners' brief).
All the above assigned errors discuss the issues as
relating to a donation. The trial court was correct in
stating that "a close reading reveals that Exhibit 4 is not
a donation inter vivos or mortis causa but a mere
declaration of an intention and a desire. Certainly, it is
not a concrete and formal act of giving or donating. The
form and contents of said Exhibit 4 amply support this
conclusion." (p. 3 7, Record on Appeal).
A discussion of the different kinds of donations and the
requisites for their effectivity is irrelevant in the case at
bar. There clearly was no intention to transfer ownership
from Arsenio Seville to Melquiades Seville at the time of
the instrument's execution. It was a mere intention or a
desire on the part of Arsenio Seville that in the event of
his death at some future time, his properties should go
to Melquiades Seville.
In Aldaba v. Court of Appeals (27 SCRA 263, 269-270)
we ruled on a similar expression of an intention, as
follows:
The question to be resolved in the instant case is: Was
there a disposition of the property in question made by
the deceased Belen Aldaba in favor of herein
petitioners? The note, Exhibit 6, considered alone, was,
as held by the Court of Appeals, confirming the opinion
of the lower court, only an indication of the intention of
Belen Aldaba to donate to the petitioners the property
occupied by the latter. We agree with this conclusion of
the trial court and the Court of Appeals. The note, in
fact, expressed that the property was really intended for
the petitioners, "talagang iyan ay para sa inyo." If the
property was only intended for petitioners then, at the
time of its writing, the property had not yet been
disposed of in their favor. There is no evidence in the
record that such intention was effectively carried out
after the writing of the note. Inasmuch as the mere
expression of an intention is not a promise, because a
promise is an undertaking to carry the intention into
effect, (17 American Jurisprudence, 2d p. 334) We
cannot, considering Exhibit 6 alone, conclude that the
deceased promised, much less did convey, the property
It is quite apparent that Arsenio Seville was thinking of
succession ("... in case I win die, I will assign all my
rights, share and participation over the above-
mentioned properties and that he shall succeed to me in
case of my death ..."). Donations which are to take
effect upon the death of the donor partake of the nature
of testamentary provisions and shall be governed by the
rules established in the title on succession (Art. 728,
Civil Code).
The petitioners likewise contend that the document was
a valid donation as only donations are accepted by the
7
donees. However, the petitioners could not have
accepted something, which by the terms of the
supposed "donation" was not given to them at the time.
The affidavit could not transmit ownership except in
clear and express terms.

Furthermore, the homestead application was later

prosecuted in the name of Arsenio Seville and the land,
much later, was mortgaged by him to the Philippine
National Bank (Annex 1, p. 100, Rollo) in consideration
of a loan. Arsenio dealt with the land and entered into
transactions as its owner. All these happened with the
knowledge and acquiescence of the supposed donee,
Melquiades Seville. Contrary to the petitioners'
allegations in their brief, there was no immediate
transfer of title upon the execution of Exhibit 4.

Contrary to what the petitioners aver, private

respondents as legal heirs of Arsenio Seville have actual
and substantial interests in the subject of litigation thus
qualifying them as real parties-in-interest.

Common ownership is shown by the records. Therefore,

any claim of ownership of the petitioners is not based
on Exhibit 4 but on the fact that they are heirs of Arsenio
Seville together with the private respondents.

It is likewise significant to note the respondents'

assertion that the signed affidavit is a forgery because
Arsenio Seville was illiterate during his lifetime. He could
not write his name. He executed documents by affixing
his thumbmark as shown in the Real Estate Mortgage
(Exhibit A-4), which he executed on May 24, 1968 in
favor of the Philippine National Bank. The real estate
mortgage came much later or more than five years after
the supposed donation (Exhibit 4) to Melquiades Seville
where Arsenio Seville allegedly affixed his signature.
This fact was not disputed by the petitioners.

Moreover, the petitioners' actions do not support their

claim of ownership. During the lifetime of Arsenio
Seville, he paid the PNB amortization out of his personal
funds and out of the income on his property. The
payments were not continued by the petitioners when
Arsenio Seville died so much so that the property was
extrajudicially foreclosed and had to be repurchased by
Zoilo Seville, one of the respondents, through
installment arrangements. (Deed of Promise to Sell
appended as Annex 4 to respondents' brief). The actions
of the respondents are in consonance with their claim of
co-ownership.

Finally, it is a well-established rule that the factual

findings of the trial court are generally not disturbed
except where there is a clear cause or a strong reason
appearing in the record to warrant a departure from
such findings (Alcaraz v. Racimo, 125 SCRA 328; People
v. Tala, 141 SCRA 240; and People v. Alcid, 135 SCRA
280). There is no such clear cause or strong reason in
this case.

WHEREFORE, the petition is hereby DISMISSED. The

judgment of the Court of Appeals is AFFIRMED.

SO ORDERED.

8
Maglasang vs. Cabatingan (G.R. No. 131953, June
5, 2002)
[G.R. No. 131953. June 5, 2002]
MA. ESTELA MAGLASANG, NICOLAS CABATINGAN and
MERLY S. CABATINGAN, petitioners, vs. THE HEIRS OF
CORAZON CABATINGAN, namely, LUZ M. BOQUIA,
PERLA M. ABELLA, ESTRELLA M. CAETE, LOURDES M.
YUSON, and JULIA L. MAYOL, HEIRS OF GENOVIVA C.
NATIVIDAD namely, OSCAR C. NATIVIDAD, OLGA
NATIVIDAD, ODETTE NATIVIDAD, OPHELIA NATIVIDAD,
RICHARD NATIVIDAD, RAYMUND NATIVIDAD, RICHIE
NATIVIDAD, SONIA NATIVIDAD and ENCARNACION
CABATINGAN VDA. DE TRINIDAD, ALFREDO
CABATINGAN and JESUSA C. NAVADA, respondents.
DECISION
AUSTRIA-MARTINEZ, J.:
Posed for resolution before the Court in this petition for
review on certiorari filed under Rule 45 of the Rules of
Court is the sole issue of whether the donations made
by the late Conchita Cabatingan are donations inter
vivos or mortis causa.
The facts of the case are as follows:
On February 17, 1992, Conchita Cabatingan executed in
favor of her brother, petitioner Nicolas Cabatingan, a
Deed of Conditional of Donation (sic) Inter Vivos for
House and Lot covering one-half () portion of the
formers house and lot located at Cot-cot, Liloan,
Cebu.[1] Four (4) other deeds of donation were
subsequently executed by Conchita Cabatingan on
January 14, 1995, bestowing upon: (a) petitioner Estela
C. Maglasang, two (2) parcels of land - one located in
Cogon, Cebu (307 sq. m.) and the other, a portion of a
parcel of land in Masbate (50,232 sq. m.); (b) petitioner
Nicolas Cabatingan, a portion of a parcel of land located
in Masbate (80,000 sq. m.); and (c) petitioner Merly S.
Cabatingan, a portion of the Masbate property (80,000
sq. m.).[2] These deeds of donation contain similar
provisions, to wit:
That for and in consideration of the love and affection of
the DONOR for the DONEE, x x x the DONOR does
hereby, by these presents, transfer, convey, by way of
donation, unto the DONEE the above-described
property, together with the buildings and all
improvements existing thereon, to become effective
upon the death of the DONOR; PROVIDED, HOWEVER,
that in the event that the DONEE should die before the
DONOR, the present donation shall be deemed
automatically rescinded and of no further force and
effect; x x x[3] (Emphasis Ours)
On May 9, 1995, Conchita Cabatingan died.
Upon learning of the existence of the foregoing
donations, respondents filed with the Regional Trial
Court of Mandaue, Branch 55, an action for Annulment
And/Or Declaration of Nullity of Deeds of Donations and
Accounting, docketed as Civil Case No. MAN-2599,
seeking the annulment of said four (4) deeds of donation
executed on January 14, 1995. Respondents allege,
inter alia, that petitioners, through their sinister
machinations and strategies and taking advantage of
Conchita Cabatingans fragile condition, caused the
execution of the deeds of donation, and, that the
documents are void for failing to comply with the
provisions of the Civil Code regarding formalities of wills
and testaments, considering that these are donations
mortis causa.[4] Respondents prayed that a receiver be
appointed in order to preserve the disputed properties,
and, that they be declared as co-owners of the
properties in equal shares, together with petitioner
Nicolas Cabatingan.[5]
Petitioners in their Amended Answer, deny respondents
allegations contending that Conchita Cabatingan freely,
knowingly and voluntarily caused the preparation of the
instruments. [6]
On respondents motion, the court a quo rendered a
partial judgment on the pleadings on December 2, 1997
in favor of respondents, with the following dispositive
portion:
WHEREREFORE, and in consideration of all the
foregoing, judgment is hereby rendered in favor of the
plaintiffs and against the defendant and unwilling co-
plaintiff with regards (sic) to the four Deeds of Donation
Annexes A, A-1, B and Annex C which is the subject of
this partial decision by:
Declaring the four Deeds of Donation as null and void ab
initio for being a donation Mortis Causa and for failure
to comply with formal and solemn requisite under Art.
806 of the New Civil Code;
b) To declare the plaintiffs and defendants as well as
unwilling co-plaintiff as the heirs of the deceased
Conchita Cabatingan and therefore hereditary co-
owners of the properties subject of this partial decision,
as mandated under Art. 777 of the New Civil Code;
SO ORDERED.[7]
The court a quo ruled that the donations are donations
mortis causa and therefore the four (4) deeds in
question executed on January 14, 1995 are null and void
for failure to comply with the requisites of Article 806 of
the Civil Code on solemnities of wills and testaments.[8]
Raising questions of law, petitioners elevated the court
a quos decision to this Court,[9] alleging that:
THE LOWER COURT PALPABLY DISREGARDED THE
LONG-AND-WELL-ESTABLISHED RULINGS OF THIS
HONORABLE SUPREME COURT ON THE
CHARACTERIZATION OF DONATIONS AS INTER VIVOS
OR MORTIS CAUSA AND, INSTEAD, PROCEEDED TO
INTERPRET THE DONATIONS IN QUESTION IN A
MANNER CONTRARY THERETO.[10]
Petitioners insist that the donations are inter vivos
donations as these were made by the late Conchita
Cabatingan in consideration of the love and affection of
the donor for the donee, and there is nothing in the
deeds which indicate that the donations were made in
9
consideration of Cabatingans death.[11] In addition,
petitioners contend that the stipulation on rescission in
case petitioners die ahead of Cabatingan is a resolutory
condition that confirms the nature of the donation as
inter vivos.
Petitioners arguments are bereft of merit.
In a donation mortis causa, the right of disposition is not
transferred to the donee while the donor is still
alive.[12] In determining whether a donation is one of
mortis causa, the following characteristics must be
taken into account:
(1) It conveys no title or ownership to the transferee
before the death of the transferor; or what amounts to
the same thing, that the transferor should retain the
ownership (full or naked) and control of the property
while alive;
(2) That before his death, the transfer should be
revocable by the transferor at will, ad nutum; but
revocability may be provided for indirectly by means of
a reserved power in the donor to dispose of the
properties conveyed;
and
(3) That the transfer should be void if the transferor
should survive the transferee.[13]
In the present case, the nature of the donations as
mortis causa is confirmed by the fact that the donations
do not contain any clear provision that intends to pass
proprietary rights to petitioners prior to Cabatingans
death.[14] The phrase to become effective upon the
death of the DONORadmits of no other interpretation
but that Cabatingan did not intend to transfer the
ownership of the properties to petitioners during her
lifetime. Petitioners themselves expressly confirmed the
donations as mortis causa in the following Acceptance
and Attestation clauses, uniformly found in thesubject
deeds of donation, to wit:
That the DONEE does hereby accept the foregoing
donation mortis causa under the terms and conditions
set forth therein, and avail herself of this occasion to
express her profound gratitude for the kindness and
generosity of the DONOR.
xxx
SIGNED by the above-named DONOR and DONEE at the
foot of this Deed of Donation mortis causa, which
consists of two (2) pages x x x.[15]
That the donations were made in consideration of the
love and affection of the donor does not qualify the
donations as inter vivos because transfers mortis causa
may also be made for the same reason. [16]
Well in point is National Treasurer of the Phils. v. Vda.
de Meimban. [17] In said case, the questioned donation
contained the provision:
"That for and in consideration of the love and affection
which the DONOR has for the DONEE, the said Donor by
these presents does hereby give, transfer, and convey
unto the DONEE, her heirs and assigns a portion of ONE
HUNDRED THOUSAND (100,000) SQUARE METERS, on
the southeastern part Pro-indiviso of the above
described property. (The portion herein donated is
within Lot 2-B of the proposed amendment Plan
Subdivision of Lots Nos. 1 and 2, Psu-109393), with all
the buildings and improvements thereon, to become
effective upon the death of the DONOR. (italics
supplied.)" [18]
Notably, the foregoing provision is similar to that
contained in the donation executed by Cabatingan. We
held in Meimban case that the donation is a mortis causa
donation, and that the above quoted provision
establishes the donors intention to transfer the
ownership and possession of the donated property to
the donee only after the formers death. Further:
As the donation is in the nature of a mortis causa
disposition, the formalities of a will should have been
complied with under Article 728 of the Civil Code,
otherwise, the donation is void and would produce no
effect. As we have held in Alejandro v. Geraldez (78
SCRA 245,253), If the donation is made in
contemplation of the donors death, meaning that the full
or naked ownership of the donated properties will pass
to the donee because of the donors death, then it is at
that time that the donation takes effect, and it is a
donation mortis causa which should be embodied in a
last will and testament. (Citing Bonsato v. Court of
Appeals, 95 Phil. 481).[19]
We apply the above rulings to the present case. The
herein subject deeds expressly provide that the
donation shall be rescinded in case petitioners
predecease Conchita Cabatingan. As stated in Reyes v.
Mosqueda,[20] one of the decisive characteristics of a
donation mortis causa is that the transfer should be
considered void if the donor should survive the donee.
This is exactly what Cabatingan provided for in her
donations. If she really intended that the donation
should take effect during her lifetime and that the
ownership of the properties donated be transferrred to
the donee or independently of, and not by reason of her
death, she would have not expressed such proviso in the
subject deeds.
Considering that the disputed donations are donations
mortis causa, the same partake of the nature of
testamentary provisions[21] and as such, said deeds
must be executed in accordance with the requisites on
solemnities of wills and testaments under Articles 805
and 806 of the Civil Code, to wit:
ART. 805. Every will, other than a holographic will, must
be subscribed at the end thereof by the testator himself
or by the testators name written by some other person
in his presence, and by his express direction, and
attested and subscribed by three or more credible
witnesses in the presence of the testator and of one
another.
10
The testator or the person requested by him to write his
name and the instrumental witnesses of the will, shall
also sign, as aforesaid, each and every page thereof,
except the last, on the left margin, and all the pages
shall be numbered correlatively in letters placed on the
upper part of each page.

The attestation shall state the number of pages used

upon which the will is written , and the fact that the
testator signed the will and every page thereof, or
caused some other person to write his name, under his
express direction, in the presence of the instrumental
witnesses, and that the latter witnessed and signed the
will and all the pages thereof in the presence of the
testator and of one another.

If the attestation clause is in a language not known to

the witnesses, it shall be interpreted to them. (n)

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. (n)

The deeds in question although acknowledged before a

notary public of the donor and the donee, the
documents were not executed in the manner provided
for under the above-quoted provisions of law.

Thus, the trial court did not commit any reversible error
in declaring the subject deeds of donation null and void.

WHEREFORE, the petition is hereby DENIED for lack of

merit.

SO ORDERED.

11
Ganuelas vs. Cawed (401 SCRA 447, April 24,
2003)
[G. R. No. 123968. April 24, 2003]
URSULINA GANUELAS, METODIO GANUELAS and
ANTONIO GANUELAS, vs. HON. ROBERT T. CAWED,
Judge of the Regional Trial Court of San Fernando, La
Union (Branch 29), LEOCADIA G. FLORES,
FELICITACION G. AGTARAP, CORAZON G. SIPALAY and
ESTATE OF ROMANA GANUELAS DE LA ROSA,
represented by GREGORIO DELA ROSA, Administrator,
respondent.
DECISION
CARPIO-MORALES, J.:
The present petition for review under Rule 45 of the
Rules of Court assails, on a question of law, the February
22, 1996 decision[1] of the Regional Trial Court of San
Fernando, La Union, Branch 29, in Civil Case No. 3947,
an action for declaration of nullity of a deed of donation.
The facts, as culled from the records of the case, are as
follows:
On April 11, 1958, Celestina Ganuelas Vda. de Valin
(Celestina) executed a Deed of Donation of Real
Property[2] covering seven parcels of land in favor of
her niece Ursulina Ganuelas (Ursulina), one of herein
petitioners.
The pertinent provision of the deed of donation reads,
quoted verbatim:
xxx
That, for and in consideration of the love and affection
which the DONOR has for the DONEE, and of the faithful
services the latter has rendered in the past to the
former, the said DONOR does by these presents transfer
and convey, by way of DONATION, unto the DONEE the
property above, described, to become effective upon the
death of the DONOR; but in the event that the DONEE
should die before the DONOR, the present donation shall
be deemed rescinded and of no further force and effect.
x x x.[3]
On June 10, 1967, Celestina executed a document
denominated as Revocation of Donation[4] purporting
to set aside the deed of donation. More than a month
later or on August 18, 1967, Celestina died without issue
and any surviving ascendants and siblings.
After Celestinas death, Ursulina had been sharing the
produce of the donated properties with private
respondents Leocadia G. Flores, et al., nieces of
Celestina.
In 1982, or twenty-four years after the execution of the
Deed of Donation, Ursulina secured the corresponding
tax declarations, in her name, over the donated
properties, to wit: Tax Declarations Nos. 18108, 18109,
18110, 18111, 18112, 18113 and 18114, and since
then, she refused to give private respondents any share
in the produce of the properties despite repeated
demands.
Private respondents were thus prompted to file on May
26, 1986 with the RTC of San Fernando, La Union a
complaint[5] against Ursulina, along with Metodio
Ganuelas and Antonio Ganuelas who were alleged to be
unwilling plaintiffs. The complaint alleged that the Deed
of Donation executed by Celestina in favor of Ursulina
was void for lack of acknowledgment by the attesting
witnesses thereto before notary public Atty. Henry
Valmonte, and the donation was a disposition mortis
causa which failed to comply with the provisions of the
Civil Code regarding formalities of wills and testaments,
hence, it was void. The plaintiffs-herein private
respondents thus prayed that judgment be rendered
ordering Ursulina to return to them as intestate heirs
the possession and ownership of the properties. They
likewise prayed for the cancellation of the tax
declarations secured in the name of Ursulina, the
partition of the properties among the intestate heirs of
Celestina, and the rendering by Ursulina of an
accounting of all the fruits of the properties since 1982
and for her to return or pay the value of their shares.
The defendants-herein petitioners alleged in their
Answer[6] that the donation in favor of Ursulina was
inter vivos as contemplated under Article 729 of the Civil
Code,[7] hence, the deed did not have to comply with
the requirements for the execution of a valid will; the
Revocation of Donation is null and void as the ground
mentioned therein is not among those provided by law
to be the basis thereof; and at any rate, the revocation
could only be legally enforced upon filing of the
appropriate complaint in court within the prescriptive
period provided by law, which period had, at the time
the complaint was filed, already lapsed.
By Decision of February 22, 1996, the trial court, holding
that the provision in the Deed of Donation that in the
event that the DONEE should predecease the DONOR,
the donation shall be deemed rescinded and of no
further force and effect is an explicit indication that the
deed is a donation mortis causa,[8] found for the
plaintiffs-herein private respondents, thus:
WHEREFORE the Court renders judgment declaring null
and void the Deed of Donation of Real Property executed
by Celestina Ganuelas, and orders the partition of the
estate of Celestina among the intestate heirs.
SO ORDERED.[9]
The trial court also held that the absence of a
reservation clause in the deed implied that Celestina
retained complete dominion over her properties, thus
supporting the conclusion that the donation is mortis
causa,[10] and that while the deed contained an
attestation clause and an acknowledgment showing the
intent of the donor to effect a postmortem disposition,
the acknowledgment was defective as only the donor
and donee appear to have acknowledged the deed
before the notary public, thereby rendering the entire
document void.[11]
12
Lastly, the trial court held that the subsequent execution
by Celestina of the Revocation of Donation showed that
the donor intended the revocability of the donation ad
nutum, thus sustaining its finding that the conveyance
was mortis causa.[12]
On herein petitioners argument that the Revocation of
Donation was void as the ground mentioned therein is
not one of those allowed by law to be a basis for
revocation, the trial court held that the legal grounds for
such revocation as provided under the Civil Code arise
only in cases of donations inter vivos, but not in
donations mortis causa which are revocable at will
during the lifetime of the donor. The trial court held, in
any event, that given the nullity of the disposition mortis
causa in view of a failure to comply with the formalities
required therefor, the Deed of Revocation was a
superfluity.[13]
Hence, the instant petition for review, petitioners
contending that the trial court erred:
I. . . . WHEN IT DECLARED NULL AND VOID THE
DONATION EXECUTED BY CELESTINA GANUELAS;
II. . . . WHEN IT UPHELD THE REVOCATION OF
DONATION;
III. . . . IN RENDERING ITS DECISION ADVERSE TO
PETITIONER URSULINA GANUELAS.[14]
Petitioners argue that the donation contained in the
deed is inter vivos as the main consideration for its
execution was the donors affection for the donee rather
than the donors death;[15] that the provision on the
effectivity of the donationafter the donors deathsimply
meant that absolute ownership would pertain to the
donee on the donors death;[16] and that since the
donation is inter vivos, it may be revoked only for the
reasons provided in Articles 760,[17] 764[18] and
765[19] of the Civil Code.
In a letter of March 16, 1998,[20] private respondent
Corazon Sipalay, reacting to this Courts January 28,
1998 Resolution requiring private respondents to SHOW
CAUSE why they should not be disciplinarily dealt with
or held in contempt for failure to submit the name and
address of their new counsel, explains that they are no
longer interested in pursuing the case and are willing
and ready to waive whatever rights they have over the
properties subject of the donation. Petitioners, who
were required to comment on the letter, by Comment of
October 28, 1998,[21] welcome private respondents
gesture but pray that for the sake of enriching
jurisprudence, their [p]etition be given due course and
resolved.
The issue is thus whether the donation is inter vivos or
mortis causa.
Crucial in the resolution of the issue is the determination
of whether the donor intended to transfer the ownership
over the properties upon the execution of the deed.[22]
Donation inter vivos differs from donation mortis causa
in that in the former, the act is immediately operative
even if the actual execution may be deferred until the
death of the donor, while in the latter, nothing is
conveyed to or acquired by the donee until the death of
the donor-testator.[23] The following ruling of this Court
in Alejandro v. Geraldez is illuminating:[24]
If the donation is made in contemplation of the donors
death, meaning that the full or naked ownership of the
donated properties will pass to the donee only because
of the donors death, then it is at that time that the
donation takes effect, and it is a donation mortis causa
which should be embodied in a last will and testament.
But if the donation takes effect during the donors
lifetime or independently of the donors death, meaning
that the full or naked ownership (nuda proprietas) of the
donated properties passes to the donee during the
donors lifetime, not by reason of his death but because
of the deed of donation, then the donation is inter vivos.
The distinction between a transfer inter vivos and mortis
causa is important as the validity or revocation of the
donation depends upon its nature. If the donation is
inter vivos, it must be executed and accepted with the
formalities prescribed by Articles 748[25] and 749[26]
of the Civil Code, except when it is onerous in which
case the rules on contracts will apply. If it is mortis
causa, the donation must be in the form of a will, with
all the formalities for the validity of wills, otherwise it is
void and cannot transfer ownership.[27]
The distinguishing characteristics of a donation mortis
causa are the following:
1. It conveys no title or ownership to the transferee
before the death of the transferor; or, what amounts to
the same thing, that the transferor should retain the
ownership (full or naked) and control of the property
while alive;
2. That before his death, the transfer should be
revocable by the transferor at will, ad nutum; but
revocability may be provided for indirectly by means of
a reserved power in the donor to dispose of the
properties conveyed;
3. That the transfer should be void if the transferor
should survive the transferee.[28]
In the donation subject of the present case, there is
nothing therein which indicates that any right, title or
interest in the donated properties was to be transferred
to Ursulina prior to the death of Celestina.
The phrase to become effective upon the death of the
DONOR admits of no other interpretation but that
Celestina intended to transfer the ownership of the
properties to Ursulina on her death, not during her
lifetime.[29]
More importantly, the provision in the deed stating that
if the donee should die before the donor, the donation
shall be deemed rescinded and of no further force and
effect shows that the donation is a postmortem
disposition.
13
As stated in a long line of cases, one of the decisive the will, or file another with the office of the Clerk of
characteristics of a donation mortis causa is that the Court. (Emphasis supplied)
transfer should be considered void if the donor should
survive the donee.[30] The trial court did not thus commit any reversible error
in declaring the Deed of Donation to be mortis causa.
More. The deed contains an attestation clause expressly
confirming the donation as mortis causa: WHEREFORE, the petition is hereby DENIED for lack of
merit.
SIGNED by the above-named donor, Celestina
Ganuelas, at the foot of this deed of donation mortis SO ORDERED.
causa, consisting of two (2) pages and on the left margin
of each and every page thereof in the joint presence of
all of us who at her request and in her presence and that
of each other have in like manner subscribed our names
as witnesses.[31] (Emphasis supplied)

To classify the donation as inter vivos simply because it

is founded on considerations of love and affection is
erroneous. That the donation was prompted by the
affection of the donor for the donee and the services
rendered by the latter is of no particular significance in
determining whether the deed constitutes a transfer
inter vivos or not, because a legacy may have an
identical motivation.[32] In other words, love and
affection may also underline transfers mortis causa.[33]

In Maglasang v. Heirs of Cabatingan,[34] the deeds of

donation contained provisions almost identical to those
found in the deed subject of the present case:

That for and in consideration of the love and affection of

the DONOR for the DONEE, x x x the DONOR does
hereby, by these presents, transfer, convey, by way of
donation, unto the DONEE the above-described
property, together with the buildings and all
improvements existing thereon, to become effective
upon the death of the DONOR; PROVIDED, HOWEVER,
that in the event that the DONEE should die before the
DONOR, the present donation shall be deemed
automatically rescinded and of no further force and
effect. (Underscoring supplied)

In that case, this Court held that the donations were

mortis causa, for the above-quoted provision
conclusively establishes the donors intention to transfer
the ownership and possession of the donated property
to the donee only after the formers death. Like in the
present case, the deeds therein did not contain any clear
provision that purports to pass proprietary rights to the
donee prior to the donors death.

As the subject deed then is in the nature of a mortis

causa disposition, the formalities of a will under Article
728 of the Civil Code should have been complied with,
failing which the donation is void and produces no
effect.[35]

As noted by the trial court, the attesting witnesses failed

to acknowledge the deed before the notary public, thus
violating Article 806 of the Civil Code which provides:

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

14
Del Rosario vs. Ferrer (G.R. No. 187056, the donor husband, executed a deed of assignment of
September 20, 2010) his rights and interests in subject property to their
daughter Asuncion. Leopoldo died in June 1972.
G.R. No. 187056 September 20, 2010
In 1998 Jarabini filed a "petition for the probate of the
August 27, 1968 deed of donation mortis causa" before
JARABINI G. DEL ROSARIO, Petitioner,
the Regional Trial Court (RTC) of Manila in Sp. Proc. 98-
vs.
90589.4 Asuncion opposed the petition, invoking his
ASUNCION G. FERRER, substituted by her heirs,
father Leopoldo’s assignment of his rights and interests
VICENTE, PILAR, ANGELITO, FELIXBERTO, JR., all
in the property to her.
surnamed G. FERRER, and MIGUELA FERRER ALTEZA,
Respondents.
After trial, the RTC rendered a decision dated June 20,
2003,5 finding that the donation was in fact one made
DECISION
inter vivos, the donors’ intention being to transfer title
over the property to the donees during the donors’
ABAD, J.:
lifetime, given its irrevocability. Consequently, said the
RTC, Leopoldo’s subsequent assignment of his rights
This case pertains to a gift, otherwise denominated as a
and interest in the property was void since he had
donation mortis causa, which in reality is a donation
nothing to assign. The RTC thus directed the registration
inter vivos made effective upon its execution by the
of the property in the name of the donees in equal
donors and acceptance thereof by the donees, and
shares.6
immediately transmitting ownership of the donated
property to the latter, thus precluding a subsequent
On Asuncion’s appeal to the Court of Appeals (CA), the
assignment thereof by one of the donors.
latter rendered a decision on December 23, 2008,7
reversing that of the RTC. The CA held that Jarabini
The Facts and the Case
cannot, through her petition for the probate of the deed
of donation mortis causa, collaterally attack Leopoldo’s
On August 27, 1968 the spouses Leopoldo and
deed of assignment in Asuncion’s favor. The CA further
Guadalupe Gonzales executed a document entitled
held that, since no proceeding exists for the allowance
"Donation Mortis Causa"1 in favor of their two children,
of what Jarabini claimed was actually a donation inter
Asuncion and Emiliano, and their granddaughter,
vivos, the RTC erred in deciding the case the way it did.
Jarabini (daughter of their predeceased son, Zoilo)
Finally, the CA held that the donation, being one given
covering the spouses’ 126-square meter lot and the
mortis causa, did not comply with the requirements of a
house on it in Pandacan, Manila2 in equal shares. The
notarial will,8 rendering the same void. Following the
deed of donation reads:
CA’s denial of Jarabini’s motion for reconsideration,9 she
filed the present petition with this Court.
It is our will that this Donation Mortis Causa shall be
irrevocable and shall be respected by the surviving
Issue Presented
spouse.
The key issue in this case is whether or not the spouses
It is our will that Jarabini Gonzales-del Rosario and
Leopoldo and Guadalupe’s donation to Asuncion,
Emiliano Gonzales will continue to occupy the portions
Emiliano, and Jarabini was a donation mortis causa, as
now occupied by them.
it was denominated, or in fact a donation inter vivos.
It is further our will that this DONATION MORTIS CAUSA
The Court’s Ruling
shall not in any way affect any other distribution of other
properties belonging to any of us donors whether testate
That the document in question in this case was
or intestate and where ever situated.
captioned "Donation Mortis Causa" is not controlling.
This Court has held that, if a donation by its terms is
It is our further will that any one surviving spouse
inter vivos, this character is not altered by the fact that
reserves the right, ownership, possession and
the donor styles it mortis causa.10
administration of this property herein donated and
accepted and this Disposition and Donation shall be
In Austria-Magat v. Court of Appeals,11 the Court held
operative and effective upon the death of the DONORS.3
that "irrevocability" is a quality absolutely incompatible
with the idea of conveyances mortis causa, where
Although denominated as a donation mortis causa,
"revocability" is precisely the essence of the act. A
which in law is the equivalent of a will, the deed had no
donation mortis causa has the following characteristics:
attestation clause and was witnessed by only two
persons. The named donees, however, signified their
1. It conveys no title or ownership to the transferee
acceptance of the donation on the face of the document.
before the death of the transferor; or, what amounts to
the same thing, that the transferor should retain the
Guadalupe, the donor wife, died in September 1968. A
ownership (full or naked) and control of the property
few months later or on December 19, 1968, Leopoldo,
while alive;
15

2. That before his death, the transfer should be
revocable by the transferor at will, ad nutum; but
revocability may be provided for indirectly by means of
a reserved power in the donor to dispose of the
properties conveyed; and
3. That the transfer should be void if the transferor
should survive the transferee.12 (Underscoring
supplied)
The Court thus said in Austria-Magat that the express
"irrevocability" of the donation is the "distinctive
standard that identifies the document as a donation
inter vivos." Here, the donors plainly said that it is "our
will that this Donation Mortis Causa shall be irrevocable
and shall be respected by the surviving spouse." The
intent to make the donation irrevocable becomes even
clearer by the proviso that a surviving donor shall
respect the irrevocability of the donation. Consequently,
the donation was in reality a donation inter vivos.
donor’s subsequent assignment of his rights and
interests in the property. The Court has held before that
the rule on probate is not inflexible and absolute.19
Moreover, in opposing the petition for probate and in
putting the validity of the deed of assignment squarely
in issue, Asuncion or those who substituted her may not
now claim that the trial court improperly allowed a
collateral attack on such assignment.
WHEREFORE, the Court GRANTS the petition, SETS
ASIDE the assailed December 23, 2008 Decision and
March 6, 2009 Resolution of the Court of Appeals in CA-
G.R. CV 80549, and REINSTATES in toto the June 20,
2003 Decision of the Regional Trial Court of Manila,
Branch 19, in Sp. Proc. 98-90589.
SO ORDERED.

The donors in this case of course reserved the "right,

ownership, possession, and administration of the
property" and made the donation operative upon their
death. But this Court has consistently held that such
reservation (reddendum) in the context of an
irrevocable donation simply means that the donors
parted with their naked title, maintaining only beneficial
ownership of the donated property while they lived.13

Notably, the three donees signed their acceptance of the

donation, which acceptance the deed required.14 This
Court has held that an acceptance clause indicates that
the donation is inter vivos, since acceptance is a
requirement only for such kind of donations. Donations
mortis causa, being in the form of a will, need not be
accepted by the donee during the donor’s lifetime.15

Finally, as Justice J. B. L. Reyes said in Puig v.

Peñaflorida,16 in case of doubt, the conveyance should
be deemed a donation inter vivos rather than mortis
causa, in order to avoid uncertainty as to the ownership
of the property subject of the deed.

Since the donation in this case was one made inter

vivos, it was immediately operative and final. The
reason is that such kind of donation is deemed perfected
from the moment the donor learned of the donee’s
acceptance of the donation. The acceptance makes the
donee the absolute owner of the property donated.17

Given that the donation in this case was irrevocable or

one given inter vivos, Leopoldo’s subsequent
assignment of his rights and interests in the property to
Asuncion should be regarded as void for, by then, he
had no more rights to assign. He could not give what he
no longer had. Nemo dat quod non habet.18

The trial court cannot be faulted for passing upon, in a

petition for probate of what was initially supposed to be
a donation mortis causa, the validity of the document as
a donation inter vivos and the nullity of one of the
16
Villanueva vs. Spouses Branoco (G.R. No. 172804,
January 24, 2011)
G.R. No. 172804 January 24, 2011
GONZALO VILLANUEVA, represented by his heirs,
Petitioner,
vs.
SPOUSES FROILAN and LEONILA BRANOCO,
Respondents.
DECISION
CARPIO, J.:
The Case
This resolves the petition for review1 of the ruling2 of
the Court of Appeals dismissing a suit to recover a
realty.
The Facts
Petitioner Gonzalo Villanueva (petitioner), here
represented by his heirs,3 sued respondents, spouses
Froilan and Leonila Branoco (respondents), in the
Regional Trial Court of Naval, Biliran (trial court) to
recover a 3,492 square-meter parcel of land in
Amambajag, Culaba, Leyte (Property) and collect
damages. Petitioner claimed ownership over the
Property through purchase in July 1971 from Casimiro
Vere (Vere), who, in turn, bought the Property from
Alvegia Rodrigo (Rodrigo) in August 1970. Petitioner
declared the Property in his name for tax purposes soon
after acquiring it.
In their Answer, respondents similarly claimed
ownership over the Property through purchase in July
1983 from Eufracia Rodriguez (Rodriguez) to whom
Rodrigo donated the Property in May 1965. The two-
page deed of donation (Deed), signed at the bottom by
the parties and two witnesses, reads in full:
KNOW ALL MEN BY THESE PRESENTS:
That I, ALVEGIA RODRIGO, Filipino, of legal age, widow
of the late Juan Arcillas, a resident of Barrio Bool,
municipality of Culaba, subprovince of Biliran, Leyte del
Norte, Philippines, hereby depose and say:
That as we live[d] together as husband and wife with
Juan Arcillas, we begot children, namely: LUCIO,
VICENTA, SEGUNDINA, and ADELAIDA, all surnamed
ARCILLAS, and by reason of poverty which I suffered
while our children were still young; and because my
husband Juan Arcillas aware as he was with our
destitution separated us [sic] and left for Cebu; and
from then on never cared what happened to his family;
and because of that one EUFRACIA RODRIGUEZ, one of
my nieces who also suffered with our poverty, obedient
as she was to all the works in our house, and because
of the love and affection which I feel [for] her, I have
one parcel of land located at Sitio Amambajag, Culaba,
Leyte bearing Tax Decl. No. 1878 declared in the name
of Alvegia Rodrigo, I give (devise) said land in favor of
EUFRACIA RODRIGUEZ, her heirs, successors, and
assigns together with all the improvements existing
thereon, which parcel of land is more or less described
and bounded as follows:
1. Bounded North by Amambajag River; East, Benito
Picao; South, Teofilo Uyvico; and West, by Public land;
2. It has an area of 3,492 square meters more or less;
3. It is planted to coconuts now bearing fruits; 4. Having
an assessed value of P240.00; 5. It is now in the
possession of EUFRACIA RODRIGUEZ since May 21,
1962 in the concept of an owner, but the Deed of
Donation or that ownership be vested on her upon my
demise.
That I FURTHER DECLARE, and I reiterate that the land
above described, I already devise in favor of EUFRACIA
RODRIGUEZ since May 21, 1962, her heirs, assigns, and
that if the herein Donee predeceases me, the same land
will not be reverted to the Donor, but will be inherited
by the heirs of EUFRACIA RODRIGUEZ;
That I EUFRACIA RODRIGUEZ, hereby accept the land
above described from Inay Alvegia Rodrigo and I am
much grateful to her and praying further for a longer
life; however, I will give one half (1/2) of the produce of
the land to Apoy Alve during her lifetime.4
Respondents entered the Property in 1983 and paid
taxes afterwards.
The Ruling of the Trial Court
The trial court ruled for petitioner, declared him owner
of the Property, and ordered respondents to surrender
possession to petitioner, and to pay damages, the value
of the Property’s produce since 1982 until petitioner’s
repossession and the costs.5 The trial court rejected
respondents’ claim of ownership after treating the Deed
as a donation mortis causa which Rodrigo effectively
cancelled by selling the Property to Vere in 1970.6 Thus,
by the time Rodriguez sold the Property to respondents
in 1983, she had no title to transfer.
Respondents appealed to the Court of Appeals (CA),
imputing error in the trial court’s interpretation of the
Deed as a testamentary disposition instead of an inter
vivos donation, passing title to Rodriguez upon its
execution.
Ruling of the Court of Appeals
The CA granted respondents’ appeal and set aside the
trial court’s ruling. While conceding that the "language
of the [Deed is] x x x confusing and which could admit
of possible different interpretations,"7 the CA found the
following factors pivotal to its reading of the Deed as
donation inter vivos: (1) Rodriguez had been in
possession of the Property as owner since 21 May 1962,
subject to the delivery of part of the produce to Apoy
Alve; (2) the Deed’s consideration was not Rodrigo’s
death but her "love and affection" for Rodriguez,
considering the services the latter rendered; (3) Rodrigo
waived dominion over the Property in case Rodriguez
predeceases her, implying its inclusion in Rodriguez’s
17
estate; and (4) Rodriguez accepted the donation in the
Deed itself, an act necessary to effectuate donations
inter vivos, not devises.8 Accordingly, the CA upheld the
sale between Rodriguez and respondents, and,
conversely found the sale between Rodrigo and
petitioner’s predecessor-in-interest, Vere, void for
Rodrigo’s lack of title.
In this petition, petitioner seeks the reinstatement of the
trial court’s ruling. Alternatively, petitioner claims
ownership over the Property through acquisitive
prescription, having allegedly occupied it for more than
10 years.9
Respondents see no reversible error in the CA’s ruling
and pray for its affirmance.
The Issue
The threshold question is whether petitioner’s title over
the Property is superior to respondents’. The resolution
of this issue rests, in turn, on whether the contract
between the parties’ predecessors-in-interest, Rodrigo
and Rodriguez, was a donation or a devise. If the
former, respondents hold superior title, having bought
the Property from Rodriguez. If the latter, petitioner
prevails, having obtained title from Rodrigo under a
deed of sale the execution of which impliedly revoked
the earlier devise to Rodriguez.
The Ruling of the Court
We find respondents’ title superior, and thus, affirm the
CA.
Naked Title Passed from Rodrigo to Rodriguez Under a
Perfected Donation
We examine the juridical nature of the Deed – whether
it passed title to Rodriguez upon its execution or is
effective only upon Rodrigo’s death – using principles
distilled from relevant jurisprudence. Post-mortem
dispositions typically –
(1) Convey no title or ownership to the transferee before
the death of the transferor; or, what amounts to the
same thing, that the transferor should retain the
ownership (full or naked) and control of the property
while alive;
(2) That before the [donor’s] death, the transfer should
be revocable by the transferor at will, ad nutum; but
revocability may be provided for indirectly by means of
a reserved power in the donor to dispose of the
properties conveyed;
(3) That the transfer should be void if the transferor
should survive the transferee.10
Further –
[4] [T]he specification in a deed of the causes whereby
the act may be revoked by the donor indicates that the
donation is inter vivos, rather than a disposition mortis
causa[;]
[5] That the designation of the donation as mortis
causa, or a provision in the deed to the effect that the
donation is "to take effect at the death of the donor" are
not controlling criteria; such statements are to be
construed together with the rest of the instrument, in
order to give effect to the real intent of the transferor[;]
[and]
(6) That in case of doubt, the conveyance should be
deemed donation inter vivos rather than mortis causa,
in order to avoid uncertainty as to the ownership of the
property subject of the deed.11
It is immediately apparent that Rodrigo passed naked
title to Rodriguez under a perfected donation inter vivos.
First. Rodrigo stipulated that "if the herein Donee
predeceases me, the [Property] will not be reverted to
the Donor, but will be inherited by the heirs of x x x
Rodriguez," signaling the irrevocability of the passage of
title to Rodriguez’s estate, waiving Rodrigo’s right to
reclaim title. This transfer of title was perfected the
moment Rodrigo learned of Rodriguez’s acceptance of
the disposition12 which, being reflected in the Deed,
took place on the day of its execution on 3 May 1965.
Rodrigo’s acceptance of the transfer underscores its
essence as a gift in presenti, not in futuro, as only
donations inter vivos need acceptance by the
recipient.13 Indeed, had Rodrigo wished to retain full
title over the Property, she could have easily stipulated,
as the testator did in another case, that "the donor, may
transfer, sell, or encumber to any person or entity the
properties here donated x x x"14 or used words to that
effect. Instead, Rodrigo expressly waived title over the
Property in case Rodriguez predeceases her.
In a bid to diffuse the non-reversion stipulation’s
damning effect on his case, petitioner tries to profit from
it, contending it is a fideicommissary substitution
clause.15 Petitioner assumes the fact he is laboring to
prove. The question of the Deed’s juridical nature,
whether it is a will or a donation, is the crux of the
present controversy. By treating the clause in question
as mandating fideicommissary substitution, a mode of
testamentary disposition by which the first heir
instituted is entrusted with the obligation to preserve
and to transmit to a second heir the whole or part of the
inheritance,16 petitioner assumes that the Deed is a
will. Neither the Deed’s text nor the import of the
contested clause supports petitioner’s theory.
Second. What Rodrigo reserved for herself was only the
beneficial title to the Property, evident from Rodriguez’s
undertaking to "give one [half] x x x of the produce of
the land to Apoy Alve during her lifetime."17 Thus, the
Deed’s stipulation that "the ownership shall be vested
on [Rodriguez] upon my demise," taking into account
the non-reversion clause, could only refer to Rodrigo’s
beneficial title. We arrived at the same conclusion in
Balaqui v. Dongso18 where, as here, the donor, while
"b[inding] herself to answer to the [donor] and her heirs
x x x that none shall question or disturb [the donee’s]
right," also stipulated that the donation "does not pass
title to [the donee] during my lifetime; but when I die,
[the donee] shall be the true owner" of the donated
18
parcels of land. In finding the disposition as a gift inter
vivos, the Court reasoned:
Taking the deed x x x as a whole, x x x x it is noted that
in the same deed [the donor] guaranteed to [the donee]
and her heirs and successors, the right to said property
thus conferred. From the moment [the donor]
guaranteed the right granted by her to [the donee] to
the two parcels of land by virtue of the deed of gift, she
surrendered such right; otherwise there would be no
need to guarantee said right. Therefore, when [the
donor] used the words upon which the appellants base
their contention that the gift in question is a donation
mortis causa [that the gift "does not pass title during
my lifetime; but when I die, she shall be the true owner
of the two aforementioned parcels"] the donor meant
nothing else than that she reserved of herself the
possession and usufruct of said two parcels of land until
her death, at which time the donee would be able to
dispose of them freely.19 (Emphasis supplied)
Indeed, if Rodrigo still retained full ownership over the
Property, it was unnecessary for her to reserve partial
usufructuary right over it.20
Third. The existence of consideration other than the
donor’s death, such as the donor’s love and affection to
the donee and the services the latter rendered, while
also true of devises, nevertheless "corroborates the
express irrevocability of x x x [inter vivos] transfers."21
Thus, the CA committed no error in giving weight to
Rodrigo’s statement of "love and affection" for
Rodriguez, her niece, as consideration for the gift, to
underscore its finding.
It will not do, therefore, for petitioner to cherry-pick
stipulations from the Deed tending to serve his cause
(e.g. "the ownership shall be vested on [Rodriguez]
upon my demise" and "devise"). Dispositions bearing
contradictory stipulations are interpreted wholistically,
to give effect to the donor’s intent. In no less than seven
cases featuring deeds of donations styled as "mortis
causa" dispositions, the Court, after going over the
deeds, eventually considered the transfers inter
vivos,22 consistent with the principle that "the
designation of the donation as mortis causa, or a
provision in the deed to the effect that the donation is
‘to take effect at the death of the donor’ are not
controlling criteria [but] x x x are to be construed
together with the rest of the instrument, in order to give
effect to the real intent of the transferor."23 Indeed,
doubts on the nature of dispositions are resolved to
favor inter vivostransfers "to avoid uncertainty as to the
ownership of the property subject of the deed."24
Nor can petitioner capitalize on Rodrigo’s post-donation
transfer of the Property to Vere as proof of her retention
of ownership. If such were the barometer in interpreting
deeds of donation, not only will great legal uncertainty
be visited on gratuitous dispositions, this will give
license to rogue property owners to set at naught
perfected transfers of titles, which, while founded on
liberality, is a valid mode of passing ownership. The
interest of settled property dispositions counsels against
licensing such practice.25
Accordingly, having irrevocably transferred naked title
over the Property to Rodriguez in 1965, Rodrigo "cannot
afterwards revoke the donation nor dispose of the said
property in favor of another."26 Thus, Rodrigo’s post-
donation sale of the Property vested no title to Vere. As
Vere’s successor-in-interest, petitioner acquired no
better right than him. On the other hand, respondents
bought the Property from Rodriguez, thus acquiring the
latter’s title which they may invoke against all adverse
claimants, including petitioner.
Petitioner Acquired No Title Over the Property
Alternatively, petitioner grounds his claim of ownership
over the Property through his and Vere’s combined
possession of the Property for more than ten years,
counted from Vere’s purchase of the Property from
Rodrigo in 1970 until petitioner initiated his suit in the
trial court in February 1986.27 Petitioner anchors his
contention on an unfounded legal assumption. The ten
year ordinary prescriptive period to acquire title through
possession of real property in the concept of an owner
requires uninterrupted possession coupled with just title
and good faith.28There is just title when the adverse
claimant came into possession of the property through
one of the modes recognized by law for the acquisition
of ownership or other real rights, but the grantor was
not the owner or could not transmit any right.29 Good
faith, on the other hand, consists in the reasonable
belief that the person from whom the possessor
received the thing was the owner thereof, and could
transmit his ownership.30
Although Vere and petitioner arguably had just title
having successively acquired the Property through sale,
neither was a good faith possessor. As Rodrigo herself
disclosed in the Deed, Rodriguez already occupied and
possessed the Property "in the concept of an owner"
("como tag-iya"31) since 21 May 1962, nearly three
years before Rodrigo’s donation in 3 May 1965 and
seven years before Vere bought the Property from
Rodrigo. This admission against interest binds Rodrigo
and all those tracing title to the Property through her,
including Vere and petitioner. Indeed, petitioner’s
insistent claim that Rodriguez occupied the Property
only in 1982, when she started paying taxes, finds no
basis in the records. In short, when Vere bought the
Property from Rodrigo in 1970, Rodriguez was in
possession of the Property, a fact that prevented Vere
from being a buyer in good faith.
Lacking good faith possession, petitioner’s only other
recourse to maintain his claim of ownership by
prescription is to show open, continuous and adverse
possession of the Property for 30 years.32 Undeniably,
petitioner is unable to meet this requirement.1avvphil
Ancillary Matters Petitioner Raises Irrelevant
Petitioner brings to the Court’s attention facts which,
according to him, support his theory that Rodrigo never
passed ownership over the Property to Rodriguez,
19
namely, that Rodriguez registered the Deed and paid
taxes on the Property only in 1982 and Rodriguez
obtained from Vere in 1981 a waiver of the latter’s "right
of ownership" over the Property. None of these facts
detract from our conclusion that under the text of the
Deed and based on the contemporaneous acts of
Rodrigo and Rodriguez, the latter, already in possession
of the Property since 1962 as Rodrigo admitted,
obtained naked title over it upon the Deed’s execution
in 1965. Neither registration nor tax payment is required
to perfect donations. On the relevance of the waiver
agreement, suffice it to say that Vere had nothing to
waive to Rodriguez, having obtained no title from
Rodrigo. Irrespective of Rodriguez’s motivation in
obtaining the waiver, that document, legally a scrap of
paper, added nothing to the title Rodriguez obtained
from Rodrigo under the Deed.

WHEREFORE, we DENY the petition. We AFFIRM the

Decision dated 6 June 2005 and the Resolution dated 5
May 2006 of the Court of Appeals.

SO ORDERED.

20
ARTICLE 774
Coronel vs. CA (G.R. NO. 103577, October 7, 1996)
G.R. No. 103577 October 7, 1996
ROMULO A. CORONEL, ALARICO A. CORONEL, ANNETTE
A. CORONEL, ANNABELLE C. GONZALES (for herself and
on behalf of Florida C. Tupper, as attorney-in-fact),
CIELITO A. CORONEL, FLORAIDA A. ALMONTE, and
CATALINA BALAIS MABANAG, petitioners,
vs.
THE COURT OF APPEALS, CONCEPCION D. ALCARAZ,
and RAMONA PATRICIA ALCARAZ, assisted by GLORIA
F. NOEL as attorney-in-fact, respondents.
MELO, J.:p
The petition before us has its roots in a complaint for
specific performance to compel herein petitioners
(except the last named, Catalina Balais Mabanag) to
consummate the sale of a parcel of land with its
improvements located along Roosevelt Avenue in
Quezon City entered into by the parties sometime in
January 1985 for the price of P1,240,000.00.
The undisputed facts of the case were summarized by
respondent court in this wise:
On January 19, 1985, defendants-appellants Romulo
Coronel, et al. (hereinafter referred to as Coronels)
executed a document entitled "Receipt of Down
Payment" (Exh. "A") in favor of plaintiff Ramona Patricia
Alcaraz (hereinafter referred to as Ramona) which is
reproduced hereunder:
RECEIPT OF DOWN PAYMENT
P1,240,000.00 — Total amount
50,000 — Down payment
———————————
P1,190,000.00 — Balance
Received from Miss Ramona Patricia Alcaraz of 146
Timog, Quezon City, the sum of Fifty Thousand Pesos
purchase price of our inherited house and lot, covered
by TCT No. 119627 of the Registry of Deeds of Quezon
City, in the total amount of P1,240,000.00.
We bind ourselves to effect the transfer in our names
from our deceased father, Constancio P. Coronel, the
transfer certificate of title immediately upon receipt of
the down payment above-stated.
On our presentation of the TCT already in or name, We
will immediately execute the deed of absolute sale of
said property and Miss Ramona Patricia Alcaraz shall
immediately pay the balance of the P1,190,000.00.
Clearly, the conditions appurtenant to the sale are the
following:
1. Ramona will make a down payment of Fifty Thousand
(P50,000.00) Pesos upon execution of the document
aforestated;
2. The Coronels will cause the transfer in their names of
the title of the property registered in the name of their
deceased father upon receipt of the Fifty Thousand
(P50,000.00) Pesos down payment;
3. Upon the transfer in their names of the subject
property, the Coronels will execute the deed of absolute
sale in favor of Ramona and the latter will pay the
former the whole balance of One Million One Hundred
Ninety Thousand (P1,190,000.00) Pesos.
On the same date (January 15, 1985), plaintiff-appellee
Concepcion D. Alcaraz (hereinafter referred to as
Concepcion), mother of Ramona, paid the down
payment of Fifty Thousand (P50,000.00) Pesos (Exh.
"B", Exh. "2").
On February 6, 1985, the property originally registered
in the name of the Coronels' father was transferred in
their names under TCT
No. 327043 (Exh. "D"; Exh. "4")
On February 18, 1985, the Coronels sold the property
covered by TCT No. 327043 to intervenor-appellant
Catalina B. Mabanag (hereinafter referred to as
Catalina) for One Million Five Hundred Eighty Thousand
(P1,580,000.00) Pesos after the latter has paid Three
Hundred Thousand (P300,000.00) Pesos (Exhs. "F-3";
Exh. "6-C")
For this reason, Coronels canceled and rescinded the
contract (Exh. "A") with Ramona by depositing the down
payment paid by Concepcion in the bank in trust for
Ramona Patricia Alcaraz.
On February 22, 1985, Concepcion, et al., filed a
complaint for specific performance against the Coronels
and caused the annotation of a notice of lis pendens at
the back of TCT No. 327403 (Exh. "E"; Exh. "5").
On April 2, 1985, Catalina caused the annotation of a
notice of adverse claim covering the same property with
the Registry of Deeds of Quezon City (Exh. "F"; Exh.
"6").
On April 25, 1985, the Coronels executed a Deed of
Absolute Sale over the subject property in favor of
Catalina (Exh. "G"; Exh. "7").
On June 5, 1985, a new title over the subject property
was issued in the name of Catalina under TCT No.
351582 (Exh. "H"; Exh. "8").
(Rollo, pp. 134-136)
In the course of the proceedings before the trial court
(Branch 83, RTC, Quezon City) the parties agreed to
submit the case for decision solely on the basis of
documentary exhibits. Thus, plaintiffs therein (now
private respondents) proffered their documentary
evidence accordingly marked as Exhibits "A" through
21
"J", inclusive of their corresponding submarkings.
Adopting these same exhibits as their own, then
defendants (now petitioners) accordingly offered and
marked them as Exhibits "1" through "10", likewise
inclusive of their corresponding submarkings. Upon
motion of the parties, the trial court gave them thirty
(30) days within which to simultaneously submit their
respective memoranda, and an additional 15 days within
which to submit their corresponding comment or reply
thereof, after which, the case would be deemed
submitted for resolution.
On April 14, 1988, the case was submitted for resolution
before Judge Reynaldo Roura, who was then temporarily
detailed to preside over Branch 82 of the RTC of Quezon
City. On March 1, 1989, judgment was handed down by
Judge Roura from his regular bench at Macabebe,
Pampanga for the Quezon City branch, disposing as
follows:
WHEREFORE, judgment for specific performance is
hereby rendered ordering defendant to execute in favor
of plaintiffs a deed of absolute sale covering that parcel
of land embraced in and covered by Transfer Certificate
of Title No. 327403 (now TCT No. 331582) of the
Registry of Deeds for Quezon City, together with all the
improvements existing thereon free from all liens and
encumbrances, and once accomplished, to immediately
deliver the said document of sale to plaintiffs and upon
receipt thereof, the said document of sale to plaintiffs
and upon receipt thereof, the plaintiffs are ordered to
pay defendants the whole balance of the purchase price
amounting to P1,190,000.00 in cash. Transfer
Certificate of Title No. 331582 of the Registry of Deeds
for Quezon City in the name of intervenor is hereby
canceled and declared to be without force and effect.
Defendants and intervenor and all other persons
claiming under them are hereby ordered to vacate the
subject property and deliver possession thereof to
plaintiffs. Plaintiffs' claim for damages and attorney's
fees, as well as the counterclaims of defendants and
intervenors are hereby dismissed.
No pronouncement as to costs.
So Ordered.
Macabebe, Pampanga for Quezon City, March 1, 1989.
(Rollo, p. 106)
A motion for reconsideration was filed by petitioner
before the new presiding judge of the Quezon City RTC
but the same was denied by Judge Estrella T. Estrada,
thusly:
The prayer contained in the instant motion, i.e., to annul
the decision and to render anew decision by the
undersigned Presiding Judge should be denied for the
following reasons: (1) The instant case became
submitted for decision as of April 14, 1988 when the
parties terminated the presentation of their respective
documentary evidence and when the Presiding Judge at
that time was Judge Reynaldo Roura. The fact that they
were allowed to file memoranda at some future date did
not change the fact that the hearing of the case was
terminated before Judge Roura and therefore the same
should be submitted to him for decision; (2) When the
defendants and intervenor did not object to the
authority of Judge Reynaldo Roura to decide the case
prior to the rendition of the decision, when they met for
the first time before the undersigned Presiding Judge at
the hearing of a pending incident in Civil Case No. Q-
46145 on November 11, 1988, they were deemed to
have acquiesced thereto and they are now estopped
from questioning said authority of Judge Roura after
they received the decision in question which happens to
be adverse to them; (3) While it is true that Judge
Reynaldo Roura was merely a Judge-on-detail at this
Branch of the Court, he was in all respects the Presiding
Judge with full authority to act on any pending incident
submitted before this Court during his incumbency.
When he returned to his Official Station at Macabebe,
Pampanga, he did not lose his authority to decide or
resolve such cases submitted to him for decision or
resolution because he continued as Judge of the
Regional Trial Court and is of co-equal rank with the
undersigned Presiding Judge. The standing rule and
supported by jurisprudence is that a Judge to whom a
case is submitted for decision has the authority to
decide the case notwithstanding his transfer to another
branch or region of the same court (Sec. 9, Rule 135,
Rule of Court).
Coming now to the twin prayer for reconsideration of the
Decision dated March 1, 1989 rendered in the instant
case, resolution of which now pertains to the
undersigned Presiding Judge, after a meticulous
examination of the documentary evidence presented by
the parties, she is convinced that the Decision of March
1, 1989 is supported by evidence and, therefore, should
not be disturbed.
IN VIEW OF THE FOREGOING, the "Motion for
Reconsideration and/or to Annul Decision and Render
Anew Decision by the Incumbent Presiding Judge" dated
March 20, 1989 is hereby DENIED.
SO ORDERED.
Quezon City, Philippines, July 12, 1989.
(Rollo, pp. 108-109)
Petitioners thereupon interposed an appeal, but on
December 16, 1991, the Court of Appeals (Buena,
Gonzaga-Reyes, Abad Santos (P), JJ.) rendered its
decision fully agreeing with the trial court.
Hence, the instant petition which was filed on March 5,
1992. The last pleading, private respondents' Reply
Memorandum, was filed on September 15, 1993. The
case was, however, re-raffled to undersigned ponente
only on August 28, 1996, due to the voluntary inhibition
of the Justice to whom the case was last assigned.
While we deem it necessary to introduce certain
refinements in the disquisition of respondent court in the
affirmance of the trial court's decision, we definitely find
the instant petition bereft of merit.
22
The heart of the controversy which is the ultimate key
in the resolution of the other issues in the case at bar is
the precise determination of the legal significance of the
document entitled "Receipt of Down Payment" which
was offered in evidence by both parties. There is no
dispute as to the fact that said document embodied the
binding contract between Ramona Patricia Alcaraz on
the one hand, and the heirs of Constancio P. Coronel on
the other, pertaining to a particular house and lot
covered by TCT No. 119627, as defined in Article 1305
of the Civil Code of the Philippines which reads as
follows:
Art. 1305. A contract is a meeting of minds between two
persons whereby one binds himself, with respect to the
other, to give something or to render some service.
While, it is the position of private respondents that the
"Receipt of Down Payment" embodied a perfected
contract of sale, which perforce, they seek to enforce by
means of an action for specific performance, petitioners
on their part insist that what the document signified was
a mere executory contract to sell, subject to certain
suspensive conditions, and because of the absence of
Ramona P. Alcaraz, who left for the United States of
America, said contract could not possibly ripen into a
contract absolute sale.
Plainly, such variance in the contending parties'
contentions is brought about by the way each interprets
the terms and/or conditions set forth in said private
instrument. Withal, based on whatever relevant and
admissible evidence may be available on record, this,
Court, as were the courts below, is now called upon to
adjudge what the real intent of the parties was at the
time the said document was executed.
The Civil Code defines a contract of sale, thus:
Art. 1458. By the contract of sale one of the contracting
parties obligates himself to transfer the ownership of
and to deliver a determinate thing, and the other to pay
therefor a price certain in money or its equivalent.
Sale, by its very nature, is a consensual contract
because it is perfected by mere consent. The essential
elements of a contract of sale are the following:
a) Consent or meeting of the minds, that is, consent to
transfer ownership in exchange for the price;
b) Determinate subject matter; and
c) Price certain in money or its equivalent.
Under this definition, a Contract to Sell may not be
considered as a Contract of Sale because the first
essential element is lacking. In a contract to sell, the
prospective seller explicity reserves the transfer of title
to the prospective buyer, meaning, the prospective
seller does not as yet agree or consent to transfer
ownership of the property subject of the contract to sell
until the happening of an event, which for present
purposes we shall take as the full payment of the
purchase price. What the seller agrees or obliges himself
to do is to fulfill is promise to sell the subject property
when the entire amount of the purchase price is
delivered to him. In other words the full payment of the
purchase price partakes of a suspensive condition, the
non-fulfillment of which prevents the obligation to sell
from arising and thus, ownership is retained by the
prospective seller without further remedies by the
prospective buyer. In Roque vs. Lapuz (96 SCRA 741
[1980]), this Court had occasion to rule:
Hence, We hold that the contract between the petitioner
and the respondent was a contract to sell where the
ownership or title is retained by the seller and is not to
pass until the full payment of the price, such payment
being a positive suspensive condition and failure of
which is not a breach, casual or serious, but simply an
event that prevented the obligation of the vendor to
convey title from acquiring binding force.
Stated positively, upon the fulfillment of the suspensive
condition which is the full payment of the purchase
price, the prospective seller's obligation to sell the
subject property by entering into a contract of sale with
the prospective buyer becomes demandable as provided
in Article 1479 of the Civil Code which states:
Art. 1479. A promise to buy and sell a determinate thing
for a price certain is reciprocally demandable.
An accepted unilateral promise to buy or to sell a
determinate thing for a price certain is binding upon the
promissor if the promise is supported by a consideration
distinct from the price.
A contract to sell may thus be defined as a bilateral
contract whereby the prospective seller, while expressly
reserving the ownership of the subject property despite
delivery thereof to the prospective buyer, binds himself
to sell the said property exclusively to the prospective
buyer upon fulfillment of the condition agreed upon, that
is, full payment of the purchase price.
A contract to sell as defined hereinabove, may not even
be considered as a conditional contract of sale where the
seller may likewise reserve title to the property subject
of the sale until the fulfillment of a suspensive condition,
because in a conditional contract of sale, the first
element of consent is present, although it is conditioned
upon the happening of a contingent event which may or
may not occur. If the suspensive condition is not
fulfilled, the perfection of the contract of sale is
completely abated (cf. Homesite and housing Corp. vs.
Court of Appeals, 133 SCRA 777 [1984]). However, if
the suspensive condition is fulfilled, the contract of sale
is thereby perfected, such that if there had already been
previous delivery of the property subject of the sale to
the buyer, ownership thereto automatically transfers to
the buyer by operation of law without any further act
having to be performed by the seller.
In a contract to sell, upon the fulfillment of the
suspensive condition which is the full payment of the
purchase price, ownership will not automatically
transfer to the buyer although the property may have
been previously delivered to him. The prospective seller
23
still has to convey title to the prospective buyer by
entering into a contract of absolute sale.
It is essential to distinguish between a contract to sell
and a conditional contract of sale specially in cases
where the subject property is sold by the owner not to
the party the seller contracted with, but to a third
person, as in the case at bench. In a contract to sell,
there being no previous sale of the property, a third
person buying such property despite the fulfillment of
the suspensive condition such as the full payment of the
purchase price, for instance, cannot be deemed a buyer
in bad faith and the prospective buyer cannot seek the
relief of reconveyance of the property. There is no
double sale in such case. Title to the property will
transfer to the buyer after registration because there is
no defect in the owner-seller's title per se, but the latter,
of course, may be used for damages by the intending
buyer.
In a conditional contract of sale, however, upon the
fulfillment of the suspensive condition, the sale becomes
absolute and this will definitely affect the seller's title
thereto. In fact, if there had been previous delivery of
the subject property, the seller's ownership or title to
the property is automatically transferred to the buyer
such that, the seller will no longer have any title to
transfer to any third person. Applying Article 1544 of the
Civil Code, such second buyer of the property who may
have had actual or constructive knowledge of such
defect in the seller's title, or at least was charged with
the obligation to discover such defect, cannot be a
registrant in good faith. Such second buyer cannot
defeat the first buyer's title. In case a title is issued to
the second buyer, the first buyer may seek
reconveyance of the property subject of the sale.
With the above postulates as guidelines, we now
proceed to the task of deciphering the real nature of the
contract entered into by petitioners and private
respondents.
It is a canon in the interpretation of contracts that the
words used therein should be given their natural and
ordinary meaning unless a technical meaning was
intended (Tan vs. Court of Appeals, 212 SCRA 586
[1992]). Thus, when petitioners declared in the said
"Receipt of Down Payment" that they —
Received from Miss Ramona Patricia Alcaraz of 146
Timog, Quezon City, the sum of Fifty Thousand Pesos
purchase price of our inherited house and lot, covered
by TCT No. 1199627 of the Registry of Deeds of Quezon
City, in the total amount of P1,240,000.00.
without any reservation of title until full payment of the
entire purchase price, the natural and ordinary idea
conveyed is that they sold their property.
When the "Receipt of Down Payment" is considered in
its entirety, it becomes more manifest that there was a
clear intent on the part of petitioners to transfer title to
the buyer, but since the transfer certificate of title was
still in the name of petitioner's father, they could not
fully effect such transfer although the buyer was then
willing and able to immediately pay the purchase price.
Therefore, petitioners-sellers undertook upon receipt of
the down payment from private respondent Ramona P.
Alcaraz, to cause the issuance of a new certificate of title
in their names from that of their father, after which,
they promised to present said title, now in their names,
to the latter and to execute the deed of absolute sale
whereupon, the latter shall, in turn, pay the entire
balance of the purchase price.
The agreement could not have been a contract to sell
because the sellers herein made no express reservation
of ownership or title to the subject parcel of land.
Furthermore, the circumstance which prevented the
parties from entering into an absolute contract of sale
pertained to the sellers themselves (the certificate of
title was not in their names) and not the full payment of
the purchase price. Under the established facts and
circumstances of the case, the Court may safely
presume that, had the certificate of title been in the
names of petitioners-sellers at that time, there would
have been no reason why an absolute contract of sale
could not have been executed and consummated right
there and then.
Moreover, unlike in a contract to sell, petitioners in the
case at bar did not merely promise to sell the properly
to private respondent upon the fulfillment of the
suspensive condition. On the contrary, having already
agreed to sell the subject property, they undertook to
have the certificate of title changed to their names and
immediately thereafter, to execute the written deed of
absolute sale.
Thus, the parties did not merely enter into a contract to
sell where the sellers, after compliance by the buyer
with certain terms and conditions, promised to sell the
property to the latter. What may be perceived from the
respective undertakings of the parties to the contract is
that petitioners had already agreed to sell the house and
lot they inherited from their father, completely willing to
transfer full ownership of the subject house and lot to
the buyer if the documents were then in order. It just
happened, however, that the transfer certificate of title
was then still in the name of their father. It was more
expedient to first effect the change in the certificate of
title so as to bear their names. That is why they
undertook to cause the issuance of a new transfer of the
certificate of title in their names upon receipt of the
down payment in the amount of P50,000.00. As soon as
the new certificate of title is issued in their names,
petitioners were committed to immediately execute the
deed of absolute sale. Only then will the obligation of
the buyer to pay the remainder of the purchase price
arise.
There is no doubt that unlike in a contract to sell which
is most commonly entered into so as to protect the seller
against a buyer who intends to buy the property in
installment by withholding ownership over the property
until the buyer effects full payment therefor, in the
contract entered into in the case at bar, the sellers were
the one who were unable to enter into a contract of
absolute sale by reason of the fact that the certificate of
24
title to the property was still in the name of their father.
It was the sellers in this case who, as it were, had the
impediment which prevented, so to speak, the execution
of an contract of absolute sale.
What is clearly established by the plain language of the
subject document is that when the said "Receipt of
Down Payment" was prepared and signed by petitioners
Romeo A. Coronel, et al., the parties had agreed to a
conditional contract of sale, consummation of which is
subject only to the successful transfer of the certificate
of title from the name of petitioners' father, Constancio
P. Coronel, to their names.
The Court significantly notes this suspensive condition
was, in fact, fulfilled on February 6, 1985 (Exh. "D"; Exh.
"4"). Thus, on said date, the conditional contract of sale
between petitioners and private respondent Ramona P.
Alcaraz became obligatory, the only act required for the
consummation thereof being the delivery of the property
by means of the execution of the deed of absolute sale
in a public instrument, which petitioners unequivocally
committed themselves to do as evidenced by the
"Receipt of Down Payment."
Article 1475, in correlation with Article 1181, both of the
Civil Code, plainly applies to the case at bench. Thus,
Art. 1475. The contract of sale is perfected at the
moment there is a meeting of minds upon the thing
which is the object of the contract and upon the price.
From the moment, the parties may reciprocally demand
performance, subject to the provisions of the law
governing the form of contracts.
Art. 1181. In conditional obligations, the acquisition of
rights, as well as the extinguishment or loss of those
already acquired, shall depend upon the happening of
the event which constitutes the condition.
Since the condition contemplated by the parties which
is the issuance of a certificate of title in petitioners'
names was fulfilled on February 6, 1985, the respective
obligations of the parties under the contract of sale
became mutually demandable, that is, petitioners, as
sellers, were obliged to present the transfer certificate
of title already in their names to private respondent
Ramona P. Alcaraz, the buyer, and to immediately
execute the deed of absolute sale, while the buyer on
her part, was obliged to forthwith pay the balance of the
purchase price amounting to P1,190,000.00.
It is also significant to note that in the first paragraph in
page 9 of their petition, petitioners conclusively
admitted that:
3. The petitioners-sellers Coronel bound themselves "to
effect the transfer in our names from our deceased
father Constancio P. Coronel, the transfer certificate of
title immediately upon receipt of the downpayment
above-stated". The sale was still subject to this
suspensive condition. (Emphasis supplied.)
(Rollo, p. 16)
Petitioners themselves recognized that they entered into
a contract of sale subject to a suspensive condition.
Only, they contend, continuing in the same paragraph,
that:
. . . Had petitioners-sellers not complied with this
condition of first transferring the title to the property
under their names, there could be no perfected contract
of sale. (Emphasis supplied.)
(Ibid.)
not aware that they set their own trap for themselves,
for Article 1186 of the Civil Code expressly provides
that:
Art. 1186. The condition shall be deemed fulfilled when
the obligor voluntarily prevents its fulfillment.
Besides, it should be stressed and emphasized that what
is more controlling than these mere hypothetical
arguments is the fact that the condition herein referred
to was actually and indisputably fulfilled on February 6,
1985, when a new title was issued in the names of
petitioners as evidenced by TCT No. 327403 (Exh. "D";
Exh. "4").
The inevitable conclusion is that on January 19, 1985,
as evidenced by the document denominated as "Receipt
of Down Payment" (Exh. "A"; Exh. "1"), the parties
entered into a contract of sale subject only to the
suspensive condition that the sellers shall effect the
issuance of new certificate title from that of their father's
name to their names and that, on February 6, 1985, this
condition was fulfilled (Exh. "D"; Exh. "4").
We, therefore, hold that, in accordance with Article 1187
which pertinently provides —
Art. 1187. The effects of conditional obligation to give,
once the condition has been fulfilled, shall retroact to
the day of the constitution of the obligation . . .
In obligation to do or not to do, the courts shall
determine, in each case, the retroactive effect of the
condition that has been complied with.
the rights and obligations of the parties with respect to
the perfected contract of sale became mutually due and
demandable as of the time of fulfillment or occurrence
of the suspensive condition on February 6, 1985. As of
that point in time, reciprocal obligations of both seller
and buyer arose.
Petitioners also argue there could been no perfected
contract on January 19, 1985 because they were then
not yet the absolute owners of the inherited property.
We cannot sustain this argument.
Article 774 of the Civil Code defines Succession as a
mode of transferring ownership as follows:
Art. 774. Succession is a mode of acquisition by virtue
of which the property, rights and obligations to be
extent and value of the inheritance of a person are
25
transmitted through his death to another or others by
his will or by operation of law.
Petitioners-sellers in the case at bar being the sons and
daughters of the decedent Constancio P. Coronel are
compulsory heirs who were called to succession by
operation of law. Thus, at the point their father drew his
last breath, petitioners stepped into his shoes insofar as
the subject property is concerned, such that any rights
or obligations pertaining thereto became binding and
enforceable upon them. It is expressly provided that
rights to the succession are transmitted from the
moment of death of the decedent (Article 777, Civil
Code; Cuison vs. Villanueva, 90 Phil. 850 [1952]).
Be it also noted that petitioners' claim that succession
may not be declared unless the creditors have been paid
is rendered moot by the fact that they were able to
effect the transfer of the title to the property from the
decedent's name to their names on February 6, 1985.
Aside from this, petitioners are precluded from raising
their supposed lack of capacity to enter into an
agreement at that time and they cannot be allowed to
now take a posture contrary to that which they took
when they entered into the agreement with private
respondent Ramona P. Alcaraz. The Civil Code expressly
states that:
Art. 1431. Through estoppel an admission or
representation is rendered conclusive upon the person
making it, and cannot be denied or disproved as against
the person relying thereon.
Having represented themselves as the true owners of
the subject property at the time of sale, petitioners
cannot claim now that they were not yet the absolute
owners thereof at that time.
Petitioners also contend that although there was in fact
a perfected contract of sale between them and Ramona
P. Alcaraz, the latter breached her reciprocal obligation
when she rendered impossible the consummation
thereof by going to the United States of America,
without leaving her address, telephone number, and
Special Power of Attorney (Paragraphs 14 and 15,
Answer with Compulsory Counterclaim to the Amended
Complaint, p. 2; Rollo, p. 43), for which reason, so
petitioners conclude, they were correct in unilaterally
rescinding rescinding the contract of sale.
We do not agree with petitioners that there was a valid
rescission of the contract of sale in the instant case. We
note that these supposed grounds for petitioners'
rescission, are mere allegations found only in their
responsive pleadings, which by express provision of the
rules, are deemed controverted even if no reply is filed
by the plaintiffs (Sec. 11, Rule 6, Revised Rules of
Court). The records are absolutely bereft of any
supporting evidence to substantiate petitioners'
allegations. We have stressed time and again that
allegations must be proven by sufficient evidence (Ng
Cho Cio vs. Ng Diong, 110 Phil. 882 [1961]; Recaro vs.
Embisan, 2 SCRA 598 [1961]. Mere allegation is not an
evidence (Lagasca vs. De Vera, 79 Phil. 376 [1947]).
Even assuming arguendo that Ramona P. Alcaraz was in
the United States of America on February 6, 1985, we
cannot justify petitioner-sellers' act of unilaterally and
extradicially rescinding the contract of sale, there being
no express stipulation authorizing the sellers to
extarjudicially rescind the contract of sale. (cf. Dignos
vs. CA, 158 SCRA 375 [1988]; Taguba vs. Vda. de Leon,
132 SCRA 722 [1984])
Moreover, petitioners are estopped from raising the
alleged absence of Ramona P. Alcaraz because although
the evidence on record shows that the sale was in the
name of Ramona P. Alcaraz as the buyer, the sellers had
been dealing with Concepcion D. Alcaraz, Ramona's
mother, who had acted for and in behalf of her daughter,
if not also in her own behalf. Indeed, the down payment
was made by Concepcion D. Alcaraz with her own
personal check (Exh. "B"; Exh. "2") for and in behalf of
Ramona P. Alcaraz. There is no evidence showing that
petitioners ever questioned Concepcion's authority to
represent Ramona P. Alcaraz when they accepted her
personal check. Neither did they raise any objection as
regards payment being effected by a third person.
Accordingly, as far as petitioners are concerned, the
physical absence of Ramona P. Alcaraz is not a ground
to rescind the contract of sale.
Corollarily, Ramona P. Alcaraz cannot even be deemed
to be in default, insofar as her obligation to pay the full
purchase price is concerned. Petitioners who are
precluded from setting up the defense of the physical
absence of Ramona P. Alcaraz as above-explained
offered no proof whatsoever to show that they actually
presented the new transfer certificate of title in their
names and signified their willingness and readiness to
execute the deed of absolute sale in accordance with
their agreement. Ramona's corresponding obligation to
pay the balance of the purchase price in the amount of
P1,190,000.00 (as buyer) never became due and
demandable and, therefore, she cannot be deemed to
have been in default.
Article 1169 of the Civil Code defines when a party in a
contract involving reciprocal obligations may be
considered in default, to wit:
Art. 1169. Those obliged to deliver or to do something,
incur in delay from the time the obligee judicially or
extrajudicially demands from them the fulfillment of
their obligation.
xxx xxx xxx
In reciprocal obligations, neither party incurs in delay if
the other does not comply or is not ready to comply in
a proper manner with what is incumbent upon him.
From the moment one of the parties fulfill his obligation,
delay by the other begins. (Emphasis supplied.)
There is thus neither factual nor legal basis to rescind
the contract of sale between petitioners and
respondents.
With the foregoing conclusions, the sale to the other
petitioner, Catalina B. Mabanag, gave rise to a case of
26
double sale where Article 1544 of the Civil Code will
apply, to wit:
Art. 1544. If the same thing should have been sold to
different vendees, the ownership shall be transferred to
the person who may have first taken possession thereof
in good faith, if it should be movable property.
Should if be immovable property, the ownership shall
belong to the person acquiring it who in good faith first
recorded it in Registry of Property.
Should there be no inscription, the ownership shall
pertain to the person who in good faith was first in the
possession; and, in the absence thereof to the person
who presents the oldest title, provided there is good
faith.
The record of the case shows that the Deed of Absolute
Sale dated April 25, 1985 as proof of the second contract
of sale was registered with the Registry of Deeds of
Quezon City giving rise to the issuance of a new
certificate of title in the name of Catalina B. Mabanag on
June 5, 1985. Thus, the second paragraph of Article
1544 shall apply.
The above-cited provision on double sale presumes title
or ownership to pass to the first buyer, the exceptions
being: (a) when the second buyer, in good faith,
registers the sale ahead of the first buyer, and (b)
should there be no inscription by either of the two
buyers, when the second buyer, in good faith, acquires
possession of the property ahead of the first buyer.
Unless, the second buyer satisfies these requirements,
title or ownership will not transfer to him to the
prejudice of the first buyer.
In his commentaries on the Civil Code, an accepted
authority on the subject, now a distinguished member
of the Court, Justice Jose C. Vitug, explains:
The governing principle is prius tempore, potior jure
(first in time, stronger in right). Knowledge by the first
buyer of the second sale cannot defeat the first buyer's
rights except when the second buyer first registers in
good faith the second sale (Olivares vs. Gonzales, 159
SCRA 33). Conversely, knowledge gained by the second
buyer of the first sale defeats his rights even if he is first
to register, since knowledge taints his registration with
bad faith (see also Astorga vs. Court of Appeals, G.R.
No. 58530, 26 December 1984). In Cruz vs. Cabana
(G.R. No. 56232, 22 June 1984, 129 SCRA 656), it has
held that it is essential, to merit the protection of Art.
1544, second paragraph, that the second realty buyer
must act in good faith in registering his deed of sale
(citing Carbonell vs. Court of Appeals, 69 SCRA 99,
Crisostomo vs. CA, G.R. No. 95843, 02 September
1992).
(J. Vitug Compendium of Civil Law and Jurisprudence,
1993 Edition, p. 604).
Petitioner point out that the notice of lis pendens in the
case at bar was annoted on the title of the subject
property only on February 22, 1985, whereas, the
second sale between petitioners Coronels and petitioner
Mabanag was supposedly perfected prior thereto or on
February 18, 1985. The idea conveyed is that at the time
petitioner Mabanag, the second buyer, bought the
property under a clean title, she was unaware of any
adverse claim or previous sale, for which reason she is
buyer in good faith.
We are not persuaded by such argument.
In a case of double sale, what finds relevance and
materiality is not whether or not the second buyer was
a buyer in good faith but whether or not said second
buyer registers such second sale in good faith, that is,
without knowledge of any defect in the title of the
property sold.
As clearly borne out by the evidence in this case,
petitioner Mabanag could not have in good faith,
registered the sale entered into on February 18, 1985
because as early as February 22, 1985, a notice of lis
pendens had been annotated on the transfer certificate
of title in the names of petitioners, whereas petitioner
Mabanag registered the said sale sometime in April,
1985. At the time of registration, therefore, petitioner
Mabanag knew that the same property had already been
previously sold to private respondents, or, at least, she
was charged with knowledge that a previous buyer is
claiming title to the same property. Petitioner Mabanag
cannot close her eyes to the defect in petitioners' title
to the property at the time of the registration of the
property.
This Court had occasions to rule that:
If a vendee in a double sale registers that sale after he
has acquired knowledge that there was a previous sale
of the same property to a third party or that another
person claims said property in a pervious sale, the
registration will constitute a registration in bad faith and
will not confer upon him any right. (Salvoro vs. Tanega,
87 SCRA 349 [1978]; citing Palarca vs. Director of Land,
43 Phil. 146; Cagaoan vs. Cagaoan, 43 Phil. 554;
Fernandez vs. Mercader, 43 Phil. 581.)
Thus, the sale of the subject parcel of land between
petitioners and Ramona P. Alcaraz, perfected on
February 6, 1985, prior to that between petitioners and
Catalina B. Mabanag on February 18, 1985, was
correctly upheld by both the courts below.
Although there may be ample indications that there was
in fact an agency between Ramona as principal and
Concepcion, her mother, as agent insofar as the subject
contract of sale is concerned, the issue of whether or
not Concepcion was also acting in her own behalf as a
co-buyer is not squarely raised in the instant petition,
nor in such assumption disputed between mother and
daughter. Thus, We will not touch this issue and no
longer disturb the lower courts' ruling on this point.
WHEREFORE, premises considered, the instant petition
is hereby DISMISSED and the appealed judgment
AFFIRMED. SO ORDERED.
27
28
Balus vs. Balus (G.R. No. 168970, January 15,
2010)
CELESTINO BALUS,
Petitioner,
- versus -
SATURNINO BALUS andLEONARDA BALUS VDA. DE
CALUNOD,
Respondents. G.R. No. 168970
Promulgated:
January 15, 2010
PERALTA, J.:
Assailed in the present petition for review on certiorari
under Rule 45 of the Rules of Court is the Decision[1] of
the Court of Appeals (CA) dated May 31, 2005 in CA-
G.R. CV No. 58041 which set aside the February 7, 1997
Decision of the Regional Trial Court (RTC) of Lanao del
Norte, Branch 4 in Civil Case No. 3263.
The facts of the case are as follows:
Herein petitioner and respondents are the children of
the spouses Rufo and Sebastiana Balus. Sebastiana died
on September 6, 1978, while Rufo died on July 6, 1984.
On January 3, 1979, Rufo mortgaged a parcel of land,
which he owns, as security for a loan he obtained from
the Rural Bank of Maigo, Lanao del Norte (Bank). The
said property was originally covered by Original
Certificate of Title No. P-439(788) and more particularly
described as follows:
A parcel of land with all the improvements thereon,
containing an area of 3.0740 hectares, more or less,
situated in the Barrio of Lagundang, Bunawan, Iligan
City, and bounded as follows: Bounded on the NE., along
line 1-2, by Lot 5122, Csd-292; along line 2-12, by
Dodiongan River; along line 12-13 by Lot 4649, Csd-
292; and along line 12-1, by Lot 4661, Csd-292. x x x
[2]
Rufo failed to pay his loan. As a result, the mortgaged
property was foreclosed and was subsequently sold to
the Bank as the sole bidder at a public auction held for
that purpose. On November 20, 1981, a Certificate of
Sale[3] was executed by the sheriff in favor of the Bank.
The property was not redeemed within the period
allowed by law. More than two years after the auction,
or on January 25, 1984, the sheriff executed a Definite
Deed of Sale[4] in the Bank's favor. Thereafter, a new
title was issued in the name of the Bank.
On October 10, 1989, herein petitioner and respondents
executed an Extrajudicial Settlement of Estate[5]
adjudicating to each of them a specific one-third portion
of the subject property consisting of 10,246 square
meters. The Extrajudicial Settlement also contained
provisions wherein the parties admitted knowledge of
the fact that their father mortgaged the subject property
to the Bank and that they intended to redeem the same
at the soonest possible time.
Three years after the execution of the Extrajudicial
Settlement, herein respondents bought the subject
property from the Bank. On October 12, 1992, a Deed
of Sale of Registered Land[6] was executed by the Bank
in favor of respondents. Subsequently, Transfer
Certificate of Title (TCT) No. T-39,484(a.f.)[7] was
issued in the name of respondents. Meanwhile,
petitioner continued possession of the subject lot.
On June 27, 1995, respondents filed a Complaint[8] for
Recovery of Possession and Damages against petitioner,
contending that they had already informed petitioner of
the fact that they were the new owners of the disputed
property, but the petitioner still refused to surrender
possession of the same to them. Respondents claimed
that they had exhausted all remedies for the amicable
settlement of the case, but to no avail.
On February 7, 1997, the RTC rendered a Decision[9]
disposing as follows:
WHEREFORE, judgment is hereby rendered, ordering
the plaintiffs to execute a Deed of Sale in favor of the
defendant, the one-third share of the property in
question, presently possessed by him, and described in
the deed of partition, as follows:
A one-third portion of Transfer Certificate of Title No. T-
39,484 (a.f.), formerly Original Certificate of Title No. P-
788, now in the name of Saturnino Balus and Leonarda
B. Vda. de Calunod, situated at Lagundang, Bunawan,
Iligan City, bounded on the North by Lot 5122; East by
shares of Saturnino Balus and Leonarda Balus-Calunod;
South by Lot 4649, Dodiongan River; West by Lot 4661,
consisting of 10,246 square meters, including
improvements thereon.
and dismissing all other claims of the parties.
The amount of P6,733.33 consigned by the defendant
with the Clerk of Court is hereby ordered delivered to
the plaintiffs, as purchase price of the one-third portion
of the land in question.
Plaintiffs are ordered to pay the costs.
SO ORDERED.[10]
The RTC held that the right of petitioner to purchase
from the respondents his share in the disputed property
was recognized by the provisions of the Extrajudicial
Settlement of Estate, which the parties had executed
before the respondents bought the subject lot from the
Bank.
Aggrieved by the Decision of the RTC, herein
respondents filed an appeal with the CA.
On May 31, 2005, the CA promulgated the presently
assailed Decision, reversing and setting aside the
Decision of the RTC and ordering petitioner to
immediately surrender possession of the subject
29
property to the respondents. The CA ruled that when
petitioner and respondents did not redeem the subject
property within the redemption period and allowed the
consolidation of ownership and the issuance of a new
title in the name of the Bank, their co-ownership was
extinguished.
Hence, the instant petition raising a sole issue, to wit:
WHETHER OR NOT CO-OWNERSHIP AMONG THE
PETITIONER AND THE RESPONDENTS OVER THE
PROPERTY PERSISTED/CONTINUED TO EXIST (EVEN
AFTER THE TRANSFER OF TITLE TO THE BANK) BY
VIRTUE OF THE PARTIES' AGREEMENT PRIOR TO THE
REPURCHASE THEREOF BY THE RESPONDENTS; THUS,
WARRANTING THE PETITIONER'S ACT OF ENFORCING
THE AGREEMENT BY REIMBURSING THE RESPONDENTS
OF HIS (PETITIONER'S) JUST SHARE OF THE
REPURCHASE PRICE.[11]
The main issue raised by petitioner is whether co-
ownership by him and respondents over the subject
property persisted even after the lot was purchased by
the Bank and title thereto transferred to its name, and
even after it was eventually bought back by the
respondents from the Bank.
Petitioner insists that despite respondents' full
knowledge of the fact that the title over the disputed
property was already in the name of the Bank, they still
proceeded to execute the subject Extrajudicial
Settlement, having in mind the intention of purchasing
back the property together with petitioner and of
continuing their co-ownership thereof.
Petitioner posits that the subject Extrajudicial
Settlement is, in and by itself, a contract between him
and respondents, because it contains a provision
whereby the parties agreed to continue their co-
ownership of the subject property by redeeming or
repurchasing the same from the Bank. This agreement,
petitioner contends, is the law between the parties and,
as such, binds the respondents. As a result, petitioner
asserts that respondents' act of buying the disputed
property from the Bank without notifying him inures to
his benefit as to give him the right to claim his rightful
portion of the property, comprising 1/3 thereof, by
reimbursing respondents the equivalent 1/3 of the sum
they paid to the Bank.
The Court is not persuaded.
Petitioner and respondents are arguing on the wrong
premise that, at the time of the execution of the
Extrajudicial Settlement, the subject property formed
part of the estate of their deceased father to which they
may lay claim as his heirs.
At the outset, it bears to emphasize that there is no
dispute with respect to the fact that the subject property
was exclusively owned by petitioner and respondents'
father, Rufo, at the time that it was mortgaged in 1979.
This was stipulated by the parties during the hearing
conducted by the trial court on October 28, 1996.[12]
Evidence shows that a Definite Deed of Sale[13] was
issued in favor of the Bank on January 25, 1984, after
the period of redemption expired. There is neither any
dispute that a new title was issued in the Bank's name
before Rufo died on July 6, 1984. Hence, there is no
question that the Bank acquired exclusive ownership of
the contested lot during the lifetime of Rufo.
The rights to a person's succession are transmitted from
the moment of his death.[14] In addition, the
inheritance of a person consists of the property and
transmissible rights and obligations existing at the time
of his death, as well as those which have accrued
thereto since the opening of the succession.[15] In the
present case, since Rufo lost ownership of the subject
property during his lifetime, it only follows that at the
time of his death, the disputed parcel of land no longer
formed part of his estate to which his heirs may lay
claim. Stated differently, petitioner and respondents
never inherited the subject lot from their father.
Petitioner and respondents, therefore, were wrong in
assuming that they became co-owners of the subject
lot. Thus, any issue arising from the supposed right of
petitioner as co-owner of the contested parcel of land is
negated by the fact that, in the eyes of the law, the
disputed lot did not pass into the hands of petitioner and
respondents as compulsory heirs of Rufo at any given
point in time.
The foregoing notwithstanding, the Court finds a
necessity for a complete determination of the issues
raised in the instant case to look into petitioner's
argument that the Extrajudicial Settlement is an
independent contract which gives him the right to
enforce his right to claim a portion of the disputed lot
bought by respondents.
It is true that under Article 1315 of the Civil Code of the
Philippines, contracts are perfected by mere consent;
and from that moment, the parties are bound not only
to the fulfillment of what has been expressly stipulated
but also to all the consequences which, according to
their nature, may be in keeping with good faith, usage
and law.
Article 1306 of the same Code also provides that the
contracting parties may establish such stipulations,
clauses, terms and conditions as they may deem
convenient, provided these are not contrary to law,
morals, good customs, public order or public policy.
In the present case, however, there is nothing in the
subject Extrajudicial Settlement to indicate any express
stipulation for petitioner and respondents to continue
with their supposed co-ownership of the contested lot.
On the contrary, a plain reading of the provisions of the
Extrajudicial Settlement would not, in any way, support
petitioner's contention that it was his and his sibling's
intention to buy the subject property from the Bank and
continue what they believed to be co-ownership thereof.
It is a cardinal rule in the interpretation of contracts that
30
the intention of the parties shall be accorded primordial interference from the other.[20] In other words, the
consideration.[16] It is the duty of the courts to place a purpose of partition is to put an end to co-
practical and realistic construction upon it, giving due ownership,[21] an objective which negates petitioner's
consideration to the context in which it is negotiated and claims in the present case.
the purpose which it is intended to serve.[17] Such
intention is determined from the express terms of their WHEREFORE, the instant petition is DENIED. The
agreement, as well as their contemporaneous and assailed Decision of the Court of Appeals, dated May 31,
subsequent acts.[18] Absurd and illogical 2005 in CA-G.R. CV No. 58041, is AFFIRMED.
interpretations should also be avoided.[19]
SO ORDERED.
For petitioner to claim that the Extrajudicial Settlement
is an agreement between him and his siblings to
continue what they thought was their ownership of the
subject property, even after the same had been bought
by the Bank, is stretching the interpretation of the said
Extrajudicial Settlement too far.

In the first place, as earlier discussed, there is no co-

ownership to talk about and no property to partition, as
the disputed lot never formed part of the estate of their
deceased father.

Moreover, petitioner's asseveration of his and

respondents' intention of continuing with their supposed
co-ownership is negated by no less than his assertions
in the present petition that on several occasions he had
the chance to purchase the subject property back, but
he refused to do so. In fact, he claims that after the
Bank acquired the disputed lot, it offered to re-sell the
same to him but he ignored such offer. How then can
petitioner now claim that it was also his intention to
purchase the subject property from the Bank, when he
admitted that he refused the Bank's offer to re-sell the
subject property to him?

In addition, it appears from the recitals in the

Extrajudicial Settlement that, at the time of the
execution thereof, the parties were not yet aware that
the subject property was already exclusively owned by
the Bank. Nonetheless, the lack of knowledge on the
part of petitioner and respondents that the mortgage
was already foreclosed and title to the property was
already transferred to the Bank does not give them the
right or the authority to unilaterally declare themselves
as co-owners of the disputed property; otherwise, the
disposition of the case would be made to depend on the
belief and conviction of the party-litigants and not on
the evidence adduced and the law and jurisprudence
applicable thereto.

Furthermore, petitioner's contention that he and his

siblings intended to continue their supposed co-
ownership of the subject property contradicts the
provisions of the subject Extrajudicial Settlement where
they clearly manifested their intention of having the
subject property divided or partitioned by assigning to
each of the petitioner and respondents a specific 1/3
portion of the same. Partition calls for the segregation
and conveyance of a determinate portion of the property
owned in common. It seeks a severance of the individual
interests of each co-owner, vesting in each of them a
sole estate in a specific property and giving each one a
right to enjoy his estate without supervision or
31
32
 ARTICLE 776
Manuel Uy & Sons, Inc. vs. Valbueco, Incorporated
(G.R. No. 179594, September 11, 2013)
G.R. No. 179594 September 11, 2013
MANUEL UY & SONS, INC., Petitioner,
vs.
VALBUECO, INCORPORATED, Respondent.
DECISION
PERALTA, J.:
This is a petition for review on certiorari1 of the Court
of Appeals’ Decision2 dated December 11, 2006 in CA-
G.R. CV No. 85877, and its Resolution dated September
4, 2007, denying petitioner’s motion for
reconsideration.
The Court of Appeals reversed and set aside the
Decision3 of the Regional Trial Court (RTC) of Manila,
Branch 1, dismissing the Complaint for specific
performance and damages. The Court of Appeals
reinstated the Complaint and directed petitioner to
execute deeds of absolute sale in favor of respondent
after payment of the purchase price of the subject lots.
The facts, as stated by the Court of Appeals, are as
follows:
Petitioner Manuel Uy & Sons, Inc. is the registered
owner of parcels of land located in Teresa, Rizal covered
by Transfer Certificate of Title(TCT) No. 59534, covering
an area of about 6,119 square meters; TCT No.59445,
covering an area of about 6,838 square meters; TCT No.
59446,covering an area of about 12,389 square meters;
and TCT No. 59444,covering an area of about 32,047
square meters.
On November 29, 1973, two Conditional Deeds of Sale
were executed by petitioner, as vendor, in favor of
respondent Valbueco, Incorporated, as vendee. The first
Conditional Deed of Sale4 covered TCT Nos. 59534,
59445 and 59446, and contained the following terms
and conditions:
That for and in consideration of the sum of ONE
HUNDREDSIXTY-FOUR THOUSAND SEVEN HUNDRED
FORTY-NINE(Php164,749.00) PESOS, Philippine
currency, the VENDOR hereby agrees to SELL, CEDE,
TRANSFER and CONVEY unto the VENDEE xx x the
aforementioned properties, payable under the following
terms and conditions:
1. The sum of FORTY-ONE THOUSAND ONE
HUNDREDEIGHTY-SEVEN and 25/100 (Php 41,187.25)
PESOS shall be paid upon signing of this conditional
deed of sale; and
2. The balance of ONE HUNDRED TWENTY-
THREETHOUSAND FIVE HUNDRED SIXTY-ONE and
75/100 (Php123,561.75) PESOS shall be paid within a
period of one (1) year from November 15, 1973, with
interest of 12% per annum based on the balance, in the
mode and manner specified below:
a) January 4, 1974 – P16,474.90 plus interest
b) On or before May 15, 1974 – P53,543.43 plus interest
c) On or before November 15, 1974 – P53,543.32 plus
interest
3. That the vendee shall be given a grace period of thirty
(30)days from the due date of any installment with
corresponding interest to be added, but should the
VENDEE fail to make such payment within the grace
period this contract shall be deemed rescinded and
without force and effect after notice in writing by
VENDOR to VENDEE.
4. That the VENDOR agrees to have the existing
Mortgages on the properties subject of this sale released
on or before May 20, 1974.
5. That the VENDOR agrees to have the above-described
properties freed and cleared of all lessees, tenants,
adverse occupants or squatters within 100 days from
the execution of this conditional deed of sale. In case of
failure by the VENDOR to comply with the undertaking
provided in this paragraph and the VENDEE shall find it
necessary to file a case or cases in court to eject the
said lessees, tenants, occupants and/or squatters from
the land, subject of this sale, the VENDOR agrees to
answer and pay for all the expenses incurred and to be
incurred in connection with said cases until the same are
fully and finally terminated.
6. That the VENDOR and the VENDEE agree that during
the existence of this Contract and without previous
expressed written permission from the other, they shall
not sell, cede, assign, transfer or mortgage, or in any
way encumber unto another person or party any right,
interest or equity that they may have in and to said
parcels of land. x x x x
8. That it is understood that ownership of the properties
herein conveyed shall not pass to the VENDEE until after
payment of the full purchase price; provided, however,
that the VENDOR shall allow the annotation of this
Conditional Deed of Sale at the back of the titles of the
above-described parcels of land in the corresponding
Registry of Deeds x xx.
9. That upon full payment of the total purchase price, a
Deed of Absolute Sale shall be executed in favor of the
VENDEE and the VENDOR agrees to pay the
documentary stamps and the science stamp tax of the
Deed of Sale; while the VENDEE agrees to pay the
registration and other expenses for the issuance of a
new title.
10. That it is mutually agreed that in case of litigation,
the venue of the case shall be in the courts of Manila,
33
having competent jurisdiction, any other venue being
expressly waived.5
On the other hand, the second Conditional Deed of Sale6
covering Lot No. 59444 provides, thus:
1. The sum of FIFTY-TWO THOUSAND SEVENTY-SIXAND
37/100 (Php 52,076.37) PESOS, shall be paid upon
signing of this conditional deed of sale; and
2. The balance of ONE HUNDRED FIFTY-SIXTHOUSAND
TWO HUNDRED TWENTY-NINE and 13/100
(Php156,229.13) PESOS shall be paid within a period of
one (1) year from November 15, 1973, with interest of
12% per annum based on the balance, in the mode and
manner specified below:
a) January 4, 1974 – P20,830.55 plus interest
b) On or before May 15, 1974 – P67,699.29 plus interest
c) On or before November 15, 1974, P67,699.29 plus
interest
3. That the VENDEE shall be given a grace period of
thirty (30) days from the due date of any installment
with corresponding interest to be added, but should the
VENDEE fail to make such payment within the grace
period, this contract shall be deemed rescinded and
without force and effect after notice in writing by
VENDOR to VENDEE.
4. That the VENDOR agrees and acknowledges that any
and all payments to be made by the VENDEE by reason
of this presents unless hereafter advised by VENDOR to
the contrary, shall be made in favor of and to the
Philippine Trust Company by way of liquidation and
payment of the existing mortgage on the property
subject of this sale.
5. That after each payment adverted to above the
VENDOR shall issue the corresponding receipt for the
amount paid by the VENDOR to the Philippine Trust
Company.
6. That the VENDOR agrees to have the above-described
property freed and cleared of all lessees, tenants,
adverse occupants or squatters within 100 days from
the execution of this conditional deed of sale. In case of
failure by the VENDOR to comply with this undertaking
provided in this paragraph and the VENDEE shall find it
necessary to file a case or cases in court to eject the
said lessees, tenants, occupants and/or squatters from
the land, subject of this sale, the VENDOR agrees to
answer and pay for all the expenses incurred and to be
incurred in connection with said cases until the same are
fully and finally terminated.
7. That the VENDOR and the VENDEE agree that during
the existence of this Contract and without previous
expressed written permission from the other, they shall
not sell, cede, assign, transfer or mortgage, or in any
way encumber unto another person or party any right,
interest or equity that they may have in and to said
parcel of land.
xxxx
9. That it is understood that ownership of the property
herein conveyed shall not pass to the VENDEE until after
payment of the full purchase price, provided, however,
that the VENDOR shall allow the annotation of the
Conditional Deed of Sale at the back of the Title of the
above-described parcel of land in the corresponding
Registry of Deeds; x xx.
10. That upon full payment of the total purchase price,
a Deed of Absolute Sale shall be executed in favor of the
VENDEE and the VENDOR agrees to pay the
documentary stamps and the science stamp tax of the
Deed of Sale; while the VENDEE agrees to pay the
registration and other expenses for the issuance of a
new title.
11. That it is mutually agreed that in case of litigation,
the venue of the case shall be in the courts of Manila,
having competent jurisdiction, any other venue being
expressly waived.7
Respondent was able to pay petitioner the amount of
P275,055.558 as partial payment for the two properties
corresponding to the initial payments and the first
installments of the said properties.
At the same time, petitioner complied with its obligation
under the conditional deeds of sale, as follows: (1) the
mortgage for TCT No. 59446 was released on May 18,
1984, while the mortgages for TCT Nos. 59445and
59534 were released on July 19, 1974; (2) the unlawful
occupants of the lots covered by TCT Nos. 59444,
59534, 59445 and 59446 surrendered their possession
and use of the said lots in consideration of the amount
of P6,000.00 in a document9 dated November 19, 1973,
and they agreed to demolish their shanties on or before
December 7, 1973; and (3) the mortgage with Philippine
Trust Company covering TCT No. 59444 was
discharged10 in 1984.
However, respondent suspended further payment as it
was not satisfied with the manner petitioner complied
with its obligations under the conditional deeds of sale.
Consequently, on March 17, 1978, petitioner sent
respondent a letter 11 informing respondent of its
intention to rescind the conditional deeds of sale and
attaching therewith the original copy of the respective
notarial rescission.
On November 28, 1994, respondent filed a Complaint12
for specific performance and damages against petitioner
with the RTC of Antipolo City. However, on January 15,
1996, the case was dismissed without prejudice13 for
lack of interest, as respondent's counsel failed to attend
the pre-trial conference.
Five years later, or on March 16, 2001, respondent again
filed with the RTC of Manila, Branch 1 (trial court) a
34
Complaint14 for specific performance and damages,
seeking to compel petitioner to accept the balance of the
purchase price for the two conditional deeds of sale and
to execute the corresponding deeds of absolute sale.
Respondent contended that its non-payment of the
installments was due to the following reasons:(1)
Petitioner refused to receive the balance of the purchase
price as the properties were mortgaged and had to be
redeemed first before a deed of absolute sale could be
executed; (2) Petitioner assured that the existing
mortgages on the properties would be discharged on or
before May 20,1974, or that petitioner did not inform it
(respondent) that the mortgages on the properties were
already released; and (3) Petitioner failed to fully eject
the unlawful occupants in the area.
In its Answer,15 petitioner argued that the case should
be dismissed, as it was barred by prior judgment.
Moreover, petitioner contended that it could not be
compelled to execute any deed of absolute sale,
because respondent failed to pay in full the purchase
price of the subject lots. Petitioner claimed that it gave
respondent a notice of notarial rescission of both
conditional deeds of sale that would take effect 30 days
from receipt thereof. The notice of notarial rescission
was allegedly received by respondent on March
17,1978. Petitioner asserted that since respondent
failed to pay the full purchase price of the subject lots,
both conditional deeds of sale were rescinded as of April
16, 1978; hence, respondent had no cause of action
against it.
In its Reply,16 respondent denied that it received the
alleged notice of notarial rescission. Respondent also
denied that the alleged recipient (one Wenna
Laurenciana)17 of the letter dated March 17, 1978,
which was attached to the notice of notarial rescission,
was its employee. Respondent stated that assuming
arguendo that the notice was sent to it, the address (6th
Floor, SGC Bldg., Salcedo Street, Legaspi Village,
Makati, Metro Manila) was not the given address of
respondent. Respondent contended that its address on
the conditional deeds of sale and the receipts issued by
it and petitioner showed that its principal business
address was the 7th Floor, Bank of P.I. Bldg, Ayala
Avenue, Makati, Rizal.
On August 1, 2005, the trial court rendered a
Decision,18 dismissing the complaint, as petitioner had
exercised its right to rescind the contracts. The
dispositive portion of the Decision reads:
WHEREFORE, premises considered, the complaint is
DISMISSED for lack of merit.
Claims and counterclaims for damages are also
dismissed.19
The trial court stated that the issues before it were: (1)
Did petitioner unlawfully evade its obligation to execute
the final deed of sale and to eject the
squatters/occupants on the properties; (2) Is the case
barred by prior judgment; and (3) Does respondent
have a cause of action against petitioner.
The trial court said that both conditional deeds of sale
clearly provided that "ownership x x x shall not pass to
the VENDEE until after full payment of the purchase
price." Respondent admitted that it has not yet fully paid
the purchase price. The trial court held that the
conditions in the conditional deeds of sale being
suspensive, that is, its fulfillment gives rise to the
obligation, the reasons for the inability of respondent to
fulfill its own obligations is material, in order that the
obligation of petitioner to execute the final deeds of
absolute sale will arise. The trial court stated that the
evidence showed that petitioner had exercised its right
to rescind the contract by a written notice dated March
17, 1978 and notarial acts both dated March15, 1978.
The trial court noted that respondent denied having
received the notice and disclaimed knowing the
recipient, Wenna Laurenciana. However, on cross-
examination, respondent's witness, Gaudencio Juan,
who used to be respondent's Personnel Manager and
Forester at the same time, admitted knowing
Laurenciana because she was the secretary of Mr.
Valeriano Bueno, respondent's president at that time,
although Laurenciana was not employed by respondent,
but she was employed by Mahogany Products
Corporation, presumably one of the 14 other companies
being controlled by Mr. Bueno.20
The trial court held that the conditional deeds of sale
were executed on November 29, 1973 and were already
covered by Republic Act (R.A.) No. 6552, otherwise
known as the Realty Installment Buyer Act. Under
Section 4 of the law, if the buyer fails to pay the
installments due at the expiration of the grace period,
which is not less than 60 days from the date the
installment became due, the seller may cancel the
contract after 30 days from receipt of the buyer of the
notice of cancellation or the demand for rescission of the
contracts by notarial act. The trial court found no lawful
ground to grant the relief prayed for and dismissed the
complaint for lack of merit.
Respondent appealed the decision of the trial court to
the Court of Appeals, and made these assignments of
error: (1) the trial court erred in holding that petitioner
did not unlawfully evade executing a final deed of sale,
since respondent's failure to fulfill its own obligation is
material; (2) the trial court erred in holding that it is
unbelievable and a self-contradiction that respondent
was informed of the mortgage only when it was paying
the balance of the properties; and (3) the trial court
erred in holding that as early as November 19, 1973,
petitioner had already taken necessary steps to evict the
squatters/occupants through the intercession of the
agrarian reform officer.
On December 11, 2006, the Court of Appeals rendered
a Decision, reversing and setting aside the Decision of
the trial court. It reinstated the complaint of respondent,
and directed petitioner to execute deeds of absolute sale
in favor of respondent after payment of the balance of
35
the purchase price of the subject lots. The dispositive
portion of the Decision reads:
WHEREFORE, premises considered, the August 1,
2005Decision of the Regional Trial Court of Manila,
Branch 1, in Civil Case No. 01-100411, is hereby
REVERSED and SET ASIDE.
A new one is hereby entered: REINSTATING the
complaint and defendant-appellee MANUEL UY & SONS
INC. is hereby DIRECTED, pursuant to Sec. 4, R. A. No.
6552, otherwise known as the Maceda Law, to EXECUTE
and DELIVER:
(1) Deeds of Absolute Sale in favor of VALBUECO, INC.;
and
(2) Transfer Certificates of Title pertaining to Nos.
59534, 59445,59446 and 59444, in the name of
plaintiff-appellant VALBUECO, INC., after VALBUECO
pays MANUEL UY & SONS, without additional interest,
within thirty days from finality of this judgment, the
balance of the contract price.
If MANUEL UY & SONS refuses to deliver the Deeds of
Absolute Sale and the co-owner's copy of the TCTs, the
Register of Deeds of Antipolo, Rizal is hereby DIRECTED
to CANCEL the latest TCTs issued derived from TCT Nos.
59534, 59445, 59446 and 59444, and to
ISSUE new TCTS in the name of VALBUECO.
Only if VALBUECO fails in the payment directed above,
then defendant-appellee MANUEL UY & SONS INC. has
the opportunity to serve a valid notice of notarial
rescission.
SO ORDERED.21
The Court of Appeals held that the two conditional deeds
of sale in this case are contracts to sell. It stated that
the law applicable to the said contracts to sell on
installments is R.A. No. 6552, specifically Section
4thereof, as respondent paid less than two years in
installments. It held that upon repeated defaults in
payment by respondent, petitioner had the right to
cancel the said contracts, but subject to the proper
receipt of respondent of the notice of cancellation or the
demand for the rescission of the contracts by notarial
act.
However, the Court of Appeals found that petitioner sent
the notice of notarial rescission to the wrong address.
The business address of respondent, as used in all its
transactions with petitioner, was the 7th Floor, Bank of
the Philippine Islands Building, Ayala Avenue, Makati
City, but the notice of notarial rescission was sent to the
wrong address at the 6th Floor, SGC Building, Salcedo
Street, Legaspi Village, Makati, Metro Manila. Petitioner
served the notice to the address of Mahogany Products
Corporation. It was established that the person who
received the notice, one Wenna Laurenciana, was an
employee of Mahogany Products Corporation and not an
employee of respondent or Mr. Valeriano Bueno, the
alleged president of Mahogany Products Corporation and
respondent company.22 The appellate court stated that
this cannot be construed as to have been contructively
received by respondent as the two corporations are two
separate entities with a distinct personality independent
from each other. Thus, the Court of Appeals held that
the notarial rescission was in validly served. It stated
that it is a general rule that when service of notice is an
issue, the person alleging that the notice was served
must prove the fact of service by a preponderance of
evidence. In this case, the Court of Appeals held that
there was no evidence that the notice of cancellation by
notarial act was actually received by respondent. Thus,
for petitioner's failure to cancel the contract in
accordance with the procedure provided by law, the
Court of Appeals held that the contracts to sell on
installment were valid and subsisting, and respondent
has the right to offer to pay for the balance of the
purchase price before actual cancellation.
Petitioner's motion for reconsideration was denied for
lack of merit by the Court of Appeals in a Resolution23
dated September 4, 2007.
Petitioner filed this petition raising the following issues:
I
THE HONORABLE COURT OF APPEALS GRAVELY ERRED
INREVERSING THE RTC DECISION AND REINSTATING
THECOMPLAINT WHEN ON ITS FACE IT HAS LONG
BEENPRESCRIBED, AS IT WAS FILED AFTER 27 YEARS
AND HAS NOJURISDICTION (SIC).
II
THE HONORABLE COURT OF APPEALS SERIOUSLY
ERRED ANDGRAVELY ABUSED ITS DISCRETION IN
COMPELLINGPETITIONER TO EXECUTE A FINAL DEED
OF ABSOLUTE SALE EVEN IF RESPONDENT JUDICIALLY
ADMITTED ITS NON-PAYMENT OF THE BALANCE OF THE
DEEDS OF CONDITIONALSALE DUE SINCE 1974.
III
THE HONORABLE COURT OF APPEALS GRAVELY ERRED
INGRANTING THE RELIEFS PRAYED BY RESPONDENT IN
ITSCOMPLAINT FOR SPECIFIC PERFORMANCE WHEN IT
WASRESPONDENT WHO BREACHED THE CONTRACT.
IV
THE HONORABLE COURT OF APPEALS COMMITTED
GRAVEINJUSTICE WHEN IT PENALIZED PETITIONER
FOR EXERCISINGITS LEGAL RIGHT AND DID NOT
COMMIT AN ACTIONABLEWRONG WHILE IT HEFTILY
REWARDED RESPONDENT, WHOBREACHED THE
CONTRACT, AND ORDERED TO PAY WITHOUTINTEREST
PHP 97,998.95, WHICH IS DUE SINCE 1974 UNDER
THECONTRACT, FOR FOUR (4) PARCELS OF LAND
(57,393 SQUAREMETERS), NOW WORTH HUNDRED
MILLIONS.
36

V period for every one year of installment payments
THE HONORABLE COURT OF APPEALS GRAVELY ERRED
INANNULING THE NOTARIAL RESCISSION WHEN THE
COMPLAINT IS ONLY FOR SPECIFIC PERFORMANCE AND
WAS NOT AN ISSUE RAISED IN THE PLEADINGS OR
DURING THETRIAL.24
The main issue is whether respondent is entitled to the
relief granted by the Court of Appeals. Petitioner
contends that the Court of Appeals erred in directing it
to execute deeds of absolute sale over the subject lots
even if respondent admitted non-payment of the
balance of the purchase price.
As found by the Court of Appeals, the two conditional
deeds of sale entered into by the parties are contracts
to sell, as they both contained a stipulation that
ownership of the properties shall not pass to the vendee
until after full payment of the purchase price. In a
conditional sale, as in a contract to sell, ownership
remains with the vendor and does not pass to the
vendee until full payment of the purchase price.25 The
full payment of the purchase price partakes of a
suspensive condition, and non-fulfillment of the
condition prevents the obligation to sell from arising.26
To differentiate, a deed of sale is absolute when there is
no stipulation in the contract that title to the property
remains with the seller until full payment of the
purchase price.
Ramos v. Heruela27 held that Articles 1191 and 1592 of
the Civil Code28 are applicable to contracts of sale,
while R.A. No. 6552 applies to contracts to sell.
The Court of Appeals correctly held that R.A. No. 6552,
otherwise known as the Realty Installment Buyer Act,
applies to the subject contracts to sell. R.A. No. 6552
recognizes in conditional sales of all kinds of real estate
(industrial, commercial, residential) the right of the
seller to cancel the contract upon non-payment of an
installment by the buyer, which is simply an event that
prevents the obligation of the vendor to convey title
from acquiring binding force.29
It also provides the right of the buyer on installments in
case he defaults in the payment of succeeding
installments30 as follows:
Section 3. In all transactions or contracts involving the
sale or financing of real estate on installment payments,
including residential condominium apartments but
excluding industrial lots, commercial buildings and sales
to tenants under Republic Act Numbered Thirty-eight
hundred forty-four, as amended by Republic Act
Numbered Sixty-three hundred eighty-nine, where the
buyer has paid at least two years of installments, the
buyer is entitled to the following rights in case he
defaults in the payment of succeeding installments:
(a) To pay, without additional interest, the unpaid
installments due within the total grace period earned by
him which is hereby fixed at the rate of one month grace
made: Provided, That this right shall be exercised by the
buyer only once in every five years of the life of the
contract and its extensions, if any.
(b) If the contract is canceled, the seller shall refund to
the buyer the cash surrender value of the payments on
the property equivalent to fifty per cent of the total
payments made, and, after five years of installments,
an additional five per cent every year but not to exceed
ninety per cent of the total payments made: Provided,
That the actual cancellation of the contract shall take
place after thirty days from receipt by the buyer of the
notice of cancellation or the demand for rescission of the
contract by a notarial act and upon full payment of the
cash surrender value to the buyer.
Down payments, deposits or options on the contract
shall be included in the computation of the total number
of installment payments made. chanrobles a law library
Sec. 4. In case where less than two years of installments
were paid, the seller shall give the buyer a grace period
of not less than sixty days from the date the installment
became due.
If the buyer fails to pay the installments due at the
expiration of the grace period, the seller may cancel the
contract after thirty days from receipt by the buyer of
the notice of cancellation or the demand for rescission
of the contract by a notarial act.31
In this case, respondent has paid less than two years of
installments; therefore, Section 4 of R.A. No. 6552
applies.
The Court of Appeals held that even if respondent
defaulted in its full payment of the purchase price of the
subject lots, the conditional deeds of sale remain valid
and subsisting, because there was no valid notice of
notarial rescission to respondent, as the notice was sent
to the wrong address, that is, to Mahogany Products
Corporation, and it was received by a person employed
by Mahogany Products Corporation and not the
respondent. The Court of Appeals stated that the
allegation that Mahogany Products Corporation and
respondent have the same President, one Valeriano
Bueno, is irrelevant and has not been actually proven or
borne by evidence. The appellate court held that there
was insufficient proof that respondent actually received
the notice of notarial rescission of the conditional deeds
of sale; hence, the unilateral rescission of the
conditional deeds of sale cannot be given credence.
However, upon review of the records of this case, the
Court finds that respondent had been served a notice of
the notarial rescission of the conditional deeds of sale
when it was furnished with the petitioner's Answer,
dated February 16, 1995, to its first Complaint filed on
November 28, 1994with the RTC of Antipolo City, which
case was docketed as Civil Case No.94-3426, but the
37
complaint was later dismissed without prejudice on
January15, 1996.32
It appears that after respondent filed its first Complaint
for specific performance and damages with the RTC of
Antipolo City on November 28,1994, petitioner filed an
Answer and attached thereto a copy of the written notice
dated March 17, 1978 and copies of the notarial acts of
rescission dated March 15, 1978, and that respondent
received a copy of the said Answer with the attached
notices of notarial rescission. However, to reiterate, the
first Complaint was dismissed without prejudice.
Five years after the dismissal of the first Complaint,
respondent again filed this case for specific performance
and damages, this time, with the RTC of Manila.
Petitioner filed an Answer, and alleged, among others,
that the case was barred by prior judgment, since
respondent filed a complaint on November 28, 1994
before the RTC of Antipolo City, Branch 73, against it
(petitioner) involving the same issues and that the case,
docketed as Civil Case No. 94-3426, was dismissed on
January 15, 1996 for lack of interest. Respondent filed
a Reply33 dated July 18, 2001, asserting that petitioner
prayed for the dismissal of the first case filed on
November 28, 1994 (Civil Case No. 94-3426) on the
ground of improper venue as the parties agreed in the
deeds of conditional sale that in case of litigation, the
venue shall be in the courts of Manila. To prove its
assertion, respondent attached to its Reply a copy of
petitioner’s Answer to the first Complaint in Civil Case
No. 94-3426, which Answer included the written notice
dated March 17, 1978 and two notarial acts of
rescission, both dated March 15, 1978, of the two
conditional deeds of sale. Hence, respondent is deemed
to have had notice of the notarial rescission of the two
conditional deeds of sale when it received petitioner’s
Answer to its first complaint filed with the RTC of
Antipolo, since petitioner’s Answer included notices of
notarial rescission of the two conditional deeds of sale.
The first complaint was filed six years earlier before this
complaint was filed. As stated earlier, the first complaint
was dismissed without prejudice, because respondent’s
counsel failed to appear at the pre-trial. Since
respondent already received notices of the notarial
rescission of the conditional deeds of sale, together with
petitioner’s Answer to the first Complaint five years
before it filed this case, it can no longer deny having
received notices of the notarial rescission in this case,
as respondent admitted the same when it attached the
notices of notarial rescission to its Reply in this case.
Consequently, respondent is not entitled to the relief
granted by the Court of Appeals.
Under R.A. No. 6552, the right of the buyer to refund
accrues only when he has paid at least two years of
installments.34 In this case, respondent has paid less
than two years of installments; hence, it is not entitled
to a refund.35
Moreover, petitioner raises the issue of improper venue
and lack of jurisdiction of the RTC of Manila over the
case. It contends that the complaint involved real
properties in Antipolo City and cancellation of titles;
hence, it was improperly filed in the RTC of Manila.
Petitioner's contention lacks merit, as petitioner and
respondent stipulated in both Conditional Deeds of Sale
that they mutually agreed that in case of litigation, the
case shall be filed in the courts of Manila.36
Further, petitioner contends that the action has
prescribed. Petitioner points out that the cause of action
is based on a written contract; hence, the complaint
should have been brought within 10 years from the time
the right of action accrues under Article 1144 of the Civil
Code. Petitioner argues that it is evident on the face of
the complaint and the two contracts of conditional sale
that the cause of action accrued in 1974; yet, the
complaint for specific performance was filed after 27
years. Petitioner asserts that the action has prescribed.
The contention is meritorious.
Section 1, Rule 9 of the 1997 Rules of Civil Procedure
provides:
Section 1. Defense and objections not pleaded. -
Defenses and objections not pleaded whether in a
motion to dismiss or in the answer are deemed waived.
However, when it appears from the pleadings that the
court has no jurisdiction over the subject matter, that
there is another action pending between the same
parties for the same cause, or that the action is barred
by a prior judgment or by statute of limitations, the
court shall dismiss the claim.37
In Gicano v. Gegato,38 the Court held:
x x x (T)rial courts have authority and discretion to
dismiss an action on the ground of prescription when the
parties' pleadings or other facts on record show it to be
indeed time-barred; (Francisco v. Robles, Feb, 15,1954;
Sison v. Mc Quaid, 50 O.G. 97; Bambao v. Lednicky,
Jan. 28, 1961;Cordova v. Cordova, Jan. 14, 1958;
Convets, Inc. v. NDC, Feb. 28, 1958;32 SCRA 529;
Sinaon v. Sorongan, 136 SCRA 408); and it may do so
on the basis of a motion to dismiss (Sec. 1,f, Rule 16,
Rules of Court), or an answer which sets up such ground
as an affirmative defense (Sec. 5, Rule16), or even if
the ground is alleged after judgment on the merits, as
in a motion for reconsideration (Ferrer v. Ericta, 84
SCRA 705); or even if the defense has not been asserted
at all, as where no statement thereof is found in the
pleadings (Garcia v. Mathis, 100 SCRA 250;PNB v.
Pacific Commission House, 27 SCRA 766; Chua Lamco
v.Dioso, et al., 97 Phil. 821);
or where a defendant has been declared in default (PNB
v. Perez, 16 SCRA 270). What is essential only, to
repeat, is that the facts demonstrating the lapse of the
prescriptive period, be otherwise sufficiently and
satisfactorily apparent on the record; either in the
averments of the plaintiff's complaint, or otherwise
established by the evidence.39
38
Moreover, Dino v. Court of Appeals40 held:

Even if the defense of prescription was raised for the

first time on appeal in respondent's Supplemental
Motion for Reconsideration of the appellate court's
decision, this does not militate against the due process
right of the petitioners. On appeal, there was no new
issue of fact that arose in connection with the question
of prescription, thus it cannot be said that petitioners
were not given the opportunity to present evidence in
the trial court to meet a factual issue. Equally important,
petitioners had the opportunity to oppose the defense
of prescription in their Opposition to the Supplemental
Motion for Reconsideration filed in the appellate court
and in their Petition for Review in this Court.41

In this case, petitioner raised the defense of prescription

for the first time before this Court, and respondent had
the opportunity to oppose the defense of prescription in
its Comment to the petition. Hence, the Court can
resolve the issue of prescription as both parties were
afforded the opportunity to ventilate their respective
positions on the matter. The Complaint shows that the
Conditional Deeds of Sale were executed on November
29, 1973, and payments were due on both Conditional
Deeds of Sale on November 15, 1974. Article 114442 of
the Civil Code provides that actions based upon a
written contract must be brought within ten years from
the time the right of action accrues. Non-fulfillment of
the obligation to pay on the last due date, that is, on
November 15, 1974, would give rise to an action by the
vendor, which date of reckoning may also apply to any
action by the vendee to determine his right under R.A.
No. 6552. The vendee, respondent herein, filed this case
on March 16, 2001, which is clearly beyond the 10-year
prescriptive period; hence, the action has prescribed.

WHEREFORE, the petition is GRANTED. The Decision of

the Court of Appeals, dated December 11, 2006, in CA-
G.R. CV No. 85877 and its Resolution dated September
4, 2007 are REVERSED and SET ASIDE. The Decision of
the Regional Trial Court of Manila, Branch I, dated
August 1, 2005 in Civil Case No. 01-100411, dismissing
the case for lack of merit, is REINSTATED.

SO ORDERED.

39
40
Liu vs. Loy (G.R. No. 145982, September 13, 2004)
[G.R. No. 145982. September 13, 2004]
FRANK N. LIU, deceased, substituted by his surviving
spouse Diana Liu, and children, namely: Walter, Milton,
Frank, Jr., Henry and Jockson, all surnamed Liu,
Rebecca Liu Shui and Pearl Liu Rodriguez,petitioners,
vs. ALFREDO LOY, JR., TERESITA A. LOY and ESTATE OF
JOSE VAO, respondents.
RESOLUTION
CARPIO, J.:
The Loys seek a reconsideration of the Decision dated 3
July 2003 of this Court declaring void the deeds of sale
of Lot Nos. 5 and 6 executed by Teodoro Vao in favor of
Alfredo Loy, Jr. and Teresita Loy. We held that Lot Nos.
5 and 6 belong to Frank Liu[1] since the probate court
approved his deeds of sale in accordance with Section
8,[2] Rule 89 of the Rules of Court. The deeds of sale of
the Loys lacked a valid probate court approval. As a
result, we ordered the Estate of Jose Vao to reimburse
the Loys the amounts they paid for Lot Nos. 5 and 6,
with interest at 6% annually from 4 June 1976, the date
of filing of the complaint, until finality of the decision,
and 12% annually thereafter until full payment.
The Court heard the parties on oral arguments on 10
March 2004 and granted them time to submit their
memoranda. Frank Liu filed his memorandum on 29
March 2004 while the Loys filed their memorandum on
25 March 2004 by registered mail.
The issues that the Loys raise in their motion for
reconsideration are not new. The Court already
considered and discussed extensively these issues in the
assailed Decision. We find no compelling reason to
reconsider the assailed Decision.
The Loys insist that the transaction between Teodoro
Vao and Benito Liu, the predecessor-in-interest of Frank
Liu, is a contract to sell. In contrast, the transactions
between Teodoro Vao and Alfredo Loy, Jr. and Teresita
A. Loy were contracts of sale. According to the Loys, the
contract to sell did not transfer ownership of Lot Nos. 5
and 6 to Benito Liu or Frank Liu because it was only a
promise to sell subject to the full payment of the
consideration. On the other hand, the contracts of sale
in favor of the Loys transferred ownership, as the
conveyances were absolute.[3]
As we held in our Decision, a prior contract to sell made
by the decedent during his lifetime prevails over a
subsequent contract of sale made by the administrator
without probate court approval. It is immaterial if the
prior contract is a mere contract to sell and does not
immediately convey ownership. Frank Lius contract to
sell became valid and effective upon its execution and
bound the estate to convey the property upon full
payment of the consideration.
It is apparent from Teodoro Vaos letter[4] dated 16
October 1954 that the reason why Frank Liu stopped
further payments on the lots, leaving a balance of
P1,000, was because Teodoro Vao could not yet transfer
the titles to Benito Liu, the predecessor-in-interest of
Frank Liu. It would appear that Frank Liu and Teodoro
Vao lost contact with each other thereafter and it was
only on 25 January 1964 that Frank Liu wrote Teodoro
Vao informing the latter that he was ready to pay the
balance of the purchase price of the lots. Teodoro Vao
did not reply to Frank Lius letter. On 22 April 1966,
Benito Liu sold to Frank Liu the lots, including Lot Nos.
5 and 6, which Benito Liu purchased from Teodoro Vao
on 13 January 1950. Frank Liu sent three letters dated
21 March 1968, 7 June 1968 and 29 July 1968 to
Teodoro Vao reiterating his request for the execution of
the deed of sale covering the lots in his favor but to no
avail. On 19 August 1968, Teodoro Vao sold Lot No. 6
to Teresita Loy and on 16 December 1969, he sold Lot
No. 5 to Alfredo Loy, Jr. The sales to the Loys were made
after Frank Liu offered to pay the balance of the
purchase price of the lots and after he repeatedly
requested for the execution of the deeds of sale in his
favor.
The sale of the lots by Teodoro Vao to Benito Liu was
valid. The sale was made by Teodoro Vao on 13 January
1950 in his capacity as attorney-in-fact of Jose Vao. The
sale to Benito Liu was made during the lifetime of Jose
Vao, not after the death of Jose Vao who died on 28
January 1950.[5] The power of attorney executed by
Jose Vao in favor of Teodoro Vao remained valid during
the lifetime of Jose Vao. In his letter dated 16 October
1954, Teodoro Vao stated that on 30 June 1954, the
Supreme Court allowed the probate of the will of Jose
Vao. Teodoro Vao likewise mentioned in the letter that
in July 1954, the Supreme Court held that all the sales
made by Teodoro Vao of the properties of his father
were legal.[6] Thus, Benito Lius deed of sale in favor of
Frank Liu covering the lots sold to him by Teodoro Vao
constitutes a valid charge or claim against the estate of
Jose Vao.
The Loys reiterate their contention that Teodoro Vao, as
administrator and sole heir to the properties, can sell
the lots to them since the rights of an heir are
transmitted from the moment of death of the testator.
Although a property under estate proceedings cannot be
sold without judicial approval, the Loys allege that in
their case, the probate court later approved the sales to
them, thereby ratifying the sales.[7]
Well-settled is the rule that an administrator needs court
approval to sell estate property, otherwise the sale is
void.[8] Court approval of the sale of estate property is
clearly required under Rule 89 of the Rules of Court,
which enumerates the instances when the court may
allow the sale or encumbrance of estate property.
Section 7 of Rule 89 of the Rules of Court even provides
for the regulations for granting authority to sell,
mortgage or otherwise encumber estate property.[9]
More importantly, Section 91[10] of Act No. 496 (Land
Registration Act) and Section 88[11] of Presidential
Decree No. 1529 (Property Registration Decree)
specifically require court approval for any sale of
registered land by an executor or administrator.
41
The laws, Rules of Court, jurisprudence and regulations
explicitly require court approval before any sale of
estate property by an executor or administrator can take
effect. The purpose of requiring court approval is to
protect creditors. In this case, Frank Liu is a creditor,
and he is the person the law seeks to protect.

The orders of the probate court dated 19 and 23 March

1976 approving the contracts of the Loys are void. The
orders did not ratify the sales because there was already
a prior order of the probate court dated 24 February
1976 approving the sale of Lot Nos. 5 and 6 to Frank
Liu. Hence, the probate court had already lost
jurisdiction over Lot Nos. 5 and 6 since the lots no longer
formed part of the Estate of Jose Vao. In fact, the
administratrix of the estate filed a motion for
reconsideration of the orders of the probate court
approving the contracts of the Loys because she already
executed a deed of sale covering Lot Nos. 5 and 6 in
favor of Frank Liu.

The Loys impliedly admitted that their contracts of sale

dated 19 August 1968 and 16 December 1969 were
ineffective when they belatedly asked in 1976 for court
approval of the sales. If the Loys believed that their
deeds of sale in 1968 and 1969 were valid, they would
not have asked for court approval in 1976. By asking for
court approval, they necessarily admitted that without
court approval, the sale to them was ineffectual.

The Loys are not buyers and registrants in good faith

considering that they bought from a seller who was not
a registered owner. Teodoro Vao signed both contracts
of sale but the titles to the lots sold were in the name of
Estate of Jose Vao. And since the titles to Lot Nos. 5 and
6 were in name of Estate of Jose Vao, the Loys were on
notice that court approval was needed for the sale of
estate property. The ex-parte motion for the court
approval of the sales filed by the Loys some seven or
eight years after the sales transaction reveals a less
than honest actuation, prompting the administratrix to
object to the courts approval.

WHEREFORE, we DENY the motion for reconsideration.

SO ORDERED.

42
Conde vs. Abaya (13 Phil 240)
[G. R. No. 4275. March 23, 1909.]
PAULA CONDE, Plaintiff-Appellee, vs. ROMAN ABAYA,
Defendant-Appellant.
DECISION
ARELLANO, C.J.:
From the hearing of the appeal interposed by Roman
Abaya in the special proceedings brought in the Court of
First Instance of La Laguna for the settlement of the
intestate estate and the distribution of the property of
Casiano Abaya it appears: chanrobles virtualawlibrary
I. As antecedents: chanrobles virtualawlibrary
that Casiano Abaya, unmarried, the son of Romualdo
Abaya and Sabina Labadia, died on the 6th of April
1899; that Paula Conde, as the mother of the natural
children Jose and Teopista Conde, whom she states she
had by Casiano Abaya, on the 6th of November, 1905,
moved the settlement of the said intestate succession;
that an administrator having been appointed for the said
estate on the 25th of November, 1905, Roman Abaya,
a son of the said Romualdo Abaya and Sabina Labadia,
the parents of the late Casiano Abaya, came forward
and opposed said appointment and claimed it for himself
as being the nearest relative of the deceased; that this
was granted by the court below on the 9th of January,
1906; that on the 17th of November, 1906, Roman
Abaya moved that, after due process of law, the court
declare him to be the sole heir of Casiano Abaya, to the
exclusion of all other persons, especially of Paula Conde,
and to be therefore entitled to take possession of all the
property of said estate, and that it be adjudicated to
him; and that on November 22, 1906, the court ordered
the publication of notices for the declaration of heirs and
distribution of the property of the estate.
II. That on the 28th of November, 1906, Paula
Conde, in reply to the foregoing motion of Roman
Abaya, filed a petition wherein she stated that she
acknowledged the relationship alleged by Roman Abaya,
but that she considered that her right was superior to
his and moved for a hearing of the matter, and, in
consequence of the evidence that she intended to
present she prayed that she be declared to have
preferential rights to the property left by Casiano Abaya,
and that the same be adjudicated to her together with
the corresponding products thereof.
III. That the trial was held, both parties presenting
documentary and oral evidence, and the court below
entered the following judgment: chanrobles
virtualawlibrary
“That the administrator of the estate of Casiana Abaya
should recognize Teopista and Jose Conde as being
natural children of Casiano Abaya; that the Petitioner
Paula Conde should succeed to the hereditary rights of
her children with respect to the inheritance of their
deceased natural father Casiano Abaya; and therefore,
it is hereby declared that she is the only heir to the
property of the said intestate estate, to the exclusion of
the administrator, Roman Abaya. ”
IV. That Roman Abaya excepted to the foregoing
judgment, appealed to this court, and presented the
following statement of errors: chanrobles
virtualawlibrary
1. The fact that the court below found that an
ordinary action for the acknowledgment of natural
children under articles 135 and 137 of the Civil Code,
might be brought in special probate proceedings.
2. The finding that after the death of a person
claimed to be an unacknowledged natural child, the
mother of such presumed natural child, as heir to the
latter, may bring an action to enforce the
acknowledgment of her deceased child in accordance
with articles 135 and 137 of the Civil Code.
3. The finding in the judgment that the alleged
continuous possession of the deceased children of Paula
Conde of the status of natural children of the late
Casiano Abaya, has been fully proven in these
proceedings; and
4. On the hypothesis that it was proper to
adjudicate the property of this intestate estate to Paula
Conde, as improperly found by the court below, the
court erred in not having declared that said property
should be reserved in favor of relatives of Casiano Abaya
to the third degree, and in not having previously
demanded securities from Paula Conde to guarantee the
transmission of the property to those who might fall
within the reservation.
As to the first error assigned, the question is set up as
to whether in special proceedings for the administration
and distribution of an intestate estate, an action might
be brought to enforce the acknowledgment of the
natural child of the person from whom the inheritance is
derived, that is to say, whether one might appear as
heir on the ground that he is a recognized natural child
of the deceased, not having been so recognized by the
deceased either voluntarily or compulsory by reason of
a preexisting judicial decision, but asking at the same
time that, in the special proceeding itself, he be
recognized by the presumed legitimate heirs of the
deceased who claim to be entitled to the succession
opened in the special proceeding.
According to section 782 of the Code of Civil Procedure
—
“If there shall be a controversy before the Court of First
Instance as to who the lawful heirs of the deceased
person are, or as to the distributive share to which each
person is entitled under the law, the testimony as to
such controversy shall be taken in writing by the judge,
under oath and signed by witness. Any party in interest
whose distributive share is affected by the
determination of such controversy, may appeal from the
judgment of the Court of First Instance determining
such controversy to the Supreme Court, within the time
43
and in the manner provided in the last preceding
section. ”
This court has decided the present question in the
manner shown in the case of Juana Pimental vs.
Engracio Palanca (5 Phil. Rep. 436.) cralaw
The main question with regard to the second error
assigned, is whether or not the mother of a natural child
now deceased, but who survived the person who, it is
claimed, was his natural father, also deceased, may
bring an action for the acknowledgment of the natural
filiation in favor of such child in order to appear in his
behalf to receive the inheritance from the person who is
supposed to be his natural father.
In order to decide in the affirmative the court below has
assigned the following as the only foundation:
chanrobles virtualawlibrary
“In resolving a similar question Manresa says:
chanrobles virtualawlibrary ‘An acknowledgment can
only be demanded by the natural child and his
descendants whom it shall benefit, and should they be
minors or otherwise incapacitated, such person as
legally represents them; the mother may ask it in behalf
of her child so long as he is under her authority. ’ On
this point no positive declaration has been made,
undoubtedly because it was not considered necessary.
A private action is in question and the general rule must
be followed. Elsewhere the same author adds:
chanrobles virtualawlibrary ‘It may so happen that the
child dies before four years have expired after attaining
majority, or that the document supporting his petition
for acknowledgment is discovered after his death, such
death perhaps occurring after his parents had died, as
is supposed by article 137, or during their lifetime. In
any case such right of action shall pertain to the
descendants of the child whom the acknowledgment
may interest. ’ (See Commentaries to arts. 135 and 137,
Civil Code. Vol. I.) cralaw’
The above doctrine, advanced by one of the most
eminent commentators of the Civil Code, lacks legal and
doctrinal foundation. The power to transmit the right of
such action by the natural child to his descendants
cannot be sustained under the law, and still less to his
mother.
It is without any support in law because the rule laid
down in the code is most positive, limiting in form, when
establishing the exception for the exercise of such right
of action after the death of the presumed parents, as is
shown hereafter. It is not supported by any doctrine,
because up to the present time no argument has been
presented, upon which even an approximate conclusion
could be based.
Although the Civil Code considerably improved the
condition of recognized natural children, granting them
rights and actions that they did not possess under the
former laws, they were not, however, placed upon the
same plane as legitimate ones. The difference that
separates these two classes of children is still great, as
proven by so many articles dealing with the rights of the
family and with succession in relation to the members
thereof. It may be laid down as a legal maxim, that
whatever the code does not grant to the legitimate
children, or in connection with their rights, must still less
be understood as granted to recognized natural children
or in connection with their rights. There is not a single
exception in its provisions.
If legitimacy is the attribute that constitutes the basis of
the absolute family rights of the child, the
acknowledgment of the natural child is, among
illegitimate ones, that which unites him to the family of
the father or the mother who recognizes him, and
affords him a participation in the rights of the family,
relatively advantageous according to whether they are
alone or whether they concur with other individuals of
the family of his purely natural father or mother.
Thus, in order to consider the spirit of the Civil Code
nothing is more logical than to establish a comparison
between an action to claim the legitimacy, and one to
enforce acknowledgment.
“Art. 118. The action to claim its legitimacy may
be brought by the child at any time of its lifetime and
shall be transmitted to its heirs, should it die during
minority or in a state of insanity. In such cases the heirs
shall be allowed a period of five years in which to
institute the action.
“The action already instituted by the child is transmitted
by its death to the heirs, if it has not lapsed before then.
“Art. 137. The actions for the acknowledgment
of natural children can be instituted only during the life
of the presumed parents, except in the following cases:
chanrobles virtualawlibrary
“1. If the father or mother died during the minority
of the child, in which case the latter may institute the
action before the expiration of the first four years of its
majority.
“2. If, after the death of the father or mother,
some instrument, before unknown, should be
discovered in which the child is expressly acknowledged.
“In this case the action must be instituted within the six
months following the discovery of such instrument. ”
On this supposition the first difference that results
between one action and the other consists in that the
right of action for legitimacy lasts during the whole
lifetime of the child, that is, it can always be brought
against the presumed parents or their heirs by the child
itself, while the right of action for the acknowledgment
of a natural child does not last his whole lifetime, and,
as a general rule, it cannot be instituted against the
heirs of the presumed parents, inasmuch as it can be
exercised only during the life of the presumed parents.
With regard to the question at issue, that is, the
transmission to the heirs of the presumed parents of the
obligation to admit the legitimate filiation, or to
recognize the natural filiation, there exists the most
radical difference in that the former continues during the
44
life of the child who claims to be legitimate, and he may
demand it either directly and primarily from the said
presumed parents, or indirectly and secondarily from
the heirs of the latter; while the second does not endure
for life; as a general rule, it only lasts during the life of
the presumed parents. Hence the other difference,
derived as a consequence, that an action for legitimacy
is always brought against the heirs of the presumed
parents in case of the death of the latter, while the
action for acknowledgment is not brought against the
heirs of such parents, with the exception of the two
cases prescribed by article 137 transcribed above.
So much for the passive transmission of the obligation
to admit the legitimate filiation, or to acknowledge the
natural filiation.
As to the transmission to the heirs of the child of the
latter’s action to claim his legitimacy, or to obtain the
acknowledgment of his natural filiation, it is seen that
the code grants it in the first case, but not the second.
It contains provisions for the transmission of the right
of action which, for the purpose of claiming his
legitimacy inheres in the child, but it does not say a word
with regard to the transmission of the right to obtain the
acknowledgment of the natural filiation.
Therefore, the respective corollary of each of the two
above-cited articles is: chanrobles virtualawlibrary (1)
That the right of action which devolves upon the child to
claim his legitimacy under article 118, may be
transmitted to his heirs in certain cases designated in
the said article; (2) That the right of action for the
acknowledgment of natural children to which article 137
refers, can never be transmitted, for the reason that the
code makes no mention of it in any case, not even as an
exception.
It is most illogical and contrary to every rule of correct
interpretation, that the right of action to secure
acknowledgment by the natural child should be
presumed to be transmitted, independently, as a rule,
to his heirs, while the right of action to claim legitimacy
from his predecessor is not expressly, independently,
or, as a general rule, conceded to the heirs of the
legitimate child, but only relatively and as an exception.
Consequently, the pretension that the right of action on
the part of the child to obtain the acknowledgment of
his natural filiation is transmitted to his descendants is
altogether unfounded. No legal provision exists to
sustain such pretension, nor can an argument of
presumption be based on the lesser claim when there is
no basis for the greater one, and when it is only given
as an exception in well-defined cases. It is placing the
heirs of the natural child on a better footing than the
heirs of the legitimate one, when, as a matter of fact,
the position of a natural child is no better than, nor even
equal to, that of a legitimate child.
From the express and precise precepts of the code the
following conclusions are derived: chanrobles
virtualawlibrary
The right of action that devolves upon the child to claim
his legitimacy lasts during his whole life, while the right
to claim the acknowledgment of a natural child lasts only
during the life of his presumed parents.
Inasmuch as the right of action accruing to the child to
claim his legitimacy lasts during his whole life, he may
exercise it either against the presumed parents, or their
heirs; while the right of action to secure the
acknowledgment of a natural child, since it does not last
during his whole life, but depends on that of the
presumed parents, as a general rule can only be
exercised against the latter.
Usually the right of action for legitimacy devolving upon
the child is of a personal character and pertains
exclusively to him, only the child may exercise it at any
time during his lifetime. As an exception, and in three
cases only, it may be transmitted to the heirs of the
child, to wit, if he died during his minority, or while
insane, or after action had been already instituted.
An action for the acknowledgment of a natural child
may, as an exception, be exercised against the heirs of
the presumed parents in two cases: chanrobles
virtualawlibrary first, in the event of the death of the
latter during the minority of the child, and second, upon
the discovery of some instrument of express
acknowledgment of the child, executed by the father or
mother, the existence of which was unknown during the
life of the latter.
But as such action for the acknowledgment of a natural
child can only be exercised by him. It cannot be
transmitted to his descendants, or to his ascendants.
In support of the foregoing the following authorities may
be cited: chanrobles virtualawlibrary
Sanchez Roman, in his Treatise on Civil Law, propounds
the question as to whether said action should be
considered transmissive to the heirs or descendants of
the natural child, whether he had or had not exercised
it up to the time of his death, and decides it as follows;
“There is an entire absence of legal provisions, and at
most, it might be deemed admissible as a solution, that
the right of action to claim the acknowledgment of a
natural child is transmitted by analogy to his heirs on
the same conditions and terms that it is transmitted to
the descendants of a legitimate child, to claim his
legitimacy, under article 118, but nothing more;
because on this point nothing warrants placing the heirs
of a natural child on a better footing than those of the
legitimate child, and even to compare them would not
fail to be a strained and questionable matter, and one
of great difficulty for decision by the courts, for the
simple reason that for the heirs of the legitimate child,
the said article 118 exists, while for those of the natural
child, as we have said, there is no provision in the code
authorizing the same, although on the other hand there
is none that prohibits it. ” (Vol. V.) cralaw
Diaz Guijarro and Martinez Ruiz in their work on “The
Civil Code as construed by the supreme court of Spain,”
commenting upon article 137, say: chanrobles
virtualawlibrary
45
“Article 118, taking into account the privileges due to
the legitimacy of children, grants them the right to claim
said legitimacy during their lifetime, and even
authorizes the transmission of said right for the space
of five years to the heirs thereof, if the child die during
his minority or in a state of insanity. But as article 137
is based on the consideration that in the case of a
natural child, ties are less strong and sacred in the eyes
of the law, it does not fix such a long and indefinite
period for the exercise of the action; it limits it to the
life of the parents, excepting in the two cases mentioned
in said article; and it does not allow, as does article 118,
the action to pass on to the heirs, inasmuch as, although
it does not prohibit it, and for that reason it might be
deemed on general principles of law to consent to it,
such a supposition is inadmissible for the reason that a
comparison of both articles shows that the silence of the
law in the latter case is not, nor can it be, an omission,
but a deliberate intent to establish a wide difference
between the advantages granted to a legitimate child
and to a natural one. ”
(Ibid., Vol. II, 171.) cralaw
Navarro Amandi (Cuestionario del Codigo Civil) raises
the question: chanrobles virtualawlibrary “Can the heirs
of a natural child claim the acknowledgment in those
cases wherein the father or mother are under obligation
to acknowledge”? And says: chanrobles virtualawlibrary
“Opinions are widely divergent. The court of Rennes held
(on April 13, 1844) that the right of investigation forms
a part of the estate of the child, and along with his
patrimony is transmitted to his heirs. The affirmation is
altogether too categorical to be admissible. If it were
correct the same thing would happen as when the
legitimacy of a child is claimed, and as already seen, the
right of action to demand the legitimacy is not
transmitted to the heirs in every case and as an absolute
right, but under certain limitations and circumstances.
Now, were we to admit the doctrine of the court of
Rennes, the result would be that the claim for natural
filiation would be more favored than one for legitimate
filiation. This would be absurd, because it cannot be
conceived that the legislator should have granted a right
of action to the heirs of the natural child, which is only
granted under great limitations and in very few cases to
those of a legitimate one. Some persons insist that the
same rules that govern legitimate filiation apply by
analogy to natural filiation, and that in this conception
the heirs of the natural child are entitled to claim it in
the cases prescribed by article 118. The majority,
however, are inclined to consider the right to claim
acknowledgment as a personal right, and consequently,
not transmissive to the heirs. Really there are not legal
grounds to warrant the transmission. ” (Vol. 2, 229.)
cralaw
In a decision like the present one it is impossible to bring
forward the argument of analogy for the purpose of
considering that the heirs of the natural child are
entitled to the right of action which article 118 concedes
to the heirs of the legitimate child. The existence of a
provision for the one case and the absence thereof for
the other is a conclusive argument that inclusio unius
est exclusio alterius, and it cannot be understood that
the provision of law should be the same when the same
reason does not hold in the one case as in the other.
The theory of the law of transmission is also entirely
inapplicable in this case. This theory, which in the
Roman Law expressed the general rule that an heir who
did not accept an inheritance during his lifetime was
incapacitated from transmitting it to his own heirs,
included at the same time the idea that if the inheritance
was not transmitted because the heir did not possess it,
there were, however, certain things which the heir held
and could transmit. Such was the law and the right to
accept the inheritance, for the existing reason that all
rights, both real and personal, shall pass to the heir;
quia haeres representat defunctum in omnibus et per
omnia. According to article 659 of the Civil Code, “the
inheritance includes all the property, rights, and
obligations of a person, which are not extinguished by
his death. ” If the mother is the heir of her natural child,
and the latter, among other rights during his lifetime
was entitled to exercise an action for his
acknowledgment against his father, during the life of the
latter, or after his death in some of the excepting cases
of article 137, such right, which is a portion of his
inheritance, is transmitted to his mother as being his
heir, and it was so understood by the court of Rennes
when it considered the right in question, not as a
personal and exclusive right of the child which is
extinguished by his death, but as any other right which
might be transmitted after his death. This right of
supposed transmission is even less tenable than that
sought to be sustained by the argument of analogy.
The right of action pertaining to the child to claim his
legitimacy is in all respects superior to that of the child
who claims acknowledgment as a natural child. And it is
evident that the right of action to claim his legitimacy is
not one of those rights which the legitimate child may
transmit by inheritance to his heirs; it forms no part of
the component rights of his inheritance. If it were so,
there would have been no necessity to establish its
transmissibility to heirs as an exception in the terms and
conditions of article 118 of the code. So that, in order
that it may constitute a portion of the child’s inheritance,
it is necessary that the conditions and the terms
contained in article 118 shall be present, since without
them, the right that the child held during his lifetime,
being personal and exclusive in principle, and therefore,
as a general rule not susceptible of transmission, would
and should have been extinguished by his death.
Therefore, where no express provision like that of article
118 exists, the right of action for the acknowledgment
of a natural child is, in principle and without exception,
extinguished by his death, and cannot be transmitted as
a portion of the inheritance of the deceased child.
On the other hand, it said right of action formed a part
of the child’s inheritance, it would be necessary to
establish the doctrine that the right to claim such an
acknowledgment from the presumed natural father and
from his heirs is an absolute right of the heirs of the
child, not limited by certain circumstances as in the case
46
of the heirs of a legitimate child; and if it is unreasonable
to compare a natural child with a legitimate one to place
the heirs of a natural child and his inheritance on a
better footing than those of a legitimate child would not
only be unreasonable, but, as stated in one of the above
citations, most absurd and illegal in the present state of
the law and in accordance with the general principles
thereof.

For all of the foregoing reasons we hereby reverse the

judgment appealed from in all its parts, without any
special ruling as to the costs of this instance.

47
Junio vs. Collector 34 Phil 433
[G.R. No. 12379. March 14, 1917. ]
LAO HU NIU, Petitioner-Appellant, v. THE INSULAR
COLLECTOR OF CUSTOMS, Respondent-Appellee.
Williams, Ferrier & SyCip for Appellant.
Attorney-General Avanceña for Appellee.
SYLLABUS
1. ALIENS; CHINESE EXCLUSION AND DEPORTATION;
RIGHT OF WIDOW AND MINOR CHILDREN OF
DECEASED RESIDENT MERCHANT TO ENTER. — The
widow and minor children of a deceased resident
Chinese merchant are not entitled to enter the Philippine
Islands by virtue of the privileges which such merchant
enjoyed during his lifetime.
2. ID.; ID.; ID.; STATUS OF MERCHANT NOT
CONFERRED UPON WIDOW AND HEIRS. — The death of
a resident Chinese merchant does not confer upon his
widow and heirs the status of a merchant and they are
not entitled to enter the Philippine Islands from China
by reason of such fact alone.
DECISION
MORELAND, J. :
This case involves the exclusion from the Philippine
Islands of a Chinese woman and her minor children. She
claims to be the wife of a former resident Chinese
merchant who, prior to the attempt of the appellant to
enter, died in the Philippine Islands owning property
therein and leaving as his only heirs at law and next of
kin his widow, the appellant herein, and her minor
children.
The board of special inquiry refused them permission to
enter and that refusal was affirmed by the Court of First
Instance of Manila. This appeal is from the action taken
by the Court of First Instance.
Counsel for appellant says in his brief that: "The
question involved here is a double one: First, as to the
right of the widow and the legitimate minor children of
a deceased resident Chinese merchant to enter the
Philippine Islands as such widow and children; and,
second, the right of such widow, as a merchant and the
successor to her husband, to enter the said Islands and
to bring her children with her."cralaw virtua1aw library
Counsel then says: "It would appear that the first part
of the foregoing questions has been resolved by this
honorable tribunal against such right of entrance." This
statement is true. We have held in the case of Ng Hian
v. Collector of Customs (34 Phil. Rep., 248) that the
widow and minor children of a deceased Chinese
merchant resident and doing business in the Philippine
Islands at the time of his death are not entitled to enter
the Philippine Islands solely by reason of such
relationship. Counsel for the appellant asks us to
overrule that decision and admit the applicants in this
case, setting forth with ability arguments to that end.
We must say, however, that, after a careful
consideration of such arguments, we are unable to see
our way clear to overrule the former decision and
accordingly decline to do so.
With regard to the second question, it may be said that
it does not appear in the record of this case that the
applicant is a merchant. It appears simply that her
husband was, at the time of his death, a resident
Chinese merchant doing business in the Philippine
Islands, and that he died leaving property including a
mercantile business. The assumption of the appellant is
that the mere fact of the death of a merchant makes his
wife and children also merchants, as it leaves to them
as heirs and next of kin a mercantile business as a part
of their inheritance. We do not believe that this
necessarily follows. But if it does, the fact remains that
she is not a resident merchant. She is still outside of the
Philippine Islands and has never held the status of a
resident merchant. This she did not do. She did not
present the section six certificate which is the only
evidence upon which her right to enter can be based.
From these observations it necessarily follows that the
applicant is not entitled to enter the Philippine Islands
upon the status of her deceased husband; and that
when she seeks to enter upon her own personal status
she must produce the evidence which the law requires
to establish that status. Not having done this her
application to enter was properly denied.
The judgment appealed from is affirmed, with costs. So
ordered.
48
Great Pacific Life Assurance Corp. vs. CA (G.R. No.
113899, October 13, 1999)
G.R. No. 113899 October 13, 1999
GREAT PACIFIC LIFE ASSURANCE CORP., petitioner,
vs.
COURT OF APPEALS AND MEDARDA V. LEUTERIO,
respondents.
QUISUMBING, J.:
This petition for review, under Rule 45 of the Rules of
Court, assails the Decision 1 dated May 17, 1993, of the
Court of Appeals and its Resolution 2 dated January 4,
1994 in CA-G.R. CV No. 18341. The appellate court
affirmed in toto the judgment of the Misamis Oriental
Regional Trial Court, Branch 18, in an insurance claim
filed by private respondent against Great Pacific Life
Assurance Co. The dispositive portion of the trial court's
decision reads:
WHEREFORE, judgment is rendered adjudging the
defendant GREAT PACIFIC LIFE ASSURANCE
CORPORATION as insurer under its Group policy No. G-
1907, in relation to Certification B-18558 liable and
ordered to pay to the DEVELOPMENT BANK OF THE
PHILIPPINES as creditor of the insured Dr. Wilfredo
Leuterio, the amount of EIGHTY SIX THOUSAND TWO
HUNDRED PESOS (P86,200.00); dismissing the claims
for damages, attorney's fees and litigation expenses in
the complaint and counterclaim, with costs against the
defendant and dismissing the complaint in respect to the
plaintiffs, other than the widow-beneficiary, for lack of
cause of action. 3
The facts, as found by the Court of Appeals, are as
follows:
A contract of group life insurance was executed between
petitioner Great Pacific Life Assurance Corporation
(hereinafter Grepalife) and Development Bank of the
Philippines (hereinafter DBP). Grepalife agreed to insure
the lives of eligible housing loan mortgagors of DBP.
On November 11, 1983, Dr. Wilfredo Leuterio, a
physician and a housing debtor of DBP applied for
membership in the group life insurance plan. In an
application form, Dr. Leuterio answered questions
concerning his health condition as follows:
7. Have you ever had, or consulted, a physician for a
heart condition, high blood pressure, cancer, diabetes,
lung; kidney or stomach disorder or any other physical
impairment?
Answer: No. If so give details _____________.
8. Are you now, to the best of your knowledge, in good
health?
Answer: [x] Yes [ ] NO. 4
On November 15, 1983, Grepalife issued Certificate No.
B-18558, as insurance coverage of Dr. Leuterio, to the
extent of his DBP mortgage indebtedness amounting to
eighty-six thousand, two hundred (P86,200.00)
pesos.1âwphi1.nêt
On August 6, 1984, Dr. Leuterio died due to "massive
cerebral hemorrhage." Consequently, DBP submitted a
death claim to Grepalife. Grepalife denied the claim
alleging that Dr. Leuterio was not physically healthy
when he applied for an insurance coverage on
November 15, 1983. Grepalife insisted that Dr. Leuterio
did not disclose he had been suffering from
hypertension, which caused his death. Allegedly, such
non-disclosure constituted concealment that justified
the denial of the claim.
On October 20, 1986, the widow of the late Dr. Leuterio,
respondent Medarda V. Leuterio, filed a complaint with
the Regional Trial Court of Misamis Oriental, Branch 18,
against Grepalife for "Specific Performance with
Damages." 5During the trial, Dr. Hernando Mejia, who
issued the death certificate, was called to testify. Dr.
Mejia's findings, based partly from the information given
by the respondent widow, stated that Dr. Leuterio
complained of headaches presumably due to high blood
pressure. The inference was not conclusive because Dr.
Leuterio was not autopsied, hence, other causes were
not ruled out.
On February 22, 1988, the trial court rendered a
decision in favor of respondent widow and against
Grepalife. On May 17, 1993, the Court of Appeals
sustained the trial court's decision. Hence, the present
petition. Petitioners interposed the following assigned
errors:
1. THE LOWER COURT ERRED IN HOLDING
DEFENDANT-APPELLANT LIABLE TO THE DEVELOPMENT
BANK OF THE PHILIPPINES (DBP) WHICH IS NOT A
PARTY TO THE CASE FOR PAYMENT OF THE PROCEEDS
OF A MORTGAGE REDEMPTION INSURANCE ON THE
LIFE OF PLAINTIFF'S HUSBAND WILFREDO LEUTERIO
ONE OF ITS LOAN BORROWERS, INSTEAD OF
DISMISSING THE CASE AGAINST DEFENDANT-
APPELLANT [Petitioner Grepalife] FOR LACK OF CAUSE
OF ACTION.
2. THE LOWER COURT ERRED IN NOT DISMISSING THE
CASE FOR WANT OF JURISDICTION OVER THE SUBJECT
OR NATURE OF THE ACTION AND OVER THE PERSON OF
THE DEFENDANT.
3. THE LOWER COURT ERRED IN ORDERING
DEFENDANT-APPELLANT TO PAY TO DBP THE AMOUNT
OF P86,200.00 IN THE ABSENCE OF ANY EVIDENCE TO
SHOW HOW MUCH WAS THE ACTUAL AMOUNT PAYABLE
TO DBP IN ACCORDANCE WITH ITS GROUP INSURANCE
CONTRACT WITH DEFENDANT-APPELLANT.
4. THE LOWER COURT ERRED IN HOLDING THAT THERE
WAS NO CONCEALMENT OF MATERIAL INFORMATION
ON THE PART OF WILFREDO LEUTERIO IN HIS
APPLICATION FOR MEMBERSHIP IN THE GROUP LIFE
INSURANCE PLAN BETWEEN DEFENDANT-APPELLANT
OF THE INSURANCE CLAIM ARISING FROM THE DEATH
OF WILFREDO LEUTERIO. 6
49
Synthesized below are the assigned errors for our
resolution:
1. Whether the Court of Appeals erred in holding
petitioner liable to DBP as beneficiary in a group life
insurance contract from a complaint filed by the widow
of the decedent/mortgagor?
2. Whether the Court of Appeals erred in not finding that
Dr. Leuterio concealed that he had hypertension, which
would vitiate the insurance contract?
3. Whether the Court of Appeals erred in holding
Grepalife liable in the amount of eighty six thousand,
two hundred (P86,200.00) pesos without proof of the
actual outstanding mortgage payable by the mortgagor
to DBP.
Petitioner alleges that the complaint was instituted by
the widow of Dr. Leuterio, not the real party in interest,
hence the trial court acquired no jurisdiction over the
case. It argues that when the Court of Appeals affirmed
the trial court's judgment, Grepalife was held liable to
pay the proceeds of insurance contract in favor of DBP,
the indispensable party who was not joined in the suit.
To resolve the issue, we must consider the insurable
interest in mortgaged properties and the parties to this
type of contract. The rationale of a group insurance
policy of mortgagors, otherwise known as the
"mortgage redemption insurance," is a device for the
protection of both the mortgagee and the mortgagor.
On the part of the mortgagee, it has to enter into such
form of contract so that in the event of the unexpected
demise of the mortgagor during the subsistence of the
mortgage contract, the proceeds from such insurance
will be applied to the payment of the mortgage debt,
thereby relieving the heirs of the mortgagor from paying
the obligation. 7 In a similar vein, ample protection is
given to the mortgagor under such a concept so that in
the event of death; the mortgage obligation will be
extinguished by the application of the insurance
proceeds to the mortgage indebtedness. 8 And since a policy of insurance upon life or health may
Consequently, where the mortgagor pays the insurance
premium under the group insurance policy, making the
loss payable to the mortgagee, the insurance is on the
mortgagor's interest, and the mortgagor continues to be
a party to the contract. In this type of policy insurance,
the mortgagee is simply an appointee of the insurance
fund, such loss-payable clause does not make the
mortgagee a party to the contract. 9
Sec. 8 of the Insurance Code provides:
Unless the policy provides, where a mortgagor of
property effects insurance in his own name providing
that the loss shall be payable to the mortgagee, or
assigns a policy of insurance to a mortgagee, the
insurance is deemed to be upon the interest of the
mortgagor, who does not cease to be a party to the
original contract, and any act of his, prior to the loss,
which would otherwise avoid the insurance, will have the
same effect, although the property is in the hands of the
mortgagee, but any act which, under the contract of
insurance, is to be performed by the mortgagor, may be
performed by the mortgagee therein named, with the
same effect as if it had been performed by the
mortgagor.
The insured private respondent did not cede to the
mortgagee all his rights or interests in the insurance,
the policy stating that: "In the event of the debtor's
death before his indebtedness with the Creditor [DBP]
shall have been fully paid, an amount to pay the
outstanding indebtedness shall first be paid to the
creditor and the balance of sum assured, if there is any,
shall then be paid to the beneficiary/ies designated by
the debtor." 10 When DBP submitted the insurance
claim against petitioner, the latter denied payment
thereof, interposing the defense of concealment
committed by the insured. Thereafter, DBP collected the
debt from the mortgagor and took the necessary action
of foreclosure on the residential lot of private
respondent. 11 In Gonzales La O vs. Yek Tong Lin Fire
& Marine Ins. Co. 12 we held:
Insured, being the person with whom the contract was
made, is primarily the proper person to bring suit
thereon. * * * Subject to some exceptions, insured may
thus sue, although the policy is taken wholly or in part
for the benefit of another person named or unnamed,
and although it is expressly made payable to another as
his interest may appear or otherwise. * * * Although a
policy issued to a mortgagor is taken out for the benefit
of the mortgagee and is made payable to him, yet the
mortgagor may sue thereon in his own name, especially
where the mortgagee's interest is less than the full
amount recoverable under the policy, * * *.
And in volume 33, page 82, of the same work, we read
the following:
Insured may be regarded as the real party in interest,
although he has assigned the policy for the purpose of
collection, or has assigned as collateral security any
judgment he may obtain. 13
pass by transfer, will or succession to any person,
whether he has an insurable interest or not, and such
person may recover it whatever the insured might have
recovered,14 the widow of the decedent Dr. Leuterio
may file the suit against the insurer, Grepalife.
The second assigned error refers to an alleged
concealment that the petitioner interposed as its
defense to annul the insurance contract. Petitioner
contends that Dr. Leuterio failed to disclose that he had
hypertension, which might have caused his death.
Concealment exists where the assured had knowledge
of a fact material to the risk, and honesty, good faith,
and fair dealing requires that he should communicate it
to the assured, but he designedly and intentionally
withholds the same. 15
Petitioner merely relied on the testimony of the
attending physician, Dr. Hernando Mejia, as supported
by the information given by the widow of the decedent.
Grepalife asserts that Dr. Mejia's technical diagnosis of
the cause of death of Dr. Leuterio was a duly
50
documented hospital record, and that the widow's
declaration that her husband had "possible hypertension
several years ago" should not be considered as hearsay,
but as part of res gestae.
On the contrary the medical findings were not conclusive
because Dr. Mejia did not conduct an autopsy on the
body of the decedent. As the attending physician, Dr.
Mejia stated that he had no knowledge of Dr. Leuterio's
any previous hospital confinement. 16 Dr. Leuterio's
death certificate stated that hypertension was only "the
possible cause of death." The private respondent's
statement, as to the medical history of her husband,
was due to her unreliable recollection of events. Hence,
the statement of the physician was properly considered
by the trial court as hearsay.
The question of whether there was concealment was
aptly answered by the appellate court, thus:
The insured, Dr. Leuterio, had answered in his insurance
application that he was in good health and that he had
not consulted a doctor or any of the enumerated
ailments, including hypertension; when he died the
attending physician had certified in the death certificate
that the former died of cerebral hemorrhage, probably
secondary to hypertension. From this report, the
appellant insurance company refused to pay the
insurance claim. Appellant alleged that the insured had
concealed the fact that he had hypertension.
Contrary to appellant's allegations, there was no
sufficient proof that the insured had suffered from
hypertension. Aside from the statement of the insured's
widow who was not even sure if the medicines taken by
Dr. Leuterio were for hypertension, the appellant had
not proven nor produced any witness who could attest
to Dr. Leuterio's medical history . .
xxx xxx xxx
Appellant insurance company had failed to establish that
there was concealment made by the insured, hence, it
cannot refuse payment of the claim. 17
The fraudulent intent on the part of the insured must be
established to entitle the insurer to rescind the contract.
18Misrepresentation as a defense of the insurer to avoid
liability is an affirmative defense and the duty to
establish such defense by satisfactory and convincing
evidence rests upon the insurer. 19 In the case at bar,
the petitioner failed to clearly and satisfactorily establish
its defense, and is therefore liable to pay the proceeds
of the insurance.1âwphi1.nêt
And that brings us to the last point in the review of the
case at bar. Petitioner claims that there was no evidence
as to the amount of Dr. Leuterio's outstanding
indebtedness to DBP at the time of the mortgagor's
death. Hence, for private respondent's failure to
establish the same, the action for specific performance
should be dismissed. Petitioner's claim is without merit.
A life insurance policy is a valued policy. 20 Unless the
interest of a person insured is susceptible of exact
pecuniary measurement, the measure of indemnity
under a policy of insurance upon life or health is the sum
fixed in the policy. 21 The mortgagor paid the premium
according to the coverage of his insurance, which states
that:
The policy states that upon receipt of due proof of the
Debtor's death during the terms of this insurance, a
death benefit in the amount of P86,200.00 shall be paid.
In the event of the debtor's death before his
indebtedness with the creditor shall have been fully
paid, an amount to pay the outstanding indebtedness
shall first be paid to the Creditor and the balance of the
Sum Assured, if there is any shall then be paid to the
beneficiary/ies designated by the debtor." 22(Emphasis
omitted)
However, we noted that the Court of Appeals' decision
was promulgated on May 17, 1993. In private
respondent's memorandum, she states that DBP
foreclosed in 1995 their residential lot, in satisfaction of
mortgagor's outstanding loan. Considering this
supervening event, the insurance proceeds shall inure
to the benefit of the heirs of the deceased person or his
beneficiaries. Equity dictates that DBP should not
unjustly enrich itself at the expense of another (Nemo
cum alterius detrimenio protest). Hence, it cannot
collect the insurance proceeds, after it already
foreclosed on the mortgage. The proceeds now rightly
belong to Dr. Leuterio's heirs represented by his widow,
herein private respondent Medarda Leuterio.
WHEREFORE, the petition is hereby DENIED. The
Decision and Resolution of the Court of Appeals in CA-
G.R. CV 18341 is AFFIRMED with MODIFICATION that
the petitioner is ORDERED to pay the insurance
proceeds amounting to Eighty-six thousand, two
hundred (P86,200.00) pesos to the heirs of the insured,
Dr. Wilfredo Leuterio (deceased), upon presentation of
proof of prior settlement of mortgagor's indebtedness to
Development Bank of the Philippines. Costs against
petitioner.1âwphi1.nêt
SO ORDERED.
51
52
Robles vs. Batacan (154 SCRA 644)
G.R. No. L-46978 October 12, 1987
ERNESTO ROBLES, petitioner,
vs.
HON. DELFIN FL. BATACAN, HON. CONRADO M.
VASQUEZ, HON. JOSE B. JIMENEZ. ATANACIO
GERONIMO and BENEDICTO GERONIMO, respondents.
CRUZ, J.:
The central figure in this case is Severino Geronimo,
who worked in the petitioner's land for twenty years
until 1969 and died the following year at the age of 86.
The central question in this case is the nature of the
work he performed and the compensation he was
supposed to receive.
After his death, an ejectment suit was filed against his
two sons by the petitioner, who claimed they had no
right to remain in his land.1 Benedicto Geronimo did not
choose to answer and so was declared in default. 2 The
other defendant. Atanacio Geronimo, averred that he
was entitled to succeed his father as the petitioner's
agricultural tenant in accordance with R.A. No. 1199 and
Section 9 of R.A. No. 3844.
The private respondent's position is that his father was
an agricultural tenant of the petitioner during the twenty
years the former worked in the latter"s land. Hence, in
accordance with the aforementioned laws, he could
remain in the petitioner"s land under the same terms
and conditions of the original tenancy share
arrangement entered into between his father and the
petitioner. His share should also be P100.00 more or
less per harvest every forty days during the time he
continued discharging his father"s work as his statutory
successor. 3
The petitioner, for his part, insists that Severino
Geronimo was never an agricultural tenant of his but
worked merely as a watcher in his land. He did receive
the sum of P100.00 every harvest but not as his share
therein for that amount was given to him as a reward
for his past services. The only work he did was watch
over the petitioner"s land and make brooms out of the
fallen coconut leaves he would gather. He sold these
brooms and kept the proceeds for himself without
sharing them with the petitioner. 4
After trial, the Court of Agrarian Relations * rendered
judgment recognizing the defendant as the agricultural
tenant of the plaintiff and ordering the payment to him
of the sum of P12,000.00 as his tenancy share. 5 Not
satisfied, the petitioner went to the Court of Appeals, **
which affirmed the challenged decision in toto. 6 The
petitioner is now before us and faults the respondent
court with grave abuse of discretion for upholding the
trial court.
We do not agree that the respondent court erred. On
the contrary, we find that its findings are supported by
the evidence of record and in accord with the applicable
law and doctrine.
Thus, on the nature of the work performed by Severino
Geronimo, it quoted with approval the conclusion of the
trial court that he "was the tenant on the subject parcel
for quite a time and was recognized by Ernesto Robles
as such," discharging such tasks as supervising the
harvest, cutting down bushes, clearing the land, picking
up the fallen nuts, and paying the laborers, like the
coconut gatherers and huskers, from his 1/3 share. 7
This was based on the declarations of several witnesses,
8 including the petitioner himself, and the several
documents presented by Atanacio in which his father
was described by the petitioner as his "kasama" to
whom was being given his "bahagui" or share. 9
As for the private respondent's right to succeed his
father, the respondent court was correct in affirming the
ruling of the trial court that, as the son of Severino
Geronimo, Atanacio had the right to take over as
agricultural tenant in the petitioner"s land in accordance
with R.A. No. 1199 and R.A. No. 3844.10 Obviously,
Atanacio was the only heir interested in succeeding his
father as his brother, Benedicto, had not seen fit to
claim his right and in fact defaulted in resisting the
petitioner"s claims in the ejectment suit. Significantly,
when in his prayer the petitioner asks for authority to
appoint the said Benedicto to succeed his father, it is
presumably as his watcher only and not as agricultural
tenant. The petitioner"s consistent claim, it should be
noted, is that Severino Geronimo was not his tenant but
only his watcher.
The Court gave cited due course to this petition to
enable the parties to argue on the amount of damages
in view of the apparent lack of a credible basis therefor
as observed by the trial court. 11 In his memorandum,
the petitioner says the basis should be the weight of the
coconut harvested and then, consistent with his main
thesis, urges that no damages should be awarded at
all.12 The private respondent says that the basis should
be the number of nuts harvested and then asks that the
damages be doubled.13 In his reply, realizing probably
that the matter may have gotten out of hand, the
petitioner now counters that the private respondent
cannot claim an increase in the amount of damages
because he has not, providentially, appealed the same.
14 This is correct and estops the private respondent.
In La Mallorca v. Court of Appeals,15 the Court said:
The increase of the award of damages from P3,000.00
to P6,000.00 by the Court of Appeals, however, cannot
be sustained. Generally, the Appellate Court can only
pass upon the consider questions or issues raised and
argued in appellant"s brief, plaintiff did not appeal from
that portion of judgment of the trial court awarding
them damages. Neither does it appear that, as appellees
to the Court of Appeals, plaintiffs have pointed out in
their brief inadequacy of the award or that the inclusion
of the figure P3,000.00 was merely a clerical error, in
order that the matter may be treated as an exception to
the general rule. Thus, the court of Appeals committed
error in raising the amount for damages.
In Dy v. Kuizon, 16 we declared:
It is a well-settled rule in this jurisdiction that whenever
an appeal is taken in a civil case, an appellee who has
not himself appealed cannot obtain from the appellate
court any affirmative relief other than the ones granted
in the decision of the court below. An appellee who is
not appellant may assign errors in his brief where his
purpose is to maintain the judgment on other grounds,
but he may not do so if this purpose is to have the
judgment modified or reversed for, in such a case, he
53
must appeal. Here, the respondent did not appeal and
so it was error for the Court of Appeals to award him a
relief not granted by the lower court.
In Madrideo v. Hon. Court of Appeals, 17 our ruling was:
... whenever an appeal is taken in a civil case, an
appellee who has not appealed cannot obtain from the
appellate court any affirmative relief other than the ones
granted in the decision of the court below.
The latest decision on this matter is Aguilar v. Chan,18
where the Court noted that although the actual damages
suffered by the plaintiff-appellee exceeded the amount
awarded to her by the lower court, this amount could
not be increased because she had not appealed.
The trial court had the opportunity to assess the
evidence first-hand and so was in the best position to
determine the factual relationship between the parties
as well as the share to which the private respondent was
entitled. We do not find that the respondent court
committed grave abuse of discretion in affirming the
decision of the court a quo and see no reason to reverse
it. We too affirm.
WHEREFORE, the petition is DENIED, with costs against
the petitioner. This decision is immediately executory.
SO ORDERED.

54
San Agustin vs. CA (371 SCRA 348, December 4,
2001)
[G.R. No. 121940. December 4, 2001]
JESUS SAN AGUSTIN, petitioner, vs. HON. COURT OF
APPEALS and MAXIMO MENEZ, JR., respondents.
DECISION
QUISUMBING, J.:
This petition for review on certiorari seeks the reversal
of the decision[1] of the Court of Appeals dated May 19,
1995, affirming that of the Regional Trial Court in LRC
Case No. R-4659.
The relevant facts, as summarized by the CA, are as
follows:
On February 11, 1974, the Government Service
Insurance System (GSIS) sold to a certain Macaria Vda.
de Caiquep, a parcel of residential land with an area of
168 square meters located in Rosario, Pasig City and
denominated as Lot 13, Block 7, Pcs-5816 of the
Government Service and Insurance System Low Cost
Housing Project (GSIS-LCHP). The sale is evidenced by
a Deed of Absolute Sale.[2] On February 19, 1974, the
Register of Deeds of Rizal issued in the name of Macaria
Vda. de Caiquep, Transfer Certificate of Title (TCT) No.
436465 with the following encumbrance annotated at
the back of the title:
This Deed of Absolute Sale is subject to the conditions
enumerated below which shall be permanent
encumbrances on the property, the violation of any of
which shall entitle the vendor to cancel x x x this Deed
of Absolute Sale and reenter the property;
The purpose of the sale be to aid the vendee in acquiring
a lot for himself/themselves and not to provide
him/them with a means for speculation or profit by a
future assignment of his/their right herein acquired or
the resale of the lot through rent, lease or subletting to
others of the lot and subject of this deed, and therefore,
the vendee shall not sell, convey, lease or sublease, or
otherwise encumber the property in favor of any other
party within five (5) years from the date final and
absolute ownership thereof becomes vested in the
vendee, except in cases of hereditary succession or
resale in favor of the vendor;
x x x (Underscoring supplied).[3]
A day after the issuance of TCT No. 436465, or on
February 20, 1974, Macaria Vda. de Caiquep sold the
subject lot to private respondent, Maximo Menez, Jr., as
evidenced by a Deed of Absolute Sale (Exhibit D).[4]
This deed was notarized but was not registered
immediately upon its execution in 1974 because GSIS
prohibited him from registering the same in view of the
five-year prohibition to sell during the period ending in
1979.
Sometime in 1979, for being suspected as a subversive,
an Arrest, Search and Seizure Order (ASSO) was issued
against private respondent. Military men ransacked his
house in Cainta, Rizal. Upon learning that he was
wanted by the military, he voluntarily surrendered and
was detained for two (2) years. When released, another
order for his re-arrest was issued so he hid in Mindanao
for another four (4) years or until March 1984. In
December of 1990, he discovered that the subject TCT
was missing. He consulted a lawyer but the latter did
not act immediately on the matter. Upon consulting a
new counsel, an Affidavit of Loss[5] was filed with the
Register of Deeds of Pasig and a certified copy[6] of TCT
No. 436465 was issued. Private respondent also
declared the property for tax purposes and obtained a
certification thereof from the Assessors Office.[7]
Private respondent sent notices to the registered owner
at her address appearing in the title and in the Deed of
Sale. And, with his counsel, he searched for the
registered owner in Metro Manila and Rizal and as far as
Samar, Leyte, Calbayog City, Tacloban City, and in
Eastern and Northern Samar. However, their search
proved futile.
On July 8, 1992, private respondent filed a petition
docketed as LRC Case No. R-4659 with the RTC, Branch
154, Pasig, Metro Manila for the issuance of owners
duplicate copy of TCT No. 436465 to replace the lost
one. To show he was the owner of the contested lot, he
showed the Deed of Absolute Sale, Exhibit D. The
petition was set for hearing and the courts order dated
July 10, 1992 was published once in Malaya, a nationally
circulated newspaper in the Philippines.[8]
During the hearing on September 3, 1992, only Menez
and his counsel appeared. The Register of Deeds who
was not served notice, and the Office of the Solicitor
General and the Provincial Prosecutor who were notified
did not attend.
On September 18, 1992, there being no opposition,
Menez presented his evidence ex-parte. The trial court
granted his petition in its decision[9] dated September
30, 1992, the dispositive portion of which reads:
WHEREFORE, the petition is hereby GRANTED and the
Registry of Deeds of Pasig, Metro Manila, is hereby
directed to issue a new Owners Duplicate Copy of
Transfer Certificate of Title No. 436465 based on the
original thereon filed in his office which shall contain the
memorandum of encumbrance and an additional
memorandum of the fact that it was issued in place of
the lost duplicate and which shall, in all respect, be
entitled to like faith and credit as the original duplicate,
for all legal intents and purposes.
Issuance of new owners duplicate copy shall be made
only after this decision shall have become final and
executory. The said lost owners duplicate is hereby
declared null and void.
Petitioner shall pay all legal fees in connection with the
issuance of the new owners copy.
Let copies of this Order be furnished the petitioner; the
registered owner of his given address in the title, in the
55
deed of sale, and in the tax declaration; the Registry of
Deeds of Pasig; the Office of the Solicitor General; and
the Provincial Fiscal of Pasig, Metro Manila.
SO ORDERED.[10]
On October 13, 1992, herein petitioner, Jesus San
Agustin, received a copy of the abovecited decision. He
claimed this was the first time he became aware of the
case of her aunt, Macaria Vda. de Caiquep who,
according to him, died sometime in 1974. Claiming that
he was the present occupant of the property and the
heir of Macaria, he filed his Motion to Reopen
Reconstitution Proceedings[11] on October 27, 1992.
On December 3, 1992, RTC issued an order denying said
motion.[12]
Petitioner filed an appeal with the Court of Appeals
which, as earlier stated, was denied in its decision of
May 19, 1995. Petitioner moved for a reconsideration,
but it was denied in a resolution dated September 11,
1995.[13]
Thus, the present petition, attributing the following
errors to the court a quo:
A.
THE RESPONDENT COURT GRAVELY ERRED IN
HOLDING THAT LRC CASE NO. R-4659 BEING ONLY A
PETITION FOR THE ISSUANCE OF A NEW OWNERS
DUPLICATE OF TITLE, THERE IS NO NEED OF PERSONAL
NOTICE TO THE PETITIONER, THE ACTUAL POSSESSOR
[WHO HAS] AND ACTUALLY BEEN PAYING THE REAL
ESTATE TAX, DESPITE PRIVATE RESPONDENTS
KNOWLEDGE OF ACTUAL POSSESSION OF AND
INTEREST OVER THE PROPERTY COVERED BY TCT NO.
436465.[14]
B.
RESPONDENT COURT GRAVELY ERRED IN HOLDING
THAT THE SALE BETWEEN THE PRIVATE RESPONDENT
AND MACARIA VDA. DE CAIQUEP IS NOT NULL AND
VOID AND UNDER ARTICLE 1409 OF THE CIVIL CODE
SPECIFICALLY PARAGRAPH (7) THEREOF WHICH
REFERS TO CONTRACTS EXPRESSLY PROHIBITED OR
DECLARED VOID BY LAW.[15]
Considering the above assignment of errors, let us
resolve the corresponding issues raised by petitioner.
The first issue involves private respondents alleged
failure to send notice to petitioner who is the actual
possessor of the disputed lot. Stated briefly, is petitioner
entitled to notice? Our finding is in the negative.
Presidential Decree No. 1529, otherwise known as the
Property Registration Decree is decisive. It provides:
Sec. 109. Notice and replacement of lost duplicate
certificate. In case of loss or theft of an owners duplicate
certificate of title, due notice under oath shall be sent
by the owner or by someone in his behalf to the Register
of Deeds of the province or city where the land lies as
soon as the loss or theft is discovered. If a duplicate
certificate is lost or destroyed, or cannot be produced by
a person applying for the entry of a new certificate to
him or for the registration of any instrument, a sworn
statement of the fact of such loss or destruction may be
filed by the registered owner or other person in interest
and registered.
Upon the petition of the registered owner or other
person in interest, the court may, after notice and due
hearing, direct the issuance of a new duplicate
certificate, which shall contain a memorandum of the
fact that it is issued in place of the lost duplicate
certificate, but shall in all respects be entitled to like
faith and credit as the original duplicate, and shall
thereafter be regarded as such for all purposes of this
decree.
In Office of Court Administrator vs. Matas, A.M. No. RTJ-
92-836, 247 SCRA 9, 16-17 (1995), we held:
In the case at bar, the respective certificate of title of
the properties in question on file with the Register of
Deeds are existing, and it is the owners copy of the
certificate of title that was alleged to have been lost or
destroyed. Thus, it is Section 109 of P.D. 1529 which
was approved on June 11, 1978 that becomes effective
and is applicable, a reading of which shows that it is
practically the same as Section 109 of Act No. 496,
governing reconstitution of a duplicate certificate of title
lost or destroyed. Consequently, it is sufficient that the
notice under Section 109 is sent to the Register of Deeds
and to those persons who are known to have, or appear
to have, an interest in the property as shown in the
Memorandum of encumbrances at the back of the
original or transfer certificate of title on file in the office
of the Register of Deeds. From a legal standpoint, there
are no other interested parties who should be notified,
except those abovementioned since they are the only
ones who may be deemed to have a claim to the
property involved. A person dealing with registered
property is not charged with notice of encumbrances not
annotated on the back of the title. (Italics supplied.)
Here, petitioner does not appear to have an interest in
the property based on the memorandum of
encumbrances annotated at the back of the title. His
claim that he is an heir (nephew) of the original owner
of the lot covered by the disputed lot and the present
occupant thereof is not annotated in the said
memorandum of encumbrances. Neither was his claim
entered on the Certificate of Titles in the name of their
original/former owners on file with the Register of Deeds
at the time of the filing or pendency of LRC Case No. R-
4659. Clearly, petitioner is not entitled to notice.
Noteworthy is the fact that there was compliance by
private respondent of the RTCs order of publication of
the petition in a newspaper of general circulation. This
is sufficient notice of the petition to the public at large.
Petitioner contends that as possessor or actual occupant
of the lot in controversy, he is entitled under the law to
be notified. He relies on Alabang Development
Corporation vs. Valenzuela, G.R. No. L-54094, 116
SCRA 261, 277 (1982), which held that in reconstitution
56
proceedings, courts must make sure that indispensable
parties, i.e., the actual owners and possessors of the
lands involved, are duly served with actual and personal
notice of the petition. As pointed out by the appellate
court, his reliance on Alabang is misplaced because the
cause of action in that case is based on Republic Act No.
26, entitled An Act Providing A Special Procedure for the
Reconstitution of Torrens Certificate of Title Lost or
Destroyed, while the present case is based on Section
109 of P.D. 1529 as above explained.
Under Republic Act No. 26, reconstitution is validly
made only in case the original copy of the certificate of
title with the Register of Deeds is lost or destroyed. And
if no notice of the date of hearing of a reconstitution
case is served on a possessor or one having interest in
the property involved, he is deprived of his day in court
and the order of reconstitution is null and void.[16] The
case at bar is not for reconstitution, but merely for
replacement of lost duplicate certificate.
On the second assigned error, petitioner contends that
Exhibit D is null and void under Article 1409 of the Civil
Code, specifically paragraph (7),[17] because the deed
of sale was executed within the five-year prohibitory
period under Commonwealth Act No. 141, as amended,
otherwise known as The Public Land Act.[18]
We find petitioners contention less than meritorious. We
agree with respondent court that the proscription under
Com. Act No. 141 on sale within the 5-year restrictive
period refers to homestead lands only. Here the lot in
dispute is not a homestead land, as found by the trial
and appellate courts. Said lot is owned by GSIS, under
TCT No. 10028 in its proprietary capacity.
Moreover, as far as the violation of the 5-year restrictive
condition imposed by GSIS in its contract with
petitioners predecessor-in-interest is concerned, it is the
GSIS and not petitioner who had a cause of action
against private respondent. Vide the instructive case of
Sarmiento vs. Salud:
The condition that the appellees Sarmiento spouses
could not resell the property except to the People's
Homesite and Housing Corporation (PHHC for short)
within the next 25 years after appellees' purchasing the
lot is manifestly a condition in favor of the PHHC, and
not one in favor of the Sarmiento spouses. The condition
conferred no actionable right on appellees herein, since
it operated as a restriction upon their jus disponendi of
the property they bought, and thus limited their right of
ownership. It follows that on the assumption that the
mortgage to appellee Salud and the foreclosure sale
violated the condition in the Sarmiento contract, only
the PHHC was entitled to invoke the condition
aforementioned, and not the Sarmientos. The validity or
invalidity of the sheriff's foreclosure sale to appellant
Salud thus depended exclusively on the PHHC; the latter
could attack the sale as violative of its right of exclusive
reacquisition; but it (PHHC) also could waive the
condition and treat the sale as good, in which event, the
sale can not be assailed for breach of the condition
aforestated.[19]
In this case, the GSIS has not filed any action for the
annulment of Exhibit D, nor for the forfeiture of the lot
in question. In our view, the contract of sale remains
valid between the parties, unless and until annulled in
the proper suit filed by the rightful party, the GSIS. For
now, the said contract of sale is binding upon the heirs
of Macaria Vda. de Caiquep, including petitioner who
alleges to be one of her heirs, in line with the rule that
heirs are bound by contracts entered into by their
predecessors-in-interest.[20]
We are not unmindful of the social justice policy of R.A.
8291 otherwise known as Government Service
Insurance Act of 1997 in granting housing assistance to
the less-privileged GSIS members and their dependents
payable at an affordable payment scheme. [21] This is
the same policy which the 5-year restrictive clause in
the contract seeks to implement by stating in the
encumbrance itself annotated at the back of TCT No.
436465 that, The purpose of the sale is to aid the
vendee in acquiring a lot for himself/themselves and not
to provide him/them with a means for speculation or
profit by a future assignment of his/their right herein
acquired or the resale of the lot through rent, lease or
subletting to others of the lot and subject of this deed,
xxx within five (5) years from the date final and absolute
ownership thereof becomes vested in the vendee,
except in cases of hereditary succession or resale in
favor of the vendor.[22] However, absent the proper
action taken by the GSIS as the original vendor referred
to, the contract between petitioners predecessor-in-
interest and private respondent deserves to be upheld.
For as pointed out by said private respondent, it is
protected by the Constitution under Section 10, Article
III, of the Bill of Rights stating that, No law impairing
the obligation of contracts shall be passed. Much as we
would like to see a salutary policy triumph, that
provision of the Constitution duly calls for compliance.
More in point, however, is the fact that, following
Sarmiento v. Salud,[23] Even if the transaction between
the original awardee and herein petitioner were
wrongful, still, as between themselves, the purchaser
and the seller were both in pari delicto, being participes
criminis as it were. As inSarmiento, in this case both
were aware of the existence of the stipulated condition
in favor of the original seller, GSIS, yet both entered
into an agreement violating said condition and nullifying
its effects. Similarly, as Acting Chief Justice JBL Reyes
concluded in Sarmiento, Both parties being equally
guilty, neither is entitled to complain against the other.
Having entered into the transaction with open eyes, and
having benefited from it, said parties should be held in
estoppel to assail and annul their own deliberate acts.
WHEREFORE, the appeal is DENIED, and the decision of
the respondent court is AFFIRMED.
SO ORDERED.
57
58
Rabadilla vs. CA (June 29, 2000)
[G.R. No. 113725. June 29, 2000]
JOHNNY S. RABADILLA,[1] petitioner, vs. COURT OF
APPEALS AND MARIA MARLENA[2] COSCOLUELLA Y
BELLEZA VILLACARLOS, respondents.
DECISION
PURISIMA, J.:
This is a petition for review of the decision of the Court
of Appeals,[3] dated December 23, 1993, in CA-G.R.
No. CV-35555, which set aside the decision of Branch
52 of the Regional Trial Court in Bacolod City, and
ordered the defendants-appellees (including herein
petitioner), as heirs of Dr. Jorge Rabadilla, to reconvey
title over Lot No. 1392, together with its fruits and
interests, to the estate of Aleja Belleza.
The antecedent facts are as follows:
In a Codicil appended to the Last Will and Testament of
testatrix Aleja Belleza, Dr. Jorge Rabadilla, predecessor-
in-interest of the herein petitioner, Johnny S. Rabadilla,
was instituted as a devisee of 511, 855 square meters
of that parcel of land surveyed as Lot No. 1392 of the
Bacolod Cadastre. The said Codicil, which was duly
probated and admitted in Special Proceedings No. 4046
before the then Court of First Instance of Negros
Occidental, contained the following provisions:
"FIRST
I give, leave and bequeath the following property owned
by me to Dr. Jorge Rabadilla resident of 141 P.
Villanueva, Pasay City:
(a) Lot No. 1392 of the Bacolod Cadastre, covered by
Transfer Certificate of Title No. RT-4002 (10942), which
is registered in my name according to the records of the
Register of Deeds of Negros Occidental.
(b) That should Jorge Rabadilla die ahead of me, the
aforementioned property and the rights which I shall set
forth hereinbelow, shall be inherited and acknowledged
by the children and spouse of Jorge Rabadilla.
xxx
FOURTH
(a)....It is also my command, in this my addition
(Codicil), that should I die and Jorge Rabadilla shall have
already received the ownership of the said Lot No. 1392
of the Bacolod Cadastre, covered by Transfer Certificate
of Title No. RT-4002 (10942), and also at the time that
the lease of Balbinito G. Guanzon of the said lot shall
expire, Jorge Rabadilla shall have the obligation until he
dies, every year to give to Maria Marlina Coscolluela y
Belleza, Seventy (75) (sic) piculs of Export sugar and
Twenty Five (25) piculs of Domestic sugar, until the said
Maria Marlina Coscolluela y Belleza dies.
FIFTH
(a) Should Jorge Rabadilla die, his heir to whom he shall
give Lot No. 1392 of the Bacolod Cadastre, covered by
Transfer Certificate of Title No. RT-4002 (10492), shall
have the obligation to still give yearly, the sugar as
specified in the Fourth paragraph of his testament, to
Maria Marlina Coscolluela y Belleza on the month of
December of each year.
SIXTH
I command, in this my addition (Codicil) that the Lot No.
1392, in the event that the one to whom I have left and
bequeathed, and his heir shall later sell, lease, mortgage
this said Lot, the buyer, lessee, mortgagee, shall have
also the obligation to respect and deliver yearly ONE
HUNDRED (100) piculs of sugar to Maria Marlina
Coscolluela y Belleza, on each month of December,
SEVENTY FIVE (75) piculs of Export and TWENTY FIVE
(25) piculs of Domestic, until Maria Marlina shall die,
lastly should the buyer, lessee or the mortgagee of this
lot, not have respected my command in this my addition
(Codicil), Maria Marlina Coscolluela y Belleza, shall
immediately seize this Lot No. 1392 from my heir and
the latter's heirs, and shall turn it over to my near
desendants, (sic) and the latter shall then have the
obligation to give the ONE HUNDRED (100) piculs of
sugar until Maria Marlina shall die. I further command in
this my addition (Codicil) that my heir and his heirs of
this Lot No. 1392, that they will obey and follow that
should they decide to sell, lease, mortgage, they cannot
negotiate with others than my near descendants and my
sister."[4]
Pursuant to the same Codicil, Lot No. 1392 was
transferred to the deceased, Dr. Jorge Rabadilla, and
Transfer Certificate of Title No. 44498 thereto issued in
his name.
Dr. Jorge Rabadilla died in 1983 and was survived by his
wife Rufina and children Johnny (petitioner), Aurora,
Ofelia and Zenaida, all surnamed Rabadilla.
On August 21, 1989, Maria Marlena Coscolluela y Belleza
Villacarlos brought a complaint, docketed as Civil Case
No. 5588, before Branch 52 of the Regional Trial Court
in Bacolod City, against the above-mentioned heirs of
Dr. Jorge Rabadilla, to enforce the provisions of subject
Codicil. The Complaint alleged that the defendant-heirs
violated the conditions of the Codicil, in that:
1. Lot No. 1392 was mortgaged to the Philippine
National Bank and the Republic Planters Bank in
disregard of the testatrix's specific instruction to sell,
lease, or mortgage only to the near descendants and
sister of the testatrix.
2. Defendant-heirs failed to comply with their obligation
to deliver one hundred (100) piculs of sugar (75 piculs
export sugar and 25 piculs domestic sugar) to plaintiff
Maria Marlena Coscolluela y Belleza from sugar crop
years 1985 up to the filing of the complaint as mandated
by the Codicil, despite repeated demands for
compliance.
59
3. The banks failed to comply with the 6th paragraph of
the Codicil which provided that in case of the sale, lease,
or mortgage of the property, the buyer, lessee, or
mortgagee shall likewise have the obligation to deliver
100 piculs of sugar per crop year to herein private
respondent.
The plaintiff then prayed that judgment be rendered
ordering defendant-heirs to reconvey/return-Lot No.
1392 to the surviving heirs of the late Aleja Belleza, the
cancellation of TCT No. 44498 in the name of the
deceased, Dr. Jorge Rabadilla, and the issuance of a new
certificate of title in the names of the surviving heirs of
the late Aleja Belleza.
On February 26, 1990, the defendant-heirs were
declared in default but on March 28, 1990 the Order of
Default was lifted, with respect to defendant Johnny S.
Rabadilla, who filed his Answer, accordingly.
During the pre-trial, the parties admitted that:
On November 15, 1998, the plaintiff (private
respondent) and a certain Alan Azurin, son-in-law of the
herein petitioner who was lessee of the property and
acting as attorney-in-fact of defendant-heirs, arrived at
an amicable settlement and entered into a
Memorandum of Agreement on the obligation to deliver
one hundred piculs of sugar, to the following effect:
"That for crop year 1988-89, the annuity mentioned in
Entry No. 49074 of TCT No. 44489 will be delivered not
later than January of 1989, more specifically, to wit:
75 piculs of 'A' sugar, and 25 piculs of 'B' sugar, or then
existing in any of our names, Mary Rose Rabadilla y
Azurin or Alan Azurin, during December of each sugar
crop year, in Azucar Sugar Central; and, this is
considered compliance of the annuity as mentioned, and
in the same manner will compliance of the annuity be in
the next succeeding crop years.
That the annuity above stated for crop year 1985-86,
1986-87, and 1987-88, will be complied in cash
equivalent of the number of piculs as mentioned therein
and which is as herein agreed upon, taking into
consideration the composite price of sugar during each
sugar crop year, which is in the total amount of ONE
HUNDRED FIVE THOUSAND PESOS (P105,000.00).
That the above-mentioned amount will be paid or
delivered on a staggered cash installment, payable on
or before the end of December of every sugar crop year,
to wit:
For 1985-86, TWENTY SIX THOUSAND TWO HUNDRED
FIFTY (P26,250.00) Pesos, payable on or before
December of crop year 1988-89;
For 1986-87, TWENTY SIX THOUSAND TWO HUNDRED
FIFTY (P26,250.00) Pesos, payable on or before
December of crop year 1989-90;
For 1987-88, TWENTY SIX THOUSAND TWO HUNDRED
FIFTY (P26,250.00) Pesos, payable on or before
December of crop year 1990-91; and
For 1988-89, TWENTY SIX THOUSAND TWO HUNDRED
FIFTY (P26,250.00) Pesos, payable on or before
December of crop year 1991-92."[5]
However, there was no compliance with the aforesaid
Memorandum of Agreement except for a partial delivery
of 50.80 piculs of sugar corresponding to sugar crop
year 1988 -1989.
On July 22, 1991, the Regional Trial Court came out with
a decision, dismissing the complaint and disposing as
follows:
"WHEREFORE, in the light of the aforegoing findings, the
Court finds that the action is prematurely filed as no
cause of action against the defendants has as yet arose
in favor of plaintiff. While there maybe the non-
performance of the command as mandated exaction
from them simply because they are the children of Jorge
Rabadilla, the title holder/owner of the lot in question,
does not warrant the filing of the present complaint. The
remedy at bar must fall. Incidentally, being in the
category as creditor of the left estate, it is opined that
plaintiff may initiate the intestate proceedings, if only to
establish the heirs of Jorge Rabadilla and in order to give
full meaning and semblance to her claim under the
Codicil.
In the light of the aforegoing findings, the Complaint
being prematurely filed is DISMISSED without
prejudice.
SO ORDERED."[6]
On appeal by plaintiff, the First Division of the Court of
Appeals reversed the decision of the trial court;
ratiocinating and ordering thus:
"Therefore, the evidence on record having established
plaintiff-appellant's right to receive 100 piculs of sugar
annually out of the produce of Lot No. 1392;
defendants-appellee's obligation under Aleja Belleza's
codicil, as heirs of the modal heir, Jorge Rabadilla, to
deliver such amount of sugar to plaintiff-appellant;
defendants-appellee's admitted non-compliance with
said obligation since 1985; and, the punitive
consequences enjoined by both the codicil and the Civil
Code, of seizure of Lot No. 1392 and its reversion to the
estate of Aleja Belleza in case of such non-compliance,
this Court deems it proper to order the reconveyance of
title over Lot No. 1392 from the estates of Jorge
Rabadilla to the estate of Aleja Belleza. However,
plaintiff-appellant must institute separate proceedings
to re-open Aleja Belleza's estate, secure the
appointment of an administrator, and distribute Lot No.
1392 to Aleja Belleza's legal heirs in order to enforce her
right, reserved to her by the codicil, to receive her
legacy of 100 piculs of sugar per year out of the produce
of Lot No. 1392 until she dies.
Accordingly, the decision appealed from is SET ASIDE
and another one entered ordering defendants-
appellees, as heirs of Jorge Rabadilla, to reconvey title
over Lot No. 1392, together with its fruits and interests,
to the estate of Aleja Belleza.
60
SO ORDERED."[7]
Dissatisfied with the aforesaid disposition by the Court
of Appeals, petitioner found his way to this Court via the
present petition, contending that the Court of Appeals
erred in ordering the reversion of Lot 1392 to the estate
of the testatrix Aleja Belleza on the basis of paragraph
6 of the Codicil, and in ruling that the testamentary
institution of Dr. Jorge Rabadilla is a modal institution
within the purview of Article 882 of the New Civil Code.
The petition is not impressed with merit.
Petitioner contends that the Court of Appeals erred in
resolving the appeal in accordance with Article 882 of
the New Civil Code on modal institutions and in
deviating from the sole issue raised which is the absence
or prematurity of the cause of action. Petitioner
maintains that Article 882 does not find application as
there was no modal institution and the testatrix
intended a mere simple substitution - i.e. the instituted
heir, Dr. Jorge Rabadilla, was to be substituted by the
testatrix's "near descendants" should the obligation to
deliver the fruits to herein private respondent be not
complied with. And since the testatrix died single and
without issue, there can be no valid substitution and
such testamentary provision cannot be given any effect.
The petitioner theorizes further that there can be no
valid substitution for the reason that the substituted
heirs are not definite, as the substituted heirs are
merely referred to as "near descendants" without a
definite identity or reference as to who are the "near
descendants" and therefore, under Articles 843[8] and
845[9] of the New Civil Code, the substitution should be
deemed as not written.
The contentions of petitioner are untenable. Contrary to
his supposition that the Court of Appeals deviated from
the issue posed before it, which was the propriety of the
dismissal of the complaint on the ground of prematurity
of cause of action, there was no such deviation. The
Court of Appeals found that the private respondent had
a cause of action against the petitioner. The disquisition
made on modal institution was, precisely, to stress that
the private respondent had a legally demandable right
against the petitioner pursuant to subject Codicil; on
which issue the Court of Appeals ruled in accordance
with law.
It is a general rule under the law on succession that
successional rights are transmitted from the moment of
death of the decedent[10] and compulsory heirs are
called to succeed by operation of law. The legitimate
children and descendants, in relation to their legitimate
parents, and the widow or widower, are compulsory
heirs.[11] Thus, the petitioner, his mother and sisters,
as compulsory heirs of the instituted heir, Dr. Jorge
Rabadilla, succeeded the latter by operation of law,
without need of further proceedings, and the
successional rights were transmitted to them from the
moment of death of the decedent, Dr. Jorge Rabadilla.
Under Article 776 of the New Civil Code, inheritance
includes all the property, rights and obligations of a
person, not extinguished by his death. Conformably,
whatever rights Dr. Jorge Rabadilla had by virtue of
subject Codicil were transmitted to his forced heirs, at
the time of his death. And since obligations not
extinguished by death also form part of the estate of the
decedent; corollarily, the obligations imposed by the
Codicil on the deceased Dr. Jorge Rabadilla, were
likewise transmitted to his compulsory heirs upon his
death.
In the said Codicil, testatrix Aleja Belleza devised Lot
No. 1392 to Dr. Jorge Rabadilla, subject to the condition
that the usufruct thereof would be delivered to the
herein private respondent every year. Upon the death
of Dr. Jorge Rabadilla, his compulsory heirs succeeded
to his rights and title over the said property, and they
also assumed his (decedent's) obligation to deliver the
fruits of the lot involved to herein private respondent.
Such obligation of the instituted heir reciprocally
corresponds to the right of private respondent over the
usufruct, the fulfillment or performance of which is now
being demanded by the latter through the institution of
the case at bar. Therefore, private respondent has a
cause of action against petitioner and the trial court
erred in dismissing the complaint below.
Petitioner also theorizes that Article 882 of the New Civil
Code on modal institutions is not applicable because
what the testatrix intended was a substitution - Dr.
Jorge Rabadilla was to be substituted by the testatrix's
near descendants should there be noncompliance with
the obligation to deliver the piculs of sugar to private
respondent.
Again, the contention is without merit.
Substitution is the designation by the testator of a
person or persons to take the place of the heir or heirs
first instituted. Under substitutions in general, the
testator may either (1) provide for the designation of
another heir to whom the property shall pass in case the
original heir should die before him/her, renounce the
inheritance or be incapacitated to inherit, as in a simple
substitution,[12] or (2) leave his/her property to one
person with the express charge that it be transmitted
subsequently to another or others, as in a
fideicommissary substitution.[13] The Codicil sued upon
contemplates neither of the two.
In simple substitutions, the second heir takes the
inheritance in default of the first heir by reason of
incapacity, predecease or renunciation.[14] In the case
under consideration, the provisions of subject Codicil do
not provide that should Dr. Jorge Rabadilla default due
to predecease, incapacity or renunciation, the testatrix's
near descendants would substitute him. What the
Codicil provides is that, should Dr. Jorge Rabadilla or his
heirs not fulfill the conditions imposed in the Codicil, the
property referred to shall be seized and turned over to
the testatrix's near descendants.
Neither is there a fideicommissary substitution here and
on this point, petitioner is correct. In a fideicommissary
substitution, the first heir is strictly mandated to
preserve the property and to transmit the same later to
61
the second heir.[15] In the case under consideration,
the instituted heir is in fact allowed under the Codicil to
alienate the property provided the negotiation is with
the near descendants or the sister of the testatrix. Thus,
a very important element of a fideicommissary
substitution is lacking; the obligation clearly imposing
upon the first heir the preservation of the property and
its transmission to the second heir. "Without this
obligation to preserve clearly imposed by the testator in
his will, there is no fideicommissary substitution."[16]
Also, the near descendants' right to inherit from the
testatrix is not definite. The property will only pass to
them should Dr. Jorge Rabadilla or his heirs not fulfill
the obligation to deliver part of the usufruct to private
respondent.
Another important element of a fideicommissary
substitution is also missing here. Under Article 863, the
second heir or the fideicommissary to whom the
property is transmitted must not be beyond one degree
from the first heir or the fiduciary. A fideicommissary
substitution is therefore, void if the first heir is not
related by first degree to the second heir.[17] In the
case under scrutiny, the near descendants are not at all
related to the instituted heir, Dr. Jorge Rabadilla.
The Court of Appeals erred not in ruling that the
institution of Dr. Jorge Rabadilla under subject Codicil is
in the nature of a modal institution and therefore, Article
882 of the New Civil Code is the provision of law in point.
Articles 882 and 883 of the New Civil Code provide:
Art. 882. The statement of the object of the institution
or the application of the property left by the testator, or
the charge imposed on him, shall not be considered as
a condition unless it appears that such was his intention.
That which has been left in this manner may be claimed
at once provided that the instituted heir or his heirs give
security for compliance with the wishes of the testator
and for the return of anything he or they may receive,
together with its fruits and interests, if he or they should
disregard this obligation.
Art. 883. When without the fault of the heir, an
institution referred to in the preceding article cannot
take effect in the exact manner stated by the testator,
it shall be complied with in a manner most analogous to
and in conformity with his wishes.
The institution of an heir in the manner prescribed in
Article 882 is what is known in the law of succession as
an institucion sub modo or a modal institution. In a
modal institution, the testator states (1) the object of
the institution, (2) the purpose or application of the
property left by the testator, or (3) the charge imposed
by the testator upon the heir.[18] A "mode" imposes an
obligation upon the heir or legatee but it does not affect
the efficacy of his rights to the succession.[19] On the
other hand, in a conditional testamentary disposition,
the condition must happen or be fulfilled in order for the
heir to be entitled to succeed the testator. The condition
suspends but does not obligate; and the mode obligates
but does not suspend.[20] To some extent, it is similar
to a resolutory condition.[21]
From the provisions of the Codicil litigated upon, it can
be gleaned unerringly that the testatrix intended that
subject property be inherited by Dr. Jorge Rabadilla. It
is likewise clearly worded that the testatrix imposed an
obligation on the said instituted heir and his successors-
in-interest to deliver one hundred piculs of sugar to the
herein private respondent, Marlena Coscolluela Belleza,
during the lifetime of the latter. However, the testatrix
did not make Dr. Jorge Rabadilla's inheritance and the
effectivity of his institution as a devisee, dependent on
the performance of the said obligation. It is clear,
though, that should the obligation be not complied with,
the property shall be turned over to the testatrix's near
descendants. The manner of institution of Dr. Jorge
Rabadilla under subject Codicil is evidently modal in
nature because it imposes a charge upon the instituted
heir without, however, affecting the efficacy of such
institution.
Then too, since testamentary dispositions are generally
acts of liberality, an obligation imposed upon the heir
should not be considered a condition unless it clearly
appears from the Will itself that such was the intention
of the testator. In case of doubt, the institution should
be considered as modal and not conditional.[22]
Neither is there tenability in the other contention of
petitioner that the private respondent has only a right
of usufruct but not the right to seize the property itself
from the instituted heir because the right to seize was
expressly limited to violations by the buyer, lessee or
mortgagee.
In the interpretation of Wills, when an uncertainty arises
on the face of the Will, as to the application of any of its
provisions, the testator's intention is to be ascertained
from the words of the Will, taking into consideration the
circumstances under which it was made.[23] Such
construction as will sustain and uphold the Will in all its
parts must be adopted.[24]
Subject Codicil provides that the instituted heir is under
obligation to deliver One Hundred (100) piculs of sugar
yearly to Marlena Belleza Coscuella. Such obligation is
imposed on the instituted heir, Dr. Jorge Rabadilla, his
heirs, and their buyer, lessee, or mortgagee should they
sell, lease, mortgage or otherwise negotiate the
property involved. The Codicil further provides that in
the event that the obligation to deliver the sugar is not
respected, Marlena Belleza Coscuella shall seize the
property and turn it over to the testatrix's near
descendants. The non-performance of the said
obligation is thus with the sanction of seizure of the
property and reversion thereof to the testatrix's near
descendants. Since the said obligation is clearly imposed
by the testatrix, not only on the instituted heir but also
on his successors-in-interest, the sanction imposed by
the testatrix in case of non-fulfillment of said obligation
should equally apply to the instituted heir and his
successors-in-interest.
Similarly unsustainable is petitioner's submission that
by virtue of the amicable settlement, the said obligation
imposed by the Codicil has been assumed by the lessee,
62
and whatever obligation petitioner had become the
obligation of the lessee; that petitioner is deemed to
have made a substantial and constructive compliance of
his obligation through the consummated settlement
between the lessee and the private respondent, and
having consummated a settlement with the petitioner,
the recourse of the private respondent is the fulfillment
of the obligation under the amicable settlement and not
the seizure of subject property.

Suffice it to state that a Will is a personal, solemn,

revocable and free act by which a person disposes of his
property, to take effect after his death.[25] Since the
Will expresses the manner in which a person intends
how his properties be disposed, the wishes and desires
of the testator must be strictly followed. Thus, a Will
cannot be the subject of a compromise agreement which
would thereby defeat the very purpose of making a Will.

WHEREFORE, the petition is hereby DISMISSED and the

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

SO ORDERED.

63
Alvarez vs. IAC (G.R. No. 68053, May 7, 1990)
G.R. No. L-68053 May 7, 1990
LAURA ALVAREZ, FLORA ALVAREZ and RAYMUNDO
ALVAREZ, petitioners,
vs.
THE HONORABLE INTERMEDIATE APELLATE COURT and
JESUS YANES, ESTELITA YANES, ANTONIO YANES,
ROSARIO YANES, and ILUMINADO YANES, respondents.
Francisco G. Banzon for petitioner.
Renecio R. Espiritu for private respondents.
FERNAN, C.J.:
This is a petition for review on certiorari seeking the
reversal of: (a) the decision of the Fourth Civil Cases
Division of the Intermediate Appellate Court dated
August 31, 1983 in AC-G.R. CV No. 56626 entitled
"Jesus Yanes et al. v. Dr. Rodolfo Siason et al." affirming
the decision dated July 8, 1974 of the Court of First
Instance of Negros Occidental insofar as it ordered the
petitioners to pay jointly and severally the private
respondents the sum of P20,000.00 representing the
actual value of Lots Nos. 773-A and 773-B of the
cadastral survey of Murcia, Negros Occidental and
reversing the subject decision insofar as it awarded the
sums of P2,000.00, P5,000.00 and P2,000.00 as actual
damages, moral damages and attorney's fees,
respectively and (b) the resolution of said appellate
court dated May 30, 1984, denying the motion for
reconsideration of its decision.
The real properties involved are two parcels of land
identified as Lot 773-A and Lot 773-B which were
originally known as Lot 773 of the cadastral survey of
Murcia, Negros Occidental. Lot 773, with an area of
156,549 square meters, was registered in the name of
the heirs of Aniceto Yanes under Original Certificate of
Title No. RO-4858 (8804) issued on October 9, 1917 by
the Register of Deeds of Occidental Negros (Exh. A).
Aniceto Yanes was survived by his children, Rufino,
Felipe and Teodora. Herein private respondents,
Estelita, Iluminado and Jesus, are the children of Rufino
who died in 1962 while the other private respondents,
Antonio and Rosario Yanes, are children of Felipe.
Teodora was survived by her child, Jovita (Jovito) Alib.
1 It is not clear why the latter is not included as a party
in this case.
Aniceto left his children Lots 773 and 823. Teodora
cultivated only three hectares of Lot 823 as she could
not attend to the other portions of the two lots which
had a total area of around twenty-four hectares. The
record does not show whether the children of Felipe also
cultivated some portions of the lots but it is established
that Rufino and his children left the province to settle in
other places as a result of the outbreak of World War II.
According to Estelita, from the "Japanese time up to
peace time", they did not visit the parcels of land in
question but "after liberation", when her brother went
there to get their share of the sugar produced therein,
he was informed that Fortunato Santiago, Fuentebella
(Puentevella) and Alvarez were in possession of Lot 773.
2
It is on record that on May 19, 1938, Fortunato D.
Santiago was issued Transfer Certificate of Title No. RF
2694 (29797) covering Lot 773-A with an area of 37,818
square meters. 3 TCT No. RF 2694 describes Lot 773-A
as a portion of Lot 773 of the cadastral survey of Murcia
and as originally registered under OCT No. 8804.
The bigger portion of Lot 773 with an area of 118,831
square meters was also registered in the name of
Fortunato D. Santiago on September 6, 1938 Under TCT
No. RT-2695 (28192 ). 4 Said transfer certificate of title
also contains a certification to the effect that Lot 773-B
was originally registered under OCT No. 8804.
On May 30, 1955, Santiago sold Lots 773-A and 773-B
to Monico B. Fuentebella, Jr. in consideration of the sum
of P7,000.00. 5 Consequently, on February 20, 1956,
TCT Nos. T-19291 and T-19292 were issued in
Fuentebella's name. 6
After Fuentebella's death and during the settlement of
his estate, the administratrix thereof (Arsenia R. Vda.
de Fuentebella, his wife) filed in Special Proceedings No.
4373 in the Court of First Instance of Negros Occidental,
a motion requesting authority to sell Lots 773-A and
773-B. 7 By virtue of a court order granting said motion,
8 on March 24, 1958, Arsenia Vda. de Fuentebella sold
said lots for P6,000.00 to Rosendo Alvarez. 9 Hence, on
April 1, 1958 TCT Nos. T-23165 and T-23166 covering
Lots 773-A and 773-B were respectively issued to
Rosendo Alvarez. 10
Two years later or on May 26, 1960, Teodora Yanes and
the children of her brother Rufino, namely, Estelita,
Iluminado and Jesus, filed in the Court of First Instance
of Negros Occidental a complaint against Fortunato
Santiago, Arsenia Vda. de Fuentebella, Alvarez and the
Register of Deeds of Negros Occidental for the "return"
of the ownership and possession of Lots 773 and 823.
They also prayed that an accounting of the produce of
the land from 1944 up to the filing of the complaint be
made by the defendants, that after court approval of
said accounting, the share or money equivalent due the
plaintiffs be delivered to them, and that defendants be
ordered to pay plaintiffs P500.00 as damages in the
form of attorney's fees. 11
During the pendency in court of said case or on
November 13, 1961, Alvarez sold Lots 773-A, 773-B and
another lot for P25,000.00 to Dr. Rodolfo Siason. 12
Accordingly, TCT Nos. 30919 and 30920 were issued to
Siason, 13 who thereafter, declared the two lots in his
name for assessment purposes. 14
Meanwhile, on November 6, 1962, Jesus Yanes, in his
own behalf and in behalf of the other plaintiffs, and
assisted by their counsel, filed a manifestation in Civil
Case No. 5022 stating that the therein plaintiffs
64
"renounce, forfeit and quitclaims (sic) any claim,
monetary or otherwise, against the defendant Arsenia
Vda. de Fuentebella in connection with the above-
entitled case." 15
On October 11, 1963, a decision was rendered by the
Court of First Instance of Negros Occidental in Civil Case
No. 5022, the dispositive portion of which reads:
WHEREFORE, judgment is rendered, ordering the
defendant Rosendo Alvarez to reconvey to the plaintiffs
lots Nos. 773 and 823 of the Cadastral Survey of Murcia,
Negros Occidental, now covered by Transfer Certificates
of Title Nos. T-23165 and T-23166 in the name of said
defendant, and thereafter to deliver the possession of
said lots to the plaintiffs. No special pronouncement as
to costs.
SO ORDERED. 16
It will be noted that the above-mentioned manifestation
of Jesus Yanes was not mentioned in the aforesaid
decision.
However, execution of said decision proved unsuccessful
with respect to Lot 773. In his return of service dated
October 20, 1965, the sheriff stated that he discovered
that Lot 773 had been subdivided into Lots 773-A and
773-B; that they were "in the name" of Rodolfo Siason
who had purchased them from Alvarez, and that Lot 773
could not be delivered to the plaintiffs as Siason was
"not a party per writ of execution." 17
The execution of the decision in Civil Case No. 5022
having met a hindrance, herein private respondents (the
Yaneses) filed on July 31, 1965, in the Court of First
Instance of Negros Occidental a petition for the issuance
of a new certificate of title and for a declaration of nullity
of TCT Nos. T-23165 and T-23166 issued to Rosendo
Alvarez.18 Thereafter, the court required Rodolfo Siason
to produce the certificates of title covering Lots 773 and
823.
Expectedly, Siason filed a manifestation stating that he
purchased Lots 773-A, 773-B and 658, not Lots 773 and
823, "in good faith and for a valuable consideration
without any knowledge of any lien or encumbrances
against said properties"; that the decision in the
cadastral proceeding 19 could not be enforced against
him as he was not a party thereto; and that the decision
in Civil Case No. 5022 could neither be enforced against
him not only because he was not a party-litigant therein
but also because it had long become final and executory.
20 Finding said manifestation to be well-founded, the
cadastral court, in its order of September 4, 1965,
nullified its previous order requiring Siason to surrender
the certificates of title mentioned therein. 21
In 1968, the Yaneses filed an ex-parte motion for the
issuance of an alias writ of execution in Civil Case No.
5022. Siason opposed it. 22 In its order of September
28, 1968 in Civil Case No. 5022, the lower court, noting
that the Yaneses had instituted another action for the
recovery of the land in question, ruled that at the
judgment therein could not be enforced against Siason
as he was not a party in the case. 23
The action filed by the Yaneses on February 21, 1968
was for recovery of real property with damages. 24
Named defendants therein were Dr. Rodolfo Siason,
Laura Alvarez, Flora Alvarez, Raymundo Alvarez and the
Register of Deeds of Negros Occidental. The Yaneses
prayed for the cancellation of TCT Nos. T-19291 and
19292 issued to Siason (sic) for being null and void; the
issuance of a new certificate of title in the name of the
Yaneses "in accordance with the sheriffs return of
service dated October 20, 1965;" Siason's delivery of
possession of Lot 773 to the Yaneses; and if, delivery
thereof could not be effected, or, if the issuance of a
new title could not be made, that the Alvarez and Siason
jointly and severally pay the Yaneses the sum of
P45,000.00. They also prayed that Siason render an
accounting of the fruits of Lot 773 from November 13,
1961 until the filing of the complaint; and that the
defendants jointly and severally pay the Yaneses moral
damages of P20,000.00 and exemplary damages of
P10,000.00 plus attorney's fees of P4, 000.00. 25
In his answer to the complaint, Siason alleged that the
validity of his titles to Lots 773-A and 773-B, having
been passed upon by the court in its order of September
4, 1965, had become res judicata and the Yaneses were
estopped from questioning said order. 26 On their part,
the Alvarez stated in their answer that the Yaneses'
cause of action had been "barred by res judicata, statute
of limitation and estoppel." 27
In its decision of July 8, 1974, the lower court found that
Rodolfo Siason, who purchased the properties in
question thru an agent as he was then in Mexico
pursuing further medical studies, was a buyer in good
faith for a valuable consideration. Although the Yaneses
were negligent in their failure to place a notice of lis
pendens "before the Register of Deeds of Negros
Occidental in order to protect their rights over the
property in question" in Civil Case No. 5022, equity
demanded that they recover the actual value of the land
because the sale thereof executed between Alvarez and
Siason was without court approval. 28 The dispositive
portion of the decision states:
IN VIEW OF THE FOREGOING CONSIDERATION,
judgment is hereby rendered in the following manner:
A. The case against the defendant Dr. Rodolfo Siason
and the Register of Deeds are (sic) hereby dismmissed,
B. The defendants, Laura, Flora and Raymundo, all
surnamed Alvarez being the legitimate children of the
deceased Rosendo Alvarez are hereby ordered to pay
jointly and severally the plaintiffs the sum of P20,000.00
representing the actual value of Lots Nos. 773-A and
773-B of Murcia Cadastre, Negros Occidental; the sum
of P2,000.00 as actual damages suffered by the
plaintiff; the sum of P5,000.00 representing moral
damages and the sum of P2.000 as attorney's fees, all
with legal rate of interest from date of the filing of this
complaint up to final payment.
65
C. The cross-claim filed by the defendant Dr. Rodolfo
Siason against the defendants, Laura, Flora and
Raymundo, all surnamed Alvarez is hereby dismissed.
D. Defendants, Laura, Flora and Raymundo, all
surnamed Alvarez are hereby ordered to pay the costs
of this suit.
SO ORDERED. 29
The Alvarez appealed to the then Intermediate Appellate
Court which in its decision of August 31, 1983 30
affirmed the lower court's decision "insofar as it ordered
defendants-appellants to pay jointly and severally the
plaintiffs-appellees the sum of P20,000.00 representing
the actual value of Lots Nos. 773-A and 773-B of the
cadastral survey of Murcia, Negros Occidental, and is
reversed insofar as it awarded the sums of P2,000.00,
P5,000.00 and P2,000.00 as actual damages, moral
damages and attorney's fees, respectively." 31 The
dispositive portion of said decision reads:
WHEREFORE, the decision appealed from is affirmed
insofar as it ordered defendants-appellants to pay
jointly and severally the plaintiffs- appellees the sum of
P20,000.00 representing the actual value of Lots Nos.
773-A and 773-B of the cadastral survey of Murcia,
Negros Occidental, and is reversed insofar as it awarded
the sums of P2,000.00, P5,000.00 and P2,000.00 as
actual damages, moral damages and attorney's fees,
respectively. No costs.
SO ORDERED. 32
Finding no cogent reason to grant appellants motion for
reconsideration, said appellate court denied the same.
Hence, the instant petition. ln their memorandum
petitioners raised the following issues:
1. Whethere or not the defense of prescription and
estoppel had been timely and properly invoked and
raised by the petitioners in the lower court.
2. Whether or not the cause and/or causes of action of
the private respondents, if ever there are any, as
alleged in their complaint dated February 21, 1968
which has been docketed in the trial court as Civil Case
No. 8474 supra, are forever barred by statute of
limitation and/or prescription of action and estoppel.
3. Whether or not the late Rosendo Alvarez, a defendant
in Civil Case No. 5022, supra and father of the
petitioners become a privy and/or party to the waiver
(Exhibit 4-defendant Siason) in Civil Case No. 8474,
supra where the private respondents had unqualifiedly
and absolutely waived, renounced and quitclaimed all
their alleged rights and interests, if ever there is any, on
Lots Nos. 773-A and 773-B of Murcia Cadastre as
appearing in their written manifestation dated
November 6, 1962 (Exhibits "4" Siason) which had not
been controverted or even impliedly or indirectly denied
by them.
4. Whether or not the liability or liabilities of Rosendo
Alvarez arising from the sale of Lots Nos. 773-A and
773-B of Murcia Cadastre to Dr. Rodolfo Siason, if ever
there is any, could be legally passed or transmitted by
operations (sic) of law to the petitioners without
violation of law and due process . 33
The petition is devoid of merit.
As correctly ruled by the Court of Appeals, it is
powerless and for that matter so is the Supreme Court,
to review the decision in Civil Case No. 5022 ordering
Alvarez to reconvey the lots in dispute to herein private
respondents. Said decision had long become final and
executory and with the possible exception of Dr. Siason,
who was not a party to said case, the decision in Civil
Case No. 5022 is the law of the case between the parties
thereto. It ended when Alvarez or his heirs failed to
appeal the decision against them. 34
Thus, it is axiomatic that when a right or fact has been
judicially tried and determined by a court of competent
jurisdiction, so long as it remains unreversed, it should
be conclusive upon the parties and those in privity with
them in law or estate. 35 As consistently ruled by this
Court, every litigation must come to an end. Access to
the court is guaranteed. But there must be a limit to it.
Once a litigant's right has been adjudicated in a valid
final judgment of a competent court, he should not be
granted an unbridled license to return for another try.
The prevailing party should not be harassed by
subsequent suits. For, if endless litigation were to be
allowed, unscrupulous litigations will multiply in number
to the detriment of the administration of justice. 36
There is no dispute that the rights of the Yaneses to the
properties in question have been finally adjudicated in
Civil Case No. 5022. As found by the lower court, from
the uncontroverted evidence presented, the Yaneses
have been illegally deprived of ownership and
possession of the lots in question. 37 In fact, Civil Case
No. 8474 now under review, arose from the failure to
execute Civil Case No. 5022, as subject lots can no
longer be reconveyed to private respondents Yaneses,
the same having been sold during the pendency of the
case by the petitioners' father to Dr. Siason who did not
know about the controversy, there being no lis pendens
annotated on the titles. Hence, it was also settled
beyond question that Dr. Siason is a purchaser in good
faith.
Under the circumstances, the trial court did not annul
the sale executed by Alvarez in favor of Dr. Siason on
November 11, 1961 but in fact sustained it. The trial
court ordered the heirs of Rosendo Alvarez who lost in
Civil Case No. 5022 to pay the plaintiffs (private
respondents herein) the amount of P20,000.00
representing the actual value of the subdivided lots in
dispute. It did not order defendant Siason to pay said
amount. 38
As to the propriety of the present case, it has long been
established that the sole remedy of the landowner
whose property has been wrongfully or erroneously
registered in another's name is to bring an ordinary
action in the ordinary court of justice for reconveyance
or, if the property has passed into the hands of an
66
innocent purchaser for value, for damages. 39 "It is one
thing to protect an innocent third party; it is entirely a
different matter and one devoid of justification if deceit
would be rewarded by allowing the perpetrator to enjoy
the fruits of his nefarious decided As clearly revealed by
the undeviating line of decisions coming from this Court,
such an undesirable eventuality is precisely sought to be
guarded against." 40
The issue on the right to the properties in litigation
having been finally adjudicated in Civil Case No. 5022 in
favor of private respondents, it cannot now be reopened
in the instant case on the pretext that the defenses of
prescription and estoppel have not been properly
considered by the lower court. Petitioners could have
appealed in the former case but they did not. They have
therefore foreclosed their rights, if any, and they cannot
now be heard to complain in another case in order to
defeat the enforcement of a judgment which has longing
become final and executory.
Petitioners further contend that the liability arising from
the sale of Lots No. 773-A and 773-B made by Rosendo
Alvarez to Dr. Rodolfo Siason should be the sole liability
of the late Rosendo Alvarez or of his estate, after his
death.
Such contention is untenable for it overlooks the
doctrine obtaining in this jurisdiction on the general
transmissibility of the rights and obligations of the
deceased to his legitimate children and heirs. Thus, the
pertinent provisions of the Civil Code state:
Art. 774. Succession is a mode of acquisition by virtue
of which the property, rights and obligations to the
extent of the value of the inheritance, of a person are
transmitted through his death to another or others
either by his will or by operation of law.
Art. 776. The inheritance includes all the property,
rights and obligations of a person which are not
extinguished by his death.
Art. 1311. Contract stake effect only between the
parties, their assigns and heirs except in case where the
rights and obligations arising from the contract are not
transmissible by their nature, or by stipulation or by
provision of law. The heir is not liable beyond the value
of the property received from the decedent.
Under our law, therefore. the general rule is that a
party's contractual rights and obligations are
transmissible to the successors.
The rule is a consequence of the progressive
"depersonalization" of patrimonial rights and duties
that, as observed by Victorio Polacco has characterized
the history of these institutions. From the Roman
concept of a relation from person to person, the
obligation has evolved into a relation from patrimony to
patrimony with the persons occupying only a
representative position, barring those rare cases where
the obligation is strictly personal, i.e., is contracted
intuitu personae, in consideration of its performance by
a specific person and by no other.
xxx xxx xxx
Petitioners being the heirs of the late Rosendo Alvarez,
they cannot escape the legal consequences of their
father's transaction, which gave rise to the present claim
for damages. That petitioners did not inherit the
property involved herein is of no moment because by
legal fiction, the monetary equivalent thereof devolved
into the mass of their father's hereditary estate, and we
have ruled that the hereditary assets are always liable
in their totality for the payment of the debts of the
estate. 42
It must, however, be made clear that petitioners are
liable only to the extent of the value of their inheritance.
With this clarification and considering petitioners'
admission that there are other properties left by the
deceased which are sufficient to cover the amount
adjudged in favor of private respondents, we see no
cogent reason to disturb the findings and conclusions of
the Court of Appeals.
WHEREFORE, subject to the clarification herein above
stated, the assailed decision of the Court of Appeals is
hereby AFFIRMED. Costs against petitioners.
SO ORDERED.

As explained by this Court through Associate Justice

J.B.L. Reyes in the case of Estate of Hemady vs. Luzon
Surety Co., Inc. 41

The binding effect of contracts upon the heirs of the

deceased party is not altered by the provision of our
Rules of Court that money debts of a deceased must be
liquidated and paid from his estate before the residue is
distributed among said heirs (Rule 89). The reason is
that whatever payment is thus made from the state is
ultimately a payment by the heirs or distributees, since
the amount of the paid claim in fact diminishes or
reduces the shares that the heirs would have been
entitled to receive.

67
68
Pamplona vs. Moreto (96 SCRA 775)
G.R. No. L-33187 March 31, 1980
CORNELIO PAMPLONA alias GEMINIANO PAMPLONA and
APOLONIA ONTE, petitioners,
vs.
VIVENCIO MORETO, VICTOR MORETO, ELIGIO
MORETO, MARCELO MORETO, PAULINA MORETO,
ROSARIO MORETO, MARTA MORETO, SEVERINA
MENDOZA, PABLO MENDOZA, LAZARO MENDOZA,
VICTORIA TUIZA, JOSEFINA MORETO, LEANDRO
MORETO and LORENZO MENDOZA, respondents.
E.P. Caguioa for petitioners.
Benjamin C. Yatco for respondents.
GUERRERO, J.:
This is a petition for certiorari by way of appeal from the
decision of the Court of Appeals 1 in CA-G.R. No. 35962-
R, entitled "Vivencio Moreto, et al., Plaintiff-Appellees
vs. Cornelio Pamplona, et al., Defendants-Appellants,"
affirming the decision of the Court of First Instance of
Laguna, Branch I at Biñan.
The facts, as stated in the decision appealed from, show
that:
Flaviano Moreto and Monica Maniega were husband and
wife. During their marriage, they acquired adjacent lots
Nos. 1495, 4545, and 1496 of the Calamba Friar Land
Estate, situated in Calamba, Laguna, containing 781-
544 and 1,021 square meters respectively and covered
by certificates of title issued in the name of "Flaviano
Moreto, married to Monica Maniega."
The spouses Flaviano Moreto and Monica Maniega begot
during their marriage six (6) children, namely, Ursulo,
Marta, La Paz, Alipio, Pablo, and Leandro, all surnamed
Moreto.
Ursulo Moreto died intestate on May 24, 1959 leaving as
his heirs herein plaintiffs Vivencio, Marcelo, Rosario,
Victor, Paulina, Marta and Eligio, all surnamed Moreto.
Marta Moreto died also intestate on April 30, 1938
leaving as her heir plaintiff Victoria Tuiza.
La Paz Moreto died intestate on July 17, 1954 leaving
the following heirs, namely, herein plaintiffs Pablo,
Severina, Lazaro, and Lorenzo, all surnamed Mendoza.
Alipio Moreto died intestate on June 30, 1943 leaving as
his heir herein plaintiff Josefina Moreto.
Pablo Moreto died intestate on April 25, 1942 leaving no
issue and as his heirs his brother plaintiff Leandro
Moreto and the other plaintiffs herein.
On May 6, 1946, Monica Maniega died intestate in
Calamba, Laguna.
On July 30, 1952, or more than six (6) years after the
death of his wife Monica Maniega, Flaviano Moreto,
without the consent of the heirs of his said deceased
wife Monica, and before any liquidation of the conjugal
partnership of Monica and Flaviano could be effected,
executed in favor of Geminiano Pamplona, married to
defendant Apolonia Onte, the deed of absolute sale
(Exh. "1") covering lot No. 1495 for P900.00. The deed
of sale (Exh. "1") contained a description of lot No. 1495
as having an area of 781 square meters and covered by
transfer certificate of title No. 14570 issued in the name
of Flaviano Moreto, married to Monica Maniega,
although the lot was acquired during their marriage. As
a result of the sale, the said certificate of title was
cancelled and a new transfer certificate of title No. T-
5671 was issued in the name of Geminiano Pamplona
married to Apolonia Onte (Exh. "A").
After the execution of the above-mentioned deed of sale
(Exh. "1"), the spouses Geminiano Pamplona and
Apolonia Onte constructed their house on the eastern
part of lot 1496 as Flaviano Moreto, at the time of the
sale, pointed to it as the land which he sold to
Geminiano Pamplona. Shortly thereafter, Rafael
Pamplona, son of the spouses Geminiano Pamplona and
Apolonia Onte, also built his house within lot 1496 about
one meter from its boundary with the adjoining lot. The
vendor Flaviano Moreto and the vendee Geminiano
Pamplona thought all the time that the portion of 781
square meters which was the subject matter of their sale
transaction was No. 1495 and so lot No. 1495 appears
to be the subject matter in the deed of sale (Exh. "1")
although the fact is that the said portion sold thought of
by the parties to be lot No. 1495 is a part of lot No.
1496.
From 1956 to 1960, the spouses Geminiano Pamplona
and Apolonio Onte enlarged their house and they even
constructed a piggery corral at the back of their said
house about one and one-half meters from the eastern
boundary of lot 1496.
On August 12, 1956, Flaviano Moreto died intestate. In
1961, the plaintiffs demanded on the defendants to
vacate the premises where they had their house and
piggery on the ground that Flaviano Moreto had no right
to sell the lot which he sold to Geminiano Pamplona as
the same belongs to the conjugal partnership of Flaviano
and his deceased wife and the latter was already dead
when the sale was executed without the consent of the
plaintiffs who are the heirs of Monica. The spouses
Geminiano Pamplona and Apolonia Onte refused to
vacate the premises occupied by them and hence, this
suit was instituted by the heirs of Monica Maniega
seeking for the declaration of the nullity of the deed of
sale of July 30, 1952 above-mentioned as regards one-
half of the property subject matter of said deed; to
declare the plaintiffs as the rightful owners of the other
half of said lot; to allow the plaintiffs to redeem the one-
half portion thereof sold to the defendants. "After
payment of the other half of the purchase price"; to
order the defendants to vacate the portions occupied by
them; to order the defendants to pay actual and moral
damages and attorney's fees to the plaintiffs; to order
69
the defendants to pay plaintiffs P120.00 a year from
August 1958 until they have vacated the premises
occupied by them for the use and occupancy of the
same.
The defendants claim that the sale made by Flaviano
Moreto in their favor is valid as the lot sold is registered
in the name of Flaviano Moreto and they are purchasers
believing in good faith that the vendor was the sole
owner of the lot sold.
After a relocation of lots 1495, 1496 and 4545 made by
agreement of the parties, it was found out that there
was mutual error between Flaviano Moreto and the
defendants in the execution of the deed of sale because
while the said deed recited that the lot sold is lot No.
1495, the real intention of the parties is that it was a
portion consisting of 781 square meters of lot No. 1496
which was the subject matter of their sale transaction.
After trial, the lower court rendered judgment, the
dispositive part thereof being as follows:
WHEREFORE, judgment is hereby rendered for the
plaintiffs declaring the deed of absolute sale dated July
30, 1952 pertaining to the eastern portion of Lot 1496
covering an area of 781 square meters null and void as
regards the 390.5 square meters of which plaintiffs are
hereby declared the rightful owners and entitled to its
possession.
The sale is ordered valid with respect to the eastern one-
half (1/2) of 1781 square meters of Lot 1496 measuring
390.5 square meters of which defendants are declared
lawful owners and entitled to its possession.
After proper survey segregating the eastern one-half
portion with an area of 390.5 square meters of Lot 1496,
the defendants shall be entitled to a certificate of title
covering said portion and Transfer Certificate of Title No.
9843 of the office of the Register of Deeds of Laguna
shall be cancelled accordingly and new titles issued to
the plaintiffs and to the defendants covering their
respective portions.
Transfer Certificate of Title No. 5671 of the office of the
Register of Deeds of Laguna covering Lot No. 1495 and
registered in the name of Cornelio Pamplona, married to
Apolonia Onte, is by virtue of this decision ordered
cancelled. The defendants are ordered to surrender to
the office of the Register of Deeds of Laguna the owner's
duplicate of Transfer Certificate of Title No. 5671 within
thirty (30) days after this decision shall have become
final for cancellation in accordance with this decision.
Let copy of this decision be furnished the Register of
Deeds for the province of Laguna for his information and
guidance.
With costs against the defendants. 2
The defendants-appellants, not being satisfied with said
judgment, appealed to the Court of Appeals, which
affirmed the judgment, hence they now come to this
Court.
The fundamental and crucial issue in the case at bar is
whether under the facts and circumstances duly
established by the evidence, petitioners are entitled to
the full ownership of the property in litigation, or only
one-half of the same.
There is no question that when the petitioners
purchased the property on July 30, 1952 from Flaviano
Moreto for the price of P900.00, his wife Monica Maniega
had already been dead six years before, Monica having
died on May 6, 1946. Hence, the conjugal partnership of
the spouses Flaviano Moreto and Monica Maniega had
already been dissolved. (Article 175, (1) New Civil Code;
Article 1417, Old Civil Code). The records show that the
conjugal estate had not been inventoried, liquidated,
settled and divided by the heirs thereto in accordance
with law. The necessary proceedings for the liquidation
of the conjugal partnership were not instituted by the
heirs either in the testate or intestate proceedings of the
deceased spouse pursuant to Act 3176 amending
Section 685 of Act 190. Neither was there an extra-
judicial partition between the surviving spouse and the
heirs of the deceased spouse nor was an ordinary action
for partition brought for the purpose. Accordingly, the
estate became the property of a community between
the surviving husband, Flaviano Moreto, and his children
with the deceased Monica Maniega in the concept of a
co-ownership.
The community property of the marriage, at the
dissolution of this bond by the death of one of the
spouses, ceases to belong to the legal partnership and
becomes the property of a community, by operation of
law, between the surviving spouse and the heirs of the
deceased spouse, or the exclusive property of the
widower or the widow, it he or she be the heir of the
deceased spouse. Every co-owner shall have full
ownership of his part and in the fruits and benefits
derived therefrom, and he therefore may alienate,
assign or mortgage it, and even substitute another
person in its enjoyment, unless personal rights are in
question. (Marigsa vs. Macabuntoc, 17 Phil. 107)
In Borja vs. Addision, 44 Phil. 895, 906, the Supreme
Court said that "(t)here is no reason in law why the heirs
of the deceased wife may not form a partnership with
the surviving husband for the management and control
of the community property of the marriage and
conceivably such a partnership, or rather community of
property, between the heirs and the surviving husband
might be formed without a written agreement." In
Prades vs. Tecson, 49 Phil. 230, the Supreme Court held
that "(a)lthough, when the wife dies, the surviving
husband, as administrator of the community property,
has authority to sell the property with•ut the
concurrence of the children of the marriage,
nevertheless this power can be waived in favor of the
children, with the result of bringing about a conventional
ownership in common between the father and children
as to such property; and any one purchasing with
knowledge of the changed status of the property will
acquire only the undivided interest of those members of
the family who join in the act of conveyance.
70
It is also not disputed that immediately after the
execution of the sale in 1952, the vendees constructed
their house on the eastern part of Lot 1496 which the
vendor pointed out to them as the area sold, and two
weeks thereafter, Rafael who is a son of the vendees,
also built his house within Lot 1496. Subsequently, a
cemented piggery coral was constructed by the vendees
at the back of their house about one and one-half
meters from the eastern boundary of Lot 1496. Both
vendor and vendees believed all the time that the area
of 781 sq. meters subject of the sale was Lot No. 1495
which according to its title (T.C.T. No. 14570) contains
an area of 781 sq. meters so that the deed of sale
between the parties Identified and described the land
sold as Lot 1495. But actually, as verified later by a
surveyor upon agreement of the parties during the
proceedings of the case below, the area sold was within
Lot 1496.
Again, there is no dispute that the houses of the spouses
Cornelio Pamplona and Apolonia Onte as well as that of
their son Rafael Pamplona, including the concrete
piggery coral adjacent thereto, stood on the land from
1952 up to the filing of the complaint by the private
respondents on July 25, 1961, or a period of over nine
(9) years. And during said period, the private
respondents who are the heirs of Monica Maniega as well
as of Flaviano Moreto who also died intestate on August
12, 1956, lived as neighbors to the petitioner-vendees,
yet lifted no finger to question the occupation,
possession and ownership of the land purchased by the
Pamplonas, so that We are persuaded and convinced to
rule that private respondents are in estoppel by laches
to claim half of the property, in dispute as null and void.
Estoppel by laches is a rule of equity which bars a
claimant from presenting his claim when, by reason of
abandonment and negligence, he allowed a long time to
elapse without presenting the same. (International
Banking Corporation vs. Yared, 59 Phil. 92)
We have ruled that at the time of the sale in 1952, the
conjugal partnership was already dissolved six years
before and therefore, the estate became a co-ownership
between Flaviano Moreto, the surviving husband, and
the heirs of his deceased wife, Monica Maniega. Article
493 of the New Civil Code is applicable and it provides a
follows:
Art. 493. Each co-owner shall have the full ownership of
his part and of the fruits and benefits pertaining thereto,
and he may therefore alienate, assign or mortgage it,
and even substitute another person in its enjoyment,
except when personal rights are involve. But the effect
of the alienation or the mortgage, with respect to the
co-owners, shall be limited to the portion which may be
allotted to him in the division upon the termination of
the co-ownership.
We agree with the petitioner that there was a partial
partition of the co-ownership when at the time of the
sale Flaviano Moreto pointed out the area and location
of the 781 sq. meters sold by him to the petitioners-
vendees on which the latter built their house and also
that whereon Rafael, the son of petitioners likewise
erected his house and an adjacent coral for piggery.
Petitioners point to the fact that spouses Flaviano
Moreto and Monica Maniega owned three parcels of land
denominated as Lot 1495 having an area of 781 sq.
meters, Lot 1496 with an area of 1,021 sq. meters, and
Lot 4545 with an area of 544 sq. meters. The three lots
have a total area of 2,346 sq. meters. These three
parcels of lots are contiguous with one another as each
is bounded on one side by the other, thus: Lot 4545 is
bounded on the northeast by Lot 1495 and on the
southeast by Lot 1496. Lot 1495 is bounded on the west
by Lot 4545. Lot 1496 is bounded on the west by Lot
4545. It is therefore, clear that the three lots constitute
one big land. They are not separate properties located
in different places but they abut each other. This is not
disputed by private respondents. Hence, at the time of
the sale, the co-ownership constituted or covered these
three lots adjacent to each other. And since Flaviano
Moreto was entitled to one-half pro-indiviso of the entire
land area or 1,173 sq. meters as his share, he had a
perfect legal and lawful right to dispose of 781 sq.
meters of his share to the Pamplona spouses. Indeed,
there was still a remainder of some 392 sq. meters
belonging to him at the time of the sale.
We reject respondent Court's ruling that the sale was
valid as to one-half and invalid as to the other half for
the very simple reason that Flaviano Moreto, the
vendor, had the legal right to more than 781 sq. meters
of the communal estate, a title which he could dispose,
alienate in favor of the vendees-petitioners. The title
may be pro-indiviso or inchoate but the moment the co-
owner as vendor pointed out its location and even
indicated the boundaries over which the fences were to
be erectd without objection, protest or complaint by the
other co-owners, on the contrary they acquiesced and
tolerated such alienation, occupation and possession,
We rule that a factual partition or termination of the co-
ownership, although partial, was created, and barred
not only the vendor, Flaviano Moreto, but also his heirs,
the private respondents herein from asserting as against
the vendees-petitioners any right or title in derogation
of the deed of sale executed by said vendor Flaiano
Moreto.
Equity commands that the private respondents, the
successors of both the deceased spouses, Flaviano
Moreto and Monica Maniega be not allowed to impugn
the sale executed by Flaviano Moreto who indisputably
received the consideration of P900.00 and which he,
including his children, benefitted from the same.
Moreover, as the heirs of both Monica Maniega and
Flaviano Moreto, private respondents are duty-bound to
comply with the provisions of Articles 1458 and 1495,
Civil Code, which is the obligation of the vendor of the
property of delivering and transfering the ownership of
the whole property sold, which is transmitted on his
death to his heirs, the herein private respondents. The
articles cited provide, thus:
Art. 1458. By the contract of sale one of the contracting
parties obligates himself to transfer the ownership of
71
and to deliver a determinate thing, and the other part
to pay therefore a price certain in money or its
equivalent.

A contract of sale may be absolute or conditionial.

Art. 1495. The vendor is bound to transfer the

ownership of and deliver, as well as warrant the thing
which is the object of the sale.

Under Article 776, New Civil Code, the inheritance which

private respondents received from their deceased
parents and/or predecessors-in-interest included all the
property rights and obligations which were not
extinguished by their parents' death. And under Art.
1311, paragraph 1, New Civil Code, the contract of sale
executed by the deceased Flaviano Moreto took effect
between the parties, their assigns and heirs, who are
the private respondents herein. Accordingly, to the
private respondents is transmitted the obligation to
deliver in full ownership the whole area of 781 sq.
meters to the petitioners (which was the original
obligation of their predecessor Flaviano Moreto) and not
only one-half thereof. Private respondents must comply
with said obligation.

The records reveal that the area of 781 sq. meters sold
to and occupied by petitioners for more than 9 years
already as of the filing of the complaint in 1961 had been
re-surveyed by private land surveyor Daniel Aranas.
Petitioners are entitled to a segregation of the area from
Transfer Certificate of Title No. T-9843 covering Lot
1496 and they are also entitled to the issuance of a new
Transfer Certificate of Title in their name based on the
relocation survey.

WHEREFORE, IN VIEW OF THE FOREGOING, the

judgment appealed from is hereby AFFIRMED with
modification in the sense that the sale made and
executed by Flaviano Moreto in favor of the petitioners-
vendees is hereby declared legal and valid in its entirely.

Petitioners are hereby declared owners in full ownership

of the 781 sq. meters at the eastern portion of Lot 1496
now occupied by said petitioners and whereon their
houses and piggery coral stand.

The Register of Deeds of Laguna is hereby ordered to

segregate the area of 781 sq. meters from Certificate of
Title No. 9843 and to issue a new Transfer Certificate of
Title to the petitioners covering the segregated area of
781 sq. meters.

No costs.

SO ORDERED.

72
73
Ledesma vs. McLachlin (66 Phil 547)
G.R. No. L-44837 November 23, 1938
SOCORRO LEDESMA and ANA QUITCO LEDESMA,
plaintiffs-appellees,
vs.
CONCHITA MCLACHLIN, ET AL., defendants-appellants.
Adriano T. de la Cruz for appellants.
Simeon Bitanga for appellees.
VILLA-REAL, J.:
This case is before us by virtue of an appeal taken by
the defendants Conchita McLachlin, Lorenzo Quitco, Jr.,
Sabina Quitco, Rafael Quitco and Marcela Quitco, from
the decision of the Court of First Instance of Occidental
Negros, the dispositive part of which reads:
For the foregoing considerations, the court renders
judgment in this case declaring Ana Quitco Ledesma an
acknowledged natural daughter of the deceased Lorenzo
M. Quitco, for legal purposes, but absolving the
defendants as to the prayer in the first cause of action
that the said Ana Quitco Ledesma be declared entitled
to share in the properties left by the deceased Eusebio
Quitco.
As to the second cause of action, the said defendants
are ordered to pay to the plaintiff Socorro Ledesma,
jointly and severally, only the sum of one thousand five
hundred pesos(P1,500), with legal interest thereon from
the filing of this complaint until fully paid. No
pronouncement is made as to the costs. So ordered.
In support of their appeal, the appellants assign the
following errors allegedly committed by the trial court in
its aforesaid decision:
1. That the trial court erred in holding, that the action
for the recovery of the sum of P1,500, representing the
last installment of the note Exhibit C has not yet
prescribed.
2. That the trial court erred in holding that the property
inherited by the defendants from their deceased
grandfather by the right of representation is subject to
the debts and obligations of their deceased father who
died without any property whatsoever.lawphi1.net
3. That the trial court erred in condemning the
defendants to pay jointly and severally the plaintiff
Socorro Ledesma the sum of P1,500.
The only facts to be considered in the determination of
the legal questions raised in this appeal are those set
out in the appealed decision, which have been
established at the trial, namely:
In the year 1916, the plaintiff Socorro Ledesma lived
maritally with Lorenzo M. Quitco, while the latter was
still single, of which relation, lasting until the year 1921,
was born a daughter who is the other plaintiff Ana
Quitco Ledesma. In 1921, it seems hat the relation
between Socorro Ledesma and Lorenzo M. Quitco came
to an end, but the latter executed a deed (Exhibit A),
acknowledging the plaintiff Ana Quitco Ledesma as his
natural daughter and on January 21, 1922, he issued in
favor of the plaintiff Socorro Ledesma a promissory note
(Exhibit C), of the following tenor:
P2,000. For value received I promise to pay Miss
Socorro Ledesma the sum of two thousand pesos
(P2,000). Philippine currency under the following terms:
Two hundred and fifty pesos (P250) to be paid on the
first day of March 1922; another two hundred and fifty
pesos (P250)to be paid on the first day of
November 1922; the remaining one thousand and five
hundred (P1,500) to be paid two years from the date of
the execution of this note. San Enrique, Occ. Negros, P.
I., Jan. 21, 1922.
Subsequently, Lorenzo M. Quitco married the defendant
Conchita McLachlin, with whom he had four children,
who are the other defendants. On March 9, 1930,
Lorenzo M. Quitco died (Exhibit 5), and, still later, that
is, on December 15, 1932, his father Eusebio Quitco also
died, and as the latter left real and personal properties
upon his death, administration proceedings of said
properties were instituted in this court, the said case
being known as the "Intestate of the deceased Eusebio
Quitco," civil case No. 6153 of this court.
Upon the institution of the intestate of the deceased
Eusebio Quitco and the appointment of the committee
on claims and appraisal, the plaintiff Socorro Ledesma,
on August 26, 1935, filed before said committee the
aforequoted promissory note for payment, and the
commissioners, upon receipt of said promissory note,
instead of passing upon it, elevated the same to this
court en consulta (Exhibit F), and as the Honorable Jose
Lopez Vito, presiding over the First Branch, returned
said consulta and refrained from giving his opinion
thereon (Exhibit C), the aforesaid commissioners on
claims and appraisal, alleging lack of jurisdiction to pass
upon the claim, denied he same (Exhibit H).
On November 14, 1933 (Exhibit I), the court
issued an order of declaration of heirs in the intestate of
the deceased Eusebio Quitco, and as Ana Quitco
Ledesma was not included among the declared heirs,
Socorro Ledesma, as mother of Ana Quitco Ledesma,
asked for the reconsideration of said order, a petition
which the court denied. From the order denying the said
petition no appeal was taken, and in lieu thereof there
was filed the complaint which gives rise to this case.
The first question to be decided in this appeal, raised in
the first assignment of alleged error, is whether or not
the action to recover the sum of P1,500, representing
the last installment for the payment of the promissory
note Exhibit C, has prescribed.
According to the promissory note Exhibit C, executed by
the deceased Lorenzo M. Quitco, on January 21, 1922,
the last installment of P1,500 should be paid two years
74
from the date of the execution of said promissory note, the committee on claims and appraisal, appointed in the
that is, on January 21, 1924. The complaint in the intestate of his father, and the propertiesinherited from
present case was filed on June 26, 1934, that is, more the latter by the children of said deceased do not answer
than ten years after he expiration of the said period. The for the payment of the indebtedness contracted during
fact that the plaintiff Socorro Ledesma filed her claim, the lifetime of said person.
on August 26, 1933, with the committee on claims and
appraisal appointed in the intestate of Eusebio Quitco, Wherefore, the appealed judgment is reversed, and the
does not suspend the running of the prescriptive period defendants are absolved from the complaint, with the
of the judicial action for the recovery of said debt, costs to the appellees. So ordered.
because the claim for the unpaid balance of the amount
of the promissory note should no have been presented
in the intestate of Eusebio Quitco, the said deceased not
being the one who executed the same, but in the
intestate of Lorenzo M. Quitco, which should have been
instituted by the said Socorro Ledesma as provided in
section 642 of the Code of Civil Procedure, authorizing
a creditor to institute said case through the appointment
of an administrator for the purpose of collecting his
credit. More than ten years having thus elapsed from
the expiration of the period for the payment of said debt
of P1,500, the action for its recovery has prescribed
under section 43, No. 1, of the Code of Civil Procedure.

The first assignment of alleged error is, therefore, well-

founded.

As to the second assignment of alleged error, consisting

in that the trial court erred in holding that the properties
inherited by the defendants from their deceased
grandfather by representation are subject to the
payment of debts and obligations of their deceased
father, who died without leaving any property, while it
is true that under the provisions of articles 924 to 927
of the Civil Code, a children presents his father or
mother who died before him in the properties of his
grandfather or grandmother, this right of representation
does not make the said child answerable for the
obligations contracted by his deceased father or mother,
because, as may be seen from the provisions of the
Code of Civil Procedure referring to partition of
inheritances, the inheritance is received with the benefit
of inventory, that is to say, the heirs only answer with
the properties received from their predecessor. The
herein defendants, as heirs of Eusebio Quitco, in
representation of their father Lorenzo M. Quitco, are not
bound to pay the indebtedness of their said father from
whom they did not inherit anything.

The second assignment of alleged error is also well-

founded.

Being a mere sequel of the first two assignments of

alleged errors, the third assignment of error is also well-
founded.

For the foregoing considerations, we are of the opinion

and so hold: (1) That the filing of a claim before the
committee on claims and appraisal, appointed in the
intestate of the father, for a monetary obligation
contracted by a son who died before him, does not
suspend the prescriptive period of the judicial action for
the recovery of said indebtedness; (2) that the claim for
the payment of an indebtedness contracted by a
deceased person cannot be filed for its collection before

75
ARTICLE 777 Jose; and Amando. Natividad is survived by Edilberto
Ibea, Josefa Ibea, Martha Ibea, Carmen Ibea, Amparo
Ining, et. al. vs. Vega (G.R. No. 174727, August Ibea-Fernandez, Henry Ruiz and Pastor Ruiz. Dolores is
12, 2013) survived by Jesus Rimon, Cesaria Rimon Gonzales and
Remedios Rimon Cordero. Antipolo is survived by
G.R. No. 174727 August 12, 2013
Manuel Villanueva, daughter Teodora Villanueva-
Francisco (Teodora), Camilo Francisco (Camilo), Adolfo
ANTIPOLO INING (DECEASED), SURVIVED BY MANUEL
Francisco (Adolfo), Lucimo Francisco, Jr. (Lucimo Jr.),
VILLANUEVA, TEODORA VILLANUEVA-FRANCISCO,
Milagros Francisco, Celedonio Francisco, and
CAMILO FRANCISCO, ADOLFO FRANCISCO, LUCIMO
Herminigildo Francisco (Herminigildo). Pedro is survived
FRANCISCO, JR., MILAGROS FRANCISCO,* CELEDONIO
by his wife, Elisa Tan Ining and Pedro Ining, Jr. Amando
FRANCISCO, HERMINIGILDO FRANCISCO; RAMON
died without issue. As for Jose, it is not clear from the
TRESVALLES, ROBERTO TAJONERA, NATIVIDAD INING-
records if he was made party to the proceedings, or if
IBEA (DECEASED) SURVIVED BY EDILBERTO IBEA,
he is alive at all.
JOSEFA IBEA, MARTHA IBEA, CARMEN IBEA, AMPARO
IBEA-FERNANDEZ, HENRY RUIZ, EUGENIO RUIZ AND
In short, herein petitioners, except for Ramon Tresvalles
PASTOR RUIZ; DOLORES INING-RIMON (DECEASED)
(Tresvalles) and Roberto Tajonera (Tajonera), are
SURVIVED BY JESUS RIMON, CESARIA RIMON
Gregoria’s grandchildren or spouses thereof (Gregoria’s
GONZALES AND REMEDIOS RIMON CORDERO; AND
heirs).
PEDRO INING (DECEASED) SURVIVED BY ELISA TAN
INING (WIFE) AND PEDRO INING, JR., PETITIONERS,
In 1997, acting on the claim that one-half of subject
vs.
property belonged to him as Romana’s surviving heir,
LEONARDO R. VEGA, SUBSTITUTED BY LOURDES VEGA,
Leonardo filed with the Regional Trial Court (RTC) of
RESTONILO I. VEGA, CRISPULO M. VEGA, MILBUENA
Kalibo, Aklan Civil Case No. 52756 for partition,
VEGA-RESTITUTO, AND LENARD VEGA, RESPONDENTS.
recovery of ownership and possession, with damages,
against Gregoria’s heirs. In his Amended Complaint,7
DECISION
Leonardo alleged that on several occasions, he
demanded the partition of the property but Gregoria’s
DEL CASTILLO, J.:
heirs refused to heed his demands; that the matter
reached the level of the Lupon Tagapamayapa, which
One who is merely related by affinity to the decedent
issued a certification to file a court action sometime in
does not inherit from the latter and cannot become a
1980; that Gregoria’s heirs claimed sole ownership of
co-owner of the decedent’s property. Consequently, he
the property; that portions of the property were sold to
cannot effect a repudiation of the co-ownership of the
Tresvalles and Tajonera, which portions must be
estate that was formed among the decedent’s heirs.
collated and included as part of the portion to be
awarded to Gregoria’s heirs; that in 1979, Lucimo
Assailed in this Petition for Review on Certiorari1 are the
Francisco, Sr. (Lucimo Sr.), husband of herein petitioner
March 14, 2006 Decision2 of the Court of Appeals (CA)
Teodora, illegally claimed absolute ownership of the
in CA-G.R. CV No. 74687 and its September 7, 2006
property and transferred in his name the tax declaration
Resolution3 denying petitioners’ Motion for
covering the property; that from 1988, Lucimo Sr. and
Reconsideration.4
Teodora have deprived him (Leonardo) of the fruits of
the property estimated at P1,000.00 per year; that as a
Factual Antecedents
result, he incurred expenses by way of attorney’s fees
and litigation costs. Leonardo thus prayed that he be
Leon Roldan (Leon), married to Rafaela Menez
declared the owner of half of the subject property; that
(Rafaela), is the owner of a 3,120-square meter parcel
the same be partitioned after collation and
of land (subject property) in Kalibo, Aklan covered by
determination of the portion to which he is entitled; that
Original Certificate of Title No. (24071) RO-6305 (OCT
Gregoria’s heirs be ordered to execute the necessary
RO-630). Leon and Rafaela died without issue. Leon was
documents or agreements; and that he (Leonardo) be
survived by his siblings Romana Roldan (Romana) and
awarded actual damages in the amount of P1,000.00
Gregoria Roldan Ining (Gregoria), who are now both
per year from 1988, attorney’s fees of P50,000.00, and
deceased.
lawyer’s appearance fees of P500.00 per hearing.
Romana was survived by her daughter Anunciacion
In their Answer8 with counterclaim, Teodora, Camilo,
Vega and grandson, herein respondent Leonardo R.
Adolfo, Lucimo Jr. and Herminigildo claimed that
Vega (Leonardo) (also both deceased). Leonardo in turn
Leonardo had no cause of action against them; that they
is survived by his wife Lourdes and children Restonilo I.
have become the sole owners of the subject property
Vega, Crispulo M. Vega, Milbuena Vega-Restituto and
through Lucimo Sr. who acquired the same in good faith
Lenard Vega, the substituted respondents.
by sale from Juan Enriquez (Enriquez), who in turn
acquired the same from Leon, and Leonardo was aware
Gregoria, on the other hand, was survived by her six
of this fact; that they were in continuous, actual,
children: petitioners Natividad Ining-Ibea (Natividad),
adverse, notorious and exclusive possession of the
Dolores Ining-Rimon (Dolores), Antipolo, and Pedro;
property with a just title; that they have been paying
76
the taxes on the property; that Leonardo’s claim is
barred by estoppel and laches; and that they have
suffered damages and were forced to litigate as a result
of Leonardo’s malicious suit. They prayed that Civil Case
No. 5275 be dismissed; that Leonardo be declared to be
without any right to the property; that Leonardo be
ordered to surrender the certificate of title to the
property; and that they be awarded P20,000.00 as
moral damages, P10,000.00 as temperate and nominal
damages, P20,000.00 as attorney’s fees, and double
costs.
The other Gregoria heirs, as well as Tresvalles and
Tajonera were declared in default.9
As agreed during pre-trial, the trial court commissioned
Geodetic Engineer Rafael M. Escabarte to identify the
metes and bounds of the property.10 The resulting
Commissioner’s Report and Sketch,11 as well as the
Supplementary Commissioner’s Report,12 were duly
approved by the parties. The parties then submitted the
following issues for resolution of the trial court:
Whether Leonardo is entitled to a share in Leon’s estate;
Whether Leon sold the subject property to Lucimo Sr.;
and
Whether Leonardo’s claim has prescribed, or that he is
barred by estoppel or laches.13
In the meantime, Leonardo passed away and was duly
substituted by his heirs, the respondents herein.14
During the course of the proceedings, the following
additional relevant facts came to light:
1. In 1995, Leonardo filed against petitioners Civil Case
No. 4983 for partition with the RTC Kalibo, but the case
was dismissed and referred to the Kalibo Municipal Trial
Court (MTC), where the case was docketed as Civil Case
No. 1366. However, on March 4, 1997, the MTC
dismissed Civil Case No. 1366 for lack of jurisdiction and
declared that only the RTC can take cognizance of the
partition case;15
2. The property was allegedly sold by Leon to Enriquez
through an unnotarized document dated April 4,
1943.16 Enriquez in turn allegedly sold the property to
Lucimo Sr. on November 25, 1943 via another private
sale document;17
3. Petitioners were in sole possession of the property for
more than 30 years, while Leonardo acquired custody of
OCT RO-630;18
4. On February 9, 1979, Lucimo Sr. executed an
Affidavit of Ownership of Land19 claiming sole
ownership of the property which he utilized to secure in
his name Tax Declaration No. 16414 (TD 16414) over
the property and to cancel Tax Declaration No. 20102 in
Leon’s name;20
5. Lucimo Sr. died in 1991; and
6. The property was partitioned among the petitioners,
to the exclusion of Leonardo.21
Ruling of the Regional Trial Court
On November 19, 2001, the trial court rendered a
Decision,22 which decreed as follows:
WHEREFORE, premises considered, judgment is hereby
rendered:
Dismissing the complaint on the ground that plaintiffs’
right of action has long prescribed under Article 1141 of
the New Civil Code;
Declaring Lot 1786 covered by OCT No. RO-630 (24071)
to be the common property of the heirs of Gregoria
Roldan Ining and by virtue whereof, OCT No. RO-630
(24071) is ordered cancelled and the Register of Deeds
of the Province of Aklan is directed to issue a transfer
certificate of title to the heirs of Natividad Ining, one-
fourth (1/4) share; Heirs of Dolores Ining, one-fourth
(1/4) share; Heirs of Antipolo Ining, one-fourth (1/4)
share; and Heirs of Pedro Ining, one-fourth (1/4) share.
For lack of sufficient evidence, the counterclaim is
ordered dismissed.
With cost against the plaintiffs.
SO ORDERED.23
The trial court found the April 4, 1943 and November
25, 1943 deeds of sale to be spurious. It concluded that
Leon never sold the property to Enriquez, and in turn,
Enriquez never sold the property to Lucimo Sr., hence,
the subject property remained part of Leon’s estate at
the time of his death in 1962. Leon’s siblings, Romana
and Gregoria, thus inherited the subject property in
equal shares. Leonardo and the respondents are entitled
to Romana’s share as the latter’s successors.
However, the trial court held that Leonardo had only 30
years from Leon’s death in 1962 – or up to 1992 – within
which to file the partition case. Since Leonardo instituted
the partition suit only in 1997, the same was already
barred by prescription. It held that under Article 1141 of
the Civil Code,24 an action for partition and recovery of
ownership and possession of a parcel of land is a real
action over immovable property which prescribes in 30
years. In addition, the trial court held that for his long
inaction, Leonardo was guilty of laches as well.
Consequently, the property should go to Gregoria’s heirs
exclusively.
Respondents moved for reconsideration25 but the same
was denied by the RTC in its February 7, 2002 Order.26
Ruling of the Court of Appeals
77
Only respondents interposed an appeal with the CA.
Docketed as CA-G.R. CV No. 74687, the appeal
questioned the propriety of the trial court’s dismissal of
Civil Case No. 5275, its application of Article 1141, and
the award of the property to Gregoria’s heirs
exclusively.
On March 14, 2006, the CA issued the questioned
Decision,27 which contained the following decretal
portion:
IN LIGHT OF ALL THE FOREGOING, this appeal is
GRANTED. The decision of the Regional Trial Court, Br.
8, Kalibo, Aklan in Civil Case No. 5275 is REVERSED and
SET ASIDE. In lieu thereof, judgment is rendered as
follows:
1. Declaring 1/2 portion of Lot 1786 as the share of the
plaintiffs as successors-in-interest of Romana Roldan;
2. Declaring 1/2 portion of Lot 1786 as the share of the
defendants as successors-in-interest of Gregoria Roldan
Ining;
3. Ordering the defendants to deliver the possession of
the portion described in paragraphs 8 and 9 of the
Commissioner’s Report (Supplementary) to the herein
plaintiffs;
4. Ordering the cancellation of OCT No. RO-630 (24071)
in the name of Leon Roldan and the Register of Deeds
of Aklan is directed to issue transfer certificates of title
to the plaintiffs in accordance with paragraphs 8 and 9
of the sketch plan as embodied in the Commissioner’s
Report (Supplementary) and the remaining portion
thereof be adjudged to the defendants.
Other claims and counterclaims are dismissed.
Costs against the defendants-appellees.
SO ORDERED.28
The CA held that the trial court’s declaration of nullity of
the April 4, 1943 and November 25, 1943 deeds of sale
in favor of Enriquez and Lucimo Sr., respectively,
became final and was settled by petitioners’ failure to
appeal the same. Proceeding from the premise that no
valid prior disposition of the property was made by its
owner Leon and that the property – which remained part
of his estate at the time of his death – passed on by
succession to his two siblings, Romana and Gregoria,
which thus makes the parties herein – who are
Romana’s and Gregoria’s heirs – co-owners of the
property in equal shares, the appellate court held that
only the issues of prescription and laches were needed
to be resolved.
The CA did not agree with the trial court’s
pronouncement that Leonardo’s action for partition was
barred by prescription. The CA declared that
prescription began to run not from Leon’s death in 1962,
but from Lucimo Sr.’s execution of the Affidavit of
Ownership of Land in 1979, which amounted to a
repudiation of his co-ownership of the property with
Leonardo. Applying the fifth paragraph of Article 494 of
the Civil Code, which provides that "[n]o prescription
shall run in favor of a co-owner or co-heir against his
co-owners or co-heirs so long as he expressly or
impliedly recognizes the co-ownership," the CA held that
it was only when Lucimo Sr. executed the Affidavit of
Ownership of Land in 1979 and obtained a new tax
declaration over the property (TD 16414) solely in his
name that a repudiation of his co-ownership with
Leonardo was made, which repudiation effectively
commenced the running of the 30-year prescriptive
period under Article 1141.
The CA did not consider Lucimo Sr.’s sole possession of
the property for more than 30 years to the exclusion of
Leonardo and the respondents as a valid repudiation of
the co-ownership either, stating that his exclusive
possession of the property and appropriation of its fruits
– even his continuous payment of the taxes thereon –
while adverse as against strangers, may not be deemed
so as against Leonardo in the absence of clear and
conclusive evidence to the effect that the latter was
ousted or deprived of his rights as co-owner with the
intention of assuming exclusive ownership over the
property, and absent a showing that this was effectively
made known to Leonardo. Citing Bargayo v.
Camumot29 and Segura v. Segura,30 the appellate
court held that as a rule, possession by a co-owner will
not be presumed to be adverse to the other co-owners
but will be held to benefit all, and that a co-owner or co-
heir is in possession of an inheritance pro-indiviso for
himself and in representation of his co-owners or co-
heirs if he administers or takes care of the rest thereof
with the obligation to deliver the same to his co-owners
or co-heirs, as is the case of a depositary, lessee or
trustee.
The CA added that the payment of taxes by Lucimo Sr.
and the issuance of a new tax declaration in his name
do not prove ownership; they merely indicate a claim of
ownership. Moreover, petitioners’ act of partitioning the
property among themselves to the exclusion of
Leonardo cannot affect the latter; nor may it be
considered a repudiation of the co-ownership as it has
not been shown that the partition was made known to
Leonardo.
The CA held further that the principle of laches cannot
apply as against Leonardo and the respondents. It held
that laches is controlled by equitable considerations and
it cannot be used to defeat justice or to perpetuate
fraud; it cannot be utilized to deprive the respondents
of their rightful inheritance.
On the basis of the above pronouncements, the CA
granted respondents’ prayer for partition, directing that
the manner of partitioning the property shall be
governed by the Commissioner’s Report and Sketch and
the Supplementary Commissioner’s Report which the
parties did not contest.
78
Petitioners filed their Motion for Reconsideration31
which the CA denied in its assailed September 7, 2006
Resolution.32 Hence, the present Petition.
Issues
Petitioners raise the following arguments:
I who sent [sic] by Registered mail to Court of Appeals,
THE APPELLATE COURT COMMITTED GRAVE ABUSE OF
DISCRETION IN REVERSING THE DECISION OF THE
TRIAL COURT ON THE GROUND THAT LUCIMO
FRANCISCO REPUDIATED THE CO-OWNERSHIP ONLY
ON FEBRUARY 9, 1979.
II
THE APPELLATE COURT ERRED IN NOT UPHOLDING THE
DECISION OF THE TRIAL COURT DISMISSING THE
COMPLAINT ON THE GROUND OF PRESCRIPTION AND
LACHES.33
Petitioners’ Arguments
Petitioners insist in their Petition and Reply34 that
Lucimo Sr.’s purchase of the property in 1943 and his
possession thereof amounted to a repudiation of the co-
ownership, and that Leonardo’s admission and
acknowledgment of Lucimo Sr.’s possession for such
length of time operated to bestow upon petitioners – as
Lucimo Sr.’s successors-in-interest – the benefits of
acquisitive prescription which proceeded from the
repudiation.
Petitioners contend that Leonardo’s inaction – from
Lucimo Sr.’s taking possession in 1943, up to 1995,
when Leonardo filed Civil Case No. 4983 for partition
with the RTC Kalibo – amounted to laches or neglect.
They add that during the proceedings before the Lupon
Tagapamayapa in 1980, Leonardo was informed of
Lucimo Sr.’s purchase of the property in 1943; this
notwithstanding, Leonardo did not take action then
against Lucimo Sr. and did so only in 1995, when he
filed Civil Case No. 4983 – which was eventually
dismissed and referred to the MTC. They argue that, all
this time, Leonardo did nothing while Lucimo Sr.
occupied the property and claimed all its fruits for
himself.
Respondents’ Arguments
Respondents, on the other hand, argue in their
Comment35 that –
For purposes of clarity, if [sic] is respectfully submitted
that eighteen (18) legible copies has [sic] not been filed
in this case for consideration in banc [sic] and nine (9)
copies in cases heard before a division in that [sic] all
copies of pleadings served to the offices concern [sic]
where said order [sic] was issued were not furnished
two (2) copies each in violation to [sic] the adverse
parties [sic] to the clerk of court, Regional Trial Court,
Branch 8, Kalibo, Aklan, Philippines; to the Honorable
Court of Appeals so that No [sic] action shall be taken
on such pleadings, briefs, memoranda, motions, and
other papers as fail [sic] to comply with the requisites
set out in this paragraph.
The foregoing is confirmed by affidavit of MERIDON F.
OLANDESCA, the law secretary of the Petitioner [sic]
Twentieth Division, Cebu City; to Counsel for
Respondent [sic] and to the Clerk of Court Supreme
Court Manila [sic].
These will show that Petitioner has [sic] violated all the
requirements of furnishing two (2) copies each
concerned party [sic] under the Rule of Courts [sic].36
Our Ruling
The Court denies the Petition.
The finding that Leon did not sell the property to Lucimo
Sr. had long been settled and had become final for
failure of petitioners to appeal. Thus, the property
remained part of Leon’s estate.
One issue submitted for resolution by the parties to the
trial court is whether Leon sold the property to Lucimo
Sr.1âwphi1 The trial court, examining the two deeds of
sale executed in favor of Enriquez and Lucimo Sr., found
them to be spurious. It then concluded that no such sale
from Leon to Lucimo Sr. ever took place. Despite this
finding, petitioners did not appeal. Consequently, any
doubts regarding this matter should be considered
settled. Thus, petitioners’ insistence on Lucimo Sr.’s
1943 purchase of the property to reinforce their claim
over the property must be ignored. Since no transfer
from Leon to Lucimo Sr. took place, the subject property
clearly remained part of Leon’s estate upon his passing
in 1962.
Leon died without issue; his heirs are his siblings
Romana and Gregoria.
Since Leon died without issue, his heirs are his siblings,
Romana and Gregoria, who thus inherited the property
in equal shares. In turn, Romana’s and Gregoria’s heirs
– the parties herein – became entitled to the property
upon the sisters’ passing. Under Article 777 of the Civil
Code, the rights to the succession are transmitted from
the moment of death.
Gregoria’s and Romana’s heirs are co-owners of the
subject property.
Thus, having succeeded to the property as heirs of
Gregoria and Romana, petitioners and respondents
became co-owners thereof. As co-owners, they may use
the property owned in common, provided they do so in
accordance with the purpose for which it is intended and
in such a way as not to injure the interest of the co-
ownership or prevent the other co-owners from using it
according to their rights.37 They have the full ownership
79
of their parts and of the fruits and benefits pertaining
thereto, and may alienate, assign or mortgage them,
and even substitute another person in their enjoyment,
except when personal rights are involved.38 Each co-
owner may demand at any time the partition of the thing
owned in common, insofar as his share is concerned.39
Finally, no prescription shall run in favor of one of the
co-heirs against the others so long as he expressly or
impliedly recognizes the co-ownership.40
For prescription to set in, the repudiation must be done
by a co-owner.
Time and again, it has been held that "a co-owner
cannot acquire by prescription the share of the other co-
owners, absent any clear repudiation of the co-
ownership. In order that the title may prescribe in favor
of a co-owner, the following requisites must concur: (1)
the co-owner has performed unequivocal acts of
repudiation amounting to an ouster of the other co-
owners; (2) such positive acts of repudiation have been
made known to the other co-owners; and (3) the
evidence thereof is clear and convincing."41
From the foregoing pronouncements, it is clear that the
trial court erred in reckoning the prescriptive period
within which Leonardo may seek partition from the
death of Leon in 1962. Article 1141 and Article 494 (fifth
paragraph) provide that prescription shall begin to run
in favor of a co-owner and against the other co-owners
only from the time he positively renounces the co-
ownership and makes known his repudiation to the
other co-owners.
Lucimo Sr. challenged Leonardo’s co-ownership of the
property only sometime in 1979 and 1980, when the
former executed the Affidavit of Ownership of Land,
obtained a new tax declaration exclusively in his name,
and informed the latter – before the Lupon
Tagapamayapa – of his 1943 purchase of the property.
These apparent acts of repudiation were followed later
on by Lucimo Sr.’s act of withholding Leonardo’s share
in the fruits of the property, beginning in 1988, as
Leonardo himself claims in his Amended Complaint.
Considering these facts, the CA held that prescription
began to run against Leonardo only in 1979 – or even
in 1980 – when it has been made sufficiently clear to
him that Lucimo Sr. has renounced the co-ownership
and has claimed sole ownership over the property. The
CA thus concluded that the filing of Civil Case No. 5275
in 1997, or just under 20 years counted from 1979, is
clearly within the period prescribed under Article 1141.
Art. 150. Family relations include those:
(1) Between husband and wife;
(2) Between parents and children;
(3) Among other ascendants and descendants; and
(4) Among brothers and sisters, whether of the full or
half blood.
In point of law, therefore, Lucimo Sr. is not a co-owner
of the property; Teodora is. Consequently, he cannot
validly effect a repudiation of the co-ownership, which
he was never part of. For this reason, prescription did
not run adversely against Leonardo, and his right to
seek a partition of the property has not been lost.
Likewise, petitioners’ argument that Leonardo’s
admission and acknowledgment in his pleadings – that
Lucimo Sr. was in possession of the property since 1943
– should be taken against him, is unavailing. In 1943,
Leon remained the rightful owner of the land, and
Lucimo Sr. knew this very well, being married to
Teodora, daughter of Antipolo, a nephew of Leon. More
significantly, the property, which is registered under the
Torrens system and covered by OCT RO-630, is in Leon’s
name. Leon’s ownership ceased only in 1962, upon his
death when the property passed on to his heirs by
operation of law.
In fine, since none of the co-owners made a valid
repudiation of the existing co-ownership, Leonardo
could seek partition of the property at any time.
WHEREFORE, the Petition is DENIED. The assailed March
14, 2006 Decision and the September 7, 2006
Resolution of the Court of Appeals in CA-G.R. CV No.
74687are AFFIRMED.
SO ORDERED.

What escaped the trial and appellate courts’ notice,

however, is that while it may be argued that Lucimo Sr.
performed acts that may be characterized as a
repudiation of the co-ownership, the fact is, he is not a
co-owner of the property. Indeed, he is not an heir of
Gregoria; he is merely Antipolo’s son-in-law, being
married to Antipolo’s daughter Teodora.42 Under the
Family Code, family relations, which is the primary basis
for succession, exclude relations by affinity.

80
Rioferio vs. Court of Appeals (G.R. No. 129008,
January 13, 2004)
[G.R. No. 129008. January 13, 2004]
TEODORA A. RIOFERIO, VERONICA O. EVANGELISTA
assisted by her husband ZALDY EVANGELISTA,
ALBERTO ORFINADA, and ROWENA O. UNGOS, assisted
by her husband BEDA UNGOS, petitioners, vs.COURT OF
APPEALS, ESPERANZA P. ORFINADA, LOURDES P.
ORFINADA, ALFONSO ORFINADA, NANCY P. ORFINADA,
ALFONSO JAMES P. ORFINADA, CHRISTOPHER P.
ORFINADA and ANGELO P. ORFINADA, respondents.
DECISION
TINGA, J.:
Whether the heirs may bring suit to recover property of
the estate pending the appointment of an administrator
is the issue in this case.
This Petition for Review on Certiorari, under Rule 45 of
the Rules of Court, seeks to set aside the Decision[1] of
the Court of Appeals in CA-G.R. SP No. 42053 dated
January 31, 1997, as well as its Resolution[2] dated
March 26, 1997, denying petitioners motion for
reconsideration.
On May 13, 1995, Alfonso P. Orfinada, Jr. died without
a will in Angeles City leaving several personal and real
properties located in Angeles City, Dagupan City and
Kalookan City.[3] He also left a widow, respondent
Esperanza P. Orfinada, whom he married on July 11,
1960 and with whom he had seven children who are the
herein respondents, namely: Lourdes P. Orfinada,
Alfonso Clyde P. Orfinada, Nancy P. Orfinada-
Happenden, Alfonso James P. Orfinada, Christopher P.
Orfinada, Alfonso Mike P. Orfinada (deceased) and
Angelo P. Orfinada.[4]
Apart from the respondents, the demise of the decedent
left in mourning his paramour and their children. They
are petitioner Teodora Riofero, who became a part of his
life when he entered into an extra-marital relationship
with her during the subsistence of his marriage to
Esperanza sometime in 1965, and co-petitioners
Veronica[5], Alberto and Rowena.[6]
On November 14, 1995, respondents Alfonso James and
Lourdes Orfinada discovered that on June 29, 1995,
petitioner Teodora Rioferio and her children executed an
Extrajudicial Settlement of Estate of a Deceased Person
with Quitclaim involving the properties of the estate of
the decedent located in Dagupan City and that
accordingly, the Registry of Deeds in Dagupan issued
Certificates of Titles Nos. 63983, 63984 and 63985 in
favor of petitioners Teodora Rioferio, Veronica Orfinada-
Evangelista, Alberto Orfinada and Rowena Orfinada-
Ungos. Respondents also found out that petitioners
were able to obtain a loan of P700,000.00 from the Rural
Bank of Mangaldan Inc. by executing a Real Estate
Mortgage over the properties subject of the extra-
judicial settlement.[7]
On December 1, 1995, respondent Alfonso Clyde P.
Orfinada III filed a Petition for Letters of Administration
docketed as S.P. Case No. 5118 before the Regional
Trial Court of Angeles City, praying that letters of
administration encompassing the estate of Alfonso P.
Orfinada, Jr. be issued to him.[8]
On December 4, 1995, respondents filed a Complaint for
the Annulment/Rescission of Extra Judicial Settlement
of Estate of a Deceased Person with Quitclaim, Real
Estate Mortgage and Cancellation of Transfer Certificate
of Titles with Nos. 63983, 63985 and 63984 and Other
Related Documents with Damages against petitioners,
the Rural Bank of Mangaldan, Inc. and the Register of
Deeds of Dagupan City before the Regional Trial Court,
Branch 42, Dagupan City.[9]
On February 5, 1996, petitioners filed their Answer to
the aforesaid complaint interposing the defense that the
property subject of the contested deed of extra-judicial
settlement pertained to the properties originally
belonging to the parents of Teodora Riofero[10]and that
the titles thereof were delivered to her as an advance
inheritance but the decedent had managed to register
them in his name.[11] Petitioners also raised the
affirmative defense that respondents are not the real
parties-in-interest but rather the Estate of Alfonso O.
Orfinada, Jr. in view of the pendency of the
administration proceedings.[12] On April 29, 1996,
petitioners filed a Motion to Set Affirmative Defenses for
Hearing[13] on the aforesaid ground.
The lower court denied the motion in its Order[14] dated
June 27, 1996, on the ground that respondents, as
heirs, are the real parties-in-interest especially in the
absence of an administrator who is yet to be appointed
in S.P. Case No. 5118. Petitioners moved for its
reconsideration[15] but the motion was likewise
denied.[16]
This prompted petitioners to file before the Court of
Appeals their Petition for Certiorari under Rule 65 of the
Rules of Court docketed as CA G.R. S.P. No. 42053.[17]
Petitioners averred that the RTC committed grave abuse
of discretion in issuing the assailed order which denied
the dismissal of the case on the ground that the proper
party to file the complaint for the annulment of the
extrajudicial settlement of the estate of the deceased is
the estate of the decedent and not the respondents.[18]
The Court of Appeals rendered the assailed Decision[19]
dated January 31, 1997, stating that it discerned no
grave abuse of discretion amounting to lack or excess of
jurisdiction by the public respondent judge when he
denied petitioners motion to set affirmative defenses for
hearing in view of its discretionary nature.
A Motion for Reconsideration was filed by petitioners but
it was denied.[20] Hence, the petition before this Court.
The issue presented by the petitioners before this Court
is whether the heirs have legal standing to prosecute
the rights belonging to the deceased subsequent to the
commencement of the administration proceedings.[21]
81
Petitioners vehemently fault the lower court for denying
their motion to set the case for preliminary hearing on
their affirmative defense that the proper party to bring
the action is the estate of the decedent and not the
respondents. It must be stressed that the holding of a
preliminary hearing on an affirmative defense lies in the
discretion of the court. This is clear from the Rules of
Court, thus:
SEC. 5. Pleadings grounds as affirmative defenses.- Any
of the grounds for dismissal provided for in this rule,
except improper venue, may be pleaded as an
affirmative defense, and a preliminary hearing may be
had thereon as if a motion to dismiss had been filed.[22]
(Emphasis supplied.)
Certainly, the incorporation of the word may in the
provision is clearly indicative of the optional character of
the preliminary hearing. The word denotes discretion
and cannot be construed as having a mandatory
effect.[23] Subsequently, the electivity of the
proceeding was firmed up beyond cavil by the 1997
Rules of Civil Procedure with the inclusion of the phrase
in the discretion of the Court, apart from the retention
of the word may in Section 6,[24] in Rule 16 thereof.
such instances, the heirs cannot be expected to wait for
the appointment of an administrator; then wait further
to see if the administrator appointed would care enough
to file a suit to protect the rights and the interests of the
deceased; and in the meantime do nothing while the
rights and the properties of the decedent are violated or
dissipated.
Even if there is an appointed administrator,
jurisprudence recognizes two exceptions, viz: (1) if the
executor or administrator is unwilling or refuses to bring
suit;[30] and (2) when the administrator is alleged to
have participated in the act complained of[31] and he is
made a party defendant.[32] Evidently, the necessity
for the heirs to seek judicial relief to recover property of
the estate is as compelling when there is no appointed
administrator, if not more, as where there is an
appointed administrator but he is either disinclined to
bring suit or is one of the guilty parties himself.
All told, therefore, the rule that the heirs have no legal
standing to sue for the recovery of property of the estate
during the pendency of administration proceedings has
three exceptions, the third being when there is no
appointed administrator such as in this case.

Just as no blame of abuse of discretion can be laid on As the appellate court did not commit an error of law in
the lower courts doorstep for not hearing petitioners upholding the order of the lower court, recourse to this
affirmative defense, it cannot likewise be faulted for Court is not warranted.
recognizing the legal standing of the respondents as
heirs to bring the suit. WHEREFORE, the petition for review is DENIED. The
assailed decision and resolution of the Court of Appeals
Pending the filing of administration proceedings, the are hereby AFFIRMED. No costs.
heirs without doubt have legal personality to bring suit
in behalf of the estate of the decedent in accordance SO ORDERED.
with the provision of Article 777 of the New Civil Code
that (t)he rights to succession are transmitted from the
moment of the death of the decedent. The provision in
turn is the foundation of the principle that the property,
rights and obligations to the extent and value of the
inheritance of a person are transmitted through his
death to another or others by his will or by operation of
law.[25]

Even if administration proceedings have already been

commenced, the heirs may still bring the suit if an
administrator has not yet been appointed. This is the
proper modality despite the total lack of advertence to
the heirs in the rules on party representation, namely
Section 3, Rule 3[26] and Section 2, Rule 87[27] of the
Rules of Court. In fact, in the case of Gochan v.
Young,[28] this Court recognized the legal standing of
the heirs to represent the rights and properties of the
decedent under administration pending the appointment
of an administrator. Thus:

The above-quoted rules,[29] while permitting an

executor or administrator to represent or to bring suits
on behalf of the deceased, do not prohibit the heirs from
representing the deceased. These rules are easily
applicable to cases in which an administrator has
already been appointed. But no rule categorically
addresses the situation in which special proceedings for
the settlement of an estate have already been
instituted, yet no administrator has been appointed. In
82
Heirs of Tomas Calpatura, Sr., vs. Prado (G.R. No.
156879, January 20, 2004)
[G.R. No. 156879. January 20, 2004]
FLORDELIZA CALPATURA FLORA, DOMINADOR
CALPATURA and TOMAS CALPATURA, JR., Heirs of
TOMAS CALPATURA, SR., petitioners, vs. ROBERTO,
ERLINDA, DANIEL, GLORIA, PATRICIO, JR. and EDNA,
all surnamed PRADO and NARCISA PRADO,
respondents.
DECISION
YNARES-SANTIAGO, J.:
The property under litigation is the northern half portion
of a residential land consisting of 552.20 square meters,
more or less, situated at 19th Avenue, Murphy, Quezon
City and covered by Transfer Certificate of Title No.
71344 issued on August 15, 1963 by the Register of
Deeds of Quezon City in the name of Narcisa Prado and
her children by her first husband, Patricio Prado, Sr.,
namely, Roberto, Erlinda, Daniel, Gloria, Patricio, Jr. and
Edna, respondents herein.
The pertinent facts are as follows:
On December 19, 1959, Patricio Prado, Sr. died. Narcisa
subsequently married Bonifacio Calpatura. In order to
support her minor children with her first husband,
Narcisa and her brother-in-law, Tomas Calpatura, Sr.,
executed on April 26, 1968 an Agreement of Purchase
and Sale whereby the former agreed to sell to the latter
the northern half portion of the property for the sum of
P10,500.00.[1] On July 28, 1973, Narcisa executed a
Deed of Absolute Sale in favor of Tomas over the said
property.[2]
In 1976, Tomas daughter, Flordeliza Calpatura Flora,
built a two-storey duplex with firewall[3] on the
northern half portion of the property. Respondents, who
occupied the southern half portion of the land, did not
object to the construction. Flordeliza Flora and her
husband Wilfredo declared the property for taxation
purposes[4] and paid the corresponding taxes
thereon.[5] Likewise, Maximo Calpatura, the son of
Tomas cousin, built a small house on the northern
portion of the property.
On April 8, 1991, respondents filed a complaint for
declaration of nullity of sale and delivery of possession
of the northern half portion of the subject property
against petitioners Flordeliza Calpatura Flora,
Dominador Calpatura and Tomas Calpatura, Jr. before
the Regional Trial Court of Quezon City, Branch 100,
docketed as Civil Case No. Q-91-8404.[6] Respondents
alleged that the transaction embodied in the Agreement
to Purchase and Sale between Narcisa and Tomas was
one of mortgage and not of sale; that Narcisas children
tried to redeem the mortgaged property but they
learned that the blank document which their mother had
signed was transformed into a Deed of Absolute Sale;
that Narcisa could not have sold the northern half
portion of the property considering that she was
prohibited from selling the same within a period of 25
years from its acquisition, pursuant to the condition
annotated at the back of the title;[7] that Narcisa, as
natural guardian of her children, had no authority to sell
the northern half portion of the property which she and
her children co-owned; and that only P5,000.00 out of
the consideration of P10,500.00 was paid by Tomas.
In their answer, petitioners countered that Narcisa
owned 9/14 of the property, consisting of as her share
in the conjugal partnership with her first husband and
1/7 as her share in the estate of her deceased husband;
that the consideration of the sale in the amount of
P10,500.00 had been fully paid as of April 1, 1968; that
Narcisa sold her conjugal share in order to support her
minor children; that Narcisas claim was barred by laches
and prescription; and that the Philippine Homesite and
Housing Corporation, not the respondents, was the real
party in interest to question the sale within the
prohibited period.
On April 2, 1997, the court a quo[8] dismissed the
complaint. It found that the sale was valid; that the
Agreement to Purchase and Sale and the Deed of
Absolute Sale were duly executed; that the sum of
P10,500.00 as selling price for the subject property was
fully paid there being no demand for the payment of the
remaining balance; that the introduction of
improvements thereon by the petitioners was without
objection from the respondents; and that Roberto and
Erlinda failed to contest the transaction within four years
after the discovery of the alleged fraud and reaching the
majority age in violation of Article 1391 of the Civil
Code.[9]
Petitioners appealed the decision to the Court of
Appeals, where it was docketed as CA-G.R. CV No.
56843. On October 3, 2002, a decision[10] was
rendered by the Court of Appeals declaring that
respondents were co-owners of the subject property,
thus the sale was valid only insofar as Narcisas 1/7
undivided share thereon was concerned. The dispositive
portion of the said decision reads:
WHEREFORE, the appealed Decision is AFFIRMED, with
the MODIFICATION that the sale in dispute is declared
valid only with respect to the one-seventh (1/7) share
of plaintiff-appellant NARCISA H. PRADO in the subject
property, which is equivalent to 78.8857 square meters.
In all other respects, the same decision stands. No
pronouncement as to costs.
SO ORDERED.[11]
Petitioner filed a motion for reconsideration which was
denied in a Resolution dated January 14, 2003.[12]
Hence this petition for review on the following assigned
errors:
I
THE HONORABLE COURT OF APPEALS COMMITTED A
GRAVE ABUSE OF DISCRETION IN MODIFYING THE
DECISION RENDERED BY THE REGIONAL TRIAL COURT
WITHOUT TAKING INTO CONSIDERATION THAT, ASIDE
83
FROM THE DECLARATION OF THE VALIDITY OF THE
SALE, THE PETITIONERS HEREIN HAVE TAKEN ACTUAL
POSSESSION OF THE SAID ONE-HALF (1/2) TO THE
EXCLUSION OF THE RESPONDENTS AND INTRODUCED
IMPROVEMENTS THEREON.
II
THE HONORABLE COURT OF APPEALS COMMITTED A
GRAVE ABUSE OF DISCRETION IN MODIFYING THE
DECISION RENDERED BY THE REGIONAL TRIAL COURT
WITHOUT TAKING INTO CONSIDERATION THE CLEAR
AND UNEQUIVOCAL STATEMENT IN THE SALE THAT THE
SAME PERTAINS TO THE CONJUGAL SHARE OF
RESPONDENT NARCISA PRADO AND THE OTHER
RESPONDENTS HAD NO FINANCIAL CAPACITY TO
ACQUIRE THE SAID PROPERTY SINCE THEY WERE
MINORS THEN AT THE ISSUANCE OF THE SAID TCT NO.
71344 ON AUGUST 15, 1963.
III
THE HONORABLE COURT OF APPEALS COMMITTED A
GRAVE ABUSE OF DISCRETION IN NOT DECLARING THE
HEREIN RESPONDENTS GUILTY OF LACHES IN FILING
THE INSTANT CASE ONLY ON APRIL 8, 1991, THAT IS
18 YEARS AFTER THE SAID SALE WITH THE
PETITIONERS TAKING ACTUAL POSSESSION OF SAID
PORTION OF THE PROPERTY.
IV
THAT THE DECISION OF THE HON. COURT OF APPEALS
WILL UNDULY ENRICH THE RESPONDENTS AT THE
EXPENSE OF THE HEREIN PETITIONERS.[13]
At the outset, it must be stressed that only questions of
law may be raised in petitions for review before this
Court under Rule 45 of the Rules of Court.[14] It was
thus error for petitioners to ascribe to the Court of
Appeals grave abuse of discretion. This procedural lapse
notwithstanding, in the interest of justice, this Court
shall treat the issues as cases of reversible error.[15]
The issues for resolution are: (1) Is the subject property
conjugal or paraphernal? (2) Is the transaction a sale or
a mortgage? (3) Assuming that the transaction is a sale,
what was the area of the land subject of the sale?
Article 160 of the Civil Code, which was in effect at the
time the sale was entered into, provides that all property
of the marriage is presumed to belong to the conjugal
partnership unless it is proved that it pertains
exclusively to the husband or to the wife. Proof of
acquisition during the marriage is a condition sine qua
non in order for the presumption in favor of conjugal
ownership to operate.[16]
In the instant case, while Narcisa testified during cross-
examination that she bought the subject property from
Peoples Homesite Housing Corporation with her own
funds,[17] she, however admitted in the Agreement of
Purchase and Sale and the Deed of Absolute Sale that
the property was her conjugal share with her first
husband, Patricio, Sr.[18] A verbal assertion that she
bought the land with her own funds is inadmissible to
qualify the terms of a written agreement under the
parole evidence rule.[19] The so-called parole evidence
rule forbids any addition to or contradiction of the terms
of a written instrument by testimony or other evidence
purporting to show that, at or before the execution of
the parties written agreement, other or different terms
were agreed upon by the parties, varying the purport of
the written contract. Whatever is not found in the
writing is understood to have been waived and
abandoned.[20]
Anent the second issue, the Deed of Absolute Sale
executed by Narcisa in favor of Tomas is contained in a
notarized[21] document. In Spouses Alfarero, et al. v.
Spouses Sevilla, et al.,[22] it was held that a public
document executed and attested through the
intervention of a notary public is evidence of the facts in
a clear, unequivocal manner therein expressed.
Otherwise stated, public or notarial documents, or those
instruments duly acknowledged or proved and certified
as provided by law, may be presented in evidence
without further proof, the certificate of acknowledgment
being prima facie evidence of the execution of the
instrument or document involved. In order to contradict
the presumption of regularity of a public document,
evidence must be clear, convincing, and more than
merely preponderant.
It is well-settled that in civil cases, the party that alleges
a fact has the burden of proving it.[23] Except for the
bare allegation that the transaction was one of
mortgage and not of sale, respondents failed to adduce
evidence in support thereof. Respondents also failed to
controvert the presumption that private transactions
have been fair and regular.[24]
Furthermore, Narcisa, in fact did not deny that she
executed an Affidavit allowing spouses Wilfredo and
Flordeliza Flora to construct a firewall between the two-
storey duplex and her house sometime in 1976. The
duplex was made of strong materials, the roofing being
galvanized sheets. While the deed of sale between
Tomas and Narcisa was never registered nor annotated
on the title, respondents had knowledge of the
possession of petitioners of the northern half portion of
the property. Obviously, respondents recognized the
ownership of Tomas, petitioners predecessor-in-
interest.
Respondents belatedly claimed that only P5,000.00 out
of the P10,500.00 consideration was paid. Both the
Agreement of Purchase and Sale and the Deed of
Absolute Sale state that said consideration was paid in
full. Moreover, the presumption is that there was
sufficient consideration for a written contract.[25]
The property being conjugal, upon the death of Patricio
Prado, Sr., one-half of the subject property was
automatically reserved to the surviving spouse, Narcisa,
as her share in the conjugal partnership. Particios rights
to the other half, in turn, were transmitted upon his
death to his heirs, which includes his widow Narcisa,
who is entitled to the same share as that of each of the
legitimate children. Thus, as a result of the death of
84
Patricio, a regime of co-ownership arose between Furthermore, the case is REMANDED to the court of
Narcisa and the other heirs in relation to the property. origin, only for the purpose of determining the specific
The remaining one-half was transmitted to his heirs by portion being conveyed in favor of Tomas Calpatura, Sr.
intestate succession. By the law on intestate succession, pursuant to the partition that will be agreed upon by the
his six children and Narcisa Prado inherited the same at respondents.
one-seventh (1/7) each pro indiviso.[26] Inasmuch as
Narcisa inherited one-seventh (1/7) of her husband's SO ORDERED.
conjugal share in the said property and is the owner of
one-half (1/2) thereof as her conjugal share, she owns
a total of 9/14 of the subject property. Hence, Narcisa
could validly convey her total undivided share in the
entire property to Tomas. Narcisa and her children are
deemed co-owners of the subject property.

Neither can the respondents invoke the proscription of

encumbering the property within 25 years from
acquisition. In Sarmiento, et al. v. Salud, et al.,[27] it
was held that:

xxx The condition that the appellees Sarmiento spouses

could not resell the property except to the Peoples
Homesite and Housing Corporation (PHHC for short)
within the next 25 years after appellees purchasing the
lot is manifestly a condition in favor of the PHHC, and
not one in favor of the Sarmiento spouses. The condition
conferred no actionable right on appellees herein, since
it operated as a restriction upon their jus disponendi of
the property they bought, and thus limited their right of
ownership. It follows that on the assumption that the
mortgage to appellee Salud and the foreclosure sale
violated the condition in the Sarmiento contract, only
the PHHC was entitled to invoke the condition
aforementioned, and not the Sarmientos. The validity or
invalidity of the sheriff's foreclosure sale to appellant
Salud thus depended exclusively on the PHHC; the latter
could attack the sale as violative of its right of exclusive
reacquisition; but it (PHHC) also could waive the
condition and treat the sale as good, in which event, the
sale can not be assailed for breach of the condition
aforestated.

Finally, no particular portion of the property could be

identified as yet and delineated as the object of the sale
considering that the property had not yet been
partitioned in accordance with the Rules of Court.[28]
While Narcisa could validly sell one half of the subject
property, her share being 9/14 of the same, she could
not have particularly conveyed the northern portion
thereof before the partition, the terms of which was still
to be determined by the parties before the trial court.

WHEREFORE, the Decision of the Court of Appeals on

October 3, 2002, as well as the Resolution dated
January 14, 2003 is PARTLY AFFIRMED subject to the
following MODIFICATIONS:

1) Narcisa Prado is entitled to 9/14 of the residential

land consisting of 552.20 square meters, more or less,
situated at 19th Avenue, Murphy, Quezon City and
covered by Transfer Certificate of Title No. 71344;

2) the sale of the undivided one half portion thereof by

Narcisa Prado in favor of Tomas Calpatura, Sr. is valid.

85
86
Felipe vs. Heirs of Aldon (February 16, 1983)
G.R. No. L-60174 February 16, 1983
EDUARDO FELIPE, HERMOGENA V. FELIPE
VICENTE V. FELIPE, petitioners,
vs.
HEIRS OF MAXIMO ALDON, NAMELY: GIMENA
ALMOSARA, SOFIA ALDON, SALVADOR ALDON, AND
THE HONORABLE COURT OF APPEALS, respondents.
derived from the lands including expenses incurred
since 1951, and to solidarity turn over to the plaintiffs-
appellants the NET monetary value of the profits, after
deducting the sum of P1,800.00. No attorney's fees nor
AND
moral damages are awarded for lack of any legal
justification therefor. No. costs.
The ratio of the judgment is stated in the following
paragraphs of the decision penned by Justice Edgardo L.
Paras with the concurrence of Justices Venicio Escolin
and Mariano A. Zosa:

Romulo D. San Juan for petitioner.
Gerundino Castillejo for private respondent.
ABAD SANTOS, J.:
Maximo Aldon married Gimena Almosara in 1936. The
spouses bought several pieces of land sometime
between 1948 and 1950. In 1960-62, the lands were
divided into three lots, 1370, 1371 and 1415 of the San
Jacinto Public Land Subdivision, San Jacinto, Masbate.
In 1951, Gimena Almosara sold the lots to the spouses
Eduardo Felipe and Hermogena V. Felipe. The sale was
made without the consent of her husband, Maximo.
On April 26, 1976, the heirs of Maximo Aldon, namely
his widow Gimena and their children Sofia and Salvador
Aldon, filed a complaint in the Court of First Instance of
Masbate against the Felipes. The complaint which was
docketed as Civil Case No. 2372 alleged that the
plaintiffs were the owners of Lots 1370, 1371 and 1415;
that they had orally mortgaged the same to the
defendants; and an offer to redeem the mortgage had
been refused so they filed the complaint in order to
recover the three parcels of land.
The defendants asserted that they had acquired the lots
from the plaintiffs by purchase and subsequent delivery
to them. The trial court sustained the claim of the
defendants and rendered the following judgment:
a. declaring the defendants to be the lawful owners of
the property subject of the present litigation;
b. declaring the complaint in the present action to be
without merit and is therefore hereby ordered
dismissed;
c. ordering the plaintiffs to pay to the defendants the
amount of P2,000.00 as reasonable attorney's fees and
to pay the costs of the suit.
The plaintiffs appealed the decision to the Court of
Appeals which rendered the following judgment:
PREMISES CONSIDERED, the decision appealed from is
hereby REVERSED and SET ASIDE, and a new one is
hereby RENDERED, ordering the defendants-appellees
to surrender the lots in question as well as the plaintiffs'-
appellants' muniments of title thereof to said plaintiffs-
appellants, to make an accounting of the produce
One of the principal issues in the case involves the
nature of the aforementioned conveyance or
transaction, with appellants claiming the same to be an
oral contract of mortgage or antichresis, the redemption
of which could be done anytime upon repayment of the
P1,800.00 involved (incidentally the only thing written
about the transaction is the aforementioned receipt re
the P1,800). Upon the other hand, appellees claim that
the transaction was one of sale, accordingly, redemption
was improper. The appellees claim that plaintiffs never
conveyed the property because of a loan or mortgage or
antichresis and that what really transpired was the
execution of a contract of sale thru a private document
designated as a 'Deed of Purchase and Sale' (Exhibit 1),
the execution having been made by Gimena Almosara
in favor of appellee Hermogena V. Felipe.
After a study of this case, we have come to the
conclusion that the appellants are entitled to recover the
ownership of the lots in question. We so hold because
although Exh. 1 concerning the sale made in 1951 of the
disputed lots is, in Our opinion, not a forgery the fact is
that the sale made by Gimena Almosara is invalid,
having been executed without the needed consent of her
husband, the lots being conjugal. Appellees' argument
that this was an issue not raised in the pleadings is
baseless, considering the fact that the complaint alleges
that the parcels 'were purchased by plaintiff Gimena
Almosara and her late husband Maximo Aldon' (the lots
having been purchased during the existence of the
marriage, the same are presumed conjugal) and
inferentially, by force of law, could not, be disposed of
by a wife without her husband's consent.
The defendants are now the appellants in this petition
for review. They invoke several grounds in seeking the
reversal of the decision of the Court of Appeals. One of
the grounds is factual in nature; petitioners claim that
"respondent Court of Appeals has found as a fact that
the 'Deed of Purchase and Sale' executed by respondent
Gimena Almosara is not a forgery and therefore its
authenticity and due execution is already beyond
question." We cannot consider this ground because as a
rule only questions of law are reviewed in proceedings
under Rule 45 of the Rules of Court subject to well-
defined exceptions not present in the instant case.
The legal ground which deserves attention is the legal
effect of a sale of lands belonging to the conjugal
partnership made by the wife without the consent of the
husband.

87
It is useful at this point to re-state some elementary
rules: The husband is the administrator of the conjugal
partnership. (Art. 165, Civil Code.) Subject to certain
exceptions, the husband cannot alienate or encumber
any real property of the conjugal partnership without
the wife's consent. (Art. 166, Idem.) And the wife
cannot bind the conjugal partnership without the
husband's consent, except in cases provided by law.
(Art. 172, Idem.)
In the instant case, Gimena, the wife, sold lands
belonging to the conjugal partnership without the
consent of the husband and the sale is not covered by
the phrase "except in cases provided by law." The Court
of Appeals described the sale as "invalid" - a term which
is imprecise when used in relation to contracts because
the Civil Code uses specific names in designating
defective contracts, namely: rescissible (Arts. 1380 et
seq.), voidable(Arts. 1390 et seq.), unenforceable (Arts.
1403, et seq.), and void or inexistent (Arts. 1409 et
seq.)
The sale made by Gimena is certainly a defective
contract but of what category? The answer: it is a
voidable contract.
According to Art. 1390 of the Civil Code, among the
voidable contracts are "[T]hose where one of the parties
is incapable of giving consent to the contract." (Par. 1.)
In the instant case-Gimena had no capacity to give
consent to the contract of sale. The capacity to give
consent belonged not even to the husband alone but to
both spouses.
The view that the contract made by Gimena is a voidable
contract is supported by the legal provision that
contracts entered by the husband without the consent
of the wife when such consent is required, are annullable
at her instance during the marriage and within ten years
from the transaction questioned. (Art. 173, Civil Code.)
Gimena's contract is not rescissible for in such contract
all the essential elements are untainted but Gimena's
consent was tainted. Neither can the contract be
classified as unenforceable because it does not fit any of
those described in Art. 1403 of the Civil Code. And
finally, the contract cannot be void or inexistent because
it is not one of those mentioned in Art. 1409 of the Civil
Code. By process of elimination, it must perforce be a
voidable contract.
The voidable contract of Gimena was subject to
annulment by her husband only during the marriage
because he was the victim who had an interest in the
contract. Gimena, who was the party responsible for the
defect, could not ask for its annulment. Their children
could not likewise seek the annulment of the contract
while the marriage subsisted because they merely had
an inchoate right to the lands sold.
The termination of the marriage and the dissolution of
the conjugal partnership by the death of Maximo Aldon
did not improve the situation of Gimena. What she could
not do during the marriage, she could not do thereafter.
The case of Sofia and Salvador Aldon is different. After
the death of Maximo they acquired the right to question
the defective contract insofar as it deprived them of
their hereditary rights in their father's share in the
lands. The father's share is one-half (1/2) of the lands
and their share is two-thirds (2/3) thereof, one-third
(1/3) pertaining to the widow.
The petitioners have been in possession of the lands
since 1951. It was only in 1976 when the respondents
filed action to recover the lands. In the meantime,
Maximo Aldon died.
Two questions come to mind, namely: (1) Have the
petitioners acquired the lands by acquisitive
prescription? (2) Is the right of action of Sofia and
Salvador Aldon barred by the statute of limitations?
Anent the first question, We quote with approval the
following statement of the Court of Appeals:
We would like to state further that appellees [petitioners
herein] could not have acquired ownership of the lots by
prescription in view of what we regard as their bad faith.
This bad faith is revealed by testimony to the effect that
defendant-appellee Vicente V. Felipe (son of appellees
Eduardo Felipe and Hermogena V. Felipe) attempted in
December 1970 to have Gimena Almosara sign a ready-
made document purporting to self the disputed lots to
the appellees. This actuation clearly indicated that the
appellees knew the lots did not still belong to them,
otherwise, why were they interested in a document of
sale in their favor? Again why did Vicente V. Felipe tell
Gimena that the purpose of the document was to obtain
Gimena's consent to the construction of an irrigation
pump on the lots in question? The only possible reason
for purporting to obtain such consent is that the
appellees knew the lots were not theirs. Why was there
an attempted improvement (the irrigation tank) only in
1970? Why was the declaration of property made only
in 1974? Why were no attempts made to obtain the
husband's signature, despite the fact that Gimena and
Hermogena were close relatives? An these indicate the
bad faith of the appellees. Now then, even if we were to
consider appellees' possession in bad faith as a
possession in the concept of owners, this possession at
the earliest started in 1951, hence the period for
extraordinary prescription (30 years) had not yet lapsed
when the present action was instituted on April 26,
1976.
As to the second question, the children's cause of action
accrued from the death of their father in 1959 and they
had thirty (30) years to institute it (Art. 1141, Civil
Code.) They filed action in 1976 which is well within the
period.
WHEREFORE, the decision of the Court of Appeals is
hereby modified. Judgment is entered awarding to Sofia
and Salvador Aldon their shares of the lands as stated
in the body of this decision; and the petitioners as
possessors in bad faith shall make an accounting of the
fruits corresponding to the share aforementioned from
1959 and solidarity pay their value to Sofia and Salvador
Aldon; costs against the petitioners.
88
SO ORDERED.

89
Eastern vs. Lucero (124 SCRA 326)
G.R. No. L-60101 August 31, 1983
EASTERN SHIPPING LINES, INC., petitioner,
vs.
JOSEPHINE LUCERO, respondents.
Valera, Cainglet & Dala Law Office for petitioner.
Jose R. Millares for private respondent.
ESCOLIN, J.:
Petition for review filed by the Eastern Shipping Lines,
Inc. to set aside the decision of the National Labor
Relations Commission, which affirmed the judgment
rendered by the National Seamen Board, the dispositive
portion of which reads as follows:
WHEREFORE, respondent is hereby ordered to pay
complainant her monthly allotments from March, 1980
up to the amount of P54,562.00 within ten (10) days
from receipt of this decision. Respondent is likewise
further ordered to pay complainant her future monthly
allotment up to the arrival of the M/V EASTERN
MINICON in the port of Manila or after four (4) years
when the presumptive death established by law takes
effect.
The material facts that gave rise to this petition are as
follows: On October 31, 1979, Capt. Julio J. Lucero, Jr.
was appointed by petitioner Eastern Shipping Lines,
Inc., Company for short, as master/captain to its vessel
M/V Eastern Minicon plying the HongkongManila route,
with the salary of P5,560.00 exclusive of ship board
allowances and other benefits. Under the contract, his
employment was good for one (1) round trip only, i.e.,
the contract would automatically terminate upon arrival
of the vessel at the Port of Manila, unless renewed. It
was further agreed that part of the captain's salary,
while abroad, should be paid to Mrs. Josephine Lucero,
his wife, in Manila.
On February 16, 1980, while the vessel was enroute
from Hongkong to Manila where it was expected to
arrive on February 18, 1980, Capt. Lucero sent three (3)
messages to the Company's Manila office:
First Message: 1
February l6,1980 0700 GMT Via Intercom
EMINICON
Urgent Eastship Manila
REGRET TO INFORM YOU ENCOUNTERED BOISTEROUS
WEATHER WITH STRONG NORTHEASTERLY WINDS
WITH GAIL FORCE CAUSING THE VESSEL ROLLING AND
PITCHING VIOLENTLY VESSEL NOW INCLINING 15 TO
20 DEGREES PORT FEARING MIGHT JETTISON CARGO
ON DECK IF EVERYTHING COME TO WORSE SITUATION
HOWEVER TRYING UTMOST BEST TO FACILITATE
EVERYTHING IN ORDER STOP NO FIX POSITIONS FROM
NOON 15th UP TO 0600 HRS TO DATE NEED
ASSISTANCE APPROXIMATE DR POSITIONS AT 0600
HRS 10TH WITHIN THE VICINITY LATITUDE 20-02, ON
LONGTITUDE 110-02, OE COURSE 120 DEGREES
REGARDS ...
LUCERO
Second Message: 2
February l6/80 1530 GMT VIA INTERCOM
EMICON
EAST SHIP MANILA
RYC NOTED ACCORDINGLY SINCE WASTE PAPER
CARGO ON PORT SIDE AND HAD BEEN WASH OUT
VESSEL AGAIN LISTING ON STARBOARD SIDE REGRET
WE HAVE TO JETTISON STARBOARD SIDE WASTE
PAPER CARGO IN ORDER TO BALANCE THE VESSEL
NOW ALMOST BACK TO NORMAL POSITION HOWEVER
VESSEL STILL LABORING VIOLENTLY REGARDS
LUCERO
Third Message: 3
FEBRUARY 16/80 2150 HRS
PHILIPPINE COAST GUARD
NEED IMMEDIATE ASSISTANCE POSITION 19-35 N 116-
40 E SEAWATER ENTERING INSIDE HATCH VESSEL
INCLINING 15 TO 20 DEGREES PORT IF POSSIBLE SEND
IMMEDIATE ASSISTANCE VESSEL IN DANGER
PREPARING TO ABANDON ANYTIME
MASTER
Acting on these radio messages, the Company,
respondent below, took the following steps:
RESPONDENT informed of the grave situation,
immediately reported the matter to the Philippine Coast
Guard for search and rescue operation and the same
was coordinated with the U.S. Air Force based at Clark
Air Base. Respondent also released radio messages to
all vessels passing the Hongkong/Manila route
requesting them to be very cautious and vigilant for
possible survivors and to scan the area whether there
are signs of debris from the ill-fated vessel "EASTERN
MINICON" which has foundered In the meantime, two
(2) vessels of the respondent were also dispatched to
the area last reported by the Master for search and
rescue operation, but the collective efforts of all parties
concerned yielded negative results, (p. 79, Rollo)
Subsequently, the Lloyds of London, insurer of the M/V
Eastern Minicon through its surveyors, confirmed the
loss of the vessel. Thereafter, the Company paid the
corresponding death benefits to the heirs of the crew
members, except respondent Josephine Lucero, who
refused to accept the same.
90
On July 16, 1980, Mrs. Lucerofiled a complaint with -the
National Seamen Board, Board for short, for payment of
her accrued monthly allotment of P3,183.00, which the
Company had stopped since March 1980 and for
continued payment of said allotments until the M/V
Minicon shall have returned to the port of Manila. She
contended that the contract of employment entered into
by her husband with the Company was on a voyage-to-
voyage basis, and that the same was to terminate only
upon the vessel's arrival in Manila.
Upon the other hand, the Company maintained that Mrs.
Lucero was no longer entitled to such allotments
because: [a] the Lloyds of London had already
confirmed the total loss of the vessel and had in fact
settled the company's insurance claim and [b] the
Company, with the approval of the Board, had likewise
paid the corresponding death benefits to the heirs of the
other seamen The Company further invoked the
provisions of Article 643 of the Code of Commerce, to
wit:
Art. 643. If the vessel and her cargo should be totally
lost, by reason of capture or wreck, all rights shall be
extinguished, both as regards the crew to demand any
wages whatsoever, and as regards the ship agent to
recover the advances made.
xxx xxx xxx
On May 19, 1981, the Board rendered the aforecited
judgment in favor of Mrs. Josephine Lucero and against
petitioner Company. The Board held that the
presumption of death could not be applied because the
four-year period provided for by Article 391(l) of the
Civil Code had not yet expired; and that the payment of
death benefits to the heirs of the other crew 'members
was based upon a voluntary agreement entered into by
and between the heirs and the Company, and did not
bind respondent Mrs. Lucero who was not a party
thereto.
On appeal, the respondent National Labor Relations
Conunission affirmed the said decision. It held that:
Within the context of the foregoing circumstances, the
only recourse is to presume the vessel totally lost and
its crew members dead. But in this connection, the
question that comes to the fore is: When will the
presumption arise? Article 391 of the Civil Code provides
the answer, to wit:
Art. 391. The following shall be presumed dead for all
purposes, including the division of the estate among the
heirs: (1) A person on board a vessel lost during a sea
voyage, or an aeroplane which is missing, who has not
been heard of for four years since the loss of the vessel
or aeroplane;...
By the aforequoted law, it is quite clear that the person
to be presumed dead should first "not been heard of for
four years since the loss of the vessel" before he can be
presumed dead for all purposes. Applied to Capt.
LUCERO, it is evidently premature to presume him dead
as four years has not yet expired. Thus, even in Judge
Advocate General vs. Gonzales, et al., (CA) 48 O.G.
5329, the very case cited by the respondent herein, the
court Id. in the case of the missing soldier that although
nothing was heard of him since 7 May 1942, the fact of
his death is not presumed until seven years after 1942.
Since Capt. LUCERO cannot yet be presumed dead as
demonstrated hereinabove, it logically follows that as of
now, he is presumed have It is of no moment to Us that
the vessel was conceded by the Lloyds of London to
have been totally lost which, in the first place, was
admittedly merely based on presumption as even the
whereabouts of the vessel remains unknown. Similarly,
even the agreement, which formed the basis of the
Decision of the NSB ordering payment of death benefits
to the heirs of some of the crew must have been
predicated upon a presumption of death of the crew
members concerned. Such circumstances do not suffice
to establish the actual death of Capt. LUCERO.
xxx xxx xxx
Indeed, by the terms of the appointment of Capt.
LUCERO, his engagement terminates upon the return of
the vessel at the Port of Manila. He is considered to be
still working entitling his spouse to allotment until the
vessel returns or until it is officially declared totally lost,
or until the presumption of his death becomes effective
in which case the burden of proving that he is alive is
shifted to his wife for purposes of continuing her
allotment.
We are unable to agree with the reasoning and
conclusion of the respondent NLRC.
It is undisputed that on February 16, 1980, the
Company received three (3) radio messages from Capt.
Lucero on board the M/V Eastern Minicon the last of
which, received at 9:50 p.m. of that day, was a call for
immediate assistance in view of the existing "danger":
"sea water was entering the hatch"; the vessel "was
listing 50 to 60 degrees port," and they were "preparing
to abandon the ship any time.' After this message,
nothing more has been heard from the vessel or its crew
until the present time.
There is thus enough evidence to show the
circumstances attending the loss and disappearance of
the M/V Eastern Minicon and its crew. The foregoing
facts, quite logically. are sufficient to lead Us to a moral
certainty that the vessel had sunk and that the persons
aboard had perished with it. upon this premise, the rule
on presumption of death under Article 391 (1) of the
Civil Code must yield to the rule of preponderance of
evidence. As this Court said in Joaquin vs. Navarro 4
"Where there are facts, known or knowable, from which
a rational conclusion can be made, the presumption
does not step in, and the rule of preponderance of
evidence controls."
Of similar import is the following pronouncement from
American Jurisprudence: 5
Loss of Vessel.— Where a vessel sets out on a voyage
and neither the vessel nor those who went in her are
91
afterward heard of, the presumption arises, after the In view of the conclusion arrived at above, We deem it
utmost limit of time for her to have completed the unnecessary to discuss the other issued raised in this
voyage and for news of her arrival at any commercial case, they being mere adjuncts to the principa issue
port of the world to have been received, that the vessel already disposed of.
has been lost and that all on board have perished. The
presumption of death in such cases does not rest on the WHEREFORE, the decision of the NLRC subject of this
fact alone that the person in question has been absent petition is hereby set aside, and the complaint of
and unheard from for a specific length of time, but also respondent Josephine Lucero dismissed. However, Mrs.
on the fact that the vessel has not been heard front The Lucero is entitled to death benefits. No costs.
question, moreover, is not whether it is impossible that
SO ORDERED.
the person may be alive, but whether the circumstances
do not present so strong a probability of his death that
a court should act thereon. The presumption of death
from absence of tidings of the vessel on which the
absentee sailed is strengthened by proof of a storm to
which the vessel probably was exposed. The
presumption is even stronger where it appears
affirmatively that the vessel was lost at sea, that
nothing has been heard of a particular person who sailed
thereon, and that a sufficient time has elapsed to permit
the receipt of news of any possible survivors of the
disaster.

In People vs. Ansang 6 where, in open sea, the appellant

aboard a vinta ignited three home-made bombs and
threw them at the boat occupied by the victims, and the
said boat was later washed ashore and the passengers
thereof were never heard or seen again by anybody, this
Court convicted the appellant of multiple murder,
holding that the victims were dead.

Similarly, in People vs. Sasota, 7 the claim of the

appellants therein that there was no conclusive evidence
of death of the victim because his body was never found
was overruled by this Court in this wise:

In a case of murder or homicide, it is not necessary to

recover the body or to show where it can be found. 'Mere
are cases like death at sea, where the finding or
recovery of the body is impossible. It is enough that the
death and the criminal agency be proven. There are
even cases where said death and the intervention of the
criminal agency that caused it may be presumed or
established by circumstantial evidence.

Moreover, it may be remembered that in several treason

cages decided by this Court, where besides the act of
treason the accused is held responsible for the death of
persons he had or tortured and later taken away, where
the victims were never later seen or heard from, it has
been presumed that they were lulled or otherwise
criminally disposed of or liquidated by the accused this,
for the purpose of fixing the penalty.

If in the foregoing criminal cases, where the proof

required for conviction must be beyond reasonable
doubt, the rule of presumption was not applied and the
fact of death was deemed established, with more reason
is this Court justified in entering a finding of death.
Indeed, We cannot permit Article 391 to override, or be
substituted for, the facts established in this case which
logically indicate to a moral certainty that Capt. Lucero
died shortly after he had sent his last radio message at
9:50 p.m. on February 16, 1980.

92
Emnace vs. CA (370 SCRA 431, November 23,
2001)
[G.R. No. 126334. November 23, 2001]
EMILIO EMNACE, petitioner, vs. COURT OF APPEALS,
ESTATE OF
VICENTE TABANAO, SHERWIN TABANAO, VICENTE
WILLIAM TABANAO, JANETTE TABANAO DEPOSOY,
VICENTA MAY TABANAO VARELA, ROSELA TABANAO
and VINCENT TABANAO, respondents.
DECISION
YNARES-SANTIAGO, J.:
Petitioner Emilio Emnace, Vicente Tabanao and Jacinto
Divinagracia were partners in a business concern known
as Ma. Nelma Fishing Industry. Sometime in January of
1986, they decided to dissolve their partnership and
executed an agreement of partition and distribution of
the partnership properties among them, consequent to
Jacinto Divinagracias withdrawal from the
partnership.[1] Among the assets to be distributed were
five (5) fishing boats, six (6) vehicles, two (2) parcels of
land located at Sto. Nio and Talisay, Negros Occidental,
and cash deposits in the local branches of the Bank of
the Philippine Islands and Prudential Bank.
Throughout the existence of the partnership, and even
after Vicente Tabanaos untimely demise in 1994,
petitioner failed to submit to Tabanaos heirs any
statement of assets and liabilities of the partnership,
and to render an accounting of the partnerships
finances. Petitioner also reneged on his promise to turn
over to Tabanaos heirs the deceaseds 1/3 share in the
total assets of the partnership, amounting to
P30,000,000.00, or the sum of P10,000,000.00, despite
formal demand for payment thereof.[2]
Consequently, Tabanaos heirs, respondents herein, filed
against petitioner an action for accounting, payment of
shares, division of assets and damages.[3] In their
complaint, respondents prayed as follows:
1. Defendant be ordered to render the proper
accounting of all the assets and liabilities of the
partnership at bar; and
2. After due notice and hearing defendant be ordered to
pay/remit/deliver/surrender/yield to the plaintiffs the
following:
A. No less than One Third (1/3) of the assets, properties,
dividends, cash, land(s), fishing vessels, trucks, motor
vehicles, and other forms and substance of treasures
which belong and/or should belong, had accrued and/or
must accrue to the partnership;
B. No less than Two Hundred Thousand Pesos
(P200,000.00) as moral damages;
C. Attorneys fees equivalent to Thirty Percent (30%) of
the entire share/amount/award which the Honorable
Court may resolve the plaintiffs as entitled to plus
P1,000.00 for every appearance in court.[4]
Petitioner filed a motion to dismiss the complaint on the
grounds of improper venue, lack of jurisdiction over the
nature of the action or suit, and lack of capacity of the
estate of Tabanao to sue.[5] On August 30, 1994, the
trial court denied the motion to dismiss. It held that
venue was properly laid because, while realties were
involved, the action was directed against a particular
person on the basis of his personal liability; hence, the
action is not only a personal action but also an action in
personam. As regards petitioners argument of lack of
jurisdiction over the action because the prescribed
docket fee was not paid considering the huge amount
involved in the claim, the trial court noted that a request
for accounting was made in order that the exact value
of the partnership may be ascertained and, thus, the
correct docket fee may be paid. Finally, the trial court
held that the heirs of Tabanao had a right to sue in their
own names, in view of the provision of Article 777 of the
Civil Code, which states that the rights to the succession
are transmitted from the moment of the death of the
decedent.[6]
The following day, respondents filed an amended
complaint,[7] incorporating the additional prayer that
petitioner be ordered to sell all (the partnerships) assets
and thereafter pay/remit/deliver/surrender/yield to the
plaintiffs their corresponding share in the proceeds
thereof. In due time, petitioner filed a manifestation and
motion to dismiss,[8] arguing that the trial court did not
acquire jurisdiction over the case due to the plaintiffs
failure to pay the proper docket fees. Further, in a
supplement to his motion to dismiss,[9] petitioner also
raised prescription as an additional ground warranting
the outright dismissal of the complaint.
On June 15, 1995, the trial court issued an Order,[10]
denying the motion to dismiss inasmuch as the grounds
raised therein were basically the same as the earlier
motion to dismiss which has been denied. Anent the
issue of prescription, the trial court ruled that
prescription begins to run only upon the dissolution of
the partnership when the final accounting is done.
Hence, prescription has not set in the absence of a final
accounting. Moreover, an action based on a written
contract prescribes in ten years from the time the right
of action accrues.
Petitioner filed a petition for certiorari before the Court
of Appeals,[11] raising the following issues:
I. Whether or not respondent Judge acted without
jurisdiction or with grave abuse of discretion in taking
cognizance of a case despite the failure to pay the
required docket fee;
II. Whether or not respondent Judge acted without
jurisdiction or with grave abuse of discretion in insisting
to try the case which involve (sic) a parcel of land
situated outside of its territorial jurisdiction;
III. Whether or not respondent Judge acted without
jurisdiction or with grave abuse of discretion in allowing
93
the estate of the deceased to appear as party plaintiff,
when there is no intestate case and filed by one who
was never appointed by the court as administratrix of
the estates; and
IV. Whether or not respondent Judge acted without
jurisdiction or with grave abuse of discretion in not
dismissing the case on the ground of prescription.
On August 8, 1996, the Court of Appeals rendered the
assailed decision,[12] dismissing the petition for
certiorari, upon a finding that no grave abuse of
discretion amounting to lack or excess of jurisdiction
was committed by the trial court in issuing the
questioned orders denying petitioners motions to
dismiss.
Not satisfied, petitioner filed the instant petition for
review, raising the same issues resolved by the Court of
Appeals, namely:
I. Failure to pay the proper docket fee;
II. Parcel of land subject of the case pending before the
trial court is outside the said courts territorial
jurisdiction;
III. Lack of capacity to sue on the part of plaintiff heirs
of Vicente Tabanao; and
IV. Prescription of the plaintiff heirs cause of action.
It can be readily seen that respondents primary and
ultimate objective in instituting the action below was to
recover the decedents 1/3 share in the partnerships
assets. While they ask for an accounting of the
partnerships assets and finances, what they are actually
asking is for the trial court to compel petitioner to pay
and turn over their share, or the equivalent value
thereof, from the proceeds of the sale of the partnership
assets. They also assert that until and unless a proper
accounting is done, the exact value of the partnerships
assets, as well as their corresponding share therein,
cannot be ascertained. Consequently, they feel justified
in not having paid the commensurate docket fee as
required by the Rules of Court.
We do not agree. The trial court does not have to employ
guesswork in ascertaining the estimated value of the
partnerships assets, for respondents themselves
voluntarily pegged the worth thereof at Thirty Million
Pesos (P30,000,000.00). Hence, this case is one which
is really not beyond pecuniary estimation, but rather
partakes of the nature of a simple collection case where
the value of the subject assets or amount demanded is
pecuniarily determinable.[13] While it is true that the
exact value of the partnerships total assets cannot be
shown with certainty at the time of filing, respondents
can and must ascertain, through informed and practical
estimation, the amount they expect to collect from the
partnership, particularly from petitioner, in order to
determine the proper amount of docket and other
fees.[14] It is thus imperative for respondents to pay
the corresponding docket fees in order that the trial
court may acquire jurisdiction over the action.[15]
Nevertheless, unlike in the case of Manchester
Development Corp. v. Court of Appeals,[16] where
there was clearly an effort to defraud the government in
avoiding to pay the correct docket fees, we see no
attempt to cheat the courts on the part of respondents.
In fact, the lower courts have noted their expressed
desire to remit to the court any payable balance or lien
on whatever award which the Honorable Court may
grant them in this case should there be any deficiency
in the payment of the docket fees to be computed by
the Clerk of Court.[17] There is evident willingness to
pay, and the fact that the docket fee paid so far is
inadequate is not an indication that they are trying to
avoid paying the required amount, but may simply be
due to an inability to pay at the time of filing. This
consideration may have moved the trial court and the
Court of Appeals to declare that the unpaid docket fees
shall be considered a lien on the judgment award.
Petitioner, however, argues that the trial court and the
Court of Appeals erred in condoning the non-payment of
the proper legal fees and in allowing the same to
become a lien on the monetary or property judgment
that may be rendered in favor of respondents. There is
merit in petitioners assertion. The third paragraph of
Section 16, Rule 141 of the Rules of Court states that:
The legal fees shall be a lien on the monetary or
property judgment in favor of the pauper-litigant.
Respondents cannot invoke the above provision in their
favor because it specifically applies to pauper-litigants.
Nowhere in the records does it appear that respondents
are litigating as paupers, and as such are exempted
from the payment of court fees.[18]
The rule applicable to the case at bar is Section 5(a) of
Rule 141 of the Rules of Court, which defines the two
kinds of claims as: (1) those which are immediately
ascertainable; and (2) those which cannot be
immediately ascertained as to the exact amount. This
second class of claims, where the exact amount still has
to be finally determined by the courts based on evidence
presented, falls squarely under the third paragraph of
said Section 5(a), which provides:
In case the value of the property or estate or the sum
claimed is less or more in accordance with the appraisal
of the court, the difference of fee shall be refunded or
paid as the case may be. (Underscoring ours)
In Pilipinas Shell Petroleum Corporation v. Court of
Appeals,[19] this Court pronounced that the above-
quoted provision clearly contemplates an initial payment
of the filing fees corresponding to the estimated amount
of the claim subject to adjustment as to what later may
be proved.[20]Moreover, we reiterated therein the
principle that the payment of filing fees cannot be made
contingent or dependent on the result of the case. Thus,
an initial payment of the docket fees based on an
estimated amount must be paid simultaneous with the
filing of the complaint. Otherwise, the court would stand
to lose the filing fees should the judgment later turn out
to be adverse to any claim of the respondent heirs.
94
The matter of payment of docket fees is not a mere
triviality. These fees are necessary to defray court
expenses in the handling of cases. Consequently, in
order to avoid tremendous losses to the judiciary, and
to the government as well, the payment of docket fees
cannot be made dependent on the outcome of the case,
except when the claimant is a pauper-litigant.
Applied to the instant case, respondents have a specific
claim 1/3 of the value of all the partnership assets but
they did not allege a specific amount. They did,
however, estimate the partnerships total assets to be
worth Thirty Million Pesos (P30,000,000.00), in a
letter[21] addressed to petitioner. Respondents cannot
now say that they are unable to make an estimate, for
the said letter and the admissions therein form part of
the records of this case. They cannot avoid paying the
initial docket fees by conveniently omitting the said
amount in their amended complaint. This estimate can
be made the basis for the initial docket fees that
respondents should pay. Even if it were later established
that the amount proved was less or more than the
amount alleged or estimated, Rule 141, Section 5(a) of
the Rules of Court specifically provides that the court
may refund the excess or exact additional fees should
the initial payment be insufficient. It is clear that it is
only the difference between the amount finally awarded
and the fees paid upon filing of this complaint that is
subject to adjustment and which may be subjected to a
lien.
In the oft-quoted case of Sun Insurance Office, Ltd. v.
Hon. Maximiano Asuncion,[22] this Court held that
when the specific claim has been left for the
determination by the court, the additional filing fee
therefor shall constitute a lien on the judgment and it
shall be the responsibility of the Clerk of Court or his
duly authorized deputy to enforce said lien and assess
and collect the additional fee. Clearly, the rules and
jurisprudence contemplate the initial payment of filing
and docket fees based on the estimated claims of the
plaintiff, and it is only when there is a deficiency that a
lien may be constituted on the judgment award until
such additional fee is collected.
Based on the foregoing, the trial court erred in not
dismissing the complaint outright despite their failure to
pay the proper docket fees. Nevertheless, as in other
procedural rules, it may be liberally construed in certain
cases if only to secure a just and speedy disposition of
an action. While the rule is that the payment of the
docket fee in the proper amount should be adhered to,
there are certain exceptions which must be strictly
construed.[23]
In recent rulings, this Court has relaxed the strict
adherence to the Manchester doctrine, allowing the
plaintiff to pay the proper docket fees within a
reasonable time before the expiration of the applicable
prescriptive or reglementary period.[24]
In the recent case of National Steel Corp. v. Court of
Appeals,[25] this Court held that:
The court acquires jurisdiction over the action if the
filing of the initiatory pleading is accompanied by the
payment of the requisite fees, or, if the fees are not paid
at the time of the filing of the pleading, as of the time
of full payment of the fees within such reasonable time
as the court may grant, unless, of course, prescription
has set in the meantime.
It does not follow, however, that the trial court should
have dismissed the complaint for failure of private
respondent to pay the correct amount of docket fees.
Although the payment of the proper docket fees is a
jurisdictional requirement, the trial court may allow the
plaintiff in an action to pay the same within a reasonable
time before the expiration of the applicable prescriptive
or reglementary period. If the plaintiff fails to comply
within this requirement, the defendant should timely
raise the issue of jurisdiction or else he would be
considered in estoppel. In the latter case, the balance
between the appropriate docket fees and the amount
actually paid by the plaintiff will be considered a lien or
any award he may obtain in his favor. (Underscoring
ours)
Accordingly, the trial court in the case at bar should
determine the proper docket fee based on the estimated
amount that respondents seek to collect from petitioner,
and direct them to pay the same within a reasonable
time, provided the applicable prescriptive or
reglementary period has not yet expired. Failure to
comply therewith, and upon motion by petitioner, the
immediate dismissal of the complaint shall issue on
jurisdictional grounds.
On the matter of improper venue, we find no error on
the part of the trial court and the Court of Appeals in
holding that the case below is a personal action which,
under the Rules, may be commenced and tried where
the defendant resides or may be found, or where the
plaintiffs reside, at the election of the latter.[26]
Petitioner, however, insists that venue was improperly
laid since the action is a real action involving a parcel of
land that is located outside the territorial jurisdiction of
the court a quo. This contention is not well-taken. The
records indubitably show that respondents are asking
that the assets of the partnership be accounted for, sold
and distributed according to the agreement of the
partners. The fact that two of the assets of the
partnership are parcels of land does not materially
change the nature of the action. It is an action in
personam because it is an action against a person,
namely, petitioner, on the basis of his personal liability.
It is not an action in rem where the action is against the
thing itself instead of against the person.[27]
Furthermore, there is no showing that the parcels of
land involved in this case are being disputed. In fact, it
is only incidental that part of the assets of the
partnership under liquidation happen to be parcels of
land.
The time-tested case of Claridades v. Mercader, et
al.,[28] settled this issue thus:
95
The fact that plaintiff prays for the sale of the assets of
the partnership, including the fishpond in question, did
not change the nature or character of the action, such
sale being merely a necessary incident of the liquidation
of the partnership, which should precede and/or is part
of its process of dissolution.
The action filed by respondents not only seeks redress
against petitioner. It also seeks the enforcement of, and
petitioners compliance with, the contract that the
partners executed to formalize the partnerships
dissolution, as well as to implement the liquidation and
partition of the partnerships assets. Clearly, it is a
personal action that, in effect, claims a debt from
petitioner and seeks the performance of a personal duty
on his part.[29] In fine, respondents complaint seeking
the liquidation and partition of the assets of the
partnership with damages is a personal action which
may be filed in the proper court where any of the parties
reside.[30] Besides, venue has nothing to do with
jurisdiction for venue touches more upon the substance
or merits of the case.[31] As it is, venue in this case was
properly laid and the trial court correctly ruled so.
On the third issue, petitioner asserts that the surviving
spouse of Vicente Tabanao has no legal capacity to sue
since she was never appointed as administratrix or
executrix of his estate. Petitioners objection in this
regard is misplaced. The surviving spouse does not need
to be appointed as executrix or administratrix of the
estate before she can file the action. She and her
children are complainants in their own right as
successors of Vicente Tabanao. From the very moment
of Vicente Tabanaos death, his rights insofar as the
partnership was concerned were transmitted to his
heirs, for rights to the succession are transmitted from
the moment of death of the decedent.[32]
Whatever claims and rights Vicente Tabanao had
against the partnership and petitioner were transmitted
to respondents by operation of law, more particularly by
succession, which is a mode of acquisition by virtue of
which the property, rights and obligations to the extent
of the value of the inheritance of a person are
transmitted.[33] Moreover, respondents became
owners of their respective hereditary shares from the
moment Vicente Tabanao died.[34]
A prior settlement of the estate, or even the
appointment of Salvacion Tabanao as executrix or
administratrix, is not necessary for any of the heirs to
acquire legal capacity to sue. As successors who stepped
into the shoes of their decedent upon his death, they
can commence any action originally pertaining to the
decedent.[35] From the moment of his death, his rights
as a partner and to demand fulfillment of petitioners
obligations as outlined in their dissolution agreement
were transmitted to respondents. They, therefore, had
the capacity to sue and seek the courts intervention to
compel petitioner to fulfill his obligations.
Finally, petitioner contends that the trial court should
have dismissed the complaint on the ground of
prescription, arguing that respondents action prescribed
four (4) years after it accrued in 1986. The trial court
and the Court of Appeals gave scant consideration to
petitioners hollow arguments, and rightly so.
The three (3) final stages of a partnership are: (1)
dissolution; (2) winding-up; and (3) termination.[36]
The partnership, although dissolved, continues to exist
and its legal personality is retained, at which time it
completes the winding up of its affairs, including the
partitioning and distribution of the net partnership
assets to the partners.[37] For as long as the
partnership exists, any of the partners may demand an
accounting of the partnerships business. Prescription of
the said right starts to run only upon the dissolution of
the partnership when the final accounting is done.[38]
Contrary to petitioners protestations that respondents
right to inquire into the business affairs of the
partnership accrued in 1986, prescribing four (4) years
thereafter, prescription had not even begun to run in the
absence of a final accounting. Article 1842 of the Civil
Code provides:
The right to an account of his interest shall accrue to
any partner, or his legal representative as against the
winding up partners or the surviving partners or the
person or partnership continuing the business, at the
date of dissolution, in the absence of any agreement to
the contrary.
Applied in relation to Articles 1807 and 1809, which also
deal with the duty to account, the above-cited provision
states that the right to demand an accounting accrues
at the date of dissolution in the absence of any
agreement to the contrary. When a final accounting is
made, it is only then that prescription begins to run. In
the case at bar, no final accounting has been made, and
that is precisely what respondents are seeking in their
action before the trial court, since petitioner has failed
or refused to render an accounting of the partnerships
business and assets. Hence, the said action is not barred
by prescription.
In fine, the trial court neither erred nor abused its
discretion when it denied petitioners motions to dismiss.
Likewise, the Court of Appeals did not commit reversible
error in upholding the trial courts orders. Precious time
has been lost just to settle this preliminary issue, with
petitioner resurrecting the very same arguments from
the trial court all the way up to the Supreme Court. The
litigation of the merits and substantial issues of this
controversy is now long overdue and must proceed
without further delay.
WHEREFORE, in view of all the foregoing, the instant
petition is DENIED for lack of merit, and the case is
REMANDED to the Regional Trial Court of Cadiz City,
Branch 60, which is ORDERED to determine the proper
docket fee based on the estimated amount that plaintiffs
therein seek to collect, and direct said plaintiffs to pay
the same within a reasonable time, provided the
applicable prescriptive or reglementary period has not
yet expired. Thereafter, the trial court is ORDERED to
conduct the appropriate proceedings in Civil Case No.
416-C.
96
Costs against petitioner.

SO ORDERED.

97
In the matter of Guardianship of the Lavides’ vs.
City Court of Lucena (G.R. No. L-50261, May 31,
1982)
G.R. No. L-50261 May 31, 1982
IN THE MATTER OF GUARDIANSHIP OF THE MINORS
CECILIA, REBECCA, FLORIDA, RAPHAEL, RODOLFO,
LUISITO, TEODORO, all surnamed LAVIDES, ALBERTO
C. LAVIDES, petitioner,
vs.
CITY COURT OF LUCENA, Branch I, respondent.
DE CASTRO, J.:
This is a petition for review on certiorari of the two (2)
orders of respondent City Court of Lucena, Branch I, one
dated December 5, 1978 dismissing petitioner's petition
for guardianship for lack of jurisdiction and the other,
dated December 27, 1978 denying petitioner's motion
for reconsideration of the order of December 5, 1978.
There is no dispute as to the following facts:
Upon the death of his wife, petitioner Alberto Lavides
instituted on April 5, 1971 before respondent City Court
a guardianship proceeding (Special Proceeding No.
0609) with respect to the person and property of their
seven (7) minor children named Cecilia, Rebecca,
Florida, Raphael, Rodolfo, Luisito and Teodoro, all
surnamed Lavides. Said petition alleged that the estate
left by the deceased wife of herein petitioner, mother of
the above- named minors, has a total value of thirty-
five thousand pesos (P35,000.00) or an amount of
P5,000.00 pertaining to each minor. Although there had
been no previous settlement of the estate of the
deceased, petitioner was appointed and qualified as
judicial guardian on May 10, 1971.
On June 23, 1971, respondent City Court, then presided
by Honorable Judge Filemon Juntereal, upon motion,
authorized petitioner to settle the estate extrajudicially
and to sell a portion thereof consisting of shares of
stocks. Pursuant to said authority, petitioner
extrajudicially settled the estate, and on August 28,
1971, sold the said shares of stocks for the sum of
P64,512.00
On November 22, 1978, petitioner filed a motion for
confirmation and approval of a Deed of Exchange
Agreement dated November 18, 1978. While this latter
motion was still pending consideration, the respondent
court, now presided by Honorable Judge Jose J.
Parentela, Jr., reviewed the records of the case and
finding that the undivided estate left by the deceased
was worth at least P35,000.00, dismissed the case in an
Order dated December 5, 1978, for lack of jurisdiction,
revoked the appointment of petitioner as guardian and
annulled all proceedings taken prior to the issuance of
the said order of December 5, 1978.
Petitioner filed a motion for reconsideration of said order
which was denied by respondent city court in its order
dated December 27, 1978. Hence, this instant petition,
petitioner raising the following issues, namely:
a. Whether or not respondent city court's jurisdiction
over a petition for general guardianship is based on the
total value of the estate or on the value of the individual
share of the minors in the estate of their deceased
mother; and
b. Whether or not the promulgation of the Revised Rules
of Court which was made effective on January 1, 1964
overruled the doctrine laid down by this Honorable
Tribunal in the case of "Delgado vs. Gamboa," G. R. No.
L-14326, February 28, 1962, 4 SCRA 505.
It appears that respondent city court dismissed the
petition for guardianship on ground of lack of jurisdiction
1) because a perusal of the records of the case shows
that the undivided estate left by the deceased is worth
P35,000.00 which is clearly outside its jurisdiction,
pursuant to Section 1, Rule 92 of the Revised Rules of
Court, and 2) because of this Court's ruling in the case
of Delgado vs. Gamboa, supra, to the effect that the
concurrent jurisdiction of the Justice of the Peace Courts
with the Court of First Instance over the guardianship of
the person and properties of the minors and
incompetents cannot be exercised when the estate has
a value in excess of the jurisdictional amount for the
former courts.
Petitioner, on the other hand, contends that in the case
of petition for guardianship of more than one minor, the
individual share of each minor which is then the estate
of said minors determines the jurisdiction of the court
pursuant to Section 1, Rule 92 of the Revised Rules of
Court; that inasmuch as there are seven (7) minor
children sought to be placed under guardianship and
that the total value of the estate is P35,000.00, then by
simple mathematical computation, the value of the
property of each minor is P5,000.00, already a
determined estate, which is well within the jurisdiction
of the respondent city court; that the case of Delgado
vs. Gamboa, promulgated in 1962, invoked by
respondent city court in dismissing his petition has been
overruled and abandoned by the promulgation of the
Revised Rules of Court, which took effect in 1964.
Section 1, Rule 92 of the Revised Rules of Court granting
concurrent jurisdiction to the municipal and city courts
with the Court of First Instance in the appointment of
guardians, provides:
Section 1. Where to institute proceedings.—
Guardianship of the person or estate of a minor or
incompetent may be instituted in the Court of First
Instance of the province, or in the justice of the peace
court of the municipality, or in the municipal court of the
chartered city where the minor or incompetent person
resides, and if he resides in a foreign country, in the
Court of First Instance of the province wherein his
property or part thereof is situated; provided, however,
that where the value of the property of such minor or
incompetent exceeds the jurisdiction of the justice of the
98
peace or municipal court, the proceedings shall be
instituted in the Court of First Instance.
In the City of Manila the proceedings shall be instituted
in the Juvenile and Domestic Relations Court.
The above section, in clear terms, grants concurrent
jurisdiction between municipal and city court and Courts
of First Instance in the appointment of guardians either
with respect to the person or property of the minor or
incompetent, except that where the value of the
property of such minor or incompetent exceeds the
jurisdiction of the municipal or city courts, the
guardianship proceedings shall be instituted in the Court
of First Instance. It is clear, therefore, that the value of
the property of the minor or incompetent sought to be
placed in guardianship determines which court has
jurisdiction. And that property referred to is the
individual estate of the minor so much so that when
there are more than one minor or in competent sought
to be placed under guardianship, what determines which
court has jurisdiction is the value of the individual
property of each minor or incompetent.
In the case at bar, it appears that respondent city court
dismissed the petition for guardianship on ground of
lack of jurisdiction because a perusal of the record of the
case shows that the undivided estate left by the
deceased mother is worth P35,000.00 which amount is
clearly outside its jurisdiction. This reasoning must be
rejected for it overlooks the fact that the petition for
guardianship filed by herein petitioner before the
respondent city court clearly alleged that the individual
estate or share of each of the seven minor children
sought to be placed under guardianship is P5,000.00,
which amount is well within the jurisdiction of the
respondent city court (Section 88, Judiciary Act of 1948,
as amended by R.A. No. 3828). That the respondent city
court has jurisdiction over the case cannot be denied,
for the rule is well-settled that jurisdiction of the court
over the subject matter is determined by the allegations
of the complaint and/or petition. 1 That each of the
seven (7) minor children became owner of a one-
seventh (1/7) share or an amount of P5,000 from the
estate left by the deceased mother valued at
P35,000.00 upon the death of the latter cannot also be
denied for Article 777 of the New Civil Code expressly
provides that "the rights to the succession are
transmitted from the moment of death of the decedent,"
and from then on, the heir becomes the absolute owner
of the decedent's property, subject of the rights and
obligations of the decedent and he cannot be deprived
of such right except by methods provided for by law. 2
Respondent city court, however, would also base its
dismissal of the case in the light of this Court's ruling in
the case of Delgado vs. Gamboa, supra, to the effect
that the concurrence of jurisdiction between Courts of
First Instance and inferior courts over guardianship of
the minors or incompetents cannot be exercised when
the estate has a value in excess of the jurisdictional
amount for the latter courts. The respondent Court,
however, overlooked one vital fact. A more careful
examination of the facts of said case, decided in 1962,
reveals that it involved guardianship proceeding over
the person and property of three (3) minor children of
decedent and an undivided estate valued at P7,000.00.
That would make a share of P2,333.33 for each minor
child, which amount is also in excess of the jurisdictional
amount for inferior courts. 3 In the case at bar, there
are seven (7) minor children to share in an undivided
estate valued at P35,000.00 or a share of P5,000.00 for
each minor, which amount is well within the jurisdiction
of the respondent city court, 4 which, therefore, cannot
validly invoke the case of Delgado vs. Gamboa to
support its dismissal of the petition for guardianship. For
what is decisive is not the total value of the estate of
the decedent, but the value of the individual share of
each of the minor heirs for whom a guardian is sought
to be appointed individually not collectively.
But petitioner would contend, as raised in the second
issue of this petition, that the doctrine laid down by this
Court in the aforecited case of Delgado vs. Gamboa, has
been overruled by the promulgation of the Revised
Rules of Court, particularly Section 1 of Rule 92, He
argued that the case of Delgado vs. Gamboa,
promulgated on February 28, 1962, was decided when
Section 1, Rule 93 of the former Rules of Court was still
effective, which rule commands that guardianship shall
be originally cognizable by the Court of First Instance;
that when the Revised Rules of Court took effect on
January 1, 1964, the institution of guardianship
proceedings is now governed by Section 1 of Rule 92
which states that guardianship proceedings may be
instituted in the Courts of First Instance or in the
municipal courts.
A perusal of the case of Delgado vs. Gamboa, decided
when Section 1 of former Rule 93, as amended by R.A.
No. 643, was still effective, shows that it merely
restated and confirmed the doctrine laid down in the
case of Morales vs. Marquez, G. R. No. L-7463, May 27,
1955, which in effect, expounded the grant of
concurrent jurisdiction between inferior courts and
Court of First Instance, as provided for by R.A. No. 643.
And a comparison of the provisions of Section 1 of
former Rule 93, as amended, and Section 1 of the
present Rule 92 shows that the latter rule restates the
former rule. Under the former rule, municipal or city
courts have concurrent jurisdiction with the Court of
First Instance in cases where the value of the property
of such minor or incompetent falls within the jurisdiction
of the former courts. Likewise, under the present rule,
concurrent jurisdiction was also granted except that
"where the value of the property of such minor or
incompetent exceeds the jurisdiction of the inferior
courts, the proceedings shall, be instituted in the Court
of First Instance." The criterion, therefore, in
determining in which court the guardianship proceeding
shall be instituted under the provision of both the former
Rule 93 and the present Rule 92 remains the same.
Hence, it cannot be accurately stated that the Delgado
ruling has been abandoned. In any case, the Delgado
doctrine, as already demonstrated, does not militate
against petitioner's contention that the City has
jurisdiction over the instant guardianship case.
99
Lastly, there is still one aspect of this case which must
not be overlooked. It is not disputed that the respondent
City Court has entertained and granted petitioner's
petition for guardianship in its Order as early as May 10,
1971 and has exercised its jurisdiction by granting
authority to petitioner to settle the estate extrajudicially
and to sell a portion thereof consisting of shares of
stock; that after the lapse of seven (7) years or on
November 22, 1978, respondent City Court dismissed
the case for lack of jurisdiction, revoked the
appointment of petitioner as guardian and annulled all
proceedings taken. Would it serve the interest of justice
to dismiss the case at this stage and let a new petition
for guardianship be filed in another court? To draw a
tenuous jurisdictional line is to undermine stability in
litigations. The time to be lost, effort wasted, anxiety
augmented, additional expenses incurred—these are
considerations which weigh heavily if this situation is
allowed to happen. As aptly stated by the petitioner.—
"To let the respondent court reverse its stand now will
pave a pattern of judicial instability which, to reason and
logic, is definitely not healthy administration of justice
and not inducive of court's veneration." 5

IN VIEW OF THE FOREGOING, the Order of respondent

City Court of December 5, 1978 dismissing the petition
and the Order of December 27, 1978 denying
petitioner's motion for reconsideration thereof are
hereby set aside and the case is remanded to it for
further proceedings. No costs.

100
Bonilla vs. Barcena
G.R. No. L-41715 June 18, 1976
ROSALIO BONILLA (a minor) SALVACION BONILLA (a
minor) and PONCIANO BONILLA (their father) who
represents the minors, petitioners,
vs.
LEON BARCENA, MAXIMA ARIAS BALLENA, ESPERANZA
BARCENA, MANUEL BARCENA, AGUSTINA NERI, widow
of JULIAN TAMAYO and HON. LEOPOLDO GIRONELLA of
the Court of First Instance of Abra,respondents.
Federico Paredes for petitioners.
Demetrio V. Pre for private respondents.
MARTIN, J:
This is a petition for review 1 of the Order of the Court
of First Instance of Abra in Civil Case No. 856, entitled
Fortunata Barcena vs. Leon Barcena, et al., denying the
motions for reconsideration of its order dismissing the
complaint in the aforementioned case.
On March 31, 1975 Fortunata Barcena, mother of
minors Rosalio Bonilla and Salvacion Bonilla and wife of
Ponciano Bonilla, instituted a civil action in the Court of
First Instance of Abra, to quiet title over certain parcels
of land located in Abra.
On May 9, 1975, defendants filed a written motion to
dismiss the complaint, but before the hearing of the
motion to dismiss, the counsel for the plaintiff moved to
amend the complaint in order to include certain
allegations therein. The motion to amend the complaint
was granted and on July 17, 1975, plaintiffs filed their
amended complaint.
On August 4, 1975, the defendants filed another motion
to dismiss the complaint on the ground that Fortunata
Barcena is dead and, therefore, has no legal capacity to
sue. Said motion to dismiss was heard on August 14,
1975. In said hearing, counsel for the plaintiff confirmed
the death of Fortunata Barcena, and asked for
substitution by her minor children and her husband, the
petitioners herein; but the court after the hearing
immediately dismissed the case on the ground that a
dead person cannot be a real party in interest and has
no legal personality to sue.
On August 19, 1975, counsel for the plaintiff received a
copy of the order dismissing the complaint and on
August 23, 1975, he moved to set aside the order of the
dismissal pursuant to Sections 16 and 17 of Rule 3 of
the Rules of Court. 2
On August 28, 1975, the court denied the motion for
reconsideration filed by counsel for the plaintiff for lack
of merit. On September 1, 1975, counsel for deceased
plaintiff filed a written manifestation praying that the
minors Rosalio Bonilla and Salvacion Bonilla be allowed
to substitute their deceased mother, but the court
denied the counsel's prayer for lack of merit. From the
order, counsel for the deceased plaintiff filed a second
motion for reconsideration of the order dismissing the
complaint claiming that the same is in violation of
Sections 16 and 17 of Rule 3 of the Rules of Court but
the same was denied.
Hence, this petition for review.
The Court reverses the respondent Court and sets aside
its order dismissing the complaint in Civil Case No. 856
and its orders denying the motion for reconsideration of
said order of dismissal. While it is true that a person who
is dead cannot sue in court, yet he can be substituted
by his heirs in pursuing the case up to its completion.
The records of this case show that the death of
Fortunata Barcena took place on July 9, 1975 while the
complaint was filed on March 31, 1975. This means that
when the complaint was filed on March 31, 1975,
Fortunata Barcena was still alive, and therefore, the
court had acquired jurisdiction over her person. If
thereafter she died, the Rules of Court prescribes the
procedure whereby a party who died during the
pendency of the proceeding can be substituted. Under
Section 16, Rule 3 of the Rules of Court "whenever a
party to a pending case dies ... it shall be the duty of his
attorney to inform the court promptly of such death ...
and to give the name and residence of his executor,
administrator, guardian or other legal representatives."
This duty was complied with by the counsel for the
deceased plaintiff when he manifested before the
respondent Court that Fortunata Barcena died on July 9,
1975 and asked for the proper substitution of parties in
the case. The respondent Court, however, instead of
allowing the substitution, dismissed the complaint on
the ground that a dead person has no legal personality
to sue. This is a grave error. Article 777 of the Civil Code
provides "that the rights to the succession are
transmitted from the moment of the death of the
decedent." From the moment of the death of the
decedent, the heirs become the absolute owners of his
property, subject to the rights and obligations of the
decedent, and they cannot be deprived of their rights
thereto except by the methods provided for by law. 3
The moment of death is the determining factor when the
heirs acquire a definite right to the inheritance whether
such right be pure or contingent. 4 The right of the heirs
to the property of the deceased vests in them even
before judicial declaration of their being heirs in the
testate or intestate proceedings. 5 When Fortunata
Barcena, therefore, died her claim or right to the parcels
of land in litigation in Civil Case No. 856, was not
extinguished by her death but was transmitted to her
heirs upon her death. Her heirs have thus acquired
interest in the properties in litigation and became parties
in interest in the case. There is, therefore, no reason for
the respondent Court not to allow their substitution as
parties in interest for the deceased plaintiff.
Under Section 17, Rule 3 of the Rules of Court "after a
party dies and the claim is not thereby extinguished, the
court shall order, upon proper notice, the legal
representative of the deceased to appear and be
substituted for the deceased, within such time as may
101
be granted ... ." The question as to whether an action
survives or not depends on the nature of the action and
the damage sued for. 6 In the causes of action which
survive the wrong complained affects primarily and
principally property and property rights, the injuries to
the person being merely incidental, while in the causes
of action which do not survive the injury complained of
is to the person, the property and rights of property
affected being incidental. 7 Following the foregoing
criterion the claim of the deceased plaintiff which is an
action to quiet title over the parcels of land in litigation
affects primarily and principally property and property
rights and therefore is one that survives even after her
death. It is, therefore, the duty of the respondent Court
to order the legal representative of the deceased
plaintiff to appear and to be substituted for her. But
what the respondent Court did, upon being informed by
the counsel for the deceased plaintiff that the latter was
dead, was to dismiss the complaint. This should not
have been done for under the same Section 17, Rule 3
of the Rules of Court, it is even the duty of the court, if
the legal representative fails to appear, to order the
opposing party to procure the appointment of a legal
representative of the deceased. In the instant case the
respondent Court did not have to bother ordering the
opposing party to procure the appointment of a legal
representative of the deceased because her counsel has
not only asked that the minor children be substituted for
her but also suggested that their uncle be appointed as
guardian ad litem for them because their father is busy
in Manila earning a living for the family. But the
respondent Court refused the request for substitution on
the ground that the children were still minors and cannot
sue in court. This is another grave error because the
respondent Court ought to have known that under the
same Section 17, Rule 3 of the Rules of Court, the court
is directed to appoint a guardian ad litem for the minor
heirs. Precisely in the instant case, the counsel for the
deceased plaintiff has suggested to the respondent
Court that the uncle of the minors be appointed to act
as guardian ad litem for them. Unquestionably, the
respondent Court has gravely abused its discretion in
not complying with the clear provision of the Rules of
Court in dismissing the complaint of the plaintiff in Civil
Case No. 856 and refusing the substitution of parties in
the case.

IN VIEW OF THE FOREGOING, the order of the

respondent Court dismissing the complaint in Civil Case
No. 856 of the Court of First Instance of Abra and the
motions for reconsideration of the order of dismissal of
said complaint are set aside and the respondent Court
is hereby directed to allow the substitution of the minor
children, who are the petitioners therein for the
deceased plaintiff and to appoint a qualified person as
guardian ad litem for them. Without pronouncement as
to costs.

SO ORDERED.

102
Borromeo-Herrera vs. Borromeo (152 SCRA 172) HONORABLE FRANCISCO P. BURGOS, Presiding Judge
of Branch XV, Regional Trial Court of Cebu; RICARDO V.
G.R. No. L-41171 July 23, 1987 REYES, Administrator of the Estate of VITO BORROMEO
in Sp. Proc. No. 916-R; and DOMINGO L. ANTIGUA,
INTESTATE ESTATE OF THE LATE VITO BORROMEO,
respondents.
PATROCINIO BORROMEO-HERRERA, petitioner,
GUTIERREZ, JR., J.:
vs.
These cases before us all stem from SP. PROC. NO. 916-
FORTUNATO BORROMEO and HON. FRANCISCO P.
R of the then Court of First Instance of Cebu.
BURGOS, Judge of the Court of First Instance of Cebu,
Branch II, respondents. G.R. No. 41171
x - - - - - - - - - - - - - - - - - - - - - - -x Vito Borromeo, a widower and permanent resident of
Cebu City, died on March 13, 1952, in Paranaque, Rizal
No. L-55000 July 23, 1987
at the age of 88 years, without forced heirs but leaving
IN THE MATTER OF THE ESTATE OF VITO BORROMEO, extensive properties in the province of Cebu.
DECEASED, PILAR N. BORROMEO, MARIA B. PUTONG,
On April 19, 1952, Jose Junquera filed with the Court of
FEDERICO V. BORROMEO, JOSE BORROMEO,
First Instance of Cebu a petition for the probate of a one
CONSUELO B. MORALES, AND CANUTO V. BORROMEO,
page document as the last will and testament left by the
JR., heirs-appellants,
said deceased, devising all his properties to Tomas,
vs. Fortunato and Amelia, all surnamed Borromeo, in equal
and undivided shares, and designating Junquera as
FORTUNATO BORROMEO, claimant-appellee. executor thereof. The case was docketed as Special
Proceedings No. 916-R. The document, drafted in
x - - - - - - - - - - - - - - - - - - - - - - -x Spanish, was allegedly signed and thumbmarked by the
No. L-62895 July 23, 1987 deceased in the presence of Cornelio Gandionco,
Eusebio Cabiluna, and Felixberto Leonardo who acted as
JOSE CUENCO BORROMEO, petitioner, witnesses.

vs. Oppositions to the probate of the will were filed. On May

HONORABLE COURT OF APPEALS, HON. FRANCISCO P.
BURGOS, As presiding Judge of the (now) Regional Trial
Court, Branch XV, Region VII, RICARDO V. REYES, as
Administrator of the Estate of Vito Borromeo in Sp. Proc.
No. 916-R, NUMERIANO G. ESTENZO and DOMINGO L.
ANTIGUA, respondents.
x - - - - - - - - - - - - - - - - - - - - - - -x
No. L-63818 July 23, 1987
DOMINGO ANTIGUA AND RICARDO V. REYES, as
Administrator of the Intestate Estate of VITO
BORROMEO, Sp. Proceedings No. 916-R, Regional Trial
Court of Cebu, joined by HON. JUDGE FRANCISCO P.
BURGOS, as Presiding Judge of Branch XV of the
Regional Trial Court of Cebu, as a formal party, and
ATTYS. FRANCIS M. ZOSA, GAUDIOSO RUIZ and
NUMERIANO ESTENZO, petitioners,
28, 1960, after due trial, the probate court held that the
document presented as the will of the deceased was a
forgery.
On appeal to this Court, the decision of the probate court
disallowing the probate of the will was affirmed in
Testate Estate of Vito Borromeo, Jose H. Junquera et al.
v. Crispin Borromeo et al. (19 SCRA 656).
The testate proceedings was converted into an intestate
proceedings. Several parties came before the court filing
claims or petitions alleging themselves as heirs of the
intestate estate of Vito Borromeo.
The following petitions or claims were filed:
1. On August 29, 1967, the heirs of Jose Ma. Borromeo
and Cosme Borromeo filed a petition for declaration of
heirs and determination of heirship. There was no
opposition filed against said petition.

vs. 2. On November 26, 1967, Vitaliana Borromeo also filed

a petition for declaration as heir. The heirs of Jose Ma.
HONORABLE INTERMEDIATE APPELLATE COURT, JOSE Borromeo and Cosme Borromeo filed an opposition to
CUENCO BORROMEO, and PETRA O. this petition.
BORROMEO,respondents.
3. On December 13, 1967, Jose Barcenilla, Jr., Anecita
x - - - - - - - - - - - - - - - - - - - - - - -x Ocampo de Castro, Ramon Ocampo, Lourdes Ocampo,
Elena Ocampo, Isagani Morre, Rosario Morre, Aurora
No. L-65995 July 23, 1987
Morre, Lila Morre, Lamberto Morre, and Patricia Morre,
PETRA BORROMEO, VITALIANA BORROMEO, AMELINDA filed a petition for declaration of heirs and determination
BORROMEO, and JOSE CUENCO BORROMEO,petitioners, of shares. The petition was opposed by the heirs of Jose
and Cosme Borromeo.
vs.

103
4. On December 2, 1968, Maria Borromeo Atega, Luz
Borromeo, Hermenegilda Borromeo Nonnenkamp,
Rosario Borromeo, and Fe Borromeo Queroz filed a
claim. Jose Cuenco Borromeo, Crispin Borromeo,
Vitaliana Borromeo and the heirs of Carlos Borromeo
represented by Jose Talam filed oppositions to this
claim.
When the aforementioned petitions and claims were
heard jointly, the following facts were established:
1. Maximo Borromeo and Hermenegilda Galan, husband
and wife (the latter having predeceased the former),
were survived by their eight (8) children, namely,
Jose Ma. Borromeo
Cosme Borromeo
Pantaleon Borromeo
Vito Borromeo
Paulo Borromeo
Anecita Borromeo
Quirino Borromeo and
Julian Borromeo
2. Vito Borromeo died a widower on March 13, 1952,
without any issue, and all his brothers and sisters
predeceased him.
3. Vito's brother Pantaleon Borromeo died leaving the
following children:
b. Carlos Borromeo,who died on Jan. 18, 1965,survived
by his wife, Remedios Alfonso, and his only daughter,
Amelinda Borromeo Talam
c. Asuncion Borromeo
d. Florentina Borromeo, who died in 1948.
e. Amilio Borromeo, who died in 1944.
f. Carmen Borromeo, who died in 1925.
The last three died leaving no issue.
6. Jose Ma. Borromeo, another brother of Vito
Borromeo, died before the war and left the following
children:
a. Exequiel Borromeo,who died on December 29, 1949
b. Canuto Borromeo, who died on Dec. 31, 1959, leaving
the following children:
aa. Federico Borromeo
bb. Marisol Borromeo (Maria B. Putong, Rec. p. 85)
cc. Canuto Borromeo, Jr.
dd. Jose Borromeo
ee. Consuelo Borromeo
ff. Pilar Borromeo
gg. Salud Borromeo
hh. Patrocinio Borromeo Herrera

a. Ismaela Borromeo,who died on Oct. 16, 1939 c. Maximo Borromeo, who died in July, 1948

b. Teofilo Borromeo, who died on Aug. 1, 1955, or 3 d. Matilde Borromeo, who died on Aug. 6, 1946
years after the death of Vito Borromeo. He was married
to Remedios Cuenco Borromeo, who died on March 28, e. Andres Borromeo, who died on Jan. 3, 1923, but
1968. He had an only son-Atty. Jose Cuenco Borromeo survived by his children:
one of the petitioners herein. aa. Maria Borromeo Atega
c. Crispin Borromeo, who is still alive. bb. Luz Borromeo
4. Anecita Borromeo, sister of Vito Borromeo, died cc. Hermenegilda Borromeo Nonnenkamp
ahead of him and left an only daughter, Aurora B.
Ocampo, who died on Jan. 30, 1950 leaving the dd. Rosario Borromeo
following children:
ee. Fe Borromeo Queroz
a. Anecita Ocampo Castro
On April 10, 1969, the trial court, invoking Art. 972 of
b. Ramon Ocampo the Civil Code, issued an order declaring the following,
to the exclusion of all others, as the intestate heirs of
c. Lourdes Ocampo the deceased Vito Borromeo:
d. Elena Ocampo, all living, and 1. Jose Cuenco Borromeo
e. Antonieta Ocampo Barcenilla (deceased), survived by 2. Judge Crispin Borromeo
claimant Jose Barcenilla, Jr.
3. Vitaliana Borromeo
5. Cosme Borromeo, another brother of Vito Borromeo,
died before the war and left the following children: 4. Patrocinio Borromeo Herrera
a. Marcial Borromeo 5. Salud Borromeo

104
6. Asuncion Borromeo
7. Marcial Borromeo
8. Amelinda Borromeo de Talam, and
9. The heirs of Canuto Borromeo
The court also ordered that the assets of the intestate
estate of Vito Borromeo shall be divided into 4/9 and
5/9 groups and distributed in equal and equitable shares
among the 9 abovenamed declared intestate heirs.
On April 21 and 30, 1969, the declared heirs, with the
exception of Patrocinio B. Herrera, signed an agreement
of partition of the properties of the deceased Vito
Borromeo which was approved by the trial court, in its
order of August 15, 1969. In this same order, the trial
court ordered the administrator, Atty Jesus Gaboya, Jr.,
to partition the properties of the deceased in the way
and manner they are divided and partitioned in the said
Agreement of Partition and further ordered that 40% of
the market value of the 4/9 and 5/9 of the estate shall
be segregated. All attorney's fees shall be taken and
paid from this segregated portion.
On August 25, 1972, respondent Fortunato Borromeo,
who had earlier claimed as heir under the forged will,
filed a motion before the trial court praying that he be
declared as one of the heirs of the deceased Vito
Borromeo, alleging that he is an illegitimate son of the
deceased and that in the declaration of heirs made by
the trial court, he was omitted, in disregard of the law
making him a forced heir entitled to receive a legitime
like all other forced heirs. As an acknowledged
illegitimate child, he stated that he was entitled to a
legitime equal in every case to four-fifths of the legitime
of an acknowledged natural child.
Finding that the motion of Fortunato Borromeo was
already barred by the order of the court dated April 12,
1969 declaring the persons named therein as the legal
heirs of the deceased Vito Borromeo, the court
dismissed the motion on June 25, 1973.
Fortunato Borromeo filed a motion for reconsideration.
In the memorandum he submitted to support his motion
for reconsideration, Fortunato changed the basis for his
claim to a portion of the estate. He asserted and
incorporated a Waiver of Hereditary Rights dated July
31, 1967, supposedly signed by Pilar N. Borromeo,
Maria B. Putong, Jose Borromeo, Canuto V. Borromeo,
Jr., Salud Borromeo, Patrocinio Borromeo-Herrera,
Marcial Borromeo, Asuncion Borromeo, Federico V.
Borromeo, Consuelo B. Morales, Remedios Alfonso and
Amelinda B. Talam In the waiver, five of the nine heirs
relinquished to Fortunato their shares in the disputed
estate. The motion was opposed on the ground that the
trial court, acting as a probate court, had no jurisdiction
to take cognizance of the claim; that respondent
Fortunato Borromeo is estopped from asserting the
waiver agreement; that the waiver agreement is void as
it was executed before the declaration of heirs; that the
same is void having been executed before the
distribution of the estate and before the acceptance of
the inheritance; and that it is void ab initio and
inexistent for lack of subject matter.
On December 24, 1974, after due hearing, the trial court
concluding that the five declared heirs who signed the
waiver agreement assigning their hereditary rights to
Fortunato Borromeo had lost the same rights, declared
the latter as entitled to 5/9 of the estate of Vito
Borromeo.
A motion for reconsideration of this order was denied on
July 7, 1975.
In the present petition, the petitioner seeks to annul and
set aside the trial court's order dated December 24,
1974, declaring respondent Fortunato Borromeo entitled
to 5/9 of the estate of Vito Borromeo and the July 7,
1975 order, denying the motion for reconsideration.
The petitioner argues that the trial court had no
jurisdiction to take cognizance of the claim of
respondent Fortunato Borromeo because it is not a
money claim against the decedent but a claim for
properties, real and personal, which constitute all of the
shares of the heirs in the decedent's estate, heirs who
allegedly waived their rights in his favor. The claim of
the private respondent under the waiver agreement,
according to the petitioner, may be likened to that of a
creditor of the heirs which is improper. He alleges that
the claim of the private respondent under the waiver
agreement was filed beyond the time allowed for filing
of claims as it was filed only sometime in 1973, after
there had been a declaration of heirs (April 10, 1969),
an agreement of partition (April 30, 1969), the approval
of the agreement of partition and an order directing the
administrator to partition the estate (August 15, 1969),
when in a mere memorandum, the existence of the
waiver agreement was brought out.
It is further argued by the petitioner that the document
entitled " waiver of Hereditary Rights" executed on July
31, 1967, aside from having been cancelled and revoked
on June 29, 1968, by Tomas L. Borromeo, Fortunato
Borromeo and Amelia Borromeo, is without force and
effect because there can be no effective waiver of
hereditary rights before there has been a valid
acceptance of the inheritance the heirs intend to
transfer. Pursuant to Article 1043 of the Civil Code, to
make acceptance or repudiation of inheritance valid, the
person must be certain of the death of the one from
whom he is to inherit and of his right to the inheritance.
Since the petitioner and her co-heirs were not certain of
their right to the inheritance until they were declared
heirs, their rights were, therefore, uncertain. This view,
according to the petitioner, is also supported by Article
1057 of the same Code which directs heirs, devicees,
and legatees to signify their acceptance or repudiation
within thirty days after the court has issued an order for
the distribution of the estate.
Respondent Fortunato Borromeo on the other hand,
contends that under Article 1043 of the Civil Code there
is no need for a person to be first declared as heir before
he can accept or repudiate an inheritance. What is
required is that he must first be certain of the death of
105
the person from whom he is to inherit and that he must
be certain of his right to the inheritance. He points out
that at the time of the signing of the waiver document
on July 31, 1967, the signatories to the waiver
document were certain that Vito Borromeo was already
dead as well as of their rights to the inheritance as
shown in the waiver document itself.
With respect to the issue of jurisdiction of the trial court
to pass upon the validity of the waiver of hereditary
rights, respondent Borromeo asserts that since the
waiver or renunciation of hereditary rights took place
after the court assumed jurisdiction over the properties
of the estate it partakes of the nature of a partition of
the properties of the estate needing approval of the
court because it was executed in the course of the
proceedings. lie further maintains that the probate court
loses jurisdiction of the estate only after the payment of
all the debts of the estate and the remaining estate is
distributed to those entitled to the same.
The prevailing jurisprudence on waiver of hereditary
rights is that "the properties included in an existing
inheritance cannot be considered as belonging to third
persons with respect to the heirs, who by fiction of law
continue the personality of the former. Nor do such
properties have the character of future property,
because the heirs acquire a right to succession from the
moment of the death of the deceased, by principle
established in article 657 and applied by article 661 of
the Civil Code, according to which the heirs succeed the
deceased by the mere fact of death. More or less, time
may elapse from the moment of the death of the
deceased until the heirs enter into possession of the
hereditary property, but the acceptance in any event
retroacts to the moment of the death, in accordance
with article 989 of the Civil Code. The right is vested,
although conditioned upon the adjudication of the
corresponding hereditary portion." (Osorio v. Osorio and
Ynchausti Steamship Co., 41 Phil., 531). The heirs,
therefore, could waive their hereditary rights in 1967
even if the order to partition the estate was issued only
in 1969.
In this case, however, the purported "Waiver of
Hereditary Rights" cannot be considered to be effective.
For a waiver to exist, three elements are essential: (1)
the existence of a right; (2) the knowledge of the
existence thereof; and (3) an intention to relinquish
such right. (People v. Salvador, (CA) 53 O.G. No. 22, p.
8116, 8120). The intention to waive a right or
advantage must be shown clearly and convincingly, and
when the only proof of intention rests in what a party
does, his act should be so manifestly consistent with,
and indicative of an intent to, voluntarily relinquish the
particular right or advantage that no other reasonable
explanation of his conduct is possible (67 C.J., 311).
(Fernandez v. Sebido, et al., 70 Phil., 151, 159).
The circumstances of this case show that the signatories
to the waiver document did not have the clear and
convincing intention to relinquish their rights, Thus: (1)
On October 27, 1967. Fortunato, Tomas, and Amelia
Borromeo filed a pleading entitled "Compliance" wherein
they submitted a proposal for the amicable settlement
of the case. In that Compliance, they proposed to
concede to all the eight (8) intestate heirs of Vito
Borromeo all properties, personal and real, including all
cash and sums of money in the hands of the Special
Administrator, as of October 31, 1967, not contested or
claimed by them in any action then pending in the Court
of First Instance of Cebu. In turn, the heirs would waive
and concede to them all the 14 contested lots. In this
document, the respondent recognizes and concedes that
the petitioner, like the other signatories to the waiver
document, is an heir of the deceased Vito Borromeo,
entitled to share in the estate. This shows that the
"Waiver of Hereditary Rights" was never meant to be
what the respondent now purports it to be. Had the
intent been otherwise, there would not be any reason
for Fortunato, Tomas, and Amelia Borromeo to mention
the heirs in the offer to settle the case amicably, and
offer to concede to them parts of the estate of the
deceased; (2) On April 21 and 30, 1969, the majority of
the declared heirs executed an Agreement on how the
estate they inherited shall be distributed. This
Agreement of Partition was approved by the trial court
on August 15, 1969; (3) On June 29, 1968, the
petitioner, among others, signed a document entitled
Deed of Assignment" purporting to transfer and assign
in favor of the respondent and Tomas and Amelia
Borromeo all her (Patrocinio B. Herrera's) rights,
interests, and participation as an intestate heir in the
estate of the deceased Vito Borromeo. The stated
consideration for said assignment was P100,000.00; (4)
On the same date, June 29, 1968, the respondent
Tomas, and Amelia Borromeo (assignees in the
aforementioned deed of assignment) in turn executed a
"Deed of Reconveyance" in favor of the heirs-assignors
named in the same deed of assignment. The stated
consideration was P50,000.00; (5) A Cancellation of
Deed of Assignment and Deed of Reconveyance was
signed by Tomas Borromeo and Amelia Borromeo on
October 15, 1968, while Fortunato Borromeo signed this
document on March 24, 1969.
With respect to the issue of jurisdiction, we hold that the
trial court had jurisdiction to pass upon the validity of
the waiver agreement. It must be noted that in Special
Proceedings No. 916-R the lower court disallowed the
probate of the will and declared it as fake. Upon appeal,
this Court affirmed the decision of the lower court on
March 30, 1967, in G.R. No. L-18498. Subsequently,
several parties came before the lower court filing claims
or petitions alleging themselves as heirs of the intestate
estate of Vito Borromeo. We see no impediment to the
trial court in exercising jurisdiction and trying the said
claims or petitions. Moreover, the jurisdiction of the trial
court extends to matters incidental and collateral to the
exercise of its recognized powers in handling the
settlement of the estate.
In view of the foregoing, the questioned order of the
trial court dated December 24, 1974, is hereby SET
ASIDE.
G.R. No. 55000
106
This case was originally an appeal to the Court of
Appeals from an order of the Court of First Instance of
Cebu, Branch 11, dated December 24, 1974, declaring
the waiver document earlier discussed in G.R. No.
41171 valid. The appellate court certified this case to
this Court as the questions raised are all of law.
The appellants not only assail the validity of the waiver
agreement but they also question the jurisdiction of the
lower court to hear and decide the action filed by
claimant Fortunato Borromeo.
The appellants argue that when the waiver of hereditary
right was executed on July 31, 1967, Pilar Borromeo and
her children did not yet possess or own any hereditary
right in the intestate estate of the deceased Vito
Borromeo because said hereditary right was only
acquired and owned by them on April 10, 1969, when
the estate was ordered distributed.
They further argue that in contemplation of law, there
is no such contract of waiver of hereditary right in the
present case because there was no object, which is
hereditary right, that could be the subject matter of said
waiver, and, therefore, said waiver of hereditary right
was not only null and void ab initio but was inexistent.
With respect to the issue of jurisdiction, the appellants
contend that without any formal pleading filed by the
lawyers of Fortunato Borromeo for the approval of the
waiver agreement and without notice to the parties
concerned, two things which are necessary so that the
lower court would be vested with authority and
jurisdiction to hear and decide the validity of said waiver
agreement, nevertheless, the lower court set the
hearing on September 25, 1973 and without asking for
the requisite pleading. This resulted in the issuance of
the appealed order of December 24, 1974, which
approved the validity of the waiver agreement. The
appellants contend that this constitutes an error in the
exercise of jurisdiction.
The appellee on the other hand, maintains that by
waiving their hereditary rights in favor of Fortunato
Borromeo, the signatories to the waiver document
tacitly and irrevocably accepted the inheritance and by
virtue of the same act, they lost their rights because the
rights from that moment on became vested in Fortunato
Borromeo.
It is also argued by the appellee that under Article 1043
of the Civil Code there is no need for a person to be
declared as heir first before he can accept or repudiate
an inheritance. What is required is that he is certain of
the death of the person from whom he is to inherit, and
of his right to the inheritance. At the time of the signing
of the waiver document on July 31, 1967, the
signatories to the waiver document were certain that
Vito Borromeo was already dead and they were also
certain of their right to the inheritance as shown by the
waiver document itself.
On the allegation of the appellants that the lower court
did not acquire jurisdiction over the claim because of the
alleged lack of a pleading invoking its jurisdiction to
decide the claim, the appellee asserts that on August
23, 1973, the lower court issued an order specifically
calling on all oppositors to the waiver document to
submit their comments within ten days from notice and
setting the same for hearing on September 25, 1973.
The appellee also avers that the claim as to a 5/9 share
in the inheritance involves no question of title to
property and, therefore, the probate court can decide
the question.
The issues in this case are similar to the issues raised in
G.R. No. 41171. The appellants in this case, who are all
declared heirs of the late Vito Borromeo are contesting
the validity of the trial court's order dated December 24,
1974, declaring Fortunato Borromeo entitled to 5/9 of
the estate of Vito Borromeo under the waiver
agreement.
As stated in G.R. No. 41171, the supposed waiver of
hereditary rights can not be validated. The essential
elements of a waiver, especially the clear and convincing
intention to relinquish hereditary rights, are not found
in this case.
The October 27, 1967 proposal for an amicable
settlement conceding to all the eight (8) intestate heirs
various properties in consideration for the heirs giving
to the respondent and to Tomas, and Amelia Borromeo
the fourteen (14) contested lots was filed inspite of the
fact that on July 31, 1967, some of the heirs had
allegedly already waived or sold their hereditary rights
to the respondent.
The agreement on how the estate is to be distributed,
the June 29, 1968 deed of assignment, the deed of
reconveyance, and the subsequent cancellation of the
deed of assignment and deed of reconveyance all argue
against the purported waiver of hereditary rights.
Concerning the issue of jurisdiction, we have already
stated in G.R. No. 41171 that the trial court acquired
jurisdiction to pass upon the validity of the waiver
agreement because the trial court's jurisdiction extends
to matters incidental and collateral to the exercise of its
recognized powers in handling the settlement of the
estate.
The questioned order is, therefore, SET ASIDE.
G.R. No. 62895
A motion dated April 28, 1972, was filed by Atty. Raul
M. Sesbreno, representative of some of the heirs-
distributees, praying for the immediate closure of
Special Proceeding No. 916-R. A similar motion dated
May 29, 1979 was filed by Atty. Jose Amadora. Both
motions were grounded on the fact that there was
nothing more to be done after the payment of all the
obligations of the estate since the order of partition and
distribution had long become final.
Alleging that respondent Judge Francisco P. Burgos
failed or refused to resolve the aforesaid motions,
petitioner Jose Cuenco Borromeo-filed a petition for
mandamus before the Court of Appeals to compel the
107
respondent judge to terminate and close Special
Proceedings No. 916-R.
Finding that the inaction of the respondent judge was
due to pending motions to compel the petitioner, as co-
administrator, to submit an inventory of the real
properties of the estate and an accounting of the cash
in his hands, pending claims for attorney's fees, and that
mandamus will not lie to compel the performance of a
discretionary function, the appellate court denied the
petition on May 14, 1982. The petitioner's motion for
reconsideration was likewise denied for lack of merit.
Hence, this petition.
The petitioner's stand is that the inaction of the
respondent judge on the motion filed on April 28, 1972
for the closure of the administration proceeding cannot
be justified by the filing of the motion for inventory and
accounting because the latter motion was filed only on
March 2, 1979. He claimed that under the then
Constitution, it is the duty of the respondent judge to
decide or resolve a case or matter within three months
from the date of its submission.
The respondents contend that the motion to close the
administration had already been resolved when the
respondent judge cancelled all settings of all incidents
previously set in his court in an order dated June 4,
1979, pursuant to the resolution and restraining order
issued by the Court of Appeals enjoining him to maintain
status quo on the case.
As stated in G.R. No. 41171, on April 21 and 30, 1969,
the declared heirs, with the exception of Patrocinio B.
Herrera, signed an agreement of partition of the
properties of the deceased Vito Borromeo which was
approved by the trial court, in its order dated August 15,
1969. In this same order, the trial court ordered the
administrator, Atty. Jesus Gaboya, Jr., to partition the
properties of the deceased in the way and manner they
are divided and partitioned in the said Agreement of
Partition and further ordered that 40% of the market
value of the 4/9 and 5/9 of the estate shall be
segregated and reserved for attorney's fees.
According to the manifestation of Judge Francisco
Burgos dated July 5, 1982, (p. 197, Rollo, G. R. No.
41171) his court has not finally distributed to the nine
(9) declared heirs the properties due to the following
circumstances:
1. The court's determination of the market value of the
estate in order to segregate the 40% reserved for
attorney's fees;
2. The order of December 24, 1974, declaring Fortunato
Borromeo as beneficiary of the 5/9 of the estate because
of the waiver agreement signed by the heirs
representing the 5/9 group which is still pending
resolution by this Court (G.R. No. 4117 1);
3. The refusal of administrator Jose Cuenco Borromeo
to render his accounting; and
4. The claim of Marcela Villegas for 1/2 of the estate
causing annotations of notices of lis pendens on the
different titles of the properties of the estate.
Since there are still real properties of the estate that
were not vet distributed to some of the declared heirs,
particularly the 5/9 group of heirs due to the pending
resolution of the waiver agreement, this Court in its
resolution of June 15, 1983, required the judge of the
Court of First Instance of Cebu, Branch 11, to expedite
the determination of Special Proceedings No. 916-R and
ordered the co-administrator Jose Cuenco Borromeo to
submit an inventory of real properties of the estate and
to render an accounting of cash and bank deposits
realized from rents of several properties.
The matter of attorney's fees shall be discussed in G.R.
No. 65995.
Considering the pronouncements stated in:
1. G.R. No. 41171 & G.R. No. 55000, setting aside the
Order of the trial court dated December 24, 1974;
2. G.R. No. 63818, denying the petition for review
seeking to modify the decision of the Intermediate
Appellate Court insofar as it disqualifies and inhibits
Judge Francisco P. Burgos from further hearing the
Intestate Estate of Vito Borromeo and ordering the
remand of the case to the Executive,Judge of the
Regional trial Court of Cebu for re-raffling; and
3. G.R. No. 65995, granting the petition to restrain the
respondents from further acting on any and all incidents
in Special proceedings No. 916-11 because of the
affirmation of the decision of the Intermediate Appellate
Court in G.R. No. 63818.
the trial court may now terminate and close Special
Proceedings No. 916-R, subject to the submission of an
inventory of the real properties of the estate and an
accounting of the call and bank deposits of the
petitioner, as co-administrator of the estate, if he has
not vet done so, as required by this Court in its
Resolution dated June 15, 1983. This must be effected
with all deliberate speed.
G.R. No. 63818
On June 9, 1979, respondents Jose Cuenco Borromeo
and Petra 0. Borromeo filed a motion for inhibition in the
Court of First Instance of Cebu, Branch 11, presided
over by Judge Francisco P. Burgos to inhibit the judge
from further acting in Special Proceedings No. 916-R.
'The movants alleged, among others, the following:
xxx xxx xxx
6. To keep the agitation to sell moving, Atty. Antigua
filed a motion for the production of the certificates of
title and to deposit the same with the Branch Clerk of
Court, presumably for the ready inspection of interested
buyers. Said motion was granted by the Hon. Court in
its order of October 2, 1978 which, however, became
the subject of various motions for reconsideration from
heirs-distributees who contended that as owners they
108
cannot be deprived of their titles for the flimsy reasons
advanced by Atty, Antigua. In view of the motions for
reconsideration, Atty Antigua ultimately withdraw his
motions for production of titles.
7. The incident concerning the production of titles
triggered another incident involving Atty. Raul H.
Sesbreno who was then the counsel of herein movants
Petra O. Borromeo and Amelinda B. Talam In connection
with said incident, Atty. Sesbreno filed a pleading which
the tion. presiding, Judge Considered direct contempt
because among others, Atty. Sesbreno insinuated that
the Hon. Presiding Judge stands to receive "fat
commission" from the sale of the entire property.
Indeed, Atty. Sesbreno was seriously in danger of being
declared in contempt of court with the dim prospect of
suspension from the practice of his profession. But
obviously to extricate himself from the prospect of
contempt and suspension. Atty. Sesbreno chose
rapproachment and ultimately joined forces with Atty.
Antigua, et al., who, together, continued to harass
administrator
xxx xxx xxx
9. The herein movants are informed and so they allege,
that a brother of the Hon. Presiding Judge is married to
a sister of Atty. Domingo L. Antigua.
10. There is now a clear tug of war bet ween Atty.
Antigua, et al. who are agitating for the sale of the entire
estate or to buy out the individual heirs, on the one
hand, and the herein movants, on the other, who are
not willing to sell their distributive shares under the
terms and conditions presently proposed. In this tug of
war, a pattern of harassment has become apparent
against the herein movants, especially Jose Cuenco
Borromeo. Among the harassments employed by Atty
Antigua et al. are the pending motions for the removal
of administrator Jose Cuenco Borromeo, the subpoena
duces tecum issued to the bank which seeks to invade
into the privacy of the personal account of Jose Cuenco
Borromeo, and the other matters mentioned in
paragraph 8 hereof. More harassment motions are
expected until the herein movants shall finally yield to
the proposed sale. In such a situation, the herein
movants beg for an entirely independent and impartial
judge to pass upon the merits of said incidents.
11. Should the Hon. Presiding Judge continue to sit and
take cognizance of this proceeding, including the
incidents above-mentioned, he is liable to be
misunderstood as being biased in favor of Atty Antigua,
et al. and prejudiced against the herein movants.
Incidents which may create this impression need not be
enumerated herein. (pp. 39-41, Rollo)
The motion for inhibition was denied by Judge Francisco
P. Burgos. Their motion for reconsideration having been
denied, the private respondents filed a petition for
certiorari and/or prohibition with preliminary injunction
before the Intermediate Appellate Court.
In the appellate court, the private respondents alleged,
among others, the following:
xxx xxx xxx
16. With all due respect, petitioners regret the necessity
of having to state herein that respondent Hon. Francisco
P. Burgos has shown undue interest in pursing the sale
initiated by Atty. Domingo L. Antigua, et al.
Significantly, a brother of respondent Hon. Francisco P.
Burgos is married to a sister of Atty. Domingo L.
Antigua.
17. Evidence the proposed sale of the entire properties
of the estate cannot be legally done without the
conformity of the heirs-distributees because the
certificates of title are already registered in their names
Hence, in pursuit of the agitation to sell, respondent
Hon. Francisco P. Burgos urged the heirs-distributees to
sell the entire property based on the rationale that
proceeds thereof deposited in the bank will earn interest
more than the present income of the so called estate.
Most of the heirs-distributees, however. have been
petitioner timid to say their piece. Only the 4/9 group of
heirs led by Jose Cuenco Borromeo have had the
courage to stand up and refuse the proposal to sell
clearly favored by respondent Hon. Francisco P. Burgos.
xxx xxx xxx
20. Petitioners will refrain from discussing herein the
merits of the shotgun motion of Atty. Domingo L.
Antigua as well as other incidents now pending in the
court below which smack of harassment against the
herein petitioners. For, regardless of the merits of said
incidents, petitioners respectfully contend that it is
highly improper for respondent Hon. Francisco P. Burgos
to continue to preside over Sp. Proc. No. 916-R by
reason of the following circumstances:
(a) He has shown undue interest in the sale of the
properties as initiated by Atty. Domingo L. Antigua
whose sister is married to a brother of respondent.
(b) The proposed sale cannot be legally done without
the conformity of the heirs-distributees, and petitioners
have openly refused the sale, to the great
disappointment of respondent.
(c) The shot gun motion of Atty. Antigua and similar
incidents are clearly intended to harass and embarrass
administrator Jose Cuenco Borromeo in order to
pressure him into acceding to the proposed sale.
(d) Respondent has shown bias and prejudice against
petitioners by failing to resolve the claim for attorney's
fees filed by Jose Cuenco Borromeo and the late Crispin
Borromeo. Similar claims by the other lawyers were
resolved by respondent after petitioners refused the
proposed sale. (pp. 41-43, Rollo)
On March 1, 1983, the appellate court rendered its
decision granting the petition for certiorari and/or
prohibition and disqualifying Judge Francisco P. Burgos
from taking further cognizance of Special Proceedings
No. 916-R. The court also ordered the transmission of
the records of the case to the Executive Judge of the
Regional Trial Court of Region VII for re-raffling.
109
A motion for reconsideration of the decision was denied
by the appellate court on April 11, 1983. Hence, the
present petition for review seeking to modify the
decision of the Intermediate Appellate Court insofar as
it disqualifies and inhibits Judge Francisco P. Burgos
from further hearing the case of Intestate Estate of Vito
Borromeo and orders the remand of the case to the
Executive Judge of the Regional Trial Court of Cebu for
re-raffling.
The principal issue in this case has become moot and
academic because Judge Francisco P. Burgos decided to
retire from the Regional Trial Court of Cebu sometime
before the latest reorganization of the judiciary.
However, we decide the petition on its merits for the
guidance of the judge to whom this case will be
reassigned and others concerned.
The petitioners deny that respondent Jose Cuenco
Borromeo has been harassed. They contend that Judge
Burgos has benn shown unusual interest in the proposed
sale of the entire estate for P6,700,000.00 in favor of
the buyers of Atty. Antigua. They claim that this
disinterest is shown by the judge's order of March 2,
1979 assessing the property of the estate at
P15,000,000.00. They add that he only ordered the
administrator to sell so much of the properties of the
estate to pay the attorney's fees of the lawyers-
claimants. To them, the inhibition of Judge Burgos would
have been unreasonable because his orders against the
failure of Jose Cuenco Borromeo, as administrator, to
give an accounting and inventory of the estate were all
affirmed by the appellate court. They claim that the
respondent court, should also have taken judicial notice
of the resolution of this Court directing the said judge to
"expedite the settlement and adjudication of the case"
in G.R. No. 54232. And finally, they state that the
disqualification of judge Burgos would delay further the
closing of the administration proceeding as he is the only
judge who is conversant with the 47 volumes of the
records of the case.
Respondent Jose Cuenco Borromeo, to show that he had
been harassed. countered that Judge Burgos appointed
Ricardo V. Reyes as co-administrator of the estate on
October 11, 1972, yet Borromeo was singled out to
make an accounting of what t he was supposed to have
received as rentals for the land upon which the Juliana
Trade Center is erected, from January, 1977 to February
1982, inclusive, without mentioning the withholding tax
for the Bureau of Internal Revenue. In order to bolster
the agitation to sell as proposed by Domingo L. Antigua,
Judge Burgos invited Antonio Barredo, Jr., to a series of
conferences from February 26 to 28, 1979. During the
conferences, Atty. Antonio Barredo, Jr., offered to buy
the shares of the heirs-distributees presumably to cover
up the projected sale initiated by Atty. Antigua.
On March 2, 1979, or two days after the conferences, a
motion was filed by petitioner Domingo L. Antigua
praying that Jose Cuenco Borromeo be required to file
an inventory when he has already filed one to account
for cash, a report on which the administrators had
already rendered: and to appear and be examined under
oath in a proceeding conducted by Judge Burgos lt was
also prayed that subpoena duces tecum be issued for
the appearance of the Manager of the Consolidated Bank
and Trust Co., bringing all the bank records in the name
of Jose Cuenco Borromeo jointly with his wife as well as
the appearance of heirs-distributees Amelinda
Borromeo Talam and another heir distributee Vitaliana
Borromeo. Simultaneously with the filing of the motion
of Domingo Antigua, Atty. Raul H. Sesbreno filed a
request for the issuance of subpoena duces tecum to the
Manager of Consolidated Bank and 'Trust Co., Inc.;
Register of Deeds of Cebu City; Register of Deeds for
the Province of Cebu and another subpoena duces
tecum to Atty. Jose Cuenco Borromeo.
On the same date, the Branch Clerk of Court issued a
subpoena duces tecum to the Managert of the bank, the
Register of deeds for the City of Cebu, the Register of
Deeds for the Province, of Cebu. and to Jose Cuenco
Borromeo.
On the following day, March 3, 1979, Atty Gaudioso v.
Villagonzalo in behalf of the heirs of Marcial Borromeo
who had a common cause with Atty Barredo, Jr., joined
petitioner Domingo L. Antigua by filing a motion for
relief of the administrator.
On March 5, 1979, Atty. Villagonzalo filed a request for
the issuance of a subpoena duces tecum to private
respondent Jose Cuenco Borromeo to bring and produce
all the owners" copies of the titles in the court presided
order by Judge Burgos.
Consequently. the Branch Clerk of Court issued a
subpoena duces tecum commanding Atty. Jose Cuenco
Borromeo to bring and produce the titles in court.
All the above-incidents were set for hearing on June 7,
1979 but on June 14, 1979, before the date of the
hearing, Judge Burgos issued an order denying the
private respondents' motion for reconsideration and the
motion to quash the subpoena.1avvphi1
It was further argued by the private respondents that if
,judge Francisco P. Burgos is not inhibited or disqualified
from trying Sp. Proc. No. 916-R, there would be a
miscarriage of justice Because for the past twelve years,
he had not done anything towards the closure of the
estate proceedings except to sell the properties of the
heirs-distributees as initiated by petitioner Domingo L.
Antigua at 6.7 million pesos while the Intestate Court
had already evaluated it at 15 million pesos.
The allegations of the private respondents in their
motion for inhibition, more specifically, the insistence of
the trial judge to sell the entire estate at P6,700,000.00,
where 4/9 group of heirs objected, cannot easily be
ignored. Suspicion of partiality on the part of a trial
judge must be avoided at all costs. In the case of
Bautista v. Rebeuno(81 SCRA 535), this Court stated:
... The Judge must maintain and preserve the trust and
faith of the parties litigants. He must hold himself above
reproach and suspicion. At the very first sign of lack of
faith and trust to his actions, whether well grounded or
110
not, the Judge has no other alternative but inhibit
himself from the case. A judge may not be legally
Prohibited from sitting in a litigation, but when
circumstances appear that will induce doubt to his
honest actuations and probity in favor or of either partly
or incite such state of mind, he should conduct a careful
self-examination. He should exercise his discretion in a
way that the people's faith in the Courts of Justice is not
impaired, "The better course for the Judge under such
circumstances is to disqualify himself "That way he
avoids being misunderstood, his reputation for probity
and objectivity is preserve ed. what is more important,
the Ideal of impartial administration of justice is lived up
to.
In this case, the fervent distrust of the private
respondents is based on sound reasons. As Earlier
stated, however, the petition for review seeking to
modify the decision of the Intermediate Appellate Court
insofar as it disqualifies and inhibits Judge Francisco P.
Burgos from further hearing the Intestate Estate of Vito
Borromeo case and ordering the remand of the case to
the Executive Judge of the Regional Trial Court for re-
raffling should be DENIED for the decision is not only
valid but the issue itself has become moot and
academic.
G.R. No. 65995
The petitioners seek to restrain the respondents from
further acting on any and all incidents in Special
Proceedings No. 916-R during the pendency of this
petition and No. 63818. They also pray that all acts of
the respondents related to the said special proceedings
after March 1, 1983 when the respondent Judge was
disqualified by the appellate court be declared null and
void and without force and effect whatsoever.
The petitioners state that the respondent Judge has set
for hearing all incidents in Special Proceedings No. 916-
R, including the reversion from the heirs-distributees to
the estate, of the distributed properties already titled in
their names as early as 1970, notwithstanding the
pending inhibition case elevated before this Court which
is docketed as G.R. No. 63818.
The petitioners further argue that the present status of
Special Proceeding No. 916-R requires only the
appraisal of the attorney's fees of the lawyers-claimants
who were individually hired by their respective heirs-
clients, so their attorney's fees should be legally charged
against their respective clients and not against the
estate.
On the other hand, the respondents maintain that the
petition is a dilatory one and barred by res judicata
because this Court on July 8, 1981, in G.R. No. 54232
directed the respondent Judge to expedite the
settlement and liquidation of the decedent's estate.
They claim that this resolution, which was already final
and executory, was in effect reversed and nullified by
the Intermediate Appellate Court in its case-AC G.R.-No.
SP - 11145 — when it granted the petition for certiorari
and or prohibition and disqualified Judge Francisco P.
Burgos from taking further cognizance of Special
Proceedings No. 916R as well as ordering the
transmission of the records of the case to the Executive
Judge of the Regional Trial Court of Region VII for re-
raffling on March 1, 1983, which was appealed to this
Court by means of a Petition for Review (G.R. No.
63818).
We agree with the petitioners' contention that attorney's
fees are not the obligation of the estate but of the
individual heirs who individually hired their respective
lawyers. The portion, therefore, of the Order of August
15, 1969, segregating the exhorbitantly excessive
amount of 40% of the market value of the estate from
which attorney's fees shall be taken and paid should be
deleted.
Due to our affirmance of the decision of the
Intermediate Appellate Court in G.R. No. 63818, we
grant the petition.
WHEREFORE, —
(1) In G.R. No. 41171, the order of the respondent
judge dated December 24, 1974, declaring the
respondent entitled to 5/9 of the estate of the late Vito
Borromeo and the order dated July 7, 1975, denying the
petitioner's motion for reconsideration of the
aforementioned order are hereby SET ASIDE for being
NULL and VOID;
(2) In G.R. No. 55000, the order of the trial court
declaring the waiver document valid is hereby SET
ASIDE;
(3) In G.R. No. 63818, the petition is hereby DENIED.
The issue in the decision of the Intermediate Appellate
Court disqualifying and ordering the inhibition of Judge
Francisco P. Burgos from further hearing Special
Proceedings No. 916-R is declared moot and academic.
The judge who has taken over the sala of retired Judge
Francisco P. Burgos shall immediately conduct hearings
with a view to terminating the proceedings. In the event
that the successor-judge is likewise disqualified, the
order of the Intermediate Appellate Court directing the
Executive Judge of the Regional Trial Court of Cebu to
re-raffle the case shall be implemented:
(4) In G.R. No. 65995, the petition is hereby GRANTED.
'The issue seeking to restrain Judge Francisco P. Burgos
from further acting in G.R. No. 63818 is MOOT and
ACADEMIC:
(5) In G.R, No, 62895, the trial court is hereby ordered
to speedily terminate the close Special Proceedings No.
916-R, subject to the submission of an inventory of the
real properties of the estate and an accounting of the
cash and bank deposits by the petitioner-administrator
of the estate as required by this Court in its Resolution
dated June 15, 1983; and
(6) The portion of the Order of August 15, 1969,
segregating 40% of the market value of the estate from
which attorney's fees shall be taken and paid should be,
as it is hereby DELETED. The lawyers should collect from
the heirs-distributees who individually hired them,
111
attorney's fees according to the nature of the services
rendered but in amounts which should not exceed more
than 20% of the market value of the property the latter
acquired from the estate as beneficiaries.

SO ORDERED.

112
Dela Merced vs. Dela Merced (February 25, 1999)
[G.R. No. 126707. February 25, 1999]
BLANQUITA E. DELA MERCED, LUISITO E. DELA
MERCED, BLANQUITA M. MACATANGAY, MA. OLIVIA M.
PAREDES, TERESITA P. RUPISAN, RUBEN M. ADRIANO,
HERMINIO M. ADRIANO, JOSELITO M. ADRIANO,
ROGELIO M. ADRIANO, WILFREDO M. ADRIANO,
VICTOR M. ADRIANO, CORAZON A. ONGOCO, JASMIN
A. MENDOZA and CONSTANTINO M. ADRIANO,
petitioners, vs. JOSELITO P. DELA MERCED, respondent.
DECISION
PURISIMA, J.:
This is a Petition for Review on Certiorari of the Decision
of the Court of Appeals, dated October 17, 1996, in CA-
G.R. CV No. 41283, which reversed the decision, dated
June 10, 1992, of the Regional Trial Court, Branch 67,
Pasig City, in Civil Case No. 59705.
The facts of the case are, as follows:
On March 23, 1987, Evarista M. dela Merced died
intestate, without issue. She left five (5) parcels of land
situated in Orambo, Pasig City.
At the time of her death, Evarista was survived by three
sets of heirs, viz: (1) Francisco M. dela Merced, her
legitimate brother ; (2) Teresita P. Rupisan, her niece
who is the only daughter of Rosa de la Merced-Platon (a
sister who died in 1943) ; and (3) the legitimate children
of Eugenia dela Merced-Adriano (another sister of
Evarista who died in 1965), namely: Herminio, Ruben,
Joselito, Rogelio, Wilfredo, Victor and Constantino, all
surnamed Adriano, Corazon Adriano-Ongoco and Jasmin
Adriano-Mendoza.
Almost a year later or on March 19, 1988, to be precise,
Francisco (Evaristas brother) died. He was survived by
his wife Blanquita Errea dela Merced and their three
legitimate children, namely, Luisito E. dela Merced,
Blanquita M. Macatangay and Ma. Olivia M. Paredes.
On April 20, 1989, the three sets of heirs of the
decedent, Evarista M. dela Merced, referring to (1) the
abovenamed heirs of Francisco; (2) Teresita P. Rupisan
and (3) the nine [9] legitimate children of Eugenia,
executed an extrajudicial settlement, entitled
Extrajudicial Settlement of the Estate of the Deceased
Evarista M. dela Merced adjudicating the properties of
Evarista to them, each set with a share of one-third
(1/3) pro-indiviso.
On July 26 ,1990, private respondent Joselito P. Dela
Merced , illegitimate son of the late Francisco de la
Merced, filed a Petition for Annulment of the
Extrajudicial Settlement of the Estate of the Deceased
Evarista M. Dela Merced with Prayer for a Temporary
Restraining Order, alleging that he was fraudulently
omitted from the said settlement made by petitioners,
who were fully aware of his relation to the late Francisco.
Claiming successional rights, private respondent Joselito
prayed that he be included as one of the beneficiaries,
to share in the one-third (1/3) pro-indiviso share in the
estate of the deceased Evarista, corresponding to the
heirs of Francisco.
On August 3, 1990, the trial court issued the temporary
restraining order prayed for by private respondent
Joselito, enjoining the sale of any of the real properties
of the deceased Evarista.
After trial, however, or on June 10, 1992, to be definite,
the trial court dismissed the petition, lifted the
temporary restraining order earlier issued, and
cancelled the notice of lis pendens on the certificates of
title covering the real properties of the deceased
Evarista.
In dismissing the petition, the trial court stated:
The factual setting of the instant motion after
considering the circumstances of the entire case and the
other evidentiary facts and documents presented by the
herein parties points only to one issue which goes into
the very skeleton of the controversy, to wit: Whether or
not the plaintiff may participate in the intestate estate
of the late Evarista M. Dela Merced in his capacity as
representative of his alleged father, Francisdo Dela
Merced, brother of the deceased, whose succession is
under consideration.
xxxxxxxxx
It is to be noted that Francisco Dela Merced, alleged
father of the herein plaintiff, is a legitimate child, not an
illegitimate. Plaintiff, on the other hand, is admittedly an
illegitimate child of the late Francisco Dela Merced.
Hence, as such, he cannot represent his alleged father
in the succession of the latter in the intestate estate of
the late Evarista Dela Merced, because of the barrier in
Art. 992 of the New Civil Code which states that:
An illegitimate child has no right to inherit ab intestato
from the legitimate children and relatives of his father
or mother, nor shall such children or relatives inherit in
the same manner from the illegitimate child.
The application of Art. 992 cannot be ignored in the
instant case, it is clearly worded in such a way that there
can be no room for any doubts and ambiguities. This
provision of the law imposes a barrier between the
illegitimate and the legitimate family. x x x (Rollo, p. 87-
88)
Not satisfied with the dismissal of his petition, the
private respondent appealed to the Court of Appeals.
In its Decision of October 17,1996, the Court of Appeals
reversed the decision of the trial court of origin and
ordered the petitioners to execute an amendatory
agreement which shall form part of the original
settlement, so as to include private respondent Joselito
as a co-heir to the estate of Francisco, which estate
includes one-third (1/3) pro indiviso of the latters
inheritance from the deceased Evarista.
The relevant and dispositive part of the Decision of the
Court of Appeals, reads:
113
xxxxxxxxx
It is a basic principle embodied in Article 777, New Civil
Code that the rights to the succession are transmitted
from the moment of the death of the decedent, so that
Francisco dela Merced inherited 1/3 of his sisters estate
at the moment of the latters death. Said 1/3 of Evaristas
estate formed part of Franciscos estate which was
subsequently transmitted upon his death on March 23,
1987 to his legal heirs, among whom is appellant as his
illegitimate child. Appellant became entitled to his share
in Franciscos estate from the time of the latters death in
1987. The extrajudicial settlement therefore is void
insofar as it deprives plaintiff-appellant of his share in
the estate of Francisco M. dela Merced. As a
consequence, the cancellation of the notice of lis
pendens is not in order because the property is directly
affected. Appellant has the right to demand a partition
of his fathers estate which includes 1/3 of the property
inherited from Evarista dela Merced.
WHEREFORE, premises considered, the appealed
decision is hereby REVERSED and SET ASIDE.
Defendants-appellees are hereby ordered to execute an
amendatory agreement/settlement to include herein
plaintiff-appellant Joselito dela Merced as co-heir to the
estate of Francisco dela Merced which includes 1/3 of
the estate subject of the questioned Deed of
Extrajudicial Settlement of the Estate of Evarista M. dela
Merced dated April 20, 1989. The amendatory
agreement/settlement shall form part of the original
Extrajudicial Settlement. With costs against defendants-
appellees.
SO ORDERED. (Rollo, p. 41)
In the Petition under consideration, petitioners insist
that being an illegitimate child, private respondent
Joselito is barred from inheriting from Evarista because
of the provision of Article 992 of the New Civil Code,
which lays down an impassable barrier between the
legitimate and illegitimate families.
The Petition is devoid of merit.
Article 992 of the New Civil Code is not applicable
because involved here is not a situation where an
illegitimate child would inherit ab intestato from a
legitimate sister of his father, which is prohibited by the
aforesaid provision of law. Rather, it is a scenario where
an illegitimate child inherits from his father, the latters
share in or portion of, what the latter already inherited
from the deceased sister, Evarista.
As opined by the Court of Appeals, the law in point in
the present case is Article 777 of the New Civil Code,
which provides that the rights to succession are
transmitted from the moment of death of the decedent.
Since Evarista died ahead of her brother Francisco, the
latter inherited a portion of the estate of the former as
one of her heirs. Subsequently, when Francisco died, his
heirs, namely: his spouse, legitimate children, and the
private respondent, Joselito, an illegitimate child,
inherited his (Franciscos) share in the estate of Evarista.
It bears stressing that Joselito does not claim to be an
heir of Evarista by right of representation but
participates in his own right, as an heir of the late
Francisco, in the latters share (or portion thereof) in the
estate of Evarista.
Petitioners argue that if Joselito desires to assert
successional rights to the intestate estate of his father,
the proper forum should be in the settlement of his own
fathers intestate estate, as this Court held in the case of
Gutierrez vs. Macandog (150 SCRA 422 [1987])
Petitioners reliance on the case of Gutierrez vs.
Macandog (supra) is misplaced. The said case involved
a claim for support filed by one Elpedia Gutierrez against
the estate of the decedent, Agustin Gutierrez, Sr., when
she was not even an heir to the estate in question, at
the time, and the decedent had no obligation
whatsoever to give her support. Thus, this Court ruled
that Elpedia should have asked for support pendente lite
before the Juvenile and Domestic Relations Court in
which court her husband (one of the legal heirs of the
decedent) had instituted a case for legal separation
against her on the ground of an attempt against his life.
When Mauricio (her husband) died, she should have
commenced an action for the settlement of the estate of
her husband, in which case she could receive whatever
allowance the intestate court would grant her.
The present case, however, relates to the rightful and
undisputed right of an heir to the share of his late father
in the estate of the decedent Evarista, ownership of
which had been transmitted to his father upon the death
of Evarista. There is no legal obstacle for private
respondent Joselito, admittedly the son of the late
Francisco, to inherit in his own right as an heir to his
fathers estate, which estate includes a one-third (1/3)
undivided share in the estate of Evarista.
WHEREFORE, for lack of merit, the Petition is hereby
DENIED and the Appealed Decision of the Court of
Appeals AFFIRMED in toto.
SO ORDERED.
114
115
Gayon vs. Gayon (November 26, 1970)
G.R. No. L-28394 November 26, 1970
PEDRO GAYON, plaintiff-appellant,
vs.
SILVESTRE GAYON and GENOVEVA DE GAYON,
defendants-appellees.
German M. Lopez for plaintiff-appellant.
Pedro R. Davila for defendants-appellees.
CONCEPCION, C.J.:
Appeal, taken by plaintiff Pedro Gayon, from an order of
the Court of First Instance of Iloilo dismissing his
complaint in Civil Case No. 7334 thereof.
The records show that on July 31, 1967, Pedro Gayon
filed said complaint against the spouses Silvestre Gayon
and Genoveva de Gayon, alleging substantially that, on
October 1, 1952, said spouses executed a deed — copy
of which was attached to the complaint, as Annex "A" —
whereby they sold to Pedro Gelera, for the sum of
P500.00, a parcel of unregistered land therein
described, and located in the barrio of Cabubugan,
municipality of Guimbal, province of Iloilo, including the
improvements thereon, subject to redemption within
five (5) years or not later than October 1, 1957; that
said right of redemption had not been exercised by
Silvestre Gayon, Genoveva de Gayon, or any of their
heirs or successors, despite the expiration of the period
therefor; that said Pedro Gelera and his wife Estelita
Damaso had, by virtue of a deed of sale — copy of which
was attached to the complaint, as Annex "B" — dated
March 21, 1961, sold the aforementioned land to
plaintiff Pedro Gayon for the sum of P614.00; that
plaintiff had, since 1961, introduced thereon
improvements worth P1,000; that he had, moreover,
fully paid the taxes on said property up to 1967; and
that Articles 1606 and 1616 of our Civil Code require a
judicial decree for the consolidation of the title in and to
a land acquired through a conditional sale, and,
accordingly, praying that an order be issued in plaintiff's
favor for the consolidation of ownership in and to the
aforementioned property.
In her answer to the complaint, Mrs. Gayon alleged that
her husband, Silvestre Gayon, died on January 6, 1954,
long before the institution of this case; that Annex "A"
to the complaint is fictitious, for the signature thereon
purporting to be her signature is not hers; that neither
she nor her deceased husband had ever executed "any
document of whatever nature in plaintiff's favor"; that
the complaint is malicious and had embarrassed her and
her children; that the heirs of Silvestre Gayon had to
"employ the services of counsel for a fee of P500.00 and
incurred expenses of at least P200.00"; and that being
a brother of the deceased Silvestre Gayon, plaintiff "did
not exert efforts for the amicable settlement of the case"
before filing his complaint. She prayed, therefore, that
the same be dismissed and that plaintiff be sentenced
to pay damages.
Soon later, she filed a motion to dismiss, reproducing
substantially the averments made in her answer and
stressing that, in view of the death of Silvestre Gayon,
there is a "necessity of amending the complaint to suit
the genuine facts on record." Presently, or on
September 16, 1967, the lower court issued the order
appealed from, reading:
Considering the motion to dismiss and it appearing from
Exhibit "A" annexed to the complaint that Silvestre
Gayon is the absolute owner of the land in question, and
considering the fact that Silvestre Gayon is now dead
and his wife Genoveva de Gayon has nothing to do with
the land subject of plaintiff's complaint, as prayed for,
this case is hereby dismissed, without pronouncement
as to costs.1
A reconsideration of this order having been denied,
plaintiff interposed the present appeal, which is well
taken.
Said order is manifestly erroneous and must be set
aside. To begin with, it is not true that Mrs. Gayon "has
nothing to do with the land subject of plaintiff's
complaint." As the widow of Silvestre Gayon, she is one
of his compulsory heirs 2and has, accordingly, an
interest in the property in question. Moreover, her own
motion to dismiss indicated merely "a necessity of
amending the complaint," to the end that the other
successors in interest of Silvestre Gayon, instead of the
latter, be made parties in this case. In her opposition to
the aforesaid motion for reconsideration of the plaintiff,
Mrs. Gayon alleged, inter alia, that the "heirs cannot
represent the dead defendant, unless there is a
declaration of heirship." Inasmuch, however, as
succession takes place, by operation of law, "from the
moment of the death of the decedent" 3and "(t)he
inheritance includes all the property, rights and
obligations of a person which are not extinguished by
his death," 4it follows that if his heirs were included as
defendants in this case, they would be sued, not as
"representatives" of the decedent, but as owners of an
aliquot interest in the property in question, even if the
precise extent of their interest may still be
undetermined and they have derived it from the decent.
Hence, they may be sued without a previous declaration
of heirship, provided there is no pending special
proceeding for the settlement of the estate of the
decedent. 5
As regards plaintiff's failure to seek a compromise, as
an alleged obstacle to the present case, Art. 222 of our
Civil Code provides:
No suit shall be filed or maintained between members
of the same family unless it should appear that earnest
efforts toward a compromise have been made, but that
the same have failed, subject to the limitations in article
2035.
It is noteworthy that the impediment arising from this
provision applies to suits "filed or maintained between
members of the same family." This phrase, "members
of the same family," should, however, be construed in
116
the light of Art. 217 of the same Code, pursuant to
which:

Family relations shall include those:

(1) Between husband and wife;

(2) Between parent and child;

(3) Among other ascendants and their descendants;

(4) Among brothers and sisters.

Mrs. Gayon is plaintiff's sister-in-law, whereas her

children are his nephews and/or nieces. Inasmuch as
none of them is included in the enumeration contained
in said Art. 217 — which should be construed strictly, it
being an exception to the general rule — and Silvestre
Gayon must necessarily be excluded as party in the case
at bar, it follows that the same does not come within the
purview of Art. 222, and plaintiff's failure to seek a
compromise before filing the complaint does not bar the
same.

WHEREFORE, the order appealed from is hereby set

aside and the case remanded to the lower court for the
inclusion, as defendant or defendants therein, of the
administrator or executor of the estate of Silvestre
Gayon, if any, in lieu of the decedent, or, in the absence
of such administrator or executor, of the heirs of the
deceased Silvestre Gayon, and for further proceedings,
not inconsistent with this decision, with the costs of this
instance against defendant-appellee, Genoveva de
Gayon. It is so ordered.

117
Palicte vs. Ramolete (September 21, 1987)
G.R. No. L-55076 September 21, 1987
MATILDE S. PALICTE, petitioner,
vs.
HON. JOSE O. RAMOLETE as Presiding Judge of Court of
First Instance of Cebu, Branch III, and MARCELO
SOTTO, Administrator, respondents.
GUTIERREZ, JR., J.:
This is a petition for review on certiorari of the order of
the then Court of First Instance of Cebu declaring the
deed of redemption executed for the petitioner null and
void and denying the petitioner's motion that the
Registrar of Deeds of the City of Cebu be directed to
transfer the Owner's Duplicate Certificates of Title to Lot
Nos. 1049, 1051, and 1052 from Filemon Sotto to her
and to issue a new Owner's Duplicate Certificate of Title
to Lot 2179-C in her name.
On July 5, 1979, a sale at public auction was held
pursuant to a writ of execution issued on February 5,
1979 by the respondent judge and to a court order
dated June 4, 1979 in the case of Pilar Teves, et al. vs
Marcelo Sotto, Administrator, Civil Case No. R-10027,
for the satisfaction of judgment in the amount of
P725,270.00.
The following properties belonging to the late Don
Filemon Sotto and administered by respondent Marcelo
Sotto were levied upon:
1. Parcel of land on Lot No. 1049, covered by TCT No.
27640 of the Banilad Friar Lands Estate, Cebu City;
2. Parcel of land on Lot No. 1052, covered by TCT No.
27642 of the Banilad Friar Lands Estate, Cebu City;
3. Parcel of land on Lot No. 1051,covered by TCT No.
27641 of the Banilad Friad Lands Estate, Cebu City;
4. Parcel of land on Lot No. 5253 of the Cebu Cadastre,
Cebu City, covered by TCT No. 27639;
5. Parcel of land situated at Mantalongon, Dalaguete,
Cebu, covered by TD No. 010661, with an area of 76-
708; (sic)
6. Parcel of land on Lot No. 4839 of the Upon Cadastre,
at Barrio Sa-ac Mactan Island, with an area of Forty Four
Thousand Six Hundred Forty Four (44,644) square
meters more or less;
7. Residential House of strong materials, situated on a
Government lot at Lahug, Cebu City;
8. Residential House of strong materials, situated at
Central, Cebu City. " (Rollo, p. 40)
Seven of the above-described properties were awarded
to Pilar Teves, who alone bid for them for the amount of
P217,300.00.
The residential house situated on a government lot at
Lahug, Cebu City, was awarded to lone bidder Asuncion
Villarante for the amount of P10,000.00.
Within the period for redemption, petitioner Matilde S.
Palicte, as one of the heirs of the late Don Filemon Sotto,
redeemed from purchaser Pilar Teves, four (4) lots for
the sum of P60,000.00.
A deed of redemption dated July 29, 1980, executed by
Deputy Provincial Sheriff Felipe V. Belandres and
approved by the Clerk of Court, Esperanza Garcia as Ex-
Officio Sheriff, was issued for these lots:
1. A parcel of land or Lot No. 2179-C-PDI-25027 Cebu
Cadastre, Cebu City, bid at P20,000.00;
2. A parcel of land or Lot No. 1052, covered by TCT No.
27642, of the Banilad Friar Lands Estate, Cebu City, bid
at P15,000.00;
3. A parcel of land or Lot No.1051,covered by TCT No.
27641, of the Banilad Friar Lands Estate, Cebu City, at
P5,000.00;
4. A parcel of land or Lot No. 1049, covered by TCT No.
27640, of the Banilad Friar Lands Estate, Cebu City, at
P20,000.00. (Rollo, p. 42)
On July 24, 1980, petitioner Palicte filed a motion with
respondent Judge Ramolete for the transfer to her name
of the titles to the four (4) parcels of land covered by
the deed of redemption.
This motion was opposed by the plaintiffs in Civil Case
No. R-10027, entitled "Pilar Teves, et al. vs Marcelo
Sotto, administrator" on several grounds, principal
among which, is that movant, Palicte, is not one of those
authorized to redeem under the provisions of the Rules
of Court.
A hearing on the said motion, with both parties adducing
evidence was held.
The lower court held that although Palicte is one of the
declared heirs in Spl. Proc. No. 2706-R, she does not
qualify as a successor-in-interest who may redeem the
real properties sold. It ruled that the deed of redemption
is null and void. The motion of Palicte was denied.
Hence, the present petition.
The petitioner raises the following assignment of errors:
A
RESPONDENT JUDGE ERRED IN RULING THAT THE
JUDGMENT DEBTOR ENTITLED TO REDEEM UNDER
SECTION 29(a), RULE 39 OF THE REVISED RULES OF
COURT REAL PROPERTY SOLD ON EXECUTION AGAINST
THE ESTATE OF THE DECEDENT IS ONLY THE
ADMINISTRATOR OF THE ESTATE, OR HIS SUCCESSOR-
IN-INTEREST.
B
118
RESPONDENT JUDGE ERRED IN RULING THAT
PETITIONER, WHO IS A DECLARED HEIR OF THE
DECEDENT, IS NOT THE JUDGMENT DEBTOR NOR DOES
SHE QUALIFY AS A SUCCESSOR-IN-INTEREST OF THE
ADMINISTRATOR OF THE ESTATE ENTITLED TO RIGHT
OF REDEMPTION UNDER SECTION 29(a), RULE 39 OF
THE RULES OF COURT.
C the property of the principal sold on execution because
RESPONDENT JUDGE ERRED IN RULING THAT
ALTHOUGH PETITIONER IS A DECLARED HEIR OF THE
DECEDENT, HER RIGHT TO THE ESTATE, LIKE THAT OF
REDEMPTION OF CERTAIN ESTATE PROPERTY, COULD
ONLY ARISE AFTER DISTRIBUTION OF THE ESTATE AS
THERE IS STILL JUDGMENT DEBT CHARGEABLE
AGAINST THE ESTATE.
D
RESPONDENT JUDGE ERRED IN RULING THAT
PETITIONER'S REDEMPTION OF FOUR (4) PARCELS OF
LAND OF THE ESTATE OF THE DECEDENT SOLD ON
EXECUTION OF JUDGMENT AGAINST THE ESTATE IS
NULL AND VOID AND INEFFECTIVE. (Rollo, pp. 17-18)
These assigned errors center on whether or not
petitioner Palicte may validly exercise the right of
redemption under Sec. 29, Rule 39 of the Rules of Court.
We answer in the affirmative. Sec. 29 of Rule 39
provides:
SEC. 29. Who may redeem real property so sold. — Real
property sold as provided in the last preceding section,
or any part thereof sold separately, may be redeemed
in the manner hereinafter provided, by the following
persons:
(a) The judgment debtor, or his successor in interest in
the whole or any part of the property;
(b) A creditor having a lien by attachment, judgment or
mortgage on the property sold, or on some part thereof,
subsequent to the judgment under which the property
was sold. Such redeeming creditor is termed a
redemptioner.
Under Subsection (a), property sold subject to
redemption may be redeemed by the judgment debtor
or his successor-in-interest in the whole or any part of
the property. Does Matilde Palicte fall within the term
"successor-in-interest"?
Magno vs Viola and Sotto (61 Phil. 80, 84-85) states
that:
The rule is that the term "successor-in-interest" includes
one to whom the debtor has transferred his statutory
right of redemption (Big Sespe Oil Co. vs Cochran, 276
Fed., 216, 223); one to whom the debtor has conveyed
his interest in the property for the purpose of
redemption (Southern California Lumber Co. vs.
McDowell, 105 Cal, 99; 38 Pac., 627; Simpson vs.
Castle, 52 Cal., 644; Schumacher vs. Langford, 20 Cal.
App., 61; 127 Pac., 1057); one who succeeds to the
interest of the debtor by operation of law (XI McKinney's
California Jurisprudence, 99); one or more joint debtors
who were joint owners of the property sold (Emerson
vs. Yosemite Gold Min. etc. Co., 149 Cal., 50; 85 Pac.,
122); the wife as regards her husband's homestead by
reason of the fact that some portion of her husband' title
passes to her (Hefner vs. Urton, 71 Cal., 479; 12 Pac.,
486). This court has held that a surety can not redeem
the surety, by paying the debt of the principal, stands in
the place of the creditor, not of the debtor, and
consequently is not a successor in interest in the
property. (G. Urruitia & Co. vs. Moreno and Reyes, 28
Phil., 260, 268). (Emphasis supplied).
In the case at bar, petitioner Palicte is the daughter of
the late Don Filemon Sotto whose estate was levied
upon on execution to satisfy the money judgment
against it. She is one of the declared heirs in Special
Proceeding No. 2706-R. As a legitimate heir, she
qualifies as a successor-in- interest.
Art. 777 of the Civil Code states that:
The rights to the succession are transmitted from the
moment of the death of the decedent.
At the moment of the decedent's death, the heirs start
to own the property, subject to the decedent's liabilities.
In fact, they may dispose of the same even while the
property is under administration. (Barretto vs. Tuason,
59 Phil. 845; Jakosalem vs. Rafols, 73 Phil. 628). If the
heirs may dispose of their shares in the decedent's
property even while it is under administration. With
more reason should the heirs be allowed to redeem
redeemable properties despite the presence of an
administrator.
The respondents contend that the petitioner must
positively prove that the three other co-heirs, the
administrator, and the intestate court had expressly
agreed to the redemption of the disputed parcels of
land. We see no need for such prior approval. While it
may have been desirable, it is not indispensable under
the circumstances of this case. What is important is that
all of them acquiesced in the act of redeeming property
for the estate. The petitioner contends that the
administrator and the three other heirs agreed to the
redemption. There is, however. no clear proof of such
approval. What is beyond dispute from the records is
that they did not disapprove nor reprobate the acts of
the petitioner. There is likewise nothing in the records
to indicate that the redemption was not beneficial to the
estate of Don Filemon Sotto.
It may be true that the interest of a specific heir is not
yet fixed and determinate pending the order of
distribution but, nonetheless, the heir's interest in the
preservation of the estate and the recovery of its
properties is greater than anybody else's, definitely
more than the administrator's who merely holds it for
the creditors, the heirs, and the legatees.
The petitioner cites precedents where persons with
inchoate or contingent interest were allowed to exercise
119
the right of redemption as "successors-in-interest," e.g.
Director of Lands vs. Lagniton (103 Phil. 889, 892)
where a son redeemed the property of his parents sold
on execution and Rosete vs. Provincial Sheriff of
Zambales (95 Phil. 560, 564), where a wife by virtue of
what the Court called "inchoate right of dower or
contingent interest" redeemed a homestead as
successor-in-interest of her husband.
In fact, the Court was explicit in Lagniton that:
... The right of a son, with respect to the property of a
father or mother, is also an inchoate or contingent
interest, because upon the death of the father or the
mother or both, he will have a right to inherit said
conjugal property. If any holder of an inchoate interest
is a successor in interest with right to redeem a property
sold on execution, then the son is such a successor in
interest, as he has an inchoate right to the property of
his father.
The lower court, therefore, erred in considering the
person of the administrator as the judgment debtor and
as the only "successor-in-interest." The estate of the
deceased is the judgment debtor and the heirs who will
eventually acquire that estate should not be prohibited
from doing their share in its preservation.
Although petitioner Palicte validly redeemed the
properties, her motion to transfer the titles of the four
(4) parcels of land covered by the Deed of Redemption
from registration in the name of Filemon Sotto to her
name cannot prosper at this time.
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."
The other heirs are, therefore, given a six months period
to join as co-redemptioners in the redemption made by
the petitioner before the motion to transfer titles to the
latter's name may be granted.
WHEREFORE, the petition is hereby GRANTED. The
respondent court's orders declaring the deed of
redemption null and void and denying the motion to
transfer title over the redeemed properties to Matilda
Palicte are REVERSED and SET ASIDE, subject to the
right of the other heirs to join in the redemption as
stated above.
SO ORDERED.

Otherwise, to allow such transfer of title would amount

to a distribution of the estate.

As held in the case of Philippine Commercial and

Industrial Bank vs. Escolin (56 SCRA 267, 345- 346):

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,

120
121
Locsin vs. CA (G.R. NO. 89783, February 19, 1992)
G.R. No. 89783 February 19, 1992
MARIANO B. LOCSIN, JULIAN J. LOCSIN, JOSE B.
LOCSIN, AUREA B. LOCSIN, MATILDE L. CORDERO,
SALVADOR B. LOCSIN and MANUEL V. DEL ROSARIO,
petitioners,
vs.
THE HON. COURT OF APPEALS, JOSE JAUCIAN,
FLORENTINO JAUCIAN, MERCEDES JAUCIAN
ARBOLEDA, HEIRS OF JOSEFINA J. BORJA, HEIRS OF
EDUARDO JAUCIAN and HEIRS OF VICENTE
JAUCIAN,respondents.
Aytona Law Office and Siquia Law Offices for petitioners.
Mabella, Sangil & Associates for private respondents.
NARVASA, C.J.:
Reversal of the decision of the Court of Appeals in CA-
G.R. No. CV-11186 — affirming with modification the
judgment of the Regional Trial Court of Albay in favor of
the plaintiffs in Civil Case No. 7152 entitled "Jose
Jaucian, et al. v. Mariano B. Locsin, et al.," an action for
recovery of real property with damages — is sought. in
these proceedings initiated by petition for review on
certiorari in accordance with Rule 45 of the Rules of
Court.
The petition was initially denied due course and
dismissed by this Court. It was however reinstated upon
a second motion for reconsideration filed by the
petitioners, and the respondents were required to
comment thereon. The petition was thereafter given due
course and the parties were directed to submit their
memorandums. These, together with the evidence,
having been carefully considered, the Court now decides
the case.
First, the facts as the Court sees them in light of the
evidence on record:
The late Getulio Locsin had three children named
Mariano, Julian and Magdalena, all surnamed Locsin. He
owned extensive residential and agricultural properties
in the provinces of Albay and Sorsogon. After his death,
his estate was divided among his three (3) children as
follows:
(a) the coconut lands of some 700 hectares in Bual,
Pilar, Sorsogon, were adjudicated to his daughter,
Magdalena Locsin;
(b) 106 hectares of coconut lands were given to Julian
Locsin, father of the petitioners Julian, Mariano, Jose,
Salvador, Matilde, and Aurea, all surnamed Locsin;
(c) more than forty (40) hectares of coconut lands in
Bogtong, eighteen (18) hectares of riceland in Daraga,
and the residential lots in Daraga, Albay and in Legazpi
City went to his son Mariano, which Mariano brought into
his marriage to Catalina Jaucian in 1908. Catalina, for
her part, brought into the marriage untitled properties
which she had inherited from her parents, Balbino
Jaucian and Simona Anson. These were augmented by
other properties acquired by the spouses in the course
of their union, 1 which however was not blessed with
children.
Eventually, the properties of Mariano and Catalina were
brought under the Torrens System. Those that Mariano
inherited from his father, Getulio Locsin, were surveyed
cadastrally and registered in the name of "Mariano
Locsin, married to Catalina Jaucian.'' 2
Mariano Locsin executed a Last Will and Testament
instituting his wife, Catalina, as the sole and universal
heir of all his properties. 3 The will was drawn up by his
wife's nephew and trusted legal adviser, Attorney
Salvador Lorayes. Attorney Lorayes disclosed that the
spouses being childless, they had agreed that their
properties, after both of them shall have died should
revert to their respective sides of the family, i.e.,
Mariano's properties would go to his "Locsin relatives"
(i.e.,brothers and sisters or nephews and nieces), and
those of Catalina to her "Jaucian relatives." 4
Don Mariano Locsin died of cancer on September 14,
1948 after a lingering illness. In due time, his will was
probated in Special Proceedings No. 138, CFI of Albay
without any opposition from both sides of the family. As
directed in his will, Doña Catalina was appointed
executrix of his estate. Her lawyer in the probate
proceeding was Attorney Lorayes. In the inventory of
her husband's estate 5 which she submitted to the
probate court for approval, 6Catalina declared that "all
items mentioned from Nos. 1 to 33 are the private
properties of the deceased and form part of his capital
at the time of the marriage with the surviving spouse,
while items Nos. 34 to 42 are conjugal." 7
Among her own and Don Mariano's relatives, Doña
Catalina was closest to her nephew, Attorney Salvador
Lorayes, her nieces, Elena Jaucian, Maria Lorayes-
Cornelio and Maria Olbes-Velasco, and the husbands of
the last two: Hostilio Cornelio and Fernando Velasco. 8
Her trust in Hostilio Cornelio was such that she made
him custodian of all the titles of her properties; and
before she disposed of any of them, she unfailingly
consulted her lawyer-nephew, Attorney Salvador
Lorayes. It was Atty. Lorayes who prepared the legal
documents and, more often than not, the witnesses to
the transactions were her niece Elena Jaucian, Maria
Lorayes-Cornelio, Maria Olbes-Velasco, or their
husbands. Her niece, Elena Jaucian, was her life-long
companion in her house.
Don Mariano relied on Doña Catalina to carry out the
terms of their compact, hence, nine (9) years after his
death, as if in obedience to his voice from the grave,
and fully cognizant that she was also advancing in years,
Doña Catalina began transferring, by sale, donation or
assignment, Don Mariano's as well as her own,
properties to their respective nephews and nieces. She
made the following sales and donation of properties
122
which she had received from her husband's estate, to Aurea Locsin M. Acabado
his Locsin nephews and nieces:
17 Nov. 26, 1975 Deed of Sale in favor of 373 P 1,000
EXHIBIT DATE PARTICULARS AREA/SQ.M. PRICE Leonor Satuito
WITNESSES
Aurea Locsin Mariano B. Locsin
23 Jan. 26, 1957 Deed of Absolute Sale in 962 P 481
19 Sept. 1, 1975 Conditional Donation in 1,130 P 3,000
favor of Mariano Locsin - ditto -

1-JRL Apr. 7, 1966 Deed of Sale in favor of 430,203 P favor of Mariano Locsin
20,000
1-MVRJ Dec. 29, 1972 Deed of Reconveyance 1,5110.66
Jose R. Locsin P 1,000 Delfina Anson

1-JJL Mar. 22, 1967 Deed of Sale in favor of 5,000 P in favor of Manuel V. del (Lot 2155) Antonio Illegible
1,000 Hostilio Cornello
Rosario whose maternal
Julian Locsin (Lot 2020) Helen M. Jaucian
grandfather was Getulio
1 Nov. 29, 1974 Deed of Donation in 26,509
Locsin
favor Aurea Locsin,
2-MVRJ June 30, 1973 Deed of Reconveyance 319.34 P
Matilde L. Cordero 500 Antonio Illegible

and Salvador Locsin in favor of Manuel V. del (Lot 2155) Salvador Nical

2 Feb. 4, 1975 Deed of Donation in 34,045 Rosario but the rentals

favor Aurea Locsin, from bigger portion of

Matilde L. Cordero Lot 2155 leased to Filoil

and Salvador Locsin Refinery were assigned to

3 Sept. 9, 1975 Deed of Donation in (Lot 2059) Maria Jaucian Lorayes

favor Aurea Locsin, Cornelio

Matilde L. Cordero Of her own properties, Doña Catalina conveyed the

following to her own nephews and nieces and others:
and Salvador Locsin
EXHIBIT DATE PARTICULARS AREA/SQ.M. PRICE
4 July 15, 1974 Deed of Absolute Sale in 1,424 Hostilio
Cornelio 2-JJL July 16, 1964 Deed of Sale in favor 5,000 P 1,000

favor of Aurea B. Locsin Fernando Velasco Vicente Jaucian (lot 2020)

5 July 15, 1974 Deed of Absolute Sale in 1,456 P 5,750 (6,825 sqm. when
Hostilio Cornelio
resurveyed)
favor of Aurea B. Locsin Elena Jaucian
24 Feb. 12, 1973 Deed of Absolute Sale 100 P 1,000
6 July 15, 1974 Deed of Absolute Sale in 1,237 P 5,720
- ditto - in favor of Francisco M.

favor of Aurea B. Locsin Maquiniana

7 July 15, 1974 Deed of Absolute Sale in 1,404 P 4,050 26 July 15, 1973 Deed of Absolute Sale in 130 P 1,300
- ditto -
favor of Francisco
favor of Aurea B. Locsin
Maquiniana
15 Nov. 26, 1975 Deed of Sale in favor of 261 P 4,930
27 May 3, 1973 Deed of Absolute Sale in 100 P 1,000
- ditto -
favor of Ireneo Mamia
Aurea Locsin
28 May 3, 1973 Deed of Absolute Sale in 75 P 750
16 Oct. 17, 1975 Deed of Sale in favor of 533 P 2,000
Delfina Anson favor of Zenaida Buiza
123
29 May 3, 1973 Deed of Absolute Sale in 150 P 1,500
favor of Felisa Morjella
30 Apr. 3, 1973 Deed of Absolute Sale in 31 P 1,000
favor of Inocentes Motocinos
31 Feb. 12, 1973 Deed of Absolute Sale in 150 P 1,500
favor of Casimiro Mondevil
32 Mar. 1, 1973 Deed of Absolute Sale in 112 P 1,200
favor of Juan Saballa
25 Dec. 28, 1973 Deed of Absolute Sale in 250 P 2,500
of Rogelio Marticio
Doña Catalina died on July 6, 1977.
Four years before her death, she had made a will on
October 22, 1973 affirming and ratifying the transfers
she had made during her lifetime in favor of her
husband's, and her own, relatives. After the reading of
her will, all the relatives agreed that there was no need
to submit it to the court for probate because the
properties devised to them under the will had already
been conveyed to them by the deceased when she was
still alive, except some legacies which the executor of
her will or estate, Attorney Salvador Lorayes, proceeded
to distribute.
In 1989, or six (6) years after Doña Catalina's demise,
some of her Jaucian nephews and nieces who had
already received their legacies and hereditary shares
from her estate, filed action in the Regional Trial Court
of Legaspi City (Branch VIII, Civil Case No. 7152) to
recover the properties which she had conveyed to the
Locsins during her lifetime, alleging that the
conveyances were inofficious, without consideration,
and intended solely to circumvent the laws on
succession. Those who were closest to Doña Catalina did
not join the action.
After the trial, judgment was rendered on July 8, l985
in favor of the plaintiffs (Jaucian), and against the Locsin
defendants, the dispositive part of which reads:
WHEREFORE, this Court renders judgment for the
plaintiffs and against the defendants:
(1) declaring the, plaintiffs, except the heirs of Josefina
J. Borja and Eduardo Jaucian, who withdrew, the rightful
heirs and entitled to the entire estate, in equal portions,
of Catalina Jaucian Vda. de Locsin, being the nearest
collateral heirs by right of representation of Juan and
Gregorio, both surnamed Jaucian, and full-blood
brothers of Catalina;
(2) declaring the deeds of sale, donations, reconveyance
and exchange and all other instruments conveying any
part of the estate of Catalina J. Vda. de Locsin including,
but not limited to those in the inventory of known
properties (Annex B of the complaint) as null and void
ab-initio;
(3) ordering the Register of Deeds of Albay and/or
Legazpi City to cancel all certificates of title and other
transfers of the real properties, subject of this case, in
the name of defendants, and derivatives therefrom, and
issue new ones to the plaintiffs;
(4) ordering the defendants, jointly and severally, to
reconvey ownership and possession of all such
properties to the plaintiffs, together with all muniments
of title properly endorsed and delivered, and all the
fruits and incomes received by the defendants from the
estate of Catalina, with legal interest from the filing of
this action; and where reconveyance and delivery
cannot be effected for reasons that might have
intervened and prevent the same, defendants shall pay
for the value of such properties, fruits and incomes
received by them, also with legal interest from the filing,
of this case
(5) ordering each of the defendants to pay the plaintiffs
the amount of P30,000.00 as exemplary damages; and
the further sum of P20,000.00 each as moral damages;
and
(6) ordering the defendants to pay the plaintiffs
attorney's fees and litigation expenses, in the amount of
P30,000.00 without prejudice to any contract between
plaintiffs and counsel.
Costs against the defendants. 9
The Locsins appealed to the Court of Appeals (CA-G.R.
No. CV-11186) which rendered its now appealed
judgment on March 14, 1989, affirming the trial court's
decision.
The petition has merit and should be granted.
The trial court and the Court of Appeals erred in
declaring the private respondents, nephews and nieces
of Doña Catalina J. Vda. de Locsin, entitled to inherit the
properties which she had already disposed of more than
ten (10) years before her death. For those properties
did not form part of her hereditary estate, i.e., "the
property and transmissible rights and obligations
existing at the time of (the decedent's) death and those
which have accrued thereto since the opening of the
succession." 10 The rights to a person's succession are
transmitted from the moment of his death, and do not
vest in his heirs until such time. 11 Property which Doña
Catalina had transferred or conveyed to other persons
during her lifetime no longer formed part of her estate
at the time of her death to which her heirs may lay
claim. Had she died intestate, only the property that
remained in her estate at the time of her death devolved
to her legal heirs; and even if those transfers were, one
and all, treated as donations, the right arising under
certain circumstances to impugn and compel the
reduction or revocation of a decedent's gifts inter vivos
does not inure to the respondents since neither they nor
the donees are compulsory (or forced) heirs. 12
There is thus no basis for assuming an intention on the
part of Doña Catalina, in transferring the properties she
had received from her late husband to his nephews and
124
nieces, an intent to circumvent the law in violation of
the private respondents' rights to her succession. Said
respondents are not her compulsory heirs, and it is not
pretended that she had any such, hence there were no
legitimes that could conceivably be impaired by any
transfer of her property during her lifetime. All that the
respondents had was an expectancy that in nowise
restricted her freedom to dispose of even her entire
estate subject only to the limitation set forth in Art. 750,
Civil Code which, even if it were breached, the
respondents may not invoke:
Art. 750. The donation may comprehend all the present
property of the donor or part thereof, provided he
reserves, in full ownership or in usufruct, sufficient
means for the support of himself, and of all relatives
who, at the time of the acceptance of the donation, are
by law entitled to be supported by the donor. Without
such reservation, the donation shall be reduced on
petition of any person affected. (634a)
The lower court capitalized on the fact that Doña
Catalina was already 90 years old when she died on July
6, 1977. It insinuated that because of her advanced
years she may have been imposed upon, or unduly
influenced and morally pressured by her husband's
nephews and nieces (the petitioners) to transfer to them
the properties which she had inherited from Don
Mariano's estate. The records do not support that
conjecture.
For as early as 1957, or twenty-eight (28) years before
her death, Doña Catalina had already begun transferring
to her Locsin nephews and nieces the properties which
she received from Don Mariano. She sold a 962-sq.m.
lot on January 26, 1957 to his nephew and namesake
Mariano Locsin II. 13 On April 7, 1966, or 19 years
before she passed away, she also sold a 43 hectare land
to another Locsin nephew, Jose R. Locsin. 14 The next
year, or on March 22, 1967, she sold a 5,000-sq.m.
portion of Lot 2020 to Julian Locsin. 15
On March 27, 1967, Lot 2020 16 was partitioned by and
among Doña Catalina, Julian Locsin, Vicente Jaucian and
Agapito Lorete. 17 At least Vicente Jaucian, among the
other respondents in this case, is estopped from
assailing the genuineness and due execution of the sale
of portions of Lot 2020 to himself, Julian Locsin, and
Agapito Lorete, and the partition agreement that he
(Vicente) concluded with the other co-owners of Lot
2020.
Among Doña, Catalina's last transactions before she
died in 1977 were the sales of property which she made
in favor of Aurea Locsin and Mariano Locsin in 1975. 18
There is not the slightest suggestion in the record that
Doña Catalina was mentally incompetent when she
made those dispositions. Indeed, how can any such
suggestion be made in light of the fact that even as she
was transferring properties to the Locsins, she was also
contemporaneously disposing of her other properties in
favor of the Jaucians? She sold to her nephew, Vicente
Jaucian, on July 16, 1964 (21 years before her death)
one-half (or 5,000 sq.m.) of Lot 2020. Three years later,
or on March 22, 1967, she sold another 5000 sq.m. of
the same lot to Julian Locsin. 19
From 1972 to 1973 she made several other transfers of
her properties to her relatives and other persons,
namely: Francisco Maquiniana, Ireneo Mamia, Zenaida
Buiza, Feliza Morjella, Inocentes Motocinos, Casimiro
Mondevil, Juan Saballa and Rogelio Marticio. 20 None of
those transactions was impugned by the private
respondents.
In 1975, or two years before her death, Doña Catalina
sold some lots not only to Don Mariano's niece, Aurea
Locsin, and his nephew, Mariano Locsin
II, 21 but also to her niece, Mercedes Jaucian Arboleda.
22 If she was competent to make that conveyance to
Mercedes, how can there be any doubt that she was
equally competent to transfer her other pieces of
property to Aurea and Mariano II?
The trial court's belief that Don Mariano Locsin
bequeathed his entire estate to his wife, from a
"consciousness of its real origin" which carries the
implication that said estate consisted of properties
which his wife had inherited from her parents, flies in
the teeth of Doña Catalina's admission in her inventory
of that estate, that "items 1 to 33 are the private
properties of the deceased (Don Mariano) and forms
(sic) part of his capital at the time of the marriage with
the surviving spouse, while items 34 to 42 are conjugal
properties, acquired during the marriage." She would
have known better than anyone else whether the listing
included any of her paraphernal property so it is safe to
assume that none was in fact included. The inventory
was signed by her under oath, and was approved by the
probate court in Special Proceeding No. 138 of the Court
of First Instance of Albay. It was prepared with the
assistance of her own nephew and counsel, Atty.
Salvador Lorayes, who surely would not have prepared
a false inventory that would have been prejudicial to his
aunt's interest and to his own, since he stood to inherit
from her eventually.
This Court finds no reason to disbelieve Attorney
Lorayes' testimony that before Don Mariano died, he
and his wife (Doña Catalina), being childless, had
agreed that their respective properties should
eventually revert to their respective lineal relatives. As
the trusted legal adviser of the spouses and a full-blood
nephew of Doña Catalina, he would not have spun a tale
out of thin air that would also prejudice his own interest.
Little significance, it seems, has been attached to the
fact that among Doña Catalina's nephews and nieces,
those closest to her: (a) her lawyer-nephew Attorney
Salvador Lorayes; (b) her niece and companion Elena
Jaucian: (c) her nieces Maria Olbes-Velasco and Maria
Lorayes-Cornelio and their respective husbands,
Fernando Velasco and Hostilio Cornelio, did not join the
suit to annul and undo the dispositions of property which
she made in favor of the Locsins, although it would have
been to their advantage to do so. Their desistance
persuasively demonstrates that Doña Catalina acted as
a completely free agent when she made the
125
conveyances in favor of the petitioners. In fact,
considering their closeness to Doña Catalina it would
have been well-nigh impossible for the petitioners to
employ "fraud, undue pressure, and subtle
manipulations" on her to make her sell or donate her
properties to them. Doña Catalina's niece, Elena
Jaucian, daughter of her brother, Eduardo Jaucian, lived
with her in her house. Her nephew-in-law, Hostilio
Cornelio, was the custodian of the titles of her
properties. The sales and donations which she signed in
favor of the petitioners were prepared by her trusted
legal adviser and nephew, Attorney Salvador Lorayes.
The (1) deed of donation dated November 19,

1974 23 in favor of Aurea Locsin, (2) another deed of

donation dated February 4, 1975 24 in favor of Matilde
Cordero, and (3) still another deed dated September 9,
1975 25 in favor of Salvador Lorayes, were all witnessed
by Hostilio Cornelio (who is married to Doña Catalina's
niece, Maria Lorayes) and Fernando Velasco who is
married to another niece, Maria Olbes. 26The sales
which she made in favor of Aurea Locsin on July 15,
1974 27 were witnessed by Hostilio Cornelio and Elena
Jaucian. Given those circumstances, said transactions
could not have been anything but free and voluntary
acts on her part.

Apart from the foregoing considerations, the trial court

and the Court of Appeals erred in not dismissing this
action for annulment and reconveyance on the ground
of prescription. Commenced decades after the
transactions had been consummated, and six (6) years
after Doña Catalina's death, it prescribed four (4) years
after the subject transactions were recorded in the
Registry of Property, 28 whether considered an action
based on fraud, or one to redress an injury to the rights
of the plaintiffs. The private respondents may not feign
ignorance of said transactions because the registration
of the deeds was constructive notice thereof to them
and the whole world. 29

WHEREFORE, the petition for review is granted. The

decision dated March 14, 1989 of the Court of Appeals
in CA-G.R. CV No. 11186 is REVERSED and SET ASIDE.
The private respondents' complaint for annulment of
contracts and reconveyance of properties in Civil Case
No. 7152 of the Regional Trial Court, Branch VIII of
Legazpi City, is DISMISSED, with costs against the
private respondents, plaintiffs therein.

SO ORDERED.

126
Llenares vs. CA (G.R. No. 98709, May 13, 1993)
G.R. No. 98709 May 13, 1993
MAGDALENA LLENARES, petitioner,
vs.
HON. COURT OF APPEALS and APOLINAR ZABELLA,
respondents.
DAVIDE, JR., J.:
Petitioner availed of this recourse under Rule 45 of the
Revised Rules of Court to obtain a reversal of the
Decision of the Seventh Division of Court of Appeals in
CA-G.R. CV No. 09853, promulgated on 24 April 1990,
1 and the reinstatement of the 4 April 1986 Decision of
Branch 57 of the Regional Trial Court (RTC), Lucena
City, in a case 2 involving the recovery of the possession
and quieting of title over a parcel of land. The dispositive
portion of the trial court's decision reads as follows:
WHEREFORE, judgment is hereby rendered for the
plaintiff who is declared the true and absolute owner of
the land covered by TCT No. 28170 (Registry of Deeds,
Lucena City) particularly described in par. 2 of plaintiff's
complaint and it is hereby ordered —
1. That the defendant or any person acting in his behalf
surrender and transfer possession of the land in
question (covered by TCT No. 28170 to the plaintiff;
2. That the defendant render an accounting of the fruits
he received from the aforementioned property from
August 1976 until possession is transferred to the
plaintiff, said accounting to be approved by the court;
3. That in keeping with the findings of this court, the
Register of Deeds, Lucena City, should, as he is hereby
ordered cancel Entry No. 35285 in TCT No. 28170, said
entry being an annotation of the adverse claim of
defendant Apolinar Zabella inscribed on Feb. 17, 1977;
4. That the defendant pay to plaintiff the amount of
P2,500.00 as attorney's fees and P1,000.00 as expenses
of litigation. 3
Petitioner filed the aforementioned complaint on 12 July
1977 after she had been allegedly dispossessed of the
property in question by private respondent Apolinar
Zabella in 1976, and after the latter had caused to be
annotated in Transfer Certificate of Title (TCT) No.
28170 an affidavit of adverse claim on 17 February
1977. She prayed therein that, inter alia, she be
restored to the possession of the said property and that
the adverse claim be cancelled. 4
As disclosed by the pleadings and the challenged
decision, the antecedent facts are as follows:
Juan Zabella and Anastacio Llenares were co-owners, in
equal shares, of a parcel of land situated in barrio
Silangang Mayao of the then Municipality, now City, of
Lucena. In the cadastral survey of the said municipality,
the lot was designated as Cadastral Lot No. 4804-D. This
designation was later changed to Lot. No. 5015.
On 21 December 1929, Anastacio Llenares sold his one-
half (1/2) share in the lot to Ariston Zabella, private
respondent's father. Subsequently, after due
proceedings, the cadastral court awarded Lot. No. 5015
to Juan Zabella and Anastacio Llenares in equal shares.
Decree No. 54398 was issued to both of them and on
the basis thereof, Original Certificate of Title (OCT) No.
43073 was issued in their names on July 1937.
Anastacio Llenares passed away on 27 March 1931
leaving the petitioner, his only child, as his sole heir. On
the other hand, Juan Zabella and niece Irene Catapat.
On 5 February 1960, Rosario and Irene adjudicated to
themselves Juan Zabella's one-half (1/2) share in the
lot. This adjudication was annotated in OCT No. 43073.
Rosario died on 5 June 1962 leaving, as her only heirs,
her children Godofredo, Noemi, Natividad, Olimpio and
Numeriana, all surnamed Zaracena.
On 22 June 1976, petitioner, as the sole heir of
Anastacio Llenares, adjudicated to herself, by way of a
Salaysay ng Pagmamana ng Nag-iisang Tagapagmana
(Exhibit "A"), the one-half (1/2) share in the property
belonging to Anastacio Llenares. This fact was likewise
annotated in OCT No. 43073.
On 26 August 1976, however, OCT No. 43073 was
cancelled and in its place, TCT No. T-27166 was issued
for the entire lot. On 16 February 1977, private
respondent Zabella filed an adverse claim which was
duly annotated in TCT No. T-27166.
As a consequence of a Kasunduan ng Pagsusukat
(Exhibit "I") executed by and between Irene Catapat
and the heirs of Rosario Zabella Zaracena, Lot No. 5015
was subsidivided into Lot. Nos. 5015-A, 5015-B and
5015-C. Lot No. 5015-A, which comprises one-half (1/2)
of Lot No. 5015 corresponding to Anastacio's share, was
allotted to the petitioner. TCT No. T-27166 was
thereafter cancelled and separate Transfer Certificate of
Title were issued for each of the subdivided lots. TCT
No. 28170 was issued in the petitioner's name for Lot
No. 5015-A.
As regards the issue of possession, the petitioner's
evidence discloses that since she was only four (4) years
old when her father died, her cousin Rosario Zabella
administered the land in question until 1959 when she
(petitioner) placed Rufo Orig as tenant therein. The
latter worked as such, delivering to the petitioner her
share of the harvest until 1976, when he stopped doing
so as he was ordered by the private respondent not to
give the petitioner her share anymore. Private
respondent allegedly claimed ownership over the
property. Petitioner further proved that she had been
paying the land taxes on the property until the filing of
the case.
On the other hand, according to his own version, private
respondent and his siblings took possession of that
portion of the land sold by Anastacio Llenares after
Ariston Zabella's death on 21 March 1930. He then
converted the same into riceland. It was irrigated in
1955 and he has been paying the irrigation charges
since 1960. Moreover, he and his co-heirs have been in
127
possession of the property without interference by any
party until "the present." 5
The trial court limited the issues to the following:
whether the private respondent had acquired absolute
ownership of the land in question by prescription and
whether the plaintiff's (petitioner) action is barred by
laches. 6 In finding for the petitioner, the lower court
made the following disquisitions:
It is beyond cavil that the land in question (then part of
a big parcel) has been registered and titled in the name
of plaintiff's father Anastacio Llenares since July 28,
1937 even as it is now registered in the name of plaintiff
who made an affidavit of self-adjudification on June 22,
1976 being the only child of Anastacio Llenares.
Anastacio Llenares became the registered owner by
virtue of a cadastral proceedings, a proceedings in rem
that is binding and conclusive against the whole world.
No evidence of irregularity or fraud in the issuance of
the title has been adduced, and even if there is intrinsic
fraud, the period of one year within which to ventilate
this infirmity has long expired. It is a postulate in law
that "no title to registered land in derogation to that of
the registered owner shall be acquired by prescription
or adverse possession. Prescription is unavailing not
only against the registered owner but also against his
hereditary successors because the latter merely step
into the shoes of the decedent by operation of law and
are merely the continuation of the personality of their
predecessor in interest." (Barcelona vs. Barcelona, 100
Phil. 251). On this score alone, defendant's claim of
prescription should fail. The court also notes, in passing,
that defendant's evidence does not convincingly
establish that he possessed the property publicly,
exclusively and peacefully in the concept of owner. For
one thing, he has not even paid any realty tax on the
property as the property is not declared for taxation
purposes in his name. The court is neither impressed
with the credibility of defendant's witnesses. For
example, the witness Sergio Dalida testified that in 1918
the land in litigation was in the possession of Ariston
Zabella (T.S.N. 8-21-84 p. 8). There seems to be no
truth to this because the property was bought by Ariston
Zabella only in the year 1929. And then, there was that
other witness Cosme Ranillo who unequivocally
admitted during cross-examination that he was coached
by the defendant (vide: t.s.n. 11-20-84 p. 24-26).
As regards the Deed of Sale of the property in litigation
in favor of Ariston Zabella (Exh. "1") which is apparently
the cornerstone of defendant's claim over the property
the court concurs with the submission of the plaintiff
that after final judgment has been rendered in the
cadastral proceedings, all rights or claims prior thereto
are deemed barred by the principle of res judicata.
Hence after the finality of the judgment in the cadastral
case, the Deed of Sale has lost its efficacy being functus
oficio.
With respect to the defense of laches so emphatically
and exhaustively discussed by defendant's counsel in his
brief we find this to be devoid of merit because of the
following cogent reasons, viz:
Firstly, the defense of laches was never interposed or
pleaded in the answer filed by the defendant. Not even
in our most gratuitous moment can we see a nuance of
this defense being asserted in the answer: It is a rule of
procedure that defenses and objections not pleaded
either in a motion to dismiss or in the answer are
deemed waived. (Sec. 2 Rule 9 of the Rules of Court).
Secondly, the evidence shows that plaintiff has not been
sleeping on her rights. According to her she was
dispossessed of the land in 1976. It is admitted by the
defendant that in 1977, plaintiff lodged a complaint
against the defendant regarding the land in question
with the Presidential Action Committee On Land
Problems (PACLAP) as (sic) Camp Wilhelm, Lucena City.
And then the instant action was filed in court on July 12,
1977.
On the contrary it is the defendant and/or his
predeccessor in interest who have been sleeping on
their rights if any. They did not assert their right of
ownership over the land in question arising from the
Deed of Sale during the cadastral proceedings in the
year 1937 or thereabout (sic). Except for filing an
adverse claim on February 17, 1977, defendant has not
taken any step to have the title of the property and its
tax declaration transferred to his name.
Thirdly, as adverted to, a title once registered cannot be
defeated even by adverse, open and notorious
possession. In the same vein, laches, too, may not be
considered a valid defense for claiming ownership of
registered land. Where prescription would not lie,
neither would laches be available (De La Cruz vs. De La
Cruz, CA-G.R. No. 4700-R, Aug. 14, 1950; Adove vs,
Lopez, CA-G.R. No. 18060-R, Aug. 30, 1957. 7
From this adverse decision, the private respondent
appealed to the respondent Court of Appeals, which
docketed the case as CA-G.R. CV No. 09853. He asked
the respondent Court to reverse the RTC because the
latter erred: (a) in not considering the unsullied
testimonial and documentary evidence for the
appellant; (b) in appreciating the plaintiff-appellee's
flimsy and insufficient testimonial evidence; (c) in not
declaring that prescription and laches were raised by the
defendant; (d) in declaring that the failure to present to
the cadastral court the deed of absolute sale bars the
appellant (private respondent) from proving his
ownership over the land in suit; and (e) in rendering
judgment in favor of the petitioner. 8
In its Decision, the respondent Court upheld the private
respondent's position and decreed as follows:
WHEREFORE, the appealed decision is reversed and
another one entered —
(1) declaring defendant-appellant the true and lawful
owner of the 12,501 square meters of land described in
and covered by Transfer Certificate of Title No. T-28170
of the Registry of Deeds of Lucena City;
(2) ordering the plaintiff-appellee to execute to the
defendant-appellant the proper deed of conveyance
128
transferring full ownership of Transfer Certificate of Title
No. T-28170 to the said defendant-appellant;
(3) ordering the Register of Deeds of Lucena City to
cancel said Transfer Certificate of Title No. T-28170 and
to issue thereafter a new one in the name of defendant-
appellant, in the event the plaintiff-appellee shall fail or
refuse to execute the conveyance;
(4) ordering the plaintiff-appellee to pay attorney's fees
of P10,000.00.
Costs against the plaintiff-appellee. 9
In resolving the appeal against the petitioner, the
respondent Court stressed the fact that although OCT
No. 43073 was issued in 1937, it was only on 26 August
1976 that the petitioner initially moved "to change the
registered ownership" of the property with the issuance
of TCT No. 27166. At that time, petitioner was already
forty-nine (49) years old. In short, the respondent Court
observed that she allowed twenty-eight (28) years to
pass — from the time she attained the age of majority
— before taking any affirmative action to protect her
rights over the property. It thus concluded that
"suspicion then is not altogether unjustified that the
inaction was because the appellee knew of the sale by
her father Juan Zabella (sic)," and that such knowledge
is notice "that appellee had no right over half of the land.
" 10
Anent the petitioner's contention that the private
respondent is not only guilty of laches but that
prescription had already set in against him, the
respondent Court ruled that the former's evidence
speaks otherwise because after TCT No. T-27166 was
issued on 26 August 1976, the private respondent
promptly filed his adverse claim, thereby making of
record his interest in the land. Thus, neither prescription
nor laches applies against him. 11
Public respondent also overturned the trail court's
finding that the petitioner was in possession of the
property until she was dispossessed in 1976 by the
private respondent principally because it was in the third
quarter of 1977 that she (petitioner) declared the
questioned property in her name, and had paid land
taxes thereon only for the same third quarter of 1977.
The other tax payments were not in her name, but in
the names of Godofredo Zaracena and Juan Zabella. The
respondent Court opined that "[N]ormally, one who
claims possession in ownership will declare the property
in his name and will pay taxes on it," 12 and concluded
that the petitioner's claimed possession "is not
possession in law that deserves protection and
recognition." 13 On the other hand, it gave credit to the
private respondent's version chiefly because he has
been paying irrigation charges since 1960.
Aggrieved thereby, the petitioner took this recourse,
and raises the following issues:
1. Whether or not the alleged sale of a property by virtue
of an instrument which was not filed or registered under
Act 3344 and was not submitted before the Cadastral
Court during the hearing thereof may deprived (sic) an
adjudicated-declared owner the (sic) enjoyment of
possession and the improvements thereof.
2. Whether or not a party in (sic) whose title was vested
by virtue of a rendition of judgment and issuance of the
decree of registration in a judicial proceeding in rem
which as such, binds the whole world and who ever
claim (sic) thereafter on the said land are (sic) deemed
barred under the principle of res judicata.
3. Whether (sic) or not property covered by Torence
(sic) Title can be acquired by prescription or adverse
possession. 14
After the private respondent filed his Comment, We
gave due course to the petition and directed both parties
to submit their respective Memoranda, which they
complied with.
The petition is impressed with merit.
1. In the first place, the public respondent's factual
findings on the issuance of possession — on the basis of
which it rejected the findings of fact and conclusions of
the trial court — are conjectural and speculative. Hence,
We cannot be bound by such findings under the rule that
findings of fact of the Court of Appeals are conclusive on
this Court. 15 The trial court gave credence to the
petitioner's account that she had legally possessed the
property in question until 1976, categorically ruling that
the private respondent's "evidence does not
convincingly establish that he possessed the property
publicly, exclusively and peacefully in the concept of
owner." 16 The reasons for this pronouncement have
already been given. Clearly, these matters are
inexorably anchored on the witnesses' credibility. It is a
settled judicial precept that the issue of the credibility of
witnesses is primarily addressed to the trial court since
it is in a better position to decide such a question, having
seen and heard the witnesses and having observed their
deportment and manner of testifying during the trial. 17
Moreover, its findings on such credibility carry great
weight and respect, and will be sustained by the
appellate court unless certain facts of substance and
value have been overlooked which, if considered, might
affect the result of the case. 18 That the petitioner
neither declared the property in her name nor paid the
taxes thereon until 1977 is not, contrary to the public
respondent's conclusion, fatal to her cause. Until 27
June 1976, the property remained covered by OCT No.
43073 in the names of Juan Zabella and Anastacio
Llenares. The private respondent's alleged claim was not
annotated thereon. There is, as well, no evidence to
show that the private respondent had earlier made any
extrajudicial or judicial demands to enforce his claim on
the property based on the so-called deed of sale which
Anastacio had executed on 21 December 1929 in favor
of Ariston Zabella, the private respondent's
predecessor-in-interest. Since the petitioner is
Anastacio Llenares's sole heir, the continued existence
of OCT No. 43073 fully protected her rights; and her
failure to declare for taxation purposes the one-half
(1/2) portion of the land pertaining to Anastacio did not,
129
therefore, prejudice her because the payments of the
real estate taxes by other — such as Godofredo
Zaracena and Juan Zabella, as found by the public
respondent per Exhibits "C", "C-1" and "C-2" 19 — for
and in behalf of the registered owners — benefited the
registered owners themselves and their successors-in-
interest. On the other, the private respondent neither
had the property declared in his name for taxation
purposes nor paid the real estate taxes thereon. All that
he paid, and this was only beginning in 1960, were the
irrigation charges. And yet, the respondent Court
resolved the issue in his favor. This palpable
inconsistency on the part of the Court of Appeals defies
all logic.
Furthermore, the respondent Court's conclusion that the
petitioner made no move to have the property declared
in her name or pay the real estate taxes thereon before
1976 because she knew all along about the 1929 sale
executed by her father to Ariston Zabella, is plain
speculation and, as characterized by the public
respondent, a mere "suspicion," thus:
. . . The suspicion then is not altogether unjustified that
the inaction was because the appellee knew of the sale
by her father to Juan (sic) Zabella. . . . 20
Such a suspicion has no basis at all. The parties do not
dispute the fact that at the time of Anastacio Llenares'
death on 27 March 1931, the petitioner was only four
(4) years old. The deed of sale was executed by
Anastacio Llenares on 21 December 1929, when the
petitioner was only two (2) years old. Being at that time
very much below the age of reason, the petitioner could
not have been expected to be aware of the existence of
the said deed of sale, much less understand its contents.
The evidence failed to show that the private respondent
informed the petitioner of such a sale at any time before
the former filed the adverse claim on 17 February 1977.
2. Secondly, the respondent Court erroneously applied
the rule on prescription against the petitioner and not
against the private respondent. The evidence
conclusively established that at an appropriate cadastral
proceedings, Lot No. 5015 was awarded by the cadastral
court to Juan Zabella and Anastacio Llenares in
equalpro-indiviso shares; the decision became final; and
on 28 July 1937, OCT No. 43073 was issued in favor of
Juan Zabella and Anastacio Llenares. It was only on 17
February 1977, or after the lapse of over thirty-nine
(39) years, that the private respondent, as a successor-
in-interest of Ariston Zabella, took the first legal step —
i.e., the filing of the affidavit of adverse claim — to
protect and preserve his supposed right acquired under
the deed of sale. Unfortunately, however, this move did
not produce any legal effect. An adverse claim under
Section 110 of the Land Registration Act (Act No. 496),
the governing law at that time, referred to a claim of
"any part or interest in registered land adverse to the
registered owner, arising subsequent to the date of the
original registration." 21 In the instant case, the private
respondent's "adverse claim" is one based on a
transaction which had occurred long before the rendition
of the decision in the cadastral proceedings and the
issuance of OCT No. 43073. This seems to have escaped
the attention of the public respondent which instead
concluded that it was the petitioner who did not take
any legal action from 1937, when OCT No. 43073 was
issued, until 26 August 1976, when TCT NO. 27166 was
issued following her execution on 22 June 1976 of the
affidavit of "self-adjudication." This conclusion has no
basis. As has been earlier adverted to, the continued
existence of OCT No. 43073 in Juan Zabella's name
protected the petitioner as the sole heir of Anastacio
Llenares. There is no law which requires her, as a sole
heir, to execute an affidavit of adjudication and cause
both the cancellation of the OCT and the issuance of a
new one in her name and in the names of the heirs of
co-owner Juan Zabella in order to transfer the
ownership of the property to her, or protect her rights
and interests therein. The transfer in her favor took
place, ipso jure, upon the death of Anastacio Llenares.
22
3. Finally, the so-called deed of sale executed by
Anastacio Llenares in 1929 had lost its efficacy after the
judgment in the cadastral proceedings adjudicating Lot
No. 5015 to him and Juan Zabella became final. Ariston
Zabella, the vendee in the said sale, did not file any
answer in the cadastral proceedings or advance any
claims on the said lot. It is to be noted that the
proceedings under the Cadastral Act (Act No. 2259, as
amended) 23 are judicial and in rem. As such, they bind
the whole world. The final judgment rendered therein is
deemed to have settled the status of the land subject
thereof; any claim over it not noted thereon by other
parties is therefore deemed barred under the principle
of res judicata. 24 In a cadastal proceeding, the
Government is actually the plaintiff and all the claimants
are defendants. 25 This is because the former,
represented by the Solicitor General, institutes the
proceedings by a petition against the holders, claimants,
possessors or occupants of such lands or any part
thereof while the latter, or those claiming interest in the
entire land or any part of it, whether named in the notice
or not, are required to appear before the court and file
an answer on or before the return day or within such
further time as may be followed by the court. 26 All
conflicting interest shall be adjudicated therein and the
decree awarded in favor of the party entitled to the land;
when it has become final, the decree shall serve as the
basis for an original certificate of title in favor of the said
party. This shall have the same effect as a certificate of
title granted under the Land Registration Act. 27
A party fraudulently deprived of his property in a
cadastral proceeding may nevertheless file, within one
(1) year from the entry of the decree, a petition for
review. 28 After the lapse of the said period, if the
property has not yet passed on to an innocent purchaser
for value, an action for conveyance may still be filed by
the aggrieved party. 29 In the instant case, that action
for conveyance could have only been based on an
implied trust in Article 1456 of the Civil Code:
Art. 1456. If property is acquired through mistake or
fraud, the person obtaining it is, by force of law,
130
considered a trustee of an implied trust for the benefit
of the person from whom the property comes.

It is now settled that an action for the conveyance of

property based on an implied or constructive trust
prescribes in ten (10) years. 30

WHEREFORE, judgment is hereby rendered GRANTING

the instant petition, ANNULING the challenged decision
of the public respondent Court of Appeals of 24 April
1991 in CA-G.R. CV No. 09853 and REINSTATING the
decision of the trial court subject of the appeal in the
latter case.

Costs against the private respondent. SO ORDERED.

131
Gevero vs. IAC (G.R. NO. 77029, August 30, 1990)
G.R. No. 77029 August 30, 1990
BIENVENIDO, ESTELITA, MACARIO, LUIS, ADELAIDE,
ENRIQUITA and CLAUDIO, all surnamed,
GEVERO,petitioners,
vs.
INTERMEDIATE APPELLATE COURT and DEL MONTE
DEVELOPMENT CORPORATION, respondents.
Carlito B. Somido for petitioners.
Benjamin N. Tabios for private respondent.
PARAS, J.:
This is a petition for review on certiorari of the March
20, 1988 decision 1 of the then Intermediate Appellate
Court (now Court of Appeals) in AC-GR CV No. 69264,
entitled Del Monte Development Corporation vs. Enrique
Ababa, et al., etc. affirming the decision 2 of the then
Court of First Instance (now Regional Trial Court) of
Misamis Oriental declaring the plaintiff corporation as
the true and absolute owner of that portion of Lot 476
of the Cagayan Cadastre, particularly Lot No. 2476-D of
the subdivision plan (LRC) Psd-80450, containing an
area of Seven Thousand Eight Hundred Seventy Eight
(7,878) square meters more or less.
As found by the Appellate Court, the facts are as follows:
The parcel of land under litigation is Lot No. 2476 of the
Subdivision Plan Psd-37365 containing an area of
20,119 square meters and situated at Gusa, Cagayan
de Oro City. Said lot was acquired by purchase from the
late Luis Lancero on September 15, 1964 as per Deed
of Absolute Sale executed in favor of plaintiff and by
virtue of which Transfer Certificate of Title No. 4320 was
issued to plaintiff (DELCOR for brevity). Luis Lancero, in
turn acquired the same parcel from Ricardo Gevero on
February 5, 1952 per deed of sale executed by Ricardo
Gevero which was duly annotated as entry No. 1128 at
the back of Original Certificate of Title No. 7610 covering
the mother lot identified as Lot No. 2476 in the names
of Teodorica Babangha — 1/2 share and her children:
Maria; Restituto, Elena, Ricardo, Eustaquio and Ursula,
all surnamed surnamed Gevero, 1/2 undivided share of
the whole area containing 48,122 square meters.
Teodorica Babangha died long before World War II and
was survived by her six children aforementioned. The
heirs of Teodorica Babangha on October 17,1966
executed an Extra-Judicial Settlement and Partition of
the estate of Teodorica Babangha, consisting of two lots,
among them was lot 2476. By virtue of the extra-judicial
settlement and partition executed by the said heirs of
Teodorica Babangha, Lot 2476-A to Lot 2476-I,
inclusive, under subdivision plan (LRC) Psd-80450 duly
approved by the Land Registration Commission, Lot
2476-D, among others, was adjudicated to Ricardo
Gevero who was then alive at the time of extra-judicial
settlement and partition in 1966. Plaintiff (private
respondent herein) filed an action with the CFI (now
RTC) of Misamis Oriental to quiet title and/or annul the
partition made by the heirs of Teodorica Babangha
insofar as the same prejudices the land which it acquired
a portion of lot 2476.
Plaintiff now seeks to quiet title and/or annul the
partition made by the heirs of Teodorica Babangha
insofar as the same prejudices the land which it
acquired, a portion of Lot 2476. Plaintiff proved that
before purchasing Lot 2476-A it first investigated and
checked the title of Luis Lancero and found the same to
be intact in the office of the Register of Deeds of
Cagayan de Oro City. The same with the subdivision
plan (Exh. "B"), the corresponding technical description
(Exh. "P") and the Deed of Sale executed by Ricardo
Gevero — all of which were found to be unquestionable.
By reason of all these, plaintiff claims to have bought
the land in good faith and for value, occupying the land
since the sale and taking over from Lancero's possession
until May 1969, when the defendants Abadas forcibly
entered the property. (Rollo, p. 23)
After trial the court a quo on July 18, 1977 rendered
judgment, the dispositive portion of which reads as
follows:
WHEREFORE, premises considered, judgment is hereby
rendered declaring the plaintiff corporation as the true
and absolute owner of that portion of Lot No. 2476 of
the Cagayan Cadastre, particularly Lot No. 2476-D of
the subdivision plan (LRC) Psd-80450, containing an
area of SEVEN THOUSAND EIGHT HUNDRED SEVENTY
EIGHT (7,878) square meters, more or less. The other
portions of Lot No. 2476 are hereby adjudicated as
follows:
Lot No. 2476 – B – to the heirs of Elena Gevero;
Lot No. 2476 – C – to the heirs of Restituto Gevero;
Lot No. 2476 – E – to the defendant spouses Enrique C.
Torres and Francisca Aquino;
Lot No. 2476 – F – to the defendant spouses Eduard
Rumohr and Emilia Merida Rumohf ;
Lot Nos. 2476-H, 2476-I and 2476 — G — to defendant
spouses Enrique Abada and Lilia Alvarez Abada.
No adjudication can be made with respect to Lot No.
2476-A considering that the said lot is the subject of a
civil case between the Heirs of Maria Gevero on one
hand and the spouses Daniel Borkingkito and Ursula
Gevero on the other hand, which case is now pending
appeal before the Court of Appeals. No pronouncement
as to costs,
SO ORDERED. (Decision, Record on Appeal, p. 203;
Rollo, pp. 21-22)
From said decision, defendant heirs of Ricardo Gevero
(petitioners herein) appealed to the IAC (now Court of
Appeals) which subsequently, on March 20, 1986,
affirmed the decision appealed from.
132
Petitioners, on March 31, 1986, filed a motion for
reconsideration (Rollo, p. 28) but was denied on April
21, 1986.
Hence, the present petition.
This petition is devoid of merit.
Basically, the issues to be resolved in the instant case
are: 1) whether or not the deed of sale executed by
Ricardo Gevero to Luis Lancero is valid; 2) in the
affirmative, whether or not the 1/2 share of interest of
Teodorica Babangha in one of the litigated lots, lot no.
2476 under OCT No. 7610 is included in the deed of
sale; and 3) whether or not the private respondents'
action is barred by laches.
Petitioners maintain that the deed of sale is entirely
invalid citing alleged flaws thereto, such as that: 1) the
signature of Ricardo was forged without his knowledge
of such fact; 2) Lancero had recognized the fatal defect
of the 1952 deed of sale when he signed the document
in 1968 entitled "Settlement to Avoid the Litigation"; 3)
Ricardo's children remained in the property
notwithstanding the sale to Lancero; 4) the designated
Lot No. is 2470 instead of the correct number being Lot
No. 2476; 5) the deed of sale included the share of
Eustaquio Gevero without his authority; 6) T.C.T. No.
1183 of Lancero segregated the area of 20,119 square
meters from the bigger area (OCT No. 7616) without the
consent of the other co-owners; 7) Lancero caused the
1952 Subdivision survey without the consent of the
Geveros' to bring about the segregation of the 20,119
square meters lot from the mother lot 2476 which
brought about the issuance of his title T-1183 and to
DELCOR's title T4320, both of which were illegally
issued; and 8) the area sold as per document is 20,649
square meters whereas the segregated area covered by
TCT No. T-1183 of Lancero turned out to be 20,119
square meters (Petitioners Memorandum, pp. 62-78).
As to petitioners' claim that the signature of Ricardo in
the 1952 deed of sale in favor of Lancero was forged
without Ricardo's knowledge of such fact (Rollo, p. 71)
it will be observed that the deed of sale in question was
executed with all the legal formalities of a public
document. The 1952 deed was duly acknowledged by
both parties before the notary public, yet petitioners did
not bother to rebut the legal presumption of the
regularity of the notarized document (Dy v. Sacay, 165
SCRA 473 [1988]); Nuguid v. C.A., G.R. No. 77423,
March 13, 1989). In fact it has long been settled that a
public document executed and attested through the
intervention of the notary public is evidence of the facts
in clear, unequivocal manner therein expressed. It has
the presumption of regularity and to contradict all these,
evidence must be clear, convincing and more than
merely preponderant (Rebuleda v. I.A.C., 155 SCRA
520-521 [1987]). Forgery cannot be presumed, it must
be proven (Siasat v. IAC, No. 67889, October 10, 1985).
Likewise, petitioners allegation of absence of
consideration of the deed was not substantiated. Under
Art. 1354 of the Civil Code, consideration is presumed
unless the contrary is proven.
As to petitioners' contention that Lancero had
recognized the fatal defect of the 1952 deed when he
signed the document in 1968 entitled "Settlement to
Avoid Litigation" (Rollo, p. 71), it is a basic rule of
evidence that the right of a party cannot be prejudiced
by an act, declaration, or omission of another (Sec. 28.
Rule 130, Rules of Court). This particular rule is
embodied in the maxim "res inter alios acta alteri nocere
non debet." Under Section 31, Rule 130, Rules of Court
"where one derives title to property from another, the
act, declaration, or omission of the latter, while holding
the title, in relation to the property is evidence against
the former." It is however stressed that the admission
of the former owner of a property must have been made
while he was the owner thereof in order that such
admission may be binding upon the present owner (City
of Manila v. del Rosario, 5 Phil. 227 [1905]; Medel v.
Avecilla, 15 Phil. 465 [1910]). Hence, Lanceros'
declaration or acts of executing the 1968 document
have no binding effect on DELCOR, the ownership of the
land having passed to DELCOR in 1964.
Petitioners' claim that they remained in the property,
notwithstanding the alleged sale by Ricardo to Lancero
(Rollo, p. 71) involves a question of fact already raised
and passed upon by both the trial and appellate courts.
Said the Court of Appeals:
Contrary to the allegations of the appellants, the trial
court found that Luis Lancero had taken possession of
the land upon proper investigation by plaintiff the latter
learned that it was indeed Luis Lancero who was the
owner and possessor of Lot 2476 D. . . . (Decision, C.A.,
p. 6).
As a finding of fact, it is binding upon this Court (De
Gola-Sison v. Manalo, 8 SCRA 595 [1963]; Gaduco vs.
C.A., 14 SCRA 282 [1965]; Ramos v. Pepsi-Cola, 19
SCRA 289 [1967]; Tan v. C.A., 20 SCRA 54 [1967];
Ramirez Tel. Co. v. Bank of America, 33 SCRA 737
[1970]; Lucero v. Loot, 25 SCRA 687 [1968]; Guerrero
v. C.A., 142 SCRA 130 [1986]).
Suffice it to say that the other flaws claimed by the
petitioners which allegedly invalidated the 1952 deed of
sale have not been raised before the trial court nor
before the appellate court. It is settled jurisprudence
that an issue which was neither averred in the complaint
nor raised during the trial in the court below cannot be
raised for the first time on appeal as it would be
offensive to the basic rules of fair play, justice and due
process. (Matienzo v. Servidad, 107 SCRA 276 [1981];
Dela Santa v. C.A., 140 SCRA 44 [1985]; Dihiansan v.
C.A., 157 SCRA 434 [1987]; Anchuelo v. IAC, 147 SCRA
434 [1987]; Dulos Realty and Development Corporation
v. C.A., 157 SCRA [1988]; Kamos v. IAC, G.R. No.
78282, July 5, 1989).
Petitioners aver that the 1/2 share of interest of
Teodorica (mother of Ricardo) in Lot 2476 under OCT
No. 7610 was not included in the deed of sale as it was
intended to limit solely to Ricardos' proportionate share
out of the undivided 1/2 of the area pertaining to the six
(6) brothers and sisters listed in the Title and that the
133
Deed did not include the share of Ricardo, as inheritance
from Teodorica, because the Deed did not recite that she
was deceased at the time it was executed (Rollo, pp. 67-
68).
The hereditary share in a decedents' estate is
transmitted or vested immediately from the moment of
the death of the "causante" or predecessor in interest
(Civil Code of the Philippines, Art. 777), and there is no
legal bar to a successor (with requisite contracting
capacity) disposing of his hereditary share immediately
after such death, even if the actual extent of such share
is not determined until the subsequent liquidation of the
estate (De Borja v. Vda. de Borja, 46 SCRA 577 [1972]).
Teodorica Babangha died long before World War II,
hence, the rights to the succession were transmitted
from the moment of her death. It is therefore incorrect
to state that it was only in 1966, the date of extrajudicial
partition, when Ricardo received his share in the lot as
inheritance from his mother Teodorica. Thus, when
Ricardo sold his share over lot 2476 that share which he
inherited from Teodorica was also included unless
expressly excluded in the deed of sale.
Petitioners contend that Ricardo's share from Teodorica
was excluded in the sale considering that a paragraph
of the aforementioned deed refers merely to the shares
of Ricardo and Eustaquio (Rollo, p. 67-68).
It is well settled that laws and contracts shall be so
construed as to harmonize and give effect to the
different provisions thereof (Reparations Commission v.
Northern Lines, Inc., 34 SCRA 203 [1970]), to ascertain
the meaning of the provisions of a contract, its entirety
must be taken into account (Ruiz v. Sheriff of Manila, 34
SCRA 83 [1970]). The interpretation insisted upon by
the petitioners, by citing only one paragraph of the deed
of sale, would not only create contradictions but also,
render meaningless and set at naught the entire
provisions thereof.
(Mallorca v. De Ocampo, No. L-26852, March 25, 1970;
Unchuan v. C.A., 161 SCRA 710 [1988]; Nuguid v. CA-
G.R. No. 77427, March 13, 1989).
Under the established principles of land registration law,
the person dealing with registered land may generally
rely on the correctness of its certificate of title and the
law will in no way oblige him to go behind the certificate
to determine the condition of the property (Tiongco v.
de la Merced, L-2446, July 25, 1974; Lopez vs. CA., G.R.
No. 49739, January 20, 1989; Davao Grains Inc. vs.
IAC, 171 SCRA 612 [1989]). This notwithstanding,
DELCOR did more than that. It did not only rely on the
certificate of title. The Court of Appeals found that it had
first investigated and checked the title (T.C.T. No. T-
1183) in the name of Luis Lancero. It likewise inquired
into the Subdivision Plan, the corresponding technical
description and the deed of sale executed by Ricardo
Gevero in favor of Luis Lancero and found everything in
order. It even went to the premises and found Luis
Lancero to be in possession of the land to the exclusion
of any other person. DELCOR had therefore acted in
good faith in purchasing the land in question.
Consequently, DELCOR's action is not barred by laches.
The main issues having been disposed of, discussion of
the other issues appear unnecessary.
PREMISES CONSIDERED, the instant petition is hereby
DISMISSED and the decision of the Court of Appeals is
hereby AFFIRMED.
SO ORDERED.

Petitioners claim that DELCOR's action is barred by

laches considering that the petitioners have remained in
the actual, open, uninterrupted and adverse possession
thereof until at present (Rollo, p. 17).

An instrument notarized by a notary public as in the case

at bar is a public instrument (Eacnio v. Baens, 5 Phil.
742). The execution of a public instrument is equivalent
to the delivery of the thing (Art. 1498, 1st Par., Civil
Code) and is deemed legal delivery. Hence, its execution
was considered a sufficient delivery of the property
(Buencamino v. Viceo, 13 Phil. 97; [1906]; Puato v.
Mendoza, 64 Phil. 457 [1937]; Vda. de Sarmiento v.
Lesaca, 108 Phil. 900 [1960]; Phil. Suburban
Development Corp. v. Auditor Gen., 63 SCRA 397
(1975]).

Besides, the property sold is a registered land. It is the

act of registration that transfers the ownership of the
land sold. (GSIS v. C.A., G.R. No. 42278, January 20,
1989). If the property is a registered land, the purchaser
in good, faith has a right to rely on the certificate of title
and is under no duty to go behind it to look for flaws
134
135
Suarez vs. CA (G.R. No. 94918, September 2,
1992)
[G.R. No. 94918. September 2, 1992.]
DANILO I. SUAREZ, EUFROCINA SUAREZ-ANDRES,
MARCELO I. SUAREZ, JR., EVELYN SUAREZ-DE LEON
and REGINIO I. SUAREZ, Petitioners, v. THE COURT OF
APPEALS, VALENTE RAYMUNDO, VIOLETA RAYMUNDO,
MA. CONCEPCION VITO and VIRGINIA
BANTA,Respondents.
SYLLABUS
1. CIVIL LAW; WILLS AND SUCCESSION; LEGITIME;
PROPRIETARY INTEREST OF THE CHILDREN,
DIFFERENT AND ADVERSE FROM THEIR MOTHER. —
The legitime of the surviving spouse is equal to the
legitime of each child. The proprietary interest of
petitioners in the levied and auctioned property is
different from and adverse to that of their mother.
Petitioners became co-owners of the property not
because of their mother but through their own right as
children of their deceased father. Therefore, petitioners
are not barred in any way from instituting the action to
annul the auction sale to protect their own interest.
DECISION
NOCON, J.:
The ultimate issue before Us is whether or not private
respondents can validly acquire all the five (5) parcels
of land co-owned by petitioners and registered in the
name of petitioner’s deceased father. Marcelo Suarez,
whose estate has not been partitioned or liquidated,
after the said properties were levied and publicly sold en
masse to private respondents to satisfy the personal
judgment debt of Teofista Suarez, the surviving spouse
of Marcelo Suarez, mother of herein petitioners.
The undisputed facts of the case are as follows:
Herein petitioners are brothers and sisters. Their father
died in 1955 and since then his estate consisting of
several valuable parcels of land in Pasig, Metro Manila
has lot been liquidated or partitioned. In 1977,
petitioners’ widowed mother and Rizal Realty
Corporation lost in the consolidated cases for rescission
of contract and for damages, and were ordered by
Branch 1 of the then Court of First Instance of Rizal (now
Branch 151, RTC of Pasig) to pay, jointly and severally,
herein respondents the aggregate principal amount of
about P70,000 as damages. 1
The judgment against petitioner’s mother and Rizal
Realty Corporation having become final and executory,
five (5) valuable parcel of land in Pasig, Metro Manila,
(worth to be millions then) were levied and sold on
execution on June 24, 1983 in favor of the private
respondents as the highest bidder for the amount of
P94,170.000. Private respondents were then issued a
certificate of sale which was subsequently registered or
August 1, 1983.
On June 21, 1984 before the expiration of the
redemption period, petitioners filed a reinvindicatory
action 2 against private respondents and the Provincial
Sheriff of Rizal, thereafter docketed as Civil Case No.
51203, for the annulment of the auction sale and the
recovery of the ownership of the levied pieces of
property. Therein, they alleged, among others, that
being strangers to the case decided against their
mother, they cannot be held liable therefor and that the
five (5) parcels of land, of which they are co-owners,
can neither be levied nor sold on execution.
On July 31, 1984, the Provincial Sheriff of Rizal issued
to private respondents a final deed of sale 3 over the
properties.
On October 22, 1984, Teofista Suarez joined by herein
petitioners filed with Branch 151 a Motion for
Reconsideration 4 of the Order dated October 10, 1984,
claiming that the parcels of land are co-owned by them
and further informing the Court the filing and pendency
of an action to annul the auction sale (Civil Case No.
51203), which motion however, was denied.
On February 25, 1985, a writ of preliminary injunction
was issued enjoining private respondents from
transferring to third parties the levied parcels of land
based on the finding that the auctioned lands are co-
owned by petitioners.
On March 1, 1985, private respondent Valente
Raymundo filed in Civil Case No. 51203 a Motion to
Dismiss for failure on the part of the petitioners to
prosecute, however, such motion was later denied by
Branch 155, Regional Trial Court, Pasig.
On December 1985, Raymundo filed in Civil Case No.
51203 an Ex-Parte Motion to Dismiss complaint for
failure to prosecute. This was granted by Branch 155
through an Order dated May 29, 1986, notwithstanding
petitioner’s pending motion for the issuance of alias
summons to be served upon the other defendants in the
said case. A motion for reconsideration was filed but was
later denied.
On October 10, 1984, RTC Branch 151 issued in Civil
Case Nos. 21736-21739 an Order directing Teofista
Suarez and all persons claiming right under her to
vacate the lots subject of the judicial sale; to desist from
removing or alienating improvements thereon; and to
surrender to private respondents the owner’s duplicate
copy of the torrens title and other pertinent documents.
Teofista Suarez then filed with the then Court of Appeals
a petition for certiorari to annul the Orders of Branch
151 dated October 10, 1984 and October 14, 1986
issued in Civil Case Nos. 21736-21739.
136
On December 4, 1986 petitioners filed with Branch 155
a Motion for reconsideration of the Order 5 dated
September 24, 1986. In an Order dated June 10, 1987,
6 Branch 155 lifted its previous order of dismissal and
directed the issuance of alias summons. : red
Respondents then appealed to the Court of Appeals
seeking to annul the orders dated February 25, 1985, 7
May 19, 1989 8 and February 26, 1990 9 issued in Civil
Case No. 51203 and further ordering respondent Judge
to dismiss Civil Case No. 51203. The appellate court
rendered its decision on July 27, 1990, 10 the
dispositive portion of which reads:jgc: .ph
"WHEREFORE, the petition for certiorari is hereby
granted and the questioned orders dated February 25,
1985, May 19, 1989 and February 26, 1990 issued in
Civil Case No. 51203 are hereby annulled, further
respondent Judge is ordered to dismiss Civil Case No.
51203." 11
The proprietary interest of petitioners in the levied and
auctioned property is different from and adverse to that
of their mother. Petitioners became co-owners of the
property not because of their mother but through their
own right as children of their deceased father.
Therefore, petitioners are not barred in any way from
instituting the action to annul the auction sale to protect
their own interest.
WHEREFORE, the decision of the Court of Appeals dated
July 27, 1990 as well as its Resolution of August 28,
1990 are hereby REVERSED and set aside; and Civil
Case No. 51203 is reinstated only to determine that
portion which belongs to petitioners and to annul the
sale with regard to said portion.
SO ORDERED.

Hence, this appeal.

Even without touching on the incidents and issues raised

by both petitioner and private respondents and the
developments subsequent to the filing of the complaint,
We cannot but notice the glaring error committed by the
trial court.

It would be useless to discuss the procedural issue on

the validity of the execution and the manner of publicly
selling en masse the subject properties for auction. To
start with, only one-half of the 5 parcels of land should
have been the subject of the auction sale.

The law in point is Article 777 of the Civil Code, the law
applicable at the time of the institution of the case.

"The rights to the succession are transmitted from the

moment of the death of the decedent."cralaw virtua1aw
library

Article 888 further provides: .ph : virtual law library

"The legitime of the legitimate children and descendants

consists of one-half of the hereditary estate of the father
and of the mother.

The latter may freely dispose of the remaining half,

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

Article 892 par. 2 likewise provides:

"If there are two or more legitimate children or

descendants, the surviving spouse shall be entitled to a
portion equal to the legitime of each of the legitimate
children or descendants."cralaw virtua1aw library

Thus, from the foregoing, the legitime of the surviving

spouse is equal to the legitime of each child.

137
Lorenzo vs. Posadas (64 PHIL 353)
G.R. No. L-43082 June 18, 1937
PABLO LORENZO, as trustee of the estate of Thomas
Hanley, deceased, plaintiff-appellant,
vs.
JUAN POSADAS, JR., Collector of Internal Revenue,
defendant-appellant.
Pablo Lorenzo and Delfin Joven for plaintiff-appellant.
Office of the Solicitor-General Hilado for defendant-
appellant.
LAUREL, J.:
On October 4, 1932, the plaintiff Pablo Lorenzo, in his
capacity as trustee of the estate of Thomas Hanley,
deceased, brought this action in the Court of First
Instance of Zamboanga against the defendant, Juan
Posadas, Jr., then the Collector of Internal Revenue, for
the refund of the amount of P2,052.74, paid by the
plaintiff as inheritance tax on the estate of the deceased,
and for the collection of interst thereon at the rate of 6
per cent per annum, computed from September 15,
1932, the date when the aforesaid tax was [paid under
protest. The defendant set up a counterclaim for
P1,191.27 alleged to be interest due on the tax in
question and which was not included in the original
assessment. From the decision of the Court of First
Instance of Zamboanga dismissing both the plaintiff's
complaint and the defendant's counterclaim, both
parties appealed to this court.
It appears that on May 27, 1922, one Thomas Hanley
died in Zamboanga, Zamboanga, leaving a will (Exhibit
5) and considerable amount of real and personal
properties. On june 14, 1922, proceedings for the
probate of his will and the settlement and distribution of
his estate were begun in the Court of First Instance of
Zamboanga. The will was admitted to probate. Said will
provides, among other things, as follows:
4. I direct that any money left by me be given to my
nephew Matthew Hanley.
5. I direct that all real estate owned by me at the time
of my death be not sold or otherwise disposed of for a
period of ten (10) years after my death, and that the
same be handled and managed by the executors, and
proceeds thereof to be given to my nephew, Matthew
Hanley, at Castlemore, Ballaghaderine, County of
Rosecommon, Ireland, and that he be directed that the
same be used only for the education of my brother's
children and their descendants.
6. I direct that ten (10) years after my death my
property be given to the above mentioned Matthew
Hanley to be disposed of in the way he thinks most
advantageous.
xxx xxx xxx
8. I state at this time I have one brother living, named
Malachi Hanley, and that my nephew, Matthew Hanley,
is a son of my said brother, Malachi Hanley.
The Court of First Instance of Zamboanga considered it
proper for the best interests of ther estate to appoint a
trustee to administer the real properties which, under
the will, were to pass to Matthew Hanley ten years after
the two executors named in the will, was, on March 8,
1924, appointed trustee. Moore took his oath of office
and gave bond on March 10, 1924. He acted as trustee
until February 29, 1932, when he resigned and the
plaintiff herein was appointed in his stead.
During the incumbency of the plaintiff as trustee, the
defendant Collector of Internal Revenue, alleging that
the estate left by the deceased at the time of his death
consisted of realty valued at P27,920 and personalty
valued at P1,465, and allowing a deduction of P480.81,
assessed against the estate an inheritance tax in the
amount of P1,434.24 which, together with the penalties
for deliquency in payment consisting of a 1 per cent
monthly interest from July 1, 1931 to the date of
payment and a surcharge of 25 per cent on the tax,
amounted to P2,052.74. On March 15, 1932, the
defendant filed a motion in the testamentary
proceedings pending before the Court of First Instance
of Zamboanga (Special proceedings No. 302) praying
that the trustee, plaintiff herein, be ordered to pay to
the Government the said sum of P2,052.74. The motion
was granted. On September 15, 1932, the plaintiff paid
said amount under protest, notifying the defendant at
the same time that unless the amount was promptly
refunded suit would be brought for its recovery. The
defendant overruled the plaintiff's protest and refused
to refund the said amount hausted, plaintiff went to
court with the result herein above indicated.
In his appeal, plaintiff contends that the lower court
erred:
I. In holding that the real property of Thomas Hanley,
deceased, passed to his instituted heir, Matthew Hanley,
from the moment of the death of the former, and that
from the time, the latter became the owner thereof.
II. In holding, in effect, that there was deliquency in the
payment of inheritance tax due on the estate of said
deceased.
III. In holding that the inheritance tax in question be
based upon the value of the estate upon the death of
the testator, and not, as it should have been held, upon
the value thereof at the expiration of the period of ten
years after which, according to the testator's will, the
property could be and was to be delivered to the
instituted heir.
IV. In not allowing as lawful deductions, in the
determination of the net amount of the estate subject
to said tax, the amounts allowed by the court as
compensation to the "trustees" and paid to them from
the decedent's estate.
138
V. In not rendering judgment in favor of the plaintiff and
in denying his motion for new trial.
The defendant-appellant contradicts the theories of the
plaintiff and assigns the following error besides:
The lower court erred in not ordering the plaintiff to pay
to the defendant the sum of P1,191.27, representing
part of the interest at the rate of 1 per cent per month
from April 10, 1924, to June 30, 1931, which the plaintiff
had failed to pay on the inheritance tax assessed by the
defendant against the estate of Thomas Hanley.
The following are the principal questions to be decided
by this court in this appeal: (a) When does the
inheritance tax accrue and when must it be satisfied?
(b) Should the inheritance tax be computed on the basis
of the value of the estate at the time of the testator's
death, or on its value ten years later? (c) In determining
the net value of the estate subject to tax, is it proper to
deduct the compensation due to trustees? (d) What law
governs the case at bar? Should the provisions of Act
No. 3606 favorable to the tax-payer be given retroactive
effect? (e) Has there been deliquency in the payment of
the inheritance tax? If so, should the additional interest
claimed by the defendant in his appeal be paid by the
estate? Other points of incidental importance, raised by
the parties in their briefs, will be touched upon in the
course of this opinion.
(a) The accrual of the inheritance tax is distinct from the
obligation to pay the same. Section 1536 as amended,
of the Administrative Code, imposes the tax upon "every
transmission by virtue of inheritance, devise, bequest,
giftmortis causa, or advance in anticipation of
inheritance,devise, or bequest." The tax therefore is
upon transmission or the transfer or devolution of
property of a decedent, made effective by his death. (61
C. J., p. 1592.) It is in reality an excise or privilege tax
imposed on the right to succeed to, receive, or take
property by or under a will or the intestacy law, or deed,
grant, or gift to become operative at or after death.
Acording to article 657 of the Civil Code, "the rights to
the succession of a person are transmitted from the
moment of his death." "In other words", said Arellano,
C. J., ". . . the heirs succeed immediately to all of the
property of the deceased ancestor. The property
belongs to the heirs at the moment of the death of the
ancestor as completely as if the ancestor had executed
and delivered to them a deed for the same before his
death." (Bondad vs. Bondad, 34 Phil., 232. See also,
Mijares vs. Nery, 3 Phil., 195; Suilong & Co., vs. Chio-
Taysan, 12 Phil., 13; Lubrico vs. Arbado, 12 Phil., 391;
Innocencio vs. Gat-Pandan, 14 Phil., 491; Aliasas
vs.Alcantara, 16 Phil., 489; Ilustre vs. Alaras Frondosa,
17 Phil., 321; Malahacan vs. Ignacio, 19 Phil., 434;
Bowa vs. Briones, 38 Phil., 27; Osario vs. Osario &
Yuchausti Steamship Co., 41 Phil., 531; Fule vs. Fule,
46 Phil., 317; Dais vs. Court of First Instance of Capiz,
51 Phil., 396; Baun vs. Heirs of Baun, 53 Phil., 654.)
Plaintiff, however, asserts that while article 657 of the
Civil Code is applicable to testate as well as intestate
succession, it operates only in so far as forced heirs are
concerned. But the language of article 657 of the Civil
Code is broad and makes no distinction between
different classes of heirs. That article does not speak of
forced heirs; it does not even use the word "heir". It
speaks of the rights of succession and the transmission
thereof from the moment of death. The provision of
section 625 of the Code of Civil Procedure regarding the
authentication and probate of a will as a necessary
condition to effect transmission of property does not
affect the general rule laid down in article 657 of the
Civil Code. The authentication of a will implies its due
execution but once probated and allowed the
transmission is effective as of the death of the testator
in accordance with article 657 of the Civil Code.
Whatever may be the time when actual transmission of
the inheritance takes place, succession takes place in
any event at the moment of the decedent's death. The
time when the heirs legally succeed to the inheritance
may differ from the time when the heirs actually receive
such inheritance. "Poco importa", says Manresa
commenting on article 657 of the Civil Code, "que desde
el falleimiento del causante, hasta que el heredero o
legatario entre en posesion de los bienes de la herencia
o del legado, transcurra mucho o poco tiempo, pues la
adquisicion ha de retrotraerse al momento de la muerte,
y asi lo ordena el articulo 989, que debe considerarse
como complemento del presente." (5 Manresa, 305; see
also, art. 440, par. 1, Civil Code.) Thomas Hanley having
died on May 27, 1922, the inheritance tax accrued as of
the date.
From the fact, however, that Thomas Hanley died on
May 27, 1922, it does not follow that the obligation to
pay the tax arose as of the date. The time for the
payment on inheritance tax is clearly fixed by section
1544 of the Revised Administrative Code as amended by
Act No. 3031, in relation to section 1543 of the same
Code. The two sections follow:
SEC. 1543. Exemption of certain acquisitions and
transmissions. — The following shall not be taxed:
(a) The merger of the usufruct in the owner of the naked
title.
(b) The transmission or delivery of the inheritance or
legacy by the fiduciary heir or legatee to the trustees.
(c) The transmission from the first heir, legatee, or
donee in favor of another beneficiary, in accordance with
the desire of the predecessor.
In the last two cases, if the scale of taxation appropriate
to the new beneficiary is greater than that paid by the
first, the former must pay the difference.
SEC. 1544. When tax to be paid. — The tax fixed in this
article shall be paid:
(a) In the second and third cases of the next preceding
section, before entrance into possession of the property.
(b) In other cases, within the six months subsequent to
the death of the predecessor; but if judicial
testamentary or intestate proceedings shall be
instituted prior to the expiration of said period, the
139
payment shall be made by the executor or administrator
before delivering to each beneficiary his share.
If the tax is not paid within the time hereinbefore
prescribed, interest at the rate of twelve per centum per
annum shall be added as part of the tax; and to the tax
and interest due and unpaid within ten days after the
date of notice and demand thereof by the collector,
there shall be further added a surcharge of twenty-five
per centum.
A certified of all letters testamentary or of admisitration
shall be furnished the Collector of Internal Revenue by
the Clerk of Court within thirty days after their issuance.
It should be observed in passing that the word "trustee",
appearing in subsection (b) of section 1543, should read
"fideicommissary" or "cestui que trust". There was an
obvious mistake in translation from the Spanish to the
English version.
The instant case does fall under subsection (a), but
under subsection (b), of section 1544 above-quoted, as
there is here no fiduciary heirs, first heirs, legatee or
donee. Under the subsection, the tax should have been
paid before the delivery of the properties in question to
P. J. M. Moore as trustee on March 10, 1924.
(b) The plaintiff contends that the estate of Thomas
Hanley, in so far as the real properties are concerned,
did not and could not legally pass to the instituted heir,
Matthew Hanley, until after the expiration of ten years
from the death of the testator on May 27, 1922 and,
that the inheritance tax should be based on the value of
the estate in 1932, or ten years after the testator's
death. The plaintiff introduced evidence tending to show
that in 1932 the real properties in question had a
reasonable value of only P5,787. This amount added to
the value of the personal property left by the deceased,
which the plaintiff admits is P1,465, would generate an
inheritance tax which, excluding deductions, interest
and surcharge, would amount only to about P169.52.
If death is the generating source from which the power
of the estate to impose inheritance taxes takes its being
and if, upon the death of the decedent, succession takes
place and the right of the estate to tax vests instantly,
the tax should be measured by the vlaue of the estate
as it stood at the time of the decedent's death,
regardless of any subsequent contingency value of any
subsequent increase or decrease in value. (61 C. J., pp.
1692, 1693; 26 R. C. L., p. 232; Blakemore and
Bancroft, Inheritance Taxes, p. 137. See also Knowlton
vs. Moore, 178 U.S., 41; 20 Sup. Ct. Rep., 747; 44 Law.
ed., 969.) "The right of the state to an inheritance tax
accrues at the moment of death, and hence is ordinarily
measured as to any beneficiary by the value at that time
of such property as passes to him. Subsequent
appreciation or depriciation is immaterial." (Ross,
Inheritance Taxation, p. 72.)
Our attention is directed to the statement of the rule in
Cyclopedia of Law of and Procedure (vol. 37, pp. 1574,
1575) that, in the case of contingent remainders,
taxation is postponed until the estate vests in
possession or the contingency is settled. This rule was
formerly followed in New York and has been adopted in
Illinois, Minnesota, Massachusetts, Ohio, Pennsylvania
and Wisconsin. This rule, horever, is by no means
entirely satisfactory either to the estate or to those
interested in the property (26 R. C. L., p. 231.).
Realizing, perhaps, the defects of its anterior system,
we find upon examination of cases and authorities that
New York has varied and now requires the immediate
appraisal of the postponed estate at its clear market
value and the payment forthwith of the tax on its out of
the corpus of the estate transferred. (In re Vanderbilt,
172 N. Y., 69; 69 N. E., 782; In re Huber, 86 N. Y. App.
Div., 458; 83 N. Y. Supp., 769; Estate of Tracy, 179 N.
Y., 501; 72 N. Y., 519; Estate of Brez, 172 N. Y., 609;
64 N. E., 958; Estate of Post, 85 App. Div., 611; 82 N.
Y. Supp., 1079. Vide also, Saltoun vs. Lord Advocate, 1
Peter. Sc. App., 970; 3 Macq. H. L., 659; 23 Eng. Rul.
Cas., 888.) California adheres to this new rule (Stats.
1905, sec. 5, p. 343).
But whatever may be the rule in other jurisdictions, we
hold that a transmission by inheritance is taxable at the
time of the predecessor's death, notwithstanding the
postponement of the actual possession or enjoyment of
the estate by the beneficiary, and the tax measured by
the value of the property transmitted at that time
regardless of its appreciation or depreciation.
(c) Certain items are required by law to be deducted
from the appraised gross in arriving at the net value of
the estate on which the inheritance tax is to be
computed (sec. 1539, Revised Administrative Code). In
the case at bar, the defendant and the trial court allowed
a deduction of only P480.81. This sum represents the
expenses and disbursements of the executors until
March 10, 1924, among which were their fees and the
proven debts of the deceased. The plaintiff contends
that the compensation and fees of the trustees, which
aggregate P1,187.28 (Exhibits C, AA, EE, PP, HH, JJ, LL,
NN, OO), should also be deducted under section 1539 of
the Revised Administrative Code which provides, in part,
as follows: "In order to determine the net sum which
must bear the tax, when an inheritance is concerned,
there shall be deducted, in case of a resident, . . . the
judicial expenses of the testamentary or intestate
proceedings, . . . ."
A trustee, no doubt, is entitled to receive a fair
compensation for his services (Barney vs. Saunders, 16
How., 535; 14 Law. ed., 1047). But from this it does not
follow that the compensation due him may lawfully be
deducted in arriving at the net value of the estate
subject to tax. There is no statute in the Philippines
which requires trustees' commissions to be deducted in
determining the net value of the estate subject to
inheritance tax (61 C. J., p. 1705). Furthermore, though
a testamentary trust has been created, it does not
appear that the testator intended that the duties of his
executors and trustees should be separated. (Ibid.; In
re Vanneck's Estate, 161 N. Y. Supp., 893; 175 App.
Div., 363; In re Collard's Estate, 161 N. Y. Supp., 455.)
On the contrary, in paragraph 5 of his will, the testator
expressed the desire that his real estate be handled and
140
managed by his executors until the expiration of the
period of ten years therein provided. Judicial expenses
are expenses of administration (61 C. J., p. 1705) but,
in State vs. Hennepin County Probate Court (112 N. W.,
878; 101 Minn., 485), it was said: ". . . The
compensation of a trustee, earned, not in the
administration of the estate, but in the management
thereof for the benefit of the legatees or devises, does
not come properly within the class or reason for
exempting administration expenses. . . . Service
rendered in that behalf have no reference to closing the
estate for the purpose of a distribution thereof to those
entitled to it, and are not required or essential to the
perfection of the rights of the heirs or legatees. . . .
Trusts . . . of the character of that here before the court,
are created for the the benefit of those to whom the
property ultimately passes, are of voluntary creation,
and intended for the preservation of the estate. No
sound reason is given to support the contention that
such expenses should be taken into consideration in
fixing the value of the estate for the purpose of this tax."
(d) The defendant levied and assessed the inheritance
tax due from the estate of Thomas Hanley under the
provisions of section 1544 of the Revised Administrative
Code, as amended by section 3 of Act No. 3606. But Act
No. 3606 went into effect on January 1, 1930. It,
therefore, was not the law in force when the testator
died on May 27, 1922. The law at the time was section
1544 above-mentioned, as amended by Act No. 3031,
which took effect on March 9, 1922.
It is well-settled that inheritance taxation is governed
by the statute in force at the time of the death of the
decedent (26 R. C. L., p. 206; 4 Cooley on Taxation, 4th
ed., p. 3461). The taxpayer can not foresee and ought
not to be required to guess the outcome of pending
measures. Of course, a tax statute may be made
retroactive in its operation. Liability for taxes under
retroactive legislation has been "one of the incidents of
social life." (Seattle vs. Kelleher, 195 U. S., 360; 49
Law. ed., 232 Sup. Ct. Rep., 44.) But legislative intent
that a tax statute should operate retroactively should be
perfectly clear. (Scwab vs. Doyle, 42 Sup. Ct. Rep., 491;
Smietanka vs. First Trust & Savings Bank, 257 U. S.,
602; Stockdale vs. Insurance Co., 20 Wall., 323; Lunch
vs. Turrish, 247 U. S., 221.) "A statute should be
considered as prospective in its operation, whether it
enacts, amends, or repeals an inheritance tax, unless
the language of the statute clearly demands or
expresses that it shall have a retroactive effect, . . . ."
(61 C. J., P. 1602.) Though the last paragraph of section
5 of Regulations No. 65 of the Department of Finance
makes section 3 of Act No. 3606, amending section
1544 of the Revised Administrative Code, applicable to
all estates the inheritance taxes due from which have
not been paid, Act No. 3606 itself contains no provisions
indicating legislative intent to give it retroactive effect.
No such effect can begiven the statute by this court.
The defendant Collector of Internal Revenue maintains,
however, that certain provisions of Act No. 3606 are
more favorable to the taxpayer than those of Act No.
3031, that said provisions are penal in nature and,
therefore, should operate retroactively in conformity
with the provisions of article 22 of the Revised Penal
Code. This is the reason why he applied Act No. 3606
instead of Act No. 3031. Indeed, under Act No. 3606,
(1) the surcharge of 25 per cent is based on the tax
only, instead of on both the tax and the interest, as
provided for in Act No. 3031, and (2) the taxpayer is
allowed twenty days from notice and demand by rthe
Collector of Internal Revenue within which to pay the
tax, instead of ten days only as required by the old law.
Properly speaking, a statute is penal when it imposes
punishment for an offense committed against the state
which, under the Constitution, the Executive has the
power to pardon. In common use, however, this sense
has been enlarged to include within the term "penal
statutes" all status which command or prohibit certain
acts, and establish penalties for their violation, and even
those which, without expressly prohibiting certain acts,
impose a penalty upon their commission (59 C. J., p.
1110). Revenue laws, generally, which impose taxes
collected by the means ordinarily resorted to for the
collection of taxes are not classed as penal laws,
although there are authorities to the contrary. (See
Sutherland, Statutory Construction, 361; Twine Co. vs.
Worthington, 141 U. S., 468; 12 Sup. Ct., 55; Rice vs.
U. S., 4 C. C. A., 104; 53 Fed., 910; Com. vs. Standard
Oil Co., 101 Pa. St., 150; State vs. Wheeler, 44 P., 430;
25 Nev. 143.) Article 22 of the Revised Penal Code is
not applicable to the case at bar, and in the absence of
clear legislative intent, we cannot give Act No. 3606 a
retroactive effect.
(e) The plaintiff correctly states that the liability to pay
a tax may arise at a certain time and the tax may be
paid within another given time. As stated by this court,
"the mere failure to pay one's tax does not render one
delinqent until and unless the entire period has eplased
within which the taxpayer is authorized by law to make
such payment without being subjected to the payment
of penalties for fasilure to pay his taxes within the
prescribed period." (U. S. vs. Labadan, 26 Phil., 239.)
The defendant maintains that it was the duty of the
executor to pay the inheritance tax before the delivery
of the decedent's property to the trustee. Stated
otherwise, the defendant contends that delivery to the
trustee was delivery to the cestui que trust, the
beneficiery in this case, within the meaning of the first
paragraph of subsection (b) of section 1544 of the
Revised Administrative Code. This contention is well
taken and is sustained. The appointment of P. J. M.
Moore as trustee was made by the trial court in
conformity with the wishes of the testator as expressed
in his will. It is true that the word "trust" is not
mentioned or used in the will but the intention to create
one is clear. No particular or technical words are
required to create a testamentary trust (69 C. J., p.
711). The words "trust" and "trustee", though apt for
the purpose, are not necessary. In fact, the use of these
two words is not conclusive on the question that a trust
is created (69 C. J., p. 714). "To create a trust by will
the testator must indicate in the will his intention so to
do by using language sufficient to separate the legal
141
from the equitable estate, and with sufficient certainty
designate the beneficiaries, their interest in the ttrust,
the purpose or object of the trust, and the property or
subject matter thereof. Stated otherwise, to constitute
a valid testamentary trust there must be a concurrence
of three circumstances: (1) Sufficient words to raise a
trust; (2) a definite subject; (3) a certain or ascertain
object; statutes in some jurisdictions expressly or in
effect so providing." (69 C. J., pp. 705,706.) There is no
doubt that the testator intended to create a trust. He
ordered in his will that certain of his properties be kept
together undisposed during a fixed period, for a stated
purpose. The probate court certainly exercised sound
judgment in appointment a trustee to carry into effect
the provisions of the will (see sec. 582, Code of Civil
Procedure).
P. J. M. Moore became trustee on March 10, 1924. On
that date trust estate vested in him (sec. 582 in relation
to sec. 590, Code of Civil Procedure). The mere fact that
the estate of the deceased was placed in trust did not
remove it from the operation of our inheritance tax laws
or exempt it from the payment of the inheritance tax.
The corresponding inheritance tax should have been
paid on or before March 10, 1924, to escape the
penalties of the laws. This is so for the reason already
stated that the delivery of the estate to the trustee was
in esse delivery of the same estate to the cestui que
trust, the beneficiary in this case. A trustee is but an
instrument or agent for thecestui que trust (Shelton vs.
King, 299 U. S., 90; 33 Sup. Ct. Rep., 689; 57 Law. ed.,
1086). When Moore accepted the trust and took
possesson of the trust estate he thereby admitted that
the estate belonged not to him but to hiscestui que trust
(Tolentino vs. Vitug, 39 Phil.,126, cited in 65 C. J., p.
692, n. 63). He did not acquire any beneficial interest in
the estate. He took such legal estate only as the proper
execution of the trust required (65 C. J., p. 528) and,
his estate ceased upon the fulfillment of the testator's
wishes. The estate then vested absolutely in the
beneficiary (65 C. J., p. 542).
The highest considerations of public policy also justify
the conclusion we have reached. Were we to hold that
the payment of the tax could be postponed or delayed
by the creation of a trust of the type at hand, the result
would be plainly disastrous. Testators may provide, as
Thomas Hanley has provided, that their estates be not
delivered to their beneficiaries until after the lapse of a
certain period of time. In the case at bar, the period is
ten years. In other cases, the trust may last for fifty
years, or for a longer period which does not offend the
rule against petuities. The collection of the tax would
then be left to the will of a private individual. The mere
suggestion of this result is a sufficient warning against
the accpetance of the essential to the very exeistence of
government. (Dobbins vs. Erie Country, 16 Pet., 435;
10 Law. ed., 1022; Kirkland vs. Hotchkiss, 100 U. S.,
491; 25 Law. ed., 558; Lane County vs. Oregon, 7 Wall.,
71; 19 Law. ed., 101; Union Refrigerator Transit Co. vs.
Kentucky, 199 U. S., 194; 26 Sup. Ct. Rep., 36; 50 Law.
ed., 150; Charles River Bridge vs. Warren Bridge, 11
Pet., 420; 9 Law. ed., 773.) The obligation to pay taxes
rests not upon the privileges enjoyed by, or the
protection afforded to, a citizen by the government but
upon the necessity of money for the support of the state
(Dobbins vs. Erie Country, supra). For this reason, no
one is allowed to object to or resist the payment of taxes
solely because no personal benefit to him can be pointed
out. (Thomas vs. Gay, 169 U. S., 264; 18 Sup. Ct. Rep.,
340; 43 Law. ed., 740.) While courts will not enlarge,
by construction, the government's power of taxation
(Bromley vs. McCaughn, 280 U. S., 124; 74 Law. ed.,
226; 50 Sup. Ct. Rep., 46) they also will not place upon
tax laws so loose a construction as to permit evasions
on merely fanciful and insubstantial distictions. (U. S.
vs. Watts, 1 Bond., 580; Fed. Cas. No. 16,653; U. S. vs.
Wigglesirth, 2 Story, 369; Fed. Cas. No. 16,690,
followed in Froelich & Kuttner vs. Collector of Customs,
18 Phil., 461, 481; Castle Bros., Wolf & Sons vs. McCoy,
21 Phil., 300; Muñoz & Co. vs. Hord, 12 Phil., 624;
Hongkong & Shanghai Banking Corporation vs. Rafferty,
39 Phil., 145; Luzon Stevedoring Co. vs. Trinidad, 43
Phil., 803.) When proper, a tax statute should be
construed to avoid the possibilities of tax evasion.
Construed this way, the statute, without resulting in
injustice to the taxpayer, becomes fair to the
government.
That taxes must be collected promptly is a policy deeply
intrenched in our tax system. Thus, no court is allowed
to grant injunction to restrain the collection of any
internal revenue tax ( sec. 1578, Revised Administrative
Code; Sarasola vs. Trinidad, 40 Phil., 252). In the case
of Lim Co Chui vs. Posadas (47 Phil., 461), this court
had occassion to demonstrate trenchment adherence to
this policy of the law. It held that "the fact that on
account of riots directed against the Chinese on October
18, 19, and 20, 1924, they were prevented from praying
their internal revenue taxes on time and by mutual
agreement closed their homes and stores and remained
therein, does not authorize the Collector of Internal
Revenue to extend the time prescribed for the payment
of the taxes or to accept them without the additional
penalty of twenty five per cent." (Syllabus, No. 3.)
". . . It is of the utmost importance," said the Supreme
Court of the United States, ". . . that the modes adopted
to enforce the taxes levied should be interfered with as
little as possible. Any delay in the proceedings of the
officers, upon whom the duty is developed of collecting
the taxes, may derange the operations of government,
and thereby, cause serious detriment to the public."
(Dows vs. Chicago, 11 Wall., 108; 20 Law. ed., 65, 66;
Churchill and Tait vs. Rafferty, 32 Phil., 580.)
It results that the estate which plaintiff represents has
been delinquent in the payment of inheritance tax and,
therefore, liable for the payment of interest and
surcharge provided by law in such cases.
The delinquency in payment occurred on March 10,
1924, the date when Moore became trustee. The
interest due should be computed from that date and it
is error on the part of the defendant to compute it one
month later. The provisions cases is mandatory (see and
cf. Lim Co Chui vs. Posadas, supra), and neither the
142
Collector of Internal Revenuen or this court may remit we cannot give the defendant more than what he claims,
or decrease such interest, no matter how heavily it may we must hold that the plaintiff is liable only in the sum
burden the taxpayer. of P1,191.27 the amount stated in the counterclaim.

To the tax and interest due and unpaid within ten days The judgment of the lower court is accordingly modified,
after the date of notice and demand thereof by the with costs against the plaintiff in both instances. So
Collector of Internal Revenue, a surcharge of twenty- ordered.
five per centum should be added (sec. 1544, subsec.
(b), par. 2, Revised Administrative Code). Demand was
made by the Deputy Collector of Internal Revenue upon
Moore in a communiction dated October 16, 1931
(Exhibit 29). The date fixed for the payment of the tax
and interest was November 30, 1931. November 30
being an official holiday, the tenth day fell on December
1, 1931. As the tax and interest due were not paid on
that date, the estate became liable for the payment of
the surcharge.

In view of the foregoing, it becomes unnecessary for us

to discuss the fifth error assigned by the plaintiff in his
brief.

We shall now compute the tax, together with the

interest and surcharge due from the estate of Thomas
Hanley inaccordance with the conclusions we have
reached.

At the time of his death, the deceased left real

properties valued at P27,920 and personal properties
worth P1,465, or a total of P29,385. Deducting from this
amount the sum of P480.81, representing allowable
deductions under secftion 1539 of the Revised
Administrative Code, we have P28,904.19 as the net
value of the estate subject to inheritance tax.

The primary tax, according to section 1536, subsection

(c), of the Revised Administrative Code, should be
imposed at the rate of one per centum upon the first ten
thousand pesos and two per centum upon the amount
by which the share exceed thirty thousand pesos, plus
an additional two hundred per centum. One per centum
of ten thousand pesos is P100. Two per centum of
P18,904.19 is P378.08. Adding to these two sums an
additional two hundred per centum, or P965.16, we
have as primary tax, correctly computed by the
defendant, the sum of P1,434.24.

To the primary tax thus computed should be added the

sums collectible under section 1544 of the Revised
Administrative Code. First should be added P1,465.31
which stands for interest at the rate of twelve per
centum per annum from March 10, 1924, the date of
delinquency, to September 15, 1932, the date of
payment under protest, a period covering 8 years, 6
months and 5 days. To the tax and interest thus
computed should be added the sum of P724.88,
representing a surhcarge of 25 per cent on both the tax
and interest, and also P10, the compromise sum fixed
by the defendant (Exh. 29), giving a grand total of
P3,634.43.

As the plaintiff has already paid the sum of P2,052.74,

only the sums of P1,581.69 is legally due from the
estate. This last sum is P390.42 more than the amount
demanded by the defendant in his counterclaim. But, as
143
144
 ARTICLE 779
Rodriguez vs. Borja (17 SCRA 41)
G.R. No. L-21993 June 21, 1966
ANGELA RODRIGUEZ, MARIA RODRIGUEZ, ET AL.,
petitioners,
vs.
HON. JUAN DE BORJA, as Judge of the Court of First
Instance of Bulacan, Branch III,
ANATOLIA PANGILINAN and ADELAIDA JACALAN,
respondents.
Lorenzo Somulong for petitioners.
Torres and Torres for respondents.
REYES, J.B.L., J.:
Petitioners Angela, Maria, Abelardo and Antonio,
surnamed Rodriguez, petition this Court for a writ of
certiorari and prohibition to the Court of First Instance
of Bulacan, for its refusal to grant their motion to
dismiss its Special Proceeding No. 1331, which said
Court is alleged to have taken cognizance of without
jurisdiction.
The facts and issues are succinctly narrated in the order
of the respondent court, dated June 13, 1963 (Petition,
Annex 0), in this wise:
It is alleged in the motion to dismiss filed by Angela,
Maria, Abelardo and Antonio Rodriguez, through
counsel, that this Court "has no jurisdiction to try the
above-entitled case in view of the pendency of another
action for the settlement of the estate of the deceased
Rev. Fr. Celestino Rodriguez in the Court of First
Instance of Rizal, namely, Sp. Proceedings No. 3907
entitled 'In the matter of the Intestate Estate of the
deceased Rev. Fr. Celestino Rodriguez which was filed
ahead of the instant case".
The records show that Fr. Celestino Rodriguez died on
February 12, 1963 in the City of Manila; that on March
4, 1963, Apolonia Pangilinan and Adelaida Jacalan
delivered to the Clerk of Court of Bulacan a purported
last will and testament of Fr. Rodriguez; that on March
8, 1963, Maria Rodriguez and Angela Rodriguez,
through counsel filed a petition for leave of court to
allow them to examine the alleged will; that on March
11, 1963 before the Court could act on the petition, the
same was withdrawn; that on March 12, 1963,
aforementioned petitioners filed before the Court of First
Instance of Rizal a petition for the settlement of the
intestate estate of Fr. Rodriguez alleging, among other
things, that Fr. Rodriguez was a resident of Parañaque,
Rizal, and died without leaving a will and praying that
Maria Rodriguez be appointed as Special Administratrix
of the estate; and that on March 12, 1963 Apolonia
Pangilinan and Adelaida Jacalan filed a petition in this
Court for the probation of the will delivered by them on
March 4, 1963. It was stipulated by the parties that Fr.
Rodriguez was born in Parañaque, Rizal; that he was
Parish priest of the Catholic Church of Hagonoy,
Bulacan, from the year 1930 up to the time of his death
in 1963; that he was buried in Parañaque, and that he
left real properties in Rizal, Cavite, Quezon City and
Bulacan.
The movants contend that since the intestate
proceedings in the Court of First Instance of Rizal was
filed at 8:00 A.M. on March 12, 1963 while the petition
for probate was filed in the Court of First Instance of
Bulacan at 11:00 A.M. on the same date, the latter Court
has no jurisdiction to entertain the petition for probate,
citing as authority in support thereof the case of
Ongsingco Vda. de Borja vs. Tan and De Borja, G.R. No.
7792, July 27, 1955.
The petitioners Pangilinan and Jacalan, on the other
hand, take the stand that the Court of First Instance of
Bulacan acquired jurisdiction over the case upon
delivery by them of the will to the Clerk of Court on
March 4, 1963, and that the case in this Court therefore
has precedence over the case filed in Rizal on March 12,
1963.
The Court of First Instance, as previously stated denied
the motion to dismiss on the ground that a difference of
a few hours did not entitle one proceeding to preference
over the other; that, as early as March 7, movants were
aware of the existence of the purported will of Father
Rodriguez, deposited in the Court of Bulacan, since they
filed a petition to examine the same, and that movants
clearly filed the intestate proceedings in Rizal "for no
other purpose than to prevent this Court (of Bulacan)
from exercising jurisdiction over the probate
proceedings". Reconsideration having been denied,
movants, now petitioners, came to this Court, relying
principally on Rule 73, section 1 of the Rules of Court,
and invoking our ruling in Ongsingco vs. Tan and De
Borja, L-7792, July 27, 1955.
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 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 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, as 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.
We find this recourse to be untenable. The jurisdiction
of the Court of First Instance of Bulacan became vested
upon the delivery thereto of the will of the late Father
Rodriguez on March 4, 1963, even if no petition for its
allowance was filed until later, because upon the will
being deposited the court could, motu proprio, have
145
taken steps to fix the time and place for proving the will,
and issued the corresponding notices conformably to
what is prescribed by section 3, Rule 76, of the Revised
Rules of Court (Section 3, Rule 77, of the old Rules):
SEC. 3. Court to appoint time for proving will. Notice
thereof to be published. — When a will is delivered to,
or a petition for the allowance of a will is filed in, the
Court having jurisdiction, such Court shall fix a time and
place for proving the will when all concerned may
appear to contest the allowance thereof, and shall cause
notice of such time and place to be published three (3)
weeks successively, previous to the time appointed, in
a newspaper of general circulation in the province.
But no newspaper publication shall be made where the
petition for probate has been filed by the testator
himself.
The use of the disjunctive in the words "when a will is
delivered to OR a petition for the allowance of a will is
filed" plainly indicates that the court may act upon the
mere deposit therein of a decedent's testament, even if
no petition for its allowance is as yet filed. Where the
petition for probate is made after the deposit of the will,
the petition is deemed to relate back to the time when
the will was delivered. Since the testament of Fr.
Rodriguez was submitted and delivered to the Court of
Bulacan on March 4, while petitioners initiated intestate
proceedings in the Court of First Instance of Rizal only
on March 12, eight days later, the precedence and
exclusive jurisdiction of the Bulacan court is
incontestable.1äwphï1.ñët
But, petitioners object, section 3 of revised Rule 76 (old
Rule 77) speaks of a will being delivered to "the Court
having jurisdiction," and in the case at bar the Bulacan
court did not have it because the decedent was
domiciled in Rizal province. We can not disregard Fr.
Rodriguez's 33 years of residence as parish priest in
Hagonoy, Bulacan (1930-1963); but even if we do so,
and consider that he retained throughout some animus
revertendi to the place of his birth in Parañaque, Rizal,
that detail would not imply that the Bulacan court lacked
jurisdiction. As ruled in previous decisions, the power to
settle decedents' estates is conferred by law upon all
courts of first instance, and the domicile of the testator
only affects the venue but not the jurisdiction of the
Court (In re Kaw Singco, 74 Phil. 239; Reyes vs. Diaz,
73 Phil. 484; Bernabe vs. Vergara, 73 Phil. 676). Neither
party denies that the late Fr. Rodriguez is deceased, or
that he left personal property in Hagonoy, province of
Bulacan (t.s.n. p. 46, hearing of June 11, 1963, Annex
"H", Petition, Rec., p. 48). That is sufficient in the case
before us.
In the Kaw Singco case (ante) this Court ruled that:
"... If we consider such question of residence as one
affecting the jurisdiction of the trial court over the
subject-matter, the effect shall be that the whole
proceedings including all decisions on the different
incidents which have arisen in court will have to be
annulled and the same case will have to be commenced
anew before another court of the same rank in another
province. That this is of mischievous effect in the prompt
administration of justice is too obvious to require
comment. (Cf. Tanunchuan vs. Dy Buncio & Co., G.R.
No. 48206, December 31, 1942). Furthermore, section
600 of Act No. 190, providing that the estate of a
deceased person shall be settled in the province where
he had last resided, could not have been intended as
defining the jurisdiction of the probate court over the
subject matter, because such legal provision is
contained in a law of procedure dealing merely with
procedural matters, and, as we have said time and
again, procedure is one thing and jurisdiction over the
subject matter is another. (Attorney General vs. Manila
Railroad Company, 20 Phil. 523.) The law of jurisdiction
— Act No. 136, Section 56, No. 5 — confers upon Courts
of First Instance jurisdiction over all probate cases
independently of the place of residence of the
deceased.1 Since, however, there are many Courts of
First Instance in the Philippines, the Law of Procedure,
Act No. 190, section 600, fixes the venue or the place
where each case shall be brought. Thus, the place of
residence of the deceased is not an element of
jurisdiction over the subject matter but merely of venue.
And it is upon this ground that in the new Rules of Court
the province where the estate of a deceased person shall
be settled is properly called "venue" (Rule 75, section
1.) Motion for reconsideration is denied.
The estate proceedings having been initiated in the
Bulacan Court of First Instance ahead of any other, that
court is entitled to assume jurisdiction to the exclusion
of all other courts, even if it were a case of wrong venue
by express provisions of Rule 73 (old Rule 75) of the
Rules of Court, since the same enjoins that:
The Court first taking cognizance of the settlement of
the estate of a decedent shall exercise jurisdiction to the
exclusion of all other courts. (Sec. 1)
This disposition presupposes that two or more courts
have been asked to take cognizance of the settlement
of the estate. Of them only one could be of proper
venue, yet the rule grants precedence to that Court
whose jurisdiction is first invoked, without taking venue
into account.
There are two other reasons that militate against the
success of petitioners. One is that their commencing
intestate proceedings in Rizal, after they learned of the
delivery of the decedent's will to the Court of Bulacan,
was in bad faith, patently done with a view to divesting
the latter court of the precedence awarded it by the
Rules. Certainly the order of priority established in Rule
73 (old Rule 75) was not designed to convert the
settlement of decedent's estates into a race between
applicants, with the administration of the properties as
the price for the fleetest.
The other reason is that, in our system of civil law,
intestate succession is only subsidiary or subordinate to
the testate, since intestacy only takes place in the
absence of a valid operative will. Says Article 960 of the
Civil Code of the Philippines:
ART. 960. Legal or intestate succession takes place:
146
(1) If a person dies without a will, or with a void will, or
one which has subsequently lost its validity;

(2) When the will does not institute an heir to, or dispose
of all the property belonging to the testator. In such
case, legal succession shall take place only with respect
to the property in which the testator has not disposed;

(3) If the suspensive condition attached to the

institution of heir does not happen or is not fulfilled, or
if the heir dies before the testator, or repudiates the
inheritance, there being no substitution, and no right of
accretion takes place;

(4) When the heir instituted is incapable of succeeding,

except in cases provided in this Code.

Therefore, as ruled in Castro, et al. vs. Martinez, 10 Phil.

307, "only after final decision as to the nullity of testate
succession could an intestate succession be instituted in
the form of pre-established action". The institution of
intestacy proceedings in Rizal may not thus proceed
while the probate of the purported will of Father
Rodriguez is pending.

We rule that the Bulacan Court of First Instance was

entitled to priority in the settlement of the estate in
question, and that in refusing to dismiss the probate.
proceedings, said court did not commit any abuse of
discretion. It is the proceedings in the Rizal Court that
should be discontinued.

Wherefore, the writ of certiorari applied for is denied.

Costs against petitioners Rodriguez.

147
Balanay, Jr. vs. Martinez (64 SCRA 452)
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.:
Felix Balanay, Jr. appealed by certiorari from the order
of the Court of First Instance of Davao dated February
28, 1974, 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. 1808). The antecedents of the appeal
are as follows:
Leodegaria Julian, a native of Sta. Maria, Ilocos Sur,
died on February 12, 1973 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, 1973 for the probate of his mother's
notarial will dated September 5, 1970 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 1973)
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 18,
1973 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 18, 1973 "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, 1973 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 18, 1973 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 15, 1973.
In the meanwhile, another lawyer appeared in the case.
David O. Montaña, Sr., claiming to be the lawyer of
petitioner Felix Balanay, Jr. (his counsel of record was
Atty. Cabreros), filed a motion dated September 25,
1973 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
Montaña 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.
Montaña 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 15, 1973
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.
148
The lower court, acting on the motions of Atty. Montaña,
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. Montaña and Guyo that the
will was void. So, in its order of February 28, 1974 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 1 and 2, 1974. The lower
court did not abrogate its prior orders of June 18 and
October 15, 1973. The notice to creditors was issued on
April 1, 1974 and published on May 2, 9 and 16 in the
Davao Star in spite of petitioner's motion of April 17,
1974 that its publication be held in abeyance.
Felix Balanay, Jr., through a new counsel, Roberto M.
Sarenas, in a verified motion dated April 15, 1974,
asked for the reconsideration of the lower court's order
of February 28, 1974 on the ground that Atty. Montaña
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, 1974 addressed to Atty.
Montaña and signed by Felix Balanay, Jr., Beatriz V.
Solamo, Carolina B. Manguiob and Emilia B. Pabaonon,
wherein they terminated Montaña'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, 1974. It clarified that it
declared the will void on the basis of its own
independent assessment of its provisions and not
because of Atty. Montaña'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. 1527, 17 SCRA 449. Compare with
Sumilang vs. Ramagosa, L-23135, December 26, 1967,
21 SCRA 1369; Cacho vs. Udan, L-19996, April 30,
1965, 13 SCRA 693).1äwphï1.ñët
But the probate court erred in declaring, in its order of
February 28, 1974 that the will was void and in
converting the testate proceeding into an intestate
proceeding notwithstanding the fact that in its order of
June 18, 1973 , 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. 143, Civil Code;
Madrigal and Paterno vs. Rafferty and Concepcion, 38
Phil. 414). 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
1080 of the Civil Code which 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.
A parent who, in the interest of his or her family, 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. (1056a)
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 1080.
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. 1083, Civil Code).
Felix Balanay, Sr. could validly renounce his hereditary
rights and his one-half share of the conjugal partnership
(Arts. 179[1] and 1041, Civil Code) but insofar as said
149
renunciation partakes of a donation of his hereditary
rights and his one-half share in the conjugal estate (Art.
1060[1] 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 became 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 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. 170, 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).1äwphï1.ñët
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 18, 1973. 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 12, 1967, 21 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 18, 1972, 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-24561, June 30, 1970, 33
SCRA 554, 561). 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 791, 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, 1970, 31 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-19573, June 30, 1970, 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-25913, February 28, 1969, 27
SCRA 327, 341).
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.
150
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 1,
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 (See. 10, Rule 86
and sec. 1, 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, 1974 are set aside and its order of June
18, 1973, setting for hearing the petition for probate, is
affirmed. The lower court is directed to conduct further
proceedings in Special Case No. 1808 in consonance
with this opinion. Costs, against the private
respondents.

SO ORDERED.

151

ARTICLE 780
Balanay, Jr. vs. Martinez (64 SCRA 452)
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.:
Felix Balanay, Jr. appealed by certiorari from the order
of the Court of First Instance of Davao dated February
28, 1974, 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. 1808). The antecedents of the appeal
are as follows:
Leodegaria Julian, a native of Sta. Maria, Ilocos Sur,
died on February 12, 1973 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, 1973 for the probate of his mother's
notarial will dated September 5, 1970 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 1973)
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 18,
1973 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 18, 1973 "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, 1973 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 18, 1973 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 15, 1973.
In the meanwhile, another lawyer appeared in the case.
David O. Montaña, Sr., claiming to be the lawyer of
petitioner Felix Balanay, Jr. (his counsel of record was
Atty. Cabreros), filed a motion dated September 25,
1973 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
Montaña 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.
Montaña 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 15, 1973
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.
152
The lower court, acting on the motions of Atty. Montaña,
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. Montaña and Guyo that the
will was void. So, in its order of February 28, 1974 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 1 and 2, 1974. The lower
court did not abrogate its prior orders of June 18 and
October 15, 1973. The notice to creditors was issued on
April 1, 1974 and published on May 2, 9 and 16 in the
Davao Star in spite of petitioner's motion of April 17,
1974 that its publication be held in abeyance.
Felix Balanay, Jr., through a new counsel, Roberto M.
Sarenas, in a verified motion dated April 15, 1974,
asked for the reconsideration of the lower court's order
of February 28, 1974 on the ground that Atty. Montaña
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, 1974 addressed to Atty.
Montaña and signed by Felix Balanay, Jr., Beatriz V.
Solamo, Carolina B. Manguiob and Emilia B. Pabaonon,
wherein they terminated Montaña'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, 1974. It clarified that it
declared the will void on the basis of its own
independent assessment of its provisions and not
because of Atty. Montaña'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. 1527, 17 SCRA 449. Compare with
Sumilang vs. Ramagosa, L-23135, December 26, 1967,
21 SCRA 1369; Cacho vs. Udan, L-19996, April 30,
1965, 13 SCRA 693).1äwphï1.ñët
But the probate court erred in declaring, in its order of
February 28, 1974 that the will was void and in
converting the testate proceeding into an intestate
proceeding notwithstanding the fact that in its order of
June 18, 1973 , 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. 143, Civil Code;
Madrigal and Paterno vs. Rafferty and Concepcion, 38
Phil. 414). 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
1080 of the Civil Code which 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.
A parent who, in the interest of his or her family, 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. (1056a)
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 1080.
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. 1083, Civil Code).
Felix Balanay, Sr. could validly renounce his hereditary
rights and his one-half share of the conjugal partnership
(Arts. 179[1] and 1041, 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.
1060[1] Civil Code), it should be subject to the
153
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 became 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 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. 170, 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).1äwphï1.ñët
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 18, 1973. 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 12, 1967, 21 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 18, 1972, 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-24561, June 30, 1970, 33
SCRA 554, 561). 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 791, 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, 1970, 31 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-19573, June 30, 1970, 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-25913, February 28, 1969, 27
SCRA 327, 341).
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 1,
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
154
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 (See. 10, Rule 86
and sec. 1, 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, 1974 are set aside and its order of June
18, 1973, setting for hearing the petition for probate, is
affirmed. The lower court is directed to conduct further
proceedings in Special Case No. 1808 in consonance
with this opinion. Costs, against the private
respondents.

SO ORDERED.

155
ARTICLE 781 made by petitioners, respondents failed and refused to
honor their undertaking.
Heirs of vs. Mauricio-Natividad (G.R. No. 198434,
February 29, 2016) Respondents filed their Answer denying the allegations
in the complaint and raising the following defenses: (1)
respondents are not parties to the contract between
G.R. No. 198434, February 29, 2016
Sergio and DBP; (2) there is neither verbal nor written
agreement between petitioners and respondents that
HEIRS OF LEANDRO NATIVIDAD AND JULIANA V.
the latter shall reimburse whatever payment was made
NATIVIDAD, Petitioners, v. JUANA MAURICIO-
by the former or their predecessor-in-interest; (3) Jean
NATIVIDAD, AND SPOUSES JEAN NATIVIDAD
was only a minor during the execution of the alleged
CRUZ AND JERRY CRUZ, Respondents.
agreement and is not a party thereto; (4) that whatever
liability or obligation of respondents is already barred by
DECISION
prescription, laches and estoppel; (5) that the complaint
states no cause of action as respondents are not duty-
PERALTA, J.:
bound to reimburse whatever alleged payments were
made by petitioners; and (6) there is no contract
Challenged in the present petition for review on
between the parties to the effect that respondents are
certiorari are the Decision1 and Resolution2 of the Court
under obligation to transfer ownership in petitioners'
of Appeals (CA), dated February 7, 2011 and August 25,
favor as reimbursement for the alleged payments made
2011, respectively, in CA-G.R. CV No. 92840. The
by petitioners to DBP.
assailed CA Decision modified the Decision of the
Regional Trial Court. (RTC) of San Mateo, Rizal, Branch
Respondents waived their right to present evidence and
75, in Civil Case No. 1637-02-SM, while the CA
they merely filed their memorandum. Also, during
Resolution denied petitioners' motion for
pendency' of the trial, Leandro died and was substituted
reconsideration.
by his heirs, herein petitioners.
The present petition arose from an action for specific
On November. 4, 2008, the RTC rendered its Decision in
performance and/or recovery of sum of money filed
favor of petitioners, the dispositive portion of which
against herein respondents by the spouses Leandro
reads as follows:
Natividad (Leandro) and Juliana Natividad (Juliana),
who are the predecessors of herein petitioners.
WHEREFORE, premises considered, judgment is hereby
In their Complaint, Leandro and Juliana alleged that
rendered as follows:
sometime in 1974, Sergio Natividad (Sergio), husband
of respondent Juana Mauricio-Natividad (Juana) and
1. Defendants Juana Mauricio [Vda.] de Natividad and
father of respondent Jean Natividad-Cruz (Jean),
Jean Natividad-Cruz are ordered to effect the transfer of
obtained a loan from the Development Bank of the
title in OCT No. 5980 with respect to the undivided share
Philippines (DBP). As security for the loan, Sergio
of the late Sergio Natividad; and in OCT No. 10271 both
mortgaged two parcels of land, one of which is co-owned
of the Registry of Deeds of the Province of Rizal in favor
and registered in his name and that of his siblings
of plaintiff Juliana [Vda.] de Natividad and the Heirs of
namely, Leandro, Domingo and Adoracion. This
the late Leandro Natividad.
property is covered by Original Certificate of Title (OCT)
No. 5980. Sergio's siblings executed a Special Power of
2. Defendants to pay jointly and severally, attorney's
Attorney authorizing him to mortgage the said property.
fees in the sum of Thirty Thousand Pesos (P30,000.00);
The other mortgaged parcel of land, covered by OCT No.
and cost of suit.
10271, was registered in the name of Sergio and Juana.
Subsequently, Sergio died without being able to pay his
SO ORDERED.3ChanRoblesVirtualawlibrary
obligations with DBP. Since the loan was nearing its
maturity and the mortgaged properties were in danger
Aggrieved by the RTC Decision, respondents filed an
of being foreclosed, Leandro paid Sergio's loan
Appeal with the CA.
obligations. Considering that respondents were unable
to reimburse Leandro for the advances he made in
On February 7, 2011, the C A'promulgated its
Sergio's favor, respondents agreed that Sergio's share
questioned Decision, disposing as follows:
in the lot which he co-owned with his siblings and the
other parcel of land in the name of Sergio and Juana,
WHEREFORE, the appeal is PARTLY GRANTED. The
shall be assigned in favor of Leandro and Juliana.
Decision dated November 4, 2008 is hereby " MODIFIED
Leandro's and Sergio's brother, Domingo, was tasked to
in that defendants-appellants Juana Mauricio-Natividad
facilitate the transfer of ownership of the subject
and Jean Natividad-Cruz are ordered instead to
properties in favor of Leandro and Juliana. However,
reimburse plaintiffs-appellees Juliana Natividad and the
Domingo died without being able to cause such transfer.
heirs of the late Leandro Natividad the amount of
Subsequently, despite demands and several follow-ups
P162,514.88 representing the amount of the loan
obligation paid to the Development Bank of the
156
Philippines, plus legal interest of 12% per annum
computed from June 23, 2001 until finality of the
judgment, the total amount of which shall be to the
extent only of defendants-appellants' successional
rights in the mortgaged properties and Juana1 s
conjugal share in [the] property covered by OCT No.
10271. The award of attorney's fees and cost of suit are
AFFIRMED.
SO ORDERED.4ChanRoblesVirtualawlibrary
Petitioners filed a Motion 'for Partial Reconsideration,
while respondents filed their own Motion for
Reconsideration, both of which, however, were denied
by the CA in its assailed Resolution dated August 25,
2011.
Hence, the instant petition based on the following
grounds:
WITH DUE RESPECT, THE HONORABLE COURT OF
APPEALS' RULING THAT THE VERBAL AGREEMENT TO
CONVEY THE PROPERTY SHARES OF SERGIO
NATIVIDAD IN THE PAYMENT OF HIS OBLIGATION IS
COVERED BY THE STATUTE OF FRAUDS DESPITE THE
FACT THAT IT HAS BEEN PARTIALLY EXECUTED, IS
CONTRARY TO EXISTING JURISPRUDENCE.
WITH DUE RESPECT THE HONORABLE COURT OF
APPEALS ERRED IN RULING THAT THE INTEREST ON
THE UNPAID LOAN OBLIGATION SHOULD BE IMPOSED
ONLY ON JUNE 23, 2001, DATE OF THE DEMAND FOR
PAYMENT INSTEAD OF SEPTEMBER 23, 1994, WHEN
THE PARTIES VERBALLY AGREED TO CONVEY THEIR
PROPERTY RIGHTS WITH THE EXECUTION OF THE
EXTRAJUDIC1AL SETTLEMENT OF ESTATE OF SERGIO
NATIVIDAD.5
Petitioners, insist that there was a verbal agreement
between respondents and Leandro, their predecessor-
in-interest, wherein the subject properties shall be
assigned to the latter as reimbursement for the
payments he made in Sergio's favor. To support this
contention, petitioners relied heavily on the Extrajudicial
Settlement Among Heirs, which was executed by
respondents to prove that there was indeed such an
agreement and that such a Settlement is evidence of the
partial execution of the said agreement. The provisions
of the said Settlement are as follows:
EXTRAJUDICIAL SETTLEMENT AMONG HEIRS
KNOW ALL MEN BY THESE PRESENTS:
This EXTRAJUDICIAL SETTLEMENT, made and entered
into by and among:
JUAN M. NATIVIDAD, widow; JEAN N. CRUZ, married to
JERRY CRUZ; JOSELITO M. NATIVIDAD, single, all of
legal age, Filipino citizens, and residents of Malanday,
San Mateo, Rizal
WITNESSETH
That the above-named parties, is the legitimate wife and
children and sole heirs of the deceased SERGIO
NATIVIDAD, who died in San Mateo, Rizal on May 31,
1981;
That the said deceased, at the time of his death, left
certain real estate properties located at San Mateo,
Rizal, and Montalban, Rizal, more particularly described
as follows:
a. A whole portion of a parcel of land (Plan Psu-295655,
L.R. Case No. Q-29, L.R.C. Record No. N-295 ________
, situated in the Barrio of Malanday, Municipality of San
Mateo, Province of Rizal, containing an area of TWO
HUNDRED EIGHT (208) SQUARE METERS, more or less,
and covered by OCT NO. 10271.
b. A one-fourth (1/4) share in the parcel of land situated
in Guinayang, San Mateo, Rizal, containing an area of
2,742 square meters, Covered by OCT No. 10493.
c. A one-fourth (1/4) share in the parcel of land situated
in San Jose, Montalban, Rizal, containing an area of
4,775 square meters, and covered by OCT No. ON-403.
d. A one-fourth (1/4) share in the parcel of land situated
in Cambal, San Mateo, Rizal, containing an area of
13,456 square meters, and covered by OCT No. 5980.
That no other personal properties are involved in this
extrajudicial settlement.
That to the best knowledge and information of the
parties hereto, the said deceased left certain obligations
amounting to PI75,000.00 representing loan obligations
with the Development Bank of the Philippines.
That a notice of this extrajudicial settlement had been
published once a week for three consecutive weeks
in____________ a newspaper of general circulation in
___________, as certified by the said newspaper hereto
attached as Annex "A";
That the parties hereto being all of legal age and with
full civil capacity to contract, hereby by these presents,
agree to divide and adjudicate, as they hereby divide
and adjudicate, among themselves the above-described
real estate property in equal shares and interest.
IN WITNESS WHEREOF, the parties have signed this
document on this 2nd day of September, 1994 in San
Mateo, Rizal, Philippines.
x x x6ChanRoblesVirtualawlibrary
After a careful reading of the abovequoted Extrajudicial
Settlement Among Heirs, the Court agrees with the CA
that there is nothing in the said document which would
indicate that respondents agreed to the effect that the
subject properties shall be transferred in the name of
Leandro as reimbursement for his payment of Sergio's
loan obligations with the DBP. On the contrary, the
157
second to the last paragraph of the said Settlement
clearly shows that herein respondents, as heirs of
Sergio, have divided the subject properties exclusively
among themselves.
There is no competent evidence to prove the verbal
agreement being claimed by respondents. Aside from
the subject Extrajudicial Settlement Among Heirs, the
self-serving claims of Leandro on the witness stand, as
well as the cash voucher,7 which supposedly
represented payment of P8,000.00 given to Atty.
Domingo Natividad for the expenses in transferring the
title of the subject properties in Leandro's favor, would
hardly count as competent evidence in the eyes of the
law. Respondents' claim of the existence of a verbal
agreement between them, on one hand, and petitioners'
predecessors-in-interest, on the other, remains to be
mere allegation. It is an age-old rule in civil cases that
he who alleges a fact has the burden of proving it and a
mere allegation is not evidence.8
In relation to petitioners' contention that the subject
verbal agreement actually existed, they-reiterate their
contention that the conveyance of the subject properties
in their favor is not covered by the Statute of Frauds
because they claim that respondents' execution of the
Extrajudicial Settlement Among Heirs constitutes partial
execution of their alleged agreement.
The Court does not agree.
Suffice it to say that there is no partial execution of any
contract, whatsoever, because petitioners failed to
prove, in the first place, that there was a verbal
agreement that was entered into.
Even granting that such an agreement existed, the CA
did not commit any error in ruling that the assignment
of the shares of Sergio in the subject properties in
petitioners' favor as payment of Sergio's obligation
cannot be enforced if there is no written contract to such
effect. Under the Statute of Frauds9, an agreement to
convey real properties shall be unenforceable by action
in the absence of a written note or memorandum thereof
and subscribed by the party charged or by his agent. As
earlier discussed, the pieces of evidence presented by
petitioners, consisting of respondents' acknowledgment
of Sergio's loan obligations with DBP as embodied in the
Extrajudicial Settlement Among Heirs, as well as the
cash voucher which allegedly represents payment for
taxes and transfer of title in petitioners' name do not
serve as written notes or memoranda of the alleged
verbal agreement.
The foregoing, notwithstanding, the Court finds it proper
to reiterate the CA ruling that, in any case, since
respondents had already acknowledged that Sergio had,
in fact, incurred loan obligations with the DBP, they are
liable to reimburse the amount paid by Leandro for the
payment of the said obligation even if such payment was
made without their knowledge or consent.
Article 1236 of the Civil Code clearly provides that:
The creditor is not bound to accept payment or
performance by a third person who has no interest in
the fulfillment of the obligation, unless there is a
stipulation to the contrary.
Whoever pays for another may demand from the debtor
what he has paid, except that if he paid without the
knowledge or against the will of the debtor, he can
recover only insofar as the payment has been beneficial
to the debtor. (Emphasis supplied)
Neither can respondents evade liability by arguing that
they were not parties to the contract between Sergio
and the DBP. As earlier stated, the fact remains that, in
the Extrajudicial Settlement Among Heirs, respondents
clearly acknowledged Sergio's loan obligations with the
DBP. Being Sergio's heirs, they succeed not only to the
rights of Sergio but also to his obligations.
The following provisions of the Civil Code are clear on
this matter, to wit:
Art. 774. Succession is a mode of acquisition by virtue
of which the property, rights and obligations to the
extent of the value of the inheritance, of a person are
transmitted through his death to another or others
either by will or by operation of law.
Art. 776. The inheritance includes all the property,
rights and obligations of a person which are not
extinguished by his death.
Art. 781. The inheritance of a person includes not only
the property and the transmissible rights and obligations
existing at the time of his death, but also those which
have accrued thereto since the opening of the
succession.
In the present case, respondents, being heirs of Sergio,
are now liable to settle his transmissible obligations,
which include the amount due to petitioners, prior to the
distribution of the remainder of Sergio's estate to them,
in accordance with Section I,10 Rule 90 of the Rules of
Court.
As to when the interest on the sum due from
respondents should be reckoned, the Court finds no
error in the ruling of the CA that such interest should be
computed from June 23, 2001, the date when
petitioners made a written demand for the payment of
respondents' obligation.11 There is no merit in
petitioners' contention that the reckoning date should
have been September 23, 1994, the date when
respondents executed the Extrajudicial Settlement
Among Heirs, because there is nothing therein to prove
that petitioners, at that time, made a demand for
reimbursement.
However, the rate of interest should be modified in view
of the issuance of Circular No. 799, Series of 2013 by
the Bangko Sentral ng Pilipinas Monetary Board (BSP-
MB). The said Circular reduced the "rate of interest for
158
the loan or forbearance of any money, goods or credits
and the rate allowed in judgments, in the absence of an
express contract as to such rate of interest," from
twelve percent (12%) to six percent (6%) per annum.
The Circular was made effective on July 1-, 2013.
Hence, under the modified guidelines in the imposition
of interest, as laid down in the case of Nacar v. Gallery
Frames,12 this Court held that:
xxxx
II. With regard particularly to an award of interest in the
concept of actual and compensatory damages, the rate
of interest, as well as the accrual thereof, is imposed, as
follows:
1. When the obligation is breached, and it consists in
the payment of a sum of money, i.e., a loan or
forbearance of money, the interest due should be that
which may have been stipulated in writing.
Furthermore, the interest due shall itself earn legal
interest from the time it is judicially demanded. In the
absence of stipulation, the rate of interest shall be 6%
per annum to be computed from default, i.e., from
judicial or extrajudicial demand under and subject to the
provisions of Article 1169 of the Civil Code.
2. When an obligation, not constituting a loan or
forbearance of money, is breached, an interest on the
amount of damages awarded may be imposed at the
discretion, of the court at the rate of 6% per annum. No
interest, however, shall be adjudged on unliquidated
claims or damages, except when or until the demand
can be established with reasonable certainty.
Accordingly, where the demand is established with
reasonable certainty, the interest shall begin to run from
the time the claim is made judicially or extrajudicially
(Art. 1169, Civil Code), but when such certainty cannot
be so reasonably established at the time the demand is
made, the interest shall begin to run only from the date
the judgment of the court is made (at which time the
quantification of damages may be deemed to have been
reasonably ascertained). The .actual base for the
computation of legal interest shall, in any case, be on
the amount finally adjudged.
(12%) per annum -as reflected in the case of Eastern
Shipping Lines and Subsection X305.1 of the Manual of
Regulations for Btoks and Sections 4305Q.1, 4305S.3
and 4303P.1 of the Manual of Regulations for Non-Bank
Financial Institutions, before its amendment by BSP-MB
Circular No. 799 - but will now be six percent (6%) per
annum effective July 1, 2013. It should be noted,
nonetheless, that the new rate could only be applied
prospectively and not retroactively. Consequently, the
twelve percent (12%) per annum legal interest shall
apply only until June 3.0, 2013. Come July 1, 2013, the
new rate of six percent (6%) per annum shall be the
prevailing rate of interest when applicable.14
Thus, in accordance with the above ruling, the rate of
interest on the principal amount due to petitioners shall
be 12% from June 23, 2001, the date when petitioners
made a demand for payment, to June 30, 2013. From
July 1, 2013, the effective date of BSP-MB Circular No.
799, until full satisfaction of the monetary award, the
rate of interest shall be 6%.-
WHEREFORE, the instant petition is DENIED. The
Decision and Resolution of the Court of Appeals, dated
February 7, 2011 and August 25, 2011, respectively, in
CA-G.R. CV No. 92840 are AFFIRMED with
MODIFICATION by ORDERING respondents to pay
petitioners, in addition to the principal amount of
P162,514.88, interest thereon at the rate of twelve
percent (12%) per annum, computed from June 23,
2001 to June 30, 2013, and six percent (6%) per annum
from July 1, 2013 until full satisfaction of the judgment
award.
SO ORDERED.

3. When the judgment of the court awarding a sum of

money becomes final and executory, the rate of legal
interest, whether the case falls under paragraph 1 or
paragraph 2, above, shall be 6% per annum from such
finality until its satisfaction, this interim period being
deemed to be by then an equivalent to a forbearance of
credit. (Emphasis supplied)

x x x13ChanRoblesVirtualawlibrary

The Court explained that:

[F]rom the foregoing, in the absence of an express

stipulation as to the rate of interest that would govern
the parties, the rate of legal interest for loans or
forbearance of any money, goods or credits and the rate
allowed in judgments shall no longer be twelve percent
159
160

ARTICLE 783.
Rabadilla vs. CA (June 29, 2000)
[G.R. No. 113725. June 29, 2000]
JOHNNY S. RABADILLA,[1] petitioner, vs. COURT OF
APPEALS AND MARIA MARLENA[2] COSCOLUELLA Y
BELLEZA VILLACARLOS, respondents.
PURISIMA, J.:
This is a petition for review of the decision of the Court
of Appeals,[3] dated December 23, 1993, in CA-G.R.
No. CV-35555, which set aside the decision of Branch
52 of the Regional Trial Court in Bacolod City, and
ordered the defendants-appellees (including herein
petitioner), as heirs of Dr. Jorge Rabadilla, to reconvey
title over Lot No. 1392, together with its fruits and
interests, to the estate of Aleja Belleza.
The antecedent facts are as follows:
In a Codicil appended to the Last Will and Testament of
testatrix Aleja Belleza, Dr. Jorge Rabadilla, predecessor-
in-interest of the herein petitioner, Johnny S. Rabadilla,
was instituted as a devisee of 511, 855 square meters
of that parcel of land surveyed as Lot No. 1392 of the
Bacolod Cadastre. The said Codicil, which was duly
probated and admitted in Special Proceedings No. 4046
before the then Court of First Instance of Negros
Occidental, contained the following provisions:
"FIRST
I give, leave and bequeath the following property owned
by me to Dr. Jorge Rabadilla resident of 141 P.
Villanueva, Pasay City:
(a) Lot No. 1392 of the Bacolod Cadastre, covered by
Transfer Certificate of Title No. RT-4002 (10942), which
is registered in my name according to the records of the
Register of Deeds of Negros Occidental.
(b) That should Jorge Rabadilla die ahead of me, the
aforementioned property and the rights which I shall set
forth hereinbelow, shall be inherited and acknowledged
by the children and spouse of Jorge Rabadilla.
xxx
FOURTH
(a)....It is also my command, in this my addition
(Codicil), that should I die and Jorge Rabadilla shall have
already received the ownership of the said Lot No. 1392
of the Bacolod Cadastre, covered by Transfer Certificate
of Title No. RT-4002 (10942), and also at the time that
the lease of Balbinito G. Guanzon of the said lot shall
expire, Jorge Rabadilla shall have the obligation until he
dies, every year to give to Maria Marlina Coscolluela y
Belleza, Seventy (75) (sic) piculs of Export sugar and
Twenty Five (25) piculs of Domestic sugar, until the said
Maria Marlina Coscolluela y Belleza dies.
FIFTH
(a) Should Jorge Rabadilla die, his heir to whom he shall
give Lot No. 1392 of the Bacolod Cadastre, covered by
Transfer Certificate of Title No. RT-4002 (10492), shall
have the obligation to still give yearly, the sugar as
specified in the Fourth paragraph of his testament, to
Maria Marlina Coscolluela y Belleza on the month of
December of each year.
SIXTH
I command, in this my addition (Codicil) that the Lot No.
1392, in the event that the one to whom I have left and
bequeathed, and his heir shall later sell, lease, mortgage
this said Lot, the buyer, lessee, mortgagee, shall have
also the obligation to respect and deliver yearly ONE
HUNDRED (100) piculs of sugar to Maria Marlina
Coscolluela y Belleza, on each month of December,
SEVENTY FIVE (75) piculs of Export and TWENTY FIVE
(25) piculs of Domestic, until Maria Marlina shall die,
lastly should the buyer, lessee or the mortgagee of this
lot, not have respected my command in this my addition
(Codicil), Maria Marlina Coscolluela y Belleza, shall
immediately seize this Lot No. 1392 from my heir and
the latter's heirs, and shall turn it over to my near
desendants, (sic) and the latter shall then have the
obligation to give the ONE HUNDRED (100) piculs of
sugar until Maria Marlina shall die. I further command in
this my addition (Codicil) that my heir and his heirs of
this Lot No. 1392, that they will obey and follow that
should they decide to sell, lease, mortgage, they cannot
negotiate with others than my near descendants and my
sister."[4]
Pursuant to the same Codicil, Lot No. 1392 was
transferred to the deceased, Dr. Jorge Rabadilla, and
Transfer Certificate of Title No. 44498 thereto issued in
his name.
Dr. Jorge Rabadilla died in 1983 and was survived by his
wife Rufina and children Johnny (petitioner), Aurora,
Ofelia and Zenaida, all surnamed Rabadilla.
On August 21, 1989, Maria Marlena Coscolluela y Belleza
Villacarlos brought a complaint, docketed as Civil Case
No. 5588, before Branch 52 of the Regional Trial Court
in Bacolod City, against the above-mentioned heirs of
Dr. Jorge Rabadilla, to enforce the provisions of subject
Codicil. The Complaint alleged that the defendant-heirs
violated the conditions of the Codicil, in that:
161
1. Lot No. 1392 was mortgaged to the Philippine
National Bank and the Republic Planters Bank in
disregard of the testatrix's specific instruction to sell,
lease, or mortgage only to the near descendants and
sister of the testatrix.
2. Defendant-heirs failed to comply with their obligation
to deliver one hundred (100) piculs of sugar (75 piculs
export sugar and 25 piculs domestic sugar) to plaintiff
Maria Marlena Coscolluela y Belleza from sugar crop
years 1985 up to the filing of the complaint as mandated
by the Codicil, despite repeated demands for
compliance.
3. The banks failed to comply with the 6th paragraph of
the Codicil which provided that in case of the sale, lease,
or mortgage of the property, the buyer, lessee, or
mortgagee shall likewise have the obligation to deliver
100 piculs of sugar per crop year to herein private
respondent.
The plaintiff then prayed that judgment be rendered
ordering defendant-heirs to reconvey/return-Lot No.
1392 to the surviving heirs of the late Aleja Belleza, the
cancellation of TCT No. 44498 in the name of the
deceased, Dr. Jorge Rabadilla, and the issuance of a new
certificate of title in the names of the surviving heirs of
the late Aleja Belleza.
On February 26, 1990, the defendant-heirs were
declared in default but on March 28, 1990 the Order of
Default was lifted, with respect to defendant Johnny S.
Rabadilla, who filed his Answer, accordingly.
During the pre-trial, the parties admitted that:
On November 15, 1998, the plaintiff (private
respondent) and a certain Alan Azurin, son-in-law of the
herein petitioner who was lessee of the property and
acting as attorney-in-fact of defendant-heirs, arrived at
an amicable settlement and entered into a
Memorandum of Agreement on the obligation to deliver
one hundred piculs of sugar, to the following effect:
"That for crop year 1988-89, the annuity mentioned in
Entry No. 49074 of TCT No. 44489 will be delivered not
later than January of 1989, more specifically, to wit:
75 piculs of 'A' sugar, and 25 piculs of 'B' sugar, or then
existing in any of our names, Mary Rose Rabadilla y
Azurin or Alan Azurin, during December of each sugar
crop year, in Azucar Sugar Central; and, this is
considered compliance of the annuity as mentioned, and
in the same manner will compliance of the annuity be in
the next succeeding crop years.
That the annuity above stated for crop year 1985-86,
1986-87, and 1987-88, will be complied in cash
equivalent of the number of piculs as mentioned therein
and which is as herein agreed upon, taking into
consideration the composite price of sugar during each
sugar crop year, which is in the total amount of ONE
HUNDRED FIVE THOUSAND PESOS (P105,000.00).
That the above-mentioned amount will be paid or
delivered on a staggered cash installment, payable on
or before the end of December of every sugar crop year,
to wit:
For 1985-86, TWENTY SIX THOUSAND TWO HUNDRED
FIFTY (P26,250.00) Pesos, payable on or before
December of crop year 1988-89;
For 1986-87, TWENTY SIX THOUSAND TWO HUNDRED
FIFTY (P26,250.00) Pesos, payable on or before
December of crop year 1989-90;
For 1987-88, TWENTY SIX THOUSAND TWO HUNDRED
FIFTY (P26,250.00) Pesos, payable on or before
December of crop year 1990-91; and
For 1988-89, TWENTY SIX THOUSAND TWO HUNDRED
FIFTY (P26,250.00) Pesos, payable on or before
December of crop year 1991-92."[5]
However, there was no compliance with the aforesaid
Memorandum of Agreement except for a partial delivery
of 50.80 piculs of sugar corresponding to sugar crop
year 1988 -1989.
On July 22, 1991, the Regional Trial Court came out with
a decision, dismissing the complaint and disposing as
follows:
"WHEREFORE, in the light of the aforegoing findings, the
Court finds that the action is prematurely filed as no
cause of action against the defendants has as yet arose
in favor of plaintiff. While there maybe the non-
performance of the command as mandated exaction
from them simply because they are the children of Jorge
Rabadilla, the title holder/owner of the lot in question,
does not warrant the filing of the present complaint. The
remedy at bar must fall. Incidentally, being in the
category as creditor of the left estate, it is opined that
plaintiff may initiate the intestate proceedings, if only to
establish the heirs of Jorge Rabadilla and in order to give
full meaning and semblance to her claim under the
Codicil.
In the light of the aforegoing findings, the Complaint
being prematurely filed is DISMISSED without
prejudice.
SO ORDERED."[6]
On appeal by plaintiff, the First Division of the Court of
Appeals reversed the decision of the trial court;
ratiocinating and ordering thus:
162
"Therefore, the evidence on record having established
plaintiff-appellant's right to receive 100 piculs of sugar
annually out of the produce of Lot No. 1392;
defendants-appellee's obligation under Aleja Belleza's
codicil, as heirs of the modal heir, Jorge Rabadilla, to
deliver such amount of sugar to plaintiff-appellant;
defendants-appellee's admitted non-compliance with
said obligation since 1985; and, the punitive
consequences enjoined by both the codicil and the Civil
Code, of seizure of Lot No. 1392 and its reversion to the
estate of Aleja Belleza in case of such non-compliance,
this Court deems it proper to order the reconveyance of
title over Lot No. 1392 from the estates of Jorge
Rabadilla to the estate of Aleja Belleza. However,
plaintiff-appellant must institute separate proceedings
to re-open Aleja Belleza's estate, secure the
appointment of an administrator, and distribute Lot No.
1392 to Aleja Belleza's legal heirs in order to enforce her
right, reserved to her by the codicil, to receive her
legacy of 100 piculs of sugar per year out of the produce
of Lot No. 1392 until she dies.
Accordingly, the decision appealed from is SET ASIDE
and another one entered ordering defendants-
appellees, as heirs of Jorge Rabadilla, to reconvey title
over Lot No. 1392, together with its fruits and interests,
to the estate of Aleja Belleza.
SO ORDERED."[7]
Dissatisfied with the aforesaid disposition by the Court
of Appeals, petitioner found his way to this Court via the
present petition, contending that the Court of Appeals
erred in ordering the reversion of Lot 1392 to the estate
of the testatrix Aleja Belleza on the basis of paragraph
6 of the Codicil, and in ruling that the testamentary
institution of Dr. Jorge Rabadilla is a modal institution
within the purview of Article 882 of the New Civil Code.
The petition is not impressed with merit.
Petitioner contends that the Court of Appeals erred in
resolving the appeal in accordance with Article 882 of
the New Civil Code on modal institutions and in
deviating from the sole issue raised which is the absence
or prematurity of the cause of action. Petitioner
maintains that Article 882 does not find application as
there was no modal institution and the testatrix
intended a mere simple substitution - i.e. the instituted
heir, Dr. Jorge Rabadilla, was to be substituted by the
testatrix's "near descendants" should the obligation to
deliver the fruits to herein private respondent be not
complied with. And since the testatrix died single and
without issue, there can be no valid substitution and
such testamentary provision cannot be given any effect.
The petitioner theorizes further that there can be no
valid substitution for the reason that the substituted
heirs are not definite, as the substituted heirs are
merely referred to as "near descendants" without a
definite identity or reference as to who are the "near
descendants" and therefore, under Articles 843[8] and
845[9] of the New Civil Code, the substitution should be
deemed as not written.
The contentions of petitioner are untenable. Contrary to
his supposition that the Court of Appeals deviated from
the issue posed before it, which was the propriety of the
dismissal of the complaint on the ground of prematurity
of cause of action, there was no such deviation. The
Court of Appeals found that the private respondent had
a cause of action against the petitioner. The disquisition
made on modal institution was, precisely, to stress that
the private respondent had a legally demandable right
against the petitioner pursuant to subject Codicil; on
which issue the Court of Appeals ruled in accordance
with law.
It is a general rule under the law on succession that
successional rights are transmitted from the moment of
death of the decedent[10] and compulsory heirs are
called to succeed by operation of law. The legitimate
children and descendants, in relation to their legitimate
parents, and the widow or widower, are compulsory
heirs.[11] Thus, the petitioner, his mother and sisters,
as compulsory heirs of the instituted heir, Dr. Jorge
Rabadilla, succeeded the latter by operation of law,
without need of further proceedings, and the
successional rights were transmitted to them from the
moment of death of the decedent, Dr. Jorge Rabadilla.
Under Article 776 of the New Civil Code, inheritance
includes all the property, rights and obligations of a
person, not extinguished by his death. Conformably,
whatever rights Dr. Jorge Rabadilla had by virtue of
subject Codicil were transmitted to his forced heirs, at
the time of his death. And since obligations not
extinguished by death also form part of the estate of the
decedent; corollarily, the obligations imposed by the
Codicil on the deceased Dr. Jorge Rabadilla, were
likewise transmitted to his compulsory heirs upon his
death.
In the said Codicil, testatrix Aleja Belleza devised Lot
No. 1392 to Dr. Jorge Rabadilla, subject to the condition
that the usufruct thereof would be delivered to the
herein private respondent every year. Upon the death
of Dr. Jorge Rabadilla, his compulsory heirs succeeded
to his rights and title over the said property, and they
also assumed his (decedent's) obligation to deliver the
fruits of the lot involved to herein private respondent.
Such obligation of the instituted heir reciprocally
corresponds to the right of private respondent over the
usufruct, the fulfillment or performance of which is now
being demanded by the latter through the institution of
the case at bar. Therefore, private respondent has a
cause of action against petitioner and the trial court
erred in dismissing the complaint below.
Petitioner also theorizes that Article 882 of the New Civil
Code on modal institutions is not applicable because
what the testatrix intended was a substitution - Dr.
Jorge Rabadilla was to be substituted by the testatrix's
163
near descendants should there be noncompliance with
the obligation to deliver the piculs of sugar to private
respondent.
Again, the contention is without merit.
Substitution is the designation by the testator of a
person or persons to take the place of the heir or heirs
first instituted. Under substitutions in general, the
testator may either (1) provide for the designation of
another heir to whom the property shall pass in case the
original heir should die before him/her, renounce the
inheritance or be incapacitated to inherit, as in a simple
substitution,[12] or (2) leave his/her property to one
person with the express charge that it be transmitted
subsequently to another or others, as in a
fideicommissary substitution.[13] The Codicil sued upon
contemplates neither of the two.
In simple substitutions, the second heir takes the
inheritance in default of the first heir by reason of
incapacity, predecease or renunciation.[14] In the case
under consideration, the provisions of subject Codicil do
not provide that should Dr. Jorge Rabadilla default due
to predecease, incapacity or renunciation, the testatrix's
near descendants would substitute him. What the
Codicil provides is that, should Dr. Jorge Rabadilla or his
heirs not fulfill the conditions imposed in the Codicil, the
property referred to shall be seized and turned over to
the testatrix's near descendants.
Neither is there a fideicommissary substitution here and
on this point, petitioner is correct. In a fideicommissary
substitution, the first heir is strictly mandated to
preserve the property and to transmit the same later to
the second heir.[15] In the case under consideration,
the instituted heir is in fact allowed under the Codicil to
alienate the property provided the negotiation is with
the near descendants or the sister of the testatrix. Thus,
a very important element of a fideicommissary
substitution is lacking; the obligation clearly imposing
upon the first heir the preservation of the property and
its transmission to the second heir. "Without this
obligation to preserve clearly imposed by the testator in
his will, there is no fideicommissary substitution."[16]
Also, the near descendants' right to inherit from the
testatrix is not definite. The property will only pass to
them should Dr. Jorge Rabadilla or his heirs not fulfill
the obligation to deliver part of the usufruct to private
respondent.
Another important element of a fideicommissary
substitution is also missing here. Under Article 863, the
second heir or the fideicommissary to whom the
property is transmitted must not be beyond one degree
from the first heir or the fiduciary. A fideicommissary
substitution is therefore, void if the first heir is not
related by first degree to the second heir.[17] In the
case under scrutiny, the near descendants are not at all
related to the instituted heir, Dr. Jorge Rabadilla.
The Court of Appeals erred not in ruling that the
institution of Dr. Jorge Rabadilla under subject Codicil is
in the nature of a modal institution and therefore, Article
882 of the New Civil Code is the provision of law in point.
Articles 882 and 883 of the New Civil Code provide:
Art. 882. The statement of the object of the institution
or the application of the property left by the testator, or
the charge imposed on him, shall not be considered as
a condition unless it appears that such was his intention.
That which has been left in this manner may be claimed
at once provided that the instituted heir or his heirs give
security for compliance with the wishes of the testator
and for the return of anything he or they may receive,
together with its fruits and interests, if he or they should
disregard this obligation.
Art. 883. When without the fault of the heir, an
institution referred to in the preceding article cannot
take effect in the exact manner stated by the testator,
it shall be complied with in a manner most analogous to
and in conformity with his wishes.
The institution of an heir in the manner prescribed in
Article 882 is what is known in the law of succession as
an institucion sub modo or a modal institution. In a
modal institution, the testator states (1) the object of
the institution, (2) the purpose or application of the
property left by the testator, or (3) the charge imposed
by the testator upon the heir.[18] A "mode" imposes an
obligation upon the heir or legatee but it does not affect
the efficacy of his rights to the succession.[19] On the
other hand, in a conditional testamentary disposition,
the condition must happen or be fulfilled in order for the
heir to be entitled to succeed the testator. The condition
suspends but does not obligate; and the mode obligates
but does not suspend.[20] To some extent, it is similar
to a resolutory condition.[21]
From the provisions of the Codicil litigated upon, it can
be gleaned unerringly that the testatrix intended that
subject property be inherited by Dr. Jorge Rabadilla. It
is likewise clearly worded that the testatrix imposed an
obligation on the said instituted heir and his successors-
in-interest to deliver one hundred piculs of sugar to the
herein private respondent, Marlena Coscolluela Belleza,
during the lifetime of the latter. However, the testatrix
did not make Dr. Jorge Rabadilla's inheritance and the
effectivity of his institution as a devisee, dependent on
the performance of the said obligation. It is clear,
though, that should the obligation be not complied with,
the property shall be turned over to the testatrix's near
descendants. The manner of institution of Dr. Jorge
Rabadilla under subject Codicil is evidently modal in
nature because it imposes a charge upon the instituted
heir without, however, affecting the efficacy of such
institution.
Then too, since testamentary dispositions are generally
acts of liberality, an obligation imposed upon the heir
164
should not be considered a condition unless it clearly WHEREFORE, the petition is hereby DISMISSED and the
appears from the Will itself that such was the intention decision of the Court of Appeals, dated December 23,
of the testator. In case of doubt, the institution should 1993, in CA-G.R. No. CV-35555 AFFIRMED. No
be considered as modal and not conditional.[22] pronouncement as to costs

Neither is there tenability in the other contention of SO ORDERED.

petitioner that the private respondent has only a right
of usufruct but not the right to seize the property itself
from the instituted heir because the right to seize was
expressly limited to violations by the buyer, lessee or
mortgagee.

In the interpretation of Wills, when an uncertainty arises

on the face of the Will, as to the application of any of its
provisions, the testator's intention is to be ascertained
from the words of the Will, taking into consideration the
circumstances under which it was made.[23] Such
construction as will sustain and uphold the Will in all its
parts must be adopted.[24]

Subject Codicil provides that the instituted heir is under

obligation to deliver One Hundred (100) piculs of sugar
yearly to Marlena Belleza Coscuella. Such obligation is
imposed on the instituted heir, Dr. Jorge Rabadilla, his
heirs, and their buyer, lessee, or mortgagee should they
sell, lease, mortgage or otherwise negotiate the
property involved. The Codicil further provides that in
the event that the obligation to deliver the sugar is not
respected, Marlena Belleza Coscuella shall seize the
property and turn it over to the testatrix's near
descendants. The non-performance of the said
obligation is thus with the sanction of seizure of the
property and reversion thereof to the testatrix's near
descendants. Since the said obligation is clearly imposed
by the testatrix, not only on the instituted heir but also
on his successors-in-interest, the sanction imposed by
the testatrix in case of non-fulfillment of said obligation
should equally apply to the instituted heir and his
successors-in-interest.

Similarly unsustainable is petitioner's submission that

by virtue of the amicable settlement, the said obligation
imposed by the Codicil has been assumed by the lessee,
and whatever obligation petitioner had become the
obligation of the lessee; that petitioner is deemed to
have made a substantial and constructive compliance of
his obligation through the consummated settlement
between the lessee and the private respondent, and
having consummated a settlement with the petitioner,
the recourse of the private respondent is the fulfillment
of the obligation under the amicable settlement and not
the seizure of subject property.

Suffice it to state that a Will is a personal, solemn,

revocable and free act by which a person disposes of his
property, to take effect after his death.[25] Since the
Will expresses the manner in which a person intends
how his properties be disposed, the wishes and desires
of the testator must be strictly followed. Thus, a Will
cannot be the subject of a compromise agreement which
would thereby defeat the very purpose of making a Will.

165
166
Herreros vs. Gil (88 Phil 260).
G.R. No. L-3362 March 1, 1951
TESTATE estate of Carlos Gil, deceased. ISABEL
HERREROS VDA. DE GIL, administratrix-appellee,
vs.
PILAR GIL VDA. DE MURCIANO, oppositor-appellant.
Eligio C. Lagman for appellant.
Reyes, Albert and Agcaoili for appellee.
JUGO, J.:
The Court of First Instance of Manila admitted to probate
the alleged will and testament of the deceased Carlos
Gil. The oppositor Pilar Gil Vda. de Murciano appealed to
this Court, raising only question of law. Her counsel
assigns the two following alleged errors:
Primer Error. — El Juzgado inferior erro al dejar de
declarar que el alegado testamento de Carlos Gil no ha
sido otogar de acuerdo con la ley.
Segundo Error. — Erro finalmente a legalizar el referido
testamento.
The alleged will read as follows:
Primera Pagina (1)
EN EL NOMBRE DE DIOS, AMEN
Yo, Carlos Gil, de 66 años de edad, residente de Porac,
Pampanga, I. F., hallandome sano y en pleno goce de
mis facultades intelectuales, libre y expontaneamente,
sin violencia, coaccion, dolo o influencia ilegal de
persona extraña, otorgo y ordeno este mi testamento y
ultima voluntad en castellano, idioma que poseo y
entiendo, de la manera siguiente:
1. Declaro que durante mi matrimonio con mi esposa la
hoy Isabel Herreros no tuvimos hijos;
2. Declaro que tengo propiedades situadas en Manila y
en la Provincia de Pampanga;
3. Doy y adjudico a mi querida esposa Isabel Herretos
todos mis bienes ya que muebles e inmuebles situados
en Manila y en Pampanga, bajo la condicion de que
cuando esta muera y si hayan bienes remanentes
heredadas por ella de mi, que dichos bienes remanentes
se adjudicaran a Don Carlos Worrel.
4. Nombro como albacea de mis bienes despues de mi
fallecimiento al Dr. Galicano Coronel a quien tengo
absoluta confianza, con relevacion de fianza;
En testimonio de todo lo cual, firmo este mi testamento
y en el margen izquierdo de cada una de sus dos
paginas, utiles con la clausula de atestiguamiento en
presencia de los testigos, quienes a su vez firmaron
cada una de dichas paginas y la clausula de
atestiguamiento en mi presencia cada uno de ellos con
la de los demas, hoy en Porac, Pampanga, I. F., el dia
27 de Mayo de mil novecientos treinta y nueve.
CARLOS GIL
Testificacion:
Segunda Pagina (2)
Nosotros los que suscribimos, todos mayores de edad,
certificamos: que el testamento que precede este
escrito en la lengua castellana que conoce la testadora,
compuesto de dos paginas utiles con la clausula de
atestiguamiento paginadas correlativamente en letras y
numeros en la parte superior de la casilla, asi como
todas las hojas del mismo, en nuestra presencia y que
cada uno de nosotros hemos atestiguado y firmado
dicho documento y todas las hojas del mismo en
presencia del testador y en la de cada uno de nosotros.
(Fdo.) ALFREDO T. RIVERA
(Fdo.) RAMON MENDIOLA
(Fdo.) MARIANO OMAÑA
Regarding the correctness and accuracy of the above-
copied alleged will, the court below said:
. . . The only copy available is a printed form contained
in the record appeal in case G.R. No. L-254, entitled
"Testate Estate of Carlos Gil; Isabel Herreros Vda. de
Gil, petitioner and appellant vs. Roberto Toledo y Gil,
oppositor and appellee." Both parties are agreed that
this is a true and correct copy of the will. (P. 10, Record
on Appeal).
The appeal being only on questions of law the above
finding of the court below cannot be disputed. The
conclusions of law reached by said court are based on
it. Moreover, the finding is correctly based on the
evidence of record. The parties agreed that said copy is
true and correct. If it were otherwise, they would not
have so agreed, considering that the defect is of an
essential character and is fatal to the validity of the
attestation clause.
It will be noted that the attestation clause above quoted
does not state that the alleged testor signed the will. It
declares only that it was signed by the witnesses. This
is a fatal defect, for the precise purpose of the
attestation clause is to certify that the testator signed
the will, this being the most essential element of the
clause. Without it there is no attestation at all. It is said
167
that the court may correct a mere clerical error. This is
too much of a clerical error for it effects the very essence
of the clause. Alleged errors may be overlooked or
correct only in matters of form which do not affect the
substance of the statement.
It is claimed that the correction may be made by
inference. If we cure a deficiency by means of
inferences, when are we going to stop making
inferences to supply fatal deficiencies in wills? Where are
we to draw the line? Following that procedure we would
be making interpolations by inferences, implication, and
even by internalcircumtantial evidence. This would be
done in the face of the clear, uniquivocal, language of
the statute as to how the attestation clause should be
made. It is to be supposed that the drafter of the alleged
will read the clear words of the statute when he
prepared it. For the court to supply alleged deficiencies
would be against the evident policy of the law. Section
618 of Act No. 190, before it was amended, contained
the following provision:
. . . But the absence of such form of attestation shall not
render the will invalid if it proven that the will was in
fact signed and attested as in this section provided.
However, Act No. 2645 of the Philippine Legislature,
passed on July 1, 1916, besides increasing the contents
of the attestation clause, entirely suppressed the above-
quoted provision. This would show that the purpose of
the amending act was to surround the execution of a will
with greater guarantees and solemnities. Could we, in
view of this, hold that the court can cure alleged
deficiencies by inferences, implications, and internal
circumstantial evidence? Even in ordinary cases the law
requires certain requisities for the conclusiveness of
circumstantial evidence.
It is contended that the deficiency in the attestation
clause is cured by the last paragraph of the body of the
alleged will, which we have quoted above. At first
glance, it is queer that the alleged testator should have
made an attestation clause, which is the function of the
witness. But the important point is that he attests or
certifies his own signature, or, to be accurate, his
signature certifies itself. It is evident that one cannot
certify his own signature, for it does not increase the
evidence of its authenticity. It would be like lifting one's
self by his own bootstraps. Consequently, the last
paragraph of the will cannot cure in any way the fatal
defect of the attestation clause of the witnesses. Adding
zero to an insufficient amount does not make it
sufficient.
It is said that the rules of statutory construction are
applicable to documents and wills. This is true, but said
rules apply to the body of the will, containing the
testamentary provisions, but not to the attestation
clause, which must be so clear that it should not require
any construction.
The parties have cited pro and con several decisions of
the Supreme Court, some of which are said to be rather
strict and others liberal, in the interpretation of section
618 of Act No. 190, as amended by Act No. 2645.
In the case of Gumban vs. Gorecho (50 Phil., 30, 31),
the court had the following to say:
1. WILLS; ALLOWANCE OR DISALLOWANCE; SECTIONS
618 AND 634 OF THE CODE OF CIVIL PROCEDURE
CONSTRUED. — The right to dispose of the property by
will is governed entirely by statute. The law is here
found in section 618 of the Code of Civil Procedure, as
amended. The law not alone carefully makes use of the
imperative, but cautiously goes further and makes use
of the negative, to enforce legislative intention.
2. ID.; ID.; ATTESTATION. — The Philippine authorities
relating to the attestation clause to wills reviewed. The
cases of Saño vs. Quintana ([1925], 48 Phil., 506), and
Nayve vs. Mojal and Aguilar ([1924], 47 Phil., 152),
particularly compared. The decision in In re Will of
Quintana, supra, adopted and reaffirmed. The decision
in Nayve vs. Mojal and Aguilar, supra, modified.
3. ID.; ID.; ID.; ID. — The portion of section 618 of the
Code of Civil Procedure, as amended, which provides
that "The attestation clause 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" applied and enforced.
4. ID.; ID.; ID.; ID. — 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. (Sano vs. Quintana, supra.)
In the subsequent case of Quinto vs. Morata (54 Phil.,
481, 482), Judge Manuel V. Moran, now Chief Justice of
the Supreme Court, in his decision made the following
pronouncement:
. . . En la clausula de atestiguamiento del testamento en
cuestion, se hace constar que los testadores firmaron el
testamento en presencia de los tres testigos
instrumentales y que estos firmaron el testamento los
unos en presencia de los otros, pero no se hace constar
que dichos testigos firmaron el testamento enpresencia
de los testadores, ni que estos y aquellos firmaron todas
y cada una de las paginas del testamento los primeros
en presencia de los segundos y vice-versa.
En su virtud, se deniega la solicitud en la que se pide la
legalizacion del alegado testamento Exhibit A de
Gregorio Pueblo y Carmen Quinto, y se declara que
Gregorio Pueblo murio intestado.
168
The Supreme Court fully affirmed the decision, laying
down the following doctrine:
1. WILLS; ATTESTATION CLAUSE; EVIDENCE TO
SUPPLY DEFECTS OF. — The attestation clause must be
made in strict conformity with the requirements of
section 618 of Act No. 190, as amended. Where said
clause fails to show on its face a full compliance with
those requirements, the defect constitutes sufficient
ground for the disallowance of the will. (Sano vs.
Quintana, 48 Phil., 506; Gumban vs. Gorecho, 50 Phil.,
30). Evidence aliunde should not be admitted to
establish facts not appearing on the attestation clause,
and where said evidence has been admitted it should
not be given the effect intended. (Uy Coque vs. Navas
L. Sioca, 43 Phil., 405, 409.).
2. ID.; ID.; INTERPRETATION OF SECTION 618 OF ACT
NO. 190, AS AMENDED. — Section 618 of Act No. 190,
as amended, should be given a strict interpretation in
order to give effect to the intention of the Legislature.
Statutes prescribing formalities to be observed in the
execution of wills are very strictly construed. Courts
cannot supply the defensive execution of will. (40 Cyc.,
p. 1079; Uy Coque vs. Navas L. Sioca, supra.)
It is true that in subsequent decisions, the court has
somewhat relaxed the doctrine of the Gumban vs.
Gorchocase, supra, but not to the extent of validating
an attestation clause similar to that involved herein.
In the case of Aldaba vs. Roque (43 Phil., 378), the
testatrix signed the attestation clause which was
complete, and it was also signed by the two attesting
witnesses. For this reason, the court said:
In reality, it appears that it is the testatrix who makes
the declaration about the points contained in the above
described paragraph; however, as the witnesses,
together with the testatrix, have signed the said
declaration, we are of the opinion and so hold that the
words above quoted of the testament constitute a
sufficient compliance with the requirements of section 1
of Act No. 2645 which provides that: . . . (p. 381,supra.)
The attestation clause involved herein is very different.
In the case of Dischoso de Ticson vs. De Gorotiza (57
Phil., 437), it was held that:
An attestation clause to a will, copied from a form book
and reading: "We, the undersigned attesting witnesses,
whose residences are stated opposite our respective
names, do hereby certify that the testatrix, whose name
is signed hereinabove, has publish unto us the foregoing
will consisting of two pages as her Last Will and
Testament, and has signed the same in our presence,
and in witness whereof we have each signed the same
and each page thereof in the presence of said testatrix
and in the presence of each other," held not to be fatally
defective and to conform to the law.
This very different from the attestation clause in the
case at bar.
In the case of Grey vs. Fabie * (40 Off. Gaz., 1st
Supplement, 196, No. 3, May 23, 1939), the will was
objected to on the ground that, although the attestation
clause stated that "each of the pages of which the said
will is composed" was signed by the testatrix at the left
margin and at the foot of the fifth page, it did not state
that the signature was made in the presence of the
witnesses. It was held, however, that said deficiency
was cured by the phrase "as well as by each of us in the
presence of the testatrix." The words "as well as"
indicate that the testatrix signed also in the presence of
the witnesses, for the phrase "as well as" in this case is
equivalent to "also." The language is clear and, unlike
the attestation clause in the present case, does not
necessitate any correction. In the body of the will the
testatrix stated that she signed in the presence of each
and all of the three witnesses. This was considered as a
corroboration, but it was unnecessary.
In the case of Leynez vs. Leynez (40 Off. Gaz., 3rd
Supplement, 51, 52, No. 7, October 18, 1939; 68 Phil.,
745), the attestation clause reads as follows:
Suscrito y declarado por el testador Valerio Leynez,
como su ultima voluntad y testamento en presencia de
todos y cada uno de nosotros, y a ruego de dicho
testador, firmamos el presente cada uno en presencia
de los otros, o de los demas y de la del mismo testsador,
Valerio Leynez. El testamento consta de dos (2) paginas
solamente.
The objection was that the attestation clause did not
state that the testator and the witnesses signed each
and every page of the will. This fact , however, appears
in the will itself. It is clear, therefore, that in case of the
will complied with all the requisites for its due execution.
In the instant case, essential words were omitted.
In the case of Alcala vs. De Villa 1 (40 Off. Gaz., 14th
Supplement, 131, 134-135, No. 23, April 18, 1939), the
attestation clause reads as follows:
Hacemos constar que en la fecha y pueblo arriba
mencionadios otorgo el Sr. Emiliano Alcala su ultima
voluntad o testamentao compuesto de cuatro paginas
incluida ya esta clasula de atestiguamiento. Que
estabamos presentes en el momento de leer y ratificar
el que el testamento arriba mencionado es su ultima
voluntad o testamento compuesto de cuatro paginasen
papel de maquinilla. Que igualmente estabamos
presentes cuando el firmo este documento al pie del
mismo y en el margen izquierdo de cada pagina del
testador tambien en presencia suya y de cada uno de
nosotros en cada pagina y en el margen izquierdo de
esta escritura o testamento. En su testimonio firmamos
abajo en prsencia del testador y de cada uno de
nosotros.
169
The above attestation clause is substantially perfect.
The only clerical error is that it says "testador" instead
of "testamento" in the phrase "cada pagina del
testador." The word "tambien" renders unnecessary the
use of the verb "firmamos."
In the case of Mendoza vs. Pilapil 2 (40 Off. Gaz., 1855,
No. 9, June 27, 1941), the attestation clause did not
state the number of pages of the will. However, it was
held that this deficiency was cured by the will itself,
which stated that it consisted of three pages and in fact
it had three pages.
In the case of Rallos vs. Rallos (44 Off. Gaz., 4938,
4940, No. 12, October 23, 1947), decided by the Court
of Appeals, the attestation clause (translated in
Spanish) reads as follows:
Nosotros, los testigos, certificamos que este que hemos
firmado es el testamento y ultima voluntad, que se ha
redactado en cuatro paginas, de Numeriano Rallos,
quien despues de leer y de leer y de leerle el
mencionado testamento, y despues de que ella dio su
conformidad, firmo y marco con su dedo pulgar derecho
en nuestra presencia y en presencia de cada uno de
nosotros, que asimismo cada uno de nosotros, los
testigos, firmamos enpresencia de la testadora y en
presencia de cada uno de nosotros.
In interpreting the legislature's thought, courts have
rigidly opposed any exception tending to weaken the
basic principle underlying the law, the chief purpose of
which is to see that the testator's wishes are observed.
It is possible, in some or many cases, a decedent may
have thought he had made a will, but the statute says
he had not. The question is not one of his intention, but
of what he actually did, or . . . failed to do. . . . It may
happen . . . that . . . wills . . . truly expressing the
intertions of the testator are made without observations
of the required forms; and whenever that happens, the
genuine intention is frustrated. . . . The Legislature . . .
has taught of it best and has therefore determined, to
run the risk of frustrating (that intention, . . . in
preference to the risk of giving effect to or facilitating
the formation of spurious wills, by the absence of forms.
. . . The evil probably to arise by giving to wills made
without any form, . . ." or, in derogation of testator's
wishes, fraudulently imposing spurious wills on his effect
on his estate. Churchill's Estate, 260 Pac. 94, 101, 103
Atl. 533.
It has always been the policy of this court to sustain a
will if it is legally possible to do so, but we cannot break
down the legislative barriers protecting a man's
property after death, even if a situation may be
presented apparently meritorious. (In Re: Maginn, 30 A.
L. R., pp. 419, 420.)

In view of the foregoing, the decision appealed from is

It will be noticed that the only thing omitted is the
reversed, denying the probate of the alleged will and
statement as to the signing of the testatrix and the
declaring intestate the estate of the deceased Carlos Gil.
witnesses of each and every page of the will, but the
With costs against the appellee. It is so ordered.
omission is cured by the fact that their signatures
appear on every page. This attestation clause is
different from that involved in the present case.

There is no reason why wills should not be executed by

complying substantially with the clear requisites of the
law, leaving it to the courts to supply essential
elements. The right to dispose of property by will is not
natural but statutory, and statutory requirements
should be satisfied.

The right to make a testamentary disposition of one's

property is purely of statutory creation, and is available
only upon the compliance with the requirements of the
statute. The formalities which the Legislature has
prescribed for the execution of a will are essential to its
validity, and cannot be disregarded. The mode so
prescribed is the measure for the exercise of the right,
and the heir can be deprived of his inheritance only by
a compliance with this mode. For the purpose of
determining whether a will has been properly executed,
the intention of the testator in executing it is entitled to
no consideration. For that purpose only intention of the
Legislature, as expressed in the language of the statute,
can be considered by the court, and whether the will as
presented, shows a compliance with the statute. Estate
of Walker, 110 Cal., 387, 42 Pac., 815, 30 L. R. A., 460,
52 Am. St. Rep. 104. In re Seaman's Estate, 80 Pac.,
700, 701.)

170
171
Montinola vs. Herbosa (Court of Appeals case)
Merza vs. Porras (93 Phil 142)
G.R. No. L-4888 May 25, 1953
JOSE MERZA, petitioner,
vs.
PEDRO LOPEZ PORRAS, respondent.
TUAZON , J.:
This is an appeal from the Court of Appeals which
affirmed an order of the Court of First Instance of
Zambales denying the probate of the last will and
testament and
so-called codicil, identified as Exhibits A and B, of Pilar
Montealegre, deceased. The testatrix was survived by
the husband and collateral relatives, some of whom,
along with the husband, were disinherited in Exhibit B
for the reasons set forth therein.
The opposition to Exhibit A was predicated on alleged
defects of the attestation clause. Written in the local
dialect known to the testatrix, the attestation clause, as
translated into English in the record on appeal, reads:
The foregoing instrument consisting of three pages, on
the date above-mentioned, was executed, signed and
published by testatrix Pilar Montealegre and she
declared that the said instrument is her last will and
testament; that in our presence and also in the very
presence of the said testatrix as likewise in the presence
of two witnesses and the testatrix each of us three
witnesses signed this a testament.
The opponent objected that this clause did not estate
that the tetratrix and the witnesses had signed each and
every page of the will or that she had signed the
instrument in the presence of the witnesses. The
Appellate Court dismissed the first objection, finding
that "failure to estate in the attestation clause in
question that the testatrix and/or the witnesses had
signed each and every page of Exhibit A were cured by
the fact that each one of the page of the instrument
appears to be signed by the testatrix and the three
attesting witnesses (Nayve vs. Mojal, 47 Phil., 152,
(1924); Ticson vs. Gorostiza, 57 Phil., (1932); Leynes
vs. Leynes, 40 Off. Gaz., 3rd Suppl. (October 18, 1939),
510, 528; Rallos vs. Rallos, 44 Off. Gaz., 4938, 4940)."
But granting the correctness of the premise, the court
held the second objection well taken and thus
concluded: "The question whether the testatrix had
signed in the presence of said witnesses can not be
verified upon physical examination of the instrument.
Hence, the absence of the require statement in said
clause may not, pursuant to the decisions of the
Supreme Court, be offset by proof aliunde even if
admitted without any objection."
The premise of the conclusion is, in our opinion,
incorrect.
It must be admitted that the attestation clause was very
poor drawn, its language exceedingly ungrammatical to
the point of being difficult to understand; but from a
close examination of the whole context in relation to its
purpose the implication seems clear that the testatrix
signed in the presence of the witnesses. Considering
that the witnesses' only business at hand was to sign
and attest to the testatrix's signing of the document,
and that the only actors of the proceeding were the
maker and the witnesses acting and speaking
collectively and in the first person, the phrase "in our
presence," used as it was in connection with the process
of signing, can not imply anything but the testatrix
signed before them. No other inference is possible. The
prepositional phrase "in our presence" denotes an active
verb and the verb a subject. The verb could not be other
than signed and the subject no other than the testatrix.
The use of the word "also" is no less enlightening. It
denotes that, as each of the witnesses sign in the
presence of the testatrix and of one another, so the
testatrix sign in similar or like manner — in their
presence.
In consonance with the principle of the liberal
interpretation, adhered to in numerous later decision of
this Court and affirmed and translated into inactment in
the new Civil Code (Article 827), we are constrained to
hold the attestation clause under consideration
sufficient and valid.
"Precision of language in the drafting of the attestation
clause is desirable. However, it is not imperative that a
parrot-like copy of the word of the statue be made. It is
sufficient if from the language employed it can
reasonably be deduced that the attestation clause fulfills
what the law expects of it." (Ticson vs. Gorostiza,
supra.)
"It could have been the intention of the legislature in
providing for the essential safeguards in the execution
of a will to shackle the very right of the testamentary
disposition which the law recognizes and holds sacred."
(Leynes vs.Leynes, supra.)
With reference of Exhibit B the Court of Appeal agreed
with the trial court that the document having been
executed one day before Exhibit A could not be
considered as a codicil "because a codicil, as the word
implies, is only an addition to, or modification of, the
will." The Court of Appeals added that "the content of
Exhibit B are couched in the language of ordinarily used
in a simple affidavit and as such, may not have the legal
effect and force to a testamentary disposition."
Furthermore, the Court of Appeals observed,
172
disinheritance "may not be made in any instrument
other than the will of Exhibit A, as expressly provided
for in article 849 of the Civil Code," and, "there being no
disposition as to the disinheritance of the oppositor,
Pedro Lopez Porras (the surviving spouse), in the said
Exhibit A, it is quite clear that he can not be disinherited
in any other instrument including Exhibit B, which is, as
above stated, a simple affidavit."

Exhibit B does partake of the nature of a will. A will is

defined in article 667 of the Civil code of Spain as "the
act by which a persons dispose of all his property or a
portion of it," and in article 783 of the new Civil Code 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. Exhibit B comes within this definition.

Being of testamentary character and having been made

with all the formalities of law, Exhibit B is entitled to
probate as an independent testementary desposition. In
the absence of any legal provision to the contrary — and
there is none in this jurisdiction — it is the general, well-
established rule that two separate and distinct wills may
be probated if one does not revoke the other (68 C.J.,
885) and provided that the statutory requirements
relative to the execution of wills have been complied
with (Id. 881). As seen, Exhibit B embodied all the
requisites of a will, even free of such formal of literary
imperfections as are found in Exhibit A.

It also follows that Exhibit B is a legal and effective

vehicle for excluding lawful heirs from testate or
intestate succession. Article 849 of the Civil Code of
Spain does not, as the appealed decision seems to
insinuate, require that the disinheritance should be
accomplished in the same instrument by which the
maker provides the disposition of his or her property
after his or death. This article merely provides that
"disinheritance can be affected only by a will (any will)
in which the legal cause upon which it is based is
expressly stated."

It is our judgment therefore that the instruments Exhibit

A and B admitted to probate, subject of courts to the
right of the disinherited person under particle 850 to
contest the disinheritance, and it is so ordered, with
costs against the appellee.

173
Vitug vs. CA, 183 SCRA 755)
G.R. No. 82027 March 29, 1990
ROMARICO G. VITUG, petitioner,
vs.
THE HONORABLE COURT OF APPEALS and ROWENA
FAUSTINO-CORONA, respondents.
Rufino B. Javier Law Office for petitioner.
Quisumbing, Torres & Evangelista for private
respondent.
SARMIENTO, J.:
This case is a chapter in an earlier suit decided by this
Court 1 involving the probate of the two wills of the late
Dolores Luchangco Vitug, who died in New York, U. S.A.,
on November 10, 1980, naming private respondent
Rowena Faustino-Corona executrix. In our said decision,
we upheld the appointment of Nenita Alonte as co-
special administrator of Mrs. Vitug's estate with her
(Mrs. Vitug's) widower, petitioner Romarico G. Vitug,
pending probate.
On January 13, 1985, Romarico G. Vitug filed a motion
asking for authority from the probate court to sell
certain shares of stock and real properties belonging to
the estate to cover allegedly his advances to the estate
in the sum of P667,731.66, plus interests, which he
claimed were personal funds. As found by the Court of
Appeals, 2 the alleged advances consisted of
P58,147.40 spent for the payment of estate tax,
P518,834.27 as deficiency estate tax, and P90,749.99
as "increment thereto." 3 According to Mr. Vitug, he
withdrew the sums of P518,834.27 and P90,749.99
from savings account No. 35342-038 of the Bank of
America, Makati, Metro Manila.
On April 12, 1985, Rowena Corona opposed the motion
to sell on the ground that the same funds withdrawn
from savings account No. 35342-038 were conjugal
partnership properties and part of the estate, and
hence, there was allegedly no ground for
reimbursement. She also sought his ouster for failure to
include the sums in question for inventory and for
"concealment of funds belonging to the estate." 4
Vitug insists that the said funds are his exclusive
property having acquired the same through a
survivorship agreement executed with his late wife and
the bank on June 19, 1970. The agreement provides:
We hereby agree with each other and with the BANK OF
AMERICAN NATIONAL TRUST AND SAVINGS
ASSOCIATION (hereinafter referred to as the BANK),
that all money now or hereafter deposited by us or any
or either of us with the BANK in our joint savings current
account shall be the property of all or both of us and
shall be payable to and collectible or withdrawable by
either or any of us during our lifetime, and after the
death of either or any of us shall belong to and be the
sole property of the survivor or survivors, and shall be
payable to and collectible or withdrawable by such
survivor or survivors.
We further agree with each other and the BANK that the
receipt or check of either, any or all of us during our
lifetime, or the receipt or check of the survivor or
survivors, for any payment or withdrawal made for our
above-mentioned account shall be valid and sufficient
release and discharge of the BANK for such payment or
withdrawal. 5
The trial courts 6 upheld the validity of this agreement
and granted "the motion to sell some of the estate of
Dolores L. Vitug, the proceeds of which shall be used to
pay the personal funds of Romarico Vitug in the total
sum of P667,731.66 ... ." 7
On the other hand, the Court of Appeals, in the petition
for certiorari filed by the herein private respondent, held
that the above-quoted survivorship agreement
constitutes a conveyance mortis causa which "did not
comply with the formalities of a valid will as prescribed
by Article 805 of the Civil Code," 8 and secondly,
assuming that it is a mere donation inter vivos, it is a
prohibited donation under the provisions of Article 133
of the Civil Code. 9
The dispositive portion of the decision of the Court of
Appeals states:
WHEREFORE, the order of respondent Judge dated
November 26, 1985 (Annex II, petition) is hereby set
aside insofar as it granted private respondent's motion
to sell certain properties of the estate of Dolores L. Vitug
for reimbursement of his alleged advances to the estate,
but the same order is sustained in all other respects. In
addition, respondent Judge is directed to include
provisionally the deposits in Savings Account No.
35342-038 with the Bank of America, Makati, in the
inventory of actual properties possessed by the spouses
at the time of the decedent's death. With costs against
private respondent. 10
In his petition, Vitug, the surviving spouse, assails the
appellate court's ruling on the strength of our decisions
inRivera v. People's Bank and Trust Co. 11 and Macam
v. Gatmaitan 12 in which we sustained the validity of
"survivorship agreements" and considering them as
aleatory contracts. 13
The petition is meritorious.
The conveyance in question is not, first of all, one of
mortis causa, which should be embodied in a will. A will
has been defined as "a personal, solemn, revocable and
174
free act by which a capacitated person disposes of his
property and rights and declares or complies with duties
to take effect after his death." 14 In other words, the
bequest or device must pertain to the testator. 15 In
this case, the monies subject of savings account No.
35342-038 were in the nature of conjugal funds In the
case relied on, Rivera v. People's Bank and Trust Co.,
16 we rejected claims that a survivorship agreement
purports to deliver one party's separate properties in
favor of the other, but simply, their joint holdings:
xxx xxx xxx
... Such conclusion is evidently predicated on the
assumption that Stephenson was the exclusive owner of
the funds-deposited in the bank, which assumption was
in turn based on the facts (1) that the account was
originally opened in the name of Stephenson alone and
(2) that Ana Rivera "served only as housemaid of the
deceased." But it not infrequently happens that a person
deposits money in the bank in the name of another; and
in the instant case it also appears that Ana Rivera served
her master for about nineteen years without actually
receiving her salary from him. The fact that
subsequently Stephenson transferred the account to the
name of himself and/or Ana Rivera and executed with
the latter the survivorship agreement in question
although there was no relation of kinship between them
but only that of master and servant, nullifies the
assumption that Stephenson was the exclusive owner of
the bank account. In the absence, then, of clear proof
to the contrary, we must give full faith and credit to the
certificate of deposit which recites in effect that the
funds in question belonged to Edgar Stephenson and
Ana Rivera; that they were joint (and several) owners
thereof; and that either of them could withdraw any part
or the whole of said account during the lifetime of both,
and the balance, if any, upon the death of either,
belonged to the survivor. 17
xxx xxx xxx
In Macam v. Gatmaitan, 18 it was held:
xxx xxx xxx
This Court is of the opinion that Exhibit C is an aleatory
contract whereby, according to article 1790 of the Civil
Code, one of the parties or both reciprocally bind
themselves to give or do something as an equivalent for
that which the other party is to give or do in case of the
occurrence of an event which is uncertain or will happen
at an indeterminate time. As already stated, Leonarda
was the owner of the house and Juana of the Buick
automobile and most of the furniture. By virtue of
Exhibit C, Juana would become the owner of the house
in case Leonarda died first, and Leonarda would become
the owner of the automobile and the furniture if Juana
were to die first. In this manner Leonarda and Juana
reciprocally assigned their respective property to one
another conditioned upon who might die first, the time
of death determining the event upon which the
acquisition of such right by the one or the other
depended. This contract, as any other contract, is
binding upon the parties thereto. Inasmuch as Leonarda
had died before Juana, the latter thereupon acquired the
ownership of the house, in the same manner as
Leonarda would have acquired the ownership of the
automobile and of the furniture if Juana had died first.
19
xxx xxx xxx
There is no showing that the funds exclusively belonged
to one party, and hence it must be presumed to be
conjugal, having been acquired during the existence of
the marita. relations. 20
Neither is the survivorship agreement a donation inter
vivos, for obvious reasons, because it was to take effect
after the death of one party. Secondly, it is not a
donation between the spouses because it involved no
conveyance of a spouse's own properties to the other.
It is also our opinion that the agreement involves no
modification petition of the conjugal partnership, as held
by the Court of Appeals, 21 by "mere stipulation" 22 and
that it is no "cloak" 23 to circumvent the law on conjugal
property relations. Certainly, the spouses are not
prohibited by law to invest conjugal property, say, by
way of a joint and several bank account, more
commonly denominated in banking parlance as an
"and/or" account. In the case at bar, when the spouses
Vitug opened savings account No. 35342-038, they
merely put what rightfully belonged to them in a money-
making venture. They did not dispose of it in favor of
the other, which would have arguably been sanctionable
as a prohibited donation. And since the funds were
conjugal, it can not be said that one spouse could have
pressured the other in placing his or her deposits in the
money pool.
The validity of the contract seems debatable by reason
of its "survivor-take-all" feature, but in reality, that
contract imposed a mere obligation with a term, the
term being death. Such agreements are permitted by
the Civil Code. 24
Under Article 2010 of the Code:
ART. 2010. By an aleatory contract, one of the parties
or both reciprocally bind themselves to give or to do
something in consideration of what the other shall give
or do upon the happening of an event which is uncertain,
or which is to occur at an indeterminate time.
Under the aforequoted provision, the fulfillment of an
aleatory contract depends on either the happening of an
event which is (1) "uncertain," (2) "which is to occur at
an indeterminate time." A survivorship agreement, the
sale of a sweepstake ticket, a transaction stipulating on
the value of currency, and insurance have been held to
175
fall under the first category, while a contract for life
annuity or pension under Article 2021, et sequentia, has
been categorized under the second. 25 In either case,
the element of risk is present. In the case at bar, the
risk was the death of one party and survivorship of the
other.

However, as we have warned:

xxx xxx xxx

But although the survivorship agreement is per se not

contrary to law its operation or effect may be violative
of the law. For instance, if it be shown in a given case
that such agreement is a mere cloak to hide an
inofficious donation, to transfer property in fraud of
creditors, or to defeat the legitime of a forced heir, it
may be assailed and annulled upon such grounds. No
such vice has been imputed and established against the
agreement involved in this case. 26

xxx xxx xxx

There is no demonstration here that the survivorship

agreement had been executed for such unlawful
purposes, or, as held by the respondent court, in order
to frustrate our laws on wills, donations, and conjugal
partnership.

The conclusion is accordingly unavoidable that Mrs.

Vitug having predeceased her husband, the latter has
acquired upon her death a vested right over the
amounts under savings account No. 35342-038 of the
Bank of America. Insofar as the respondent court
ordered their inclusion in the inventory of assets left by
Mrs. Vitug, we hold that the court was in error. Being
the separate property of petitioner, it forms no more
part of the estate of the deceased.

WHEREFORE, the decision of the respondent appellate

court, dated June 29, 1987, and its resolution, dated
February 9, 1988, are SET ASIDE.

No costs.

SO ORDERED.

176
Seangio vs. Reyes (G.R. No. 149753, November
27, 2006)
G.R. Nos. 140371-72 November 27, 2006
DY YIENG SEANGIO, BARBARA D. SEANGIO and
VIRGINIA D. SEANGIO, Petitioners,
vs.
HON. AMOR A. REYES, in her capacity as Presiding
Judge, Regional Trial Court, National Capital Judicial
Region, Branch 21, Manila, ALFREDO D. SEANGIO,
ALBERTO D. SEANGIO, ELISA D. SEANGIO-SANTOS,
VICTOR D. SEANGIO, ALFONSO D. SEANGIO, SHIRLEY
D. SEANGIO-LIM, BETTY D. SEANGIO-OBAS and JAMES
D. SEANGIO, Respondents.
DECISION
AZCUNA, J.:
This is a petition for certiorari1 with application for the
issuance of a writ of preliminary injunction and/or
temporary restraining order seeking the nullification of
the orders, dated August 10, 1999 and October 14,
1999, of the Regional Trial Court of Manila, Branch 21
(the RTC), dismissing the petition for probate on the
ground of preterition, in the consolidated cases,
docketed as SP. Proc. No. 98-90870 and SP. Proc. No.
99-93396, and entitled, "In the Matter of the Intestate
Estate of Segundo C. Seangio v. Alfredo D. Seangio, et
al." and "In the Matter of the Probate of the Will of
Segundo C. Seangio v. Dy Yieng Seangio, Barbara D.
Seangio and Virginia Seangio."
The facts of the cases are as follows:
On September 21, 1988, private respondents filed a
petition for the settlement of the intestate estate of the
late Segundo Seangio, docketed as Sp. Proc. No. 98–
90870 of the RTC, and praying for the appointment of
private respondent Elisa D. Seangio–Santos as special
administrator and guardian ad litem of petitioner Dy
Yieng Seangio.
Petitioners Dy Yieng, Barbara and Virginia, all surnamed
Seangio, opposed the petition. They contended that: 1)
Dy Yieng is still very healthy and in full command of her
faculties; 2) the deceased Segundo executed a general
power of attorney in favor of Virginia giving her the
power to manage and exercise control and supervision
over his business in the Philippines; 3) Virginia is the
most competent and qualified to serve as the
administrator of the estate of Segundo because she is a
certified public accountant; and, 4) Segundo left a
holographic will, dated September 20, 1995,
disinheriting one of the private respondents, Alfredo
Seangio, for cause. In view of the purported holographic
will, petitioners averred that in the event the decedent
is found to have left a will, the intestate proceedings are
to be automatically suspended and replaced by the
proceedings for the probate of the will.
On April 7, 1999, a petition for the probate of the
holographic will of Segundo, docketed as SP. Proc. No.
99–93396, was filed by petitioners before the RTC. They
likewise reiterated that the probate proceedings should
take precedence over SP. Proc. No. 98–90870 because
testate proceedings take precedence and enjoy priority
over intestate proceedings.2
The document that petitioners refer to as Segundo’s
holographic will is quoted, as follows:
Kasulatan sa pag-aalis ng mana
Tantunin ng sinuman
Ako si Segundo Seangio Filipino may asawa naninirahan
sa 465-A Flores St., Ermita, Manila at nagtatalay ng
maiwanag na pag-iisip at disposisyon ay tahasan at
hayagang inaalisan ko ng lahat at anumang mana ang
paganay kong anak na si Alfredo Seangio dahil siya ay
naging lapastangan sa akin at isan beses siya ng sasalita
ng masama harapan ko at mga kapatid niya na si
Virginia Seangio labis kong kinasama ng loob ko at
sasabe rin ni Alfredo sa akin na ako nasa ibabaw gayon
gunit daratin ang araw na ako nasa ilalim siya at siya
nasa ibabaw.
Labis kong ikinasama ng loob ko ang gamit ni Alfredo
ng akin pagalan para makapagutang na kuarta siya at
kanya asawa na si Merna de los Reyes sa China
Bangking Corporation na millon pesos at hindi ng
babayad at hindi ng babayad ito ay nagdulot sa aking
ng malaking kahihiya sa mga may-ari at stockholders
ng China Banking.
At ikinagalit ko pa rin ang pagkuha ni Alfredo at ng
kanyang asawa na mga custome[r] ng Travel Center of
the Philippines na pinagasiwaan ko at ng anak ko si
Virginia.
Dito ako nagalit din kaya gayon ayoko na bilanin si
Alfredo ng anak ko at hayanan kong inaalisan ng lahat
at anoman mana na si Alfredo at si Alfredo Seangio ay
hindi ko siya anak at hindi siya makoha mana.
Nila[g]daan ko ngayon ika 20 ng Setyembre 1995 sa
longsod ng Manila sa harap ng tatlong saksi. 3
(signed)
Segundo Seangio
Nilagdaan sa harap namin
(signed)
Dy Yieng Seangio (signed)
Unang Saksi ikalawang saksi
177
(signed)
ikatlong saksi
On May 29, 1999, upon petitioners’ motion, SP. Proc.
No. 98–90870 and SP. Proc. No. 99–93396 were
consolidated.4
On July 1, 1999, private respondents moved for the
dismissal of the probate proceedings5 primarily on the
ground that the document purporting to be the
holographic will of Segundo does not contain any
disposition of the estate of the deceased and thus does
not meet the definition of a will under Article 783 of the
Civil Code. According to private respondents, the will
only shows an alleged act of disinheritance by the
decedent of his eldest son, Alfredo, and nothing else;
that all other compulsory heirs were not named nor
instituted as heir, devisee or legatee, hence, there is
preterition which would result to intestacy. Such being
the case, private respondents maintained that while
procedurally the court is called upon to rule only on the
extrinsic validity of the will, it is not barred from delving
into the intrinsic validity of the same, and ordering the
dismissal of the petition for probate when on the face of
the will it is clear that it contains no testamentary
disposition of the property of the decedent.
Petitioners filed their opposition to the motion to dismiss
contending that: 1) generally, the authority of the
probate court is limited only to a determination of the
extrinsic validity of the will; 2) private respondents
question the intrinsic and not the extrinsic validity of the
will; 3) disinheritance constitutes a disposition of the
estate of a decedent; and, 4) the rule on preterition does
not apply because Segundo’s will does not constitute a
universal heir or heirs to the exclusion of one or more
compulsory heirs.6
On August 10, 1999, the RTC issued its assailed order,
dismissing the petition for probate proceedings:
A perusal of the document termed as "will" by
oppositors/petitioners Dy Yieng Seangio, et al., clearly
shows that there is preterition, as the only heirs
mentioned thereat are Alfredo and Virginia. [T]he other
heirs being omitted, Article 854 of the New Civil Code
thus applies. However, insofar as the widow Dy Yieng
Seangio is concerned, Article 854 does not apply, she
not being a compulsory heir in the direct line.
As such, this Court is bound to dismiss this petition, for
to do otherwise would amount to an abuse of discretion.
The Supreme Court in the case of Acain v. Intermediate
Appellate Court [155 SCRA 100 (1987)] has made its
position clear: "for … respondents to have tolerated the
probate of the will and allowed the case to progress
when, on its face, the will appears to be intrinsically void
… would have been an exercise in futility. It would have
meant a waste of time, effort, expense, plus added
futility. The trial court could have denied its probate
outright or could have passed upon the intrinsic validity
of the testamentary provisions before the extrinsic
validity of the will was resolved (underscoring supplied).
WHEREFORE, premises considered, the Motion to
Suspend Proceedings is hereby DENIED for lack of
merit. Special Proceedings No. 99–93396 is hereby
DISMISSED without pronouncement as to costs.
SO ORDERED.7
Petitioners’ motion for reconsideration was denied by
the RTC in its order dated October 14, 1999.
Petitioners contend that:
THE RESPONDENT JUDGE ACTED IN EXCESS OF HER
JURISDICTION OR WITH GRAVE ABUSE OF DISCRETION
AMOUNTING TO LACK OR EXCESS OF JURISDICTION
AND DECIDED A QUESTION OF LAW NOT IN ACCORD
WITH LAW AND JURISPRUDENCE IN ISSUING THE
QUESTIONED ORDERS, DATED 10 AUGUST 1999 AND
14 OCTOBER 1999 (ATTACHMENTS "A" AND "B"
HEREOF) CONSIDERING THAT:
I
THE RESPONDENT JUDGE, WITHOUT EVEN COMPLYING
WITH SECTIONS 3 AND 4 OF RULE 76 OF THE RULES
OF COURT ON THE PROPER PROCEDURE FOR SETTING
THE CASE FOR INITIAL HEARING FOR THE
ESTABLISHMENT OF THE JURISDICTIONAL FACTS,
DISMISSED THE TESTATE CASE ON THE ALLEGED
GROUND THAT THE TESTATOR’S WILL IS VOID
ALLEGEDLY BECAUSE OF THE EXISTENCE OF
PRETERITION, WHICH GOES INTO THE INTRINSIC
VALIDITY OF THE WILL, DESPITE THE FACT THAT IT IS
A SETTLED RULE THAT THE AUTHORITY OF PROBATE
COURTS IS LIMITED ONLY TO A DETERMINATION OF
THE EXTRINSIC VALIDITY OF THE WILL, I.E., THE DUE
EXECUTION THEREOF, THE TESTATOR’S
TESTAMENTARY CAPACITY AND THE COMPLIANCE
WITH THE REQUISITES OR SOLEMNITIES PRESCRIBED
BY LAW;
II
EVEN ASSUMING ARGUENDO THAT THE RESPONDENT
JUDGE HAS THE AUTHORITY TO RULE UPON THE
INTRINSIC VALIDITY OF THE WILL OF THE TESTATOR,
IT IS INDUBITABLE FROM THE FACE OF THE
TESTATOR’S WILL THAT NO PRETERITON EXISTS AND
THAT THE WILL IS BOTH INTRINSICALLY AND
EXTRINSICALLY VALID; AND,
III
RESPONDENT JUDGE WAS DUTY BOUND TO SUSPEND
THE PROCEEDINGS IN THE INTESTATE CASE
CONSIDERING THAT IT IS A SETTLED RULE THAT
178
TESTATE PROCEEDINGS TAKE PRECEDENCE OVER
INTESTATE PROCEEDINGS.
Petitioners argue, as follows:
First, respondent judge did not comply with Sections 3
and 4 of Rule 76 of the Rules of Court which respectively
mandate the court to: a) fix the time and place for
proving the will when all concerned may appear to
contest the allowance thereof, and cause notice of such
time and place to be published three weeks successively
previous to the appointed time in a newspaper of
general circulation; and, b) cause the mailing of said
notice to the heirs, legatees and devisees of the testator
Segundo;
Second, the holographic will does not contain any
institution of an heir, but rather, as its title clearly
states,Kasulatan ng Pag-Aalis ng Mana, simply contains
a disinheritance of a compulsory heir. Thus, there is no
preterition in the decedent’s will and the holographic will
on its face is not intrinsically void;
Third, the testator intended all his compulsory heirs,
petitioners and private respondents alike, with the sole
exception of Alfredo, to inherit his estate. None of the
compulsory heirs in the direct line of Segundo were
preterited in the holographic will since there was no
institution of an heir;
Fourth, inasmuch as it clearly appears from the face of
the holographic will that it is both intrinsically and
extrinsically valid, respondent judge was mandated to
proceed with the hearing of the testate case; and,
Lastly, the continuation of the proceedings in the
intestate case will work injustice to petitioners, and will
render nugatory the disinheritance of Alfredo.
The purported holographic will of Segundo that was
presented by petitioners was dated, signed and written
by him in his own handwriting. Except on the ground of
preterition, private respondents did not raise any issue
as regards the authenticity of the document.
The document, entitled Kasulatan ng Pag-Aalis ng Mana,
unmistakably showed Segundo’s intention of excluding
his eldest son, Alfredo, as an heir to his estate for the
reasons that he cited therein. In effect, Alfredo was
disinherited by Segundo.
For disinheritance to be valid, Article 916 of the Civil
Code requires that the same must be effected through
a will wherein the legal cause therefor shall be specified.
With regard to the reasons for the disinheritance that
were stated by Segundo in his document, the Court
believes that the incidents, taken as a whole, can be
considered a form of maltreatment of Segundo by his
son, Alfredo, and that the matter presents a sufficient
cause for the disinheritance of a child or descendant
under Article 919 of the Civil Code:
Article 919. The following shall be sufficient causes for
the disinheritance of children and descendants,
legitimate as well as illegitimate:
(1) When a child or descendant has been found guilty of
an attempt against the life of the testator, his or her
spouse, descendants, or ascendants;
(2) When a child or descendant has accused the testator
of a crime for which the law prescribes imprisonment for
six years or more, if the accusation has been found
groundless;
(3) When a child or descendant has been convicted of
adultery or concubinage with the spouse of the testator;
(4) When a child or descendant by fraud, violence,
intimidation, or undue influence causes the testator to
make a will or to change one already made;
(5) A refusal without justifiable cause to support the
parents or ascendant who disinherit such child or
descendant;
(6) Maltreatment of the testator by word or deed, by the
child or descendant;8
(7) When a child or descendant leads a dishonorable or
disgraceful life;
(8) Conviction of a crime which carries with it the
penalty of civil interdiction.
Now, the critical issue to be determined is whether the
document executed by Segundo can be considered as a
holographic will.
A holographic will, as provided under Article 810 of the
Civil Code, must be entirely written, dated, and signed
by the hand of the testator himself. It is subject to no
other form, and may be made in or out of the
Philippines, and need not be witnessed.
Segundo’s document, although it may initially come
across as a mere disinheritance instrument, conforms to
the formalities of a holographic will prescribed by law. It
is written, dated and signed by the hand of Segundo
himself. An intent to dispose mortis causa[9] can be
clearly deduced from the terms of the instrument, and
while it does not make an affirmative disposition of the
latter’s property, the disinheritance of Alfredo,
nonetheless, is an act of disposition in itself. In other
words, the disinheritance results in the disposition of the
property of the testator Segundo in favor of those who
would succeed in the absence of Alfredo.10
179
Moreover, it is a fundamental principle that the intent or SO ORDERED.
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 heir16 to the
exclusion of his other compulsory heirs. The mere
mention of the name of one of the petitioners, Virginia,
in the document did not operate to institute her as the
universal heir. Her name was included plainly as a
witness to the altercation between Segundo and his son,
Alfredo.1âwphi1

Considering that the questioned document is Segundo’s

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

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

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

WHEREFORE, the petition is GRANTED. The Orders of

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

No costs.

180
181

ARTICLE 784.
Castañeda vs. Alemany (3 Phil 426)
G.R. No. 1439 March 19, 1904
ANTONIO CASTAÑEDA, plaintiff-appellee,
vs.
JOSE E. ALEMANY, defendant-appellant.
Ledesma, Sumulong and Quintos for appellant.
The court erred in holding that all legal formalities had
been complied with in the execution of the will of Doña
Juana Moreno, as the proof shows that the said will was
not written in the presence of under the express
direction of the testratrix as required by section 618 of
the Code of Civil Procedure.
Antonio V. Herrero for appellee.
The grounds upon which a will may be disallowed are
limited to those mentioned in section 634 of the Code of
Civil Procedure.
WILLARD, J.:
(1) The evidence in this case shows to our satisfaction
that the will of Doña Juana Moreno was duly signed by
herself in the presence of three witnesses, who signed
it as witnesses in the presence of the testratrix and of
each other. It was therefore executed in conformity with
law.
There is nothing in the language of section 618 of the
Code of Civil Procedure which supports the claim of the
appellants that the will must be written by the testator
himself or by someone else in his presence and under
his express direction. That section requires (1) that the
will be in writing and (2) either that the testator sign it
himself or, if he does sign it, that it be signed by some
one in his presence and by his express direction. Who
does the mechanical work of writing the will is a matter
of indifference. The fact, therefore, that in this case the
will was typewritten in the office of the lawyer for the
testratrix is of no consequence. The English text of
section 618 is very plain. The mistakes in translation
found in the first Spanish edition of the code have been
corrected in the second.
(2) To establish conclusively as against everyone, and
once for all, the facts that a will was executed with the
formalities required by law and that the testator was in
a condition to make a will, is the only purpose of the
proceedings under the new code for the probate of a
will. (Sec. 625.) The judgment in such proceedings
determines and can determine nothing more. In them
the court has no power to pass upon the validity of any
provisions made in the will. It can not decide, for
example, that a certain legacy is void and another one
valid. It could not in this case make any decision upon
the question whether the testratrix had the power to
appoint by will a guardian for the property of her
children by her first husband, or whether the person so
appointed was or was not a suitable person to discharge
such trust.
All such questions must be decided in some other
proceeding. The grounds on which a will may be
disallowed are stated the section 634. Unless one of
those grounds appears the will must be allowed. They
all have to do with the personal condition of the testator
at the time of its execution and the formalities
connected therewith. It follows that neither this court
nor the court below has any jurisdiction in his
proceedings to pass upon the questions raised by the
appellants by the assignment of error relating to the
appointment of a guardian for the children of the
deceased.
It is claimed by the appellants that there was no
testimony in the court below to show that the will
executed by the deceased was the same will presented
to the court and concerning which this hearing was had.
It is true that the evidence does not show that the
document in court was presented to the witnesses and
identified by them, as should have been done. But we
think that we are justified in saying that it was assumed
by all the parties during the trial in the court below that
the will about which the witnesses were testifying was
the document then in court. No suggestion of any kind
was then made by the counsel for the appellants that it
was not the same instrument. In the last question put
to the witness Gonzales the phrase "this will" is used by
the counsel for the appellants. In their argument in that
court, found on page 15 of the record, they treat the
testimony of the witnesses as referring to the will
probate they were then opposing.
The judgment of the court below is affirmed, eliminating
therefrom, however, the clause "el cual debera
ejecutarse fiel y exactamente en todas sus partes." The
costs of this instance will be charged against the
appellants.
182
183

ARTICLE 788.
Dizon Rivera vs. Dizon (33 SCRA 554)
G.R. No. L-24561 June 30, 1970
MARINA DIZON-RIVERA, executrix-appellee,
vs.
ESTELA DIZON, TOMAS V. DIZON, BERNARDITA DIZON,
JOSEFINA DIZON, ANGELINA DIZON and LILIA DIZON,
oppositors-appellants.
Punzalan, Yabut & Eusebio for executrix-appellee.
Leonardo Abola for oppositors-appellants.
TEEHANKEE, J.:
Appeal from orders of the Court of First Instance of
Pampanga approving the Executrix-appellee's project of
partition instead of Oppositors-Appellants' proposed
counter-project of partition. 1
On January 28, 1961, the testatrix, Agripina J. Valdez,
a widow, died in Angeles, Pampanga, and was survived
by seven compulsory heirs, to wit, six legitimate
children named Estela Dizon, Tomas V. Dizon,
Bernardita Dizon, Marina Dizon (herein executrix-
appellee), Angelina Dizon and Josefina Dizon, and a
legitimate granddaughter named Lilia Dizon, who is the
only legitimate child and heir of Ramon Dizon, a pre-
deceased legitimate son of the said decedent. Six of
these seven compulsory heirs (except Marina Dizon, the
executrix-appellee) are the oppositors-appellants.
The deceased testatrix left a last will executed on
February 2, 1960 and written in the Pampango dialect.
Named beneficiaries in her will were the above-named
compulsory heirs, together with seven other legitimate
grandchildren, namely Pablo Rivera, Jr., Gilbert D.
Garcia, Cayetano Dizon, Francisco Rivera, Agripina
Ayson, Jolly Jimenez and Laureano Tiambon.
In her will, the testatrix divided, distributed and
disposed of all her properties appraised at
P1,801,960.00 (except two small parcels of land
appraised at P5,849.60, household furniture valued at
P2,500.00, a bank deposit in the sum of P409.95 and
ten shares of Pampanga Sugar Development Company
valued at P350.00) among her above-named heirs.
Testate proceedings were in due course commenced 2
and by order dated March 13, 1961, the last will and
testament of the decedent was duly allowed and
admitted to probate, and the appellee Marina Dizon-
Rivera was appointed executrix of the testatrix' estate,
and upon her filing her bond and oath of office, letters
testamentary were duly issued to her.
After the executrix filed her inventory of the estate, Dr.
Adelaido Bernardo of Angeles, Pampanga was appointed
commissioner to appraise the properties of the estate.
He filed in due course his report of appraisal and the
same was approved in toto by the lower court on
December 12, 1963 upon joint petition of the parties.
The real and personal properties of the testatrix at the
time of her death thus had a total appraised value of
P1,811,695.60, and the legitime of each of the seven
compulsory heirs amounted to P129,362.11. 3 (¹/7 of
the half of the estate reserved for the legitime of
legitimate children and descendants). 4 In her will, the
testatrix "commanded that her property be divided" in
accordance with her testamentary disposition, whereby
she devised and bequeathed specific real properties
comprising practically the entire bulk of her estate
among her six children and eight grandchildren. The
appraised values of the real properties thus respectively
devised by the testatrix to the beneficiaries named in
her will, are as follows:
1. Estela Dizon ....................................... P
98,474.80
2. Angelina Dizon .................................. 106,307.06
3. Bernardita Dizon .................................. 51,968.17
4. Josefina Dizon ...................................... 52,056.39
5. Tomas Dizon .......................................
131,987.41
6. Lilia Dizon ..............................................
72,182.47
7. Marina Dizon .....................................
1,148,063.71
8. Pablo Rivera, Jr. ......................................
69,280.00
9. Lilia Dizon, Gilbert Garcia,
Cayetano Dizon, Francisco Rivera,
Agripina Ayson, Dioli or Jolly
Jimenez, Laureano Tiamzon ................. 72,540.00
Total Value ...................... P1,801,960.01
184
The executrix filed her project of partition dated
February 5, 1964, in substance adjudicating the estate
as follows:
(1) with the figure of P129,254.96 as legitime for a basis
Marina (exacultrix-appellee) and Tomas (appellant) are
admittedly considered to have received in the will more
than their respective legitime, while the rest of the
appellants, namely, Estela, Bernardita, Angelina,
Josefina and Lilia received less than their respective
legitime;
(2) thus, to each of the latter are adjudicated the
properties respectively given them in the will, plus cash
and/or properties, to complete their respective legitimes
to P129,254.96; (3) on the other hand, Marina and
Tomas are adjudicated the properties that they received
in the will less the cash and/or properties necessary to
complete the prejudiced legitime mentioned in number
2 above;
(4) the adjudications made in the will in favor of the
grandchildren remain untouched.<äre||anº•1àw>
On the other hand oppositors submitted their own
counter-project of partition dated February 14, 1964,
wherein they proposed the distribution of the estate on
the following basis:
(a) all the testamentary dispositions were proportionally
reduced to the value of one-half (½) of the entire estate,
the value of the said one-half (½) amounting to
P905,534.78; (b) the shares of the Oppositors-
Appellants should consist of their legitime, plus the
devises in their favor proportionally reduced; (c) in
payment of the total shares of the appellants in the
entire estate, the properties devised to them plus other
properties left by the Testatrix and/or cash are
adjudicated to them; and (d) to the grandchildren who
are not compulsory heirs are adjudicated the properties
respectively devised to them subject to reimbursement
by Gilbert D. Garcia, et al., of the sums by which the
devise in their favor should be proportionally reduced.
Under the oppositors' counter-project of partition, the
testamentary disposition made by the testatrix of
practically her whole estate of P1,801,960.01, as above
stated, were proposed to be reduced to the amounts set
forth after the names of the respective heirs and
devisees totalling one-half thereof as follows:
1. Estela Dizon ........................................... P to give effect to the last wishes of the testatrix."
49,485.56
2. Angelina Dizon .........................................
53,421.42
3. Bernardita Dizon .......................................
26,115.04
4. Josefina Dizon ..........................................
26,159.38
5. Tomas V. Dizon .........................................
65,874.04
6. Lilia Dizon ..................................................
36,273.13
7. Marina Dizon ...........................................
576,938.82
8. Pablo Rivera, Jr. .........................................
34,814.50
9. Grandchildren Gilbert Garcia et al .......... 36,452.80
T o t a l ...................................................
P905,534.78
while the other half of the estate (P905,534.78) would
be deemed as constituting the legitime of the executrix-
appellee and oppositors-appellants, to be divided
among them in seven equal parts of P129,362.11 as
their respective legitimes.
The lower court, after hearing, sustained and approved
the executrix' project of partition, ruling that "(A)rticles
906 and 907 of the New Civil Code specifically provide
that when the legitime is impaired or prejudiced, the
same shall be completed and satisfied. While it is true
that this process has been followed and adhered to in
the two projects of partition, it is observed that the
executrix and the oppositors differ in respect to the
source from which the portion or portions shall be taken
in order to fully restore the impaired legitime. The
proposition of the oppositors, if upheld, will substantially
result in a distribution of intestacy, which is in
controversion of Article 791 of the New Civil Code"
adding that "the testatrix has chosen to favor certain
heirs in her will for reasons of her own, cannot be
doubted. This is legally permissible within the limitation
of the law, as aforecited." With reference to the payment
in cash of some P230,552.38, principally by the
executrix as the largest beneficiary of the will to be paid
to her five co-heirs, the oppositors (excluding Tomas
Dizon), to complete their impaired legitimes, the lower
court ruled that "(T)he payment in cash so as to make
the proper adjustment to meet with the requirements of
the law in respect to legitimes which have been impaired
is, in our opinion, a practical and valid solution in order
From the lower court's orders of approval, oppositors-
appellants have filed this appeal, and raise anew the
following issues: .
1. Whether or not the testamentary dispositions made
in the testatrix' will are in the nature of devises
185
imputable to the free portion of her estate, and
therefore subject to reduction;
2. Whether the appellants are entitled to the devise plus
their legitime under Article 1063, or merely to demand
completion of their legitime under Article 906 of the Civil
Code; and
3. Whether the appellants may be compelled to accept
payment in cash on account of their legitime, instead of
some of the real properties left by the Testatrix;
which were adversely decided against them in the
proceedings below.
The issues raised present a matter of determining the
avowed intention of the testatrix which is "the life and
soul of a will." 5 In consonance therewith, our Civil Code
included the new provisions found in Articles 788 and
791 thereof that "(I)f a testamentary disposition admits
of different interpretations, in case of doubt, that
interpretation by which the disposition is to be operative
shall be preferred" and "(T)he 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." In Villanueva vs. Juico 6 for
violation of these rules of interpretation as well as of
Rule 123, section 59 of the old Rules of Court, 7 the
Court, speaking through Mr. Justice J.B.L. Reyes,
overturned the lower court's decision and stressed that
"the intention and wishes of the testator, when clearly
expressed in his will, constitute the fixed law of
interpretation, and all questions raised at the trial,
relative to its execution and fulfillment, must be settled
in accordance therewith, following the plain and literal
meaning of the testator's words, unless it clearlyappears
that his intention was otherwise." 8
The testator's wishes and intention constitute the first
and principal law in the matter of testaments, and to
paraphrase an early decision of the Supreme Court of
Spain, 9 when expressed clearly and precisely in his last
will amount to the only law whose mandate must
imperatively be faithfully obeyed and complied with by
his executors, heirs and devisees and legatees, and
neither these interested parties nor the courts may
substitute their own criterion for the testator's will.
Guided and restricted by these fundamental premises,
the Court finds for the appellee.
1. Decisive of the issues at bar is the fact that the
testatrix' testamentary disposition was in the nature of
a partition of her estate by will. Thus, in the third
paragraph of her will, after commanding that upon her
death all her obligations as well as the expenses of her
last illness and funeral and the expenses for probate of
her last will and for the administration of her property
in accordance with law, be paid, she expressly provided
that "it is my wish and I command that my property be
divided" in accordance with the dispositions immediately
thereafter following, whereby she specified each real
property in her estate and designated the particular heir
among her seven compulsory heirs and seven other
grandchildren to whom she bequeathed the same. This
was a valid partition 10of her estate, as contemplated
and authorized in the first paragraph of Article 1080 of
the Civil Code, providing that "(S)hould 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." This
right of a testator to partition his estate is subject only
to the right of compulsory heirs to their legitime. The
Civil Code thus provides the safeguard for the right of
such compulsory heirs:
ART. 906. Any compulsory heir to whom the testator has
left by any title less than the legitime belonging to him
may demand that the same be fully satisfied.
ART. 907. Testamentary dispositions that impair or
diminish the legitime of the compulsory heirs shall be
reduced on petition of the same, insofar as they may be
inofficious or excessive.
This was properly complied with in the executrix-
appellee's project of partition, wherein the five
oppositors-appellants namely Estela, Bernardita,
Angelina, Josefina and Lilia, were adjudicated the
properties respectively distributed and assigned to them
by the testatrix in her will, and the differential to
complete their respective legitimes of P129,362.11 each
were taken from the cash and/or properties of the
executrix-appellee, Marina, and their co-oppositor-
appellant, Tomas, who admittedly were favored by the
testatrix and received in the partition by will more than
their respective legitimes.
2. This right of a testator to partition his estate by will
was recognized even in Article 1056 of the old Civil Code
which has been reproduced now as Article 1080 of the
present Civil Code. The only amendment in the provision
was that Article 1080 "now permits any person (not a
testator, as under the old law) to partition his estate by
actinter vivos." 11 This was intended to repeal the then
prevailing doctrine 12 that for a testator to partition his
estate by an actinter vivos, he must first make a will
with all the formalities provided by law. Authoritative
commentators doubt the efficacy of the amendment 13
but the question does not here concern us, for this is a
clear case of partition by will, duly admitted to probate,
which perforce must be given full validity and effect.
Aside from the provisions of Articles 906 and 907 above
quoted, other codal provisions support the executrix-
appellee's project of partition as approved by the lower
court rather than the counter-project of partition
proposed by oppositors-appellants whereby they would
reduce the testamentary disposition or partition made
by the testatrix to one-half and limit the same, which
they would consider as mere devises or legacies, to one-
half of the estate as the disposable free portion, and
apply the other half of the estate to payment of the
186
legitimes of the seven compulsory heirs. Oppositors'
proposal would amount substantially to a distribution by
intestacy and pro tanto nullify the testatrix' will,
contrary to Article 791 of the Civil Code. It would further
run counter to the provisions of Article 1091 of the Civil
Code that "(A) partition legally made confers upon each
heir the exclusive ownership of the property adjudicated
to him."
3. In Habana vs. Imbo, 14 the Court upheld the
distribution made in the will of the deceased testator
Pedro Teves of two large coconut plantations in favor of
his daughter, Concepcion, as against adverse claims of
other compulsory heirs, as being a partition by will,
which should be respected insofar as it does not
prejudice the legitime of the compulsory heirs, in
accordance with Article 1080 of the Civil Code. In
upholding the sale made by Concepcion to a stranger of
the plantations thus partitioned in her favor in the
deceased's will which was being questioned by the other
compulsory heirs, the Court ruled that "Concepcion
Teves by operation of law, became the absolute owner
of said lots because 'A partition legally made confers
upon each heir the exclusive ownership of the property
adjudicated to him' (Article 1091, New Civil Code), from
the death of her ancestors, subject to rights and
obligations of the latter, and, she can not be deprived of
her rights thereto except by the methods provided for
by law (Arts. 657, 659, and 661, Civil Code). 15
Concepcion Teves could, as she did, sell the lots in
question as part of her share of the proposed partition
of the properties, especially when, as in the present
case, the sale has been expressly recognized by herself
and her co-heirs ..."
4. The burden of oppositors' contention is that the
testamentary dispositions in their favor are in the nature
of devises of real property, citing the testatrix' repeated
use of the words "I bequeath" in her assignment or
distribution of her real properties to the respective heirs.
From this erroneous premise, they proceed to the
equally erroneous conclusion that "the legitime of the
compulsory heirs passes to them by operation of law
and that the testator can only dispose of the free
portion, that is, the remainder of the estate after
deducting the legitime of the compulsory heirs ... and
all testamentary dispositions, either in the nature of
institution of heirs or of devises or legacies, have to be
taken from the remainder of the testator's estate
constituting the free portion." 16
Oppositors err in their premises, for the adjudications
and assignments in the testatrix' will of specific
properties to specific heirs cannot be considered all
devises, for it clearly appear from the whole context of
the will and the disposition by the testatrix of her whole
estate (save for some small properties of little value
already noted at the beginning of this opinion) that her
clear intention was to partition her whole estate through
her will. The repeated use of the words "I bequeath" in
her testamentary dispositions acquire no legal
significance, such as to convert the same into devises to
be taken solely from the free one-half disposable portion
of the estate. Furthermore, the testatrix' intent that her
testamentary dispositions were by way of adjudications
to the beneficiaries as heirs and not as mere devisees,
and that said dispositions were therefore on account of
the respective legitimes of the compulsory heirs is
expressly borne out in the fourth paragraph of her will,
immediately following her testamentary adjudications in
the third paragraph in this wise: "FOURTH: I likewise
command that in case any of those I named as my heirs
in this testament any of them shall die before I do, his
forced heirs under the law enforced at the time of my
death shall inherit the properties I bequeath to said
deceased." 17
Oppositors' conclusions necessarily are in error. The
testamentary dispositions of the testatrix, being
dispositions in favor of compulsory heirs, do not have to
be taken only from the free portion of the estate, as
contended, for the second paragraph of Article 842 of
the Civil Code precisely provides that "(O)ne 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." And even going by
oppositors' own theory of bequests, the second
paragraph of Article 912 Civil Code covers precisely the
case of the executrix-appellee, who admittedly was
favored by the testatrix with the large bulk of her estate
in providing that "(T)he devisee who is entitled to a
legitime may retain the entire property, provided its
value does not exceed that of the disposable portion and
of the share pertaining to him as legitime." For "diversity
of apportionment is the usual reason for making a
testament; otherwise, the decedent might as well die
intestate." 18 Fundamentally, of course, the dispositions
by the testatrix constituted a partition by will, which by
mandate of Article 1080 of the Civil Code and of the
other cited codal provisions upholding the primacy of the
testator's last will and testament, have to be respected
insofar as they do not prejudice the legitime of the other
compulsory heirs.
Oppositors' invoking of Article 1063 of the Civil Code
that "(P)roperty left by will is not deemed subject to
collation, if the testator has not otherwise provided, but
the legitime shall in any case remain unimpaired" and
invoking of the construction thereof given by some
authorities that "'not deemed subject to collation' in this
article really means not imputable to or chargeable
against the legitime", while it may have some
plausibility 19 in an appropriate case, has no application
in the present case. Here, we have a case of a
distribution and partition of the entire estate by the
testatrix, without her having made any previous
donations during her lifetime which would require
collation to determine the legitime of each heir nor
having left merely some properties by will which would
call for the application of Articles 1061 to 1063 of the
Civil Code on collation. The amount of the legitime of
the heirs is here determined and undisputed.
187
5. With this resolution of the decisive issue raised by
oppositors-appellants, the secondary issues are likewise
necessarily resolved. Their right was merely to demand
completion of their legitime under Article 906 of the Civil
Code and this has been complied with in the approved
project of partition, and they can no longer demand a
further share from the remaining portion of the estate,
as bequeathed and partitioned by the testatrix
principally to the executrix-appellee.

Neither may the appellants legally insist on their

legitime being completed with real properties of the
estate instead of being paid in cash, per the approved
project of partition. The properties are not available for
the purpose, as the testatrix had specifically partitioned
and distributed them to her heirs, and the heirs are
called upon, as far as feasible to comply with and give
effect to the intention of the testatrix as solemnized in
her will, by implementing her manifest wish of
transmitting the real properties intact to her named
beneficiaries, principally the executrix-appellee. The
appraisal report of the properties of the estate as filed
by the commissioner appointed by the lower court was
approved in toto upon joint petition of the parties, and
hence, there cannot be said to be any question — and
none is presented — as to fairness of the valuation
thereof or that the legitime of the heirs in terms of cash
has been understated. The plaint of oppositors that the
purchasing value of the Philippine peso has greatly
declined since the testatrix' death in January, 1961
provides no legal basis or justification for overturning
the wishes and intent of the testatrix. The transmission
of rights to the succession are transmitted from the
moment of death of the decedent (Article 777, Civil
Code) and accordingly, the value thereof must be
reckoned as of then, as otherwise, estates would never
be settled if there were to be a revaluation with every
subsequent fluctuation in the values of the currency and
properties of the estate. There is evidence in the record
that prior to November 25, 1964, one of the oppositors,
Bernardita, accepted the sum of P50,000.00 on account
of her inheritance, which, per the parties' manifestation,
20 "does not in any way affect the adjudication made to
her in the projects of partition of either party as the
same is a mere advance of the cash that she should
receive in both projects of partition." The payment in
cash by way of making the proper adjustments in order
to meet the requirements of the law on non-impairment
of legitimes as well as to give effect to the last will of
the testatrix has invariably been availed of and
sanctioned. 21 That her co-oppositors would receive
their cash differentials only now when the value of the
currency has declined further, whereas they could have
received them earlier, like Bernardita, at the time of
approval of the project of partition and when the peso's
purchasing value was higher, is due to their own
decision of pursuing the present appeal.

ACCORDINGLY, the orders appealed from are hereby

affirmed. Without cost.

188
Vda. De Villanueva vs. Juico (4 SCRA 550)
G.R. No. L-15737 February 28, 1962
LEONOR VILLAFLOR VDA. DE VILLANUEVA, plaintiff-
appellant,
vs.
DELFIN N. JUICO, in his capacity
Administrator of the testate estate
NEPOMUCENO,defendant-appellee.
Amado G. Salazar for plaintiff-appellant.
contrario, pasara a ser propiedad estos dichos legados
de mi sobrina nieta Leonor Villaflor.
The 12th clause of the will provided, however, that
Clauses 6th and 7th thereof would be deemed annulled
from the moment he bore any child with Doña Fausta
Nepomuceno. Said Clause 12th reads as follows: .
DUODECIMO: — Quedan anulados las parrafos 6.0 y 7.0
de este testamento que tratan de institucion de
as Judicial
herederos y los legados que se haran despues de mi
of FAUSTA
muerte a favor de mi esposa, en el momento que podre
tener la dicha de contrar con hijo y hijos legitimos o
legitimados, pues estos, conforme a ley seran mis
herederos.

Sycip, Salazar, Luna and Associates for defendant-
appellee.
REYES, J.B.L., J.:
Subject to this direct appeal to us on points of law is the
decision of the Court of First Instance of Rizal, in its Civil
Case No. Q-2809, dismissing plaintiff-appellant's
complaint for the recovery of certain properties that
were originally owned by the plaintiff's granduncle,
Nicolas Villaflor, and which he granted to his widow,
Doña Fausta Nepomuceno, bequeathing to her "su uso
y posesion mientras viva y no se case en segundas
nupcias".
The following facts appear of record: On October 9,
1908, Don Nicolas Villaflor, a wealthy man of Castillejos,
Zambales, executed a will in Spanish in his own
handwriting, devising and bequeathing in favor of his
wife, Dona Fausta Nepomuceno, one-half of all his real
and personal properties, giving the other half to his
brother Don Fausto Villaflor.
Clause 6th, containing the institution of heirs, reads as
follows: .
SEXTO — En virtud de las facultades que me conceden
las leyes, instituyo per mis unicos y universales
herederos de todos mis derechos y acciones a mi
hermano D. Fausto Villaflor y a mi esposa Da. Fausta
Nepomuceno para que partan todos mis bienes que me
pertenescan, en iguales partes, para despues de mi
muerte, exceptuando las donaciones y legados que,
abajo mi mas expontanea voluntad, lo hago en la forma
siguiente: .
SEPTIMO: — Lego para dispues de mi muerte a mi
esposa Da. Fausta Nepomuceno, en prueba de mi amor
y carino, los bienes, alhajas y muebles que a
continuacion se expresan; .
OCTAVO: — Que estos legades disfrutaria mi referida
esposa Da. Fausta Nepomuceno su uso y posesion
mientras viva y no se case en segundas nupcias, de la
Don Nicolas Villaflor died on March 3, 1922, without
begetting any child with his wife Doña Fausta
Nepomuceno. The latter, already a widow, thereupon
instituted Special Proceeding No. 203 of the Court of
First Instance of Zambales, for the settlement of her
husband's estate and in that proceeding, she was
appointed judicial administratrix. In due course of
administration, she submitted a project of partition, now
Exhibit "E". In the order of November 24, 1924, now
exhibit "C", the probate court approved the project of
partition and declared the proceeding closed. As the
project of partition, Exhibit "E", now shows Doña Fausta
Nepomuceno received by virtue thereof the ownership
and possession of a considerable amount of real and
personal estate. By virtue also of the said project of
partition, she received the use and possession of all the
real and personal properties mentioned and referred to
in Clause 7th of the will. The order approving the project
of partition (Exh. "C"), however, expressly provided that
approval thereof was "sin perjuicio de lo dispuesto en la
clausula 8.o del testamento de Nicolas Villaflor." .
On May 1, 1956, Doña Fausta Nepomuceno died without
having contracted a second marriage, and without
having begotten any child with the deceased Nicolas
Villaflor. Her estate is now being settled in Special
Proceeding No. Q-1563 in the lower court, with the
defendant Delfin N. Juico as the duly appointed and
qualified judicial administrator.
The plaintiff Leonor Villaflor Vda. de Villanueva is
admitted to be the same Leonor Villaflor mentioned by
Don Nicolas Villaflor in his will as his "sobrina nieta
Leonor Villaflor".
Plaintiff Leonor Villaflor instituted the present action
against the administrator of the estate of the widow
Fausta Nepomuceno, on February 8, 1958, contending
that upon the widow's death, said plaintiff became
vested with the ownership of the real and personal
properties bequeathed by the late Nicolas Villaflor to
clause 7 of his will, pursuant to its eight (8th) clause.
Defendant's position, adopted by the trial court, is that
the title to the properties aforesaid became absolutely

189
vested in the widow upon her death, on account of the
fact that she never remarried.
We agree with appellant that the plain desire and intent
of the testator, as manifested in clause 8 of his
testament, was to invest his widow with only a usufruct
or life tenure in the properties described in the seventh
clause, subject to the further condition (admitted by the
appellee) that if the widow remarried, her rights would
thereupon cease, even during her own lifetime. That the
widow was meant to have no more than a life interest
in those properties, even if she did not remarry at all, is
evident from the expressions used by the deceased "uso
y posesion mientras viva" (use and possession while
alive) in which the first half of the phrase "uso y
posesion" instead of "dominio" or "propiedad")
reinforces the second ("mientras viva"). The testator
plainly did not give his widow the full ownership of these
particular properties, but only the right to their
possession and use (or enjoyment) during her lifetime.
This is in contrast with the remainder of the estate in
which she was instituted universal heir together with the
testator's brother (clause 6). 1äwphï1.ñët
SEXTO: — En virtud de las facultades que me conceden
las leyes, instituyo por mis unicos y universales
herederos de todos mis derechos y acciones a mi
hermano D. Fausto Villaflor y a mi esposa Da. Fausta
Nepomuceno para que parten todos mis bienes que me
pertenescan, en iguales partes, para despues de mi
muerte, exceptuando las donaciones y legados que,
abajo mi mas expontanea voluntad, lo hago en la forma
siguiente.
The court below, in holding that the appellant Leonor
Villaflor, as reversionary legatee, could succeed to the
properties bequeathed by clause 7 of the testament only
in the event that the widow remarried, has
unwarrantedly discarded the expression "mientras
viva," and considered the words "uso y posesion" as
equivalent to "dominio" (ownership). In so doing, the
trial court violated Article 791 of the Civil Code of the
Philippines, as well as section 59 of Rule 123 of the Rules
of Court.
ART. 791. 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 one is to be preferred which will
prevent intestacy." .
SEC. 59. Instrument construed so as to give effect to all
provisions. — In the construction of an instrument
where there are several provisions or particulars, such
a construction is, if possible, to be adopted as will give
effect to all." .
Speculation as to the motives of the testator in imposing
the conditions contained in clause 7 of his testament
should not be allowed to obscure the clear and
unambiguous meaning of his plain words, which are
over the primary source in ascertaining his intent. It is
well to note that if the testator had intended to impose
as sole condition the non-remarriage of his widow, the
words "uso y posesion mientras viva" would have been
unnecessary, since the widow could only remarry during
her own lifetime.
The Civil Code, in Article 790, p. 1 (Article 675 of the
Code of 1889), expressly enjoins the following: .
ART. 790. The words of a will are to be taken in their
ordinary and grammatical sense, unless a clear intention
to use them in another sense can be gathered, and that
other can be ascertained." .
Technical words in a will are to be taken in their
technical sense, unless the context clearly indicates a
contrary intention, or unless it satisfactorily appears
that the will was drawn solely by the testator, and that
he was unacquainted with such technical sense. (675a)
In consonance with this rule, this Supreme Court has
laid the doctrine in In re Estate of Calderon, 26 Phil.,
233, that the intention and wishes of the testator, when
clearly expressed in his will, constitute the fixed law of
interpretation, and all questions raised at the trial,
relative to its execution and fulfillment, must be settled
in accordance therewith, following the plain and literal
meaning of the testator's words, unless it clearly
appears that his intention was otherwise. The same rule
is adopted by the Supreme Court of Spain (TS. Sent. 20
Marzo 1918; 28 Mayo 1918; 30 Abril 1913; 16 Enero
1915; 23 Oct. 1925).
La voluntad del testador, clara, precisa y
constantemente expresada al ordenar su ultimo
voluntad, es ley unica, imperativa y obligatoria que han
de obedecer y cumplir fieldmente albaceas, legatarios y
heredera, hoy sus sucesores, sin que esa voluntad
patente, que no ha menester de interpretaciones, pues
no ofrece la menor duda, pueda sustituirse, pues no
ofrece la menor duda, pueda sustituirse por ningun otro
criterio de alguna de los interesados, ni tampoco por el
judicial. (Tribunal Supremo of Spain, Sent. 20 March
1918) .
The American decisions invoked by appellee in his brief
inapplicable, because they involve cases where the only
condition imposed on the legatee was that she should
remain a widow. As already shown, the testament of
Don Nicolas Villaflor clearly and unmistakably provided
that his widow should have the possession and use of
the legacies while alive and did not remarry. It
necessarily follows that by the express provisions of the
8th clause of his will, the legacies should pass to the
testator's "sobrinanieta", appellant herein, upon the
widow's death, even if the widow never remarried in her
lifetime. Consequently, the widow had no right to retain
or dispose of the aforesaid properties, and her estate is
accountable to the reversionary legatee for their return,
190
unless they had been lost due to fortuitous event, or for
their value should rights of innocent third parties have
intervened.

PREMISES CONSIDERED, the decision appealed from is

reversed, and the appellant Leonor Villaflor Vda. de
VILLANUEVA is declared entitled to the ownership and
fruits of the properties described in clause 7 of the will
or testament, from the date of the death of Doña Fausta
Nepomuceno. The records are ordered remanded to the
court of origin for liquidation, accounting and further
proceedings conformably to this decision. Costs against
the Administrator-appellee.

191
Del Rosario vs. Del Rosario (2 Phil 321)
[G.R. No. 45761. April 28, 1939.]
JULIA DEL ROSARIO, ET AL., Plaintiffs-Appellants, v.
ANTONIO DEL ROSARIO, ET AL.,Defendants-Appellees.
SYLLABUS
1. LIQUIDATION OF CONJUCAL PARTNERSHIP; ACT No.
3176; PENDENCY OF TESTAMENTARY PROCEEDINGS
EXCLUDES ANY OTHER PROCEEDING AIMED AT THE
SAME PURPOSE. — Act No. 317(; only amends the
former law in the sense that upon the death of any of
the spouses the community property shall be liquidated
in the testamentary or intestate proceedings of the
deceased spouse. But whatever law might be applicable,
and even assuming that it was that prior to act No.
3176, the intestate of R. del R. not having been
commenced upon his death in 1895 until his widow F.
A. also in 1933, and the testamentary proceedings of F.
A. having been subsequently initiated, wherein, among
other things, the liquidation of her conjugal properties
with the deceased R. del R. should be made, the
pendency these testamentary proceedings of the
deceased wife excludes any other proceeding aimed at
the purpose (Zaide v. Concepcion and Quintana, 32
Phil., 403). At any rate, the plaintiffs have a right to
intervene in these proceedings as parties interested in
the liquidation and partition of the conjugal properties
of the deceased spouses R. del R. and F. A. among their
heirs.
DECISION
AVANCEÑA, C.J. :
The complaint alleges: That Ramon del Rosario and
Florencia Arcega were husband and wife, the former
having died in 1895 and the latter in 1933; that the
plaintiffs and the defendants are the heirs of both; that
Ramon del Rosario died without a will, leaving properties
of the conjugal partnership valued at P19,000; that after
the death of Ramon del Rosario, his widow Florencia
Arcega administered these properties and with the
products thereof acquired others, which are those
described in paragraph 9 of the complaint. It is,
moreover, inferred from the complaint that after the
death of Ramon del Rosario, his intestate was not
commenced and the conjugal properties were not
liquidated until Florencia Arcega died, after which the
latter’s testamentary proceedings were initiated and are
now in progress.
The plaintiffs bring this action to recover their share not
only in the conjugal properties left by Ramon del Rosario
but also in those acquired by Florencia Arcega with the
products of said properties.
A demurrer was interposed to the complaint on the
ground that there is another action pending between the
same parties and for the same cause of action; that
there is a defect of party plaintiffs and party defendants,
and that the complaint does not allege facts sufficient to
constitute a cause of action.
The court sustained this demurrer and dismissed the
case. From this resolution an appeal was taken.
Both in the Court of First Instance as well as in this
court, the parties discuss whether Act No. 3176, or the
former law, is applicable to the case. Act No. 3176 only
amends the former law in the sense that upon the death
of any of the spouses the community property shall be
liquidated in the testamentary or intestate proceedings
of the deceased spouse. But whatever law might be
applicable, and even assuming that it was that prior to
Act No. 3176, the intestate of Ramon del Rosario not
having been commenced upon his death in 1895 until
his widow Florencia Arcega also died in 1933, and the
testamentary proceedings of Florencia Arcega having
been subsequently initiated, wherein, among other
things, the liquidation of her conjugal properties with
the deceased Ramon del Rosario should be made, the
pendency of these testamentary proceedings of the
deceased wife excludes any other proceeding aimed at
the same purpose (Zaide v. Concepcion and Quintana,
32 Phil., 403). At any rate, the plaintiffs have a right to
intervene in these proceedings as parties interested in
the liquidation and partition of the conjugal properties
of the deceased spouses Ramon del Rosario and
Florencia Arcega among their heirs.
The appealed judgment is affirmed, with the costs to the
appellants. So ordered.
192
Balanay, Jr. vs. Martinez (64 SCRA 452, G.R. No.
L-39247 June 27, 1975)
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.:
Felix Balanay, Jr. appealed by certiorari from the order
of the Court of First Instance of Davao dated February
28, 1974, 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. 1808). The antecedents of the appeal
are as follows:
Leodegaria Julian, a native of Sta. Maria, Ilocos Sur,
died on February 12, 1973 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, 1973 for the probate of his mother's
notarial will dated September 5, 1970 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 1973)
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 18,
1973 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 18, 1973 "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, 1973 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 18, 1973 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 15, 1973.
In the meanwhile, another lawyer appeared in the case.
David O. Montaña, Sr., claiming to be the lawyer of
petitioner Felix Balanay, Jr. (his counsel of record was
Atty. Cabreros), filed a motion dated September 25,
1973 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
Montaña 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.
Montaña 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 15, 1973
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.
193
The lower court, acting on the motions of Atty. Montaña,
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. Montaña and Guyo that the
will was void. So, in its order of February 28, 1974 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 1 and 2, 1974. The lower
court did not abrogate its prior orders of June 18 and
October 15, 1973. The notice to creditors was issued on
April 1, 1974 and published on May 2, 9 and 16 in the
Davao Star in spite of petitioner's motion of April 17,
1974 that its publication be held in abeyance.
Felix Balanay, Jr., through a new counsel, Roberto M.
Sarenas, in a verified motion dated April 15, 1974,
asked for the reconsideration of the lower court's order
of February 28, 1974 on the ground that Atty. Montaña
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, 1974 addressed to Atty.
Montaña and signed by Felix Balanay, Jr., Beatriz V.
Solamo, Carolina B. Manguiob and Emilia B. Pabaonon,
wherein they terminated Montaña'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, 1974. It clarified that it
declared the will void on the basis of its own
independent assessment of its provisions and not
because of Atty. Montaña'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. 1527, 17 SCRA 449. Compare with
Sumilang vs. Ramagosa, L-23135, December 26, 1967,
21 SCRA 1369; Cacho vs. Udan, L-19996, April 30,
1965, 13 SCRA 693).1äwphï1.ñët
But the probate court erred in declaring, in its order of
February 28, 1974 that the will was void and in
converting the testate proceeding into an intestate
proceeding notwithstanding the fact that in its order of
June 18, 1973 , 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. 143, Civil Code;
Madrigal and Paterno vs. Rafferty and Concepcion, 38
Phil. 414). 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
1080 of the Civil Code which 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.
A parent who, in the interest of his or her family, 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. (1056a)
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 1080.
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. 1083, Civil Code).
Felix Balanay, Sr. could validly renounce his hereditary
rights and his one-half share of the conjugal partnership
(Arts. 179[1] and 1041, Civil Code) but insofar as said
194
renunciation partakes of a donation of his hereditary
rights and his one-half share in the conjugal estate (Art.
1060[1] 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 became 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 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. 170, 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).1äwphï1.ñët
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 18, 1973. 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 12, 1967, 21 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 18, 1972, 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-24561, June 30, 1970, 33
SCRA 554, 561). 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 791, 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, 1970, 31 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-19573, June 30, 1970, 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-25913, February 28, 1969, 27
SCRA 327, 341).
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.
195
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 1,
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 (See. 10, Rule 86
and sec. 1, 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, 1974 are set aside and its order of June
18, 1973, setting for hearing the petition for probate, is
affirmed. The lower court is directed to conduct further
proceedings in Special Case No. 1808 in consonance
with this opinion. Costs, against the private
respondents.

SO ORDERED.

196

ARTICLE 789.
Estate of Rigor vs. Rigor (89 S 493)
G.R. No. L-22036 April 30, 1979
TESTATE ESTATE OF THE LATE REVEREND FATHER
PASCUAL RIGOR. THE PARISH PRIEST OF THE ROMAN
CATHOLIC CHURCH OF VICTORIA, TARLAC, petitioner-
appellant,
vs.
BELINA RIGOR, NESTORA RIGOR, FRANCISCA
ESCOBAR DE RIGOR and JOVITA ESCOBAR DE
FAUSTO,respondents-appellees.
AQUINO, J.:
This case is about the efficaciousness or enforceability
of a devise of ricelands located at Guimba, Nueva Ecija,
with a total area of around forty- four hectares That
devise was made in the will of the late Father Pascual
Rigor, a native of Victoria Tarlac, in favor of his nearest
male relative who would study for the priesthood.
The parish priest of Victoria, who claimed to be a trustee
of the said lands, appealed to this Court from the
decision of the Court of Appeals affirming the order of
the probate court declaring that the said devise was
inoperative (Rigor vs. Parish Priest of the Roman
Catholic Church of Victoria, Tarlac, CA-G.R. No. 24319-
R, August 1, 1963).
The record discloses that Father Rigor, the parish priest
of Pulilan, Bulacan, died on August 9, 1935, leaving a
will executed on October 29, 1933 which was probated
by the Court of First Instance of Tarlac in its order of
December 5, 1935. Named as devisees in the will were
the testators nearest relatives, namely, his three
sisters: Florencia Rigor-Escobar, Belina Rigor-Manaloto
and Nestora Rigor-Quiambao. The testator gave a
devise to his cousin, Fortunato Gamalinda.
In addition, the will contained the following controversial
bequest (paragraphing supplied to facilitate
comprehension of the testamentary provisions):
Doy y dejo como legado CUATRO (4) PARCELAS de
terreno palayeros situados en el municipiooo de Guimba
de la provinciaaa de NUEVA ECIJA, cuyo num. de
CERTIFICADO DE TRANSFERENCIA DE TITULO SON; —
Titulo Num. 6530, mide 16,249 m. cuadrados de
superficie Titulo Num. 6548, mide 242,998 m.
cuadrados de superficie y annual 6525, mide 62,665 m.
cuadrados de superficie; y Titulo Num. 6521, mide
119,251 m. cuadrados de superficie; a cualquier
pariente mio varon mas cercano que estudie la carrera
eclesiatica hasta ordenarse de Presbiterado o sea
Sacerdote; las condiciones de estate legado son;
(1.a) Prohibe en absoluto la venta de estos terrenos
arriba situados objectos de este legado;
(2.a) Que el legatario pariente mio mas cercano tendra
derecho de empezar a gozar y administrar de este
legado al principiar a curzar la Sagrada Teologio, y
ordenado de Sacerdote, hasta su muerte; pero que
pierde el legatario este derecho de administrar y gozar
de este legado al dejar de continuar sus estudios para
ordenarse de Presbiterado (Sacerdote).
Que el legatario una vez Sacerdote ya estara obligado a
celebrar cada año VEINTE (20) Misas rezadas en
sufragio de mi alma y de mis padres difuntos, y si el
actual legatario, quedase excomulgado, IPSO FACTO se
le despoja este legado, y la administracion de esto
pasara a cargo del actual Parroco y sus sucesores de la
Iglecia Catolica de Victoria, Tarlac.
Y en intervalo de tiempo que no haya legatario
acondicionado segun lo arriba queda expresado, pasara
la administracion de este legado a cargo del actual
Parroco Catolico y sus sucesores, de Victoria, Tarlac.
El Parroco administrador de estate legado, acumulara,
anualmente todos los productos que puede tener estate
legado, ganando o sacando de los productos anuales el
CINCO (5) por ciento para su administracion, y los
derechos correspondientes de las VEINTE (20) Misas
rezadas que debiera el Parroco celebrar cada año,
depositando todo lo restante de los productos de estate
legado, en un banco, a nombre de estate legado.
To implement the foregoing bequest, the administratix
in 1940 submitted a project containing the following
item:
5. LEGACY OF THE CHURCH
That it be adjudicated in favor of the legacy purported
to be given to the nearest male relative who shall take
the priesthood, and in the interim to be administered by
the actual Catholic Priest of the Roman Catholic Church
of Victoria, Tarlac, Philippines, or his successors, the
real properties hereinbelow indicated, to wit:
Title No. Lot No. Area in Has. Tax Dec.
Ass. Value
T-6530 3663 1.6249 18740 P 340.00
T-6548 3445-C 24.2998 18730 7,290.00
T-6525 3670 6.2665 18736 1,880.00
T-6521 3666 11.9251 18733 3,580.00
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Total amount and value — 44.1163 P13,090.00
Judge Roman A. Cruz in his order of August 15, 1940,
approving the project of partition, directed that after
payment of the obligations of the estate (including the
sum of P3,132.26 due to the church of the Victoria
parish) the administratrix should deliver to the devisees
their respective shares.
It may be noted that the administratrix and Judge Cruz
did not bother to analyze the meaning and implications
of Father Rigor's bequest to his nearest male relative
who would study for the priesthood. Inasmuch as no
nephew of the testator claimed the devise and as the
administratrix and the legal heirs believed that the
parish priest of Victoria had no right to administer the
ricelands, the same were not delivered to that
ecclesiastic. The testate proceeding remained pending.
About thirteen years after the approval of the project of
partition, or on February 19, 1954, the parish priest of
Victoria filed in the pending testate proceeding a petition
praying for the appointment of a new administrator
(succeeding the deceased administration Florencia
Rigor), who should deliver to the church the said
ricelands, and further praying that the possessors
thereof be ordered to render an accounting of the fruits.
The probate court granted the petition. A new
administrator was appointed. On January 31, 1957 the
parish priest filed another petition for the delivery of the
ricelands to the church as trustee.
The intestate heirs of Father Rigor countered with a
petition dated March 25, 1957 praying that the bequest
be d inoperative and that they be adjudged as the
persons entitled to the said ricelands since, as admitted
by the parish priest of Victoria, "no nearest male relative
of" the testator "has ever studied for the priesthood"
(pp. 25 and 35, Record on Appeal). That petition was
opposed by the parish priest of Victoria.
Finding that petition to be meritorious, the lower court,
through Judge Bernabe de Aquino, declared the bequest
inoperative and adjudicated the ricelands to the
testator's legal heirs in his order of June 28, 1957. The
parish priest filed two motions for reconsideration.
Judge De Aquino granted the respond motion for
reconsideration in his order of December 10, 1957 on
the ground that the testator had a grandnephew named
Edgardo G. Cunanan (the grandson of his first cousin)
who was a seminarian in the San Jose Seminary of the
Jesuit Fathers in Quezon City. The administrator was
directed to deliver the ricelands to the parish priest of
Victoria as trustee.
The legal heirs appealed to the Court of Appeals. It
reversed that order. It held that Father Rigor had
created a testamentary trust for his nearest male
relative who would take the holy orders but that such
trust could exist only for twenty years because to
enforce it beyond that period would violate "the rule
against perpetuities. It ruled that since no legatee
claimed the ricelands within twenty years after the
testator's death, the same should pass to his legal heirs,
citing articles 888 and 912(2) of the old Civil Code and
article 870 of the new Civil Code.
The parish priest in this appeal contends that the Court
of Appeals erred in not finding that the testator created
a public charitable trust and in not liberally construing
the testamentary provisions so as to render the trust
operative and to prevent intestacy.
As refutation, the legal heirs argue that the Court of
Appeals d the bequest inoperative because no one
among the testator's nearest male relatives had studied
for the priesthood and not because the trust was a
private charitable trust. According to the legal heirs, that
factual finding is binding on this Court. They point out
that appellant priest's change of theory cannot be
countenanced in this appeal .
In this case, as in cases involving the law of contracts
and statutory construction, where the intention of the
contracting parties or of the lawmaking body is to be
ascertained, the primary issue is the determination of
the testator's intention which is the law of the case
(dicat testor et erit lex. Santos vs. Manarang, 27 Phil.
209, 215; Rodriguez vs. Court of Appeals, L-28734,
March 28, 1969, 27 SCRA 546).
The will of the testator is the first and principal law in
the matter of testaments. When his intention is clearly
and precisely expressed, any interpretation must be in
accord with the plain and literal meaning of his words,
except when it may certainly appear that his intention
was different from that literally expressed (In re Estate
of Calderon, 26 Phil. 333).
The intent of the testator is the cardinal rule in the
construction of wills." It is "the life and soul of a will It
is "the first greatest rule, the sovereign guide, the
polestar, in giving effect to a will". (See Dissent of
Justice Moreland in Santos vs. Manarang, 27 Phil. 209,
223, 237-8.)
One canon in the interpretation of the testamentary
provisions is that "the testator's intention is to be
ascertained from the words of the wilt taking into
consideration the circumstances under which it was
made", but excluding the testator's oral declarations as
to his intention (Art. 789, Civil Code of the Philippines).
To ascertain Father Rigor's intention, it may be useful to
make the following re-statement of the provisions of his
will.
1. that he bequeathed the ricelands to anyone of his
nearest male relatives who would pursue an
ecclesiastical career until his ordination as a priest.
198
2. That the devisee could not sell the ricelands.
3. That the devisee at the inception of his studies in
sacred theology could enjoy and administer the
ricelands, and once ordained as a priest, he could
continue enjoying and administering the same up to the
time of his death but the devisee would cease to enjoy
and administer the ricelands if he discontinued his
studies for the priesthood.
4. That if the devisee became a priest, he would be
obligated to celebrate every year twenty masses with
prayers for the repose of the souls of Father Rigor and
his parents.
5. That if the devisee is excommunicated, he would be
divested of the legacy and the administration of the
riceland would pass to the incumbent parish priest of
Victoria and his successors.
6. That during the interval of time that there is no
qualified devisee as contemplated above, the
administration of the ricelands would be under the
responsibility of the incumbent parish priest of Victoria
and his successors, and
7. That the parish priest-administrator of the ricelands
would accumulate annually the products thereof,
obtaining or getting from the annual produce five
percent thereof for his administration and the fees
corresponding to the twenty masses with prayers that
the parish priest would celebrate for each year,
depositing the balance of the income of the devise in the
bank in the name of his bequest.
From the foregoing testamentary provisions, it may be
deduced that the testator intended to devise the
ricelands to his nearest male relative who would become
a priest, who was forbidden to sell the ricelands, who
would lose the devise if he discontinued his studies for
the priesthood, or having been ordained a priest, he was
excommunicated, and who would be obligated to say
annually twenty masses with prayers for the repose of
the souls of the testator and his parents.
On the other hand, it is clear that the parish priest of
Victoria would administer the ricelands only in two
situations: one, during the interval of time that no
nearest male relative of the testator was studying for
the priesthood and two, in case the testator's nephew
became a priest and he was excommunicated.
What is not clear is the duration of "el intervalo de
tiempo que no haya legatario acondicionado", or how
long after the testator's death would it be determined
that he had a nephew who would pursue an
ecclesiastical vocation. It is that patent ambiguity that
has brought about the controversy between the parish
priest of Victoria and the testator's legal heirs.
Interwoven with that equivocal provision is the time
when the nearest male relative who would study for the
priesthood should be determined. Did the testator
contemplate only his nearest male relative at the time
of his death? Or did he have in mind any of his nearest
male relatives at anytime after his death?
We hold that the said bequest refers to the testator's
nearest male relative living at the time of his death and
not to any indefinite time thereafter. "In order to be
capacitated to inherit, the heir, devisee or legatee must
be living at the moment the succession opens, except in
case of representation, when it is proper" (Art. 1025,
Civil Code).
The said testamentary provisions should be sensibly or
reasonably construed. To construe them as referring to
the testator's nearest male relative at anytime after his
death would render the provisions difficult to apply and
create uncertainty as to the disposition of his estate.
That could not have been his intention.
In 1935, when the testator died, his nearest leagal heirs
were his three sisters or second-degree relatives, Mrs.
Escobar, Mrs. Manaloto and Mrs. Quiambao. Obviously,
when the testator specified his nearest male relative, he
must have had in mind his nephew or a son of his sister,
who would be his third-degree relative, or possibly a
grandnephew. But since he could not prognosticate the
exact date of his death or state with certitude what
category of nearest male relative would be living at the
time of his death, he could not specify that his nearest
male relative would be his nephew or grandnephews
(the son of his nephew or niece) and so he had to use
the term "nearest male relative".
It is contended by the legal heirs that the said devise
was in reality intended for Ramon Quiambao, the
testator's nephew and godchild, who was the son of his
sister, Mrs. Quiambao. To prove that contention, the
legal heirs presented in the lower court the affidavit of
Beatriz Gamalinda, the maternal grandmother of
Edgardo Cunanan, who deposed that after Father
Rigor's death her own son, Valentin Gamalinda, Jr., did
not claim the devise, although he was studying for the
priesthood at the San Carlos Seminary, because she
(Beatriz) knew that Father Rigor had intended that
devise for his nearest male relative beloning to the Rigor
family (pp. 105-114, Record on Appeal).
Mrs. Gamalinda further deposed that her own
grandchild, Edgardo G. Cunanan, was not the one
contemplated in Father Rigor's will and that Edgardo's
father told her that he was not consulted by the parish
priest of Victoria before the latter filed his second motion
for reconsideration which was based on the ground that
the testator's grandnephew, Edgardo, was studying for
the priesthood at the San Jose Seminary.
Parenthetically, it should be stated at this juncture that
Edgardo ceased to be a seminarian in 1961. For that
199
reason, the legal heirs apprised the Court of Appeals
that the probate court's order adjudicating the ricelands
to the parish priest of Victoria had no more leg to stand
on (p. 84, Appellant's brief).
Of course, Mrs. Gamalinda's affidavit, which is
tantamount to evidence aliunde as to the testator's
intention and which is hearsay, has no probative value.
Our opinion that the said bequest refers to the testator's
nephew who was living at the time of his death, when
his succession was opened and the successional rights
to his estate became vested, rests on a judicious and
unbiased reading of the terms of the will.
Had the testator intended that the "cualquier pariente
mio varon mas cercano que estudie la camera
eclesiatica" would include indefinitely anyone of his
nearest male relatives born after his death, he could
have so specified in his will He must have known that
such a broad provision would suspend for an unlimited
period of time the efficaciousness of his bequest.
What then did the testator mean by "el intervalo de
tiempo que no haya legatario acondicionado"? The
reasonable view is that he was referring to a situation
whereby his nephew living at the time of his death, who
would like to become a priest, was still in grade school
or in high school or was not yet in the seminary. In that
case, the parish priest of Victoria would administer the
ricelands before the nephew entered the seminary. But
the moment the testator's nephew entered the
seminary, then he would be entitled to enjoy and
administer the ricelands and receive the fruits thereof.
In that event, the trusteeship would be terminated.
Following that interpretation of the will the inquiry would
be whether at the time Father Rigor died in 1935 he had
a nephew who was studying for the priesthood or who
had manifested his desire to follow the ecclesiastical
career. That query is categorically answered in
paragraph 4 of appellant priest's petitions of February
19, 1954 and January 31, 1957. He unequivocally
alleged therein that "not male relative of the late
(Father) Pascual Rigor has ever studied for the
priesthood" (pp. 25 and 35, Record on Appeal).
Inasmuch as the testator was not survived by any
nephew who became a priest, the unavoidable
conclusion is that the bequest in question was
ineffectual or inoperative. Therefore, the administration
of the ricelands by the parish priest of Victoria, as
envisaged in the wilt was likewise inoperative.
The appellant in contending that a public charitable trust
was constituted by the testator in is favor assumes that
he was a trustee or a substitute devisee That contention
is untenable. A reading of the testamentary provisions
regarding the disputed bequest not support the view
that the parish priest of Victoria was a trustee or a
substitute devisee in the event that the testator was not
survived by a nephew who became a priest.
It should be understood that the parish priest of Victoria
could become a trustee only when the testator's nephew
living at the time of his death, who desired to become a
priest, had not yet entered the seminary or, having been
ordained a priest, he was excommunicated. Those two
contingencies did not arise, and could not have arisen in
this case because no nephew of the testator manifested
any intention to enter the seminary or ever became a
priest.
The Court of Appeals correctly ruled that this case is
covered by article 888 of the old Civil Code, now article
956, which provides that if "the bequest for any reason
should be inoperative, it shall be merged into the estate,
except in cases of substitution and those in which the
right of accretion exists" ("el legado ... por qualquier
causa, no tenga efecto se refundira en la masa de la
herencia, fuera de los casos de sustitucion y derecho de
acrecer").
This case is also covered by article 912(2) of the old Civil
Code, now article 960 (2), which provides that legal
succession takes place when the will "does not dispose
of all that belongs to the testator." There being no
substitution nor accretion as to the said ricelands the
same should be distributed among the testator's legal
heirs. The effect is as if the testator had made no
disposition as to the said ricelands.
The Civil Code recognizes that a person may die partly
testate and partly intestate, or that there may be mixed
succession. The old rule as to the indivisibility of the
testator's win is no longer valid. Thus, if a conditional
legacy does not take effect, there will be intestate
succession as to the property recovered by the said
legacy (Macrohon Ong Ham vs. Saavedra, 51 Phil. 267).
We find no merit in the appeal The Appellate Court's
decision is affirmed. Costs against the petitioner.
SO ORDERED.
The complaint alleges: That Ramon del Rosario and
Florencia Arcega were husband and wife, the former
having died in 1895 and the latter in 1933; that the
plaintiffs and the defendants are the heirs of both; that
Ramon del Rosario died without a will, leaving properties
of the conjugal partnership valued at P19,000; that after
the death of Ramon del Rosario, his widow Florencia
Arcega administered these properties and with the
products thereof acquired others, which are those
described in paragraph 9 of the complaint. It is,
moreover, inferred from the complaint that after the
death of Ramon del Rosario, his intestate was not
commenced and the conjugal properties were not
liquidated until Florencia Arcega died, after which the
latter’s testamentary proceedings were initiated and are
now in progress.
200
The plaintiffs bring this action to recover their share not
only in the conjugal properties left by Ramon del Rosario
but also in those acquired by Florencia Arcega with the
products of said properties.

A demurrer was interposed to the complaint on the

ground that there is another action pending between the
same parties and for the same cause of action; that
there is a defect of party plaintiffs and party defendants,
and that the complaint does not allege facts sufficient to
constitute a cause of action.

The court sustained this demurrer and dismissed the

case. From this resolution an appeal was taken.

Both in the Court of First Instance as well as in this

court, the parties discuss whether Act No. 3176, or the
former law, is applicable to the case. Act No. 3176 only
amends the former law in the sense that upon the death
of any of the spouses the community property shall be
liquidated in the testamentary or intestate proceedings
of the deceased spouse. But whatever law might be
applicable, and even assuming that it was that prior to
Act No. 3176, the intestate of Ramon del Rosario not
having been commenced upon his death in 1895 until
his widow Florencia Arcega also died in 1933, and the
testamentary proceedings of Florencia Arcega having
been subsequently initiated, wherein, among other
things, the liquidation of her conjugal properties with
the deceased Ramon del Rosario should be made, the
pendency of these testamentary proceedings of the
deceased wife excludes any other proceeding aimed at
the same purpose (Zaide v. Concepcion and Quintana,
32 Phil., 403). At any rate, the plaintiffs have a right to
intervene in these proceedings as parties interested in
the liquidation and partition of the conjugal properties
of the deceased spouses Ramon del Rosario and
Florencia Arcega among their heirs.

The appealed judgment is affirmed, with the costs to the

appellants. So ordered.

201
Del Rosario vs. Del Rosario (2 Phil 321)
[G.R. No. 45761. April 28, 1939.]
JULIA DEL ROSARIO, ET AL., Plaintiffs-Appellants, v.
ANTONIO DEL ROSARIO, ET AL.,Defendants-Appellees.
SYLLABUS
1. LIQUIDATION OF CONJUCAL PARTNERSHIP; ACT No.
3176; PENDENCY OF TESTAMENTARY PROCEEDINGS
EXCLUDES ANY OTHER PROCEEDING AIMED AT THE
SAME PURPOSE. — Act No. 317(; only amends the
former law in the sense that upon the death of any of
the spouses the community property shall be liquidated
in the testamentary or intestate proceedings of the
deceased spouse. But whatever law might be applicable,
and even assuming that it was that prior to act No.
3176, the intestate of R. del R. not having been
commenced upon his death in 1895 until his widow F.
A. also in 1933, and the testamentary proceedings of F.
A. having been subsequently initiated, wherein, among
other things, the liquidation of her conjugal properties
with the deceased R. del R. should be made, the
pendency these testamentary proceedings of the
deceased wife excludes any other proceeding aimed at
the purpose (Zaide v. Concepcion and Quintana, 32
Phil., 403). At any rate, the plaintiffs have a right to
intervene in these proceedings as parties interested in
the liquidation and partition of the conjugal properties
of the deceased spouses R. del R. and F. A. among their
heirs.
DECISION
AVANCEÑA, C.J. :
The complaint alleges: That Ramon del Rosario and
Florencia Arcega were husband and wife, the former
having died in 1895 and the latter in 1933; that the
plaintiffs and the defendants are the heirs of both; that
Ramon del Rosario died without a will, leaving properties
of the conjugal partnership valued at P19,000; that after
the death of Ramon del Rosario, his widow Florencia
Arcega administered these properties and with the
products thereof acquired others, which are those
described in paragraph 9 of the complaint. It is,
moreover, inferred from the complaint that after the
death of Ramon del Rosario, his intestate was not
commenced and the conjugal properties were not
liquidated until Florencia Arcega died, after which the
latter’s testamentary proceedings were initiated and are
now in progress.
The plaintiffs bring this action to recover their share not
only in the conjugal properties left by Ramon del Rosario
but also in those acquired by Florencia Arcega with the
products of said properties.
A demurrer was interposed to the complaint on the
ground that there is another action pending between the
same parties and for the same cause of action; that
there is a defect of party plaintiffs and party defendants,
and that the complaint does not allege facts sufficient to
constitute a cause of action.
The court sustained this demurrer and dismissed the
case. From this resolution an appeal was taken.
Both in the Court of First Instance as well as in this
court, the parties discuss whether Act No. 3176, or the
former law, is applicable to the case. Act No. 3176 only
amends the former law in the sense that upon the death
of any of the spouses the community property shall be
liquidated in the testamentary or intestate proceedings
of the deceased spouse. But whatever law might be
applicable, and even assuming that it was that prior to
Act No. 3176, the intestate of Ramon del Rosario not
having been commenced upon his death in 1895 until
his widow Florencia Arcega also died in 1933, and the
testamentary proceedings of Florencia Arcega having
been subsequently initiated, wherein, among other
things, the liquidation of her conjugal properties with
the deceased Ramon del Rosario should be made, the
pendency of these testamentary proceedings of the
deceased wife excludes any other proceeding aimed at
the same purpose (Zaide v. Concepcion and Quintana,
32 Phil., 403). At any rate, the plaintiffs have a right to
intervene in these proceedings as parties interested in
the liquidation and partition of the conjugal properties
of the deceased spouses Ramon del Rosario and
Florencia Arcega among their heirs.
The appealed judgment is affirmed, with the costs to the
appellants. So ordered.
202
203
Rabadilla vs. CA (June 29, 2000)
[G.R. No. 113725. June 29, 2000]
JOHNNY S. RABADILLA,[1] petitioner, vs. COURT OF
APPEALS AND MARIA MARLENA[2] COSCOLUELLA Y
BELLEZA VILLACARLOS, respondents.
DECISION
PURISIMA, J.:
This is a petition for review of the decision of the Court
of Appeals,[3] dated December 23, 1993, in CA-G.R.
No. CV-35555, which set aside the decision of Branch
52 of the Regional Trial Court in Bacolod City, and
ordered the defendants-appellees (including herein
petitioner), as heirs of Dr. Jorge Rabadilla, to reconvey
title over Lot No. 1392, together with its fruits and
interests, to the estate of Aleja Belleza.
The antecedent facts are as follows:
In a Codicil appended to the Last Will and Testament of
testatrix Aleja Belleza, Dr. Jorge Rabadilla, predecessor-
in-interest of the herein petitioner, Johnny S. Rabadilla,
was instituted as a devisee of 511, 855 square meters
of that parcel of land surveyed as Lot No. 1392 of the
Bacolod Cadastre. The said Codicil, which was duly
probated and admitted in Special Proceedings No. 4046
before the then Court of First Instance of Negros
Occidental, contained the following provisions:
"FIRST
I give, leave and bequeath the following property owned
by me to Dr. Jorge Rabadilla resident of 141 P.
Villanueva, Pasay City:
(a) Lot No. 1392 of the Bacolod Cadastre, covered by
Transfer Certificate of Title No. RT-4002 (10942), which
is registered in my name according to the records of the
Register of Deeds of Negros Occidental.
(b) That should Jorge Rabadilla die ahead of me, the
aforementioned property and the rights which I shall set
forth hereinbelow, shall be inherited and acknowledged
by the children and spouse of Jorge Rabadilla.
xxx
FOURTH
(a)....It is also my command, in this my addition
(Codicil), that should I die and Jorge Rabadilla shall have
already received the ownership of the said Lot No. 1392
of the Bacolod Cadastre, covered by Transfer Certificate
of Title No. RT-4002 (10942), and also at the time that
the lease of Balbinito G. Guanzon of the said lot shall
expire, Jorge Rabadilla shall have the obligation until he
dies, every year to give to Maria Marlina Coscolluela y
Belleza, Seventy (75) (sic) piculs of Export sugar and
Twenty Five (25) piculs of Domestic sugar, until the said
Maria Marlina Coscolluela y Belleza dies.
FIFTH
(a) Should Jorge Rabadilla die, his heir to whom he shall
give Lot No. 1392 of the Bacolod Cadastre, covered by
Transfer Certificate of Title No. RT-4002 (10492), shall
have the obligation to still give yearly, the sugar as
specified in the Fourth paragraph of his testament, to
Maria Marlina Coscolluela y Belleza on the month of
December of each year.
SIXTH
I command, in this my addition (Codicil) that the Lot No.
1392, in the event that the one to whom I have left and
bequeathed, and his heir shall later sell, lease, mortgage
this said Lot, the buyer, lessee, mortgagee, shall have
also the obligation to respect and deliver yearly ONE
HUNDRED (100) piculs of sugar to Maria Marlina
Coscolluela y Belleza, on each month of December,
SEVENTY FIVE (75) piculs of Export and TWENTY FIVE
(25) piculs of Domestic, until Maria Marlina shall die,
lastly should the buyer, lessee or the mortgagee of this
lot, not have respected my command in this my addition
(Codicil), Maria Marlina Coscolluela y Belleza, shall
immediately seize this Lot No. 1392 from my heir and
the latter's heirs, and shall turn it over to my near
desendants, (sic) and the latter shall then have the
obligation to give the ONE HUNDRED (100) piculs of
sugar until Maria Marlina shall die. I further command in
this my addition (Codicil) that my heir and his heirs of
this Lot No. 1392, that they will obey and follow that
should they decide to sell, lease, mortgage, they cannot
negotiate with others than my near descendants and my
sister."[4]
Pursuant to the same Codicil, Lot No. 1392 was
transferred to the deceased, Dr. Jorge Rabadilla, and
Transfer Certificate of Title No. 44498 thereto issued in
his name.
Dr. Jorge Rabadilla died in 1983 and was survived by his
wife Rufina and children Johnny (petitioner), Aurora,
Ofelia and Zenaida, all surnamed Rabadilla.
On August 21, 1989, Maria Marlena Coscolluela y Belleza
Villacarlos brought a complaint, docketed as Civil Case
No. 5588, before Branch 52 of the Regional Trial Court
in Bacolod City, against the above-mentioned heirs of
Dr. Jorge Rabadilla, to enforce the provisions of subject
Codicil. The Complaint alleged that the defendant-heirs
violated the conditions of the Codicil, in that:
1. Lot No. 1392 was mortgaged to the Philippine
National Bank and the Republic Planters Bank in
disregard of the testatrix's specific instruction to sell,
lease, or mortgage only to the near descendants and
sister of the testatrix.
2. Defendant-heirs failed to comply with their obligation
to deliver one hundred (100) piculs of sugar (75 piculs
export sugar and 25 piculs domestic sugar) to plaintiff
Maria Marlena Coscolluela y Belleza from sugar crop
years 1985 up to the filing of the complaint as mandated
by the Codicil, despite repeated demands for
compliance.
204
3. The banks failed to comply with the 6th paragraph of
the Codicil which provided that in case of the sale, lease,
or mortgage of the property, the buyer, lessee, or
mortgagee shall likewise have the obligation to deliver
100 piculs of sugar per crop year to herein private
respondent.
The plaintiff then prayed that judgment be rendered
ordering defendant-heirs to reconvey/return-Lot No.
1392 to the surviving heirs of the late Aleja Belleza, the
cancellation of TCT No. 44498 in the name of the
deceased, Dr. Jorge Rabadilla, and the issuance of a new
certificate of title in the names of the surviving heirs of
the late Aleja Belleza.
On February 26, 1990, the defendant-heirs were
declared in default but on March 28, 1990 the Order of
Default was lifted, with respect to defendant Johnny S.
Rabadilla, who filed his Answer, accordingly.
During the pre-trial, the parties admitted that:
On November 15, 1998, the plaintiff (private
respondent) and a certain Alan Azurin, son-in-law of the
herein petitioner who was lessee of the property and
acting as attorney-in-fact of defendant-heirs, arrived at
an amicable settlement and entered into a
Memorandum of Agreement on the obligation to deliver
one hundred piculs of sugar, to the following effect:
"That for crop year 1988-89, the annuity mentioned in
Entry No. 49074 of TCT No. 44489 will be delivered not
later than January of 1989, more specifically, to wit:
75 piculs of 'A' sugar, and 25 piculs of 'B' sugar, or then
existing in any of our names, Mary Rose Rabadilla y
Azurin or Alan Azurin, during December of each sugar
crop year, in Azucar Sugar Central; and, this is
considered compliance of the annuity as mentioned, and
in the same manner will compliance of the annuity be in
the next succeeding crop years.
That the annuity above stated for crop year 1985-86,
1986-87, and 1987-88, will be complied in cash
equivalent of the number of piculs as mentioned therein
and which is as herein agreed upon, taking into
consideration the composite price of sugar during each
sugar crop year, which is in the total amount of ONE
HUNDRED FIVE THOUSAND PESOS (P105,000.00).
That the above-mentioned amount will be paid or
delivered on a staggered cash installment, payable on
or before the end of December of every sugar crop year,
to wit:
For 1985-86, TWENTY SIX THOUSAND TWO HUNDRED
FIFTY (P26,250.00) Pesos, payable on or before
December of crop year 1988-89;
For 1986-87, TWENTY SIX THOUSAND TWO HUNDRED
FIFTY (P26,250.00) Pesos, payable on or before
December of crop year 1989-90;
For 1987-88, TWENTY SIX THOUSAND TWO HUNDRED
FIFTY (P26,250.00) Pesos, payable on or before
December of crop year 1990-91; and
For 1988-89, TWENTY SIX THOUSAND TWO HUNDRED
FIFTY (P26,250.00) Pesos, payable on or before
December of crop year 1991-92."[5]
However, there was no compliance with the aforesaid
Memorandum of Agreement except for a partial delivery
of 50.80 piculs of sugar corresponding to sugar crop
year 1988 -1989.
On July 22, 1991, the Regional Trial Court came out with
a decision, dismissing the complaint and disposing as
follows:
"WHEREFORE, in the light of the aforegoing findings, the
Court finds that the action is prematurely filed as no
cause of action against the defendants has as yet arose
in favor of plaintiff. While there maybe the non-
performance of the command as mandated exaction
from them simply because they are the children of Jorge
Rabadilla, the title holder/owner of the lot in question,
does not warrant the filing of the present complaint. The
remedy at bar must fall. Incidentally, being in the
category as creditor of the left estate, it is opined that
plaintiff may initiate the intestate proceedings, if only to
establish the heirs of Jorge Rabadilla and in order to give
full meaning and semblance to her claim under the
Codicil.
In the light of the aforegoing findings, the Complaint
being prematurely filed is DISMISSED without
prejudice.
SO ORDERED."[6]
On appeal by plaintiff, the First Division of the Court of
Appeals reversed the decision of the trial court;
ratiocinating and ordering thus:
"Therefore, the evidence on record having established
plaintiff-appellant's right to receive 100 piculs of sugar
annually out of the produce of Lot No. 1392;
defendants-appellee's obligation under Aleja Belleza's
codicil, as heirs of the modal heir, Jorge Rabadilla, to
deliver such amount of sugar to plaintiff-appellant;
defendants-appellee's admitted non-compliance with
said obligation since 1985; and, the punitive
consequences enjoined by both the codicil and the Civil
Code, of seizure of Lot No. 1392 and its reversion to the
estate of Aleja Belleza in case of such non-compliance,
this Court deems it proper to order the reconveyance of
title over Lot No. 1392 from the estates of Jorge
Rabadilla to the estate of Aleja Belleza. However,
plaintiff-appellant must institute separate proceedings
to re-open Aleja Belleza's estate, secure the
appointment of an administrator, and distribute Lot No.
1392 to Aleja Belleza's legal heirs in order to enforce her
right, reserved to her by the codicil, to receive her
legacy of 100 piculs of sugar per year out of the produce
of Lot No. 1392 until she dies.
Accordingly, the decision appealed from is SET ASIDE
and another one entered ordering defendants-
appellees, as heirs of Jorge Rabadilla, to reconvey title
over Lot No. 1392, together with its fruits and interests,
to the estate of Aleja Belleza.
205
SO ORDERED."[7]
Dissatisfied with the aforesaid disposition by the Court
of Appeals, petitioner found his way to this Court via the
present petition, contending that the Court of Appeals
erred in ordering the reversion of Lot 1392 to the estate
of the testatrix Aleja Belleza on the basis of paragraph
6 of the Codicil, and in ruling that the testamentary
institution of Dr. Jorge Rabadilla is a modal institution
within the purview of Article 882 of the New Civil Code.
The petition is not impressed with merit.
Petitioner contends that the Court of Appeals erred in
resolving the appeal in accordance with Article 882 of
the New Civil Code on modal institutions and in
deviating from the sole issue raised which is the absence
or prematurity of the cause of action. Petitioner
maintains that Article 882 does not find application as
there was no modal institution and the testatrix
intended a mere simple substitution - i.e. the instituted
heir, Dr. Jorge Rabadilla, was to be substituted by the
testatrix's "near descendants" should the obligation to
deliver the fruits to herein private respondent be not
complied with. And since the testatrix died single and
without issue, there can be no valid substitution and
such testamentary provision cannot be given any effect.
The petitioner theorizes further that there can be no
valid substitution for the reason that the substituted
heirs are not definite, as the substituted heirs are
merely referred to as "near descendants" without a
definite identity or reference as to who are the "near
descendants" and therefore, under Articles 843[8] and
845[9] of the New Civil Code, the substitution should be
deemed as not written.
The contentions of petitioner are untenable. Contrary to
his supposition that the Court of Appeals deviated from
the issue posed before it, which was the propriety of the
dismissal of the complaint on the ground of prematurity
of cause of action, there was no such deviation. The
Court of Appeals found that the private respondent had
a cause of action against the petitioner. The disquisition
made on modal institution was, precisely, to stress that
the private respondent had a legally demandable right
against the petitioner pursuant to subject Codicil; on
which issue the Court of Appeals ruled in accordance
with law.
It is a general rule under the law on succession that
successional rights are transmitted from the moment of
death of the decedent[10] and compulsory heirs are
called to succeed by operation of law. The legitimate
children and descendants, in relation to their legitimate
parents, and the widow or widower, are compulsory
heirs.[11] Thus, the petitioner, his mother and sisters,
as compulsory heirs of the instituted heir, Dr. Jorge
Rabadilla, succeeded the latter by operation of law,
without need of further proceedings, and the
successional rights were transmitted to them from the
moment of death of the decedent, Dr. Jorge Rabadilla.
Under Article 776 of the New Civil Code, inheritance
includes all the property, rights and obligations of a
person, not extinguished by his death. Conformably,
whatever rights Dr. Jorge Rabadilla had by virtue of
subject Codicil were transmitted to his forced heirs, at
the time of his death. And since obligations not
extinguished by death also form part of the estate of the
decedent; corollarily, the obligations imposed by the
Codicil on the deceased Dr. Jorge Rabadilla, were
likewise transmitted to his compulsory heirs upon his
death.
In the said Codicil, testatrix Aleja Belleza devised Lot
No. 1392 to Dr. Jorge Rabadilla, subject to the condition
that the usufruct thereof would be delivered to the
herein private respondent every year. Upon the death
of Dr. Jorge Rabadilla, his compulsory heirs succeeded
to his rights and title over the said property, and they
also assumed his (decedent's) obligation to deliver the
fruits of the lot involved to herein private respondent.
Such obligation of the instituted heir reciprocally
corresponds to the right of private respondent over the
usufruct, the fulfillment or performance of which is now
being demanded by the latter through the institution of
the case at bar. Therefore, private respondent has a
cause of action against petitioner and the trial court
erred in dismissing the complaint below.
Petitioner also theorizes that Article 882 of the New Civil
Code on modal institutions is not applicable because
what the testatrix intended was a substitution - Dr.
Jorge Rabadilla was to be substituted by the testatrix's
near descendants should there be noncompliance with
the obligation to deliver the piculs of sugar to private
respondent.
Again, the contention is without merit.
Substitution is the designation by the testator of a
person or persons to take the place of the heir or heirs
first instituted. Under substitutions in general, the
testator may either (1) provide for the designation of
another heir to whom the property shall pass in case the
original heir should die before him/her, renounce the
inheritance or be incapacitated to inherit, as in a simple
substitution,[12] or (2) leave his/her property to one
person with the express charge that it be transmitted
subsequently to another or others, as in a
fideicommissary substitution.[13] The Codicil sued upon
contemplates neither of the two.
In simple substitutions, the second heir takes the
inheritance in default of the first heir by reason of
incapacity, predecease or renunciation.[14] In the case
under consideration, the provisions of subject Codicil do
not provide that should Dr. Jorge Rabadilla default due
to predecease, incapacity or renunciation, the testatrix's
near descendants would substitute him. What the
Codicil provides is that, should Dr. Jorge Rabadilla or his
heirs not fulfill the conditions imposed in the Codicil, the
property referred to shall be seized and turned over to
the testatrix's near descendants.
Neither is there a fideicommissary substitution here and
on this point, petitioner is correct. In a fideicommissary
substitution, the first heir is strictly mandated to
preserve the property and to transmit the same later to
206
the second heir.[15] In the case under consideration,
the instituted heir is in fact allowed under the Codicil to
alienate the property provided the negotiation is with
the near descendants or the sister of the testatrix. Thus,
a very important element of a fideicommissary
substitution is lacking; the obligation clearly imposing
upon the first heir the preservation of the property and
its transmission to the second heir. "Without this
obligation to preserve clearly imposed by the testator in
his will, there is no fideicommissary substitution."[16]
Also, the near descendants' right to inherit from the
testatrix is not definite. The property will only pass to
them should Dr. Jorge Rabadilla or his heirs not fulfill
the obligation to deliver part of the usufruct to private
respondent.
Another important element of a fideicommissary
substitution is also missing here. Under Article 863, the
second heir or the fideicommissary to whom the
property is transmitted must not be beyond one degree
from the first heir or the fiduciary. A fideicommissary
substitution is therefore, void if the first heir is not
related by first degree to the second heir.[17] In the
case under scrutiny, the near descendants are not at all
related to the instituted heir, Dr. Jorge Rabadilla.
The Court of Appeals erred not in ruling that the
institution of Dr. Jorge Rabadilla under subject Codicil is
in the nature of a modal institution and therefore, Article
882 of the New Civil Code is the provision of law in point.
Articles 882 and 883 of the New Civil Code provide:
Art. 882. The statement of the object of the institution
or the application of the property left by the testator, or
the charge imposed on him, shall not be considered as
a condition unless it appears that such was his intention.
That which has been left in this manner may be claimed
at once provided that the instituted heir or his heirs give
security for compliance with the wishes of the testator
and for the return of anything he or they may receive,
together with its fruits and interests, if he or they should
disregard this obligation.
Art. 883. When without the fault of the heir, an
institution referred to in the preceding article cannot
take effect in the exact manner stated by the testator,
it shall be complied with in a manner most analogous to
and in conformity with his wishes.
The institution of an heir in the manner prescribed in
Article 882 is what is known in the law of succession as
an institucion sub modo or a modal institution. In a
modal institution, the testator states (1) the object of
the institution, (2) the purpose or application of the
property left by the testator, or (3) the charge imposed
by the testator upon the heir.[18] A "mode" imposes an
obligation upon the heir or legatee but it does not affect
the efficacy of his rights to the succession.[19] On the
other hand, in a conditional testamentary disposition,
the condition must happen or be fulfilled in order for the
heir to be entitled to succeed the testator. The condition
suspends but does not obligate; and the mode obligates
but does not suspend.[20] To some extent, it is similar
to a resolutory condition.[21]
From the provisions of the Codicil litigated upon, it can
be gleaned unerringly that the testatrix intended that
subject property be inherited by Dr. Jorge Rabadilla. It
is likewise clearly worded that the testatrix imposed an
obligation on the said instituted heir and his successors-
in-interest to deliver one hundred piculs of sugar to the
herein private respondent, Marlena Coscolluela Belleza,
during the lifetime of the latter. However, the testatrix
did not make Dr. Jorge Rabadilla's inheritance and the
effectivity of his institution as a devisee, dependent on
the performance of the said obligation. It is clear,
though, that should the obligation be not complied with,
the property shall be turned over to the testatrix's near
descendants. The manner of institution of Dr. Jorge
Rabadilla under subject Codicil is evidently modal in
nature because it imposes a charge upon the instituted
heir without, however, affecting the efficacy of such
institution.
Then too, since testamentary dispositions are generally
acts of liberality, an obligation imposed upon the heir
should not be considered a condition unless it clearly
appears from the Will itself that such was the intention
of the testator. In case of doubt, the institution should
be considered as modal and not conditional.[22]
Neither is there tenability in the other contention of
petitioner that the private respondent has only a right
of usufruct but not the right to seize the property itself
from the instituted heir because the right to seize was
expressly limited to violations by the buyer, lessee or
mortgagee.
In the interpretation of Wills, when an uncertainty arises
on the face of the Will, as to the application of any of its
provisions, the testator's intention is to be ascertained
from the words of the Will, taking into consideration the
circumstances under which it was made.[23] Such
construction as will sustain and uphold the Will in all its
parts must be adopted.[24]
Subject Codicil provides that the instituted heir is under
obligation to deliver One Hundred (100) piculs of sugar
yearly to Marlena Belleza Coscuella. Such obligation is
imposed on the instituted heir, Dr. Jorge Rabadilla, his
heirs, and their buyer, lessee, or mortgagee should they
sell, lease, mortgage or otherwise negotiate the
property involved. The Codicil further provides that in
the event that the obligation to deliver the sugar is not
respected, Marlena Belleza Coscuella shall seize the
property and turn it over to the testatrix's near
descendants. The non-performance of the said
obligation is thus with the sanction of seizure of the
property and reversion thereof to the testatrix's near
descendants. Since the said obligation is clearly imposed
by the testatrix, not only on the instituted heir but also
on his successors-in-interest, the sanction imposed by
the testatrix in case of non-fulfillment of said obligation
should equally apply to the instituted heir and his
successors-in-interest.
Similarly unsustainable is petitioner's submission that
by virtue of the amicable settlement, the said obligation
imposed by the Codicil has been assumed by the lessee,
207
and whatever obligation petitioner had become the
obligation of the lessee; that petitioner is deemed to
have made a substantial and constructive compliance of
his obligation through the consummated settlement
between the lessee and the private respondent, and
having consummated a settlement with the petitioner,
the recourse of the private respondent is the fulfillment
of the obligation under the amicable settlement and not
the seizure of subject property.

Suffice it to state that a Will is a personal, solemn,

revocable and free act by which a person disposes of his
property, to take effect after his death.[25] Since the
Will expresses the manner in which a person intends
how his properties be disposed, the wishes and desires
of the testator must be strictly followed. Thus, a Will
cannot be the subject of a compromise agreement which
would thereby defeat the very purpose of making a Will.

WHEREFORE, the petition is hereby DISMISSED and the

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

SO ORDERED.

208

ARTICLE 791.
Dizon Rivera vs. Dizon (33 SCRA 554)
G.R. No. L-24561 June 30, 1970
MARINA DIZON-RIVERA, executrix-appellee,
vs.
ESTELA DIZON, TOMAS V. DIZON, BERNARDITA DIZON,
JOSEFINA DIZON, ANGELINA DIZON and LILIA DIZON,
oppositors-appellants.
Punzalan, Yabut & Eusebio for executrix-appellee.
Leonardo Abola for oppositors-appellants.
TEEHANKEE, J.:
Appeal from orders of the Court of First Instance of
Pampanga approving the Executrix-appellee's project of
partition instead of Oppositors-Appellants' proposed
counter-project of partition. 1
On January 28, 1961, the testatrix, Agripina J. Valdez,
a widow, died in Angeles, Pampanga, and was survived
by seven compulsory heirs, to wit, six legitimate
children named Estela Dizon, Tomas V. Dizon,
Bernardita Dizon, Marina Dizon (herein executrix-
appellee), Angelina Dizon and Josefina Dizon, and a
legitimate granddaughter named Lilia Dizon, who is the
only legitimate child and heir of Ramon Dizon, a pre-
deceased legitimate son of the said decedent. Six of
these seven compulsory heirs (except Marina Dizon, the
executrix-appellee) are the oppositors-appellants.
The deceased testatrix left a last will executed on
February 2, 1960 and written in the Pampango dialect.
Named beneficiaries in her will were the above-named
compulsory heirs, together with seven other legitimate
grandchildren, namely Pablo Rivera, Jr., Gilbert D.
Garcia, Cayetano Dizon, Francisco Rivera, Agripina
Ayson, Jolly Jimenez and Laureano Tiambon.
In her will, the testatrix divided, distributed and
disposed of all her properties appraised at
P1,801,960.00 (except two small parcels of land
appraised at P5,849.60, household furniture valued at
P2,500.00, a bank deposit in the sum of P409.95 and
ten shares of Pampanga Sugar Development Company
valued at P350.00) among her above-named heirs.
Testate proceedings were in due course commenced 2
and by order dated March 13, 1961, the last will and
testament of the decedent was duly allowed and
admitted to probate, and the appellee Marina Dizon-
Rivera was appointed executrix of the testatrix' estate,
and upon her filing her bond and oath of office, letters
testamentary were duly issued to her.
After the executrix filed her inventory of the estate, Dr.
Adelaido Bernardo of Angeles, Pampanga was appointed
commissioner to appraise the properties of the estate.
He filed in due course his report of appraisal and the
same was approved in toto by the lower court on
December 12, 1963 upon joint petition of the parties.
The real and personal properties of the testatrix at the
time of her death thus had a total appraised value of
P1,811,695.60, and the legitime of each of the seven
compulsory heirs amounted to P129,362.11. 3 (¹/7 of
the half of the estate reserved for the legitime of
legitimate children and descendants). 4 In her will, the
testatrix "commanded that her property be divided" in
accordance with her testamentary disposition, whereby
she devised and bequeathed specific real properties
comprising practically the entire bulk of her estate
among her six children and eight grandchildren. The
appraised values of the real properties thus respectively
devised by the testatrix to the beneficiaries named in
her will, are as follows:
1. Estela Dizon ....................................... P
98,474.80
2. Angelina Dizon .................................. 106,307.06
3. Bernardita Dizon .................................. 51,968.17
4. Josefina Dizon ...................................... 52,056.39
5. Tomas Dizon .......................................
131,987.41
6. Lilia Dizon ..............................................
72,182.47
7. Marina Dizon .....................................
1,148,063.71
8. Pablo Rivera, Jr. ......................................
69,280.00
9. Lilia Dizon, Gilbert Garcia,
Cayetano Dizon, Francisco Rivera,
Agripina Ayson, Dioli or Jolly
Jimenez, Laureano Tiamzon ................. 72,540.00
Total Value ...................... P1,801,960.01
209
The executrix filed her project of partition dated
February 5, 1964, in substance adjudicating the estate
as follows:
(1) with the figure of P129,254.96 as legitime for a basis
Marina (exacultrix-appellee) and Tomas (appellant) are
admittedly considered to have received in the will more
than their respective legitime, while the rest of the
appellants, namely, Estela, Bernardita, Angelina,
Josefina and Lilia received less than their respective
legitime;
(2) thus, to each of the latter are adjudicated the
properties respectively given them in the will, plus cash
and/or properties, to complete their respective legitimes
to P129,254.96; (3) on the other hand, Marina and
Tomas are adjudicated the properties that they received
in the will less the cash and/or properties necessary to
complete the prejudiced legitime mentioned in number
2 above;
(4) the adjudications made in the will in favor of the
grandchildren remain untouched.<äre||anº•1àw>
On the other hand oppositors submitted their own
counter-project of partition dated February 14, 1964,
wherein they proposed the distribution of the estate on
the following basis:
(a) all the testamentary dispositions were proportionally
reduced to the value of one-half (½) of the entire estate,
the value of the said one-half (½) amounting to
P905,534.78; (b) the shares of the Oppositors-
Appellants should consist of their legitime, plus the
devises in their favor proportionally reduced; (c) in
payment of the total shares of the appellants in the
entire estate, the properties devised to them plus other
properties left by the Testatrix and/or cash are
adjudicated to them; and (d) to the grandchildren who
are not compulsory heirs are adjudicated the properties
respectively devised to them subject to reimbursement
by Gilbert D. Garcia, et al., of the sums by which the
devise in their favor should be proportionally reduced.
Under the oppositors' counter-project of partition, the
testamentary disposition made by the testatrix of
practically her whole estate of P1,801,960.01, as above
stated, were proposed to be reduced to the amounts set
forth after the names of the respective heirs and
devisees totalling one-half thereof as follows:
1. Estela Dizon ........................................... P to give effect to the last wishes of the testatrix."
49,485.56
2. Angelina Dizon .........................................
53,421.42
3. Bernardita Dizon .......................................
26,115.04
4. Josefina Dizon ..........................................
26,159.38
5. Tomas V. Dizon .........................................
65,874.04
6. Lilia Dizon ..................................................
36,273.13
7. Marina Dizon ...........................................
576,938.82
8. Pablo Rivera, Jr. .........................................
34,814.50
9. Grandchildren Gilbert Garcia et al .......... 36,452.80
T o t a l ...................................................
P905,534.78
while the other half of the estate (P905,534.78) would
be deemed as constituting the legitime of the executrix-
appellee and oppositors-appellants, to be divided
among them in seven equal parts of P129,362.11 as
their respective legitimes.
The lower court, after hearing, sustained and approved
the executrix' project of partition, ruling that "(A)rticles
906 and 907 of the New Civil Code specifically provide
that when the legitime is impaired or prejudiced, the
same shall be completed and satisfied. While it is true
that this process has been followed and adhered to in
the two projects of partition, it is observed that the
executrix and the oppositors differ in respect to the
source from which the portion or portions shall be taken
in order to fully restore the impaired legitime. The
proposition of the oppositors, if upheld, will substantially
result in a distribution of intestacy, which is in
controversion of Article 791 of the New Civil Code"
adding that "the testatrix has chosen to favor certain
heirs in her will for reasons of her own, cannot be
doubted. This is legally permissible within the limitation
of the law, as aforecited." With reference to the payment
in cash of some P230,552.38, principally by the
executrix as the largest beneficiary of the will to be paid
to her five co-heirs, the oppositors (excluding Tomas
Dizon), to complete their impaired legitimes, the lower
court ruled that "(T)he payment in cash so as to make
the proper adjustment to meet with the requirements of
the law in respect to legitimes which have been impaired
is, in our opinion, a practical and valid solution in order
From the lower court's orders of approval, oppositors-
appellants have filed this appeal, and raise anew the
following issues: .
1. Whether or not the testamentary dispositions made
in the testatrix' will are in the nature of devises
210
imputable to the free portion of her estate, and
therefore subject to reduction;
2. Whether the appellants are entitled to the devise plus
their legitime under Article 1063, or merely to demand
completion of their legitime under Article 906 of the Civil
Code; and
3. Whether the appellants may be compelled to accept
payment in cash on account of their legitime, instead of
some of the real properties left by the Testatrix;
which were adversely decided against them in the
proceedings below.
The issues raised present a matter of determining the
avowed intention of the testatrix which is "the life and
soul of a will." 5 In consonance therewith, our Civil Code
included the new provisions found in Articles 788 and
791 thereof that "(I)f a testamentary disposition admits
of different interpretations, in case of doubt, that
interpretation by which the disposition is to be operative
shall be preferred" and "(T)he 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." In Villanueva vs. Juico 6 for
violation of these rules of interpretation as well as of
Rule 123, section 59 of the old Rules of Court, 7 the
Court, speaking through Mr. Justice J.B.L. Reyes,
overturned the lower court's decision and stressed that
"the intention and wishes of the testator, when clearly
expressed in his will, constitute the fixed law of
interpretation, and all questions raised at the trial,
relative to its execution and fulfillment, must be settled
in accordance therewith, following the plain and literal
meaning of the testator's words, unless it clearlyappears
that his intention was otherwise." 8
The testator's wishes and intention constitute the first
and principal law in the matter of testaments, and to
paraphrase an early decision of the Supreme Court of
Spain, 9 when expressed clearly and precisely in his last
will amount to the only law whose mandate must
imperatively be faithfully obeyed and complied with by
his executors, heirs and devisees and legatees, and
neither these interested parties nor the courts may
substitute their own criterion for the testator's will.
Guided and restricted by these fundamental premises,
the Court finds for the appellee.
1. Decisive of the issues at bar is the fact that the
testatrix' testamentary disposition was in the nature of
a partition of her estate by will. Thus, in the third
paragraph of her will, after commanding that upon her
death all her obligations as well as the expenses of her
last illness and funeral and the expenses for probate of
her last will and for the administration of her property
in accordance with law, be paid, she expressly provided
that "it is my wish and I command that my property be
divided" in accordance with the dispositions immediately
thereafter following, whereby she specified each real
property in her estate and designated the particular heir
among her seven compulsory heirs and seven other
grandchildren to whom she bequeathed the same. This
was a valid partition 10of her estate, as contemplated
and authorized in the first paragraph of Article 1080 of
the Civil Code, providing that "(S)hould 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." This
right of a testator to partition his estate is subject only
to the right of compulsory heirs to their legitime. The
Civil Code thus provides the safeguard for the right of
such compulsory heirs:
ART. 906. Any compulsory heir to whom the testator has
left by any title less than the legitime belonging to him
may demand that the same be fully satisfied.
ART. 907. Testamentary dispositions that impair or
diminish the legitime of the compulsory heirs shall be
reduced on petition of the same, insofar as they may be
inofficious or excessive.
This was properly complied with in the executrix-
appellee's project of partition, wherein the five
oppositors-appellants namely Estela, Bernardita,
Angelina, Josefina and Lilia, were adjudicated the
properties respectively distributed and assigned to them
by the testatrix in her will, and the differential to
complete their respective legitimes of P129,362.11 each
were taken from the cash and/or properties of the
executrix-appellee, Marina, and their co-oppositor-
appellant, Tomas, who admittedly were favored by the
testatrix and received in the partition by will more than
their respective legitimes.
2. This right of a testator to partition his estate by will
was recognized even in Article 1056 of the old Civil Code
which has been reproduced now as Article 1080 of the
present Civil Code. The only amendment in the provision
was that Article 1080 "now permits any person (not a
testator, as under the old law) to partition his estate by
actinter vivos." 11 This was intended to repeal the then
prevailing doctrine 12 that for a testator to partition his
estate by an actinter vivos, he must first make a will
with all the formalities provided by law. Authoritative
commentators doubt the efficacy of the amendment 13
but the question does not here concern us, for this is a
clear case of partition by will, duly admitted to probate,
which perforce must be given full validity and effect.
Aside from the provisions of Articles 906 and 907 above
quoted, other codal provisions support the executrix-
appellee's project of partition as approved by the lower
court rather than the counter-project of partition
proposed by oppositors-appellants whereby they would
reduce the testamentary disposition or partition made
by the testatrix to one-half and limit the same, which
they would consider as mere devises or legacies, to one-
half of the estate as the disposable free portion, and
apply the other half of the estate to payment of the
211
legitimes of the seven compulsory heirs. Oppositors'
proposal would amount substantially to a distribution by
intestacy and pro tanto nullify the testatrix' will,
contrary to Article 791 of the Civil Code. It would further
run counter to the provisions of Article 1091 of the Civil
Code that "(A) partition legally made confers upon each
heir the exclusive ownership of the property adjudicated
to him."
3. In Habana vs. Imbo, 14 the Court upheld the
distribution made in the will of the deceased testator
Pedro Teves of two large coconut plantations in favor of
his daughter, Concepcion, as against adverse claims of
other compulsory heirs, as being a partition by will,
which should be respected insofar as it does not
prejudice the legitime of the compulsory heirs, in
accordance with Article 1080 of the Civil Code. In
upholding the sale made by Concepcion to a stranger of
the plantations thus partitioned in her favor in the
deceased's will which was being questioned by the other
compulsory heirs, the Court ruled that "Concepcion
Teves by operation of law, became the absolute owner
of said lots because 'A partition legally made confers
upon each heir the exclusive ownership of the property
adjudicated to him' (Article 1091, New Civil Code), from
the death of her ancestors, subject to rights and
obligations of the latter, and, she can not be deprived of
her rights thereto except by the methods provided for
by law (Arts. 657, 659, and 661, Civil Code). 15
Concepcion Teves could, as she did, sell the lots in
question as part of her share of the proposed partition
of the properties, especially when, as in the present
case, the sale has been expressly recognized by herself
and her co-heirs ..."
4. The burden of oppositors' contention is that the
testamentary dispositions in their favor are in the nature
of devises of real property, citing the testatrix' repeated
use of the words "I bequeath" in her assignment or
distribution of her real properties to the respective heirs.
From this erroneous premise, they proceed to the
equally erroneous conclusion that "the legitime of the
compulsory heirs passes to them by operation of law
and that the testator can only dispose of the free
portion, that is, the remainder of the estate after
deducting the legitime of the compulsory heirs ... and
all testamentary dispositions, either in the nature of
institution of heirs or of devises or legacies, have to be
taken from the remainder of the testator's estate
constituting the free portion." 16
Oppositors err in their premises, for the adjudications
and assignments in the testatrix' will of specific
properties to specific heirs cannot be considered all
devises, for it clearly appear from the whole context of
the will and the disposition by the testatrix of her whole
estate (save for some small properties of little value
already noted at the beginning of this opinion) that her
clear intention was to partition her whole estate through
her will. The repeated use of the words "I bequeath" in
her testamentary dispositions acquire no legal
significance, such as to convert the same into devises to
be taken solely from the free one-half disposable portion
of the estate. Furthermore, the testatrix' intent that her
testamentary dispositions were by way of adjudications
to the beneficiaries as heirs and not as mere devisees,
and that said dispositions were therefore on account of
the respective legitimes of the compulsory heirs is
expressly borne out in the fourth paragraph of her will,
immediately following her testamentary adjudications in
the third paragraph in this wise: "FOURTH: I likewise
command that in case any of those I named as my heirs
in this testament any of them shall die before I do, his
forced heirs under the law enforced at the time of my
death shall inherit the properties I bequeath to said
deceased." 17
Oppositors' conclusions necessarily are in error. The
testamentary dispositions of the testatrix, being
dispositions in favor of compulsory heirs, do not have to
be taken only from the free portion of the estate, as
contended, for the second paragraph of Article 842 of
the Civil Code precisely provides that "(O)ne 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." And even going by
oppositors' own theory of bequests, the second
paragraph of Article 912 Civil Code covers precisely the
case of the executrix-appellee, who admittedly was
favored by the testatrix with the large bulk of her estate
in providing that "(T)he devisee who is entitled to a
legitime may retain the entire property, provided its
value does not exceed that of the disposable portion and
of the share pertaining to him as legitime." For "diversity
of apportionment is the usual reason for making a
testament; otherwise, the decedent might as well die
intestate." 18 Fundamentally, of course, the dispositions
by the testatrix constituted a partition by will, which by
mandate of Article 1080 of the Civil Code and of the
other cited codal provisions upholding the primacy of the
testator's last will and testament, have to be respected
insofar as they do not prejudice the legitime of the other
compulsory heirs.
Oppositors' invoking of Article 1063 of the Civil Code
that "(P)roperty left by will is not deemed subject to
collation, if the testator has not otherwise provided, but
the legitime shall in any case remain unimpaired" and
invoking of the construction thereof given by some
authorities that "'not deemed subject to collation' in this
article really means not imputable to or chargeable
against the legitime", while it may have some
plausibility 19 in an appropriate case, has no application
in the present case. Here, we have a case of a
distribution and partition of the entire estate by the
testatrix, without her having made any previous
donations during her lifetime which would require
collation to determine the legitime of each heir nor
having left merely some properties by will which would
call for the application of Articles 1061 to 1063 of the
Civil Code on collation. The amount of the legitime of
the heirs is here determined and undisputed.
212
5. With this resolution of the decisive issue raised by
oppositors-appellants, the secondary issues are likewise
necessarily resolved. Their right was merely to demand
completion of their legitime under Article 906 of the Civil
Code and this has been complied with in the approved
project of partition, and they can no longer demand a
further share from the remaining portion of the estate,
as bequeathed and partitioned by the testatrix
principally to the executrix-appellee.

Neither may the appellants legally insist on their

legitime being completed with real properties of the
estate instead of being paid in cash, per the approved
project of partition. The properties are not available for
the purpose, as the testatrix had specifically partitioned
and distributed them to her heirs, and the heirs are
called upon, as far as feasible to comply with and give
effect to the intention of the testatrix as solemnized in
her will, by implementing her manifest wish of
transmitting the real properties intact to her named
beneficiaries, principally the executrix-appellee. The
appraisal report of the properties of the estate as filed
by the commissioner appointed by the lower court was
approved in toto upon joint petition of the parties, and
hence, there cannot be said to be any question — and
none is presented — as to fairness of the valuation
thereof or that the legitime of the heirs in terms of cash
has been understated. The plaint of oppositors that the
purchasing value of the Philippine peso has greatly
declined since the testatrix' death in January, 1961
provides no legal basis or justification for overturning
the wishes and intent of the testatrix. The transmission
of rights to the succession are transmitted from the
moment of death of the decedent (Article 777, Civil
Code) and accordingly, the value thereof must be
reckoned as of then, as otherwise, estates would never
be settled if there were to be a revaluation with every
subsequent fluctuation in the values of the currency and
properties of the estate. There is evidence in the record
that prior to November 25, 1964, one of the oppositors,
Bernardita, accepted the sum of P50,000.00 on account
of her inheritance, which, per the parties' manifestation,
20 "does not in any way affect the adjudication made to
her in the projects of partition of either party as the
same is a mere advance of the cash that she should
receive in both projects of partition." The payment in
cash by way of making the proper adjustments in order
to meet the requirements of the law on non-impairment
of legitimes as well as to give effect to the last will of
the testatrix has invariably been availed of and
sanctioned. 21 That her co-oppositors would receive
their cash differentials only now when the value of the
currency has declined further, whereas they could have
received them earlier, like Bernardita, at the time of
approval of the project of partition and when the peso's
purchasing value was higher, is due to their own
decision of pursuing the present appeal.

ACCORDINGLY, the orders appealed from are hereby

affirmed. Without cost.

213
Vda. De Villaflor vs. Juico (February 28, 1962)
G.R. No. L-15737 February 28, 1962
LEONOR VILLAFLOR VDA. DE VILLANUEVA, plaintiff-
appellant,
vs.
DELFIN N. JUICO, in his capacity as Judicial
Administrator of the testate estate of FAUSTA
NEPOMUCENO, defendant-appellee.
Amado G. Salazar for plaintiff-appellant.
Sycip, Salazar, Luna and Associates for defendant-
appellee.
REYES, J.B.L., J.:
Subject to this direct appeal to us on points of law is the
decision of the Court of First Instance of Rizal, in its Civil
Case No. Q-2809, dismissing plaintiff-appellant's
complaint for the recovery of certain properties that
were originally owned by the plaintiff's granduncle,
Nicolas Villaflor, and which he granted to his widow,
Doña Fausta Nepomuceno, bequeathing to her "su uso
y posesion mientras viva y no se case en segundas
nupcias".
The following facts appear of record: On October 9,
1908, Don Nicolas Villaflor, a wealthy man of Castillejos,
Zambales, executed a will in Spanish in his own
handwriting, devising and bequeathing in favor of his
wife, Dona Fausta Nepomuceno, one-half of all his real
and personal properties, giving the other half to his
brother Don Fausto Villaflor.
Clause 6th, containing the institution of heirs, reads as
follows: .
SEXTO — En virtud de las facultades que me conceden
las leyes, instituyo per mis unicos y universales
herederos de todos mis derechos y acciones a mi
hermano D. Fausto Villaflor y a mi esposa Da. Fausta
Nepomuceno para que partan todos mis bienes que me
pertenescan, en iguales partes, para despues de mi
muerte, exceptuando las donaciones y legados que,
abajo mi mas expontanea voluntad, lo hago en la forma
siguiente: .
SEPTIMO: — Lego para dispues de mi muerte a mi
esposa Da. Fausta Nepomuceno, en prueba de mi amor
y carino, los bienes, alhajas y muebles que a
continuacion se expresan; .
OCTAVO: — Que estos legades disfrutaria mi referida
esposa Da. Fausta Nepomuceno su uso y posesion
mientras viva y no se case en segundas nupcias, de la
contrario, pasara a ser propiedad estos dichos legados
de mi sobrina nieta Leonor Villaflor.
The 12th clause of the will provided, however, that
Clauses 6th and 7th thereof would be deemed annulled
from the moment he bore any child with Doña Fausta
Nepomuceno. Said Clause 12th reads as follows: .
DUODECIMO: — Quedan anulados las parrafos 6.0 y 7.0
de este testamento que tratan de institucion de
herederos y los legados que se haran despues de mi
muerte a favor de mi esposa, en el momento que podre
tener la dicha de contrar con hijo y hijos legitimos o
legitimados, pues estos, conforme a ley seran mis
herederos.
Don Nicolas Villaflor died on March 3, 1922, without
begetting any child with his wife Doña Fausta
Nepomuceno. The latter, already a widow, thereupon
instituted Special Proceeding No. 203 of the Court of
First Instance of Zambales, for the settlement of her
husband's estate and in that proceeding, she was
appointed judicial administratrix. In due course of
administration, she submitted a project of partition, now
Exhibit "E". In the order of November 24, 1924, now
exhibit "C", the probate court approved the project of
partition and declared the proceeding closed. As the
project of partition, Exhibit "E", now shows Doña Fausta
Nepomuceno received by virtue thereof the ownership
and possession of a considerable amount of real and
personal estate. By virtue also of the said project of
partition, she received the use and possession of all the
real and personal properties mentioned and referred to
in Clause 7th of the will. The order approving the project
of partition (Exh. "C"), however, expressly provided that
approval thereof was "sin perjuicio de lo dispuesto en la
clausula 8.o del testamento de Nicolas Villaflor." .
On May 1, 1956, Doña Fausta Nepomuceno died without
having contracted a second marriage, and without
having begotten any child with the deceased Nicolas
Villaflor. Her estate is now being settled in Special
Proceeding No. Q-1563 in the lower court, with the
defendant Delfin N. Juico as the duly appointed and
qualified judicial administrator.
The plaintiff Leonor Villaflor Vda. de Villanueva is
admitted to be the same Leonor Villaflor mentioned by
Don Nicolas Villaflor in his will as his "sobrina nieta
Leonor Villaflor".
Plaintiff Leonor Villaflor instituted the present action
against the administrator of the estate of the widow
Fausta Nepomuceno, on February 8, 1958, contending
that upon the widow's death, said plaintiff became
vested with the ownership of the real and personal
properties bequeathed by the late Nicolas Villaflor to
clause 7 of his will, pursuant to its eight (8th) clause.
Defendant's position, adopted by the trial court, is that
the title to the properties aforesaid became absolutely
vested in the widow upon her death, on account of the
fact that she never remarried.
We agree with appellant that the plain desire and intent
of the testator, as manifested in clause 8 of his
testament, was to invest his widow with only a usufruct
or life tenure in the properties described in the seventh
clause, subject to the further condition (admitted by the
appellee) that if the widow remarried, her rights would
thereupon cease, even during her own lifetime. That the
214
widow was meant to have no more than a life interest
in those properties, even if she did not remarry at all, is
evident from the expressions used by the deceased "uso
y posesion mientras viva" (use and possession while
alive) in which the first half of the phrase "uso y
posesion" instead of "dominio" or "propiedad")
reinforces the second ("mientras viva"). The testator
plainly did not give his widow the full ownership of these
particular properties, but only the right to their
possession and use (or enjoyment) during her lifetime.
This is in contrast with the remainder of the estate in
which she was instituted universal heir together with the
testator's brother (clause 6). 1äwphï1.ñët
SEXTO: — En virtud de las facultades que me conceden
las leyes, instituyo por mis unicos y universales
herederos de todos mis derechos y acciones a mi
hermano D. Fausto Villaflor y a mi esposa Da. Fausta
Nepomuceno para que parten todos mis bienes que me
pertenescan, en iguales partes, para despues de mi
muerte, exceptuando las donaciones y legados que,
abajo mi mas expontanea voluntad, lo hago en la forma
siguiente.
The court below, in holding that the appellant Leonor
Villaflor, as reversionary legatee, could succeed to the
properties bequeathed by clause 7 of the testament only
in the event that the widow remarried, has
unwarrantedly discarded the expression "mientras
viva," and considered the words "uso y posesion" as
equivalent to "dominio" (ownership). In so doing, the
trial court violated Article 791 of the Civil Code of the
Philippines, as well as section 59 of Rule 123 of the Rules
of Court.
ART. 791. 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 one is to be preferred which will
prevent intestacy." .
SEC. 59. Instrument construed so as to give effect to all
provisions. — In the construction of an instrument
where there are several provisions or particulars, such
a construction is, if possible, to be adopted as will give
effect to all." .
Speculation as to the motives of the testator in imposing
the conditions contained in clause 7 of his testament
should not be allowed to obscure the clear and
unambiguous meaning of his plain words, which are
over the primary source in ascertaining his intent. It is
well to note that if the testator had intended to impose
as sole condition the non-remarriage of his widow, the
words "uso y posesion mientras viva" would have been
unnecessary, since the widow could only remarry during
her own lifetime.
The Civil Code, in Article 790, p. 1 (Article 675 of the
Code of 1889), expressly enjoins the following: .
ART. 790. The words of a will are to be taken in their
ordinary and grammatical sense, unless a clear intention
to use them in another sense can be gathered, and that
other can be ascertained." .
Technical words in a will are to be taken in their
technical sense, unless the context clearly indicates a
contrary intention, or unless it satisfactorily appears
that the will was drawn solely by the testator, and that
he was unacquainted with such technical sense. (675a)
In consonance with this rule, this Supreme Court has
laid the doctrine in In re Estate of Calderon, 26 Phil.,
233, that the intention and wishes of the testator, when
clearly expressed in his will, constitute the fixed law of
interpretation, and all questions raised at the trial,
relative to its execution and fulfillment, must be settled
in accordance therewith, following the plain and literal
meaning of the testator's words, unless it clearly
appears that his intention was otherwise. The same rule
is adopted by the Supreme Court of Spain (TS. Sent. 20
Marzo 1918; 28 Mayo 1918; 30 Abril 1913; 16 Enero
1915; 23 Oct. 1925).
La voluntad del testador, clara, precisa y
constantemente expresada al ordenar su ultimo
voluntad, es ley unica, imperativa y obligatoria que han
de obedecer y cumplir fieldmente albaceas, legatarios y
heredera, hoy sus sucesores, sin que esa voluntad
patente, que no ha menester de interpretaciones, pues
no ofrece la menor duda, pueda sustituirse, pues no
ofrece la menor duda, pueda sustituirse por ningun otro
criterio de alguna de los interesados, ni tampoco por el
judicial. (Tribunal Supremo of Spain, Sent. 20 March
1918) .
The American decisions invoked by appellee in his brief
inapplicable, because they involve cases where the only
condition imposed on the legatee was that she should
remain a widow. As already shown, the testament of
Don Nicolas Villaflor clearly and unmistakably provided
that his widow should have the possession and use of
the legacies while alive and did not remarry. It
necessarily follows that by the express provisions of the
8th clause of his will, the legacies should pass to the
testator's "sobrinanieta", appellant herein, upon the
widow's death, even if the widow never remarried in her
lifetime. Consequently, the widow had no right to retain
or dispose of the aforesaid properties, and her estate is
accountable to the reversionary legatee for their return,
unless they had been lost due to fortuitous event, or for
their value should rights of innocent third parties have
intervened.
PREMISES CONSIDERED, the decision appealed from is
reversed, and the appellant Leonor Villaflor Vda. de
VILLANUEVA is declared entitled to the ownership and
fruits of the properties described in clause 7 of the will
or testament, from the date of the death of Doña Fausta
Nepomuceno. The records are ordered remanded to the
court of origin for liquidation, accounting and further
proceedings conformably to this decision. Costs against
the Administrator-appellee.
215
Yambao vs. Gonzales (1 SCRA 1157)
G.R. No. L-10763 April 29, 1961
DELFIN YAMBAO, plaintiff-appellant,
vs.
ANGELINA GONZALES, ET AL., defendants-appellees.
Marcial G. Mendiola for plaintiff-appellant.
Onofre P. Guevara for defendants-appellees.
BAUTISTA ANGELO, J.:
This is an action filed by Delfin Yambao against Angelina
Gonzales and Maria Pablo praying that the latter be
ordered to appoint and employ him as tenant during his
lifetime on the parcels of land bequeathed to and
inherited by them from Maria Gonzales, as well as to
deliver to him the value of the harvests belonging to him
as tenant of said parcels of land. In their answer,
defendants averred that the provisions of the will relied
upon by plaintiff is not mandatory; that the
determination of who should be the tenant of the land
is vested in a special court; and that the present action
is not the proper remedy.
After trial, the court dismissed the complaint for lack of
sufficient cause of action. It held that the provisions of
the will relied upon by plaintiff merely amount to a
suggestion to the defendants who, though morally
bound, are not legally compelled to follow said
suggestion, invoking as authority Article 797 of the old
Civil Code. Plaintiff has appealed.
The pertinent provisions of the will relied upon by
appellant read as follows:
Dapat din naman malaman ng dalawa kong
tagapagmana na sila MARIA PABLO at ANGELINA
GONZALES na sila ay may dapat TUNGKULIN O
GANGPANAN GAYA ng mga sumusunod:
xxx xxx xxx
(2) Pahihintulutan nila na si Delfin Yambao ang
makapagtrabajo ng bukid habang panahon, at ang
nasabing bukid ay isasailalim ng pamamahala ng
Albasea samantalang ang bukid ay nasa usapin at may
utang pa.
It appears that on August 10, 1942, Maria Gonzales
executed a will bequeathing to appellees all her
properties situated in Sta. Rosa, Laguna. The will was
probated in 1948. Immediately, thereafter, appellant
went to appellees to request that he be placed as tenant
of the riceland which, by an express provision of said
will, they were directed to give to him for cultivation, as
tenant, and when they refused alleging that they had
already given it to another tenant he filed the present
action.
In holding that the provisions of the will relied upon by
appellant imposes only a moral but not a legal
obligation, the trial court went on to consider the import
of the word "Pahihintulutan" employed with reference to
appellant. In its opinion said word only means to permit
or to allow, but not to direct appellees to appoint
appellant as tenant. Rather, it opines, it merely contains
a suggestion to employ because the testatrix did not use
the words "ipinaguutos ko" which she used in connection
with other provisions of the will, so that there is no clear
indication that it was her intention to make such
provision compulsory.
We believe, however, that the trial court has not
properly interpreted the real import of the wish of the
testatrix. Analyzing it carefully we will find that the same
contains a clear directive to employ appellant as may be
seen from the words preceding the word
"pahihintulutan", which say: "Dapat din naman
malaman ng dalawa kong tagapagmana na sila MARIA
PABLO at ANGELINA GONZALES na sila ay may dapat
TUNGKULIN O GANGPANAN GAYA ng mga sumusunod."
The words 'dapat TUNGKULIN O GANGPANAN" mean to
do or to carry out as a mandate or directive, and having
reference to the word "pahihintulutan", can convey no
other meaning than to impose a duty upon appellees.
To follow the interpretation given by the trial court
would be to devoid the wish of the testatrix of its real
and true meaning.
Article 797 of the old Civil Code, invoked by the trial
court, is inapplicable. That refers to an institution of an
heir intended to be conditional by providing that a
statement to the effect cannot be considered as a
condition unless it appears clearly that such is the
intention of the testator. We are not faced here with any
conditional institution of heirship. What we have is a
clear-cut mandate which the heirs cannot fail to carry
out.
WHEREFORE, the decision appealed from is reversed.
Appellees are hereby ordered to employ appellant as
tenant immediately after this decision has become final.
Costs against appellees.
216

ARTICLE 792
Balanay, Jr. vs. Martinez (64 SCRA 452, G.R. No.
L-39247 June 27, 1975)
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.:
Felix Balanay, Jr. appealed by certiorari from the order
of the Court of First Instance of Davao dated February
28, 1974, 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. 1808). The antecedents of the appeal
are as follows:
Leodegaria Julian, a native of Sta. Maria, Ilocos Sur,
died on February 12, 1973 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, 1973 for the probate of his mother's
notarial will dated September 5, 1970 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 1973)
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 18,
1973 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 18, 1973 "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, 1973 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 18, 1973 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 15, 1973.
In the meanwhile, another lawyer appeared in the case.
David O. Montaña, Sr., claiming to be the lawyer of
petitioner Felix Balanay, Jr. (his counsel of record was
Atty. Cabreros), filed a motion dated September 25,
1973 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
Montaña 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.
Montaña 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 15, 1973
manifested their conformity with the motion for the
217
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. Montaña,
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. Montaña and Guyo that the
will was void. So, in its order of February 28, 1974 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 1 and 2, 1974. The lower
court did not abrogate its prior orders of June 18 and
October 15, 1973. The notice to creditors was issued on
April 1, 1974 and published on May 2, 9 and 16 in the
Davao Star in spite of petitioner's motion of April 17,
1974 that its publication be held in abeyance.
Felix Balanay, Jr., through a new counsel, Roberto M.
Sarenas, in a verified motion dated April 15, 1974,
asked for the reconsideration of the lower court's order
of February 28, 1974 on the ground that Atty. Montaña
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, 1974 addressed to Atty.
Montaña and signed by Felix Balanay, Jr., Beatriz V.
Solamo, Carolina B. Manguiob and Emilia B. Pabaonon,
wherein they terminated Montaña'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, 1974. It clarified that it
declared the will void on the basis of its own
independent assessment of its provisions and not
because of Atty. Montaña'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. 1527, 17 SCRA 449. Compare with
Sumilang vs. Ramagosa, L-23135, December 26, 1967,
21 SCRA 1369; Cacho vs. Udan, L-19996, April 30,
1965, 13 SCRA 693).1äwphï1.ñët
But the probate court erred in declaring, in its order of
February 28, 1974 that the will was void and in
converting the testate proceeding into an intestate
proceeding notwithstanding the fact that in its order of
June 18, 1973 , 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. 143, Civil Code;
Madrigal and Paterno vs. Rafferty and Concepcion, 38
Phil. 414). 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
1080 of the Civil Code which 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.
A parent who, in the interest of his or her family, 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. (1056a)
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 1080.
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. 1083, Civil Code).
218
Felix Balanay, Sr. could validly renounce his hereditary
rights and his one-half share of the conjugal partnership
(Arts. 179[1] and 1041, 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.
1060[1] 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 became 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 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. 170, 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).1äwphï1.ñët
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 18, 1973. 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 12, 1967, 21 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 18, 1972, 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-24561, June 30, 1970, 33
SCRA 554, 561). 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 791, 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, 1970, 31 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-19573, June 30, 1970, 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-25913, February 28, 1969, 27
SCRA 327, 341).
219
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 1,
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 (See. 10, Rule 86
and sec. 1, 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, 1974 are set aside and its order of June
18, 1973, setting for hearing the petition for probate, is
affirmed. The lower court is directed to conduct further
proceedings in Special Case No. 1808 in consonance
with this opinion. Costs, against the private
respondents.

SO ORDERED.

220
221

ARTICLE 795
In Re Will of Riosa (39 Phil 23)
G.R. No. L-14074 November 7, 1918
In the matter of the probation of the will of Jose Riosa.
MARCELINO CASAS, applicant-appellant,
Vicente de Vera for petitioner-appellant.
MALCOLM, J.:
The issue which this appeal presents is whether in the
Philippine Islands the law existing on the date of the
execution of a will, or the law existing at the death of
the testator, controls.
Jose Riosa died on April 17, 1917. He left a will made in
the month of January, 1908, in which he disposed of an
estate valued at more than P35,000. The will was duly
executed in accordance with the law then in force,
namely, section 618 of the Code of Civil Procedure. The
will was not executed in accordance with Act No. 2645,
amendatory of said section 618, prescribing certain
additional formalities for the signing and attestation of
wills, in force on and after July 1, 1916. In other words,
the will was in writing, signed by the testator, and
attested and subscribed by three credible witnesses in
the presence of the testator and of each other; but was
not signed by the testator and the witnesses on the left
margin of each and every page, nor did the attestation
state these facts. The new law, therefore, went into
effect after the making of the will and before the death
of the testator, without the testator having left a will
that conforms to the new requirements.
Section 618 of the Code of Civil Procedure reads:
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. The attestation 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 it
is proven that the will was in fact signed and attested as
in this section provided.
Act No. 2645 has amended section 618 of the Code of
Civil Procedure so as to make said section read as
follows:
SEC. 618. Requisites of will. — 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 written in the language or dialect
known by the testator and signed by him, 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. 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, on the left
margin, and said pages shall be numbered correlatively
in letters placed on the upper part of each sheet. 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.
This court has heretofore held in a decision handed
down by the Chief Justice, as to a will made after the
date Act No. 2645 went into effect, that it must comply
with the provisions of this law. (Caraig vs Tatlonghari,
R. G. No. 12558, dated March 23, 1918 [not published].)
The court has further held in a decision handed down by
Justice Torres, as to will executed by a testator whose
death took place prior to the operative date of Act No.
2645, that the amendatory act is inapplicable. (Bona vs.
Briones, [1918], 38 Phil., 276.) The instant appeal
presents an entirely different question. The will was
execute prior to the enactment of Act No. 2645 and the
death occurred after the enactment of this law.
There is a clear cleavage of authority among the cases
and the text-writers, as to the effect of a change in the
statutes prescribing the formalities necessary to be
observed in the execution of a will, when such change is
made intermediate to the execution of a will and the
death of a testator. (See generally 40 Cyc., 1076. and
any textbook on Wills, and Lane's Appeal from Probate
[1889], 57 Conn., 182.) The rule laid down by the courts
in many jurisdictions is that the statutes in force at the
testator's death are controlling, and that a will not
executed in conformity with such statutes is invalid,
although its execution was sufficient at the time it was
made. The reasons assigned for applying the later
statute are the following: "As until the death of the
testator the paper executed by him, expressing his
wishes, is not a will, but a mere inchoate act which may
or may not be a will, the law in force at the testator's
death applies and controls the proof of the will." (Sutton
vs. Chenault [1855], 18 Ga., 1.) Were we to accept the
foregoing proposition and the reasons assigned for it, it
222
would logically result that the will of Jose Riosa would
have to be held invalid.
The rule prevailing in many other jurisdictions is that the
validity of the execution of a will must be tested by the
statutes in force at the time of its execution and that
statutes subsequently enacted have no retrospective
effect. This doctrine is believed to be supported by the
weight of authority. It was the old English view; in
Downs (or Downing) vs. Townsend (Ambler, 280), Lord
Hardwicke is reported to have said that "the general rule
as to testaments is, that the time of the testament, and
not the testator's death, is regarded." It is also the
modern view, including among other decisions one of
the Supreme Court of Vermont from which State many
of the sections of the Code if Civil Procedure of the
Philippine Islands relating to wills are taken. (Giddings
vs. Turgeon [1886], 58 Vt., 103.)
Of the numerous decisions of divergent tendencies, the
opinion by the learned Justice Sharswood (Taylor
vs.Mitchell [1868], 57 Pa. St., 209) is regarded to be
the best considered. In this opinion is found the
following:
Retrospective laws generally if not universally work
injustice, and ought to be so construed only when the
mandate of the legislature is imperative. When a
testator makes a will, formally executed according to the
requirements of the law existing at the time of its
execution, it would unjustly disappoint his lawful right
of disposition to apply to it a rule subsequently enacted,
though before his death.
While it is true that every one is presumed to know the
law, the maxim in fact is inapplicable to such a case; for
he would have an equal right to presume that no new
law would affect his past act, and rest satisfied in
security on that presumption. . . . It is true, that every
will is ambulatory until the death of the testator, and the
disposition made by it does not actually take effect until
then. General words apply to the property of which the
testator dies possessed, and he retains the power of
revocation as long as he lives. The act of bequeathing
or devising, however, takes place when the will is
executed, though to go into effect at a future time.
A third view, somewhat larger in conception than the
preceding one, finding support in the States of Alabama
and New York, is that statutes relating to the execution
of wills, when they increase the necessary formalities,
should be construed so as not to impair the validity of a
will already made and, when they lessen the formalities
required, should be construed so as to aid wills
defectively executed according to the law in force at the
time of their making (Hoffman vs. Hoffman, [1855], 26
Ala., 535; Price vs. Brown, 1 Bradf., Surr. N.Y., 252.)
This court is given the opportunity to choose between
the three rules above described. Our selection, under
such circumstances, should naturally depend more on
reason than on technicality. Above all, we cannot lose
sight of the fact that the testator has provided in detail
for the disposition of his property and that his desires
should be respected by the courts. Justice is a powerful
pleader for the second and third rules on the subject.
The plausible reasoning of the authorities which back
the first proposition is, we think, fallacious. The act of
bequeathing or devising is something more than
inchoate or ambulatory. In reality, it becomes a
completed act when the will is executed and attested
according to the law, although it does not take effect on
the property until a future time.lawphil.net
It is, of course, a general rule of statutory construction,
as this court has said, that "all statutes are to be
construed as having only a prospective operation unless
the purpose and intention of the Legislature to give
them a retrospective effect is expressly declared or is
necessarily implied from the language used. In every
case of doubt, the doubt must be resolved against the
restrospective effect." (Montilla vs. Corporacion de PP.
Agustinos [1913], 24 Phil., 220. See also Chew Heong
vs. U.S. [1884], 112 U.S., 536; U.S. vs American Sugar
Ref. Co. [1906], 202 U.S., 563.) Statute law, as found
in the Civil Code, is corroborative; article 3 thereof
provides that "laws shall not have a retroactive effect,
unless therein otherwise prescribed." The language of
Act No. 2645 gives no indication of retrospective effect.
Such, likewise, has been the uniform tendency of the
Supreme Court of the Philippine Islands on cases having
special application to testamentary succession. (Abello
vs. Kock de Monaterio [1904], 3 Phil., 558; Timbol vs.
Manalo [1906], 6 Phil., 254; Bona vs. Briones, supra; In
the Matter of the Probation of the Will of Bibiana Diquiña
[1918], R. G. No. 13176, 1 concerning the language of
the Will. See also section 617, Code of Civil Procedure.)
The strongest argument against our accepting the first
two rules comes out of section 634 of the Code of Civil
Procedure which, in negative terms, provides that a will
shall be disallowed in either of five cases, the first being
"if not executed and attested as in this Act provided."
Act No. 2645 has, of course, become part and parcel of
the Code of Civil Procedure. The will in question is
admittedly not executed and attested as provided by the
Code of Civil Procedure as amended. Nevertheless, it is
proper to observe that the general principle in the law
of wills inserts itself even within the provisions of said
section 634. Our statute announces a positive rule for
the transference of property which must be complied
with as completed act at the time of the execution, so
far as the act of the testator is concerned, as to all
testaments made subsequent to the enactment of Act
No. 2645, but is not effective as to testaments made
antecedent to that date.
To answer the question with which we began this
decision, we adopt as our own the second rule,
particularly as established by the Supreme Court of
Pennsylvania. The will of Jose Riosa is valid.
223
The order of the Court of First Instance for the Province
of Albay of December 29, 1917, disallowing the will of
Jose Riosa, is reversed, and the record shall be returned
to the lower court with direction to admit the said will to
probate, without special findings as to costs. So
ordered.

224
Enriquez vs. Abadia (95 Phil 627) MONTEMAYOR, J.:

[G.R. No. L-7188. August 9, 1954.]

On September 6, 1923, Father Sancho Abadia, parish
priest of Talisay, Cebu, executed a document purporting
In re: Will and Testament of the deceased REVEREND
to be his Last Will and Testament now marked Exhibit
SANCHO ABADIA. SEVERINA A. VDA. DE ENRIQUEZ, ET
"A." Resident of the City of Cebu, he died on January 14,
AL., Petitioners-Appellees, v. MIGUEL ABADIA, ET AL.,
1943, in the municipality of Aloguinsan, Cebu, where he
Oppositors-Appellants.
was an evacue. He left properties estimated at P8,000
in value. On October 2, 1946, one Andres Enriquez, one
Manuel A. Zosa, Luis B. Ladonga, Mariano A. Zosa and
of the legatees in Exhibit "A", filed a petition for its
B. G. Advincula, for Appellants.
probate in the Court of First Instance of Cebu. Some
cousins and nephews who would inherit the estate of the
C. de la Victoria, for Appellees.
deceased if he left no will, filed opposition.

During the hearing one of the attesting witnesses, the

SYLLABUS
other two being dead, testified without contradiction
that in his presence and in the presence of his co-
witnesses, Father Sancho wrote out in longhand Exhibit
1. WILLS; PROBATE OF WILL; VALIDITY OF WILLS AS
"A" in Spanish which the testator spoke and understood;
TO FORM DEPENDS UPON LAW IN FORCE AT TIME OF
that he (testator) signed on he left hand margin of the
EXECUTION; TITLE OF EXECUTION. — The validity of a
front page of each of the three folios or sheets of which
will as to form is to be judged not by the law in force at
the document is composed, and numbered the same
the time of the testator’s death or at the time the
with Arabic numerals, and finally signed his name at the
supposed will is presented in court for probate or when
end of his writing at the last page, all this, in the
the petition is decided by the court but at the time the
presence of the three attesting witnesses after telling
instrument was executed. One reason in support of the
that it was his last will and that the said three witnesses
rule is that although the will operates upon and after the
signed their names on the last page after the attestation
death of testator, the wishes of the testator about the
clause in his presence and in the presence of each other.
disposition of his estate among his heirs and among the
The oppositors did not submit any evidence.
legatees is given solemn expression at the time the will
is executed, and in reality, the legacy or bequest then
The learned trial court found and declared Exhibit "A" to
becomes a completed act.
be a holographic will; that it was in the handwriting of
the testator and that although at the time it was
2. ID.; EXECUTION OF WILLS; LAW SUBSEQUENTLY
executed and at the time of the testator’s death,
PASSED ADDING NEW REQUIREMENTS AS TO
holographic wills were not permitted by law still,
EXECUTION OF WILLS; FAILURE TO OBSERVE FORMAL
because at the time of the hearing and when the case
REQUIREMENTS AT TIME OF EXECUTION INVALIDATES
was to be decided the new Civil Code was already in
WILLS; HEIRS INHERIT BY INTESTATE SUCCESSION;
force, which Code permitted the execution of
LEGISLATURE CAN NOT VALIDATE VOID WILLS. From
holographic wills, under a liberal view, and to carry out
the day of the death of the testator, if he leaves a will,
the intention of the testator which according to the trial
the title of the legatees and devisees under it becomes
court is the controlling factor and may override any
a vested right, protected under the due process clause
defect in form, said trial court by order dated January
of the Constitution against a subsequent change in the
24, 1952, admitted to probate Exhibit "A", as the Last
statute adding new legal requirements of execution of
Will and Testament of Father Sancho Abadia. The
will, which would invalidate such a will. By parity of
oppositors are appealing from that decision; and
reasoning, when one executes a will which is invalid for
because only questions of law are involved in the
failure to observe and follow the legal requirements at
appeal, the case was certified to us by the Court of
the time of its execution then upon his death he should
Appeals.
be regarded and declared as having died intestate, and
his heirs will then inherit by intestate succession, and no
The new Civil Code (Republic Act No. 386) under article
subsequent law with more liberal requirements or which
810 thereof provides that a person may execute a
dispenses with such requirements as to execution
holographic will which must be entirely written, dated
should be allowed to validate a defective will and
and signed by the testator himself and need not be
thereby divest the heirs of their vested rights in the
witnessed. It is a fact, however, that at the time that
estate by intestate succession. The general rule is that
Exhibit "A" was executed in 1923 and at the time that
the Legislature can not validate void wills (57 Am. Jur.,
Father Abadia died in 1943, holographic wills were not
Wills, Sec. 231, pp. 192-193).
permitted, and the law at the time imposed certain
requirements for the execution of wills, such as
numbering correlatively each page (not folio or sheet)
DECISION
in letters and signing on the left hand margin by the
225
testator and by the three attesting witnesses,
requirements which were not complied with in Exhibit
"A" because the back pages of the first two folios of the
will were not signed by any one, not even by the testator
and were not numbered, and as to the three front pages,
they were signed only by the testator.
Interpreting and applying this requirement this Court in
the case of In re Estate of Saguinsin, 41 Phil., 875, 879,
referring to the failure of the testator and his witnesses
to sign on the left hand margin of every page,
said:jgc:chanrobles.com.ph
". . . This defect is radical and totally vitiates the
testament. It is not enough that the signatures
guaranteeing authenticity should appear upon two folios
or leaves; three pages having been written on, the
authenticity of all three of them should be guaranteed
by the signature of the alleged testatrix and her
witnesses."cralaw virtua1aw library
And in the case of Aspe v. Prieto, 46 Phil., 700, referring
to the same requirement, this Court
declared:jgc:chanrobles.com.ph
that when statutes passed after the execution of the will
and after the death of the testator lessen the formalities
required by law for the execution of wills, said
subsequent statutes should be applied so as to validate
wills defectively executed according to the law in force
at the time of execution. However, we should not forget
that from the day of the death of the testator, if he
leaves a will, the title of the legatees and devisees under
it becomes a vested right, protected under the due
process clause of the constitution against a subsequent
change in the statute adding new legal requirements of
execution of wills which would invalidate such a will. By
parity of reasoning, when one executes a will which is
invalid for failure to observe and follow the legal
requirements at the time of its execution then upon his
death he should be regarded and declared as having
died intestate, and his heirs will then inherit by intestate
succession, and no subsequent law with more liberal
requirements or which dispenses with such
requirements as to execution should be allowed to
validate a defective will and thereby divest the heirs of
their vested rights in the estate by intestate succession.
The general rule is that the Legislature can not validate
void wills (57 Am. Jur., Wills, Sec. 231, pp. 192-193).

"From an examination of the document in question, it In view of the foregoing, the order appealed from is
appears that the left margins of the six pages of the reversed, and Exhibit "A" is denied probate. With costs.
document are signed only by Ventura Prieto. The
noncompliance with section 2 of Act No. 2645 by the
attesting witnesses who omitted to sign with the
testator at the left margin of each of the five pages of
the document alleged to be the will of Ventura Prieto, is
a fatal defect that constitutes an obstacle to its
probate."cralaw virtua1aw library

What is the law to apply to the probate of Exh. "A" ? May

we apply the provisions of the new Civil Code which now
allows holographic wills, like Exhibit "A" which provisions
were invoked by the appellee- petitioner and applied by
the lower court? But article 795 of this same new Civil
Code expressly provides: "The validity of a will as to its
form depends upon the observance of the law in force
at the time it is made." The above provision is but an
expression or statement of the weight of authority to the
effect that the validity of a will is to be judged not by
the law inforce at the time of the testator’s death or at
the time the supposed will is presented in court for
probate or when the petition is decided by the court but
at the time the instrument was executed. One reason in
support of the rule is that although the will operates
upon and after the death of the testator, the wishes of
the testator about the disposition of his estate among
his heirs and among the legatees is given solemn
expression at the time the will is executed, and in
reality, the legacy or bequest then becomes a completed
act. This ruling has been laid down by this court in the
case of In re Will of Riosa, 39 Phil., 23. It is a wholesome
doctrine and should be followed.

Of course, there is the view that the intention of the

testator should be the ruling and controlling factor and
that all adequate remedies and interpretations should
be resorted to in order to carry out said intention, and
226
227
Ibarle vs. Po (February 27, 1953
G.R. No. L-5064 February 27, 1953
BIENVENIDO A. IBARLE, plaintiff-appellant,
vs.
ESPERANZA M. PO, defendant-appellant.
Quirico del Mar for appellant.
Daniel P. Tumulak and Conchita F. Miel appellee.
TUASON, J.:
This action commenced in the Court of First Instance of
Cebu to annul a deed of sale conveying to the
defendant, in consideration of P1,700, one undivided
half of a parcel of land which previously had been sold,
along with the other half, by the same vendor to the
plaintiff's grantors. judgment was against the plaintiff.
The case was submitted for decision upon an agreed
statement of facts, the pertinent parts of which are thus
summarized in the appealed decision:
1st. — That Leonard j. Winstanley and Catalina Navarro
were husband and wife, the former having died on June
6, 1946 leaving heir the surviving spouse and some
minor children;
2nd. — hat upon the death of L.J. Winstanley, he left a
parcel of land described under Transfer Certificate of
title No. 2391 of the Registry of Deeds of the Province
of Cebu;
3rd. — That the above mentioned property was a
conjugal property;
4th. — That on April 15, 1946, the surviving spouse
Catalina Navarro Vda. de Winstanley sold the entire
parcel of land to the spouses Maria Canoy, alleging
among other things, that she needed money for the
support of her children;
5th. — That on May 24, 1947, the spouses Maria Canoy
and Roberto Canoy sold the same parcel of land to the
plaintiff in this case named Bienvenido A. Ebarle;
6th. — That the two deeds of sale referred to above were
not registered and have never been registered up to the
date;
7th. — That on January 17, 1948 surviving spouse
Catalina Navarro Vda. de Winstanley, after her
appointment as guardian of her children by this court
(Special proceeding no. 212-R) sold one-half of the land
mentioned above to Esperanza M. Po, defendant in the
instant case, which portion belongs to the children of the
above named spouses.
As stated by the trial Judge, the sole question for
determination is the validity of the sale to Esperanza M.
Po, the last purchaser. This question in turn depends
upon the validity of the prior ale to Maria Canoy and
Roberto Canoy.
Article 657 of the old Civil Code provides: "The rights to
the succession of a person are transmitted from the
moment of his death." in a slightly different language,
this article is incorporated in the new Civil Code as
article 777.
Manresa, commending on article 657 of the Civil Code
of Spain, says:
The moment of death is the determining factor when the
heirs acquire a definite right to the inheritance, whether
such right be pure or contingent. It is immaterial
whether a short or long period of time lapses between
the death of the predecessor and the entry into
possession of the property of the inheritance because
the right is always deemed to be retroactive from the
moment of death. (5 Manresa, 317.)
The above provision and comment make it clear that
when Catalina Navarro Vda. de Winstanley sold the
entire parcel to the Canoy spouses, one-half of it already
belonged to the seller's children. No formal or judicial
declaration being needed to confirm the children's title,
it follows that the first sale was null and void in so far as
it included the children's share.
On the other hand, the sale to the defendant having
been made by authority of the competent court was
undeniably legal and effective. The fact that it has not
been recorded is of no consequence. If registration were
necessary, still the non-registration would not avail the
plaintiff because it was due to no other cause than his
own opposition.
The decision will be affirmed subject to the reservation,
made in said decision, of the right of the plaintitff and/or
the Canoy spouses to bring such action against Catalina
Navarro Vda. de Winstanley as may be appropriate for
such damages as they may have incurred by reason of
the voiding of the sale in their favor.
228
Testate Estate of the Late Alipio Abada vs. Abaja
(G.R. No. 147145, January 31, 2005)
G.R. No. 147145 January 31, 2005
TESTATE ESTATE OF THE LATE ALIPIO ABADA, BELINDA
CAPONONG-NOBLE, petitioner,
vs.
ALIPIO ABAJA and NOEL ABELLAR, respondents.
DECISION
CARPIO, J.:
The Case
Before the Court is a petition for review1 assailing the
Decision2 of the Court of Appeals of 12 January 2001 in
CA-G.R. CV No. 47644. The Court of Appeals sustained
the Resolution3 of the Regional Trial Court of
Kabankalan, Negros Occidental, Branch 61 ("RTC-
Kabankalan"), admitting to probate the last will and
testament of Alipio Abada ("Abada").
The Antecedent Facts
Abada died sometime in May 1940.4 His widow Paula
Toray ("Toray") died sometime in September 1943.
Both died without legitimate children.
On 13 September 1968, Alipio C. Abaja ("Alipio") filed
with the then Court of First Instance of Negros
Occidental (now RTC-Kabankalan) a petition,5 docketed
as SP No. 070 (313-8668), for the probate of the last
will and testament ("will") of Abada. Abada allegedly
named as his testamentary heirs his natural children
Eulogio Abaja ("Eulogio") and Rosario Cordova. Alipio is
the son of Eulogio.
Nicanor Caponong ("Caponong") opposed the petition
on the ground that Abada left no will when he died in
1940. Caponong further alleged that the will, if Abada
really executed it, should be disallowed for the following
reasons: (1) it was not executed and attested as
required by law; (2) it was not intended as the last will
of the testator; and (3) it was procured by undue and
improper pressure and influence on the part of the
beneficiaries. Citing the same grounds invoked by
Caponong, the alleged intestate heirs of Abada, namely,
Joel, Julian, Paz, Evangeline, Geronimo, Humberto,
Teodora and Elena Abada ("Joel Abada, et al."), and
Levi, Leandro, Antonio, Florian, Hernani and Carmela
Tronco ("Levi Tronco, et al."), also opposed the petition.
The oppositors are the nephews, nieces and
grandchildren of Abada and Toray.
On 13 September 1968, Alipio filed another petition6
before the RTC-Kabankalan, docketed as SP No. 071
(312-8669), for the probate of the last will and
testament of Toray. Caponong, Joel Abada, et al., and
Levi Tronco, et al. opposed the petition on the same
grounds they cited in SP No. 070 (313-8668).
On 20 September 1968, Caponong filed a petition7
before the RTC-Kabankalan, docketed as SP No. 069
(309), praying for the issuance in his name of letters of
administration of the intestate estate of Abada and
Toray.
In an Order dated 14 August 1981, the RTC-Kabankalan
admitted to probate the will of Toray. Since the
oppositors did not file any motion for reconsideration,
the order allowing the probate of Toray’s will became
final and executory.8
In an order dated 23 November 1990, the RTC-
Kabankalan designated Belinda Caponong-Noble
("Caponong-Noble") Special Administratrix of the estate
of Abada and Toray.9 Caponong-Noble moved for the
dismissal of the petition for probate of the will of Abada.
The RTC-Kabankalan denied the motion in an Order
dated 20 August 1991.10
Sometime in 1993, during the proceedings, Presiding
Judge Rodolfo S. Layumas discovered that in an Order
dated 16 March 1992, former Presiding Judge Edgardo
Catilo had already submitted the case for decision. Thus,
the RTC-Kabankalan rendered a Resolution dated 22
June 1994, as follows:
There having been sufficient notice to the heirs as
required by law; that there is substantial compliance
with the formalities of a Will as the law directs and that
the petitioner through his testimony and the deposition
of Felix Gallinero was able to establish the regularity of
the execution of the said Will and further, there being
no evidence of bad faith and fraud, or substitution of the
said Will, the Last Will and Testament of Alipio Abada
dated June 4, 1932 is admitted and allowed probate.
As prayed for by counsel, Noel Abbellar11 is appointed
administrator of the estate of Paula Toray who shall
discharge his duties as such after letters of
administration shall have been issued in his favor and
after taking his oath and filing a bond in the amount of
Ten Thousand (P10,000.00) Pesos.
Mrs. Belinda C. Noble, the present administratrix of the
estate of Alipio Abada shall continue discharging her
duties as such until further orders from this Court.
SO ORDERED.12
The RTC-Kabankalan ruled on the only issue raised by
the oppositors in their motions to dismiss the petition
for probate, that is, whether the will of Abada has an
229
attestation clause as required by law. The RTC-
Kabankalan further held that the failure of the
oppositors to raise any other matter forecloses all other
issues.
Not satisfied with the Resolution, Caponong-Noble filed
a notice of appeal.
In a Decision promulgated on 12 January 2001, the
Court of Appeals affirmed the Resolution of the RTC-
Kabankalan. The appellate court found that the RTC-
Kabankalan properly admitted to probate the will of
Abada.
Hence, the present recourse by Caponong-Noble.
The Issues
The petition raises the following issues:
1. What laws apply to the probate of the last will of
Abada;
2. Whether the will of Abada requires acknowledgment
before a notary public;13
3. Whether the will must expressly state that it is written
in a language or dialect known to the testator;
4. Whether the will of Abada has an attestation clause,
and if so, whether the attestation clause complies with
the requirements of the applicable laws;
5. Whether Caponong-Noble is precluded from raising
the issue of whether the will of Abada is written in a
language known to Abada;
6. Whether evidence aliunde may be resorted to in the
probate of the will of Abada.
The Ruling of the Court
The Court of Appeals did not err in sustaining the RTC-
Kabankalan in admitting to probate the will of Abada.
The Applicable Law
Abada executed his will on 4 June 1932. The laws in
force at that time are the Civil Code of 1889 or the Old
Civil Code, and Act No. 190 or the Code of Civil
Procedure14 which governed the execution of wills
before the enactment of the New Civil Code.
The matter in dispute in the present case is the
attestation clause in the will of Abada. Section 618 of
the Code of Civil Procedure, as amended by Act No.
2645,15 governs the form of the attestation clause of
Abada’s will.16Section 618 of the Code of Civil
Procedure, as amended, provides:
SEC. 618. Requisites of will. – No will, except as
provided in the preceding section,17 shall be valid to
pass any estate, real or personal, nor charge or affect
the same, unless it be written in the language or dialect
known by the testator and signed by him, 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. 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, on the left
margin, and said pages shall be numbered correlatively
in letters placed on the upper part of each sheet. 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.
Requisites of a Will under the Code of Civil Procedure
Under Section 618 of the Code of Civil Procedure, the
requisites of a will are the following:
(1) The will must be written in the language or dialect
known by the testator;
(2) The will must be signed by the testator, or by the
testator’s name written by some other person in his
presence, and by his express direction;
(3) The will must be attested and subscribed by three or
more credible witnesses in the presence of the testator
and of each other;
(4) The testator or the person requested by him to write
his name and the instrumental witnesses of the will
must sign each and every page of the will on the left
margin;
(5) The pages of the will must be numbered correlatively
in letters placed on the upper part of each sheet;
(6) 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 of the
will, or caused some other person to write his name,
under his express direction, in the presence of three
witnesses, and the witnesses witnessed and signed the
will and all pages of the will in the presence of the
testator and of each other.
230
Caponong-Noble asserts that the will of Abada does not
indicate that it is written in a language or dialect known
to the testator. Further, she maintains that the will is
not acknowledged before a notary public. She cites in
particular Articles 804 and 805 of the Old Civil Code,
thus:
Art. 804. Every will must be in writing and executed in
[a] language or dialect known to the testator.
Art. 806. Every will must be acknowledged before a
notary public by the testator and the witnesses. xxx18
Caponong-Noble actually cited Articles 804 and 806 of
the New Civil Code.19 Article 804 of the Old Civil Code
is about the rights and obligations of administrators of
the property of an absentee, while Article 806 of the Old
Civil Code defines a legitime.
Articles 804 and 806 of the New Civil Code are new
provisions. Article 804 of the New Civil Code is taken
from Section 618 of the Code of Civil Procedure.20
Article 806 of the New Civil Code is taken from Article
685 of the Old Civil Code21 which provides:
Art. 685. The notary and two of the witnesses who
authenticate the will must be acquainted with the
testator, or, should they not know him, he shall be
identified by two witnesses who are acquainted with him
and are known to the notary and to the attesting
witnesses. The notary and the witnesses shall also
endeavor to assure themselves that the testator has, in
their judgment, the legal capacity required to make a
will.
Witnesses authenticating a will without the attendance
of a notary, in cases falling under Articles 700 and 701,
are also required to know the testator.
However, the Code of Civil Procedure22 repealed Article
685 of the Old Civil Code. Under the Code of Civil
Procedure, the intervention of a notary is not necessary
in the execution of any will.23 Therefore, Abada’s will
does not require acknowledgment before a notary
public.1awphi1.nét
Caponong-Noble points out that nowhere in the will can
one discern that Abada knew the Spanish language. She
alleges that such defect is fatal and must result in the
disallowance of the will. On this issue, the Court of
Appeals held that the matter was not raised in the
motion to dismiss, and that it is now too late to raise the
issue on appeal. We agree with Caponong-Noble that
the doctrine of estoppel does not apply in probate
proceedings.24 In addition, the language used in the will
is part of the requisites under Section 618 of the Code
of Civil Procedure and the Court deems it proper to pass
upon this issue.
Nevertheless, Caponong-Noble’s contention must still
fail. There is no statutory requirement to state in the will
itself that the testator knew the language or dialect used
in the will.25 This is a matter that a party may establish
by proofaliunde.26 Caponong-Noble further argues that
Alipio, in his testimony, has failed, among others, to
show that Abada knew or understood the contents of the
will and the Spanish language used in the will. However,
Alipio testified that Abada used to gather Spanish-
speaking people in their place. In these gatherings,
Abada and his companions would talk in the Spanish
language.27 This sufficiently proves that Abada speaks
the Spanish language.
The Attestation Clause of Abada’s Will
A scrutiny of Abada’s will shows that it has an attestation
clause. The attestation clause of Abada’s will reads:
Suscrito y declarado por el testador Alipio Abada como
su ultima voluntad y testamento en presencia de
nosotros, habiendo tambien el testador firmado en
nuestra presencia en el margen izquierdo de todas y
cada una de las hojas del mismo. Y en testimonio de
ello, cada uno de nosotros lo firmamos en presencia de
nosotros y del testador al pie de este documento y en el
margen izquierdo de todas y cada una de las dos hojas
de que esta compuesto el mismo, las cuales estan
paginadas correlativamente con las letras "UNO" y
"DOS’ en la parte superior de la carrilla.28
Caponong-Noble proceeds to point out several defects
in the attestation clause. Caponong-Noble alleges that
the attestation clause fails to state the number of pages
on which the will is written.
The allegation has no merit. The phrase "en el margen
izquierdo de todas y cada una de las dos hojas de que
esta compuesto el mismo" which means "in the left
margin of each and every one of the two pages
consisting of the same" shows that the will consists of
two pages. The pages are numbered correlatively with
the letters "ONE" and "TWO" as can be gleaned from the
phrase "las cuales estan paginadas correlativamente
con las letras "UNO" y "DOS."
Caponong-Noble further alleges that the attestation
clause fails to state expressly that the testator signed
the will and its every page in the presence of three
witnesses. She then faults the Court of Appeals for
applying to the present case the rule on substantial
compliance found in Article 809 of the New Civil Code.29
The first sentence of the attestation clause reads:
"Suscrito y declarado por el testador Alipio Abada como
su ultima voluntad y testamento en presencia de
nosotros, habiendo tambien el testador firmado en
nuestra presencia en el margen izquierdo de todas y
cada una de las hojas del mismo." The English
translation is: "Subscribed and professed by the testator
Alipio Abada as his last will and testament in our
231
presence, the testator having also signed it in our
presence on the left margin of each and every one of
the pages of the same." The attestation clause clearly
states that Abada signed the will and its every page in
the presence of the witnesses.
However, Caponong-Noble is correct in saying that the
attestation clause does not indicate the number of
witnesses. On this point, the Court agrees with the
appellate court in applying the rule on substantial
compliance in determining the number of witnesses.
While the attestation clause does not state the number
of witnesses, a close inspection of the will shows that
three witnesses signed it.
This Court has applied the rule on substantial
compliance even before the effectivity of the New Civil
Code. InDichoso de Ticson v. De Gorostiza,30 the Court
recognized that there are two divergent tendencies in
the law on wills, one being based on strict construction
and the other on liberal construction. In Dichoso, the
Court noted thatAbangan v. Abangan,31 the basic case
on the liberal construction, is cited with approval in later
decisions of the Court.
In Adeva vda. De Leynez v. Leynez,32 the petitioner,
arguing for liberal construction of applicable laws,
enumerated a long line of cases to support her
argument while the respondent, contending that the
rule on strict construction should apply, also cited a long
series of cases to support his view. The Court, after
examining the cases invoked by the parties, held:
x x x It is, of course, not possible to lay down a general
rule, rigid and inflexible, which would be applicable to
all cases. 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. x x x.
An attestation clause is made for the purpose of
preserving, in permanent form, a record of the facts
attending the execution of the will, so that in case of
failure of the memory of the subscribing witnesses, or
other casualty, they may still be proved. (Thompson on
Wills, 2d ed., sec. 132.) A will, therefore, should not be
rejected where its attestation clause serves the purpose
of the law. x x x 331a\^/phi1.net
We rule to apply the liberal construction in the probate
of Abada’s will. Abada’s will clearly shows four
signatures: that of Abada and of three other persons. It
is reasonable to conclude that there are three witnesses
to the will. The question on the number of the witnesses
is answered by an examination of the will itself and
without the need for presentation of evidence aliunde.
The Court explained the extent and limits of the rule on
liberal construction, thus:
[T]he so-called liberal rule 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.l^vvphi1.net They
only permit a probe into the will, an exploration within
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.34 (Emphasis
supplied)
The phrase "en presencia de nosotros" or "in our
presence" coupled with the signatures appearing on the
will itself and after the attestation clause could only
mean that: (1) Abada subscribed to and professed
before the three witnesses that the document was his
last will, and (2) Abada signed the will and the left
margin of each page of the will in the presence of these
three witnesses.
Finally, Caponong-Noble alleges that the attestation
clause does not expressly state the circumstances that
the witnesses witnessed and signed the will and all its
pages in the presence of the testator and of each other.
This Court has ruled:
Precision of language in the drafting of an attestation
clause is desirable. However, it is not imperative that a
parrot-like copy of the words of the statute be made. It
is sufficient if from the language employed it can
reasonably be deduced that the attestation clause fulfills
what the law expects of it.35
The last part of the attestation clause states "en
testimonio de ello, cada uno de nosotros lo firmamos en
presencia de nosotros y del testador." In English, this
means "in its witness, every one of us also signed in our
presence and of the testator." This clearly shows that
the attesting witnesses witnessed the signing of the will
of the testator, and that each witness signed the will in
the presence of one another and of the testator.
WHEREFORE, we AFFIRM the Decision of the Court of
Appeals of 12 January 2001 in CA-G.R. CV No. 47644.
SO ORDERED.
232
233

ARTICLE 16
Miciano vs. Brimo (50 Phil 867)
G.R. No. L-22595 November 1, 1927
Testate Estate of Joseph G. Brimo, JUAN MICIANO,
administrator, petitioner-appellee,
vs.
ANDRE BRIMO, opponent-appellant.
ROMUALDEZ, J.:
The partition of the estate left by the deceased Joseph
G. Brimo is in question in this case.
The judicial administrator of this estate filed a scheme
of partition. Andre Brimo, one of the brothers of the
deceased, opposed it. The court, however, approved it.
The errors which the oppositor-appellant assigns are:
(1) The approval of said scheme of partition; (2) denial
of his participation in the inheritance; (3) the denial of
the motion for reconsideration of the order approving
the partition; (4) the approval of the purchase made by
the Pietro Lana of the deceased's business and the deed
of transfer of said business; and (5) the declaration that
the Turkish laws are impertinent to this cause, and the
failure not to postpone the approval of the scheme of
partition and the delivery of the deceased's business to
Pietro Lanza until the receipt of the depositions
requested in reference to the Turkish laws.
The appellant's opposition is based on the fact that the
partition in question puts into effect the provisions of
Joseph G. Brimo's will which are not in accordance with
the laws of his Turkish nationality, for which reason they
are void as being in violation or article 10 of the Civil
Code which, among other things, provides the following:
Nevertheless, legal and testamentary successions, in
respect to the order of succession as well as to the
amount of the successional rights and the intrinsic
validity of their provisions, shall be regulated by the
national law of the person whose succession is in
question, whatever may be the nature of the property
or the country in which it may be situated.
But the fact is that the oppositor did not prove that said
testimentary dispositions are not in accordance with the
Turkish laws, inasmuch as he did not present any
evidence showing what the Turkish laws are on the
matter, and in the absence of evidence on such laws,
they are presumed to be the same as those of the
Philippines. (Lim and Lim vs. Collector of Customs, 36
Phil., 472.)
It has not been proved in these proceedings what the
Turkish laws are. He, himself, acknowledges it when he
desires to be given an opportunity to present evidence
on this point; so much so that he assigns as an error of
the court in not having deferred the approval of the
scheme of partition until the receipt of certain testimony
requested regarding the Turkish laws on the matter.
The refusal to give the oppositor another opportunity to
prove such laws does not constitute an error. It is
discretionary with the trial court, and, taking into
consideration that the oppositor was granted ample
opportunity to introduce competent evidence, we find
no abuse of discretion on the part of the court in this
particular. There is, therefore, no evidence in the record
that the national law of the testator Joseph G. Brimo
was violated in the testamentary dispositions in
question which, not being contrary to our laws in force,
must be complied with and executed. lawphil.net
Therefore, the approval of the scheme of partition in this
respect was not erroneous.
In regard to the first assignment of error which deals
with the exclusion of the herein appellant as a legatee,
inasmuch as he is one of the persons designated as such
in will, it must be taken into consideration that such
exclusion is based on the last part of the second clause
of the will, which says:
Second. I like desire to state that although by law, I am
a Turkish citizen, this citizenship having been conferred
upon me by conquest and not by free choice, nor by
nationality and, on the other hand, having resided for a
considerable length of time in the Philippine Islands
where I succeeded in acquiring all of the property that I
now possess, it is my wish that the distribution of my
property and everything in connection with this, my will,
be made and disposed of in accordance with the laws in
force in the Philippine islands, requesting all of my
relatives to respect this wish, otherwise, I annul and
cancel beforehand whatever disposition found in this will
favorable to the person or persons who fail to comply
with this request.
The institution of legatees in this will is conditional, and
the condition is that the instituted legatees must respect
the testator's will to distribute his property, not in
accordance with the laws of his nationality, but in
accordance with the laws of the Philippines.
If this condition as it is expressed were legal and valid,
any legatee who fails to comply with it, as the herein
oppositor who, by his attitude in these proceedings has
not respected the will of the testator, as expressed, is
prevented from receiving his legacy.
234
The fact is, however, that the said condition is void,
being contrary to law, for article 792 of the civil Code
provides the following:

Impossible conditions and those contrary to law or good

morals shall be considered as not imposed and shall not
prejudice the heir or legatee in any manner whatsoever,
even should the testator otherwise provide.

And said condition is contrary to law because it

expressly ignores the testator's national law when,
according to article 10 of the civil Code above quoted,
such national law of the testator is the one to govern his
testamentary dispositions.

Said condition then, in the light of the legal provisions

above cited, is considered unwritten, and the institution
of legatees in said will is unconditional and consequently
valid and effective even as to the herein oppositor.

It results from all this that the second clause of the will
regarding the law which shall govern it, and to the
condition imposed upon the legatees, is null and void,
being contrary to law.

All of the remaining clauses of said will with all their

dispositions and requests are perfectly valid and
effective it not appearing that said clauses are contrary
to the testator's national law.

Therefore, the orders appealed from are modified and it

is directed that the distribution of this estate be made
in such a manner as to include the herein appellant
Andre Brimo as one of the legatees, and the scheme of
partition submitted by the judicial administrator is
approved in all other respects, without any
pronouncement as to costs.

So ordered.

235

Bellis vs. Bellis (June 8, 1967)
G.R. No. L-23678 June 6, 1967
TESTATE ESTATE OF AMOS G. BELLIS, deceased.
PEOPLE'S BANK and TRUST COMPANY, executor.
MARIA CRISTINA BELLIS and MIRIAM PALMA BELLIS,
oppositors-appellants,
vs.
EDWARD A. BELLIS, ET AL., heirs-appellees.
BENGZON, J.P., J.:
This is a direct appeal to Us, upon a question purely of
law, from an order of the Court of First Instance of
Manila dated April 30, 1964, approving the project of
partition filed by the executor in Civil Case No. 37089
therein.1äwphï1.ñët
The facts of the case are as follows:
Amos G. Bellis, born in Texas, was "a citizen of the State
of Texas and of the United States." By his first wife, Mary
E. Mallen, whom he divorced, he had five legitimate
children: Edward A. Bellis, George Bellis (who pre-
deceased him in infancy), Henry A. Bellis, Alexander
Bellis and Anna Bellis Allsman; by his second wife, Violet
Kennedy, who survived him, he had three legitimate
children: Edwin G. Bellis, Walter S. Bellis and Dorothy
Bellis; and finally, he had three illegitimate children:
Amos Bellis, Jr., Maria Cristina Bellis and Miriam Palma
Bellis.
On August 5, 1952, Amos G. Bellis executed a will in the
Philippines, in which he directed that after all taxes,
obligations, and expenses of administration are paid for,
his distributable estate should be divided, in trust, in the
following order and manner: (a) $240,000.00 to his first
wife, Mary E. Mallen; (b) P120,000.00 to his three
illegitimate children, Amos Bellis, Jr., Maria Cristina
Bellis, Miriam Palma Bellis, or P40,000.00 each and (c)
after the foregoing two items have been satisfied, the
remainder shall go to his seven surviving children by his
first and second wives, namely: Edward A. Bellis, Henry
A. Bellis, Alexander Bellis and Anna Bellis Allsman,
Edwin G. Bellis, Walter S. Bellis, and Dorothy E. Bellis,
in equal shares.1äwphï1.ñët
Subsequently, or on July 8, 1958, Amos G. Bellis died a
resident of San Antonio, Texas, U.S.A. His will was
admitted to probate in the Court of First Instance of
Manila on September 15, 1958.
The People's Bank and Trust Company, as executor of
the will, paid all the bequests therein including the
amount of $240,000.00 in the form of shares of stock to
Mary E. Mallen and to the three (3) illegitimate children,
Amos Bellis, Jr., Maria Cristina Bellis and Miriam Palma
Bellis, various amounts totalling P40,000.00 each in
satisfaction of their respective legacies, or a total of
P120,000.00, which it released from time to time
according as the lower court approved and allowed the
various motions or petitions filed by the latter three
requesting partial advances on account of their
respective legacies.
On January 8, 1964, preparatory to closing its
administration, the executor submitted and filed its
"Executor's Final Account, Report of Administration and
Project of Partition" wherein it reported, inter alia, the
satisfaction of the legacy of Mary E. Mallen by the
delivery to her of shares of stock amounting to
$240,000.00, and the legacies of Amos Bellis, Jr., Maria
Cristina Bellis and Miriam Palma Bellis in the amount of
P40,000.00 each or a total of P120,000.00. In the
project of partition, the executor — pursuant to the
"Twelfth" clause of the testator's Last Will and
Testament — divided the residuary estate into seven
equal portions for the benefit of the testator's seven
legitimate children by his first and second marriages.
On January 17, 1964, Maria Cristina Bellis and Miriam
Palma Bellis filed their respective oppositions to the
project of partition on the ground that they were
deprived of their legitimes as illegitimate children and,
therefore, compulsory heirs of the deceased.
Amos Bellis, Jr. interposed no opposition despite notice
to him, proof of service of which is evidenced by the
registry receipt submitted on April 27, 1964 by the
executor.1
After the parties filed their respective memoranda and
other pertinent pleadings, the lower court, on April 30,
1964, issued an order overruling the oppositions and
approving the executor's final account, report and
administration and project of partition. Relying upon
Art. 16 of the Civil Code, it applied the national law of
the decedent, which in this case is Texas law, which did
not provide for legitimes.
Their respective motions for reconsideration having
been denied by the lower court on June 11, 1964,
oppositors-appellants appealed to this Court to raise the
issue of which law must apply — Texas law or Philippine
law.
In this regard, the parties do not submit the case on,
nor even discuss, the doctrine of renvoi, applied by this
Court in Aznar v. Christensen Garcia, L-16749, January
31, 1963. Said doctrine is usually pertinent where the
decedent is a national of one country, and a domicile of
another. In the present case, it is not disputed that the
decedent was both a national of Texas and a domicile
236
thereof at the time of his death.2 So that even assuming
Texas has a conflict of law rule providing that the
domiciliary system (law of the domicile) should govern,
the same would not result in a reference back (renvoi)
to Philippine law, but would still refer to Texas law.
Nonetheless, if Texas has a conflicts rule adopting the
situs theory (lex rei sitae) calling for the application of
the law of the place where the properties are situated,
renvoi would arise, since the properties here involved
are found in the Philippines. In the absence, however,
of proof as to the conflict of law rule of Texas, it should
not be presumed different from ours.3Appellants'
position is therefore not rested on the doctrine of renvoi.
As stated, they never invoked nor even mentioned it in
their arguments. Rather, they argue that their case falls
under the circumstances mentioned in the third
paragraph of Article 17 in relation to Article 16 of the
Civil Code.
Article 16, par. 2, and Art. 1039 of the Civil Code, render
applicable the national law of the decedent, in intestate
or testamentary successions, with regard to four items:
(a) the order of succession; (b) the amount of
successional rights; (e) the intrinsic validity of the
provisions of the will; and (d) the capacity to succeed.
They provide that —
ART. 16. Real property as well as personal property is
subject to the law of the country where it is situated.
Art. 16 a specific provision in itself which must be
applied in testate and intestate succession. As further
indication of this legislative intent, Congress added a
new provision, under Art. 1039, which decrees that
capacity to succeed is to be governed by the national
law of the decedent.
It is therefore evident that whatever public policy or
good customs may be involved in our System of
legitimes, Congress has not intended to extend the
same to the succession of foreign nationals. For it has
specifically chosen to leave, inter alia, the amount of
successional rights, to the decedent's national law.
Specific provisions must prevail over general ones.
Appellants would also point out that the decedent
executed two wills — one to govern his Texas estate and
the other his Philippine estate — arguing from this that
he intended Philippine law to govern his Philippine
estate. Assuming that such was the decedent's intention
in executing a separate Philippine will, it would not alter
the law, for as this Court ruled in Miciano v. Brimo, 50
Phil. 867, 870, a provision in a foreigner's will to the
effect that his properties shall be distributed in
accordance with Philippine law and not with his national
law, is illegal and void, for his national law cannot be
ignored in regard to those matters that Article 10 — now
Article 16 — of the Civil Code states said national law
should govern.

However, intestate and testamentary successions, both
with respect to the order of succession and to the
amount of successional rights and to the intrinsic
validity of testamentary provisions, shall be regulated
by the national law of the person whose succession is
under consideration, whatever may he the nature of the
property and regardless of the country wherein said
property may be found.
The parties admit that the decedent, Amos G. Bellis, was
a citizen of the State of Texas, U.S.A., and that under
the laws of Texas, there are no forced heirs or legitimes.
Accordingly, since the intrinsic validity of the provision
of the will and the amount of successional rights are to
be determined under Texas law, the Philippine law on
legitimes cannot be applied to the testacy of Amos G.
Bellis.

ART. 1039. Capacity to succeed is governed by the law
of the nation of the decedent.
Appellants would however counter that Art.
paragraph three, of the Civil Code, stating that —
Wherefore, the order of the probate court is hereby
affirmed in toto, with costs against appellants. So
ordered.
17,

Prohibitive laws concerning persons, their acts or

property, and those which have for their object public
order, public policy and good customs shall not be
rendered ineffective by laws or judgments promulgated,
or by determinations or conventions agreed upon in a
foreign country.

prevails as the exception to Art. 16, par. 2 of the Civil

Code afore-quoted. This is not correct. Precisely,
Congressdeleted the phrase, "notwithstanding the
provisions of this and the next preceding article" when
they incorporated Art. 11 of the old Civil Code as Art. 17
of the new Civil Code, while reproducing without
substantial change the second paragraph of Art. 10 of
the old Civil Code as Art. 16 in the new. It must have
been their purpose to make the second paragraph of
237
238

Testate Estate of Christensen vs. Garcia (January
31, 1963)
G.R. No. L-16749 January 31, 1963
IN THE MATTER OF THE TESTATE ESTATE OF EDWARD
E. CHRISTENSEN, DECEASED.
ADOLFO C. AZNAR, Executor and LUCY CHRISTENSEN,
Heir of the deceased, Executor and Heir-appellees,
vs.
HELEN CHRISTENSEN GARCIA, oppositor-appellant.
M. R. Sotelo for executor and heir-appellees.
Leopoldo M. Abellera and Jovito Salonga for oppositor-
appellant.
LABRADOR, J.:
This is an appeal from a decision of the Court of First
Instance of Davao, Hon. Vicente N. Cusi, Jr., presiding,
in Special Proceeding No. 622 of said court, dated
September 14, 1949, approving among things the final
accounts of the executor, directing the executor to
reimburse Maria Lucy Christensen the amount of P3,600
paid by her to Helen Christensen Garcia as her legacy,
and declaring Maria Lucy Christensen entitled to the
residue of the property to be enjoyed during her
lifetime, and in case of death without issue, one-half of
said residue to be payable to Mrs. Carrie Louise C.
Borton, etc., in accordance with the provisions of the will
of the testator Edward E. Christensen. The will was
executed in Manila on March 5, 1951 and contains the
following provisions:
3. I declare ... that I have but ONE (1) child, named
MARIA LUCY CHRISTENSEN (now Mrs. Bernard Daney),
who was born in the Philippines about twenty-eight
years ago, and who is now residing at No. 665 Rodger
Young Village, Los Angeles, California, U.S.A.
4. I further declare that I now have no living ascendants,
and no descendants except my above named daughter,
MARIA LUCY CHRISTENSEN DANEY.
xxx xxx xxx
7. I give, devise and bequeath unto MARIA HELEN
CHRISTENSEN, now married to Eduardo Garcia, about
eighteen years of age and who, notwithstanding the fact
that she was baptized Christensen, is not in any way
related to me, nor has she been at any time adopted by
me, and who, from all information I have now resides in
Egpit, Digos, Davao, Philippines, the sum of THREE
THOUSAND SIX HUNDRED PESOS (P3,600.00),
Philippine Currency the same to be deposited in trust for
the said Maria Helen Christensen with the Davao Branch
of the Philippine National Bank, and paid to her at the
rate of One Hundred Pesos (P100.00), Philippine
Currency per month until the principal thereof as well as
any interest which may have accrued thereon, is
exhausted..
xxx xxx xxx
12. I hereby give, devise and bequeath, unto my well-
beloved daughter, the said MARIA LUCY CHRISTENSEN
DANEY (Mrs. Bernard Daney), now residing as aforesaid
at No. 665 Rodger Young Village, Los Angeles,
California, U.S.A., all the income from the rest,
remainder, and residue of my property and estate, real,
personal and/or mixed, of whatsoever kind or character,
and wheresoever situated, of which I may be possessed
at my death and which may have come to me from any
source whatsoever, during her lifetime: ....
It is in accordance with the above-quoted provisions
that the executor in his final account and project of
partition ratified the payment of only P3,600 to Helen
Christensen Garcia and proposed that the residue of the
estate be transferred to his daughter, Maria Lucy
Christensen.
Opposition to the approval of the project of partition was
filed by Helen Christensen Garcia, insofar as it deprives
her (Helen) of her legitime as an acknowledged natural
child, she having been declared by Us in G.R. Nos. L-
11483-84 an acknowledged natural child of the
deceased Edward E. Christensen. The legal grounds of
opposition are (a) that the distribution should be
governed by the laws of the Philippines, and (b) that
said order of distribution is contrary thereto insofar as it
denies to Helen Christensen, one of two acknowledged
natural children, one-half of the estate in full ownership.
In amplification of the above grounds it was alleged that
the law that should govern the estate of the deceased
Christensen should not be the internal law of California
alone, but the entire law thereof because several foreign
elements are involved, that the forum is the Philippines
and even if the case were decided in California, Section
946 of the California Civil Code, which requires that the
domicile of the decedent should apply, should be
applicable. It was also alleged that Maria Helen
Christensen having been declared an acknowledged
natural child of the decedent, she is deemed for all
purposes legitimate from the time of her birth.
The court below ruled that as Edward E. Christensen was
a citizen of the United States and of the State of
California at the time of his death, the successional
rights and intrinsic validity of the provisions in his will
are to be governed by the law of California, in
accordance with which a testator has the right to
dispose of his property in the way he desires, because
the right of absolute dominion over his property is
sacred and inviolable (In re McDaniel's Estate, 77 Cal.
239
Appl. 2d 877, 176 P. 2d 952, and In re Kaufman, 117
Cal. 286, 49 Pac. 192, cited in page 179, Record on
Appeal). Oppositor Maria Helen Christensen, through
counsel, filed various motions for reconsideration, but
these were denied. Hence, this appeal.
The most important assignments of error are as follows:
I was teaching school in Sacramento, California.
THE LOWER COURT ERRED IN IGNORING THE
DECISION OF THE HONORABLE SUPREME COURT THAT
HELEN IS THE ACKNOWLEDGED NATURAL CHILD OF
EDWARD E. CHRISTENSEN AND, CONSEQUENTLY, IN
DEPRIVING HER OF HER JUST SHARE IN THE
INHERITANCE.
II
THE LOWER COURT ERRED IN ENTIRELY IGNORING
AND/OR FAILING TO RECOGNIZE THE EXISTENCE OF
SEVERAL FACTORS, ELEMENTS AND CIRCUMSTANCES
CALLING FOR THE APPLICATION OF INTERNAL LAW.
III
THE LOWER COURT ERRED IN FAILING TO RECOGNIZE
THAT UNDER INTERNATIONAL LAW, PARTICULARLY
UNDER THE RENVOI DOCTRINE, THE INTRINSIC
VALIDITY OF THE TESTAMENTARY DISPOSITION OF
THE DISTRIBUTION OF THE ESTATE OF THE DECEASED
EDWARD E. CHRISTENSEN SHOULD BE GOVERNED BY
THE LAWS OF THE PHILIPPINES.
IV
THE LOWER COURT ERRED IN NOT DECLARING THAT
THE SCHEDULE OF DISTRIBUTION SUBMITTED BY THE
EXECUTOR IS CONTRARY TO THE PHILIPPINE LAWS.
V fact that he was born in New York, migrated to California
THE LOWER COURT ERRED IN NOT DECLARING THAT
UNDER THE PHILIPPINE LAWS HELEN CHRISTENSEN
GARCIA IS ENTITLED TO ONE-HALF (1/2) OF THE
ESTATE IN FULL OWNERSHIP.
There is no question that Edward E. Christensen was a
citizen of the United States and of the State of California
at the time of his death. But there is also no question
that at the time of his death he was domiciled in the
Philippines, as witness the following facts admitted by
the executor himself in appellee's brief:
In the proceedings for admission of the will to probate,
the facts of record show that the deceased Edward E.
Christensen was born on November 29, 1875 in New
York City, N.Y., U.S.A.; his first arrival in the Philippines,
as an appointed school teacher, was on July 1, 1901, on
board the U.S. Army Transport "Sheridan" with Port of
Embarkation as the City of San Francisco, in the State
of California, U.S.A. He stayed in the Philippines until
1904.
In December, 1904, Mr. Christensen returned to the
United States and stayed there for the following nine
years until 1913, during which time he resided in, and
Mr. Christensen's next arrival in the Philippines was in
July of the year 1913. However, in 1928, he again
departed the Philippines for the United States and came
back here the following year, 1929. Some nine years
later, in 1938, he again returned to his own country, and
came back to the Philippines the following year, 1939.
Wherefore, the parties respectfully pray that the
foregoing stipulation of facts be admitted and approved
by this Honorable Court, without prejudice to the parties
adducing other evidence to prove their case not covered
by this stipulation of facts. 1äwphï1.ñët
Being an American citizen, Mr. Christensen was interned
by the Japanese Military Forces in the Philippines during
World War II. Upon liberation, in April 1945, he left for
the United States but returned to the Philippines in
December, 1945. Appellees Collective Exhibits "6", CFI
Davao, Sp. Proc. 622, as Exhibits "AA", "BB" and "CC-
Daney"; Exhs. "MM", "MM-l", "MM-2-Daney" and p. 473,
t.s.n., July 21, 1953.)
In April, 1951, Edward E. Christensen returned once
more to California shortly after the making of his last
will and testament (now in question herein) which he
executed at his lawyers' offices in Manila on March 5,
1951. He died at the St. Luke's Hospital in the City of
Manila on April 30, 1953. (pp. 2-3)
In arriving at the conclusion that the domicile of the
deceased is the Philippines, we are persuaded by the
and resided there for nine years, and since he came to
the Philippines in 1913 he returned to California very
rarely and only for short visits (perhaps to relatives),
and considering that he appears never to have owned
or acquired a home or properties in that state, which
would indicate that he would ultimately abandon the
Philippines and make home in the State of California.
Sec. 16. Residence is a term used with many shades of
meaning from mere temporary presence to the most
permanent abode. Generally, however, it is used to
denote something more than mere physical presence.
(Goodrich on Conflict of Laws, p. 29)
As to his citizenship, however, We find that the
citizenship that he acquired in California when he
resided in Sacramento, California from 1904 to 1913,
was never lost by his stay in the Philippines, for the
latter was a territory of the United States (not a state)
240
until 1946 and the deceased appears to have considered
himself as a citizen of California by the fact that when
he executed his will in 1951 he declared that he was a
citizen of that State; so that he appears never to have
intended to abandon his California citizenship by
acquiring another. This conclusion is in accordance with
the following principle expounded by Goodrich in his
Conflict of Laws.
The terms "'residence" and "domicile" might well be
taken to mean the same thing, a place of permanent
abode. But domicile, as has been shown, has acquired a
technical meaning. Thus one may be domiciled in a place
where he has never been. And he may reside in a place
where he has no domicile. The man with two homes,
between which he divides his time, certainly resides in
each one, while living in it. But if he went on business
which would require his presence for several weeks or
months, he might properly be said to have sufficient
connection with the place to be called a resident. It is
clear, however, that, if he treated his settlement as
continuing only for the particular business in hand, not
giving up his former "home," he could not be a domiciled
New Yorker. Acquisition of a domicile of choice requires
the exercise of intention as well as physical presence.
"Residence simply requires bodily presence of an
inhabitant in a given place, while domicile requires
bodily presence in that place and also an intention to
make it one's domicile." Residence, however, is a term
used with many shades of meaning, from the merest
temporary presence to the most permanent abode, and
it is not safe to insist that any one use et the only proper
one. (Goodrich, p. 29)
The law that governs the validity of his testamentary
dispositions is defined in Article 16 of the Civil Code of
the Philippines, which is as follows:
ART. 16. Real property as well as personal property is
subject to the law of the country where it is situated.
However, intestate and testamentary successions, both
with respect to the order of succession and to the
amount of successional rights and to the intrinsic
validity of testamentary provisions, shall be regulated
by the national law of the person whose succession is
under consideration, whatever may be the nature of the
property and regardless of the country where said
property may be found.
The application of this article in the case at bar requires
the determination of the meaning of the term "national
law"is used therein.
There is no single American law governing the validity
of testamentary provisions in the United States, each
state of the Union having its own private law applicable
to its citizens only and in force only within the state. The
"national law" indicated in Article 16 of the Civil Code
above quoted can not, therefore, possibly mean or apply
to any general American law. So it can refer to no other
than the private law of the State of California.
The next question is: What is the law in California
governing the disposition of personal property? The
decision of the court below, sustains the contention of
the executor-appellee that under the California Probate
Code, a testator may dispose of his property by will in
the form and manner he desires, citing the case of
Estate of McDaniel, 77 Cal. Appl. 2d 877, 176 P. 2d 952.
But appellant invokes the provisions of Article 946 of the
Civil Code of California, which is as follows:
If there is no law to the contrary, in the place where
personal property is situated, it is deemed to follow the
person of its owner, and is governed by the law of his
domicile.
The existence of this provision is alleged in appellant's
opposition and is not denied. We have checked it in the
California Civil Code and it is there. Appellee, on the
other hand, relies on the case cited in the decision and
testified to by a witness. (Only the case of Kaufman is
correctly cited.) It is argued on executor's behalf that as
the deceased Christensen was a citizen of the State of
California, the internal law thereof, which is that given
in the abovecited case, should govern the determination
of the validity of the testamentary provisions of
Christensen's will, such law being in force in the State
of California of which Christensen was a citizen.
Appellant, on the other hand, insists that Article 946
should be applicable, and in accordance therewith and
following the doctrine of therenvoi, the question of the
validity of the testamentary provision in question should
be referred back to the law of the decedent's domicile,
which is the Philippines.
The theory of doctrine of renvoi has been defined by
various authors, thus:
The problem has been stated in this way: "When the
Conflict of Laws rule of the forum refers a jural matter
to a foreign law for decision, is the reference to the
purely internal rules of law of the foreign system; i.e.,
to the totality of the foreign law minus its Conflict of
Laws rules?"
On logic, the solution is not an easy one. The Michigan
court chose to accept the renvoi, that is, applied the
Conflict of Laws rule of Illinois which referred the matter
back to Michigan law. But once having determined the
the Conflict of Laws principle is the rule looked to, it is
difficult to see why the reference back should not have
been to Michigan Conflict of Laws. This would have
resulted in the "endless chain of references" which has
so often been criticized be legal writers. The opponents
of the renvoi would have looked merely to the internal
law of Illinois, thus rejecting the renvoi or the reference
back. Yet there seems no compelling logical reason why
the original reference should be the internal law rather
than to the Conflict of Laws rule. It is true that such a
241
solution avoids going on a merry-go-round, but those
who have accepted the renvoi theory avoid this
inextricabilis circulas by getting off at the second
reference and at that point applying internal law.
Perhaps the opponents of the renvoi are a bit more
consistent for they look always to internal law as the
rule of reference.
Strangely enough, both the advocates for and the
objectors to the renvoi plead that greater uniformity will
result from adoption of their respective views. And still
more strange is the fact that the only way to achieve
uniformity in this choice-of-law problem is if in the
dispute the two states whose laws form the legal basis
of the litigation disagree as to whether the renvoi should
be accepted. If both reject, or both accept the doctrine,
the result of the litigation will vary with the choice of the
forum. In the case stated above, had the Michigan court
rejected the renvoi, judgment would have been against
the woman; if the suit had been brought in the Illinois
courts, and they too rejected the renvoi, judgment
would be for the woman. The same result would happen,
though the courts would switch with respect to which
would hold liability, if both courts accepted the renvoi.
The Restatement accepts the renvoi theory in two
instances: where the title to land is in question, and
where the validity of a decree of divorce is challenged.
In these cases the Conflict of Laws rule of the situs of
the land, or the domicile of the parties in the divorce
case, is applied by the forum, but any further reference
goes only to the internal law. Thus, a person's title to
land, recognized by the situs, will be recognized by
every court; and every divorce, valid by the domicile of
the parties, will be valid everywhere. (Goodrich, Conflict
of Laws, Sec. 7, pp. 13-14.)
X, a citizen of Massachusetts, dies intestate, domiciled
in France, leaving movable property in Massachusetts,
England, and France. The question arises as to how this
property is to be distributed among X's next of kin.
Assume (1) that this question arises in a Massachusetts
court. There the rule of the conflict of laws as to
intestate succession to movables calls for an application
of the law of the deceased's last domicile. Since by
hypothesis X's last domicile was France, the natural
thing for the Massachusetts court to do would be to turn
to French statute of distributions, or whatever
corresponds thereto in French law, and decree a
distribution accordingly. An examination of French law,
however, would show that if a French court were called
upon to determine how this property should be
distributed, it would refer the distribution to the national
law of the deceased, thus applying the Massachusetts
statute of distributions. So on the surface of things the
Massachusetts court has open to it alternative course of
action: (a) either to apply the French law is to intestate
succession, or (b) to resolve itself into a French court
and apply the Massachusetts statute of distributions, on
the assumption that this is what a French court would
do. If it accepts the so-called renvoidoctrine, it will
follow the latter course, thus applying its own law.
This is one type of renvoi. A jural matter is presented
which the conflict-of-laws rule of the forum refers to a
foreign law, the conflict-of-laws rule of which, in turn,
refers the matter back again to the law of the forum.
This is renvoi in the narrower sense. The German term
for this judicial process is 'Ruckverweisung.'" (Harvard
Law Review, Vol. 31, pp. 523-571.)
After a decision has been arrived at that a foreign law is
to be resorted to as governing a particular case, the
further question may arise: Are the rules as to the
conflict of laws contained in such foreign law also to be
resorted to? This is a question which, while it has been
considered by the courts in but a few instances, has
been the subject of frequent discussion by textwriters
and essayists; and the doctrine involved has been
descriptively designated by them as the "Renvoyer" to
send back, or the "Ruchversweisung", or the
"Weiterverweisung", since an affirmative answer to the
question postulated and the operation of the adoption of
the foreign law in toto would in many cases result in
returning the main controversy to be decided according
to the law of the forum. ... (16 C.J.S. 872.)
Another theory, known as the "doctrine of renvoi", has
been advanced. The theory of the doctrine of renvoiis
that the court of the forum, in determining the question
before it, must take into account the whole law of the
other jurisdiction, but also its rules as to conflict of laws,
and then apply the law to the actual question which the
rules of the other jurisdiction prescribe. This may be the
law of the forum. The doctrine of therenvoi has generally
been repudiated by the American authorities. (2 Am.
Jur. 296)
The scope of the theory of renvoi has also been defined
and the reasons for its application in a country explained
by Prof. Lorenzen in an article in the Yale Law Journal,
Vol. 27, 1917-1918, pp. 529-531. The pertinent parts of
the article are quoted herein below:
The recognition of the renvoi theory implies that the
rules of the conflict of laws are to be understood as
incorporating not only the ordinary or internal law of the
foreign state or country, but its rules of the conflict of
laws as well. According to this theory 'the law of a
country' means the whole of its law.
xxx xxx xxx
Von Bar presented his views at the meeting of the
Institute of International Law, at Neuchatel, in 1900, in
the form of the following theses:
(1) Every court shall observe the law of its country as
regards the application of foreign laws.
242
(2) Provided that no express provision to the contrary
exists, the court shall respect:
(a) The provisions of a foreign law which disclaims the
right to bind its nationals abroad as regards their
personal statute, and desires that said personal statute
shall be determined by the law of the domicile, or even
by the law of the place where the act in question
occurred.
(b) The decision of two or more foreign systems of law,
provided it be certain that one of them is necessarily
competent, which agree in attributing the determination
of a question to the same system of law.
xxx xxx xxx
If, for example, the English law directs its judge to
distribute the personal estate of an Englishman who has
died domiciled in Belgium in accordance with the law of
his domicile, he must first inquire whether the law of
Belgium would distribute personal property upon death
in accordance with the law of domicile, and if he finds
that the Belgian law would make the distribution in
accordance with the law of nationality — that is the
English law — he must accept this reference back to his
own law.
We note that Article 946 of the California Civil Code is
its conflict of laws rule, while the rule applied in In re
Kaufman, Supra, its internal law. If the law on
succession and the conflict of laws rules of California are
to be enforced jointly, each in its own intended and
appropriate sphere, the principle cited In re Kaufman
should apply to citizens living in the State, but Article
946 should apply to such of its citizens as are not
domiciled in California but in other jurisdictions. The rule
laid down of resorting to the law of the domicile in the
determination of matters with foreign element involved
is in accord with the general principle of American law
that the domiciliary law should govern in most matters
or rights which follow the person of the owner.
When a man dies leaving personal property in one or
more states, and leaves a will directing the manner of
distribution of the property, the law of the state where
he was domiciled at the time of his death will be looked
to in deciding legal questions about the will, almost as
completely as the law of situs is consulted in questions
about the devise of land. It is logical that, since the
domiciliary rules control devolution of the personal
estate in case of intestate succession, the same rules
should determine the validity of an attempted
testamentary dispostion of the property. Here, also, it is
not that the domiciliary has effect beyond the borders
of the domiciliary state. The rules of the domicile are
recognized as controlling by the Conflict of Laws rules at
the situs property, and the reason for the recognition as
in the case of intestate succession, is the general
convenience of the doctrine. The New York court has
said on the point: 'The general principle that a
dispostiton of a personal property, valid at the domicile
of the owner, is valid anywhere, is one of the universal
application. It had its origin in that international comity
which was one of the first fruits of civilization, and it this
age, when business intercourse and the process of
accumulating property take but little notice of boundary
lines, the practical wisdom and justice of the rule is more
apparent than ever. (Goodrich, Conflict of Laws, Sec.
164, pp. 442-443.)
Appellees argue that what Article 16 of the Civil Code of
the Philippines pointed out as the national law is the
internal law of California. But as above explained the
laws of California have prescribed two sets of laws for
its citizens, one for residents therein and another for
those domiciled in other jurisdictions. Reason demands
that We should enforce the California internal law
prescribed for its citizens residing therein, and enforce
the conflict of laws rules for the citizens domiciled
abroad. If we must enforce the law of California as in
comity we are bound to go, as so declared in Article 16
of our Civil Code, then we must enforce the law of
California in accordance with the express mandate
thereof and as above explained, i.e., apply the internal
law for residents therein, and its conflict-of-laws rule for
those domiciled abroad.
It is argued on appellees' behalf that the clause "if there
is no law to the contrary in the place where the property
is situated" in Sec. 946 of the California Civil Code refers
to Article 16 of the Civil Code of the Philippines and that
the law to the contrary in the Philippines is the provision
in said Article 16 that the national law of the deceased
should govern. This contention can not be sustained. As
explained in the various authorities cited above the
national law mentioned in Article 16 of our Civil Code is
the law on conflict of laws in the California Civil Code,
i.e., Article 946, which authorizes the reference or
return of the question to the law of the testator's
domicile. The conflict of laws rule in California, Article
946, Civil Code, precisely refers back the case, when a
decedent is not domiciled in California, to the law of his
domicile, the Philippines in the case at bar. The court of
the domicile can not and should not refer the case back
to California; such action would leave the issue
incapable of determination because the case will then
be like a football, tossed back and forth between the two
states, between the country of which the decedent was
a citizen and the country of his domicile. The Philippine
court must apply its own law as directed in the conflict
of laws rule of the state of the decedent, if the question
has to be decided, especially as the application of the
internal law of California provides no legitime for
children while the Philippine law, Arts. 887(4) and 894,
Civil Code of the Philippines, makes natural children
legally acknowledged forced heirs of the parent
recognizing them.
The Philippine cases (In re Estate of Johnson, 39 Phil.
156; Riera vs. Palmaroli, 40 Phil. 105; Miciano vs.
Brimo, 50 Phil. 867; Babcock Templeton vs. Rider
Babcock, 52 Phil. 130; and Gibbs vs. Government, 59
243
Phil. 293.) cited by appellees to support the decision can
not possibly apply in the case at bar, for two important
reasons, i.e., the subject in each case does not appear
to be a citizen of a state in the United States but with
domicile in the Philippines, and it does not appear in
each case that there exists in the state of which the
subject is a citizen, a law similar to or identical with Art.
946 of the California Civil Code.

We therefore find that as the domicile of the deceased

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

WHEREFORE, the decision appealed from is hereby

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

244
Cayetano vs. Leonidas (May 30, 1984)
G.R. No. L-54919 May 30, 1984
POLLY CAYETANO, petitioner,
vs.
HON. TOMAS T. LEONIDAS, in his capacity as the
Presiding Judge of Branch XXXVIII, Court of First
Instance of Manila and NENITA CAMPOS PAGUIA,
respondents.
Ermelo P. Guzman for petitioner.
Armando Z. Gonzales for private respondent.
GUTIERREZ, JR., J.:
This is a petition for review on certiorari, seeking to
annul the order of the respondent judge of the Court of
First Instance of Manila, Branch XXXVIII, which
admitted to and allowed the probate of the last will and
testament of Adoracion C. Campos, after an ex-parte
presentation of evidence by herein private respondent.
On January 31, 1977, Adoracion C. Campos died,
leaving her father, petitioner Hermogenes Campos and
her sisters, private respondent Nenita C. Paguia,
Remedios C. Lopez and Marieta C. Medina as the
surviving heirs. As Hermogenes Campos was the only
compulsory heir, he executed an Affidavit of
Adjudication under Rule 74, Section I of the Rules of
Court whereby he adjudicated unto himself the
ownership of the entire estate of the deceased
Adoracion Campos.
Eleven months after, on November 25, 1977, Nenita C.
Paguia filed a petition for the reprobate of a will of the
deceased, Adoracion Campos, which was allegedly
executed in the United States and for her appointment
as administratrix of the estate of the deceased testatrix.
In her petition, Nenita alleged that the testatrix was an
American citizen at the time of her death and was a
permanent resident of 4633 Ditman Street,
Philadelphia, Pennsylvania, U.S.A.; that the testatrix
died in Manila on January 31, 1977 while temporarily
residing with her sister at 2167 Leveriza, Malate, Manila;
that during her lifetime, the testatrix made her last wig
and testament on July 10, 1975, according to the laws
of Pennsylvania, U.S.A., nominating Wilfredo Barzaga of
New Jersey as executor; that after the testatrix death,
her last will and testament was presented, probated,
allowed, and registered with the Registry of Wins at the
County of Philadelphia, U.S.A., that Clement L.
McLaughlin, the administrator who was appointed after
Dr. Barzaga had declined and waived his appointment
as executor in favor of the former, is also a resident of
Philadelphia, U.S.A., and that therefore, there is an
urgent need for the appointment of an administratrix to
administer and eventually distribute the properties of
the estate located in the Philippines.
On January 11, 1978, an opposition to the reprobate of
the will was filed by herein petitioner alleging among
other things, that he has every reason to believe that
the will in question is a forgery; that the intrinsic
provisions of the will are null and void; and that even if
pertinent American laws on intrinsic provisions are
invoked, the same could not apply inasmuch as they
would work injustice and injury to him.
On December 1, 1978, however, the petitioner through
his counsel, Atty. Franco Loyola, filed a Motion to
Dismiss Opposition (With Waiver of Rights or Interests)
stating that he "has been able to verify the veracity
thereof (of the will) and now confirms the same to be
truly the probated will of his daughter Adoracion."
Hence, an ex-partepresentation of evidence for the
reprobate of the questioned will was made.
On January 10, 1979, the respondent judge issued an
order, to wit:
At the hearing, it has been satisfactorily established that
Adoracion C. Campos, in her lifetime, was a citizen of
the United States of America with a permanent
residence at 4633 Ditman Street, Philadelphia, PA
19124, (Exhibit D) that when alive, Adoracion C.
Campos executed a Last Will and Testament in the
county of Philadelphia, Pennsylvania, U.S.A., according
to the laws thereat (Exhibits E-3 to E-3-b) that while in
temporary sojourn in the Philippines, Adoracion C.
Campos died in the City of Manila (Exhibit C) leaving
property both in the Philippines and in the United States
of America; that the Last Will and Testament of the late
Adoracion C. Campos was admitted and granted probate
by the Orphan's Court Division of the Court of Common
Pleas, the probate court of the Commonwealth of
Pennsylvania, County of Philadelphia, U.S.A., and letters
of administration were issued in favor of Clement J.
McLaughlin all in accordance with the laws of the said
foreign country on procedure and allowance of wills
(Exhibits E to E-10); and that the petitioner is not
suffering from any disqualification which would render
her unfit as administratrix of the estate in the Philippines
of the late Adoracion C. Campos.
WHEREFORE, the Last Will and Testament of the late
Adoracion C. Campos is hereby admitted to and allowed
probate in the Philippines, and Nenita Campos Paguia is
hereby appointed Administratrix of the estate of said
decedent; let Letters of Administration with the Will
annexed issue in favor of said Administratrix upon her
filing of a bond in the amount of P5,000.00 conditioned
under the provisions of Section I, Rule 81 of the Rules
of Court.
245
Another manifestation was filed by the petitioner on
April 14, 1979, confirming the withdrawal of his
opposition, acknowledging the same to be his voluntary
act and deed.
On May 25, 1979, Hermogenes Campos filed a petition
for relief, praying that the order allowing the will be set
aside on the ground that the withdrawal of his
opposition to the same was secured through fraudulent
means. According to him, the "Motion to Dismiss
Opposition" was inserted among the papers which he
signed in connection with two Deeds of Conditional Sales
which he executed with the Construction and
Development Corporation of the Philippines (CDCP). He
also alleged that the lawyer who filed the withdrawal of
the opposition was not his counsel-of-record in the
special proceedings case.
The petition for relief was set for hearing but the
petitioner failed to appear. He made several motions for
postponement until the hearing was set on May 29,
1980.
On May 18, 1980, petitioner filed another motion
entitled "Motion to Vacate and/or Set Aside the Order of
January 10, 1979, and/or dismiss the case for lack of
jurisdiction. In this motion, the notice of hearing
provided:
Please include this motion in your calendar for hearing
on May 29, 1980 at 8:30 in the morning for submission
for reconsideration and resolution of the Honorable
Court. Until this Motion is resolved, may I also request
for the future setting of the case for hearing on the
Oppositor's motion to set aside previously filed.
The hearing of May 29, 1980 was re-set by the court for
June 19, 1980. When the case was called for hearing on
this date, the counsel for petitioner tried to argue his
motion to vacate instead of adducing evidence in
support of the petition for relief. Thus, the respondent
judge issued an order dismissing the petition for relief
for failure to present evidence in support thereof.
Petitioner filed a motion for reconsideration but the
same was denied. In the same order, respondent judge
also denied the motion to vacate for lack of merit.
Hence, this petition.
Meanwhile, on June 6,1982, petitioner Hermogenes
Campos died and left a will, which, incidentally has been
questioned by the respondent, his children and forced
heirs as, on its face, patently null and void, and a
fabrication, appointing Polly Cayetano as the executrix
of his last will and testament. Cayetano, therefore, filed
a motion to substitute herself as petitioner in the instant
case which was granted by the court on September 13,
1982.
A motion to dismiss the petition on the ground that the
rights of the petitioner Hermogenes Campos merged
upon his death with the rights of the respondent and her
sisters, only remaining children and forced heirs was
denied on September 12, 1983.
Petitioner Cayetano persists with the allegations that the
respondent judge acted without or in excess of his
jurisdiction when:
1) He ruled the petitioner lost his standing in court
deprived the Right to Notice (sic) upon the filing of the
Motion to Dismiss opposition with waiver of rights or
interests against the estate of deceased Adoracion C.
Campos, thus, paving the way for the hearing ex-parte
of the petition for the probate of decedent will.
2) He ruled that petitioner can waive, renounce or
repudiate (not made in a public or authenticated
instrument), or by way of a petition presented to the
court but by way of a motion presented prior to an order
for the distribution of the estate-the law especially
providing that repudiation of an inheritance must be
presented, within 30 days after it has issued an order
for the distribution of the estate in accordance with the
rules of Court.
3) He ruled that the right of a forced heir to his legitime
can be divested by a decree admitting a will to probate
in which no provision is made for the forced heir in
complete disregard of Law of Succession
4) He denied petitioner's petition for Relief on the
ground that no evidence was adduced to support the
Petition for Relief when no Notice nor hearing was set to
afford petitioner to prove the merit of his petition — a
denial of the due process and a grave abuse of discretion
amounting to lack of jurisdiction.
5) He acquired no jurisdiction over the testate case, the
fact that the Testator at the time of death was a usual
resident of Dasmariñas, Cavite, consequently Cavite
Court of First Instance has exclusive jurisdiction over
the case (De Borja vs. Tan, G.R. No. L-7792, July 1955).
The first two issues raised by the petitioner are anchored
on the allegation that the respondent judge acted with
grave abuse of discretion when he allowed the
withdrawal of the petitioner's opposition to the
reprobate of the will.
We find no grave abuse of discretion on the part of the
respondent judge. No proof was adduced to support
petitioner's contention that the motion to withdraw was
secured through fraudulent means and that Atty. Franco
Loyola was not his counsel of record. The records show
that after the firing of the contested motion, the
petitioner at a later date, filed a manifestation wherein
he confirmed that the Motion to Dismiss Opposition was
his voluntary act and deed. Moreover, at the time the
motion was filed, the petitioner's former counsel, Atty.
Jose P. Lagrosa had long withdrawn from the case and
had been substituted by Atty. Franco Loyola who in turn
filed the motion. The present petitioner cannot,
246
therefore, maintain that the old man's attorney of record
was Atty. Lagrosa at the time of filing the motion. Since
the withdrawal was in order, the respondent judge acted
correctly in hearing the probate of the will ex-parte,
there being no other opposition to the same.
The third issue raised deals with the validity of the
provisions of the will. As a general rule, the probate
court's authority is limited only to the extrinsic validity
of the will, the due execution thereof, the testatrix's
testamentary capacity and the compliance with the
requisites or solemnities prescribed by law. The intrinsic
validity of the will normally comes only after the court
has declared that the will has been duly authenticated.
However, where practical considerations demand that
the intrinsic validity of the will be passed upon, even
before it is probated, the court should meet the issue.
(Maninang vs. Court of Appeals, 114 SCRA 478).
In the case at bar, the petitioner maintains that since
the respondent judge allowed the reprobate of
Adoracion's will, Hermogenes C. Campos was divested
of his legitime which was reserved by the law for him.
This contention is without merit.
Although on its face, the will appeared to have
preterited the petitioner and thus, the respondent judge
should have denied its reprobate outright, the private
respondents have sufficiently established that Adoracion
was, at the time of her death, an American citizen and
a permanent resident of Philadelphia, Pennsylvania,
U.S.A. Therefore, under Article 16 par. (2) and 1039 of
the Civil Code which respectively provide:
Art. 16 par. (2).
xxx xxx xxx
However, intestate and testamentary successions, both
with respect to the order of succession and to the
amount of successional rights and to the intrinsic
validity of testamentary provisions, shall be regulated
by the national law of the person whose succession is
under consideration, whatever may be the nature of the
property and regardless of the country wherein said
property may be found.
Art. 1039.
Capacity to succeed is governed by the law of the nation
of the decedent.
the law which governs Adoracion Campo's will is the law
of Pennsylvania, U.S.A., which is the national law of the
decedent. Although the parties admit that the
Pennsylvania law does not provide for legitimes and that
all the estate may be given away by the testatrix to a
complete stranger, the petitioner argues that such law
should not apply because it would be contrary to the
sound and established public policy and would run
counter to the specific provisions of Philippine Law.
It is a settled rule that as regards the intrinsic validity
of the provisions of the will, as provided for by Article
16(2) and 1039 of the Civil Code, the national law of the
decedent must apply. This was squarely applied in the
case ofBellis v. Bellis (20 SCRA 358) wherein we ruled:
It is therefore evident that whatever public policy or
good customs may be involved in our system of
legitimes, Congress has not intended to extend the
same to the succession of foreign nationals. For it has
specifically chosen to leave, inter alia, the amount of
successional rights, to the decedent's national law.
Specific provisions must prevail over general ones.
xxx xxx xxx
The parties admit that the decedent, Amos G. Bellis, was
a citizen of the State of Texas, U.S.A., and under the
law of Texas, there are no forced heirs or legitimes.
Accordingly, since the intrinsic validity of the provision
of the will and the amount of successional rights are to
be determined under Texas law, the Philippine Law on
legitimes cannot be applied to the testacy of Amos G.
Bellis.
As regards the alleged absence of notice of hearing for
the petition for relief, the records wig bear the fact that
what was repeatedly scheduled for hearing on separate
dates until June 19, 1980 was the petitioner's petition
for relief and not his motion to vacate the order of
January 10, 1979. There is no reason why the petitioner
should have been led to believe otherwise. The court
even admonished the petitioner's failing to adduce
evidence when his petition for relief was repeatedly set
for hearing. There was no denial of due process. The fact
that he requested "for the future setting of the case for
hearing . . ." did not mean that at the next hearing, the
motion to vacate would be heard and given preference
in lieu of the petition for relief. Furthermore, such
request should be embodied in a motion and not in a
mere notice of hearing.
Finally, we find the contention of the petition as to the
issue of jurisdiction utterly devoid of merit. Under Rule
73, Section 1, of the Rules of Court, it is provided that:
SECTION 1. Where estate of deceased persons settled.
— If the decedent is an inhabitant of the Philippines at
the time of his death, whether a citizen or an alien, his
will shall be proved, or letters of administration granted,
and his estate settled, in the Court of First Instance in
the province in which he resided at the time of his death,
and if he is an inhabitant of a foreign country, the Court
of First Instance of any province in which he had estate.
The court first taking cognizance of the settlement of the
estate of a decedent, shall exercise jurisdiction to the
exclusion of all other courts. The jurisdiction assumed
by a court, so far as it depends on the place of residence
247
of the decedent, or of the location of his estate, shall not
be contested in a suit or proceeding, except in an appeal
from that court, in the original case, or when the want
of jurisdiction appears on the record.

Therefore, the settlement of the estate of Adoracion

Campos was correctly filed with the Court of First
Instance of Manila where she had an estate since it was
alleged and proven that Adoracion at the time of her
death was a citizen and permanent resident of
Pennsylvania, United States of America and not a "usual
resident of Cavite" as alleged by the petitioner.
Moreover, petitioner is now estopped from questioning
the jurisdiction of the probate court in the petition for
relief. It is a settled rule that a party cannot invoke the
jurisdiction of a court to secure affirmative relief, against
his opponent and after failing to obtain such relief,
repudiate or question that same jurisdiction. (See
Saulog Transit, Inc. vs. Hon. Manuel Lazaro, et al., G.
R. No. 63 284, April 4, 1984).

WHEREFORE, the petition for certiorari and prohibition

is hereby dismissed for lack of merit.

SO ORDERED.

248
249
PCIB vs. Escolin (56 SCRA 266)
G.R. Nos. L-27860 and L-27896 March 29, 1974
PHILIPPINE COMMERCIAL AND INDUSTRIAL BANK,
Administrator of the Testate Estate of Charles Newton
Hodges (Sp. Proc. No. 1672 of the Court of First
Instance of Iloilo), petitioner,
vs.
THE HONORABLE VENICIO ESCOLIN, Presiding Judge of
the Court of First Instance of Iloilo, Branch II, and
AVELINA A. MAGNO, respondents.
G.R. Nos. L-27936 & L-27937 March 29, 1974
TESTATE ESTATE OF THE LATE LINNIE JANE HODGES
(Sp. Proc. No. 1307). TESTATE ESTATE OF THE LATE
CHARLES NEWTON HODGES (Sp. Proc. No. 1672).
PHILIPPINE COMMERCIAL AND INDUSTRIAL
BANK,administrator-appellant,
vs.
LORENZO CARLES, JOSE PABLICO, ALFREDO
CATEDRAL, SALVADOR GUZMAN, BELCESAR CAUSING,
FLORENIA BARRIDO, PURIFICACION CORONADO,
GRACIANO LUCERO, ARITEO THOMAS JAMIR,
MELQUIADES BATISANAN, PEPITO IYULORES,
ESPERIDION PARTISALA, WINIFREDO ESPADA,
ROSARIO ALINGASA, ADELFA PREMAYLON, SANTIAGO
PACAONSIS, and AVELINA A. MAGNO, the last as
Administratrix in Sp. Proc. No. 1307, appellees,
WESTERN INSTITUTE OF TECHNOLOGY, INC., movant-
appellee.
San Juan, Africa, Gonzales and San Agustin for
Philippine Commercial and Industrial Bank.
Manglapus Law Office, Antonio Law Office and Rizal R.
Quimpo for private respondents and appellees Avelina
A. Magno, etc., et al.
BARREDO, J.:p
Certiorari and prohibition with preliminary injunction;
certiorari to "declare all acts of the respondent court in
the Testate Estate of Linnie Jane Hodges (Sp. Proc. No.
1307 of the Court of First Instance of Iloilo) subsequent
to the order of December 14, 1957 as null and void for
having been issued without jurisdiction"; prohibition to
enjoin the respondent court from allowing, tolerating,
sanctioning, or abetting private respondent Avelina A.
Magno to perform or do any acts of administration, such
as those enumerated in the petition, and from exercising
any authority or power as Regular Administratrix of
above-named Testate Estate, by entertaining
manifestations, motion and pleadings filed by her and
acting on them, and also to enjoin said court from
allowing said private respondent to interfere, meddle or
take part in any manner in the administration of the
Testate Estate of Charles Newton Hodges (Sp. Proc. No.
1672 of the same court and branch); with prayer for
preliminary injunction, which was issued by this Court
on August 8, 1967 upon a bond of P5,000; the petition
being particularly directed against the orders of the
respondent court of October 12, 1966 denying
petitioner's motion of April 22, 1966 and its order of July
18, 1967 denying the motion for reconsideration of said
order.
Related to and involving basically the same main issue
as the foregoing petition, thirty-three (33) appeals from
different orders of the same respondent court approving
or otherwise sanctioning the acts of administration of
the respondent Magno on behalf of the testate Estate of
Mrs. Hodges.
THE FACTS
On May 23, 1957, Linnie Jane Hodges died in Iloilo City
leaving a will executed on November 22, 1952
pertinently providing as follows:
FIRST: I direct that all my just debts and funeral
expenses be first paid out of my estate.
SECOND: I give, devise and bequeath all of the rest,
residue and remainder of my estate, both personal and
real, wherever situated, or located, to my beloved
husband, Charles Newton Hodges, to have and to hold
unto him, my said husband, during his natural lifetime.
THIRD: I desire, direct and provide that my husband,
Charles Newton Hodges, shall have the right to manage,
control, use and enjoy said estate during his lifetime,
and he is hereby given the right to make any changes
in the physical properties of said estate, by sale or any
part thereof which he may think best, and the purchase
of any other or additional property as he may think best;
to execute conveyances with or without general or
special warranty, conveying in fee simple or for any
other term or time, any property which he may deem
proper to dispose of; to lease any of the real property
for oil, gas and/or other minerals, and all such deeds or
leases shall pass the absolute fee simple title to the
interest so conveyed in such property as he may elect
to sell. All rents, emoluments and income from said
estate shall belong to him, and he is further authorized
to use any part of the principal of said estate as he may
need or desire. It is provided herein, however, that he
shall not sell or otherwise dispose of any of the improved
property now owned by us located at, in or near the City
of Lubbock, Texas, but he shall have the full right to
lease, manage and enjoy the same during his lifetime,
above provided. He shall have the right to subdivide any
farm land and sell lots therein. and may sell unimproved
town lots.
FOURTH: At the death of my said husband, Charles
Newton Hodges, I give, devise and bequeath all of the
rest, residue and remainder of my estate, both real and
250
personal, wherever situated or located, to be equally
divided among my brothers and sisters, share and share
alike, namely:
Esta Higdon, Emma Howell, Leonard Higdon, Roy
Higdon, Saddie Rascoe, Era Roman and Nimroy Higdon.
FIFTH: In case of the death of any of my brothers and/or
sisters named in item Fourth, above, prior to the death
of my husband, Charles Newton Hodges, then it is my
will and bequest that the heirs of such deceased brother
or sister shall take jointly the share which would have
gone to such brother or sister had she or he survived.
SIXTH: I nominate and appoint my said husband,
Charles Newton Hodges, to be executor of this, my last
will and testament, and direct that no bond or other
security be required of him as such executor.
SEVENTH: It is my will and bequest that no action be
had in the probate court, in the administration of my
estate, other than that necessary to prove and record
this will and to return an inventory and appraisement of
my estate and list of claims. (Pp. 2-4, Petition.)
This will was subsequently probated in aforementioned
Special Proceedings No. 1307 of respondent court on
June 28, 1957, with the widower Charles Newton
Hodges being appointed as Executor, pursuant to the
provisions thereof.
Previously, on May 27, 1957, the said widower
(hereafter to be referred to as Hodges) had been
appointed Special Administrator, in which capacity he
filed a motion on the same date as follows:
URGENT EX-PARTE MOTION TO ALLOW OR AUTHORIZE
PETITIONER TO CONTINUE THE BUSINESS IN WHICH
HE WAS ENGAGED AND TO PERFORM ACTS WHICH HE
HAD BEEN DOING WHILE DECEASED WAS LIVING
Come petitioner in the above-entitled special
proceedings, thru his undersigned attorneys, to the
Hon. Court, most respectfully states:
1. — That Linnie Jane Hodges died leaving her last will
and testament, a copy of which is attached to the
petition for probate of the same.
2. — That in said last will and testament herein
petitioner Charles Newton Hodges is directed to have
the right to manage, control use and enjoy the estate of
deceased Linnie Jane Hodges, in the same way, a
provision was placed in paragraph two, the following: "I
give, devise and bequeath all of the rest, residue and
remainder of my estate, to my beloved husband,
Charles Newton Hodges, to have and (to) hold unto him,
my said husband, during his natural lifetime."
3. — That during the lifetime of Linnie Jane Hodges,
herein petitioner was engaged in the business of buying
and selling personal and real properties, and do such
acts which petitioner may think best.
4. — That deceased Linnie Jane Hodges died leaving no
descendants or ascendants, except brothers and sisters
and herein petitioner as executor surviving spouse, to
inherit the properties of the decedent.
5. — That the present motion is submitted in order not
to paralyze the business of petitioner and the deceased,
especially in the purchase and sale of properties. That
proper accounting will be had also in all these
transactions.
WHEREFORE, it is most respectfully prayed that,
petitioner C. N. Hodges (Charles Newton Hodges) be
allowed or authorized to continue the business in which
he was engaged and to perform acts which he had been
doing while deceased Linnie Jane Hodges was living.
City of Iloilo, May 27, 1957. (Annex "D", Petition.)
which the respondent court immediately granted in the
following order:
It appearing in the urgent ex-parte motion filed by
petitioner C. N. Hodges, that the business in which said
petitioner and the deceased were engaged will be
paralyzed, unless and until the Executor is named and
appointed by the Court, the said petitioner is allowed or
authorized to continue the business in which he was
engaged and to perform acts which he had been doing
while the deceased was living.
SO ORDERED.
City of Iloilo May 27, 1957. (Annex "E", Petition.)
Under date of December 11, 1957, Hodges filed as such
Executor another motion thus:
MOTION TO APPROVE ALL SALES, CONVEYANCES,
LEASES, MORTGAGES THAT THE EXECUTOR HAD MADE
FURTHER AND SUBSEQUENT TRANSACTIONS WHICH
THE EXECUTOR MAY DO IN ACCORDANCE WITH THE
LAST WISH OF THE DECEASED LINNIE JANE HODGES.
Comes the Executor in the above-entitled proceedings,
thru his undersigned attorney, to the Hon. Court, most
respectfully states:
1. — That according to the last will and testament of the
deceased Linnie Jane Hodges, the executor as the
surviving spouse and legatee named in the will of the
deceased; has the right to dispose of all the properties
left by the deceased, portion of which is quoted as
follows:
Second: I give, devise and bequeath all of the rest,
residue and remainder of my estate, both personal and
real, wherever situated, or located, to my beloved
251
husband, Charles Newton Hodges, to have and to hold
unto him, my said husband, during his natural lifetime.
Third: I desire, direct and provide that my husband,
Charles Newton Hodges, shall have the right to manage,
control, use and enjoy said estate during his lifetime,
and he is hereby given the right to make any changes
in the physical properties of said estate, by sale or any
part thereof which he may think best, and the purchase
of any other or additional property as he may think best;
to execute conveyances with or without general or
special warranty, conveying in fee simple or for any
other term or time, any property which he may deem
proper to dispose of; to lease any of the real property
for oil, gas and/or other minerals, and all such deeds or
leases shall pass the absolute fee simple title to the
interest so conveyed in such property as he may elect
to sell. All rents, emoluments and income from said
estate shall belong to him, and he is further authorized
to use any part of the principal of said estate as he may
need or desire. ...
2. — That herein Executor, is not only part owner of the
properties left as conjugal, but also, the successor to all
the properties left by the deceased Linnie Jane Hodges.
That during the lifetime of herein Executor, as Legatee
has the right to sell, convey, lease or dispose of the
properties in the Philippines. That inasmuch as C.N.
Hodges was and is engaged in the buy and sell of real
and personal properties, even before the death of Linnie
Jane Hodges, a motion to authorize said C.N. Hodges
was filed in Court, to allow him to continue in the
business of buy and sell, which motion was favorably
granted by the Honorable Court.
3. — That since the death of Linnie Jane Hodges, Mr.
C.N. Hodges had been buying and selling real and
personal properties, in accordance with the wishes of
the late Linnie Jane Hodges.
4. — That the Register of Deeds for Iloilo, had required
of late the herein Executor to have all the sales, leases,
conveyances or mortgages made by him, approved by
the Hon. Court.
5. — That it is respectfully requested, all the sales,
conveyances leases and mortgages executed by the
Executor, be approved by the Hon. Court. and
subsequent sales conveyances, leases and mortgages in
compliances with the wishes of the late Linnie Jane
Hodges, and within the scope of the terms of the last
will and testament, also be approved;
6. — That the Executor is under obligation to submit his
yearly accounts, and the properties conveyed can also
be accounted for, especially the amounts received.
WHEREFORE, it is most respectfully prayed that, all the
sales, conveyances, leases, and mortgages executed by
the Executor, be approved by the Hon. Court, and also
the subsequent sales, conveyances, leases, and
mortgages in consonance with the wishes of the
deceased contained in her last will and testament, be
with authorization and approval of the Hon. Court.
City of Iloilo, December 11, 1967.
(Annex "G", Petition.)
which again was promptly granted by the respondent
court on December 14, 1957 as follows:
ORDER
As prayed for by Attorney Gellada, counsel for the
Executor for the reasons stated in his motion dated
December 11, 1957, which the Court considers well
taken all the sales, conveyances, leases and mortgages
of all properties left by the deceased Linnie Jane Hodges
executed by the Executor Charles N. Hodges are hereby
APPROVED. The said Executor is further authorized to
execute subsequent sales, conveyances, leases and
mortgages of the properties left by the said deceased
Linnie Jane Hodges in consonance with the wishes
conveyed in the last will and testament of the latter.
So ordered.
Iloilo City. December 14, 1957.
(Annex "H", Petition.)
On April 14, 1959, in submitting his first statement of
account as Executor for approval, Hodges alleged:
Pursuant to the provisions of the Rules of Court, herein
executor of the deceased, renders the following account
of his administration covering the period from January
1, 1958 to December 31, 1958, which account may be
found in detail in the individual income tax return filed
for the estate of deceased Linnie Jane Hodges, to wit:
That a certified public accountant has examined the
statement of net worth of the estate of Linnie Jane
Hodges, the assets and liabilities, as well as the income
and expenses, copy of which is hereto attached and
made integral part of this statement of account as
Annex "A".
IN VIEW OF THE FOREGOING, it is most respectfully
prayed that, the statement of net worth of the estate of
Linnie Jane Hodges, the assets and liabilities, income
and expenses as shown in the individual income tax
return for the estate of the deceased and marked as
Annex "A", be approved by the Honorable Court, as
substantial compliance with the requirements of the
Rules of Court.
That no person interested in the Philippines of the time
and place of examining the herein accounts be given
notice, as herein executor is the only devisee or legatee
of the deceased, in accordance with the last will and
testament already probated by the Honorable court.
252
City of Iloilo April 14, 1959.
(Annex "I", Petition.)
The respondent court approved this statement of
account on April 21, 1959 in its order worded thus:
Upon petition of Atty. Gellada, in representation of the
Executor, the statement of net worth of the estate of
Linnie Jane Hodges, assets and liabilities, income and
expenses as shown in the individual income tax return
for the estate of the deceased and marked as Annex "A"
is approved.
SO ORDERED.
City of Iloilo April 21, 1959.
(Annex "J", Petition.)
His accounts for the periods January 1, 1959 to
December 31, 1959 and January 1, 1960 to December
31, 1960 were submitted likewise accompanied by
allegations identical mutatis mutandis to those of April
14, 1959, quoted above; and the respective orders
approving the same, dated July 30, 1960 and May 2,
1961, were substantially identical to the above-quoted
order of April 21, 1959. In connection with the
statements of account just mentioned, the following
assertions related thereto made by respondent-appellee
Magno in her brief do not appear from all indications
discernible in the record to be disputable:
Under date of April 14, 1959, C.N. Hodges filed his first
"Account by the Executor" of the estate of Linnie Jane
Hodges. In the "Statement of Networth of Mr. C.N.
Hodges and the Estate of Linnie Jane Hodges" as of
December 31, 1958 annexed thereto, C.N. Hodges
reported that the combined conjugal estate earned a net
income of P328,402.62, divided evenly between him
and the estate of Linnie Jane Hodges. Pursuant to this,
he filed an "individual income tax return" for calendar
year 1958 on the estate of Linnie Jane Hodges reporting,
under oath, the said estate as having earned income of
P164,201.31, exactly one-half of the net income of his
combined personal assets and that of the estate of
Linnie Jane Hodges. (p. 91, Appellee's Brief.)
xxx xxx xxx
Under date of July 21, 1960, C.N. Hodges filed his
second "Annual Statement of Account by the Executor"
of the estate of Linnie Jane Hodges. In the "Statement
of Networth of Mr. C.N. Hodges and the Estate of Linnie
Jane Hodges" as of December 31, 1959 annexed
thereto, C.N. Hodges reported that the combined
conjugal estate earned a net income of P270,623.32,
divided evenly between him and the estate of Linnie
Jane Hodges. Pursuant to this, he filed an "individual
income tax return" for calendar year 1959 on the estate
of Linnie Jane Hodges reporting, under oath, the said
estate as having earned income of P135,311.66, exactly
one-half of the net income of his combined personal
assets and that of the estate of Linnie Jane Hodges. (pp.
91-92. Appellee's Brief.)
xxx xxx xxx
Under date of April 20, 1961, C.N. Hodges filed his third
"Annual Statement of Account by the Executor for the
Year 1960" of the estate of Linnie Jane Hodges. In the
"Statement of Net Worth of Mr. C.N. Hodges and the
Estate of Linnie Jane Hodges" as of December 31, 1960
annexed thereto, C.N. Hodges reported that the
combined conjugal estate earned a net income of
P314,857.94, divided evenly between him and the
estate of Linnie Jane Hodges. Pursuant to this, he filed
an "individual income tax return" for calendar year 1960
on the estate of Linnie Jane Hodges reporting, under
oath, the said estate as having earned income of
P157,428.97, exactly one-half of the net income of his
combined personal assets and that of the estate of
Linnie Jane Hodges. (Pp. 92-93, Appellee's Brief.)
Likewise the following:
In the petition for probate that he (Hodges) filed, he
listed the seven brothers and sisters of Linnie Jane as
her "heirs" (see p. 2, Green ROA). The order of the court
admitting the will to probate unfortunately omitted one
of the heirs, Roy Higdon (see p. 14, Green ROA).
Immediately, C.N. Hodges filed a verified motion to
have Roy Higdon's name included as an heir, stating
that he wanted to straighten the records "in order the
heirs of deceased Roy Higdon may not think or believe
they were omitted, and that they were really and are
interested in the estate of deceased Linnie Jane Hodges.
.
As an executor, he was bound to file tax returns for the
estate he was administering under American law. He did
file such as estate tax return on August 8, 1958. In
Schedule "M" of such return, he answered "Yes" to the
question as to whether he was contemplating
"renouncing the will". On the question as to what
property interests passed to him as the surviving
spouse, he answered:
"None, except for purposes of administering the Estate,
paying debts, taxes and other legal charges. It is the
intention of the surviving husband of deceased to
distribute the remaining property and interests of the
deceased in their Community estate to the devisees and
legatees named in the will when the debts, liabilities,
taxes and expenses of administration are finally
determined and paid."
Again, on August 9, 1962, barely four months before his
death, he executed an "affidavit" wherein he ratified and
confirmed all that he stated in Schedule "M" of his estate
tax returns as to his having renounced what was given
him by his wife's will. 1
As appointed executor, C.N. Hodges filed an "Inventory"
dated May 12, 1958. He listed all the assets of his
conjugal partnership with Linnie Jane Hodges on a
253
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 of deceased, Charles Newton Hodges, is still kept in his
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
safe or vault, and in the meantime, unless an
administratrix (and,) at the same time, a Special
Administratrix is appointed, the estate of both spouses
are in danger of being lost, damaged or go to waste.
8. That the most trusted employee of both spouses
Linnie Jane Hodges and C.N. Hodges, who had been
employed for around thirty (30) years, in the person of
Miss Avelina Magno, (should) be appointed
Administratrix of the estate of Linnie Jane Hodges and
at the same time Special Administratrix of the estate of
Charles Newton Hodges. That the said Miss Avelina
Magno is of legal age, a resident of the Philippines, the
most fit, competent, trustworthy and well-qualified
person to serve the duties of Administratrix and Special
Administratrix and is willing to act as such.
9. That Miss Avelina Magno is also willing to file bond in
such sum which the Hon. Court believes reasonable.
WHEREFORE, in view of all the foregoing, it is most
respectfully prayed that, Miss AVELINA A. MAGNO be
immediately appointed Administratrix of the estate of
Linnie Jane Hodges and as Special Administratrix of the
estate of Charles Newton Hodges, with powers and
duties provided for by law. That the Honorable Court fix
the reasonable bond of P1,000.00 to be filed by Avelina
A. Magno.
(Annex "O", Petition.)
which respondent court readily acted on in its order of
even date thus: .
For the reasons alleged in the Urgent Ex-parte Motion
filed by counsel for the Executor dated December 25,
1962, which the Court finds meritorious, Miss AVELINA
254
A. MAGNO, is hereby appointed Administratrix of the
estate of Linnie Jane Hodges and as Special
Administratrix of the estate of Charles Newton Hodges,
in the latter case, because the last will of said Charles
Newton Hodges is still kept in his vault or iron safe and
that the real and personal properties of both spouses
may be lost, damaged or go to waste, unless a Special
Administratrix is appointed.
Miss Avelina A. Magno is required to file bond in the sum
of FIVE THOUSAND PESOS (P5,000.00), and after
having done so, let letters of Administration be issued
to her." (Annex "P", Petition.)
On December 29, 1962, however, upon urgent ex-parte
petition of respondent Magno herself, thru Atty. Gellada,
Harold, R. Davies, "a representative of the heirs of
deceased Charles Newton Hodges (who had) arrived
from the United States of America to help in the
administration of the estate of said deceased" was
appointed as Co-Special Administrator of the estate of
Hodges, (pp. 29-33, Yellow - Record on Appeal) only to
be replaced as such co-special administrator on January
22, 1963 by Joe Hodges, who, according to the motion
of the same attorney, is "the nephew of the deceased
(who had) arrived from the United States with
instructions from the other heirs of the deceased to
administer the properties or estate of Charles Newton
Hodges in the Philippines, (Pp. 47-50, id.)
Meanwhile, under date of January 9, 1963, the same
Atty. Gellada filed in Special Proceedings 1672 a petition
for the probate of the will of Hodges, 2 with a prayer for
the issuance of letters of administration to the same Joe
Hodges, albeit the motion was followed on February 22,
1963 by a separate one asking that Atty. Fernando
Mirasol be appointed as his co-administrator. On the
same date this latter motion was filed, the court issued
the corresponding order of probate and letters of
administration to Joe Hodges and Atty. Mirasol, as
prayed for.
At this juncture, again, it may also be explained that
just as, in her will, Mrs. Hodges bequeathed her whole
estate to her husband "to have and to hold unto him,
my said husband, during his natural lifetime", she, at
the same time or in like manner, provided that "at the
death of my said husband — I give devise and bequeath
all of the rest, residue and remainder of my estate, both
real and personal, wherever situated or located, to be
equally divided among my brothers and sisters, share
and share alike —". Accordingly, it became incumbent
upon Hodges, as executor of his wife's will, to duly
liquidate the conjugal partnership, half of which
constituted her estate, in order that upon the
eventuality of his death, "the rest, residue and
remainder" thereof could be determined and
correspondingly distributed or divided among her
brothers and sisters. And it was precisely because no
such liquidation was done, furthermore, there is the
issue of whether the distribution of her estate should be
governed by the laws of the Philippines or those of
Texas, of which State she was a national, and, what is
more, as already stated, Hodges made official and sworn
statements or manifestations indicating that as far as he
was concerned no "property interests passed to him as
surviving spouse — "except for purposes of
administering the estate, paying debts, taxes and other
legal charges" and it was the intention of the surviving
husband of the deceased to distribute the remaining
property and interests of the deceased in their
Community Estate to the devisees and legatees named
in the will when the debts, liabilities, taxes and expenses
of administration are finally determined and paid", that
the incidents and controversies now before Us for
resolution arose. As may be observed, the situation that
ensued upon the death of Hodges became rather
unusual and so, quite understandably, the lower court's
actuations presently under review are apparently
wanting in consistency and seemingly lack proper
orientation.
Thus, We cannot discern clearly from the record before
Us the precise perspective from which the trial court
proceeded in issuing its questioned orders. And,
regretably, none of the lengthy briefs submitted by the
parties is of valuable assistance in clearing up the
matter.
To begin with, We gather from the two records on appeal
filed by petitioner, as appellant in the appealed cases,
one with green cover and the other with a yellow cover,
that at the outset, a sort of modus operandi had been
agreed upon by the parties under which the respective
administrators of the two estates were supposed to act
conjointly, but since no copy of the said agreement can
be found in the record before Us, We have no way of
knowing when exactly such agreement was entered into
and under what specific terms. And while reference is
made to said modus operandi in the order of September
11, 1964, on pages 205-206 of the Green Record on
Appeal, reading thus:
The present incident is to hear the side of administratrix,
Miss Avelina A. Magno, in answer to the charges
contained in the motion filed by Atty. Cesar Tirol on
September 3, 1964. In answer to the said charges, Miss
Avelina A. Magno, through her counsel, Atty. Rizal
Quimpo, filed a written manifestation.
After reading the manifestation here of Atty. Quimpo,
for and in behalf of the administratrix, Miss Avelina A.
Magno, the Court finds that everything that happened
before September 3, 1964, which was resolved on
September 8, 1964, to the satisfaction of parties, was
simply due to a misunderstanding between the
representative of the Philippine Commercial and
Industrial Bank and Miss Magno and in order to restore
the harmonious relations between the parties, the Court
ordered the parties to remain in status quo as to their
modus operandi before September 1, 1964, until after
the Court can have a meeting with all the parties and
their counsels on October 3, as formerly agreed upon
between counsels, Attys. Ozaeta, Gibbs and Ozaeta,
Attys. Tirol and Tirol and Atty. Rizal Quimpo.
255
In the meantime, the prayers of Atty. Quimpo as stated
in his manifestation shall not be resolved by this Court
until October 3, 1964.
SO ORDERED.
there is nothing in the record indicating whatever
happened to it afterwards, except that again, reference
thereto was made in the appealed order of October 27,
1965, on pages 292-295 of the Green Record on Appeal,
as follows:
On record is an urgent motion to allow PCIB to open all
doors and locks in the Hodges Office at 206-208 Guanco
Street, Iloilo City, to take immediate and exclusive
possession thereof and to place its own locks and keys
for security purposes of the PCIB dated October 27,
1965 thru Atty. Cesar Tirol. It is alleged in said urgent
motion that Administratrix Magno of the testate estate
of Linnie Jane Hodges refused to open the Hodges Office
at 206-208 Guanco Street, Iloilo City where PCIB holds
office and therefore PCIB is suffering great moral
damage and prejudice as a result of said act. It is prayed
that an order be issued authorizing it (PCIB) to open all
doors and locks in the said office, to take immediate and
exclusive possession thereof and place thereon its own
locks and keys for security purposes; instructing the
clerk of court or any available deputy to witness and
supervise the opening of all doors and locks and taking
possession of the PCIB.
A written opposition has been filed by Administratrix
Magno of even date (Oct. 27) thru counsel Rizal Quimpo
stating therein that she was compelled to close the office
for the reason that the PCIB failed to comply with the
order of this Court signed by Judge Anacleto I. Bellosillo
dated September 11, 1964 to the effect that both
estates should remain in status quo to their modus
operandi as of September 1, 1964.
To arrive at a happy solution of the dispute and in order
not to interrupt the operation of the office of both
estates, the Court aside from the reasons stated in the
urgent motion and opposition heard the verbal
arguments of Atty. Cesar Tirol for the PCIB and Atty.
Rizal Quimpo for Administratix Magno.
After due consideration, the Court hereby orders Magno
to open all doors and locks in the Hodges Office at 206-
208 Guanco Street, Iloilo City in the presence of the
PCIB or its duly authorized representative and deputy
clerk of court Albis of this branch not later than 7:30
tomorrow morning October 28, 1965 in order that the
office of said estates could operate for business.
Pursuant to the order of this Court thru Judge Bellosillo
dated September 11, 1964, it is hereby ordered:
(a) That all cash collections should be deposited in the
joint account of the estates of Linnie Jane Hodges and
estates of C.N. Hodges;
(b) That whatever cash collections that had been
deposited in the account of either of the estates should
be withdrawn and since then deposited in the joint
account of the estate of Linnie Jane Hodges and the
estate of C.N. Hodges;
(c) That the PCIB should countersign the check in the
amount of P250 in favor of Administratrix Avelina A.
Magno as her compensation as administratrix of the
Linnie Jane Hodges estate chargeable to the testate
estate of Linnie Jane Hodges only;
(d) That Administratrix Magno is hereby directed to
allow the PCIB to inspect whatever records, documents
and papers she may have in her possession in the same
manner that Administrator PCIB is also directed to allow
Administratrix Magno to inspect whatever records,
documents and papers it may have in its possession;
(e) That the accountant of the estate of Linnie Jane
Hodges shall have access to all records of the
transactions of both estates for the protection of the
estate of Linnie Jane Hodges; and in like manner the
accountant or any authorized representative of the
estate of C.N. Hodges shall have access to the records
of transactions of the Linnie Jane Hodges estate for the
protection of the estate of C.N. Hodges.
Once the estates' office shall have been opened by
Administratrix Magno in the presence of the PCIB or its
duly authorized representative and deputy clerk Albis or
his duly authorized representative, both estates or any
of the estates should not close it without previous
consent and authority from this court.
SO ORDERED.
As may be noted, in this order, the respondent court
required that all collections from the properties in the
name of Hodges should be deposited in a joint account
of the two estates, which indicates that seemingly the
so-calledmodus 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
256
the extent they existed) of both estates would be
administered jointly by the PCIB as administrator of the
estate of C.N. Hodges and Avelina A. Magno as
administratrix of the estate of Linnie Jane Hodges,
subject, however, to the aforesaid October 5, 1963
Motion, namely, the PCIB's claim to exclusive
possession and ownership of one hundred percent
(100%) (or, in the alternative, seventy-five percent
(75%) of all assets owned by C.N. Hodges or Linnie Jane
Hodges situated in the Philippines. On February 1, 1964
(pp. 934-935, CFI Rec., S.P. No. 1672) this Honorable
Court amended its order of January 24, 1964 but in no
way changed its recognition of the afore-described basic
demand by the PCIB as administrator of the estate of
C.N. Hodges to one hundred percent (100%) of the
assets claimed by both estates.
but no copy of the mentioned agreement of joint
administration of the two estates exists in the record,
and so, We are not informed as to what exactly are the
terms of the same which could be relevant in the
resolution of the issues herein.
On the other hand, the appealed order of November 3,
1965, on pages 313-320 of the Green Record on Appeal,
authorized payment by respondent Magno of, inter alia,
her own fees as administratrix, the attorney's fees of
her lawyers, etc., as follows:
Administratrix Magno thru Attys. Raul S. Manglapus and
Rizal. R. Quimpo filed a Manifestation and Urgent Motion
dated June 10, 1964 asking for the approval of the
Agreement dated June 6, 1964 which Agreement is for
the purpose of retaining their services to protect and
defend the interest of the said Administratrix in these
proceedings and the same has been signed by and bears
the express conformity of the attorney-in-fact of the late
Linnie Jane Hodges, Mr. James L. Sullivan. It is further
prayed that the Administratrix of the Testate Estate of
Linnie Jane Hodges be directed to pay the retailers fee
of said lawyers, said fees made chargeable as expenses
for the administration of the estate of Linnie Jane
Hodges (pp. 1641-1642, Vol. V, Sp. 1307).
An opposition has been filed by the Administrator PCIB
thru Atty. Herminio Ozaeta dated July 11, 1964, on the
ground that payment of the retainers fee of Attys.
Manglapus and Quimpo as prayed for in said
Manifestation and Urgent Motion is prejudicial to the
100% claim of the estate of C. N. Hodges; employment
of Attys. Manglapus and Quimpo is premature and/or
unnecessary; Attys. Quimpo and Manglapus are
representing conflicting interests and the estate of
Linnie Jane Hodges should be closed and terminated
(pp. 1679-1684, Vol, V, Sp. 1307).
Atty. Leon P. Gellada filed a memorandum dated July
28, 1964 asking that the Manifestation and Urgent
Motion filed by Attys. Manglapus and Quimpo be denied
because no evidence has been presented in support
thereof. Atty. Manglapus filed a reply to the opposition
of counsel for the Administrator of the C. N. Hodges
estate wherein it is claimed that expenses of
administration include reasonable counsel or attorney's
fees for services to the executor or administrator. As a
matter of fact the fee agreement dated February 27,
1964 between the PCIB and the law firm of Ozaeta,
Gibbs & Ozaeta as its counsel (Pp. 1280-1284, Vol. V,
Sp. 1307) which stipulates the fees for said law firm has
been approved by the Court in its order dated March 31,
1964. If payment of the fees of the lawyers for the
administratrix of the estate of Linnie Jane Hodges will
cause prejudice to the estate of C. N. Hodges, in like
manner the very agreement which provides for the
payment of attorney's fees to the counsel for the PCIB
will also be prejudicial to the estate of Linnie Jane
Hodges (pp. 1801-1814, Vol. V, Sp. 1307).
Atty. Herminio Ozaeta filed a rejoinder dated August 10,
1964 to the reply to the opposition to the Manifestation
and Urgent Motion alleging principally that the estates
of Linnie Jane Hodges and C. N. Hodges are not similarly
situated for the reason that C. N. Hodges is an heir of
Linnie Jane Hodges whereas the latter is not an heir of
the former for the reason that Linnie Jane Hodges
predeceased C. N. Hodges (pp. 1839-1848, Vol. V, Sp.
1307); that Attys. Manglapus and Quimpo formally
entered their appearance in behalf of Administratrix of
the estate of Linnie Jane Hodges on June 10, 1964 (pp.
1639-1640, Vol. V, Sp. 1307).
Atty. Manglapus filed a manifestation dated December
18, 1964 stating therein that Judge Bellosillo issued an
order requiring the parties to submit memorandum in
support of their respective contentions. It is prayed in
this manifestation that the Manifestation and Urgent
Motion dated June 10, 1964 be resolved (pp. 6435-
6439, Vol. VII, Sp. 1307).
Atty. Roman Mabanta, Jr. for the PCIB filed a counter-
manifestation dated January 5, 1965 asking that after
the consideration by the court of all allegations and
arguments and pleadings of the PCIB in connection
therewith (1) said manifestation and urgent motion of
Attys. Manglapus and Quimpo be denied (pp. 6442-
6453, Vol. VII, Sp. 1307). Judge Querubin issued an
order dated January 4, 1965 approving the motion
dated June 10, 1964 of the attorneys for the
administratrix of the estate of Linnie Jane Hodges and
agreement annexed to said motion. The said order
further states: "The Administratrix of the estate of
Linnie Jane Hodges is authorized to issue or sign
whatever check or checks may be necessary for the
above purpose and the administrator of the estate of C.
N. Hodges is ordered to countersign the same. (pp.
6518-6523, Vol VII, Sp. 1307).
Atty. Roman Mabanta, Jr. for the PCIB filed a
manifestation and motion dated January 13, 1965
asking that the order of January 4, 1965 which was
issued by Judge Querubin be declared null and void and
to enjoin the clerk of court and the administratrix and
administrator in these special proceedings from all
proceedings and action to enforce or comply with the
provision of the aforesaid order of January 4, 1965. In
support of said manifestation and motion it is alleged
that the order of January 4, 1965 is null and void
because the said order was never delivered to the
257
deputy clerk Albis of Branch V (the sala of Judge
Querubin) and the alleged order was found in the drawer
of the late Judge Querubin in his office when said drawer
was opened on January 13, 1965 after the death of
Judge Querubin by Perfecto Querubin, Jr., the son of the
judge and in the presence of Executive Judge Rovira and
deputy clerk Albis (Sec. 1, Rule 36, New Civil Code) (Pp.
6600-6606, Vol. VIII, Sp. 1307).
Atty. Roman Mabanta, Jr. for the PCIB filed a motion for
reconsideration dated February 23, 1965 asking that the
order dated January 4, 1964 be reversed on the ground
that:
1. Attorneys retained must render services to the estate
not to the personal heir;
2. If services are rendered to both, fees should be pro-
rated between them;
3. Attorneys retained should not represent conflicting
interests; to the prejudice of the other heirs not
represented by said attorneys;
4. Fees must be commensurate to the actual services
rendered to the estate;
5. There must be assets in the estate to pay for said
fees (Pp. 6625-6636, Vol. VIII, Sp. 1307).
Atty. Quimpo for Administratrix Magno of the estate of
Linnie Jane Hodges filed a motion to submit dated July
15, 1965 asking that the manifestation and urgent
motion dated June 10, 1964 filed by Attys. Manglapus
and Quimpo and other incidents directly appertaining
thereto be considered submitted for consideration and
approval (pp. 6759-6765, Vol. VIII, Sp. 1307).
Considering the arguments and reasons in support to
the pleadings of both the Administratrix and the PCIB,
and of Atty. Gellada, hereinbefore mentioned, the Court
believes that the order of January 4, 1965 is null and
void for the reason that the said order has not been filed
with deputy clerk Albis of this court (Branch V) during
the lifetime of Judge Querubin who signed the said
order. However, the said manifestation and urgent
motion dated June 10, 1964 is being treated and
considered in this instant order. It is worthy to note that
in the motion dated January 24, 1964 (Pp. 1149- 1163,
Vol. V, Sp. 1307) which has been filed by Atty. Gellada
and his associates and Atty. Gibbs and other lawyers in
addition to the stipulated fees for actual services
rendered. However, the fee agreement dated February
27, 1964, between the Administrator of the estate of C.
N. Hodges and Atty. Gibbs which provides for retainer
fee of P4,000 monthly in addition to specific fees for
actual appearances, reimbursement for expenditures
and contingent fees has also been approved by the
Court and said lawyers have already been paid. (pp.
1273-1279, Vol. V, Sp. Proc. 1307 pp. 1372-1373, Vol.
V, Sp. Proc. 1307).
WHEREFORE, the order dated January 4, 1965 is hereby
declared null and void.
The manifestation and motion dated June 10, 1964
which was filed by the attorneys for the administratrix
of the testate estate of Linnie Jane Hodges is granted
and the agreement annexed thereto is hereby approved.
The administratrix of the estate of Linnie Jane Hodges is
hereby directed to be needed to implement the approval
of the agreement annexed to the motion and the
administrator of the estate of C. N. Hodges is directed
to countersign the said check or checks as the case may
be.
SO ORDERED.
thereby implying somehow that the court assumed the
existence of independent but simultaneous
administrations.
Be that as it may, again, it appears that on August 6,
1965, the court, acting on a motion of petitioner for the
approval of deeds of sale executed by it as administrator
of the estate of Hodges, issued the following order, also
on appeal herein:
Acting upon the motion for approval of deeds of sale for
registered land of the PCIB, Administrator of the Testate
Estate of C. N. Hodges in Sp. Proc. 1672 (Vol. VII, pp.
2244-2245), dated July 16, 1965, filed by Atty. Cesar T.
Tirol in representation of the law firms of Ozaeta, Gibbs
and Ozaeta and Tirol and Tirol and the opposition
thereto of Atty. Rizal R. Quimpo (Vol. VIII, pp. 6811-
6813) dated July 22, 1965 and considering the
allegations and reasons therein stated, the court
believes that the deeds of sale should be signed jointly
by the PCIB, Administrator of the Testate Estate of C. N.
Hodges and Avelina A. Magno, Administratrix of the
Testate Estate of Linnie Jane Hodges and to this effect
the PCIB should take the necessary steps so that
Administratrix Avelina A. Magno could sign the deeds of
sale.
SO ORDERED. (p. 248, Green Record on Appeal.)
Notably this order required that even the deeds
executed by petitioner, as administrator of the Estate of
Hodges, involving properties registered in his name,
should be co-signed by respondent Magno. 3 And this
was not an isolated instance.
In her brief as appellee, respondent Magno states:
After the lower court had authorized appellee Avelina A.
Magno to execute final deeds of sale pursuant to
contracts to sell executed by C. N. Hodges on February
20, 1963 (pp. 45-46, Green ROA), motions for the
approval of final deeds of sale (signed by appellee
Avelina A. Magno and the administrator of the estate of
C. N. Hodges, first Joe Hodges, then Atty. Fernando
Mirasol and later the appellant) were approved by the
lower court upon petition of appellee Magno's counsel,
258
Atty. Leon P. Gellada, on the basis of section 8 of Rule Fernando Cano, Bacolod City, Occ. Negros
89 of the Revised Rules of Court. Subsequently, the
appellant, after it had taken over the bulk of the assets Fe Magbanua, Iloilo City
of the two estates, started presenting these motions
itself. The first such attempt was a "Motion for Approval
Policarpio M. Pareno, La Paz, Iloilo City
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 Rosario T. Libre, Jaro, Iloilo City
(2) final deeds of sale and two (2) cancellations of
mortgages signed by appellee Avelina A. Magno and D. Federico B. Torres, Iloilo City
R. Paulino, Assistant Vice-President and Manager of the
appellant (CFI Record, Sp. Proc. No. 1307, Vol. V, pp. Reynaldo T. Lataquin, La Paz, Iloilo City
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 Anatolio T. Viray, Iloilo City
final deed of sale again signed by appellee Avelina A.
Magno and D. R. Paulino (CFI Record, Sp. Proc. No. Benjamin Rolando, Jaro, Iloilo City
1307. Vol. V, pp. 1825-1828), which was again
approved by the lower court on August 7, 1964. The and cancellations of mortgages in favor of —
gates having been opened, a flood ensued: the
appellant subsequently filed similar motions for the
Pablo Manzano, Oton, Iloilo
approval of a multitude of deeds of sales and
cancellations of mortgages signed by both the appellee
Avelina A. Magno and the appellant. Ricardo M. Diana, Dao, San Jose, Antique

A random check of the records of Special Proceeding No. Simplicio Tingson, Iloilo City
1307 alone will show Atty. Cesar T. Tirol as having
presented for court approval deeds of sale of real Amado Magbanua, Pototan, Iloilo
properties signed by both appellee Avelina A. Magno and
D. R. Paulino in the following numbers: (a) motion dated Roselia M. Baes, Bolo, Roxas City
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 William Bayani, Rizal Estanzuela, Iloilo City
dated February 3, 1965 — 8 deeds of sale; (f) motion
dated May 7, 1965 — 9 deeds of sale. In view of the Elpidio Villarete, Molo, Iloilo City
very extensive landholdings of the Hodges spouses and
the many motions filed concerning deeds of sale of real Norma T. Ruiz, Jaro, Iloilo City
properties executed by C. N. Hodges the lower court has
had to constitute special separate expedientes in Special
"4. That the approval of the aforesaid documents will
Proceedings Nos. 1307 and 1672 to include mere
not reduce the assets of the estates so as to prevent
motions for the approval of deeds of sale of the conjugal
any creditor from receiving his full debt or diminish his
properties of the Hodges spouses.
dividend."

As an example, from among the very many, under date

of February 3, 1965, Atty. Cesar T. Tirol, as counsel for
the appellant, filed "Motion for Approval of Deeds of Sale
for Registered Land and Cancellations of Mortgages"
(CFI Record, Sp. Proc. No. 1307, Vol. VIII, pp. 6570-
6596) the allegations of which read:
"1. In his lifetime, the late C. N. Hodges executed
"Contracts to Sell" real property, and the prospective
buyers under said contracts have already paid the price
and complied with the terms and conditions thereof;
"2. In the course of administration of both estates,
mortgage debtors have already paid their debts secured
by chattel mortgages in favor of the late C. N. Hodges,
and are now entitled to release therefrom;
"3. There are attached hereto documents executed
jointly by the Administratrix in Sp. Proc. No. 1307 and
the Administrator in Sp. Proc. No. 1672, consisting of
deeds of sale in favor —
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

259
of the estate of Hodges and/or respondent Magno, as
Administrator of the estate of Mrs. Hodges, thus:
Considering that in both cases there is as yet no judicial
declaration of heirs nor distribution of properties to
whomsoever are entitled thereto, the Court believes
that payment to both the administrator of the testate
estate of C. N. Hodges and the administratrix of the
testate estate of Linnie Jane Hodges or to either one of
the two estates is proper and legal.
WHEREFORE, movant Ricardo T. Salas can pay to both
estates or either of them.
SO ORDERED.
(Pp. 334-335, Green Record on Appeal.)
On the other hand, as stated earlier, there were
instances when respondent Magno was given authority
to act alone. For instance, in the other appealed order
of December 19, 1964, on page 221 of the Green Record
on Appeal, the respondent court approved payments
made by her of overtime pay to some employees of the
court who had helped in gathering and preparing copies
of parts of the records in both estates as follows:
Considering that the expenses subject of the motion to
approve payment of overtime pay dated December 10,
1964, are reasonable and are believed by this Court to
be a proper charge of administration chargeable to the
testate estate of the late Linnie Jane Hodges, the said
expenses are hereby APPROVED and to be charged
against the testate estate of the late Linnie Jane Hodges.
The administrator of the testate estate of the late
Charles Newton Hodges is hereby ordered to
countersign the check or checks necessary to pay the
said overtime pay as shown by the bills marked Annex
"A", "B" and "C" of the motion.
SO ORDERED.
(Pp. 221-222, Green Record on Appeal.)
Likewise, the respondent court approved deeds of sale
executed by respondent Magno alone, as Administratrix
of the estate of Mrs. Hodges, covering properties in the
name of Hodges, pursuant to "contracts to sell"
executed by Hodges, irrespective of whether they were
executed by him before or after the death of his wife.
The orders of this nature which are also on appeal herein
are the following:
1. Order of March 30, 1966, on p. 137 of the Green
Record on Appeal, approving the deed of sale executed
by respondent Magno in favor of appellee Lorenzo Carles
on February 24, 1966, pursuant to a "contract to sell"
signed by Hodges on June 17, 1958, after the death of
his wife, which contract petitioner claims was cancelled
by it for failure of Carles to pay the installments due on
January 7, 1965.
2. Order of April 5, 1966, on pp. 139-140, id., approving
the deed of sale executed by respondent Magno in favor
of appellee Salvador Guzman on February 28, 1966
pursuant to a "contract to sell" signed by Hodges on
September 13, 1960, after the death of his wife, which
contract petitioner claims it cancelled on March 3, 1965
in view of failure of said appellee to pay the installments
on time.
3. Order of April 20, 1966, on pp. 167-168, id.,
approving the deed of sale executed by respondent
Magno in favor of appellee Purificacion Coronado on
March 28, 1966 pursuant to a "contract to sell" signed
by Hodges on August 14, 1961, after the death of his
wife.
4. Order of April 20, 1966, on pp. 168-169, id.,
approving the deed of sale executed by respondent
Magno in favor of appellee Florenia Barrido on March 28,
1966, pursuant to a "contract to sell" signed by Hodges
on February 21, 1958, after the death of his wife.
5. Order of June 7, 1966, on pp. 184-185, id., approving
the deed of sale executed by respondent Magno in favor
of appellee Belcezar Causing on May 2, 1966, pursuant
to a "contract to sell" signed by Hodges on February 10,
1959, after the death of his wife.
6. Order of June 21, 1966, on pp. 211-212, id.,
approving the deed of sale executed by respondent
Magno in favor of appellee Artheo Thomas Jamir on June
3, 1966, pursuant to a "contract to sell" signed by
Hodges on May 26, 1961, after the death of his wife.
7. Order of June 21, 1966, on pp. 212-213, id.,
approving the deed of sale executed by respondent
Magno in favor of appellees Graciano Lucero and
Melquiades Batisanan on June 6 and June 3, 1966,
respectively, pursuant to "contracts to sell" signed by
Hodges on June 9, 1959 and November 27, 1961,
respectively, after the death of his wife.
8. Order of December 2, 1966, on pp. 303-304, id.,
approving the deed of sale executed by respondent
Magno in favor of appellees Espiridion Partisala,
Winifredo Espada and Rosario Alingasa on September 6,
1966, August 17, 1966 and August 3, 1966,
respectively, pursuant to "contracts to sell" signed by
Hodges on April 20, 1960, April 18, 1960 and August 25,
1958, respectively, that is, after the death of his wife.
9. Order of April 5, 1966, on pp. 137-138, id., approving
the deed of sale executed by respondent Magno in favor
of appellee Alfredo Catedral on March 2, 1966, pursuant
to a "contract to sell" signed by Hodges on May 29,
1954, before the death of his wife, which contract
petitioner claims it had cancelled on February 16, 1966
for failure of appellee Catedral to pay the installments
due on time.
10. Order of April 5, 1966, on pp. 138-139, id.,
approving the deed of sale executed by respondent
Magno in favor of appellee Jose Pablico on March 7,
260
1966, pursuant to a "contract to sell" signed by Hodges
on March 7, 1950, after the death of his wife, which
contract petitioner claims it had cancelled on June 29,
1960, for failure of appellee Pablico to pay the
installments due on time.
11. Order of December 2, 1966, on pp. 303-304, id.,
insofar as it approved the deed of sale executed by
respondent Magno in favor of appellee Pepito Iyulores
on September 6, 1966, pursuant to a "contract to sell"
signed by Hodges on February 5, 1951, before the death
of his wife.
12. Order of January 3, 1967, on pp. 335-336, id.,
approving three deeds of sale executed by respondent
Magno, one in favor of appellees Santiago Pacaonsis and
two in favor of appellee Adelfa Premaylon on December
5, 1966 and November 3, 1966, respectively, pursuant
to separate "promises to sell" signed respectively by
Hodges on May 26, 1955 and January 30, 1954, before
the death of his wife, and October 31, 1959, after her
death.
In like manner, there were also instances when
respondent court approved deeds of sale executed by
petitioner alone and without the concurrence of
respondent Magno, and such approvals have not been
the subject of any appeal. No less than petitioner points
this out on pages 149-150 of its brief as appellant thus:
The points of fact and law pertaining to the two
abovecited assignments of error have already been
discussed previously. In the first abovecited error, the
order alluded to was general, and as already explained
before, it was, as admitted by the lower court itself,
superseded by the particular orders approving specific
final deeds of sale executed by the appellee, Avelina A.
Magno, which are subject of this appeal, as well as the
particular orders approving specific final deeds of sale
executed by the appellant, Philippine Commercial and
Industrial Bank, which were never appealed by the
appellee, Avelina A. Magno, nor by any party for that
matter, and which are now therefore final.
Now, simultaneously with the foregoing incidents,
others of more fundamental and all embracing
significance developed. On October 5, 1963, over the
signature of Atty. Allison J. Gibbs in representation of
the law firm of Ozaeta, Gibbs & Ozaeta, as counsel for
the co-administrators Joe Hodges and Fernando P.
Mirasol, the following self-explanatory motion was filed:
URGENT MOTION FOR AN ACCOUNTING AND DELIVERY
TO ADMINISTRATION OF THE ESTATE OF C. N. HODGES
OF ALL OF THE ASSETS OF THE CONJUGAL
PARTNERSHIP OF THE DECEASED LINNIE JANE HODGES
AND C N. HODGES EXISTING AS OF MAY 23, 1957 PLUS
ALL THE RENTS, EMOLUMENTS AND INCOME
THEREFROM.
COMES NOW the co-administrator of the estate of C. N.
Hodges, Joe Hodges, through his undersigned attorneys
in the above-entitled proceedings, and to this Honorable
Court respectfully alleges:
(1) On May 23, 1957 Linnie Jane Hodges died in Iloilo
City.
(2) On June 28, 1957 this Honorable Court admitted to
probate the Last Will and Testament of the deceased
Linnie Jane Hodges executed November 22, 1952 and
appointed C. N. Hodges as Executor of the estate of
Linnie Jane Hodges (pp. 24-25, Rec. Sp. Proc. 1307).
(3) On July 1, 1957 this Honorable Court issued Letters
Testamentary to C. N. Hodges in the Estate of Linnie
Jane Hodges (p. 30, Rec. Sp. Proc. 1307).
(4) On December 14, 1957 this Honorable Court, on the
basis of the following allegations in a Motion dated
December 11, 1957 filed by Leon P. Gellada as attorney
for the executor C. N. Hodges:
"That herein Executor, (is) not only part owner of the
properties left as conjugal, but also,the successor to all
the properties left by the deceased Linnie Jane Hodges."
(p. 44, Rec. Sp. Proc. 1307; emphasis supplied.)
issued the following order:
"As prayed for by Attorney Gellada, counsel for the
Executory, for the reasons stated in his motion dated
December 11, 1957 which the court considers well
taken, all the sales, conveyances, leases and mortgages
of all properties left by the deceased Linnie Jane Hodges
are hereby APPROVED. The said executor is further
authorized to execute subsequent sales, conveyances,
leases and mortgages of the properties left by the said
deceased Linnie Jane Hodges in consonance with the
wishes contained in the last will and testament of the
latter."
(p. 46, Rec. Sp. Proc. 1307; emphasis supplied.)
(5) On April 21, 1959 this Honorable Court approved the
inventory and accounting submitted by C. N. Hodges
through his counsel Leon P. Gellada on April 14, 1959
wherein he alleged among other things
"That no person interested in the Philippines of the time
and place of examining the herein account, be given
notice, as herein executor is the only devisee or legatee
of the deceased, in accordance with the last will and
testament already probated by the Honorable Court."
(pp. 77-78, Rec. Sp. Proc. 1307; emphasis supplied.).
(6) On July 30, 1960 this Honorable Court approved the
"Annual Statement of Account" submitted by C. N.
Hodges through his counsel Leon P. Gellada on July 21,
1960 wherein he alleged among other things:
261
"That no person interested in the Philippines of the time
and place of examining the herein account, be given
notice as herein executor is the only devisee or legatee
of the deceased Linnie Jane Hodges, in accordance with
the last will and testament of the deceased, already
probated by this Honorable Court."
(pp. 81-82. Rec. Sp. Proc. 1307; emphasis supplied.)
(7) On May 2, 1961 this Honorable court approved the
"Annual Statement of Account By The Executor for the
Year 1960" submitted through Leon P. Gellada on April
20, 1961 wherein he alleged:
That no person interested in the Philippines be given
notice, of the time and place of examining the herein
account, as herein Executor is the only devisee or
legatee of the deceased Linnie Jane Hodges, in
accordance with the last will and testament of the
deceased, already probated by this Honorable Court.
(pp. 90-91. Rec. Sp. Proc. 1307; emphasis supplied.)
(8) On December 25, 1962, C.N. Hodges died.
(9) On December 25, 1962, on the Urgent Ex-parte
Motion of Leon P. Gellada filed only in Special Proceeding
No. 1307, this Honorable Court appointed Avelina A.
Magno
"Administratrix of the estate of Linnie Jane Hodges and
as Special Administratrix of the estate of Charles
Newton Hodges, in the latter case, because the last will
of said Charles Newton Hodges is still kept in his vault
or iron safe and that the real and personal properties of
both spouses may be lost, damaged or go to waste,
unless a Special Administratrix is appointed."
(p. 100. Rec. Sp. Proc. 1307)
(10) On December 26, 1962 Letters of Administration
were issued to Avelina Magno pursuant to this
Honorable Court's aforesaid Order of December 25,
1962
"With full authority to take possession of all the property
of said deceased in any province or provinces in which
it may be situated and to perform all other acts
necessary for the preservation of said property, said
Administratrix and/or Special Administratrix having filed
a bond satisfactory to the Court."
(p. 102, Rec. Sp. Proc. 1307)
(11) On January 22, 1963 this Honorable Court on
petition of Leon P. Gellada of January 21, 1963 issued
Letters of Administration to:
(a) Avelina A. Magno as Administratrix of the estate of
Linnie Jane Hodges;
(b) Avelina A. Magno as Special Administratrix of the
Estate of Charles Newton Hodges; and
(c) Joe Hodges as Co-Special Administrator of the Estate
of Charles Newton Hodges.
(p. 43, Rec. Sp. Proc. 1307)
(12) On February 20, 1963 this Honorable Court on the
basis of a motion filed by Leon P. Gellada as legal
counsel on February 16, 1963 for Avelina A. Magno
acting as Administratrix of the Estate of Charles Newton
Hodges (pp. 114-116, Sp. Proc. 1307) issued the
following order:
"... se autoriza a aquella (Avelina A. Magno) a firmar
escrituras de venta definitiva de propiedades cubiertas
por contratos para vender, firmados, en vida, por el
finado Charles Newton Hodges, cada vez que el precio
estipulado en cada contrato este totalmente pagado. Se
autoriza igualmente a la misma a firmar escrituras de
cancelacion de hipoteca tanto de bienes reales como
personales cada vez que la consideracion de cada
hipoteca este totalmente pagada.
"Cada una de dichas escrituras que se otorguen debe
ser sometida para la aprobacion de este Juzgado."
(p. 117, Sp. Proc. 1307).
[Par 1 (c), Reply to Motion For Removal of Joe Hodges]
(13) On September l6, 1963 Leon P. Gellada, acting as
attorney for Avelina A. Magno as Administratrix of the
estate of Linnie Jane Hodges, alleges:
3. — That since January, 1963, both estates of Linnie
Jane Hodges and Charles Newton Hodges have been
receiving in full, payments for those "contracts to sell"
entered into by C. N. Hodges during his lifetime, and the
purchasers have been demanding the execution of
definite deeds of sale in their favor.
4. — That hereto attached are thirteen (13) copies
deeds of sale executed by the Administratrix and by the
co-administrator (Fernando P. Mirasol) of the estate of
Linnie Jane Hodges and Charles Newton Hodges
respectively, in compliance with the terms and
conditions of the respective "contracts to sell" executed
by the parties thereto."
(14) The properties involved in the aforesaid motion of
September 16, 1963 are all registered in the name of
the deceased C. N. Hodges.
(15) Avelina A. Magno, it is alleged on information and
belief, has been advertising in the newspaper in Iloilo
thusly:
For Sale
262
Testate Estate of Linnie Jane Hodges and Charles
Newton Hodges.
All Real Estate or Personal Property will be sold on First
Come First Served Basis.
Avelina A. Magno
Administratrix
(16) Avelina A. Magno, it is alleged on information and
belief, has paid and still is paying sums of money to
sundry persons.
(17) Joe Hodges through the undersigned attorneys
manifested during the hearings before this Honorable
Court on September 5 and 6, 1963 that the estate of C.
N. Hodges was claiming all of the assets belonging to
the deceased spouses Linnie Jane Hodges and C. N.
Hodges situated in Philippines because of the aforesaid
election by C. N. Hodges wherein he claimed and took
possession as sole owner of all of said assets during the
administration of the estate of Linnie Jane Hodges on
the ground that he was the sole devisee and legatee
under her Last Will and Testament.
(18) Avelina A. Magno has submitted no inventory and
accounting of her administration as Administratrix of the
estate of Linnie Jane Hodges and Special Administratrix
of the estate of C. N. Hodges. However, from
manifestations made by Avelina A. Magno and her legal
counsel, Leon P. Gellada, there is no question she will
claim that at least fifty per cent (50%) of the conjugal
assets of the deceased spouses and the rents,
emoluments and income therefrom belong to the Higdon
family who are named in paragraphs Fourth and Fifth of
the Will of Linnie Jane Hodges (p. 5, Rec. Sp. Proc.
1307).
WHEREFORE, premises considered, movant respectfully
prays that this Honorable Court, after due hearing,
order:
(1) Avelina A. Magno to submit an inventory and
accounting of all of the funds, properties and assets of
any character belonging to the deceased Linnie Jane
Hodges and C. N. Hodges which have come into her
possession, with full details of what she has done with
them;
(2) Avelina A. Magno to turn over and deliver to the
Administrator of the estate of C. N. Hodges all of the
funds, properties and assets of any character remaining
in her possession;
(3) Pending this Honorable Court's adjudication of the
aforesaid issues, Avelina A. Magno to stop, unless she
first secures the conformity of Joe Hodges (or his duly
authorized representative, such as the undersigned
attorneys) as the Co-administrator and attorney-in-fact
of a majority of the beneficiaries of the estate of C. N.
Hodges:
(a) Advertising the sale and the sale of the properties of
the estates:
(b) Employing personnel and paying them any
compensation.
(4) Such other relief as this Honorable Court may deem
just and equitable in the premises. (Annex "T", Petition.)
Almost a year thereafter, or on September 14, 1964,
after the co-administrators Joe Hodges and Fernando P.
Mirasol were replaced by herein petitioner Philippine
Commercial and Industrial Bank as sole administrator,
pursuant to an agreement of all the heirs of Hodges
approved by the court, and because the above motion
of October 5, 1963 had not yet been heard due to the
absence from the country of Atty. Gibbs, petitioner filed
the following:
MANIFESTATION AND MOTION, INCLUDING MOTION TO
SET FOR HEARING AND RESOLVE "URGENT MOTION
FOR AN ACCOUNTING AND DELIVERY TO
ADMINISTRATORS OF THE ESTATE OF C. N. HODGES
OF ALL THE ASSETS OF THE CONJUGAL PARTNERSHIP
OF THE DECEASED LINNIE JANE HODGES AND C. N.
HODGES EXISTING AS OF MAY 23, 1957 PLUS ALL OF
THE RENTS, EMOLUMENTS AND INCOME THEREFROM
OF OCTOBER 5, 1963.
COMES NOW Philippine Commercial and Industrial Bank
(hereinafter referred to as PCIB), the administrator of
the estate of C. N. Hodges, deceased, in Special
Proceedings No. 1672, through its undersigned counsel,
and to this Honorable Court respectfully alleges that:
1. On October 5, 1963, Joe Hodges acting as the co-
administrator of the estate of C. N. Hodges filed,
through the undersigned attorneys, an "Urgent Motion
For An Accounting and Delivery To Administrator of the
Estate of C. N. Hodges of all Of The Assets Of The
Conjugal Partnership of The Deceased Linnie Jane
Hodges and C. N. Hodges Existing as Of May, 23, 1957
Plus All Of The Rents, Emoluments and Income
Therefrom" (pp. 536-542, CFI Rec. S. P. No. 1672).
2. On January 24, 1964 this Honorable Court, on the
basis of an amicable agreement entered into on January
23, 1964 by the two co-administrators of the estate of
C. N. Hodges and virtually all of the heirs of C. N. Hodges
(p. 912, CFI Rec., S. P. No. 1672), resolved the dispute
over who should act as administrator of the estate of C.
N. Hodges by appointing the PCIB as administrator of
the estate of C. N. Hodges (pp. 905-906, CFI Rec. S. P.
No. 1672) and issuing letters of administration to the
PCIB.
3. On January 24, 1964 virtually all of the heirs of C. N.
Hodges, Joe Hodges and Fernando P. Mirasol acting as
the two co-administrators of the estate of C. N. Hodges,
Avelina A. Magno acting as the administratrix of the
estate of Linnie Jane Hodges, and Messrs. William Brown
and Ardel Young Acting for all of the Higdon family who
claim to be the sole beneficiaries of the estate of Linnie
263
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 andthat the assets (to
the extent they existed)of both estates would be
administrated jointly by the PCIB as administrator of the
estate of C. N. Hodges and Avelina A. Magno as
administratrix of the estate of Linnie Jane Hodges,
subject, however, to the aforesaid October 5, 1963
Motion, namely, the PCIB's claim to exclusive
possession and ownership of one-hundred percent
(10017,) (or, in the alternative, seventy-five percent
[75%] of all assets owned by C. N. Hodges or Linnie
Jane Hodges situated in the Philippines. On February 1,
1964 (pp. 934-935, CFI Rec., S. P. No. 1672) this
Honorable Court amended its order of January 24, 1964
but in no way changes its recognition of the
aforedescribed basic demand by the PCIB as
administrator of the estate of C. N. Hodges to one
hundred percent (100%) of the assets claimed by both
estates.
4. On February 15, 1964 the PCIB filed a "Motion to
Resolve" the aforesaid Motion of October 5, 1963. This
Honorable Court set for hearing on June 11, 1964 the
Motion of October 5, 1963.
5. On June 11, 1964, because the undersigned Allison J.
Gibbs was absent in the United States, this Honorable
Court ordered the indefinite postponement of the
hearing of the Motion of October 5, 1963.
6. Since its appointment as administrator of the estate
of C. N. Hodges the PCIB has not been able to properly
carry out its duties and obligations as administrator of
the estate of C. N. Hodges because of the following acts,
among others, of Avelina A. Magno and those who claim
to act for her as administratrix of the estate of Linnie
Jane Hodges:
(a) Avelina A. Magno illegally acts as if she is in
exclusive control of all of the assets in the Philippines of
both estates including those claimed by the estate of C.
N. Hodges as evidenced in part by her locking the
premises at 206-208 Guanco Street, Iloilo City on
August 31, 1964 and refusing to reopen same until
ordered to do so by this Honorable Court on September
7, 1964.
(b) Avelina A. Magno illegally acts as though she alone
may decide how the assets of the estate of C.N. Hodges
should be administered, who the PCIB shall employ and
how much they may be paid as evidenced in party by
her refusal to sign checks issued by the PCIB payable to
the undersigned counsel pursuant to their fee
agreement approved by this Honorable Court in its order
dated March 31, 1964.
(c) Avelina A. Magno illegally gives access to and turns
over possession of the records and assets of the estate
of C.N. Hodges to the attorney-in-fact of the Higdon
Family, Mr. James L. Sullivan, as evidenced in part by
the cashing of his personal checks.
(d) Avelina A. Magno illegally refuses to execute checks
prepared by the PCIB drawn to pay expenses of the
estate of C. N. Hodges as evidenced in part by the check
drawn to reimburse the PCIB's advance of P48,445.50
to pay the 1964 income taxes reported due and payable
by the estate of C.N. Hodges.
7. Under and pursuant to the orders of this Honorable
Court, particularly those of January 24 and February 1,
1964, and the mandate contained in its Letters of
Administration issued on January 24, 1964 to the PCIB,
it has
"full authority to take possession of all the property of
the deceased C. N. Hodges
"and to perform all other acts necessary for the
preservation of said property." (p. 914, CFI Rec., S.P.
No. 1672.)
8. As administrator of the estate of C. N. Hodges, the
PCIB claims the right to the immediate exclusive
possession and control of all of the properties, accounts
receivables, court cases, bank accounts and other
assets, including the documentary records evidencing
same, which existed in the Philippines on the date of C.
N. Hodges' death, December 25, 1962, and were in his
possession and registered in his name alone. The PCIB
knows of no assets in the Philippines registered in the
name of Linnie Jane Hodges, the estate of Linnie Jane
Hodges, or, C. N. Hodges, Executor of the Estate of
Linnie Jane Hodges on December 25, 1962. All of the
assets of which the PCIB has knowledge are either
registered in the name of C. N. Hodges, alone or were
derived therefrom since his death on December 25,
1962.
9. The PCIB as the current administrator of the estate
of C. N. Hodges, deceased, succeeded to all of the rights
of the previously duly appointed administrators of the
estate of C. N. Hodges, to wit:
(a) On December 25, 1962, date of C. N. Hodges' death,
this Honorable Court appointed Miss Avelina A. Magno
simultaneously as:
(i) Administratrix of the estate of Linnie Jane Hodges (p.
102, CFI Rec., S.P. No. 1307) to replace the deceased
C. N. Hodges who on May 28, 1957 was appointed
Special Administrator (p. 13. CFI Rec. S.P. No. 1307)
and on July 1, 1957 Executor of the estate of Linnie Jane
Hodges (p. 30, CFI Rec., S. P. No. 1307).
(ii) Special Administratrix of the estate of C. N. Hodges
(p. 102, CFI Rec., S.P. No. 1307).
(b) On December 29, 1962 this Honorable Court
appointed Harold K. Davies as co-special administrator
of the estate of C.N. Hodges along with Avelina A.
Magno (pp. 108-111, CFI Rec., S. P. No. 1307).
264
(c) On January 22, 1963, with the conformity of Avelina
A. Magno, Harold K. Davies resigned in favor of Joe
Hodges (pp. 35-36, CFI Rec., S.P. No. 1672) who
thereupon was appointed on January 22, 1963 by this
Honorable Court as special co-administrator of the
estate of C.N. Hodges (pp. 38-40 & 43, CFI Rec. S.P.
No. 1672) along with Miss Magno who at that time was
still acting as special co-administratrix of the estate of
C. N. Hodges.
(d) On February 22, 1963, without objection on the part
of Avelina A. Magno, this Honorable Court appointed Joe
Hodges and Fernando P. Mirasol as co-administrators of
the estate of C.N. Hodges (pp. 76-78, 81 & 85, CFI Rec.,
S.P. No. 1672).
10. Miss Avelina A. Magno, pursuant to the orders of this
Honorable Court of December 25, 1962, took possession
of all Philippine Assets now claimed by the two estates.
Legally, Miss Magno could take possession of the assets
registered in the name of C. N. Hodges alone only in her
capacity as Special Administratrix of the Estate of C.N.
Hodges. With the appointment by this Honorable Court
on February 22, 1963 of Joe Hodges and Fernando P.
Mirasol as the co-administrators of the estate of C.N.
Hodges, they legally were entitled to take over from
Miss Magno the full and exclusive possession of all of the
assets of the estate of C.N. Hodges. With the
appointment on January 24, 1964 of the PCIB as the
sole administrator of the estate of C.N. Hodges in
substitution of Joe Hodges and Fernando P. Mirasol, the
PCIB legally became the only party entitled to the sole
and exclusive possession of all of the assets of the
estate of C. N. Hodges.
11. The PCIB's predecessors submitted their accounting
and this Honorable Court approved same, to wit:
(a) The accounting of Harold K. Davies dated January
18, 1963 (pp. 16-33, CFI Rec. S.P. No. 1672); which
shows or its face the:
(i) Conformity of Avelina A. Magno acting as
"Administratrix of the Estate of Linnie Jane Hodges and
Special Administratrix of the Estate of C. N. Hodges";
(ii) Conformity of Leslie Echols, a Texas lawyer acting
for the heirs of C.N. Hodges; and
(iii) Conformity of William Brown, a Texas lawyer acting
for the Higdon family who claim to be the only heirs of
Linnie Jane Hodges (pp. 18, 25-33, CFI Rec., S. P. No.
1672).
Note: This accounting was approved by this Honorable
Court on January 22, 1963 (p. 34, CFI Rec., S. P. No.
1672).
(b) The accounting of Joe Hodges and Fernando P.
Mirasol as of January 23, 1964, filed February 24, 1964
(pp. 990-1000, CFI Rec. S.P. No. 1672 and pp. 1806-
1848, CFI Rec. S.P. No. 1307).
Note: This accounting was approved by this Honorable
Court on March 3, 1964.
(c) The PCIB and its undersigned lawyers are aware of
no report or accounting submitted by Avelina A. Magno
of her acts as administratrix of the estate of Linnie Jane
Hodges or special administratrix of the estate of C.N.
Hodges, unless it is the accounting of Harold K. Davies
as special co-administrator of the estate of C.N. Hodges
dated January 18, 1963 to which Miss Magno manifested
her conformity (supra).
12. In the aforesaid agreement of January 24, 1964,
Miss Avelina A. Magno agreed to receive P10,000.00
"for her services as administratrix of the estate of Linnie
Jane Hodges"
and in addition she agreed to be employed, starting
February 1, 1964, at
"a monthly salary of P500.00 for her services as an
employee of both estates."
24 ems.
13. Under the aforesaid agreement of January 24, 1964
and the orders of this Honorable Court of same date, the
PCIB as administrator of the estate of C. N. Hodges is
entitled to the exclusive possession of all records,
properties and assets in the name of C. N. Hodges as of
the date of his death on December 25, 1962 which were
in the possession of the deceased C. N. Hodges on that
date and which then passed to the possession of Miss
Magno in her capacity as Special Co-Administratrix of
the estate of C. N. Hodges or the possession of Joe
Hodges or Fernando P. Mirasol as co-administrators of
the estate of C. N. Hodges.
14. Because of Miss Magno's refusal to comply with the
reasonable request of PCIB concerning the assets of the
estate of C. N. Hodges, the PCIB dismissed Miss Magno
as an employee of the estate of C. N. Hodges effective
August 31, 1964. On September 1, 1964 Miss Magno
locked the premises at 206-208 Guanco Street and
denied the PCIB access thereto. Upon the Urgent Motion
of the PCIB dated September 3, 1964, this Honorable
Court on September 7, 1964 ordered Miss Magno to
reopen the aforesaid premises at 206-208 Guanco
Street and permit the PCIB access thereto no later than
September 8, 1964.
15. The PCIB pursuant to the aforesaid orders of this
Honorable Court is again in physical possession of all of
the assets of the estate of C. N. Hodges. However, the
PCIB is not in exclusive control of the aforesaid records,
properties and assets because Miss Magno continues to
assert the claims hereinabove outlined in paragraph 6,
continues to use her own locks to the doors of the
aforesaid premises at 206-208 Guanco Street, Iloilo City
and continues to deny the PCIB its right to know the
combinations to the doors of the vault and safes situated
within the premises at 206-208 Guanco Street despite
265
the fact that said combinations were known to only C.
N. Hodges during his lifetime.
16. The Philippine estate and inheritance taxes assessed
the estate of Linnie Jane Hodges were assessed and paid
on the basis that C. N. Hodges is the sole beneficiary of
the assets of the estate of Linnie Jane Hodges situated
in the Philippines. Avelina A. Magno and her legal
counsel at no time have questioned the validity of the
aforesaid assessment and the payment of the
corresponding Philippine death taxes.
17. Nothing further remains to be done in the estate of
Linnie Jane Hodges except to resolve the aforesaid
Motion of October 5, 1963 and grant the PCIB the
exclusive possession and control of all of the records,
properties and assets of the estate of C. N. Hodges.
18. Such assets as may have existed of the estate of
Linnie Jane Hodges were ordered by this Honorable
Court in special Proceedings No. 1307 to be turned over
and delivered to C. N. Hodges alone. He in fact took
possession of them before his death and asserted and
exercised the right of exclusive ownership over the said
assets as the sole beneficiary of the estate of Linnie Jane
Hodges.
WHEREFORE, premises considered, the PCIB
respectfully petitions that this Honorable court:
(1) Set the Motion of October 5, 1963 for hearing at the
earliest possible date with notice to all interested
parties;
(2) Order Avelina A. Magno to submit an inventory and
accounting as Administratrix of the Estate of Linnie Jane
Hodges and Co-Administratrix of the Estate of C. N.
Hodges of all of the funds, properties and assets of any
character belonging to the deceased Linnie Jane Hodges
and C. N. Hodges which have come into her possession,
with full details of what she has done with them;
(3) Order Avelina A. Magno to turn over and deliver to
the PCIB as administrator of the estate of C. N. Hodges
all of the funds, properties and assets of any character
remaining in her possession;
(4) Pending this Honorable Court's adjudication of the
aforesaid issues, order Avelina A. Magno and her
representatives to stop interferring with the
administration of the estate of C. N. Hodges by the PCIB
and its duly authorized representatives;
(5) Enjoin Avelina A. Magno from working in the
premises at 206-208 Guanco Street, Iloilo City as an
employee of the estate of C. N. Hodges and approve her
dismissal as such by the PCIB effective August 31, 1964;
(6) Enjoin James L. Sullivan, Attorneys Manglapus and
Quimpo and others allegedly representing Miss Magno
from entering the premises at 206-208 Guanco Street,
Iloilo City or any other properties of C. N. Hodges
without the express permission of the PCIB;
(7) Order such other relief as this Honorable Court finds
just and equitable in the premises. (Annex "U" Petition.)
On January 8, 1965, petitioner also filed a motion for
"Official Declaration of Heirs of Linnie Jane Hodges
Estate" alleging:
COMES NOW Philippine Commercial and Industrial Bank
(hereinafter referred to as PCIB), as administrator of the
estate of the late C. N. Hodges, through the undersigned
counsel, and to this Honorable Court respectfully alleges
that:
1. During their marriage, spouses Charles Newton
Hodges and Linnie Jane Hodges, American citizens
originally from the State of Texas, U.S.A., acquired and
accumulated considerable assets and properties in the
Philippines and in the States of Texas and Oklahoma,
United States of America. All said properties constituted
their conjugal estate.
2. Although Texas was the domicile of origin of the
Hodges spouses, this Honorable Court, in its orders
dated March 31 and December 12, 1964 (CFI Record,
Sp. Proc. No. 1307, pp. ----; Sp. Proc. No. 1672, p. ---
-), conclusively found and categorically ruled that said
spouses had lived and worked for more than 50 years in
Iloilo City and had, therefore, acquired a domicile of
choice in said city, which they retained until the time of
their respective deaths.
3. On November 22, 1952, Linnie Jane Hodges executed
in the City of Iloilo her Last Will and Testament, a copy
of which is hereto attached as Annex "A". The bequests
in said will pertinent to the present issue are the second,
third, and fourth provisions, which we quote in full
hereunder.
SECOND: I give, devise and bequeath all of the rest,
residue and remainder of my estate, both personal and
real, wherever situated, or located, to my husband,
Charles Newton Hodges, to have and to hold unto him,
my said husband during his natural lifetime.
THIRD: I desire, direct and provide that my husband,
Charles Newton Hodges, shall have the right to manage,
control, use and enjoy said estate during his lifetime,
and he is hereby given the right to make any changes
in the physical properties of said estate by sale of any
part thereof which he think best, and the purchase of
any other or additional property as he may think best;
to execute conveyances with or without general or
special warranty, conveying in fee simple or for any
other term or time, any property which he may deem
proper to dispose of; to lease any of the real property
for oil, gas and/or other minerals, and all such deeds or
leases shall pass the absolute fee simple title to the
interest so conveyed in such property as he may elect
to sell. All rents, emoluments and income from said
estate shall belong to him, and he is further authorized
to use any part of the principal of said estate as he may
need or desire. It is provided herein, however, that he
shall not sell or otherwise dispose of any of the improved
266
property now owned by us located at, in or near the City
of Lubbock, Texas, but he shall have the full right to
lease, manage and enjoy the same during his lifetime,
as above provided. He shall have the right to sub-divide
any farmland and sell lots therein, and may sell
unimproved town lots.
FOURTH: At the death of my said husband, Charles
Newton Hodges, I give, devise and bequeath all of the
rest, residue and remainder of my estate both real and
personal, wherever situated or located, to be equally
divided among my brothers and sisters, share and share
alike, namely:
"Esta Higdon, Emma Howell, Leonard Higdon, Roy
Higdon, Sadie Rascoe, Era Boman and Nimray Higdon."
4. On November 14, 1953, C. N. Hodges executed in the
City of Iloilo his Last Will and Testament, a copy of which
is hereto attached as Annex "B ". In said Will, C. N.
Hodges designated his wife, Linnie Jane Hodges, as his
beneficiary using the identical language she used in the
second and third provisos of her Will, supra.
5. On May 23, 1957 Linnie Jane Hodges died in Iloilo
City, predeceasing her husband by more than five (5)
years. At the time of her death, she had no forced or
compulsory heir, except her husband, C. N. Hodges. She
was survived also by various brothers and sisters
mentioned in her Will (supra), which, for convenience,
we shall refer to as the HIGDONS.
6. On June 28, 1957, this Honorable Court admitted to
probate the Last Will and Testament of the deceased
Linnie Jane Hodges (Annex "A"), and appointed C. N.
Hodges as executor of her estate without bond. (CFI
Record, Sp. Proc. No. 1307, pp. 24-25). On July 1, 1957,
this Honorable Court issued letters testamentary to C.
N. Hodges in the estate of Linnie Jane Hodges. (CFI
Record, Sp. Proc. No. 1307, p. 30.)
7. The Will of Linnie Jane Hodges, with respect to the
order of succession, the amount of successional rights,
and the intrinsic of its testamentary provisions, should
be governed by Philippine laws because:
(a) The testatrix, Linnie Jane Hodges, intended
Philippine laws to govern her Will;
(b) Article 16 of the Civil Code provides that "the
national law of the person whose succession is under
consideration, whatever may be the nature of the
property and regardless of the country wherein said
property may be found", shall prevail. However, the
Conflict of Law of Texas, which is the "national law" of
the testatrix, Linnie Jane Hodges, provide that the
domiciliary law (Philippine law — see paragraph 2,
supra) should govern the testamentary dispositions and
successional rights over movables (personal
properties), and the law of the situs of the property (also
Philippine law as to properties located in the Philippines)
with regards immovable (real properties). Thus applying
the "Renvoi Doctrine", as approved and applied by our
Supreme Court in the case of "In The Matter Of The
Testate Estate of Eduard E. Christensen", G.R. No.
L-16749, promulgated January 31, 1963, Philippine law
should apply to the Will of Linnie Jane Hodges and to the
successional rights to her estate insofar as her movable
andimmovable 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
motion Court in the two above-captioned Special
Proceedings.
8. Under Philippine and Texas law, the conjugal or
community estate of spouses shall, upon dissolution, be
divided equally between them. Thus, upon the death of
Linnie Jane Hodges on May 23, 1957, one-half (1/2) of
the entirety of the assets of the Hodges spouses
constituting their conjugal estate pertained
automatically to Charles Newton Hodges, not by way of
inheritance, but in his own right as partner in the
conjugal partnership. The other one-half (1/2) portion
of the conjugal estate constituted the estate of Linnie
Jane Hodges. This is the only portion of the conjugal
estate capable of inheritance by her heirs.
9. This one-half (1/2) portion of the conjugal assets
pertaining to Linnie Jane Hodges cannot, under a clear
and specific provision of her Will, be enhanced or
increased by income, earnings, rents, or emoluments
accruing after her death on May 23, 1957. Linnie Jane
Hodges' Will provides that "all rents, emoluments and
income from said estate shall belong to him (C. N.
Hodges) and he is further authorized to use any part of
the principal of said estate as he may need or desire."
(Paragraph 3, Annex "A".) Thus, by specific provision of
Linnie Jane Hodges' Will, "all rents, emoluments and
income" must be credited to the one-half (1/2) portion
of the conjugal estate pertaining to C. N. Hodges.
Clearly, therefore, the estate of Linnie Jane Hodges,
capable of inheritance by her heirs, consisted
exclusively of no more than one-half (1/2) of the
conjugal estate, computed as of the time of her death
on May 23, 1957.
10. Articles 900, 995 and 1001 of the New Civil Code
provide that the surviving spouse of a deceased leaving
no ascendants or descendants is entitled, as a matter of
right and by way of irrevocable legitime, to at least one-
half (1/2) of the estate of the deceased, and no
testamentary disposition by the deceased can legally
and validly affect this right of the surviving spouse. In
fact, her husband is entitled to said one-half (1/2)
portion of her estate by way of legitime. (Article 886,
Civil Code.) Clearly, therefore, immediately upon the
death of Linnie Jane Hodges, C. N. Hodges was the
owner of at least three-fourths (3/4) or seventy-five
(75%) percent of all of the conjugal assets of the
spouses, (1/2 or 50% by way of conjugal partnership
share and 1/4 or 25% by way of inheritance and
legitime) plus all "rents, emoluments and income"
accruing to said conjugal estate from the moment of
Linnie Jane Hodges' death (see paragraph 9, supra).
267
11. The late Linnie Jane Hodges designated her husband
C.N. Hodges as her sole and exclusive heir with full
authority to do what he pleased, as exclusive heir and
owner of all the assets constituting her estate, except
only with regards certain properties "owned by us,
located at, in or near the City of Lubbock, Texas". Thus,
even without relying on our laws of succession and
legitime, which we have cited above, C. N. Hodges, by
specific testamentary designation of his wife, was
entitled to the entirely to his wife's estate in the
Philippines.
12. Article 777 of the New Civil Code provides that "the
rights of the successor are transmitted from the death
of the decedent". Thus, title to the estate of Linnie Jane
Hodges was transmitted to C. N. Hodges immediately
upon her death on May 23, 1957. For the convenience
of this Honorable Court, we attached hereto as Annex
"C" a graph of how the conjugal estate of the spouses
Hodges should be divided in accordance with Philippine
law and the Will of Linnie Jane Hodges.
13. In his capacity as sole heir and successor to the
estate of Linnie Jane Hodges as above-stated, C. N.
Hodges, shortly after the death of Linnie Jane Hodges,
appropriated to himself the entirety of her estate. He
operated all the assets, engaged in business and
performed all acts in connection with the entirety of the
conjugal estate, in his own name alone, just as he had
been operating, engaging and doing while the late Linnie
Jane Hodges was still alive. Upon his death on December
25, 1962, therefore, all said conjugal assets were in his
sole possession and control, and registered in his name
alone, not as executor, but as exclusive owner of all said
assets.
14. All these acts of C. N. Hodges were authorized and
sanctioned expressly and impliedly by various orders of
this Honorable Court, as follows:
(a) In an Order dated May 27, 1957, this Honorable
Court ruled that C. N. Hodges "is allowed or authorized
to continue the business in which he was engaged, and
to perform acts which he had been doing while the
deceased was living." (CFI Record, Sp. Proc. No. 1307,
p. 11.)
(b) On December 14, 1957, this Honorable Court, on the
basis of the following fact, alleged in the verified Motion
dated December 11, 1957 filed by Leon P. Gellada as
attorney for the executor C. N. Hodges:
That herein Executor, (is) not only part owner of the
properties left as conjugal, but also, the successor to all
the properties left by the deceased Linnie Jane Hodges.'
(CFI Record, Sp. Proc. No. 1307, p. 44; emphasis
supplied.)
issued the following order:
"As prayed for by Attorney Gellada, counsel for the
Executor, for the reasons stated in his motion dated
December 11, 1957, which the Court considers well
taken, all the sales, conveyances, leases and mortgages
of all the properties left by the deceased Linnie Jane
Hodges executed by the Executor, Charles Newton
Hodges are hereby APPROVED. The said Executor is
further authorized to execute subsequent sales,
conveyances, leases and mortgages of the properties
left by the said deceased Linnie Jane Hodges in
consonance with the wishes contained in the last will
and testament of the latter." (CFI Record. Sp. Proc. No.
1307, p. 46; emphasis supplied.)
24 ems
(c) On April 21, 1959, this Honorable Court approved
the verified inventory and accounting submitted by C.
N. Hodges through his counsel Leon P. Gellada on April
14, 1959 wherein he alleged among other things,
"That no person interested in the Philippines of the time
and place of examining the herein account, be given
notice, as herein executor is the only devisee or legatee
of the deceased, in accordance with the last will and
testament already probated by the Honorable Court."
(CFI Record, Sp. Proc. No. 1307, pp. 77-78; emphasis
supplied.)
(d) On July 20, 1960, this Honorable Court approved the
verified "Annual Statement of Account" submitted by C.
N. Hodges through his counsel Leon P. Gellada on July
21, 1960 wherein he alleged, among other things.
"That no person interested in the Philippines of the time
and place of examining the herein account, be given
notice as herein executor is the only devisee or legatee
of the deceased Linnie Jane Hodges, in accordance with
the last will and testament ofthe deceased, already
probated by this Honorable Court." (CFI Record, Sp.
Proc. No. 1307, pp. 81-82; emphasis supplied.)
(e) On May 2, 1961, this Honorable Court approved the
verified "Annual Statement of Account By The Executor
For the Year 1960" submitted through Leon P. Gellada
on April 20, 1961 wherein he alleged:
"That no person interested in the Philippines be given
notice, ofthe time and place of examining the herein
account, as herein executor is the only devisee or
legatee of the deceased Linnie Jane Hodges, in
accordance with the last will and testament ofthe
deceased, already probated by this Honorable Court."
(CFI Record, Sp. Proc. No. 1307, pp. 90-91; emphasis
supplied.)
15. Since C. N. Hodges was the sole and exclusive heir
of Linnie Jane Hodges, not only by law, but in
accordance with the dispositions of her will, there was,
in fact, no need to liquidate the conjugal estate of the
spouses. The entirely of said conjugal estate pertained
to him exclusively, therefore this Honorable Court
sanctioned and authorized, as above-stated, C. N.
Hodges to manage, operate and control all the conjugal
assets as owner.
268
16. By expressly authorizing C. N. Hodges to act as he
did in connection with the estate of his wife, this
Honorable Court has (1) declared C. N. Hodges as the
sole heir of the estate of Linnie Jane Hodges, and (2)
delivered and distributed her estate to C. N. Hodges as
sole heir in accordance with the terms and conditions of
her Will. Thus, although the "estate of Linnie Jane
Hodges" still exists as a legal and juridical personality,
it had no assets or properties located in the Philippines
registered in its name whatsoever at the time of the
death of C. N. Hodges on December 25, 1962.
17. The Will of Linnie Jane Hodges (Annex "A"), fourth
paragraph, provides as follows:
"At the death of my said husband, Charles Newton
Hodges, I give, devise and bequeath all of the rest,
residue and remainder of my estate both real and
personal, wherever situated or located, to be equally
divided among my brothers and sisters, share and share
alike, namely:
"Esta Higdon, Emma Howell, Leonard Higdon, Roy
Higdon, Sadie Rascoe, Era Boman and Nimray Higdon."
Because of the facts hereinabove set out there is no
"rest, residue and remainder", at least to the extent of
the Philippine assets, which remains to vest in the
HIGDONS, assuming this proviso in Linnie Jane Hodges'
Will is valid and binding against the estate of C. N.
Hodges.
18. Any claims by the HIGDONS under the above-
quoted provision of Linnie Jane Hodges' Will is without
merit because said provision is void and invalid at least
as to the Philippine assets. It should not, in anyway,
affect the rights of the estate of C. N. Hodges or his heirs
to the properties, which C. N. Hodges acquired by way
of inheritance from his wife Linnie Jane Hodges upon her
death.
(a) In spite of the above-mentioned provision in the Will
of Linnie Jane Hodges, C. N. Hodges acquired, not
merely a usufructuary right, but absolute title and
ownership to her estate. In a recent case involving a
very similar testamentary provision, the Supreme Court
held that the heir first designated acquired full
ownership of the property bequeathed by the will, not
mere usufructuary rights. (Consolacion Florentino de
Crisologo, et al., vs. Manuel Singson, G. R. No. L-13876,
February 28, 1962.)
(b) Article 864, 872 and 886 of the New Civil Code
clearly provide that no charge, condition or substitution
whatsoever upon the legitime can be imposed by a
testator. Thus, under the provisions of Articles 900, 995
and 1001 of the New Civil Code, the legitime of a
surviving spouse is 1/2 of the estate of the deceased
spouse. Consequently, the above-mentioned provision
in the Will of Linnie Jane Hodges is clearly invalid insofar
as the legitime of C. N. Hodges was concerned, which
consisted of 1/2 of the 1/2 portion of the conjugal
estate, or 1/4 of the entire conjugal estate of the
deceased.
(c) There are generally only two kinds of substitution
provided for and authorized by our Civil Code (Articles
857-870), namely, (1) simple or common substitution,
sometimes referred to as vulgar substitution (Article
859), and (2) fideicommissary substitution (Article
863). All other substitutions are merely variations of
these. The substitution provided for by paragraph four
of the Will of Linnie Jane Hodges is not fideicommissary
substitution, because there is clearly no obligation on
the part of C. N. Hodges as the first heir designated, to
preserve the properties for the substitute heirs.
(Consolacion Florentino de Crisologo et al. vs. Manuel
Singson, G. R. No.
L-13876.) At most, it is a vulgar or simple substitution.
However, in order that a vulgar orsimple substitution
can be valid, three alternative conditions must be
present, namely, that the first designated heir (1)
should die before the testator; or (2) should not wish to
accept the inheritance; or (3) should be incapacitated to
do so. None of these conditions apply to C. N. Hodges,
and, therefore, the substitution provided for by the
above-quoted provision of the Will is not authorized by
the Code, and, therefore, it is void. Manresa,
commenting on these kisses of substitution,
meaningfully stated that: "... cuando el testador
instituyeun primer heredero, y por fallecimiento de este
nombra otro u otros, ha de entenderse que estas
segundas designaciones solo han de llegar a tener
efectividad en el caso de que el primer instituido muera
antes que el testador, fuera o no esta su verdadera
intencion. ...". (6 Manresa, 7 a ed., pag. 175.) In other
words, when another heir is designated to inherit upon
the death of a first heir, the second designation can have
effect only in case the first instituted heir dies before the
testator, whether or not that was the true intention of
said testator. Since C. N. Hodges did not die before
Linnie Jane Hodges, the provision for substitution
contained in Linnie Jane Hodges' Willis void.
(d) In view of the invalidity of the provision for
substitution in the Will, C. N. Hodges' inheritance to the
entirety of the Linnie Jane Hodges estate is irrevocable
and final.
19. Be that as it may, at the time of C. N. Hodges' death,
the entirety of the conjugal estate appeared and was
registered in him exclusively as owner. Thus, the
presumption is that all said assets constituted his
estate. Therefore —
(a) If the HIGDONS wish to enforce their dubious rights
as substituted heirs to 1/4 of the conjugal estate (the
other 1/4 is covered by the legitime of C. N. Hodges
which can not be affected by any testamentary
disposition), their remedy, if any, is to file their claim
against the estate of C. N. Hodges, which should be
entitled at the present time to full custody and control
of all the conjugal estate of the spouses.
269
(b) The present proceedings, in which two estates exist
under separate administration, where the administratrix
of the Linnie Jane Hodges estate exercises an officious
right to object and intervene in matters affecting
exclusively the C. N. Hodges estate, is anomalous.
WHEREFORE, it is most respectfully prayed that after
trial and reception of evidence, this Honorable Court
declare:
1. That the estate of Linnie Jane Hodges was and is
composed exclusively of one-half (1/2) share in the
conjugal estate of the spouses Hodges, computed as of
the date of her death on May 23, 1957;
2. That the other half of the conjugal estate pertained
exclusively to C. N. Hodges as his share as partner in
the conjugal partnership;
3. That all "rents, emoluments and income" of the
conjugal estate accruing after Linnie Jane Hodges' death
pertains to C. N. Hodges;
4. That C. N. Hodges was the sole and exclusive heir of
the estate of Linnie Jane Hodges;
5. That, therefore, the entire conjugal estate of the
spouses located in the Philippines, plus all the "rents,
emoluments and income" above-mentioned, now
constitutes the estate of C. N. Hodges, capable of
distribution to his heirs upon termination of Special
Proceedings No. 1672;
6. That PCIB, as administrator of the estate of C. N.
Hodges, is entitled to full and exclusive custody, control
and management of all said properties; and
7. That Avelina A. Magno, as administratrix of the estate
of Linnie Jane Hodges, as well as the HIGDONS, has no
right to intervene or participate in the administration of
the C. N. Hodges estate.
PCIB further prays for such and other relief as may be
deemed just and equitable in the premises."
(Record, pp. 265-277)
Before all of these motions of petitioner could be
resolved, however, on December 21, 1965, private
respondent Magno filed her own "Motion for the Official
Declaration of Heirs of the Estate of Linnie Jane Hodges"
as follows:
COMES NOW the Administratrix of the Estate of Linnie
Jane Hodges and, through undersigned counsel, unto
this Honorable Court most respectfully states and
manifests:
1. That the spouses Charles Newton Hodges and Linnie
Jane Hodges were American citizens who died at the City
of Iloilo after having amassed and accumulated
extensive properties in the Philippines;
2. That on November 22, 1952, Linnie Jane Hodges
executed a last will and testament (the original of this
will now forms part of the records of these proceedings
as Exhibit "C" and appears as Sp. Proc. No. 1307, Folio
I, pp. 17-18);
3. That on May 23, 1957, Linnie Jane Hodges died at the
City of Iloilo at the time survived by her husband,
Charles Newton Hodges, and several relatives named in
her last will and testament;
4. That on June 28, 1957, a petition therefor having
been priorly filed and duly heard, this Honorable Court
issued an order admitting to probate the last will and
testament of Linnie Jane Hodges (Sp. Proc. No. 1307,
Folio I, pp. 24-25, 26-28);
5. That the required notice to creditors and to all others
who may have any claims against the decedent, Linnie
Jane Hodges has already been printed, published and
posted (Sp. Proc. No. 1307, Folio I. pp. 34-40) and the
reglamentary period for filing such claims has long ago
lapsed and expired without any claims having been
asserted against the estate of Linnie Jane Hodges,
approved by the Administrator/Administratrix of the
said estate, nor ratified by this Honorable Court;
6. That the last will and testament of Linnie Jane Hodges
already admitted to probate contains an institution of
heirs in the following words:
"SECOND: I give, devise and bequeath all of the rest,
residue and remainder of my estate, both personal and
real, wherever situated or located, to my beloved
husband, Charles Newton Hodges to have and to hold
unto him, my said husband, during his natural lifetime.
THIRD: I desire, direct and provide that my husband,
Charles Newton Hodges, shall have the right to manage,
control, use and enjoy said estate during his lifetime,
and, he is hereby given the right to make any changes
in the physical properties of said estate, by sale of any
part thereof which he may think best, and the purchase
of any other or additional property as he may think best;
to execute conveyances with or without general or
special warranty, conveying in fee simple or for any
other term or time, any property which he may deem
proper to dispose of; to lease any of the real property
for oil, gas and/or other minerals, and all such deeds or
leases shall pass the absolute fee simple title to the
interest so conveyed in such property as he elect to sell.
All rents, emoluments and income from said estate shall
belong to him, and he is further authorized to use any
part of the principal of said estate as he may need or
desire. It is provided herein, however, that he shall not
sell or otherwise dispose of any of the improved
property now owned by us located at, in or near the City
of Lubbock Texas, but he shall have the full right to
lease, manage and enjoy the same during his lifetime,
above provided. He shall have the right to subdivide any
farm land and sell lots therein, and may sell unimproved
town lots.
270
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:
271
a. Declaring the following persons, to wit: Esta Higdon,
Emma Howell, Leonard Higdon, Aline Higdon, David
Higdon, Sadie Rascoe, Era Boman and Nimroy Higdon,
as the sole heirs under the last will and testament of
Linnie Jane Hodges and as the only persons entitled to
her estate;
b. Determining the exact value of the estate of Linnie
Jane Hodges in accordance with the system enunciated
in paragraph 14 of this motion;
c. After such determination ordering its segregation
from the combined conjugal estate and its delivery to
the Administratrix of the estate of Linnie Jane Hodges
for distribution to the heirs to whom they properly
belong and appertain.
(Green Record on Appeal, pp. 382-391)
whereupon, instead of further pressing on its motion of
January 8, 1965 aforequoted, as it had been doing
before, petitioner withdrew the said motion and in
addition to opposing the above motion of respondent
Magno, filed a motion on April 22, 1966 alleging in part
that:
1. That it has received from the counsel for the
administratrix of the supposed estate of Linnie Jane
Hodges a notice to set her "Motion for Official
Declaration of Heirs of the Estate of Linnie Jane
Hodges";
2. That before the aforesaid motion could be heard,
there are matters pending before this Honorable Court,
such as:
a. The examination already ordered by this Honorable
Court of documents relating to the allegation of Avelina
Magno that Charles Newton Hodges "through ... written
declarations and sworn public statements, renounced,
disclaimed and repudiated life-estate and usufruct over
the estate of Linnie Jane Hodges';
b. That "Urgent Motion for An Accounting and Delivery
to the Estate of C. N. Hodges of All the Assets of the
Conjugal Partnership of the Deceased Linnie Jane
Hodges and C. N. Hodges Existing as of May 23, 1957
Plus All the Rents, Emoluments and Income Therefrom";
c. Various motions to resolve the aforesaid motion;
d. Manifestation of September 14, 1964, detailing acts
of interference of Avelina Magno under color of title as
administratrix of the Estate of Linnie Jane Hodges;
which are all prejudicial, and which involve no issues of
fact, all facts involved therein being matters of record,
and therefore require only the resolution of questions of
law;
3. That whatever claims any alleged heirs or other
persons may have could be very easily threshed out in
the Testate Estate of Charles Newton Hodges;
4. That the maintenance of two separate estate
proceedings and two administrators only results in
confusion and is unduly burdensome upon the Testate
Estate of Charles Newton Hodges, particularly because
the bond filed by Avelina Magno is grossly insufficient to
answer for the funds and property which she has
inofficiously collected and held, as well as those which
she continues to inofficiously collect and hold;
5. That it is a matter of record that such state of affairs
affects and inconveniences not only the estate but also
third-parties dealing with it;" (Annex "V", Petition.)
and then, after further reminding the court, by quoting
them, of the relevant allegations of its earlier motion of
September 14, 1964, Annex U, prayed that:
1. Immediately order Avelina Magno to account for and
deliver to the administrator of the Estate of C. N. Hodges
all the assets of the conjugal partnership of the
deceased Linnie Jane Hodges and C. N. Hodges, plus all
the rents, emoluments and income therefrom;
2. Pending the consideration of this motion, immediately
order Avelina Magno to turn over all her collections to
the administrator Philippine Commercial & Industrial
Bank;
3. Declare the Testate Estate of Linnie Jane Hodges (Sp.
Proc. No. 1307) closed;
4. Defer the hearing and consideration of the motion for
declaration of heirs in the Testate Estate of Linnie Jane
Hodges until the matters hereinabove set forth are
resolved.
(Prayer, Annex "V" of Petition.)
On October 12, 1966, as already indicated at the outset
of this opinion, the respondent court denied the
foregoing motion, holding thus:
ORDER
On record is a motion (Vol. X, Sp. 1672, pp. 4379-4390)
dated April 22, 1966 of administrator PCIB praying that
(1) Immediately order Avelina Magno to account for and
deliver to the administrator of the estate of C. N. Hodges
all assets of the conjugal partnership of the deceased
Linnie Jane Hodges and C. N. Hodges, plus all the rents,
emoluments and income therefrom; (2) Pending the
consideration of this motion, immediately order Avelina
Magno to turn over all her collections to the
administrator PCIB; (3) Declare the Testate Estate of
Linnie Jane Hodges (Sp. Proc. No. 1307) closed; and (4)
Defer the hearing and consideration of the motion for
declaration of heirs in the Testate Estate of Linnie Jane
272
Hodges until the matters hereinabove set forth are
resolved.
This motion is predicated on the fact that there are
matters pending before this court such as (a) the
examination already ordered by this Honorable Court of
documents relating to the allegation of Avelina Magno
that Charles Newton Hodges thru written declaration
and sworn public statements renounced, disclaimed and
repudiated his life-estate and usufruct over the estate
of Linnie Jane Hodges (b) the urgent motion for
accounting and delivery to the estate of C. N. Hodges of
all the assets of the conjugal partnership of the
deceased Linnie Jane Hodges and C. N. Hodges existing
as of May 23, 1957 plus all the rents, emoluments and
income therefrom; (c) various motions to resolve the
aforesaid motion; and (d) manifestation of September
14, 1964, detailing acts of interference of Avelina Magno
under color of title as administratrix of the estate of
Linnie Jane Hodges.
These matters, according to the instant motion, are all
pre-judicial involving no issues of facts and only require
the resolution of question of law; that in the motion of
October 5, 1963 it is alleged that in a motion dated
December 11, 1957 filed by Atty. Leon Gellada as
attorney for the executor C. N. Hodges, the said
executor C. N. Hodges is not only part owner of the
properties left as conjugal but also the successor to all
the properties left by the deceased Linnie Jane Hodges.
Said motion of December 11, 1957 was approved by the
Court in consonance with the wishes contained in the
last will and testament of Linnie Jane Hodges.
That on April 21, 1959 this Court approved the inventory
and accounting submitted by C. N. Hodges thru counsel
Atty. Leon Gellada in a motion filed on April 14, 1959
stating therein that executor C. N. Hodges is the only
devisee or legatee of Linnie Jane Hodges in accordance
with the last will and testament already probated by the
Court.
That on July 13, 1960 the Court approved the annual
statement of accounts submitted by the executor C. N.
Hodges thru his counsel Atty. Gellada on July 21, 1960
wherein it is stated that the executor, C. N. Hodges is
the only devisee or legatee of the deceased Linnie Jane
Hodges; that on May 2, 1961 the Court approved the
annual statement of accounts submitted by executor, C.
N. Hodges for the year 1960 which was submitted by
Atty. Gellada on April 20, 1961 wherein it is stated that
executor Hodges is the only devisee or legatee of the
deceased Linnie Jane Hodges;
That during the hearing on September 5 and 6, 1963
the estate of C. N. Hodges claimed all the assets
belonging to the deceased spouses Linnie Jane Hodges
and C. N. Hodges situated in the Philippines; that
administratrix Magno has executed illegal acts to the
prejudice of the testate estate of C. N. Hodges.
An opposition (Sp. 1672, Vol. X, pp. 4415-4421) dated
April 27, 1966 of administratrix Magno has been filed
asking that the motion be denied for lack of merit and
that the motion for the official declaration of heirs of the
estate of Linnie Jane Hodges be set for presentation and
reception of evidence.
It is alleged in the aforesaid opposition that the
examination of documents which are in the possession
of administratrix Magno can be made prior to the
hearing of the motion for the official declaration of heirs
of the estate of Linnie Jane Hodges, during said hearing.
That the matters raised in the PCIB's motion of October
5, 1963 (as well as the other motion) dated September
14, 1964 have been consolidated for the purpose of
presentation and reception of evidence with the hearing
on the determination of the heirs of the estate of Linnie
Jane Hodges. It is further alleged in the opposition that
the motion for the official declaration of heirs of the
estate of Linnie Jane Hodges is the one that constitutes
a prejudicial question to the motions dated October 5
and September 14, 1964 because if said motion is found
meritorious and granted by the Court, the PCIB's
motions of October 5, 1963 and September 14, 1964
will become moot and academic since they are premised
on the assumption and claim that the only heir of Linnie
Jane Hodges was C. N. Hodges.
That the PCIB and counsel are estopped from further
questioning the determination of heirs in the estate of
Linnie Jane Hodges at this stage since it was PCIB as
early as January 8, 1965 which filed a motion for official
declaration of heirs of Linnie Jane Hodges that the claim
of any heirs of Linnie Jane Hodges can be determined
only in the administration proceedings over the estate
of Linnie Jane Hodges and not that of C. N. Hodges,
since the heirs of Linnie Jane Hodges are claiming her
estate and not the estate of C. N. Hodges.
A reply (Sp. 1672, Vol. X, pp. 4436-4444) dated May
11, 1966 of the PCIB has been filed alleging that the
motion dated April 22, 1966 of the PCIB is not to seek
deferment of the hearing and consideration of the
motion for official declaration of heirs of Linnie Jane
Hodges but to declare the testate estate of Linnie Jane
Hodges closed and for administratrix Magno to account
for and deliver to the PCIB all assets of the conjugal
partnership of the deceased spouses which has come to
her possession plus all rents and income.
A rejoinder (Sp. 1672, Vol. X, pp. 4458-4462) of
administratrix Magno dated May 19, 1966 has been filed
alleging that the motion dated December 11, 1957 only
sought the approval of all conveyances made by C. N.
Hodges and requested the Court authority for all
subsequent conveyances that will be executed by C. N.
Hodges; that the order dated December 14, 1957 only
approved the conveyances made by C. N. Hodges; that
C. N. Hodges represented by counsel never made any
claim in the estate of Linnie Jane Hodges and never filed
a motion to declare himself as the heir of the said Linnie
Jane Hodges despite the lapse of more than five (5)
years after the death of Linnie Jane Hodges; that it is
273
further alleged in the rejoinder that there can be no
order of adjudication of the estate unless there has been
a prior express declaration of heirs and so far no
declaration of heirs in the estate of Linnie Jane Hodges
(Sp. 1307) has been made.
Considering the allegations and arguments in the
motion and of the PCIB as well as those in the opposition
and rejoinder of administratrix Magno, the Court finds
the opposition and rejoinder to be well taken for the
reason that so far there has been no official declaration
of heirs in the testate estate of Linnie Jane Hodges and
therefore no disposition of her estate.
WHEREFORE, the motion of the PCIB dated April 22,
1966 is hereby DENIED.
(Annex "W", Petition)
In its motion dated November 24, 1966 for the
reconsideration of this order, petitioner alleged inter alia
that:
It cannot be over-stressed that the motion of December
11, 1957 was based on the fact that:
a. Under the last will and testament of the deceased,
Linnie Jane Hodges, the late Charles Newton Hodges
was the sole heir instituted insofar as her properties in
the Philippines are concerned;
b. Said last will and testament vested upon the said late
Charles Newton Hodges rights over said properties
which, in sum, spell ownership, absolute and in fee
simple;
c. Said late Charles Newton Hodges was, therefore, "not
only part owner of the properties left as conjugal, but
also, the successor to all the properties left by the
deceased Linnie Jane Hodges.
Likewise, it cannot be over-stressed that the aforesaid
motion was granted by this Honorable Court "for the
reasons stated" therein.
Again, the motion of December 11, 1957 prayed that
not only "all the sales, conveyances, leases, and
mortgages executed by" the late Charles Newton
Hodges, but also all "the subsequent sales,
conveyances, leases, and mortgages ..." be approved
and authorized. This Honorable Court, in its order of
December 14, 1957, "for the reasons stated" in the
aforesaid motion, granted the same, and not only
approved all the sales, conveyances, leases and
mortgages of all properties left by the deceased Linnie
Jane Hodges executed by the late Charles Newton
Hodges, but also authorized "all subsequent sales,
conveyances, leases and mortgages of the properties
left by the said deceased Linnie Jane Hodges. (Annex
"X", Petition)
and reiterated its fundamental pose that the Testate
Estate of Linnie Jane Hodges had already been factually,
although not legally, closed with the virtual declaration
of Hodges and adjudication to him, as sole universal heir
of all the properties of the estate of his wife, in the order
of December 14, 1957, Annex G. Still unpersuaded, on
July 18, 1967, respondent court denied said motion for
reconsideration and held that "the court believes that
there is no justification why the order of October 12,
1966 should be considered or modified", and, on July
19, 1967, the motion of respondent Magno "for official
declaration of heirs of the estate of Linnie Jane Hodges",
already referred to above, was set for hearing.
In consequence of all these developments, the present
petition was filed on August 1, 1967 (albeit petitioner
had to pay another docketing fee on August 9, 1967,
since the orders in question were issued in two separate
testate estate proceedings, Nos. 1307 and 1672, in the
court below).
Together with such petition, there are now pending
before Us for resolution herein, appeals from the
following:
1. The order of December 19, 1964 authorizing payment
by respondent Magno of overtime pay, (pp. 221, Green
Record on Appeal) together with the subsequent orders
of January 9, 1965, (pp. 231-232, id.) October 27,
1965, (pp. 227, id.) and February 15, 1966 (pp. 455-
456, id.) repeatedly denying motions for reconsideration
thereof.
2. The order of August 6, 1965 (pp. 248, id.) requiring
that deeds executed by petitioner to be co-signed by
respondent Magno, as well as the order of October 27,
1965 (pp. 276-277) denying reconsideration.
3. The order of October 27, 1965 (pp. 292-295, id.)
enjoining the deposit of all collections in a joint account
and the same order of February 15, 1966 mentioned in
No. 1 above which included the denial of the
reconsideration of this order of October 27, 1965.
4. The order of November 3, 1965 (pp. 313-320, id.)
directing the payment of attorney's fees, fees of the
respondent administratrix, etc. and the order of
February 16, 1966 denying reconsideration thereof.
5. The order of November 23, 1965 (pp. 334-335, id.)
allowing appellee Western Institute of Technology to
make payments to either one or both of the
administrators of the two estates as well as the order of
March 7, 1966 (p. 462, id.) denying reconsideration.
6. The various orders hereinabove earlier enumerated
approving deeds of sale executed by respondent Magno
in favor of appellees Carles, Catedral, Pablito, Guzman,
Coronado, Barrido, Causing, Javier, Lucero and
Batisanan, (see pp. 35 to 37 of this opinion), together
with the two separate orders both dated December 2,
1966 (pp. 306-308, and pp. 308-309, Yellow Record on
Appeal) denying reconsideration of said approval.
274
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
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 SPELL WHICH WERE
CANCELLED AND RESCINDED.
XXX to XXXIV
THE LOWER COURT ERRED IN DETERMINING THE
RIGHTS OF OWNERSHIP OVER REAL PROPERTY OF THE
LORENZO CARLES, JOSE PABLICO, ALFREDO CATEDRAL
AND SALVADOR S. GUZMAN, WHILE ACTING AS A
PROBATE COURT.
XXXV to XXXVI
275
THE LOWER COURT ERRED IN APPROVING THE FINAL
DEEDS OF SALE IN FAVOR OF THE APPELLEES,
FLORENIA BARRIDO AND PURIFICACION CORONADO,
EXECUTED BY THE APPELLEE, AVELINA A. MAGNO,
COVERING PARCELS OF LAND OWNED BY THE
DECEASED, CHARLES NEWTON HODGES, AND THE
CONTRACTS TO SELL COVERING WHICH WERE
EXECUTED BY HIM DURING HIS LIFETIME.
XXXVII to XXXVIII
THE LOWER COURT ERRED IN APPROVING THE DEEDS
OF SALE IN FAVOR OF THE APPELLEES, FLORENIA
BARRIDO AND PURIFICACION CORONADO, ALTHOUGH
THEY WERE IN ARREARS IN THE PAYMENTS AGREED
UPON IN THE ORIGINAL CONTRACT TO SELL WHICH
THEY EXECUTED WITH THE DECEASED, CHARLES
NEWTON HODGES, IN THE AMOUNT OF P10,680.00 and
P4,428.90, RESPECTIVELY.
XXXIX to XL
THE LOWER COURT ERRED IN DEPRIVING THE
DECEASED, CHARLES NEWTON HODGES, OF THE
CONTRACTUAL RIGHT, EXERCISED THROUGH HIS
ADMINISTRATOR, THE INSTANT APPELLANT, TO
CANCEL THE CONTRACTS TO SELL OF THE APPELLEES,
FLORENIA BARRIDO AND PURIFICACION CORONADO.
XLI to XLIII
THE LOWER COURT ERRED IN APPROVING THE FINAL
DEEDS OF SALE IN FAVOR OF THE APPELLEES,
GRACIANO LUCERO, ARITEO THOMAS JAMIR AND
MELQUIADES BATISANAN, EXECUTED BY THE
APPELLEE, AVELINA A. MAGNO, COVERING PARCELS OF
LAND OWNED BY THE DECEASED, CHARLES NEWTON
HODGES, AND THE CONTRACTS TO SELL COVERING
WHICH WERE EXECUTED BY HIM DURING HIS
LIFETIME.
XLIV to XLVI
THE LOWER COURT ERRED IN APPROVING THE FINAL
DEED OF SALE IN FAVOR OF THE APPELLEES,
GRACIANO LUCERO, ARITEO THOMAS JAMIR AND
MELQUIADES BATISANAN, PURSUANT TO CONTRACTS
TO SELL EXECUTED BY THEM WITH THE DECEASED,
CHARLES NEWTON HODGES, THE TERMS AND
CONDITIONS OF WHICH THEY HAVE NEVER COMPLIED
WITH.
XLVII to XLIX
THE LOWER COURT ERRED IN DEPRIVING THE
DECEASED, CHARLES NEWTON HODGES, OF HIS
RIGHT, EXERCISED THROUGH HIS ADMINISTRATION,
THE INSTANT APPELLANT, TO CANCEL THE CONTRACTS
TO SELL OF THE APPELLEES, GRACIANO LUCERO,
ARITEO THOMAS JAMIR AND MELQUIADES BATISANAN,
AND IN DETERMINING THE RIGHTS OF THE SAID
APPELLEES OVER REAL PROPERTY WHILE ACTING AS A
PROBATE COURT.
L
THE LOWER COURT ERRED IN APPROVING THE FINAL
DEEDS OF SALE IN FAVOR OF THE APPELLEE, BELCESAR
CAUSING, EXECUTED BY THE APPELLEE, AVELINA A.
MAGNO, COVERING PARCELS OF LAND OWNED BY THE
DECEASED, CHARLES NEWTON HODGES, AND THE
CONTRACTS TO SELL COVERING WHICH WERE
EXECUTED BY HIM DURING HIS LIFETIME.
LI
THE LOWER COURT ERRED IN APPROVING THE DEEDS
OF SALE IN FAVOR OF THE APPELLEE, BELCESAR
CAUSING, ALTHOUGH HE WAS IN ARREARS IN THE
PAYMENTS AGREED UPON IN THE ORIGINAL CONTRACT
TO SELL WHICH HE EXECUTED WITH THE DECEASED,
CHARLES NEWTON HODGES, IN THE AMOUNT OF
P2,337.50.
LII
THE LOWER COURT ERRED IN APPROVING THE DEED
OF SALE IN FAVOR OF THE APPELLEE, BELCESAR
CAUSING, ALTHOUGH THE SAME WAS NOT EXECUTED
IN ACCORDANCE WITH THE RULES OF COURT.
LIII to LXI
THE LOWER COURT ERRED IN ORDERING THE
APPELLANT, PHILIPPINE COMMERCIAL AND
INDUSTRIAL BANK TO SURRENDER THE OWNER'S
DUPLICATE CERTIFICATES OF TITLE OVER THE
RESPECTIVE LOTS COVERED BY THE DEEDS OF SALE
EXECUTED BY THE APPELLEE, AVELINA A. MAGNO, IN
FAVOR OF THE OTHER APPELLEES, JOSE PABLICO,
ALFREDO CATEDRAL, SALVADOR S. GUZMAN, FLRENIA
BARRIDO, PURIFICACION CORONADO, BELCESAR
CAUSING, ARITEO THOMAS JAMIR, MAXIMA
BATISANAN AND GRACIANO L. LUCERO.
LXII
THE LOWER COURT ERRED IN RESOLVING THE MOTION
OF THE APPELLEE, WESTERN INSTITUTE OF
TECHNOLOGY, DATED NOVEMBER 3, 1965, WITHOUT
ANY COPY THEREOF HAVING BEEN SERVED UPON THE
APPELLANT, PHILIPPINE COMMERCIAL & INDUSTRIAL
BANK.
LXIII
THE LOWER COURT ERRED IN HEARING AND
CONSIDERING THE MOTION OF THE APPELLEE,
WESTERN INSTITUTE OF TECHNOLOGY, DATED
NOVEMBER 3rd, 1965, ON NOVEMBER 23, 1965, WHEN
THE NOTICE FOR THE HEARING THEREOF WAS FOR
NOVEMBER 20, 1965.
LXIV
276
THE LOWER COURT ERRED IN GRANTING THE
APPELLEE, WESTERN INSTITUTE OF TECHNOLOGY A
RELIEF OTHER THAN THAT PRAYED FOR IN ITS
MOTION, DATED NOVEMBER 3, 1965, IN THE ABSENCE
OF A PRAYER FOR GENERAL RELIEF CONTAINED
THEREIN.
LXV
THE LOWER COURT ERRED IN ALLOWING THE
APPELLEE, WESTERN INSTITUTE OF TECHNOLOGY, TO
CONTINUE PAYMENTS UPON A CONTRACT TO SELL THE
TERMS AND CONDITIONS OF WHICH IT HAS FAILED TO
FULFILL.
LXVI
THE LOWER COURT ERRED IN DETERMINING THE
RIGHTS OF THE APPELLEE, WESTERN INSTITUTE OF
TECHNOLOGY OVER THE REAL PROPERTY SUBJECT
MATTER OF THE CONTRACT TO SELL IT EXECUTED
WITH THE DECEASED, CHARLES NEWTON HODGES,
WHILE ACTING AS A PROBATE COURT.
LXVII
LOWER COURT ERRED IN ALLOWING THE
CONTINUATION OF PAYMENTS BY THE APPELLEE,
WESTERN INSTITUTE OF TECHNOLOGY, UPON A
CONTRACT TO SELL EXECUTED BY IT AND THE
DECEASED, CHARLES NEWTON HODGES, TO A PERSON
OTHER THAN HIS LAWFULLY APPOINTED
ADMINISTRATOR.
LXVIII
THE LOWER COURT ERRED IN ORDERING THE PAYMENT
OF RETAINER'S FEES FROM THE SUPPOSED ESTATE OF
THE DECEASED, LINNIE JANE HODGES, WHEN THERE
IS NEITHER SUCH ESTATE NOR ASSETS THEREOF.
LXIX
THE LOWER COURT ERRED IN ORDERING THE PAYMENT
OF RETAINER'S FEES OF LAWYERS OF ALLEGED HEIRS
TO THE SUPPOSED ESTATE OF THE DECEASED, LINNIE
JANE HODGES.
LXX
THE LOWER COURT ERRED IN IMPLEMENTING THE
ALLEGED AGREEMENT BETWEEN THE HEIRS OF THE
SUPPOSED ESTATE OF THE DECEASED, LINNIE JANE
HODGES, AND THEIR LAWYERS.
LXXI
THE LOWER COURT ERRED IN ORDERING THE
PREMATURE DISTRIBUTION OF ESTATE ASSETS TO
ALLEGED HEIRS OR BENEFICIARIES THEREOF, BY WAY
OF RETAINER'S FEES.
LXXII
THE LOWER COURT ERRED IN ORDERING THAT ALL
FINAL DEEDS OF SALE EXECUTED PURSUANT TO
CONTRACTS TO SELL ENTERED INTO BY THE
DECEASED, CHARLES NEWTON HODGES, DURING HIS
LIFETIME, BE SIGNED JOINTLY BY THE APPELLEE,
AVELINA A. MAGNO, AND THE APPELLANT, PHILIPPINE
COMMERCIAL AND INDUSTRIAL BANK, AND NOT BY
THE LATTER ONLY AS THE LAWFULLY APPOINTED
ADMINISTRATOR OF HIS ESTATE.
LXXIII
THE LOWER COURT ERRED IN ORDERING THE PAYMENT
OF LEGAL EXPENSES FROM THE SUPPOSED ESTATE OF
THE DECEASED, LINNIE JANE HODGES, WHEN THERE
IS NEITHER SUCH ESTATE NOR ASSETS THEREOF.
LXXIV
THE LOWER COURT ERRED IN ORDERING THE PAYMENT
OF LEGAL EXPENSES OF LAWYERS OF ALLEGED HEIRS
TO THE SUPPOSED ESTATE OF THE DECEASED, LINNIE
JANE HODGES.
LXXV
THE LOWER COURT ERRED IN ORDERING THE
PREMATURE DISTRIBUTION OF ESTATE ASSETS TO
ALLEGED HEIRS OR BENEFICIARIES THEREOF, BY WAY
OF LEGAL EXPENSES.
LXXVI
THE LOWER COURT ERRED IN ORDERING THE PAYMENT
OF COMPENSATION TO THE PURPORTED
ADMINISTRATRIX OF THE SUPPOSED ESTATE OF THE
DECEASED, LINNIE JANE HODGES, THE INSTANT
APPELLEE, AVELINA A. MAGNO, WHEN THERE IS
NEITHER SUCH ESTATE NOR ASSETS THEREOF.
LXXVII
THE LOWER COURT ERRED IN ORDERING THAT THE
FUNDS OF THE TESTATE ESTATE OF THE DECEASED,
CHARLES NEWTON HODGES, BE PLACED IN A JOINT
ACCOUNT OF THE APPELLANT, PHILIPPINE
COMMERCIAL AND INDUSTRIAL BANK, AND THE
APPELLEE, AVELINA A. MAGNO, WHO IS A COMPLETE
STRANGER TO THE AFORESAID ESTATE.
LXXVIII
THE LOWER COURT ERRED IN ORDERING THAT THE
APPELLEE, AVELINA A. MAGNO, BE GIVEN EQUAL
ACCESS TO THE RECORDS OF THE TESTATE ESTATE OF
THE DECEASED, CHARLES NEWTON HODGES, WHEN
SHE IS A COMPLETE STRANGER TO THE AFORESAID
ESTATE. (Pp. 73-83, Appellant's Brief.)
277
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
As to the Alleged Tardiness
of the Present Appeals
The priority question raised by respondent Magno
relates to the alleged tardiness of all the aforementioned
thirty-three appeals of PCIB. Considering, however, that
these appeals revolve around practically the same main
issues and that it is admitted that some of them have
been timely taken, and, moreover, their final results
hereinbelow to be stated and explained make it of no
consequence whether or not the orders concerned have
become final by the lapsing of the respective periods to
appeal them, We do not deem it necessary to pass upon
the timeliness of any of said appeals.
II
The Propriety Here of Certiorari and
Prohibition instead of Appeal
The other preliminary point of the same respondent is
alleged impropriety of the special civil action of certiorari
and prohibition in view of the existence of the remedy
of appeal which it claims is proven by the very appeals
now before Us. Such contention fails to take into account
that there is a common thread among the basic issues
involved in all these thirty-three appeals which, unless
resolved in one single proceeding, will inevitably cause
the proliferation of more or less similar or closely related
incidents and consequent eventual appeals. If for this
consideration alone, and without taking account
anymore of the unnecessary additional effort, expense
and time which would be involved in as many individual
appeals as the number of such incidents, it is logical and
proper to hold, as We do hold, that the remedy of appeal
is not adequate in the present cases. In determining
whether 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 ofcertiorari 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 main
brief as appellant.
III
On Whether or Not There is Still Any Part of the Testate
Estate Mrs. Hodges that may be Adjudicated to her
brothers
and sisters as her estate, of which respondent Magno is
the
unquestioned Administratrix in special Proceedings
1307.
In the petition, it is the position of PCIB that the
respondent court exceeded its jurisdiction or gravely
abused its discretion in further recognizing after
278
December 14, 1957 the existence of the Testate Estate
of Linnie Jane Hodges and in sanctioning purported acts
of administration therein of respondent Magno. Main
ground for such posture is that by the aforequoted order
of respondent court of said date, Hodges was already
allowed to assert and exercise all his rights as universal
heir of his wife pursuant to the provisions of her will,
quoted earlier, hence, nothing else remains to be done
in Special Proceedings 1307 except to formally close it.
In other words, the contention of PCIB is that in view of
said order, nothing more than a formal declaration of
Hodges as sole and exclusive heir of his wife and the
consequent formal unqualified adjudication to him of all
her estate remain to be done to completely close Special
Proceedings 1307, hence respondent Magno should be
considered as having ceased to be Administratrix of the
Testate Estate of Mrs. Hodges since then.
After carefully going over the record, We feel
constrained to hold that such pose is patently untenable
from whatever angle it is examined.
To start with, We cannot find anywhere in respondent
Order of December 14, 1957 the sense being read into
it by PCIB. The tenor of said order bears no suggestion
at all to such effect. The declaration of heirs and
distribution by the probate court of the estate of a
decedent is its most important function, and this Court
is not disposed to encourage judges of probate
proceedings to be less than definite, plain and specific
in making orders in such regard, if for no other reason
than that all parties concerned, like the heirs, the
creditors, and most of all the government, the devisees
and legatees, should know with certainty what are and
when their respective rights and obligations ensuing
from the inheritance or in relation thereto would begin
or cease, as the case may be, thereby avoiding precisely
the legal complications and consequent litigations
similar to those that have developed unnecessarily in
the present cases. While it is true that in instances
wherein all the parties interested in the estate of a
deceased person have already actually distributed
among themselves their respective shares therein to the
satisfaction of everyone concerned and no rights of
creditors or third parties are adversely affected, it would
naturally be almost ministerial for the court to issue the
final order of declaration and distribution, still it is
inconceivable that the special proceeding instituted for
the purpose may be considered terminated, the
respective rights of all the parties concerned be deemed
definitely settled, and the executor or administrator
thereof be regarded as automatically discharged and
relieved already of all functions and responsibilities
without the corresponding definite orders of the probate
court to such effect.
Indeed, the law on the matter is specific, categorical and
unequivocal. Section 1 of Rule 90 provides:
SECTION 1. When order for distribution of residue
made. — When the debts, funeral charges, and
expenses of administration, the allowance to the widow
and inheritance tax, if any, chargeable to the estate in
accordance with law have been paid, the court, on the
application of the executor or administrator, or of a
person interested in the estate, and after hearing upon
notice, shall assign the residue of the estate to the
persons entitled to the same, naming them and the
proportions, or parts, to which each is entitled, and such
persons may demand and recover their respective
shares from the executor or administrator, or any other
person having the same in his possession. If there is a
controversy before the court as to who are the lawful
heirs of the deceased person or as to the distributive
shares to which each person is entitled under the law,
the controversy shall be heard and decided as in
ordinary cases.
No distribution shall be allowed until the payment of the
obligations above mentioned has been made or provided
for, unless the distributees, or any of them give a bond,
in a sum to be fixed by the court, conditioned for the
payment of said obligations within such time as the
court directs.
These provisions cannot mean anything less than that
in order that a proceeding for the settlement of the
estate of a deceased may be deemed ready for final
closure, (1) there should have been issued already an
order of distribution or assignment of the estate of the
decedent among or to those entitled thereto by will or
by law, but (2) such order shall not be issued until after
it is shown that the "debts, funeral expenses, expenses
of administration, allowances, taxes, etc. chargeable to
the estate" have been paid, which is but logical and
proper. (3) Besides, such an order is usually issued upon
proper and specific application for the purpose of the
interested party or parties, and not of the court.
... it is only after, and not before, the payment of all
debts, funeral charges, expenses of administration,
allowance to the widow, and inheritance tax shall have
been effected that the court should make a declaration
of heirs or of such persons as are entitled by law to the
residue. (Moran, Comments on the Rules of Court, 2nd
ed., Vol. II, p. 397, citing Capistrano vs. Nadurata, 49
Phil., 726; Lopez vs. Lopez, 37 Off. Gaz., 3091.)
(JIMOGA-ON v. BELMONTE, 84 Phil. 545, 548) (p. 86,
Appellee's Brief)
xxx xxx xxx
Under Section 753 of the Code of Civil Procedure,
(corresponding to Section 1, Rule 90) what brings an
intestate (or testate) proceeding to a close is the order
of distribution directing delivery of the residue to the
persons entitled thereto after paying the indebtedness,
if any, left by the deceased. (Santiesteban vs.
Santiesteban, 68 Phil. 367, 370.)
In the cases at bar, We cannot discern from the
voluminous and varied facts, pleadings and orders
before Us that the above indispensable prerequisites for
the declaration of heirs and the adjudication of the
estate of Mrs. Hodges had already been complied with
when the order of December 14, 1957 was issued. As
already stated, We are not persuaded that the
proceedings leading to the issuance of said order,
279
constituting barely of the motion of May 27, 1957,
Annex D of the petition, the order of even date, Annex
E, and the motion of December 11, 1957, Annex H, all
aforequoted, are what the law contemplates. We cannot
see in the order of December 14, 1957, so much relied
upon by the petitioner, anything more than an explicit
approval of "all the sales, conveyances, leases and
mortgages of all the properties left by the deceased
Linnie Jane Hodges executed by the Executor Charles N.
Hodges" (after the death of his wife and prior to the date
of the motion), plus a general advance authorization to
enable said "Executor — to execute subsequent sales,
conveyances, leases and mortgages of the properties
left the said deceased Linnie Jane Hodges in consonance
with wishes conveyed in the last will and testament of
the latter", which, certainly, cannot amount to the order
of adjudication of the estate of the decedent to Hodges
contemplated in the law. In fact, the motion of
December 11, 1957 on which the court predicated the
order in question did not pray for any such adjudication
at all. What is more, although said motion did allege that
"herein Executor (Hodges) is not only part owner of the
properties left as conjugal, but also, the successor to all
the properties left by the deceased Linnie Jane Hodges",
it significantly added that "herein Executor, as Legatee
(sic), has the right to sell, convey, lease or dispose of
the properties in the Philippines — during his lifetime",
thereby indicating that what said motion contemplated
was nothing more than either the enjoyment by Hodges
of his rights under the particular portion of the
dispositions of his wife's will which were to be operative
only during his lifetime or the use of his own share of
the conjugal estate, pending the termination of the
proceedings. In other words, the authority referred to in
said motions and orders is in the nature of that
contemplated either in Section 2 of Rule 109 which
permits, in appropriate cases, advance or partial
implementation of the terms of a duly probated will
before final adjudication or distribution when the rights
of third parties would not be adversely affected thereby
or in the established practice of allowing the surviving
spouse to dispose of his own share of he conjugal estate,
pending its final liquidation, when it appears that no
creditors of the conjugal partnership would be
prejudiced thereby, (see the Revised Rules of Court by
Francisco, Vol. V-B, 1970 ed. p. 887) albeit, from the
tenor of said motions, We are more inclined to believe
that Hodges meant to refer to the former. In any event,
We are fully persuaded that the quoted allegations of
said motions read together cannot be construed as a
repudiation of the rights unequivocally established in the
will in favor of Mrs. Hodges' brothers and sisters to
whatever have not been disposed of by him up to his
death.
Indeed, nowhere in the record does it appear that the
trial court subsequently acted upon the premise
suggested by petitioner. On the contrary, on November
23, 1965, when the court resolved the motion of
appellee Western Institute of Technology by its order
We have quoted earlier, it categorically held that as of
said date, November 23, 1965, "in both cases (Special
Proceedings 1307 and 1672) there is as yet no judicial
declaration of heirs nor distribution of properties to
whomsoever are entitled thereto." In this connection, it
may be stated further against petitioner, by way of
some kind of estoppel, that in its own motion of January
8, 1965, already quoted in full on pages 54-67 of this
decision, it prayed inter alia that the court declare that
"C. N. Hodges was the sole and exclusive heir of the
estate of Linnie Jane Hodges", which it would not have
done if it were really convinced that the order of
December 14, 1957 was already the order of
adjudication and distribution of her estate. That said
motion was later withdrawn when Magno filed her own
motion for determination and adjudication of what
should correspond to the brothers and sisters of Mrs.
Hodges does not alter the indubitable implication of the
prayer of the withdrawn motion.
It must be borne in mind that while it is true that Mrs.
Hodges bequeathed her whole estate to her husband
and gave him what amounts to full powers of dominion
over the same during his lifetime, she imposed at the
same time the condition that whatever should remain
thereof upon his death should go to her brothers and
sisters. In effect, therefore, what was absolutely given
to Hodges was only so much of his wife's estate as he
might possibly dispose of during his lifetime; hence,
even assuming that by the allegations in his motion, he
did intend to adjudicate the whole estate to himself, as
suggested by petitioner, such unilateral act could not
have affected or diminished in any degree or manner
the right of his brothers and sisters-in-law over what
would remain thereof upon his death, for surely, no one
can rightly contend that the testamentary provision in
question allowed him to so adjudicate any part of the
estate to himself as to prejudice them. In other words,
irrespective of whatever might have been Hodges'
intention in his motions, as Executor, of May 27, 1957
and December 11, 1957, the trial court's orders granting
said motions, even in the terms in which they have been
worded, could not have had the effect of an absolute
and unconditional adjudication unto Hodges of the
whole estate of his wife. None of them could have
deprived his brothers and sisters-in-law of their rights
under said will. And it may be added here that the fact
that no one appeared to oppose the motions in question
may only be attributed, firstly, to the failure of Hodges
to send notices to any of them, as admitted in the
motion itself, and, secondly, to the fact that even if they
had been notified, they could not have taken said
motions to be for the final distribution and adjudication
of the estate, but merely for him to be able, pending
such final distribution and adjudication, to either
exercise during his lifetime rights of dominion over his
wife's estate in accordance with the bequest in his favor,
which, as already observed, may be allowed under the
broad terms of Section 2 of Rule 109, or make use of
his own share of the conjugal estate. In any event, We
do not believe that the trial court could have acted in
the sense pretended by petitioner, not only because of
the clear language of the will but also because none of
the interested parties had been duly notified of the
motion and hearing thereof. Stated differently, if the
orders of May 27, 1957 and December 4, 1957 were
really intended to be read in the sense contended by
petitioner, We would have no hesitancy in declaring
them null and void.
280
Petitioner cites the case of Austria vs. Ventenilla, G. R. ASI SE ORDENA.
No. L-10018, September 19, 1956, (unreported but a
partial digest thereof appears in 99 Phil. 1069) in Undoubtedly, after the issuance of an order of such
support of its insistence that with the orders of May 27 tenor, the closure of any proceedings for the settlement
and December 14, 1957, the closure of Mrs. Hodges' of the estate of a deceased person cannot be but
estate has become a mere formality, inasmuch as said perfunctory.
orders amounted to the order of adjudication and
distribution ordained by Section 1 of Rule 90. But the
In the case at bar, as already pointed out above, the
parallel attempted to be drawn between that case and
two orders relied upon by petitioner do not appear ex-
the present one does not hold. There the trial court had
facie to be of the same tenor and nature as the order
in fact issued a clear, distinct and express order of
just quoted, and, what is more, the circumstances
adjudication and distribution more than twenty years
attendant to its issuance do not suggest that such was
before the other heirs of the deceased filed their motion
the intention of the court, for nothing could have been
asking that the administratrix be removed, etc. As
more violative of the will of Mrs. Hodges.
quoted in that decision, the order of the lower court in
that respect read as follows:
Indeed, to infer from Hodges' said motions and from his
statements of accounts for the years 1958, 1959 and
En orden a la mocion de la administradora, el juzgado
1960, A Annexes I, K and M, respectively, wherein he
la encuentra procedente bajo la condicion de que no se
repeatedly claimed that "herein executor (being) the
hara entrega ni adjudicacion de los bienes a los
only devisee or legatee of the deceased, in accordance
herederos antes de que estos presten la fianza
with the last will and testament already probated," there
correspondiente y de acuerdo con lo prescrito en el Art.
is "no (other) person interested in the Philippines of the
754 del Codigo de Procedimientos: pues, en autos no
time and place of examining herein account to be given
aparece que hayan sido nombrados comisionados de
notice", an intent to adjudicate unto himself the whole
avaluo y reclamaciones. Dicha fianza podra ser por un
of his wife's estate in an absolute manner and without
valor igual al de los bienes que correspondan a cada
regard to the contingent interests of her brothers and
heredero segun el testamento. Creo que no es obice
sisters, is to impute bad faith to him, an imputation
para la terminacion del expediente el hecho de que la
which is not legally permissible, much less warranted by
administradora no ha presentado hasta ahora el
the facts of record herein. Hodges knew or ought to have
inventario de los bienes; pues, segun la ley, estan
known that, legally speaking, the terms of his wife's will
exentos de esta formalidad os administradores que son
did not give him such a right. Factually, there are
legatarios del residuo o remanente de los bienes y hayan
enough circumstances extant in the records of these
prestado fianza para responder de las gestiones de su
cases indicating that he had no such intention to ignore
cargo, y aparece en el testamento que la administradora
the rights of his co-heirs. In his very motions in
Alejandra Austria reune dicha condicion.
question, Hodges alleged, thru counsel, that the
"deceased Linnie Jane Hodges died leaving no
POR TODO LO EXPUESTO, el juzgado declara, 1.o: no descendants and ascendants, except brothers and
haber lugar a la mocion de Ramon Ventenilla y otros; sisters and herein petitioner, as surviving spouse, to
2.o, declara asimismo que los unicos herederos del inherit the properties of the decedent", and even
finado Antonio Ventenilla son su esposa Alejandra promised that "proper accounting will be had — in all
Austria, Maria Ventenilla, hermana del testador, y these transactions" which he had submitted for approval
Ramon Ventenilla, Maria Ventenilla, Ramon Soriano, and authorization by the court, thereby implying that he
Eulalio Soriano, Jose Soriano, Gabriela Ventenilla, was aware of his responsibilities vis-a-vis his co-heirs.
Lorenzo Ventenilla, Felicitas Ventenilla, Eugenio As alleged by respondent Magno in her brief as appellee:
Ventenilla y Alejandra Ventenilla, en representacion de
los difuntos Juan, Tomas, Catalino y Froilan, hermanos
Under date of April 14, 1959, C. N. Hodges filed his first
del testador, declarando, ademas que la heredera
"Account by the Executor" of the estate of Linnie Jane
Alejandra Austria tiene derecho al remanente de todos
Hodges. In the "Statement of Networth of Mr. C. N.
los bienes dejados por el finado, despues de deducir de
Hodges and the Estate of Linnie Jane Hodges" as of
ellos la porcion que corresponde a cada uno de sus
December 31, 1958 annexed thereto, C. N. Hodges
coherederos, conforme esta mandado en las clausulas
reported that the combined conjugal estate earned a net
8.a, 9.a, 10.a, 11.a, 12.a y 13.a del testamento; 3.o, se
income of P328,402.62, divided evenly between him
aprueba el pago hecho por la administradora de los
and the estate of Linnie Jane Hodges. Pursuant to this,
gastos de la ultima enfermedad y funerales del testador,
he filed an "individual income tax return" for calendar
de la donacion hecha por el testador a favor de la
year 1958 on the estate of Linnie Jane Hodges reporting,
Escuela a Publica del Municipio de Mangatarem, y de las
under oath, the said estate as having earned income of
misas en sufragio del alma del finado; 4.o, que una vez
P164,201.31, exactly one-half of the net income of his
prestada la fianza mencionada al principio de este auto,
combined personal assets and that of the estate of
se haga la entrega y adjudicacion de los bienes,
Linnie Jane Hodges. (p. 91, Appellee's Brief.)
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 Under date of July 21, 1960, C. N. Hodges filed his
administracion, revelandole toda responsabilidad a la second "Annual Statement of Account by the Executor"
administradora, y cancelando su fianza. of the estate of Linnie Jane Hodges. In the "Statement
of Networth of Mr. C. N. Hodges and the Estate of Linnie

281
Jane Hodges" as of December 31, 1959 annexed
thereto, C. N. Hodges reported that the combined
conjugal estate earned a net income of P270,623.32,
divided evenly between him and the estate of Linnie
Jane Hodges. Pursuant to this, he filed an "individual
income tax return" for calendar year 1959 on the estate
of Linnie Jane Hodges reporting, under oath, the said
estate as having earned income of P135,311.66, exactly
one-half of the net income of his combined personal
assets and that of the estate of Linnie Jane Hodges. (pp.
91-92, id.)
Under date of April 20, 1961, C. N. Hodges filed his third
"Annual Statement of Account by the Executor for the
year 1960" of the estate of Linnie Jane Hodges. In the
"Statement of Net Worth of Mr. C. N. Hodges and the
Estate of Linnie Jane Hodges" as of December 31, 1960
annexed thereto, C. N. Hodges reported that the
combined conjugal estate earned a net income of
P314,857.94, divided of Linnie Jane Hodges. Pursuant
to this, he filed an "individual evenly between him and
the estate income tax return" for calendar year 1960 on
the estate of Linnie Jane Hodges reporting, under oath,
the said estate as having earned income of
P157,428.97, exactly one-half of the net income of his
combined personal assets and that of the estate of
Linnie Jane Hodges. (pp. 92-93, id.)
In the petition for probate that he (Hodges) filed, he
listed the seven brothers and sisters of Linnie Jane as
her "heirs" (see p. 2, Green ROA). The order of the court
admitting the will to probate unfortunately omitted one
of the heirs, Roy Higdon (see p. 14, Green ROA).
Immediately, C. N. Hodges filed a verified motion to
have Roy Higdon's name included as an heir, stating
that he wanted to straighten the records "in order (that)
the heirs of deceased Roy Higdon may not think or
believe they were omitted, and that they were really and
are interested in the estate of deceased Linnie Jane
Hodges".
Thus, he recognized, if in his own way, the separate
identity of his wife's estate from his own share of the
conjugal partnership up to the time of his death, more
than five years after that of his wife. He never
considered the whole estate as a single one belonging
exclusively to himself. The only conclusion one can
gather from this is that he could have been preparing
the basis for the eventual transmission of his wife's
estate, or, at least, so much thereof as he would not
have been able to dispose of during his lifetime, to her
brothers and sisters in accordance with her expressed
desire, as intimated in his tax return in the United States
to be more extensively referred to anon. And assuming
that he did pay the corresponding estate and inheritance
taxes in the Philippines on the basis of his being sole
heir, such payment is not necessarily inconsistent with
his recognition of the rights of his co-heirs. Without
purporting to rule definitely on the matter in these
proceedings, We might say here that We are inclined to
the view that under the peculiar provisions of his wife's
will, and for purposes of the applicable inheritance tax
laws, Hodges had to be considered as her sole heir,
pending the actual transmission of the remaining
portion of her estate to her other heirs, upon the
eventuality of his death, and whatever adjustment
might be warranted should there be any such remainder
then is a matter that could well be taken care of by the
internal revenue authorities in due time.
It is to be noted that the lawyer, Atty. Leon P. Gellada,
who signed the motions of May 27, 1957 and December
11, 1957 and the aforementioned statements of account
was the very same one who also subsequently signed
and filed the motion of December 26, 1962 for the
appointment of respondent Magno as "Administratrix of
the Estate of Mrs. Linnie Jane Hodges" wherein it was
alleged that "in accordance with the provisions of the
last will and testament of Linnie Jane Hodges, whatever
real properties that may remain at the death of her
husband, Charles Newton Hodges, the said properties
shall be equally divided among their heirs." And it
appearing that said attorney was Hodges' lawyer as
Executor of the estate of his wife, it stands to reason
that his understanding of the situation, implicit in his
allegations just quoted, could somehow be reflective of
Hodges' own understanding thereof.
As a matter of fact, the allegations in the motion of the
same Atty. Gellada dated July 1, 1957, a "Request for
Inclusion of the Name of Roy Higdon in the Order of the
Court dated July 19, 1957, etc.", reference to which is
made in the above quotation from respondent Magno's
brief, are over the oath of Hodges himself, who verified
the motion. Said allegations read:
1. — That the Hon. Court issued orders dated June 29,
1957, ordering the probate of the will.
2. — That in said order of the Hon. Court, the relatives
of the deceased Linnie Jane Hodges were enumerated.
However, in the petition as well as in the testimony of
Executor during the hearing, the name Roy Higdon was
mentioned, but deceased. It was unintentionally omitted
the heirs of said Roy Higdon who are his wife Aline
Higdon and son David Higdon, all of age, and residents
of Quinlan, Texas, U.S.A.
3. — That to straighten the records, and in order the
heirs of deceased Roy Higdon may not think or believe
they were omitted, and that they were really and are
interested in the estate of deceased Linnie Jane Hodges,
it is requested of the Hon. Court to insert the names of
Aline Higdon and David Higdon, wife and son of
deceased Roy Higdon in the said order of the Hon. Court
dated June 29, 1957. (pars. 1 to 3, Annex 2 of Magno's
Answer — Record, p. 260)
As can be seen, these italicized allegations indicate,
more or less, the real attitude of Hodges in regard to the
testamentary dispositions of his wife.
In connection with this point of Hodges' intent, We note
that there are documents, copies of which are annexed
to respondent Magno's answer, which purportedly
contain Hodges' own solemn declarations recognizing
the right of his co-heirs, such as the alleged tax return
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he filed with the United States Taxation authorities,
identified as Schedule M, (Annex 4 of her answer) and
his supposed affidavit of renunciation, Annex 5. In said
Schedule M, Hodges appears to have answered the
pertinent question thus:
2a. Had the surviving spouse the right to declare an
election between (1) the provisions made in his or her
favor by the will and (11) dower, curtesy or a statutory
interest? (X) Yes ( ) No
2d. Does the surviving spouse contemplate renouncing
the will and electing to take dower, curtesy, or a
statutory interest? (X) Yes ( ) No
3. According to the information and belief of the person
or persons filing the return, is any action described
under question 1 designed or contemplated? ( ) Yes (X)
No (Annex 4, Answer — Record, p. 263)
and to have further stated under the item, "Description
of property interests passing to surviving spouse" the
following:
None, except for purposes of administering the Estate,
paying debts, taxes and other legal charges. It is the
intention of the surviving husband of deceased to
distribute the remaining property and interests of the
deceased in their Community Estate to the devisees and
legatees named in the will when the debts, liabilities,
taxes and expenses of administration are finally
determined and paid. (Annex 4, Answer — Record, p.
263)
In addition, in the supposed affidavit of Hodges, Annex
5, it is stated:
I, C. N. Hodges, being duly sworn, on oath affirm that
at the time the United States Estate Tax Return was filed
in the Estate of Linnie Jane Hodges on August 8, 1958,
I renounced and disclaimed any and all right to receive
the rents, emoluments and income from said estate, as
shown by the statement contained in Schedule M at
page 29 of said return, a copy of which schedule is
attached to this affidavit and made a part hereof.
The purpose of this affidavit is to ratify and confirm, and
I do hereby ratify and confirm, the declaration made in
Schedule M of said return and hereby formally disclaim
and renounce any right on my part to receive any of the
said rents, emoluments and income from the estate of
my deceased wife, Linnie Jane Hodges. This affidavit is
made to absolve me or my estate from any liability for
the payment of income taxes on income which has
accrued to the estate of Linnie Jane Hodges since the
death of the said Linnie Jane Hodges on May 23, 1957.
(Annex 5, Answer — Record, p. 264)
Although it appears that said documents were not duly
presented as evidence in the court below, and We
cannot, therefore, rely on them for the purpose of the
present proceedings, still, We cannot close our eyes to
their existence in the record nor fail to note that their
tenor jibes with Our conclusion discussed above from
the circumstances related to the orders of May 27 and
December 14, 1957. 5 Somehow, these documents,
considering they are supposed to be copies of their
originals found in the official files of the governments of
the United States and of the Philippines, serve to lessen
any possible apprehension that Our conclusion from the
other evidence of Hodges' manifest intent vis-a-vis the
rights of his co-heirs is without basis in fact.
Verily, with such eloquent manifestations of his good
intentions towards the other heirs of his wife, We find it
very hard to believe that Hodges did ask the court and
that the latter agreed that he be declared her sole heir
and that her whole estate be adjudicated to him without
so much as just annotating the contingent interest of
her brothers and sisters in what would remain thereof
upon his demise. On the contrary, it seems to us more
factual and fairer to assume that Hodges was well aware
of his position as executor of the will of his wife and, as
such, had in mind the following admonition made by the
Court in Pamittan vs. Lasam, et al., 60 Phil., 908, at pp.
913-914:
Upon the death of Bernarda in September, 1908, said
lands continued to be conjugal property in the hands of
the defendant Lasam. It is provided in article 1418 of
the Civil Code that upon the dissolution of the conjugal
partnership, an inventory shall immediately be made
and this court in construing this provision in connection
with section 685 of the Code of Civil Procedure (prior to
its amendment by Act No. 3176 of November 24, 1924)
has repeatedly held that in the event of the death of the
wife, the law imposes upon the husband the duty of
liquidating the affairs of the partnership without delay
(desde luego) (Alfonso vs. Natividad, 6 Phil., 240; Prado
vs. Lagera, 7 Phil., 395; De la Rama vs. De la Rama, 7
Phil., 745; Enriquez vs. Victoria, 10 Phil., 10; Amancio
vs. Pardo, 13 Phil., 297; Rojas vs. Singson Tongson, 17
Phil., 476; Sochayseng vs. Trujillo, 31 Phil., 153; Molera
vs. Molera, 40 Phil., 566; Nable Jose vs. Nable Jose, 41
Phil., 713.)
In the last mentioned case this court quoted with
approval the case of Leatherwood vs. Arnold (66 Texas,
414, 416, 417), in which that court discussed the
powers of the surviving spouse in the administration of
the community property. Attention was called to the fact
that the surviving husband, in the management of the
conjugal property after the death of the wife, was a
trustee of unique character who is liable for any fraud
committed by him with relation to the property while he
is charged with its administration. In the liquidation of
the conjugal partnership, he had wide powers (as the
law stood prior to Act No. 3176) and the high degree of
trust reposed in him stands out more clearly in view of
the fact that he was the owner of a half interest in his
own right of the conjugal estate which he was charged
to administer. He could therefore no more acquire a title
by prescription against those for whom he was
administering the conjugal estate than could a guardian
against his ward or a judicial administrator against the
heirs of estate. Section 38 of Chapter III of the Code of
Civil Procedure, with relation to prescription, provides
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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
284
the present cases what gave rise to the claim of PCIB of
exclusive ownership by the estate of Hodges over all the
properties of the Hodges spouses, including the share of
Mrs. Hodges in the community properties, were the
orders of the trial court issued in the course of the very
settlement proceedings themselves, more specifically,
the orders of May 27 and December 14, 1957 so often
mentioned above. In other words, the root of the issue
of title between the parties is something that the court
itself has done in the exercise of its probate jurisdiction.
And since in the ultimate analysis, the question of
whether or not all the properties herein involved pertain
exclusively to the estate of Hodges depends on the legal
meaning and effect of said orders, the claim that
respondent court has no jurisdiction to take cognizance
of and decide the said issue is incorrect. If it was within
the competence of the court to issue the root orders,
why should it not be within its authority to declare their
true significance and intent, to the end that the parties
may know whether or not the estate of Mrs. Hodges had
already been adjudicated by the court, upon the
initiative of Hodges, in his favor, to the exclusion of the
other heirs of his wife instituted in her will?
At this point, it bears emphasis again that the main
cause of all the present problems confronting the courts
and the parties in these cases was the failure of Hodges
to secure, as executor of his wife's estate, from May,
1957 up to the time of his death in December, 1962, a
period of more than five years, the final adjudication of
her estate and the closure of the proceedings. The
record is bare of any showing that he ever exerted any
effort towards the early settlement of said estate. While,
on the one hand, there are enough indications, as
already discuss that he had intentions of leaving intact
her share of the conjugal properties so that it may pass
wholly to his co-heirs upon his death, pursuant to her
will, on the other hand, by not terminating the
proceedings, his interests in his own half of the conjugal
properties remained commingled pro-indiviso with those
of his co-heirs in the other half. Obviously, such a
situation could not be conducive to ready ascertainment
of the portion of the inheritance that should appertain
to his co-heirs upon his death. Having these
considerations in mind, it would be giving a premium for
such procrastination and rather unfair to his co-heirs, if
the administrator of his estate were to be given
exclusive administration of all the properties in
question, which would necessarily include the function
of promptly liquidating the conjugal partnership,
thereby identifying and segregating without
unnecessary loss of time which properties should be
considered as constituting the estate of Mrs. Hodges,
the remainder of which her brothers and sisters are
supposed to inherit equally among themselves.
To be sure, an administrator is not supposed to
represent the interests of any particular party and his
acts are deemed to be objectively for the protection of
the rights of everybody concerned with the estate of the
decedent, and from this point of view, it maybe said that
even if PCIB were to act alone, there should be no fear
of undue disadvantage to anyone. On the other hand,
however, it is evidently implicit in section 6 of Rule 78
fixing the priority among those to whom letters of
administration should be granted that the criterion in
the selection of the administrator is not his impartiality
alone but, more importantly, the extent of his interest
in the estate, so much so that the one assumed to have
greater interest is preferred to another who has less.
Taking both of these considerations into account,
inasmuch as, according to Hodges' own inventory
submitted by him as Executor of the estate of his wife,
practically all their properties were conjugal which
means that the spouses have equal shares therein, it is
but logical that both estates should be administered
jointly by representatives of both, pending their
segregation from each other. Particularly is such an
arrangement warranted because the actuations so far of
PCIB evince a determined, albeit groundless, intent to
exclude the other heirs of Mrs. Hodges from their
inheritance. Besides, to allow PCIB, the administrator of
his estate, to perform now what Hodges was duty bound
to do as executor is to violate the spirit, if not the letter,
of Section 2 of Rule 78 which expressly provides that
"The executor of an executor shall not, as such,
administer the estate of the first testator." It goes
without saying that this provision refers also to the
administrator of an executor like PCIB here.
We are not unmindful of the fact that under Section 2 of
Rule 73, "When the marriage is dissolved by the death
of the husband or wife, the community property shall be
inventoried, administered, and liquidated, and the debts
thereof paid, in the testate or intestate proceedings of
the deceased spouse. If both spouses have died, the
conjugal partnership shall be liquidated in the testate or
intestate proceedings of either." Indeed, it is true that
the last sentence of this provision allows or permits the
conjugal partnership of spouses who are both deceased
to be settled or liquidated in the testate or intestate
proceedings of either, but precisely because said
sentence allows or permits that the liquidation be made
in either proceeding, it is a matter of sound judicial
discretion in which one it should be made. After all, the
former rule referring to the administrator of the
husband's estate in respect to such liquidation was done
away with by Act 3176, the pertinent provisions of which
are now embodied in the rule just cited.
Thus, it can be seen that at the time of the death of
Hodges, there was already the pending judicial
settlement proceeding of the estate of Mrs. Hodges,
and, more importantly, that the former was the
executor of the latter's will who had, as such, failed for
more than five years to see to it that the same was
terminated earliest, which was not difficult to do, since
from ought that appears in the record, there were no
serious obstacles on the way, the estate not being
indebted and there being no immediate heirs other than
Hodges himself. Such dilatory or indifferent attitude
could only spell possible prejudice of his co-heirs, whose
rights to inheritance depend entirely on the existence of
any remainder of Mrs. Hodges' share in the community
properties, and who are now faced with the pose of PCIB
that there is no such remainder. Had Hodges secured as
early as possible the settlement of his wife's estate, this
problem would not arisen. All things considered, We are
fully convinced that the interests of justice will be better
served by not permitting or allowing PCIB or any
285
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 legitime of Hodges as
the surviving spouse, consisting of one-half of the
estate, considering that Mrs. Hodges had no surviving
ascendants nor descendants. (Arts. 872, 900, and 904,
New Civil Code.)
But relative precisely to the question of how much of
Mrs. Hodges' share of the conjugal partnership
properties may be considered as her estate, the parties
are in disagreement as to how Article 16 of the Civil
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
286
proper to mention here. In Justice, therefore, to all the
parties concerned, these and all other relevant matters
should first be threshed out fully in the trial court in the
proceedings hereafter to be held therein for the purpose
of ascertaining and adjudicating and/or distributing the
estate of Mrs. Hodges to her heirs in accordance with
her duly probated will.
To be more explicit, all that We can and do decide in
connection with the petition for certiorari and prohibition
are: (1) that regardless of which corresponding laws are
applied, whether of the Philippines or of Texas, and
taking for granted either of the respective contentions
of the parties as to provisions of the latter, 8 and
regardless also of whether or not it can be proven by
competent evidence that Hodges renounced his
inheritance in any degree, it is easily and definitely
discernible from the inventory submitted by Hodges
himself, as Executor of his wife's estate, that there are
properties which should constitute the estate of Mrs.
Hodges and ought to be disposed of or distributed
among her heirs pursuant to her will in said Special
Proceedings 1307; (2) that, more specifically, inasmuch
as the question of what are the pertinent laws of Texas
applicable to the situation herein is basically one of fact,
and, considering that the sole difference in the positions
of the parties as to the effect of said laws has reference
to the supposed legitime of Hodges — it being the stand
of PCIB that Hodges had such a legitime whereas Magno
claims the negative - it is now beyond controversy for
all future purposes of these proceedings that whatever
be the provisions actually of the laws of Texas applicable
hereto, the estate of Mrs. Hodges is at least, one-fourth
of the conjugal estate of the spouses; the existence and
effects of foreign laws being questions of fact, and it
being the position now of PCIB that the estate of Mrs.
Hodges, pursuant to the laws of Texas, should only be
one-fourth of the conjugal estate, such contention
constitutes an admission of fact, and consequently, it
would be in estoppel in any further proceedings in these
cases to claim that said estate could be less, irrespective
of what might be proven later to be actually the
provisions of the applicable laws of Texas; (3) that
Special Proceedings 1307 for the settlement of the
testate estate of Mrs. Hodges cannot be closed at this
stage and should proceed to its logical conclusion, there
having been no proper and legal adjudication or
distribution yet of the estate therein involved; and (4)
that respondent Magno remains and continues to be the
Administratrix therein. Hence, nothing in the foregoing
opinion is intended to resolve the issues which, as
already stated, are not properly before the Court now,
namely, (1) whether or not Hodges had in fact and in
law waived or renounced his inheritance from Mrs.
Hodges, in whole or in part, and (2) assuming there had
been no such waiver, whether or not, by the application
of Article 16 of the Civil Code, and in the light of what
might be the applicable laws of Texas on the matter, the
estate of Mrs. Hodges is more than the one-fourth
declared above. As a matter of fact, even our finding
above about the existence of properties constituting the
estate of Mrs. Hodges rests largely on a general
appraisal of the size and extent of the conjugal
partnership gathered from reference made thereto by
both parties in their briefs as well as in their pleadings
included in the records on appeal, and it should
accordingly yield, as to which exactly those properties
are, to the more concrete and specific evidence which
the parties are supposed to present in support of their
respective positions in regard to the foregoing main
legal and factual issues. In the interest of justice, the
parties should be allowed to present such further
evidence in relation to all these issues in a joint hearing
of the two probate proceedings herein involved. After
all, the court a quo has not yet passed squarely on these
issues, and it is best for all concerned that it should do
so in the first instance.
Relative to Our holding above that the estate of Mrs.
Hodges cannot be less than the remainder of one-fourth
of the conjugal partnership properties, it may be
mentioned here that during the deliberations, the point
was raised as to whether or not said holding might be
inconsistent with Our other ruling here also that, since
there is no reliable evidence as to what are the
applicable laws of Texas, U.S.A. "with respect to the
order of succession and to the amount of successional
rights" that may be willed by a testator which, under
Article 16 of the Civil Code, are controlling in the instant
cases, in view of the undisputed Texan nationality of the
deceased Mrs. Hodges, these cases should be returned
to the court a quo, so that the parties may prove what
said law provides, it is premature for Us to make any
specific ruling now on either the validity of the
testamentary dispositions herein involved or the amount
of inheritance to which the brothers and sisters of Mrs.
Hodges are entitled. After nature reflection, We are of
the considered view that, at this stage and in the state
of the records before Us, the feared inconsistency is
more apparent than real. Withal, it no longer lies in the
lips of petitioner PCIB to make any claim that under the
laws of Texas, the estate of Mrs. Hodges could in any
event be less than that We have fixed above.
It should be borne in mind that as above-indicated, the
question of what are the laws of Texas governing the
matters herein issue is, in the first instance, one of fact,
not of law. Elementary is the rule that foreign laws may
not be taken judicial notice of and have to be proven like
any other fact in dispute between the parties in any
proceeding, with the rare exception in instances when
the said laws are already within the actual knowledge of
the court, such as when they are well and generally
known or they have been actually ruled upon in other
cases before it and none of the parties concerned do not
claim otherwise. (5 Moran, Comments on the Rules of
Court, p. 41, 1970 ed.) In Fluemer vs. Hix, 54 Phil. 610,
it was held:
It is the theory of the petitioner that the alleged will was
executed in Elkins West Virginia, on November 3, 1925,
by Hix who had his residence in that jurisdiction, and
that the laws of West Virginia govern. To this end, there
was submitted a copy of section 3868 of Acts 1882, c.
84 as found in West Virginia Code, Annotated, by Hogg
Charles E., vol. 2, 1914, p. 1960, and as certified to by
the Director of the National Library. But this was far
from a compliance with the law. The laws of a foreign
jurisdiction do not prove themselves in our courts. The
287
courts of the Philippine Islands are not authorized to
take judicial notice of the laws of the various States of
the American Union. Such laws must be proved as facts.
(In re Estate of Johnson [1918], 39 Phil., 156.) Here the
requirements of the law were not met. There was no
showing that the book from which an extract was taken
was printed or published under the authority of the
State of West Virginia, as provided in section 300 of the
Code of Civil Procedure. Nor was the extract from the
law attested by the certificate of the officer having
charge of the original, under the seal of the State of
West Virginia, as provided in section 301 of the Code of
Civil Procedure. No evidence was introduced to show
that the extract from the laws of West Virginia was in
force at the time the alleged will was executed."
No evidence of the nature thus suggested by the Court
may be found in the records of the cases at bar. Quite
to the contrary, the parties herein have presented
opposing versions in their respective pleadings and
memoranda regarding the matter. And even if We took
into account that in Aznar vs. Garcia, the Court did make
reference to certain provisions regarding succession in
the laws of Texas, the disparity in the material dates of
that case and the present ones would not permit Us to
indulge in the hazardous conjecture that said provisions
have not been amended or changed in the meantime.
On the other hand, in In re Estate of Johnson, 39 Phil.
156, We held:
Upon the other point — as to whether the will was
executed in conformity with the statutes of the State of
Illinois — we note that it does not affirmatively appear
from the transcription of the testimony adduced in the
trial court that any witness was examined with reference
to the law of Illinois on the subject of the execution of
will. The trial judge no doubt was satisfied that the will
was properly executed by examining section 1874 of the
Revised Statutes of Illinois, as exhibited in volume 3 of
Starr & Curtis's Annotated Illinois Statutes, 2nd ed., p.
426; and he may have assumed that he could take
judicial notice of the laws of Illinois under section 275 of
the Code of Civil Procedure. If so, he was in our opinion
mistaken. That section authorizes the courts here to
take judicial notice, among other things, of the acts of
the legislative department of the United States. These
words clearly have reference to Acts of the Congress of
the United States; and we would hesitate to hold that
our courts can, under this provision, take judicial notice
of the multifarious laws of the various American States.
Nor do we think that any such authority can be derived
from the broader language, used in the same section,
where it is said that our courts may take judicial notice
of matters of public knowledge "similar" to those therein
enumerated. The proper rule we think is to require proof
of the statutes of the States of the American Union
whenever their provisions are determinative of the
issues in any action litigated in the Philippine courts.
Nevertheless, even supposing that the trial court may
have erred in taking judicial notice of the law of Illinois
on the point in question, such error is not now available
to the petitioner, first, because the petition does not
state any fact from which it would appear that the law
of Illinois is different from what the court found, and,
secondly, because the assignment of error and
argument for the appellant in this court raises no
question based on such supposed error. Though the trial
court may have acted upon pure conjecture as to the
law prevailing in the State of Illinois, its judgment could
not be set aside, even upon application made within six
months under section 113 of the Code of Civil
Procedure, unless it should be made to appear
affirmatively that the conjecture was wrong. The
petitioner, it is true, states in general terms that the will
in question is invalid and inadequate to pass real and
personal property in the State of Illinois, but this is
merely a conclusion of law. The affidavits by which the
petition is accompanied contain no reference to the
subject, and we are cited to no authority in the
appellant's brief which might tend to raise a doubt as to
the correctness of the conclusion of the trial court. It is
very clear, therefore, that this point cannot be urged as
of serious moment.
It is implicit in the above ruling that when, with respect
to certain aspects of the foreign laws concerned, the
parties in a given case do not have any controversy or
are more or less in agreement, the Court may take it for
granted for the purposes of the particular case before it
that the said laws are as such virtual agreement
indicates, without the need of requiring the presentation
of what otherwise would be the competent evidence on
the point. Thus, in the instant cases wherein it results
from the respective contentions of both parties that
even if the pertinent laws of Texas were known and to
be applied, the amount of the inheritance pertaining to
the heirs of Mrs. Hodges is as We have fixed above, the
absence of evidence to the effect that, actually and in
fact, under said laws, it could be otherwise is of no
longer of any consequence, unless the purpose is to
show that it could be more. In other words, since PCIB,
the petitioner-appellant, concedes that upon application
of Article 16 of the Civil Code and the pertinent laws of
Texas, the amount of the estate in controversy is just
as We have determined it to be, and respondent-
appellee is only claiming, on her part, that it could be
more, PCIB may not now or later pretend differently.
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
288
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], See. 49, Rule 39, Rules of Court; In re Estate
of Johnson, 39 Phil. 156).
Article 16 of the Civil Code provides:
"Real property as well as personal property is subject to
the law of the country where it is situated.
However, intestate and testamentary successions, both
with respect to the order of succession and to the
amount of successional rights and to the intrinsic
validity of testamentary provisions, shall be regulated
by the national law of the person whose succession is
under consideration, whatever may be the nature of the
property and regardless of the country wherein said
property may be found."
Thus the aforecited provision of the Civil Code points
towards the national law of the deceased, Linnie Jane
Hodges, which is the law of Texas, as governing
succession "both with respect to the order of succession
and to the amount of successional rights and to the
intrinsic validity of testamentary provisions ...". But the
law of Texas, in its conflicts of law rules, provides that
the domiciliary law governs the testamentary
dispositions and successional rights over movables or
personal property, while the law of the situs governs
with respect to immovable property. Such that with
respect to both movable property, as well as immovable
property situated in the Philippines, the law of Texas
points to the law of the Philippines.
Applying, therefore, the so-called "renvoi doctrine", as
enunciated and applied by this Honorable Court in the
case of "In re Christensen" (G.R. No. L-16749, Jan. 31,
1963), there can be no question that Philippine law
governs the testamentary provisions in the Last Will and
Testament of the deceased Linnie Jane Hodges, as well
as the successional rights to her estate, both with
respect to movables, as well as immovables situated in
the Philippines.
The subject of successional rights.
Under Philippine law, as it is under the law of Texas, the
conjugal or community property of the spouses, Charles
Newton Hodges and Linnie Jane Hodges, upon the death
of the latter, is to be divided into two, one-half
pertaining to each of the spouses, as his or her own
property. Thus, upon the death of Linnie Jane Hodges,
one-half of the conjugal partnership property
immediately pertained to Charles Newton Hodges as his
own share, and not by virtue of any successional rights.
There can be no question about this.
Again, Philippine law, or more specifically, Article 900 of
the Civil Code provides:
If the only survivor is the widow or widower, she or he
shall be entitled to one-half of the hereditary estate of
the deceased spouse, and the testator may freely
dispose of the other half.
If the marriage between the surviving spouse and the
testator was solemnized in articulo mortis, and the
testator died within three months from the time of the
marriage, the legitime of the surviving spouse as the
sole heir shall be one-third of the hereditary estate,
except when they have been living as husband and wife
for more than five years. In the latter case, the legitime
of the surviving spouse shall be that specified in the
preceding paragraph.
This legitime of the surviving spouse cannot be
burdened by a fideicommisary substitution (Art. 864,
Civil code), nor by any charge, condition, or substitution
(Art, 872, Civil code). It is clear, therefore, that in
addition to one-half of the conjugal partnership property
as his own conjugal share, Charles Newton Hodges was
also immediately entitled to one-half of the half conjugal
share of the deceased, Linnie Jane Hodges, or one-
fourth of the entire conjugal property, as his legitime.
One-fourth of the conjugal property therefore remains
at issue.
In the summary of its arguments in its memorandum
dated April 30, 1968, the following appears:
Briefly, the position advanced by the petitioner is:
a. That the Hodges spouses were domiciled legally in the
Philippines (pp. 19-20, petition). This is now a matter of
res adjudicata (p. 20, petition).
b. That under Philippine law, Texas law, and the renvoi
doctrine, Philippine law governs the successional rights
over the properties left by the deceased, Linnie Jane
Hodges (pp. 20-21, petition).
289
c. That under Philippine as well as Texas law, one-half
of the Hodges properties pertains to the deceased,
Charles Newton Hodges (p. 21, petition). This is not
questioned by the respondents.
d. That under Philippine law, the deceased, Charles
Newton Hodges, automatically inherited one-half of the
remaining one-half of the Hodges properties as his
legitime (p. 21, petition).
e. That the remaining 25% of the Hodges properties was
inherited by the deceased, Charles Newton Hodges,
under the will of his deceased spouse (pp. 22-23,
petition). Upon the death of Charles Newton Hodges, the
substitution 'provision of the will of the deceased, Linnie
Jane Hodges, did not operate because the same is void
(pp. 23-25, petition).
f. That the deceased, Charles Newton Hodges, asserted
his sole ownership of the Hodges properties and the
probate court sanctioned such assertion (pp. 25-29,
petition). He in fact assumed such ownership and such
was the status of the properties as of the time of his
death (pp. 29-34, petition).
Of similar tenor are the allegations of PCIB in some of
its pleadings quoted in the earlier part of this option.
On her part, it is respondent-appellee Magno's posture
that under the laws of Texas, there is no system of
legitime, hence the estate of Mrs. Hodges should be
one-half of all the conjugal properties.
It is thus unquestionable that as far as PCIB is
concerned, the application to these cases of Article 16
of the Civil Code in relation to the corresponding laws of
Texas would result in that the Philippine laws on
succession should control. On that basis, as We have
already explained above, the estate of Mrs. Hodges is
the remainder of one-fourth of the conjugal partnership
properties, considering that We have found that there is
no legal impediment to the kind of disposition ordered
by Mrs. Hodges in her will in favor of her brothers and
sisters and, further, that the contention of PCIB that the
same constitutes an inoperative testamentary
substitution is untenable. As will be recalled, PCIB's
position that there is no such estate of Mrs. Hodges is
predicated exclusively on two propositions, namely: (1)
that the provision in question in Mrs. Hodges' testament
violates the rules on substitution of heirs under the Civil
Code and (2) that, in any event, by the orders of the
trial court of May 27, and December 14, 1957, the trial
court had already finally and irrevocably adjudicated to
her husband the whole free portion of her estate to the
exclusion of her brothers and sisters, both of which
poses, We have overruled. Nowhere in its pleadings,
briefs and memoranda does PCIB maintain that the
application of the laws of Texas would result in the other
heirs of Mrs. Hodges not inheriting anything under her
will. And since PCIB's representations in regard to the
laws of Texas virtually constitute admissions of fact
which the other parties and the Court are being made to
rely and act upon, PCIB is "not permitted to contradict
them or subsequently take a position contradictory to or
inconsistent with them." (5 Moran, id, p. 65, citing
Cunanan vs. Amparo, 80 Phil. 227; Sta. Ana vs. Maliwat,
L-23023, Aug. 31, 1968, 24 SCRA 1018).
Accordingly, the only question that remains to be settled
in the further proceedings hereby ordered to be held in
the court below is how much more than as fixed above
is the estate of Mrs. Hodges, and this would depend on
(1) whether or not the applicable laws of Texas do
provide in effect for more, such as, when there is no
legitime provided therein, and (2) whether or not
Hodges has validly waived his whole inheritance from
Mrs. Hodges.
In the course of the deliberations, it was brought out by
some members of the Court that to avoid or, at least,
minimize further protracted legal controversies between
the respective heirs of the Hodges spouses, it is
imperative to elucidate on the possible consequences of
dispositions made by Hodges after the death of his wife
from the mass of the unpartitioned estates without any
express indication in the pertinent documents as to
whether his intention is to dispose of part of his
inheritance from his wife or part of his own share of the
conjugal estate as well as of those made by PCIB after
the death of Hodges. After a long discussion, the
consensus arrived at was as follows: (1) any such
dispositions made gratuitously in favor of third parties,
whether these be individuals, corporations or
foundations, shall be considered as intended to be of
properties constituting part of Hodges' inheritance from
his wife, it appearing from the tenor of his motions of
May 27 and December 11, 1957 that in asking for
general authority to make sales or other disposals of
properties under the jurisdiction of the court, which
include his own share of the conjugal estate, he was not
invoking particularly his right over his own share, but
rather his right to dispose of any part of his inheritance
pursuant to the will of his wife; (2) as regards sales,
exchanges or other remunerative transfers, the
proceeds of such sales or the properties taken in by
virtue of such exchanges, shall be considered as merely
the products of "physical changes" of the properties of
her estate which the will expressly authorizes Hodges to
make, provided that whatever of said products should
remain with the estate at the time of the death of
Hodges should go to her brothers and sisters; (3) the
dispositions made by PCIB after the death of Hodges
must naturally be deemed as covering only the
properties belonging to his estate considering that being
only the administrator of the estate of Hodges, PCIB
could not have disposed of properties belonging to the
estate of his wife. Neither could such dispositions be
considered as involving conjugal properties, for the
simple reason that the conjugal partnership
automatically ceased when Mrs. Hodges died, and by
the peculiar provision of her will, under discussion, the
remainder of her share descended also automatically
upon the death of Hodges to her brothers and sisters,
thus outside of the scope of PCIB's administration.
Accordingly, these construction of the will of Mrs.
Hodges should be adhered to by the trial court in its final
order of adjudication and distribution and/or partition of
the two estates in question.
290
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-indivisoof the two estates that should
deprive appellee of freedom to act independently from
PCIB, as administrator of the estate of Hodges, just as,
for the same reason, the latter should not have authority
to act independently from her. And considering that the
lower court failed to adhere consistently to this basic
point of view, by allowing the two administrators to act
independently of each other, in the various instances
already noted in the narration of facts above, the Court
has to look into the attendant circumstances of each of
the appealed orders to be able to determine whether
any of them has to be set aside or they may all be legally
maintained notwithstanding the failure of the court a
quo to observe the pertinent procedural technicalities,
to the end only that graver injury to the substantive
rights of the parties concerned and unnecessary and
undesirable proliferation of incidents in the subject
proceedings may be forestalled. In other words, We
have to determine, whether or not, in the light of the
unusual circumstances extant in the record, there is
need to be more pragmatic and to adopt a rather
unorthodox approach, so as to cause the least
disturbance in rights already being exercised by
numerous innocent third parties, even if to do so may
not appear to be strictly in accordance with the letter of
the applicable purely adjective rules.
Incidentally, it may be mentioned, at this point, that it
was principally on account of the confusion that might
result later from PCIB's continuing to administer all the
community properties, notwithstanding the certainty of
the existence of the separate estate of Mrs. Hodges, and
to enable both estates to function in the meantime with
a relative degree of regularity, that the Court ordered in
the resolution of September 8, 1972 the modification of
the injunction issued pursuant to the resolutions of
August 8, October 4 and December 6, 1967, by virtue
of which respondent Magno was completely barred from
any participation in the administration of the properties
herein involved. In the September 8 resolution, We
ordered that, pending this decision, Special Proceedings
1307 and 1672 should proceed jointly and that the
respective administrators therein "act conjointly — none
of them to act singly and independently of each other
for any purpose." Upon mature deliberation, We felt that
to allow PCIB to continue managing or administering all
the said properties to the exclusion of the administratrix
of Mrs. Hodges' estate might place the heirs of Hodges
at an unduly advantageous position which could result
in considerable, if not irreparable, damage or injury to
the other parties concerned. It is indeed to be regretted
that apparently, up to this date, more than a year after
said resolution, the same has not been given due
regard, as may be gleaned from the fact that recently,
respondent Magno has filed in these proceedings a
motion to declare PCIB in contempt for alleged failure to
abide therewith, notwithstanding that its repeated
motions for reconsideration thereof have all been denied
soon after they were filed. 9
Going back to the appeals, it is perhaps best to begin
first with what appears to Our mind to be the simplest,
and then proceed to the more complicated ones in that
order, without regard to the numerical sequence of the
assignments of error in appellant's brief or to the order
of the discussion thereof by counsel.
Assignments of error numbers
LXXII, LXXVII and LXXVIII.
These assignments of error relate to (1) the order of the
trial court of August 6, 1965 providing that "the deeds
of sale (therein referred to involving properties in the
name of Hodges) should be signed jointly by the PCIB,
as Administrator of Testate Estate of C.N. Hodges, and
Avelina A. Magno, as Administratrix of the Testate
Estate of Linnie Jane Hodges, and to this effect, the PCIB
should take the necessary steps so that Administratrix
Avelina A. Magno could sign the deeds of sale," (p. 248,
Green Rec. on Appeal) (2) the order of October 27, 1965
denying the motion for reconsideration of the foregoing
order, (pp. 276-277, id.) (3) the other order also dated
October 27, 1965 enjoining inter alia, that "(a) all cash
collections should be deposited in the joint account of
the estate of Linnie Jane Hodges and estate of C. N.
Hodges, (b) that whatever cash collections (that) had
291
been deposited in the account of either of the estates
should be withdrawn and since then (sic) deposited in
the joint account of the estate of Linnie Jane Hodges and
the estate of C. N. Hodges; ... (d) (that) Administratrix
Magno — allow the PCIB to inspect whatever records,
documents and papers she may have in her possession,
in the same manner that Administrator PCIB is also
directed to allow Administratrix Magno to inspect
whatever records, documents and papers it may have in
its possession" and "(e) that the accountant of the
estate of Linnie Jane Hodges shall have access to all
records of the transactions of both estates for the
protection of the estate of Linnie Jane Hodges; and in
like manner, the accountant or any authorized
representative of the estate of C. N. Hodges shall have
access to the records of transactions of the Linnie Jane
Hodges estate for the protection of the estate of C. N.
Hodges", (pp. 292-295, id.) and (4) the order of
February 15, 1966, denying, among others, the motion
for reconsideration of the order of October 27, 1965 last
referred to. (pp. 455-456, id.)
As may be readily seen, the thrust of all these four
impugned orders is in line with the Court's above-
mentioned resolution of September 8, 1972 modifying
the injunction previously issued on August 8, 1967, and,
more importantly, with what We have said the trial court
should have always done pending the liquidation of the
conjugal partnership of the Hodges spouses. In fact, as
already stated, that is the arrangement We are
ordering, by this decision, to be followed. Stated
differently, since the questioned orders provide for joint
action by the two administrators, and that is precisely
what We are holding out to have been done and should
be done until the two estates are separated from each
other, the said orders must be affirmed. Accordingly the
foregoing assignments of error must be, as they are
hereby overruled.
Assignments of error Numbers LXVIII
to LXXI and LXXIII to LXXVI.
The orders complained of under these assignments of
error commonly deal with expenditures made by
appellee Magno, as Administratrix of the Estate of Mrs.
Hodges, in connection with her administration thereof,
albeit additionally, assignments of error Numbers LXIX
to LXXI put into question the payment of attorneys fees
provided for in the contract for the purpose, as
constituting, in effect, premature advances to the heirs
of Mrs. Hodges.
More specifically, assignment Number LXXIII refers to
reimbursement of overtime pay paid to six employees
of the court and three other persons for services in
copying the court records to enable the lawyers of the
administration to be fully informed of all the incidents in
the proceedings. The reimbursement was approved as
proper legal expenses of administration per the order of
December 19, 1964, (pp. 221-222, id.) and repeated
motions for reconsideration thereof were denied by the
orders of January 9, 1965, (pp. 231-232, id.) October
27, 1965, (p. 277, id.) and February 15, 1966. (pp. 455-
456, id.) On the other hand, Assignments Numbers
LXVIII to LXXI, LXXIV and LXXV question the trial court's
order of November 3, 1965 approving the agreement of
June 6, 1964 between Administratrix Magno and James
L. Sullivan, attorney-in-fact of the heirs of Mrs. Hodges,
as Parties of the First Part, and Attorneys Raul
Manglapus and Rizal R. Quimpo, as Parties of the
Second Part, regarding attorneys fees for said counsel
who had agreed "to prosecute and defend their interests
(of the Parties of the First Part) in certain cases now
pending litigation in the Court of First Instance of Iloilo
—, more specifically in Special Proceedings 1307 and
1672 —" (pp. 126-129, id.) and directing Administratrix
Magno "to issue and sign whatever check or checks
maybe needed to implement the approval of the
agreement annexed to the motion" as well as the
"administrator of the estate of C. N. Hodges — to
countersign the said check or checks as the case
maybe." (pp. 313-320, id.), reconsideration of which
order of approval was denied in the order of February
16, 1966, (p. 456, id.) Assignment Number LXXVI
imputes error to the lower court's order of October 27,
1965, already referred to above, insofar as it orders that
"PCIB should counter sign the check in the amount of
P250 in favor of Administratrix Avelina A. Magno as her
compensation as administratrix of Linnie Jane Hodges
estate chargeable to the Testate Estate of Linnie Jane
Hodges only." (p. 294, id.)
Main contention again of appellant PCIB in regard to
these eight assigned errors is that there is no such
estate as the estate of Mrs. Hodges for which the
questioned expenditures were made, hence what were
authorized were in effect expenditures from the estate
of Hodges. As We have already demonstrated in Our
resolution above of the petition for certiorari and
prohibition, this posture is incorrect. Indeed, in
whichever way the remaining issues between the parties
in these cases are ultimately resolved, 10 the final result
will surely be that there are properties constituting the
estate of Mrs. Hodges of which Magno is the current
administratrix. It follows, therefore, that said appellee
had the right, as such administratrix, to hire the persons
whom she paid overtime pay and to be paid for her own
services as administratrix. That she has not yet collected
and is not collecting amounts as substantial as that paid
to or due appellant PCIB is to her credit.
Of course, she is also entitled to the services of counsel
and to that end had the authority to enter into contracts
for attorney's fees in the manner she had done in the
agreement of June 6, 1964. And as regards to the
reasonableness of the amount therein stipulated, We
see no reason to disturb the discretion exercised by the
probate court in determining the same. We have gone
over the agreement, and considering the obvious size of
the estate in question and the nature of the issues
between the parties as well as the professional standing
of counsel, We cannot say that the fees agreed upon
require the exercise by the Court of its inherent power
to reduce it.
PCIB insists, however, that said agreement of June 6,
1964 is not for legal services to the estate but to the
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heirs of Mrs. Hodges, or, at most, to both of them, and
such being the case, any payment under it, insofar as
counsels' services would redound to the benefit of the
heirs, would be in the nature of advances to such heirs
and a premature distribution of the estate. Again, We
hold that such posture cannot prevail.
Upon the premise We have found plausible that there is
an existing estate of Mrs. Hodges, it results that
juridically and factually the interests involved in her
estate are distinct and different from those involved in
her estate of Hodges and vice versa. Insofar as the
matters related exclusively to the estate of Mrs. Hodges,
PCIB, as administrator of the estate of Hodges, is a
complete stranger and it is without personality to
question the actuations of the administratrix thereof
regarding matters not affecting the estate of Hodges.
Actually, considering the obviously considerable size of
the estate of Mrs. Hodges, We see no possible cause for
apprehension that when the two estates are segregated
from each other, the amount of attorney's fees
stipulated in the agreement in question will prejudice
any portion that would correspond to Hodges' estate.
And as regards the other heirs of Mrs. Hodges who ought
to be the ones who should have a say on the attorney's
fees and other expenses of administration assailed by
PCIB, suffice it to say that they appear to have been
duly represented in the agreement itself by their
attorney-in-fact, James L. Sullivan and have not
otherwise interposed any objection to any of the
expenses incurred by Magno questioned by PCIB in
these appeals. As a matter of fact, as ordered by the
trial court, all the expenses in question, including the
attorney's fees, may be paid without awaiting the
determination and segregation of the estate of Mrs.
Hodges.
Withal, the weightiest consideration in connection with
the point under discussion is that at this stage of the
controversy among the parties herein, the vital issue
refers to the existence or non-existence of the estate of
Mrs. Hodges. In this respect, the interest of respondent
Magno, as the appointed administratrix of the said
estate, is to maintain that it exists, which is naturally
common and identical with and inseparable from the
interest of the brothers and sisters of Mrs. Hodges.
Thus, it should not be wondered why both Magno and
these heirs have seemingly agreed to retain but one
counsel. In fact, such an arrangement should be more
convenient and economical to both. The possibility of
conflict of interest between Magno and the heirs of Mrs.
Hodges would be, at this stage, quite remote and, in any
event, rather insubstantial. Besides, should any
substantial conflict of interest between them arise in the
future, the same would be a matter that the probate
court can very well take care of in the course of the
independent proceedings in Case No. 1307 after the
corresponding segregation of the two subject estates.
We cannot perceive any cogent reason why, at this
stage, the estate and the heirs of Mrs. Hodges cannot
be represented by a common counsel.
Now, as to whether or not the portion of the fees in
question that should correspond to the heirs constitutes
premature partial distribution of the estate of Mrs.
Hodges is also a matter in which neither PCIB nor the
heirs of Hodges have any interest. In any event, since,
as far as the records show, the estate has no creditors
and the corresponding estate and inheritance taxes,
except those of the brothers and sisters of Mrs. Hodges,
have already been paid, 11 no prejudice can caused to
anyone by the comparatively small amount of attorney's
fees in question. And in this connection, it may be added
that, although strictly speaking, the attorney's fees of
the counsel of an administrator is in the first instance
his personal responsibility, reimbursable later on by the
estate, in the final analysis, when, as in the situation on
hand, the attorney-in-fact of the heirs has given his
conformity thereto, it would be idle effort to inquire
whether or not the sanction given to said fees by the
probate court is proper.
For the foregoing reasons, Assignments of Error LXVIII
to LXXI and LXXIII to LXXVI should be as they are
hereby overruled.
Assignments of error I to IV,
XIII to XV, XXII to XXV, XXXV
to XXX VI, XLI to XLIII and L.
These assignments of error deal with the approval by
the trial court of various deeds of sale of real properties
registered in the name of Hodges but executed by
appellee Magno, as Administratrix of the Estate of Mrs.
Hodges, purportedly in implementation of
corresponding supposed written "Contracts to Sell"
previously executed by Hodges during the interim
between May 23, 1957, when his wife died, and
December 25, 1962, the day he died. As stated on pp.
118-120 of appellant's main brief, "These are: the,
contract to sell between the deceased, Charles Newton
Hodges, and the appellee, Pepito G. Iyulores executed
on February 5, 1961; the contract to sell between the
deceased, Charles Newton Hodges, and the appellant
Esperidion Partisala, executed on April 20, 1960; the
contract to sell between the deceased, Charles Newton
Hodges, and the appellee, Winifredo C. Espada,
executed on April 18, 1960; the contract to sell between
the deceased, Charles Newton Hodges, and the
appellee, Rosario Alingasa, executed on August 25,
1958; the contract to sell between the deceased,
Charles Newton Hodges, and the appellee, Lorenzo
Carles, executed on June 17, 1958; the contract to sell
between the deceased, Charles Newton Hodges, and the
appellee, Salvador S. Guzman, executed on September
13, 1960; the contract to sell between the deceased,
Charles Newton Hodges, and the appellee, Florenia
Barrido, executed on February 21, 1958; the contract to
sell between the deceased, Charles Newton Hodges, and
the appellee, Purificacion Coronado, executed on August
14, 1961; the contract to sell between the deceased,
Charles Newton Hodges, and the appellee, Graciano
Lucero, executed on November 27, 1961; the contract
to sell between the deceased, Charles Newton Hodges,
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and the appellee, Ariteo Thomas Jamir, executed on May
26, 1961; the contract to sell between the deceased,
Charles Newton Hodges, and the appellee, Melquiades
Batisanan, executed on June 9, 1959; the contract to
sell between the deceased, Charles Newton Hodges, and
the appellee, Belcezar Causing, executed on February
10, 1959 and the contract to sell between the deceased,
Charles Newton Hodges, and the appellee, Adelfa
Premaylon, executed on October 31, 1959, re Title No.
13815."
Relative to these sales, it is the position of appellant
PCIB that, inasmuch as pursuant to the will of Mrs.
Hodges, her husband was to have dominion over all her
estate during his lifetime, it was as absolute owner of
the properties respectively covered by said sales that he
executed the aforementioned contracts to sell, and
consequently, upon his death, the implementation of
said contracts may be undertaken only by the
administrator of his estate and not by the administratrix
of the estate of Mrs. Hodges. Basically, the same theory
is invoked with particular reference to five other sales,
in which the respective "contracts to sell" in favor of
these appellees were executed by Hodges before the
death of his wife, namely, those in favor of appellee
Santiago Pacaonsis, Alfredo Catedral, Jose Pablico,
Western Institute of Technology and Adelfa Premaylon.
Anent those deeds of sale based on promises or
contracts to sell executed by Hodges after the death of
his wife, those enumerated in the quotation in the
immediately preceding paragraph, it is quite obvious
that PCIB's contention cannot be sustained. As already
explained earlier, 1 1* all proceeds of remunerative
transfers or dispositions made by Hodges after the
death of his wife should be deemed as continuing to be
parts of her estate and, therefore, subject to the terms
of her will in favor of her brothers and sisters, in the
sense that should there be no showing that such
proceeds, whether in cash or property have been
subsequently conveyed or assigned subsequently by
Hodges to any third party by acts inter vivos with the
result that they could not thereby belong to him
anymore at the time of his death, they automatically
became part of the inheritance of said brothers and
sisters. The deeds here in question involve transactions
which are exactly of this nature. Consequently, the
payments made by the appellees should be considered
as payments to the estate of Mrs. Hodges which is to be
distributed and partitioned among her heirs specified in
the will.
The five deeds of sale predicated on contracts to sell
executed Hodges during the lifetime of his wife, present
a different situation. At first blush, it would appear that
as to them, PCIB's position has some degree of
plausibility. Considering, however, that the adoption of
PCIB's theory would necessarily have tremendous
repercussions and would bring about considerable
disturbance of property rights that have somehow
accrued already in favor of innocent third parties, the
five purchasers aforenamed, the Court is inclined to take
a pragmatic and practical view of the legal situation
involving them by overlooking the possible technicalities
in the way, the non-observance of which would not,
after all, detract materially from what should
substantially correspond to each and all of the parties
concerned.
To start with, these contracts can hardly be ignored.
Bona fide third parties are involved; as much as
possible, they should not be made to suffer any
prejudice on account of judicial controversies not of their
own making. What is more, the transactions they rely
on were submitted by them to the probate court for
approval, and from already known and recorded
actuations of said court then, they had reason to believe
that it had authority to act on their motions, since
appellee Magno had, from time to time prior to their
transactions with her, been allowed to act in her
capacity as administratrix of one of the subject estates
either alone or conjointly with PCIB. All the sales in
question were executed by Magno in 1966 already, but
before that, the court had previously authorized or
otherwise sanctioned expressly many of her act as
administratrix involving expenditures from the estate
made by her either conjointly with or independently
from PCIB, as Administrator of the Estate of Hodges.
Thus, it may be said that said buyers-appellees merely
followed precedents in previous orders of the court.
Accordingly, unless the impugned orders approving
those sales indubitably suffer from some clearly fatal
infirmity the Court would rather affirm them.
It is quite apparent from the record that the properties
covered by said sales are equivalent only to a fraction
of what should constitute the estate of Mrs. Hodges,
even if it is assumed that the same would finally be held
to be only one-fourth of the conjugal properties of the
spouses as of the time of her death or, to be more exact,
one-half of her estate as per the inventory submitted by
Hodges as executor, on May 12, 1958. In none of its
numerous, varied and voluminous pleadings, motions
and manifestations has PCIB claimed any possibility
otherwise. Such being the case, to avoid any conflict
with the heirs of Hodges, the said properties covered by
the questioned deeds of sale executed by appellee
Magno may be treated as among those corresponding
to the estate of Mrs. Hodges, which would have been
actually under her control and administration had
Hodges complied with his duty to liquidate the conjugal
partnership. Viewing the situation in that manner, the
only ones who could stand to be prejudiced by the
appealed orders referred to in the assignment of errors
under discussion and who could, therefore, have the
requisite interest to question them would be only the
heirs of Mrs. Hodges, definitely not PCIB.
It is of no moment in what capacity Hodges made the
"contracts to sell' after the death of his wife. Even if he
had acted as executor of the will of his wife, he did not
have to submit those contracts to the court nor follow
the provisions of the rules, (Sections 2, 4, 5, 6, 8 and 9
of Rule 89 quoted by appellant on pp. 125 to 127 of its
brief) for the simple reason that by the very orders,
much relied upon by appellant for other purposes, of
May 27, 1957 and December 14, 1957, Hodges was
"allowed or authorized" by the trial court "to continue
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the business in which he was engaged and to perform
acts which he had been doing while the deceased was
living", (Order of May 27) which according to the motion
on which the court acted was "of buying and selling
personal and real properties", and "to execute
subsequent sales, conveyances, leases and mortgages
of the properties left by the said deceased Linnie Jane
Hodges in consonance with the wishes conveyed in the
last will and testament of the latter." (Order of
December 14) In other words, if Hodges acted then as
executor, it can be said that he had authority to do so
by virtue of these blanket orders, and PCIB does not
question the legality of such grant of authority; on the
contrary, it is relying on the terms of the order itself for
its main contention in these cases. On the other hand,
if, as PCIB contends, he acted as heir-adjudicatee, the
authority given to him by the aforementioned orders
would still suffice.
As can be seen, therefore, it is of no moment whether
the "contracts to sell" upon which the deeds in question
were based were executed by Hodges before or after the
death of his wife. In a word, We hold, for the reasons
already stated, that the properties covered by the deeds
being assailed pertain or should be deemed as
pertaining to the estate of Mrs. Hodges; hence, any
supposed irregularity attending the actuations of the
trial court may be invoked only by her heirs, not by
PCIB, and since the said heirs are not objecting, and the
defects pointed out not being strictly jurisdictional in
nature, all things considered, particularly the
unnecessary disturbance of rights already created in
favor of innocent third parties, it is best that the
impugned orders are not disturbed.
In view of these considerations, We do not find sufficient
merit in the assignments of error under discussion.
Assignments of error V to VIII,
XVI to XVIII, XXVI to XXIX, XXXVII
to XXXVIII, XLIV to XLVI and LI.
All these assignments of error commonly deal with
alleged non-fulfillment by the respective vendees,
appellees herein, of the terms and conditions embodied
in the deeds of sale referred to in the assignments of
error just discussed. It is claimed that some of them
never made full payments in accordance with the
respective contracts to sell, while in the cases of the
others, like Lorenzo Carles, Jose Pablico, Alfredo
Catedral and Salvador S. Guzman, the contracts with
them had already been unilaterally cancelled by PCIB
pursuant to automatic rescission clauses contained in
them, in view of the failure of said buyers to pay
arrearages long overdue. But PCIB's posture is again
premised on its assumption that the properties covered
by the deeds in question could not pertain to the estate
of Mrs. Hodges. We have already held above that, it
being evident that a considerable portion of the conjugal
properties, much more than the properties covered by
said deeds, would inevitably constitute the estate of
Mrs. Hodges, to avoid unnecessary legal complications,
it can be assumed that said properties form part of such
estate. From this point of view, it is apparent again that
the questions, whether or not it was proper for appellee
Magno to have disregarded the cancellations made by
PCIB, thereby reviving the rights of the respective
buyers-appellees, and, whether or not the rules
governing new dispositions of properties of the estate
were strictly followed, may not be raised by PCIB but
only by the heirs of Mrs. Hodges as the persons
designated to inherit the same, or perhaps the
government because of the still unpaid inheritance
taxes. But, again, since there is no pretense that any
objections were raised by said parties or that they would
necessarily be prejudiced, the contentions of PCIB under
the instant assignments of error hardly merit any
consideration.
Assignments of error IX to XII, XIX
to XXI, XXX to XXIV, XXXIX to XL,
XLVII to XLIX, LII and LIII to LXI.
PCIB raises under these assignments of error two issues
which according to it are fundamental, namely: (1) that
in approving the deeds executed by Magno pursuant to
contracts to sell already cancelled by it in the
performance of its functions as administrator of the
estate of Hodges, the trial court deprived the said estate
of the right to invoke such cancellations it (PCIB) had
made and (2) that in so acting, the court "arrogated
unto itself, while acting as a probate court, the power to
determine the contending claims of third parties against
the estate of Hodges over real property," since it has in
effect determined whether or not all the terms and
conditions of the respective contracts to sell executed
by Hodges in favor of the buyers-appellees concerned
were complied with by the latter. What is worse, in the
view of PCIB, is that the court has taken the word of the
appellee Magno, "a total stranger to his estate as
determinative of the issue".
Actually, contrary to the stand of PCIB, it is this last
point regarding appellee Magno's having agreed to
ignore the cancellations made by PCIB and allowed the
buyers-appellees to consummate the sales in their favor
that is decisive. Since We have already held that the
properties covered by the contracts in question should
be deemed to be portions of the estate of Mrs. Hodges
and not that of Hodges, it is PCIB that is a complete
stranger in these incidents. Considering, therefore, that
the estate of Mrs. Hodges and her heirs who are the real
parties in interest having the right to oppose the
consummation of the impugned sales are not objecting,
and that they are the ones who are precisely urging that
said sales be sanctioned, the assignments of error under
discussion have no basis and must accordingly be as
they are hereby overruled.
With particular reference to assignments LIII to LXI,
assailing the orders of the trial court requiring PCIB to
surrender the respective owner's duplicate certificates
of title over the properties covered by the sales in
question and otherwise directing the Register of Deeds
295
of Iloilo to cancel said certificates and to issue new
transfer certificates of title in favor of the buyers-
appellees, suffice it to say that in the light of the above
discussion, the trial court was within its rights to so
require and direct, PCIB having refused to give way, by
withholding said owners' duplicate certificates, of the
corresponding registration of the transfers duly and
legally approved by the court.
Assignments of error LXII to LXVII
All these assignments of error commonly deal with the
appeal against orders favoring appellee Western
Institute of Technology. As will be recalled, said institute
is one of the buyers of real property covered by a
contract to sell executed by Hodges prior to the death
of his wife. As of October, 1965, it was in arrears in the
total amount of P92,691.00 in the payment of its
installments on account of its purchase, hence it
received under date of October 4, 1965 and October 20,
1965, letters of collection, separately and respectively,
from PCIB and appellee Magno, in their respective
capacities as administrators of the distinct estates of the
Hodges spouses, albeit, while in the case of PCIB it
made known that "no other arrangement can be
accepted except by paying all your past due account",
on the other hand, Magno merely said she would
"appreciate very much if you can make some remittance
to bring this account up-to-date and to reduce the
amount of the obligation." (See pp. 295-311, Green R.
on A.) On November 3, 1965, the Institute filed a motion
which, after alleging that it was ready and willing to pay
P20,000 on account of its overdue installments but
uncertain whether it should pay PCIB or Magno, it
prayed that it be "allowed to deposit the aforesaid
amount with the court pending resolution of the
conflicting claims of the administrators." Acting on this
motion, on November 23, 1965, the trial court issued an
order, already quoted in the narration of facts in this
opinion, holding that payment to both or either of the
two administrators is "proper and legal", and so
"movant — can pay to both estates or either of them",
considering that "in both cases (Special Proceedings
1307 and 1672) there is as yet no judicial declaration of
heirs nor distribution of properties to whomsoever are
entitled thereto."
The arguments under the instant assignments of error
revolve around said order. From the procedural
standpoint, it is claimed that PCIB was not served with
a copy of the Institute's motion, that said motion was
heard, considered and resolved on November 23, 1965,
whereas the date set for its hearing was November 20,
1965, and that what the order grants is different from
what is prayed for in the motion. As to the substantive
aspect, it is contended that the matter treated in the
motion is beyond the jurisdiction of the probate court
and that the order authorized payment to a person other
than the administrator of the estate of Hodges with
whom the Institute had contracted.
The procedural points urged by appellant deserve scant
consideration. We must assume, absent any clear proof
to the contrary, that the lower court had acted regularly
by seeing to it that appellant was duly notified. On the
other hand, there is nothing irregular in the court's
having resolved the motion three days after the date set
for hearing the same. Moreover, the record reveals that
appellants' motion for reconsideration wherein it raised
the same points was denied by the trial court on March
7, 1966 (p. 462, Green R. on A.) Withal, We are not
convinced that the relief granted is not within the
general intent of the Institute's motion.
Insofar as the substantive issues are concerned, all that
need be said at this point is that they are mere
reiterations of contentions We have already resolved
above adversely to appellants' position. Incidentally, We
may add, perhaps, to erase all doubts as to the propriety
of not disturbing the lower court's orders sanctioning the
sales questioned in all these appeal s by PCIB, that it is
only when one of the parties to a contract to convey
property executed by a deceased person raises
substantial objections to its being implemented by the
executor or administrator of the decedent's estate that
Section 8 of Rule 89 may not apply and, consequently,
the matter has, to be taken up in a separate action
outside of the probate court; but where, as in the cases
of the sales herein involved, the interested parties are
in agreement that the conveyance be made, it is
properly within the jurisdiction of the probate court to
give its sanction thereto pursuant to the provisions of
the rule just mentioned. And with respect to the
supposed automatic rescission clauses contained in the
contracts to sell executed by Hodges in favor of herein
appellees, the effect of said clauses depend on the true
nature of the said contracts, despite the nomenclature
appearing therein, which is not controlling, for if they
amount to actual contracts of sale instead of being mere
unilateral accepted "promises to sell", (Art. 1479, Civil
Code of the Philippines, 2nd paragraph) thepactum
commissorium or the automatic rescission provision
would not operate, as a matter of public policy, unless
there has been a previous notarial or judicial demand by
the seller (10 Manresa 263, 2nd ed.) neither of which
have been shown to have been made in connection with
the transactions herein involved.
Consequently, We find no merit in the assignments of
error
Number LXII to LXVII.
SUMMARY
Considering the fact that this decision is unusually
extensive and that the issues herein taken up and
resolved are rather numerous and varied, what with
appellant making seventy-eight assignments of error
affecting no less than thirty separate orders of the court
a quo, if only to facilitate proper understanding of the
import and extent of our rulings herein contained, it is
perhaps desirable that a brief restatement of the whole
situation be made together with our conclusions in
regard to its various factual and legal aspects. .
The instant cases refer to the estate left by the late
Charles Newton Hodges as well as that of his wife, Linnie
296
Jane Hodges, who predeceased him by about five years
and a half. In their respective wills which were executed
on different occasions, each one of them provided
mutually as follows: "I give, devise and bequeath all of
the rest, residue and remainder (after funeral and
administration expenses, taxes and debts) of my estate,
both real and personal, wherever situated or located, to
my beloved (spouse) to have and to hold unto (him/her)
— during (his/her) natural lifetime", subject to the
condition that upon the death of whoever of them
survived the other, the remainder of what he or she
would inherit from the other is "give(n), devise(d) and
bequeath(ed)" to the brothers and sisters of the latter.
Mrs. Hodges died first, on May 23, 1957. Four days later,
on May 27, Hodges was appointed special administrator
of her estate, and in a separate order of the same date,
he was "allowed or authorized to continue the business
in which he was engaged, (buying and selling personal
and real properties) and to perform acts which he had
been doing while the deceased was living."
Subsequently, on December 14, 1957, after Mrs.
Hodges' will had been probated and Hodges had been
appointed and had qualified as Executor thereof, upon
his motion in which he asserted that he was "not only
part owner of the properties left as conjugal, but also,
the successor to all the properties left by the deceased
Linnie Jane Hodges", the trial court ordered that "for the
reasons stated in his motion dated December 11, 1957,
which the Court considers well taken, ... all the sales,
conveyances, leases and mortgages of all properties left
by the deceased Linnie Jane Hodges executed by the
Executor, Charles Newton Hodges are hereby
APPROVED. The said Executor is further authorized to
execute subsequent sales, conveyances, leases and
mortgages of the properties left by the said deceased
Linnie Jane Hodges in consonance with the wishes
contained in the last will and testament of the latter."
Annually thereafter, Hodges submitted to the court the
corresponding statements of account of his
administration, with the particularity that in all his
motions, he always made it point to urge the that "no
person interested in the Philippines of the time and place
of examining the herein accounts be given notice as
herein executor is the only devisee or legatee of the
deceased in accordance with the last will and testament
already probated by the Honorable Court." All said
accounts approved as prayed for.
Nothing else appears to have been done either by the
court a quo or Hodges until December 25, 1962.
Importantly to be the provision in the will of Mrs. Hodges
that her share of the conjugal partnership was to be
inherited by her husband "to have and to hold unto him,
my said husband, during his natural lifetime" and that
"at the death of my said husband, I give, devise and
bequeath all the rest, residue and remainder of my
estate, both real and personal, wherever situated or
located, to be equally divided among my brothers and
sisters, share and share alike", which provision naturally
made it imperative that the conjugal partnership be
promptly liquidated, in order that the "rest, residue and
remainder" of his wife's share thereof, as of the time of
Hodges' own death, may be readily known and
identified, no such liquidation was ever undertaken. The
record gives no indication of the reason for such
omission, although relatedly, it appears therein:
1. That in his annual statement submitted to the court
of the net worth of C. N. Hodges and the Estate of Linnie
Jane Hodges, Hodges repeatedly and consistently
reported the combined income of the conjugal
partnership and then merely divided the same equally
between himself and the estate of the deceased wife,
and, more importantly, he also, as consistently, filed
corresponding separate income tax returns for each
calendar year for each resulting half of such combined
income, thus reporting that the estate of Mrs. Hodges
had its own income distinct from his own.
2. That when the court a quo happened to inadvertently
omit in its order probating the will of Mrs. Hodges, the
name of one of her brothers, Roy Higdon then already
deceased, Hodges lost no time in asking for the proper
correction "in order that the heirs of deceased Roy
Higdon may not think or believe they were omitted, and
that they were really interested in the estate of the
deceased Linnie Jane Hodges".
3. That in his aforementioned motion of December 11,
1957, he expressly stated that "deceased Linnie Jane
Hodges died leaving no descendants or ascendants
except brothers and sisters and herein petitioner as the
surviving spouse, to inherit the properties of the
decedent", thereby indicating that he was not excluding
his wife's brothers and sisters from the inheritance.
4. That Hodges allegedly made statements and
manifestations to the United States inheritance tax
authorities indicating that he had renounced his
inheritance from his wife in favor of her other heirs,
which attitude he is supposed to have reiterated or
ratified in an alleged affidavit subscribed and sworn to
here in the Philippines and in which he even purportedly
stated that his reason for so disclaiming and renouncing
his rights under his wife's will was to "absolve (him) or
(his) estate from any liability for the payment of income
taxes on income which has accrued to the estate of
Linnie Jane Hodges", his wife, since her death.
On said date, December 25, 1962, Hodges died. The
very next day, upon motion of herein respondent and
appellee, Avelina A. Magno, she was appointed by the
trial court as Administratrix of the Testate Estate of
Linnie Jane Hodges, in Special Proceedings No. 1307
and as Special Administratrix of the estate of Charles
Newton Hodges, "in the latter case, because the last will
of said Charles Newton Hodges is still kept in his vault
or iron safe and that the real and personal properties of
both spouses may be lost, damaged or go to waste,
unless Special Administratrix is appointed," (Order of
December 26, 1962, p. 27, Yellow R. on A.) although,
soon enough, on December 29, 1962, a certain Harold
K. Davies was appointed as her Co-Special
Administrator, and when Special Proceedings No. 1672,
Testate Estate of Charles Newton Hodges, was opened,
Joe Hodges, as next of kin of the deceased, was in due
297
time appointed as Co-Administrator of said estate
together with Atty. Fernando P. Mirasol, to replace
Magno and Davies, only to be in turn replaced eventually
by petitioner PCIB alone.
At the outset, the two probate proceedings appear to
have been proceeding jointly, with each administrator
acting together with the other, under a sort of modus
operandi. PCIB used to secure at the beginning the
conformity to and signature of Magno in transactions it
wanted to enter into and submitted the same to the
court for approval as their joint acts. So did Magno do
likewise. Somehow, however, differences seem to have
arisen, for which reason, each of them began acting
later on separately and independently of each other,
with apparent sanction of the trial court. Thus, PCIB had
its own lawyers whom it contracted and paid
handsomely, conducted the business of the estate
independently of Magno and otherwise acted as if all the
properties appearing in the name of Charles Newton
Hodges belonged solely and only to his estate, to the
exclusion of the brothers and sisters of Mrs. Hodges,
without considering whether or not in fact any of said
properties corresponded to the portion of the conjugal
partnership pertaining to the estate of Mrs. Hodges. On
the other hand, Magno made her own expenditures,
hired her own lawyers, on the premise that there is such
an estate of Mrs. Hodges, and dealth with some of the
properties, appearing in the name of Hodges, on the
assumption that they actually correspond to the estate
of Mrs. Hodges. All of these independent and separate
actuations of the two administrators were invariably
approved by the trial court upon submission. Eventually,
the differences reached a point wherein Magno, who was
more cognizant than anyone else about the ins and outs
of the businesses and properties of the deceased
spouses because of her long and intimate association
with them, made it difficult for PCIB to perform normally
its functions as administrator separately from her. Thus,
legal complications arose and the present judicial
controversies came about.
Predicating its position on the tenor of the orders of May
27 and December 14, 1957 as well as the approval by
the court a quo of the annual statements of account of
Hodges, PCIB holds to the view that the estate of Mrs.
Hodges has already been in effect closed with the virtual
adjudication in the mentioned orders of her whole estate
to Hodges, and that, therefore, Magno had already
ceased since then to have any estate to administer and
the brothers and sisters of Mrs. Hodges have no
interests whatsoever in the estate left by Hodges. Mainly
upon such theory, PCIB has come to this Court with a
petition for certiorari and prohibition praying that the
lower court's orders allowing respondent Magno to
continue acting as administratrix of the estate of Mrs.
Hodges in Special Proceedings 1307 in the manner she
has been doing, as detailed earlier above, be set aside.
Additionally, PCIB maintains that the provision in Mrs.
Hodges' will instituting her brothers and sisters in the
manner therein specified is in the nature of a
testamentary substitution, but inasmuch as the
purported substitution is not, in its view, in accordance
with the pertinent provisions of the Civil Code, it is
ineffective and may not be enforced. It is further
contended that, in any event, inasmuch as the Hodges
spouses were both residents of the Philippines, following
the decision of this Court in Aznar vs. Garcia, or the case
of Christensen, 7 SCRA 95, the estate left by Mrs.
Hodges could not be more than one-half of her share of
the conjugal partnership, notwithstanding the fact that
she was citizen of Texas, U.S.A., in accordance with
Article 16 in relation to Articles 900 and 872 of the Civil
Code. Initially, We issued a preliminary injunction
against Magno and allowed PCIB to act alone.
At the same time PCIB has appealed several separate
orders of the trial court approving individual acts of
appellee Magno in her capacity as administratrix of the
estate of Mrs. Hodges, such as, hiring of lawyers for
specified fees and incurring expenses of administration
for different purposes and executing deeds of sale in
favor of her co-appellees covering properties which are
still registered in the name of Hodges, purportedly
pursuant to corresponding "contracts to sell" executed
by Hodges. The said orders are being questioned on
jurisdictional and procedural grounds directly or
indirectly predicated on the principal theory of appellant
that all the properties of the two estates belong already
to the estate of Hodges exclusively.
On the other hand, respondent-appellee Magno denies
that the trial court's orders of May 27 and December 14,
1957 were meant to be finally adjudicatory of the
hereditary rights of Hodges and contends that they were
no more than the court's general sanction of past and
future acts of Hodges as executor of the will of his wife
in due course of administration. As to the point
regarding substitution, her position is that what was
given by Mrs. Hodges to her husband under the
provision in question was a lifetime usufruct of her share
of the conjugal partnership, with the naked ownership
passing directly to her brothers and sisters. Anent the
application of Article 16 of the Civil Code, she claims that
the applicable law to the will of Mrs. Hodges is that of
Texas under which, she alleges, there is no system of
legitime, hence, the estate of Mrs. Hodges cannot be
less than her share or one-half of the conjugal
partnership properties. She further maintains that, in
any event, Hodges had as a matter of fact and of law
renounced his inheritance from his wife and, therefore,
her whole estate passed directly to her brothers and
sisters effective at the latest upon the death of Hodges.
In this decision, for the reasons discussed above, and
upon the issues just summarized, We overrule PCIB's
contention that the orders of May 27, 1957 and
December 14, 1957 amount to an adjudication to
Hodges of the estate of his wife, and We recognize the
present existence of the estate of Mrs. Hodges, as
consisting of properties, which, while registered in that
name of Hodges, do actually correspond to the
remainder of the share of Mrs. Hodges in the conjugal
partnership, it appearing that pursuant to the pertinent
provisions of her will, any portion of said share still
existing and undisposed of by her husband at the time
of his death should go to her brothers and sisters share
and share alike. Factually, We find that the proven
circumstances relevant to the said orders do not warrant
298
the conclusion that the court intended to make thereby
such alleged final adjudication. Legally, We hold that the
tenor of said orders furnish no basis for such a
conclusion, and what is more, at the time said orders
were issued, the proceedings had not yet reached the
point when a final distribution and adjudication could be
made. Moreover, the interested parties were not duly
notified that such disposition of the estate would be
done. At best, therefore, said orders merely allowed
Hodges to dispose of portions of his inheritance in
advance of final adjudication, which is implicitly
permitted under Section 2 of Rule 109, there being no
possible prejudice to third parties, inasmuch as Mrs.
Hodges had no creditors and all pertinent taxes have
been paid.
More specifically, We hold that, on the basis of
circumstances presently extant in the record, and on the
assumption that Hodges' purported renunciation should
not be upheld, the estate of Mrs. Hodges inherited by
her brothers and sisters consists of one-fourth of the
community estate of the spouses at the time of her
death, minus whatever Hodges had gratuitously
disposed of therefrom during the period from, May 23,
1957, when she died, to December 25, 1962, when he
died provided, that with regard to remunerative
dispositions made by him during the same period, the
proceeds thereof, whether in cash or property, should
be deemed as continuing to be part of his wife's estate,
unless it can be shown that he had subsequently
disposed of them gratuitously.
At this juncture, it may be reiterated that the question
of what are the pertinent laws of Texas and what would
be the estate of Mrs. Hodges under them is basically one
of fact, and considering the respective positions of the
parties in regard to said factual issue, it can already be
deemed as settled for the purposes of these cases that,
indeed, the free portion of said estate that could possibly
descend to her brothers and sisters by virtue of her will
may not be less than one-fourth of the conjugal estate,
it appearing that the difference in the stands of the
parties has reference solely to the legitime of Hodges,
PCIB being of the view that under the laws of Texas,
there is such a legitime of one-fourth of said conjugal
estate and Magno contending, on the other hand, that
there is none. In other words, hereafter, whatever might
ultimately appear, at the subsequent proceedings, to be
actually the laws of Texas on the matter would no longer
be of any consequence, since PCIB would anyway be in
estoppel already to claim that the estate of Mrs. Hodges
should be less than as contended by it now, for
admissions by a party related to the effects of foreign
laws, which have to be proven in our courts like any
other controverted fact, create estoppel.
In the process, We overrule PCIB's contention that the
provision in Mrs. Hodges' will in favor of her brothers
and sisters constitutes ineffective hereditary
substitutions. But neither are We sustaining, on the
other hand, Magno's pose that it gave Hodges only a
lifetime usufruct. We hold that by said provision, Mrs.
Hodges simultaneously instituted her brothers and
sisters as co-heirs with her husband, with the condition,
however, that the latter would have complete rights of
dominion over the whole estate during his lifetime and
what would go to the former would be only the
remainder thereof at the time of Hodges' death. In other
words, whereas they are not to inherit only in case of
default of Hodges, on the other hand, Hodges was not
obliged to preserve anything for them. Clearly then, the
essential elements of testamentary substitution are
absent; the provision in question is a simple case of
conditional simultaneous institution of heirs, whereby
the institution of Hodges is subject to a partial resolutory
condition the operative contingency of which is
coincidental with that of the suspensive condition of the
institution of his brothers and sisters-in-law, which
manner of institution is not prohibited by law.
We also hold, however, that the estate of Mrs. Hodges
inherited by her brothers and sisters could be more than
just stated, but this would depend on (1) whether upon
the proper application of the principle of renvoi in
relation to Article 16 of the Civil Code and the pertinent
laws of Texas, it will appear that Hodges had no legitime
as contended by Magno, and (2) whether or not it can
be held that Hodges had legally and effectively
renounced his inheritance from his wife. Under the
circumstances presently obtaining and in the state of
the record of these cases, as of now, the Court is not in
a position to make a final ruling, whether of fact or of
law, on any of these two issues, and We, therefore,
reserve said issues for further proceedings and
resolution in the first instance by the court a quo, as
hereinabove indicated. We reiterate, however, that
pending such further proceedings, as matters stand at
this stage, Our considered opinion is that it is beyond
cavil that since, under the terms of the will of Mrs.
Hodges, her husband could not have anyway legally
adjudicated or caused to be adjudicated to himself her
whole share of their conjugal partnership, albeit he
could have disposed any part thereof during his lifetime,
the resulting estate of Mrs. Hodges, of which Magno is
the uncontested administratrix, cannot be less than
one-fourth of the conjugal partnership properties, as of
the time of her death, minus what, as explained earlier,
have beengratuitously disposed of therefrom, by
Hodges in favor of third persons since then, for even if
it were assumed that, as contended by PCIB, under
Article 16 of the Civil Code and applying renvoi the laws
of the Philippines are the ones ultimately applicable,
such one-fourth share would be her free disposable
portion, taking into account already the legitime of her
husband under Article 900 of the Civil Code.
The foregoing considerations leave the Court with no
alternative than to conclude that in predicating its
orders on the assumption, albeit unexpressed therein,
that there is an estate of Mrs. Hodges to be distributed
among her brothers and sisters and that respondent
Magno is the legal administratrix thereof, the trial court
acted correctly and within its jurisdiction. Accordingly,
the petition for certiorari and prohibition has to be
denied. The Court feels however, that pending the
liquidation of the conjugal partnership and the
determination of the specific properties constituting her
estate, the two administrators should act conjointly as
ordered in the Court's resolution of September 8, 1972
299
and as further clarified in the dispositive portion of its
decision.
Anent the appeals from the orders of the lower court
sanctioning payment by appellee Magno, as
administratrix, of expenses of administration and
attorney's fees, it is obvious that, with Our holding that
there is such an estate of Mrs. Hodges, and for the
reasons stated in the body of this opinion, the said
orders should be affirmed. This We do on the
assumption We find justified by the evidence of record,
and seemingly agreed to by appellant PCIB, that the size
and value of the properties that should correspond to
the estate of Mrs. Hodges far exceed the total of the
attorney's fees and administration expenses in question.
With respect to the appeals from the orders approving
transactions made by appellee Magno, as
administratrix, covering properties registered in the
name of Hodges, the details of which are related earlier
above, a distinction must be made between those
predicated on contracts to sell executed by Hodges
before the death of his wife, on the one hand, and those
premised on contracts to sell entered into by him after
her death. As regards the latter, We hold that inasmuch
as the payments made by appellees constitute proceeds
of sales of properties belonging to the estate of Mrs.
Hodges, as may be implied from the tenor of the
motions of May 27 and December 14, 1957, said
payments continue to pertain to said estate, pursuant
to her intent obviously reflected in the relevant
provisions of her will, on the assumption that the size
and value of the properties to correspond to the estate
of Mrs. Hodges would exceed the total value of all the
properties covered by the impugned deeds of sale, for
which reason, said properties may be deemed as
pertaining to the estate of Mrs. Hodges. And there being
no showing that thus viewing the situation, there would
be prejudice to anyone, including the government, the
Court also holds that, disregarding procedural
technicalities in favor of a pragmatic and practical
approach as discussed above, the assailed orders should
be affirmed. Being a stranger to the estate of Mrs.
Hodges, PCIB has no personality to raise the procedural
and jurisdictional issues raised by it. And inasmuch as it
does not appear that any of the other heirs of Mrs.
Hodges or the government has objected to any of the
orders under appeal, even as to these parties, there
exists no reason for said orders to be set aside.
DISPOSITIVE PART
IN VIEW OF ALL THE FOREGOING PREMISES, judgment
is hereby rendered DISMISSING the petition in G. R.
Nos. L-27860 and L-27896, and AFFIRMING, in G. R.
Nos. L-27936-37 and the other thirty-one numbers
hereunder ordered to be added after payment of the
corresponding docket fees, all the orders of the trial
court under appeal enumerated in detail on pages 35 to
37 and 80 to 82 of this decision; the existence of the
Testate Estate of Linnie Jane Hodges, with respondent-
appellee Avelina A. Magno, as administratrix thereof is
recognized, and it is declared that, until final judgment
is ultimately rendered regarding (1) the manner of
applying Article 16 of the Civil Code of the Philippines to
the situation obtaining in these cases and (2) the factual
and legal issue of whether or not Charles Newton
Hodges had effectively and legally renounced his
inheritance under the will of Linnie Jane Hodges, the
said estate consists of one-fourth of the community
properties of the said spouses, as of the time of the
death of the wife on May 23, 1957, minus whatever the
husband had already gratuitously disposed of in favor of
third persons from said date until his death, provided,
first, that with respect to remunerative dispositions, the
proceeds thereof shall continue to be part of the wife's
estate, unless subsequently disposed of gratuitously to
third parties by the husband, and second, that should
the purported renunciation be declared legally effective,
no deductions whatsoever are to be made from said
estate; in consequence, the preliminary 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
300
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.

301

Malang vs. Moson (August 22, 2000)
[G.R. No. 119064. August 22, 2000]
NENG KAGUI KADIGUIA MALANG, petitioner, vs. HON.
COROCOY MOSON, Presiding Judge of 5th Sharia
District Court, Cotabato City, HADJI MOHAMMAD
ULYSSIS MALANG, HADJI ISMAEL MALINDATU MALANG,
FATIMA MALANG, DATULNA MALANG, LAWANBAI
MALANG, JUBAIDA KADO MALANG, NAYO OMAL
MALANG and MABAY GANAP MALANG, respondents.
DECISION
GONZAGA-REYES, J.:
Presented for resolution in this special civil action of
certiorari is the issue of whether or not the regime of
conjugal partnership of gains governed the property
relationship of two Muslims who contracted marriage
prior to the effectivity of the Code of Muslim Personal
Laws of the Philippines (hereafter, P.D. 1083 or Muslim
Code). The question is raised in connection with the
settlement of the estate of the deceased husband.
Hadji Abdula Malang, a Muslim, contracted marriage
with Aida (Kenanday) Limba. They begot three sons
named Hadji Mohammad Ulyssis, Hadji Ismael
Malindatu and Datulna, and a daughter named
Lawanbai. Hadji Abdula Malang was engaged in farming,
tilling the land that was Aidas dowry (mahr or majar).
Thereafter, he bought a parcel of land in Sousa,
Cotabato. Hadji Abdula and Aida already had two
children when he married for the second time another
Muslim named Jubaida Kado in Kalumamis, Talayan,
Maguindanao. No child was born out of Hadji Abdulas
second marriage. When Aida, the first wife, was
pregnant with their fourth child, Hadji Abdula divorced
her.
In 1965, Hadji Abdula married another Muslim, Nayo H.
Omar but they were childless. Thereafter, Hadji Abdula
contracted marriage with Hadji Mabai (Mabay) H. Adziz
in Kalumamis, Talayan, Maguindanao and soon they had
a daughter named Fatima (Kueng).Hadji Abdula and
Hadji Mabai stayed in that place to farm while Hadji
Abdula engaged in the business of buying and selling of
rice, corn and other agricultural products. Not long after,
Hadji Abdula married three other Muslim women named
Saaga, Mayumbai and Sabai but he eventually divorced
them.
Hadji Abdula then migrated to Tambunan where, in
1972, he married petitioner Neng Kagui Kadiguia
Malang, his fourth wife, excluding the wives he had
divorced. They established residence in Cotabato City
but they were childless. For a living, they relied on
farming and on the business of buying and selling of
agricultural products. Hadji Abdula acquired vast tracts
of land in Sousa and Talumanis, Cotabato City, some of
which were cultivated by tenants. He deposited money
in such banks as United Coconut Planters Bank,
Metrobank and Philippine Commercial and Industrial
Bank.
On December 18, 1993, while he was living with
petitioner in Cotabato City, Hadji Abdula died without
leaving a will. On January 21, 1994, petitioner filed with
the Sharia District Court in Cotabato City a petition for
the settlement of his estate with a prayer that letters of
administration be issued in the name of her niece,
Tarhata Lauban.
Petitioner claimed in that petition that she was the wife
of Hadji Abdula; that his other legal heirs are his three
children named Teng Abdula, Keto Abdula and Kueng
Malang, and that he left seven (7) parcels of land, five
(5) of which are titled in Hadji Abdulas name married to
Neng P. Malang, and a pick-up jeepney.
On February 7, 1994, the Sharia District Court ordered
the publication of the petition.[1] After such
publication[2] or on March 16, 1994, Hadji Mohammad
Ulyssis Malang (Hadji Mohammad, for brevity), the
eldest son of Hadji Abdula, filed his opposition to the
petition. He alleged among other matters that his
fathers surviving heirs are as follows: (a) Jubaida
Malang, surviving spouse; (b) Nayo Malang, surviving
spouse; (c) Mabay Malang, surviving spouse; (d)
petitioner Neng Malang, surviving spouse; (e) oppositor
Hadji Mohammad Ulyssis Malang who is also known as
Teng Abdula, son; (f) Hadji Ismael Malindatu Malang,
also known as Keto Abdula, son, (g) Fatima Malang, also
known as Kueng Malang, daughter; (h) Datulna Malang,
son, and (i) Lawanbai Malang, daughter. Oppositor Hadji
Mohammad Ulyssis Malang alleged that since he and his
brother, Hadji Ismael Malindatu Malang, had helped
their father in his business, then they were more
competent to be administrators of his estate.[3]
On March 30, 1994, Jubaida Malang, Ismael Malindatu
Malang, Nayo Malang, Fatima Malang, Mabay Malang,
Datulna Malang and Lawanbai Malang filed an opposition
to the petition, adopting as their own the written
opposition of Hadji Mohammad.[4]
On April 7, 1994, the Sharia District Court issued an
Order appointing Hadji Mohammad administrator of his
fathers properties outside Cotabato City. The same
order named petitioner and Hadji Ismael Malindatu
Malang as joint administrators of the estate in Cotabato
City. Each administrator was required to post a bond in
the amount of P100,000.00.[5] On April 13, 1994,
letters of administration were issued to Hadji
Mohammad after he had posted the required bond. He
took his oath on the same day.[6] The following day,
Hadji Ismael and petitioner likewise filed their respective
bonds and hence, they were allowed to take their oath
as administrators.[7]
302
On April 25, 1994 and May 3, 1994, petitioner filed two
motions informing the court that Hadji Abdula had
outstanding deposits with nine (9) major banks.[8]
Petitioner prayed that the managers of each of those
banks be ordered to submit a bank statement of the
outstanding deposit of Hadji Abdula.[9] The Sharia
District Court having granted the motions,[10] Assistant
Vice President Rockman O. Sampuha of United Coconut
Planters Bank informed the court that as of April 24,
1994, the outstanding deposit of Hadji Abdula amounted
to one million five hundred twenty thousand four
hundred pesos and forty-eight centavos
(P1,520,400.48).[11] The Senior Manager of the
Cotabato branch of Metrobank also certified that as of
December 18, 1993, Hadji Abdula Malang or Malindatu
Malang had on savings deposit the balance of three
hundred seventy-eight thousand four hundred ninety-
three pesos and 32/100 centavos (P378,493.32).[12]
PCIB likewise issued a certification that Hadji Abdula had
a balance of eight hundred fifty pesos (P850.00) in his
current account as of August 11, 1994.[13]
During the pendency of the case, petitioner suffered a
congestive heart failure that required immediate
medical treatment. On May 5, 1994, she filed a motion
praying that on account of her ailment, she be allowed
to withdraw from UCPB the amount of three hundred
thousand pesos (P300,000.00) that shall constitute her
advance share in the estate of Hadji Abdula.[14] After
due hearing, the Sharia District Court allowed petitioner
to withdraw the sum of two hundred fifty thousand
pesos (P250,000.00).[15]
On May 12, 1994, the Sharia District Court required
petitioner and Hadji Ismael as joint administrators to
submit an inventory and appraisal of all properties of
Hadji Abdula.[16] In compliance therewith, Hadji Ismael
submitted an inventory showing that in Cotabato City,
Hadji Abdula had seven (7) residential lots with
assessed value ranging from P5,020.00 to P25,800.00,
an agricultural land with assessed value of P860.00,
three (3) one-storey residential buildings, and one (1)
two-storey residential building.[17] All these properties
were declared for taxation purposes in Hadji Abdulas
name.
For her part, petitioner submitted an inventory showing
that Hadji Abdula married to Neng Malang had seven (7)
residential lots with a total assessed value of
P243,840.00 in Cotabato City, an Isuzu pick-up jeepney
valued at P30,000.00 and bank deposits.[18]
In the Memorandum that she filed with the Sharia
District Court, petitioner asserted that all the properties
located in Cotabato City, including the vehicle and bank
deposits, were conjugal properties in accordance with
Article 160 of the Civil Code and Article 116 of the Family
Code while properties located outside of Cotabato City
were exclusive properties of the decedent.[19]
On the other hand, the oppositors contended in their
own Memorandum that all the properties left by Hadji
Abdula were his exclusive properties for various
reasons. First, Hadji Abdula had no conjugal partnership
with petitioner because his having contracted eight (8)
marriages with different Muslim women was in violation
of the Civil Code that provided for a monogamous
marriage; a conjugal partnership presupposes a valid
civil marriage, not a bigamous marriage or a common-
law relationship. Second, the decedent adopted a
complete separation of property regime in his marital
relations; while his wives Jubaida Kado, Nayo Hadji
Omal and Mabay Ganap Hadji Adzis contributed to the
decedents properties, there is no evidence that
petitioner had contributed funds for the acquisition of
such properties. Third, the presumption that properties
acquired during the marriage are conjugal properties is
inapplicable because at the time he acquired the
properties, the decedent was married to four (4)
women. Fourth, the properties are not conjugal in
nature notwithstanding that some of these properties
were titled in the name of the decedent married to Neng
Malang because such description is not conclusive of the
conjugal nature of the property. Furthermore, because
petitioner admitted in her verified petition that the
properties belonged to the estate of decedent, she was
estopped from claiming, after formal offer of evidence,
that the properties were conjugal in nature just because
some of the properties were titled in Hadji Abdulas name
married to Neng Malang. Fifth, if it is true that the
properties were conjugal properties, then these should
have been registered in the names of both petitioner
and the decedent.[20]
In its Order of September 26, 1994, the Sharia District
Court presided by Judge Corocoy D. Moson held that
there was no conjugal partnership of gains between
petitioner and the decedent primarily because the latter
married eight times. The Civil Code provision on
conjugal partnership cannot be applied if there is more
than one wife because conjugal partnership
presupposes a valid civil marriage, not a plural marriage
or a common-law relationship. The court further found
that the decedent was the chief, if not the sole,
breadwinner of his families and that petitioner did not
contribute to the properties unlike the other wives
named Jubaida, Nayo and Mabay. The description
married to Neng Malang in the titles to the real
properties is no more than that -- the description of the
relationship between petitioner and the decedent. Such
description is insufficient to prove that the properties
belong to the conjugal partnership of gains. The court
stated:
In the instant case, decedent had four (4) wives at the
time he acquired the properties in question. To sustain
the contention of the petitioner that the properties are
her conjugal property with the decedent is doing
violence to the provisions of the Civil Code. Be it noted
that at the time of the marriage of the petitioner with
the decedent, there were already three (3) existing
marriages. Assuming for the moment that petitioner and
the decedent had agreed that the property regime
between them will be governed by the regime of
303
conjugal partnership property, that agreement is null
and void for it is against the law, public policy, public
order, good moral(s) and customs.
Under Islamic law, the regime of property relationship
is complete separation of property, in the absence of
any stipulation to the contrary in the marriage
settlements or any other contract (Article 38, P.D.
1083). There being no evidence of such contrary
stipulation or contract, this Court concludes as it had
begun, that the properties in question, both real and
personal, are not conjugal, but rather, exclusive
property of the decedent.[21]
Thus, the Sharia District Court held that the Islamic law
should be applied in the distribution of the estate of
Hadji Abdula and accordingly disposed of the case as
follows:
WHEREFORE, premises considered, the Court orders the
following:
1) That the estate shall pay the corresponding estate
tax, reimburse the funeral expenses in the amount of
P50,000.00, and the judicial expenses in the amount of
P2,040.80;
2) That the net estate, consisting of real and personal
properties, located in Talayan, Maguindanao and in
Cotabato City, is hereby ordered to be distributed and
adjudicated as follows:
a) Jubaida Kado Malang ------------------------- 2/64 of
the estate
b) Nayo Omar Malang ------------------------- 2/64 - do
- marriages with Jubaida Kado Malang, Nayo Omar
c) Mabai Aziz Malang ------------------------- 2/64 - do -
d) Neng Kagui Kadiguia Malang ------------------- 2/64 -
do -
e) Mohammad Ulyssis Malang-------------------------
14/64 - do -
f) Ismael Malindatu Malang---------------------------
14/64 - do -
g) Datulna Malang ------------------------- 14/64 - do -
h) Lawanbai Malang ------------------------- 7/64 - do -
i) Fatima (Kueng) Malang ------------------------- 7/64 -
do -
Total------------------------ 64/64
3) That the amount of P250,000.00 given to Neng Kagui
Kadiguia Malang by way of advance be charged against
her share and if her share is not sufficient, to return the
excess; and
4) That the heirs are hereby ordered to submit to this
court their Project of Partition for approval, not later
than three (3) months from receipt of this order.
SO ORDERED.
On October 4, 1994, petitioner filed a motion for the
reconsideration of that Order. The oppositors objected
to that motion. On January 10, 1995, the Sharia District
Court denied petitioners motion for reconsideration.[22]
Unsatisfied, petitioner filed a notice of appeal.[23]
However, on January 19, 1995, she filed a manifestation
withdrawing the notice of appeal on the strength of the
following provisions of P.D. No. 1083:
Art. 145. Finality of Decisions The decisions of the Sharia
District Courts whether on appeal from the Sharia
Circuit Court or not shall be final. Nothing herein
contained shall affect the original and appellate
jurisdiction of the Supreme Court as provided in the
Constitution.
Petitioner accordingly informed the court that she would
be filing an original action of certiorari with the Supreme
Court.[24]
On March 1, 1995, petitioner filed the instant petition
for certiorari with preliminary injunction and/or
restraining order. She contends that the Sharia District
Court gravely erred in: (a) ruling that when she married
Hadji Abdula Malang, the latter had three existing
Malang and Mabay Ganap Malang and therefore the
properties acquired during her marriage could not be
considered conjugal, and (b) holding that said
properties are not conjugal because under Islamic Law,
the regime of relationship is complete separation of
property, in the absence of stipulation to the contrary in
the marriage settlement or any other contract.[25]
As petitioner sees it, the law applicable on issues of
marriage and property regime is the New Civil Code,
under which all property of the marriage is presumed to
belong to the conjugal partnership. The Sharia Court,
meanwhile, viewed the Civil Code provisions on conjugal
partnership as incompatible with plural marriage, which
is permitted under Muslim law, and held the applicable
property regime to be complete separation of property
under P.D. 1083.
Owing to the complexity of the issue presented, and the
fact that the case is one of first impression --- this is a
singular situation where the issue on what law governs
the property regime of a Muslim marriage celebrated
prior to the passage of the Muslim Code has been
elevated from a Sharia court for the Courts resolution -
304
-- the Court decided to solicit the opinions of two amici
curiae, Justice Ricardo C. Puno[26] and former
Congressman Michael O. Mastura[27]. The Court
extends its warmest thanks to the amici curiae for their
valuable inputs in their written memoranda[28] and in
the hearing of June 27, 2000.
Resolution of the instant case is made more difficult by
the fact that very few of the pertinent dates of birth,
death, marriage and divorce are established by the
record. This is because, traditionally, Muslims do not
register acts, events or judicial decrees affecting civil
status.[29] It also explains why the evidence in the
instant case consisted substantially of oral testimonies.
What is not disputed is that: Hadji Abdula contracted a
total of eight marriages, counting the three which
terminated in divorce; all eight marriages were
celebrated during the effectivity of the Civil Code and
before the enactment of the Muslim Code; Hadji Abdula
divorced four wives --- namely, Aida, Saaga, Mayumbai
and Sabai --- all divorces of which took place before the
enactment of the Muslim Code; and, Hadji Abdula died
on December 18, 1993, after the Muslim Code and
Family Code took effect, survived by four wives
(Jubaida, Nayo, Mabay and Neng) and five children, four
of whom he begot with Aida and one with Mabay. It is
also clear that the following laws were in force, at some
point or other, during the marriages of Hadji Abdula: the
Civil Code, which took effect on August 30, 1950;
Republic Act No. 394 (R.A. 394), authorizing Muslim
divorces, which was effective from June 18, 1949 to
June 13, 1969; the Muslim Code, which took effect
February 4, 1977; and the Family Code, effective August
3, 1988.
Proceeding upon the foregoing, the Court has concluded
that the record of the case is simply inadequate for
purposes of arriving at a fair and complete resolution of
the petition. To our mind, any attempt at this point to
dispense with the basic issue given the scantiness of the
evidence before us could result in grave injustice to the
parties in this case, as well as cast profound implications
on Muslim families similarly or analogously situated to
the parties herein. Justice and accountability dictate a
remand; trial must reopen in order to supply the factual
gaps or, in Congressman Masturas words, missing links,
that would be the bases for judgment and accordingly,
allow respondent court to resolve the instant case. In
ordering thus, however, we take it as an imperative on
our part to set out certain guidelines in the
interpretation and application of pertinent laws to
facilitate the task of respondent court.
It will also be recalled that the main issue presented by
the petition --- concerning the property regime
applicable to two Muslims married prior to the effectivity
of the Muslim Code --- was interposed in relation to the
settlement of the estate of the deceased husband.
Settlement of estates of Muslims whose civil acts
predate the enactment of the Muslim Code may easily
result in the application of the Civil Code and other
personal laws, thus convincing the Court that it is but
propitious to go beyond the issue squarely presented
and identify such collateral issues as are required to be
resolved in a settlement of estate case. As amicus curiae
Congressman Mastura puts it, the Court does not often
come by a case as the one herein, and jurisprudence will
be greatly enriched by a discussion of the watershed of
collateral issues that this case presents.[30]
The Court has identified the following collateral issues,
which we hereby present in question form: (1) What law
governs the validity of a Muslim marriage celebrated
under Muslim rites before the effectivity of the Muslim
Code? (2) Are multiple marriages celebrated before the
effectivity of the Muslim Code valid? (3) How do the
Courts pronouncements in People vs. Subano, 73 Phil.
692 (1942), and People vs. Dumpo, 62 Phil. 246 (1935),
affect Muslim marriages celebrated before the effectivity
of the Muslim Code? (4) What laws govern the property
relationship of Muslim multiple marriages celebrated
before the Muslim Code? (5) What law governs the
succession to the estate of a Muslim who died after the
Muslim Code and the Family Code took effect? (6) What
laws apply to the dissolution of property regimes in the
cases of multiple marriages entered into before the
Muslim Code but dissolved (by the husbands death)
after the effectivity of the Muslim Code? and (7) Are
Muslim divorces effected before the enactment of the
Muslim Code valid?
The succeeding guidelines, which derive mainly from the
Compliance of amicus curiae Justice Puno, are hereby
laid down by the Court for the reference of respondent
court, and for the direction of the bench and bar:
First Collateral Issue: The Law(s) Governing Validity of
Muslim Marriages Celebrated Before the Muslim Code
The time frame in which all eight marriages of Hadji
Abdula were celebrated was during the effectivity of the
Civil Code which, accordingly, governs the marriages.
Article 78 of the Civil Code[31] recognized the right of
Muslims to contract marriage in accordance with their
customs and rites, by providing that ---
Marriages between Mohammedans or pagans who live
in the non-Christian provinces may be performed in
accordance with their customs, rites or practices. No
marriage license or formal requisites shall be necessary.
Nor shall the persons solemnizing these marriages be
obliged to comply with article 92.
However, thirty years after the approval of this Code, all
marriages performed between Muslims or other non-
Christians shall be solemnized in accordance with the
provisions of this Code. But the President of the
Philippines, upon recommendation of the Commissioner
of National Integration, may at any time before the
expiration of said period, by proclamation, make any of
said provisions applicable to the Muslims and non-
305
Christian inhabitants of any of the non-Christian
provinces.
Notably, before the expiration of the thirty-year period
after which Muslims are enjoined to solemnize their
marriages in accordance with the Civil Code, P.D. 1083
or the Muslim Code was passed into law. The enactment
of the Muslim Code on February 4, 1977 rendered
nugatory the second paragraph of Article 78 of the Civil
Code which provides that marriages between Muslims
thirty years after the approval of the Civil Code shall be
solemnized in accordance with said Code.
Second and Third Collateral Issues: The Validity of
Muslim Multiple Marriages Celebrated Before the Muslim
Code; The Effect of People vs. Subano and People vs.
Dumpo
Prior to the enactment of P.D. 1083, there was no law
in this jurisdiction which sanctioned multiple
marriages.[32] It is also not to be disputed that the only
law in force governing marriage relations between
Muslims and non-Muslims alike was the Civil Code of
1950.
The Muslim Code, which is the first comprehensive
codification[33] of Muslim personal laws,[34] also
provides in respect of acts that transpired prior to its
enactment:
Art. 186. Effect of code on past acts. --- (1) Acts
executed prior to the effectivity of this Code shall be
governed by the laws in force at the time of their
execution, and nothing herein except as otherwise
specifically provided, shall affect their validity or legality
or operate to extinguish any right acquired or liability
incurred thereby.
The foregoing provisions are consistent with the
principle that all laws operate prospectively, unless the
contrary appears or is clearly, plainly and unequivocably
expressed or necessarily implied;[35] accordingly,
every case of doubt will be resolved against the
retroactive opertion of laws.[36] Article 186 aforecited
enunciates the general rule of the Muslim Code to have
its provisions applied prospectively, and implicitly
upholds the force and effect of a pre-existing body of
law, specifically, the Civil Code --- in respect of civil acts
that took place before the Muslim Codes enactment.
Admittedly, an apparent antagonism arises when we
consider that what the provisions of the Civil Code
contemplate and nurture is a monogamous marriage.
Bigamous or polygamous marriages are considered void
and inexistent from the time of their performance.[37]
The Family Code which superseded the Civil Code
provisions on marriage emphasizes that a subsequent
marriage celebrated before the registration of the
judgment declaring a prior marriage void shall likewise
be void.[38] These provisions illustrate that the marital
relation perceived by the Civil Code is one that is
monogamous, and that subsequent marriages entered
into by a person with others while the first one is
subsisting is by no means countenanced.
Thus, when the validity of Muslim plural marriages
celebrated before the enactment of the Muslim Code
was touched upon in two criminal cases, the Court
applied the perspective in the Civil Code that only one
valid marriage can exist at any given time.
In People vs. Subano, supra, the Court convicted the
accused of homicide, not parricide, since ---
(f)rom the testimony of Ebol Subano, father of the
deceased, it appears that the defendant has three wives
and that the deceased was the last in point of time.
Although the practice of polygamy is approved by
custom among these non-Christians, polygamy,
however, is not sanctioned by the Marriage Law[39],
which merely recognizes tribal marriage rituals. The
deceased, under our law, is not thus the lawful wife of
the defendant and this precludes conviction for the
crime of parricide.
In People vs. Dumpo, supra, Mora Dumpo was
prosecuted for bigamy when, legally married to Moro
Hassan, she allegedly contracted a second marriage
with Moro Sabdapal. The Court acquitted her on the
ground that it was not duly proved that the alleged
second marriage had all the essential requisites to make
it valid were it not for the subsistence of the first
marriage. As it appears that the consent of the brides
father is an indispensable requisite to the validity of a
Muslim marriage, and as Mora Dumpos father
categorically affirmed that he did not give his consent to
her union with Moro Sabdapal, the Court held that such
union could not be a marriage otherwise valid were it
not for the existence of the first one, and resolved to
acquit her of the charge of bigamy.
The ruling in Dumpo indicates that, had it been proven
as a fact that the second marriage contained all the
essential requisites to make it valid, a conviction for
bigamy would have prospered. [40]
Fourth Collateral Issue: Law(s) Governing Property
Relations of Muslim Marriages Celebrated Before the
Muslim Code
This is the main issue presented by the instant petition.
In keeping with our holding that the validity of the
marriages in the instant case is determined by the Civil
Code, we hold that it is the same Code that determines
and governs the property relations of the marriages in
this case, for the reason that at the time of the
celebration of the marriages in question the Civil Code
was the only law on marriage relations, including
property relations between spouses, whether Muslim or
non-Muslim. Inasmuch as the Family Code makes
substantial amendments to the Civil Code provisions on
property relations, some of its provisions are also
306
material, particularly to property acquired from and
after August 3, 1988.
Which law would govern depends upon: (1) when the
marriages took place; (2) whether the parties lived
together as husband and wife; and (3) when and how
the subject properties were acquired.
Following are the pertinent provisions of the Civil Code:
Art. 119. The future spouses may in the marriage
settlements agree upon absolute or relative community
of property, or upon complete separation of property, or
upon any other regime. In the absence of marriage
settlements, or when the same are void, the system of
relative community or conjugal partnership of gains as
established in this Code shall govern the property
relations between husband and wife.
Art. 135. All property brought by the wife to the
marriage, as well as all property she acquires during the
marriage, in accordance with article 148, is paraphernal.
Art. 136. The wife retains the ownership of the
paraphernal property.
Art. 142. By means of the conjugal partnership of gains
the husband and wife place in a common fund the fruits
of their separate property and the income from their
work or industry, and divide equally, upon the
dissolution of the marriage or of the partnership, the net
gains or benefits obtained indiscriminately by either
spouse during the marriage.
Art. 143. All property of the conjugal partnership of
gains is owned in common by the husband and wife.
The Civil Code also provides in Article 144:
When a man and a woman live together as husband and
wife, but they are not married, or their marriage is void
from the beginning, the property acquired by either or
both of them through their work or industry or their
wages and salaries shall be governed by the rules on co-
ownership.
In a long line of cases, this Court has interpreted the co-
ownership provided in Article 144 of the Civil Code to
require that the man and woman living together as
husband and wife without the benefit of marriage or
under a void marriage must not in any way be
incapacitated to marry.[41] Situating these rulings to
the instant case, therefore, the co-ownership
contemplated in Article 144 of the Civil Code cannot
apply to Hadji Abdulas marriages celebrated subsequent
to a valid and legally existing marriage, since from the
point of view of the Civil Code Hadji Abdula is not
capacitated to marry. However, the wives in such
marriages are not precluded from proving that property
acquired during their cohabitation with Hadji Abdula is
their exclusive property, respectively.[42] Absent such
proof, however, the presumption is that property
acquired during the subsistence of a valid marriage ---
and in the Civil Code, there can only be one validly
existing marriage at any given time --- is conjugal
property of such subsisting marriage. [43]
With the effectivity of the Family Code on August 3,
1988, the following provisions of the said Code are
pertinent:
Art. 147. When a man and a woman who are capacitated
to marry each other live exclusively with each other as
husband and wife without the benefit of marriage or
under a void marriage, their wages and salaries shall be
owned by them in equal shares and the property
acquired by both of them through their work or industry
shall be governed by the rules on co-ownership.
In the absence of proof to the contrary, properties
acquired while they lived together shall be presumed to
have been obtained by their joint efforts, work or
industry, and shall be owned by them in equal shares.
For purposes of this Article, a party who did not
participate in the acquisition of the other party of any
property shall be deemed to have contributed jointly in
the acquisition thereof if the formers efforts consisted in
the care and maintenance of the family and of the
household.
Neither party can encumber or dispose by acts inter
vivos of his or her share in the property acquired during
cohabitation and owned in common, without the consent
of the other, until after the termination of the
cohabitation.
When only one of the parties to a void marriage is in
good faith, the share of the party in bad faith in the co-
ownership shall be forfeited in favor of their common
children. In case of default or of waiver by any or all of
the common children or their descendants, each vacant
share shall belong to the respective surviving
descendants. In the absence of descendants, such share
shall belong to the innocent party. In all cases, the
forfeiture shall take place upon termination of the
cohabitation.
Art. 148. In cases of cohabitation not falling under the
preceding Article, only the properties acquired by both
of the parties through their actual joint contribution of
money, property, or industry shall be owned by them in
common in proportion to their respective contributions.
In the absence of proof to the contrary, their
contributions and corresponding shares are presumed to
be equal. The same rule and presumption shall apply to
joint deposits of money and evidences of credit.
If one of the parties is validly married to another, his or
her share in the co-ownership shall accrue to the
absolute community or conjugal partnership existing in
such valid marriage. If the party who acted in bad faith
307
is not validly married to another, his or her share shall
be forfeited in the manner provided in the last
paragraph of the preceding Article.
The foregoing rules on forfeiture shall likewise apply
even if both parties are in bad faith.
It will be noted that while the Civil Code merely requires
that the parties live together as husband and wife the
Family Code in Article 147 specifies that they live
exclusively with each other as husband and wife. Also,
in contrast to Article 144 of the Civil Code as interpreted
by jurisprudence, Article 148 of the Family Code allows
for co-ownership in cases of cohabitation where, for
instance, one party has a pre-existing valid marriage,
provided that the parties prove their actual joint
contribution of money, property, or industry and only to
the extent of their proportionate interest therein. The
rulings in Juaniza vs. Jose, 89 SCRA 306,
Camporodendo vs. Garcia, 102 Phil. 1055, and related
cases are embodied in the second paragraph of Article
148, which declares that the share of the party validly
married to another shall accrue to the property regime
of such existing marriage.
Fifth and Sixth Collateral Issues: Law(s) on Succession
and Dissolution of Property Regimes
Hadji Abdula died intestate on December 16, 1993.
Thus, it is the Muslim Code which should determine the
identification of the heirs in the order of intestate
succession and the respective shares of the heirs.
Meanwhile, the status and capacity to succeed on the
part of the individual parties who entered into each and
every marriage ceremony will depend upon the law in
force at the time of the performance of the marriage
rite.
The status and capacity to succeed of the children will
depend upon the law in force at the time of conception
or birth of the child. If the child was conceived or born
during the period covered by the governance of the Civil
Code, the Civil Code provisions on the determination of
the legitimacy or illegitimacy of the child would appear
to be in point. Thus, the Civil Code provides:
Art. 255. Children born after one hundred and eighty
days following the celebration of the marriage, and
before three hundred days following its dissolution or
the separation of the spouses shall be presumed to be
legitimate.
Against this presumption no evidence shall be admitted
other than that of the physical impossibility of the
husbands having access to his wife within the first one
hundred and twenty days of the three hundred which
preceded the birth of the child.
This physical impossibility may be caused:
(1) By the impotence of the husband;
(2) By the fact that the husband and wife were living
separately, in such a way that access was not possible;
(3) By the serious illness of the husband.
Art. 256. The child shall be presumed legitimate,
although the mother may have declared against its
legitimacy or may have been sentenced as an
adulteress.
If the child was conceived or born during the period
covered by the governance of the Muslim Code, i.e.,
from February 4, 1977 up to the death of Hadji Abdula
on December 18, 1993, the Muslim Code determines the
legitimacy or illegitimacy of the child. Under the Muslim
Code:
Art. 58. Legitimacy, how established. --- Legitimacy of
filiation is established by the evidence of valid marriage
between the father and the mother at the time of the
conception of the child.
Art. 59. Legitimate children. ---
(1) Children conceived in lawful wedlock shall be
presumed to be legitimate. Whoever claims illegitimacy
of or impugns such filiation must prove his allegation.
(2) Children born after six months following the
consummation of marriage or within two years after the
dissolution of the marriage shall be presumed to be
legitimate. Against this presumption no evidence shall
be admitted other than that of physical impossibility of
access between the parents at or about the time of the
conception of the child.
Art. 60. Children of subsequent marriage. --- Should the
marriage be dissolved and the wife contracts another
marriage after the expiration of her idda, the child born
within six months from the dissolution of the prior
marriage shall be presumed to have been conceived
during the former marriage, and if born thereafter,
during the latter.
Art. 61. Pregnancy after dissolution. --- If, after the
dissolution of marriage, the wife believes that she is
pregnant by her former husband, she shall, within thirty
days from the time she became aware of her pregnancy,
notify the former husband or his heirs of that fact.The
husband or his heirs may ask the court to take measures
to prevent a simulation of birth.
Upon determination of status and capacity to succeed
based on the foregoing provisions, the provisions on
legal succession in the Muslim Code will apply. Under
Article 110 of the said Code, the sharers to an
inheritance include:
308
(a) The husband, the wife;
(b) The father, the mother, the grandfather, the
grandmother;
(c) The daughter and the sons daughter in the direct
line;
(d) The full sister, the consanguine sister, the uterine
sister and the uterine brother.
When the wife survives with a legitimate child or a child
of the decedents son, she is entitled to one-eighth of the
hereditary estate; in the absence of such descendants,
she shall inherit one-fourth of the estate.[44] The
respective shares of the other sharers, as set out in
Article 110 abovecited, are provided for in Articles 113
to 122 of P.D. 1083.
Seventh Collateral Issue: Muslim Divorces Before the
Effectivity of the Muslim Code
R.A. 394 authorized absolute divorce among Muslims
residing in non-Christian provinces, in accordance with
Muslim custom, for a period of 20 years from June 18,
1949 (the date of approval of R.A. 394) to June 13,
1969.[45] Thus, a Muslim divorce under R.A. 394 is
valid if it took place from June 18, 1949 to June 13,
1969.
From the seven collateral issues that we discussed, we
identify four corollary issues as to further situate the
points of controversy in the instant case for the guidance
of the lower court. Thus:
1. Which of the several marriages was validly and legally
existing at the time of the opening of the succession of
Hadji Abdula when he died in 1993? The validly and
legally existing marriage would be that marriage which
was celebrated at a time when there was no other
subsisting marriage standing undissolved by a valid
divorce or by death. This is because all of the marriages
were celebrated during the governance of the Civil
Code, under the rules of which only one marriage can
exist at any given time.
Whether or not the marriage was validly dissolved by a
Muslim divorce depends upon the time frame and the
applicable law. A Muslim divorce under R.A. No. 394 is
valid if it took place from June 18, 1949 to June 13,
1969, and void if it took place from June 14, 1969. [46]
2. There being a dispute between the petitioner and the
oppositors as regards the heirship of the children
begotten from different marriages, who among the
surviving children are legitimate and who are
illegitimate? The children conceived and born of a validly
existing marriage as determined by the first corollary
issue are legitimate. The fact and time of conception or
birth may be determined by proof or presumption
depending upon the time frame and the applicable law.
3. What properties constituted the estate of Hadji
Abdula at the time of his death on December 18, 1993?
The estate of Hadji Abdula consists of the following:
a. Properties acquired during the existence of a valid
marriage as determined by the first corollary issue are
conjugal properties and should be liquidated and divided
between the spouses under the Muslim Code, this being
the law in force at the time of Hadji Abdulas death.
b. Properties acquired under the conditions prescribed
in Article 144 of the Civil Code during the period August
30, 1950 to August 2, 1988 are conjugal properties and
should be liquidated and divided between the spouses
under the Muslim Code. However, the wives other than
the lawful wife as determined under the first corollary
issue may submit their respective evidence to prove that
any of such property is theirs exclusively.
c. Properties acquired under the conditions set out in
Articles 147 and 148 of the Family Code during the
period from and after August 3, 1988 are governed by
the rules on co-ownership.
d. Properties acquired under conditions not covered by
the preceding paragraphs and obtained from the
exclusive efforts or assets of Hadji Abdula are his
exclusive properties.
4. Who are the legal heirs of Hadji Abdula, and what are
their shares in intestacy? The following are Hadji
Abdulas legal heirs: (a) the lawful wife, as determined
under the first corollary issue, and (2) the children, as
determined under the second corollary issue.The Muslim
Code, which was already in force at the time of Hadji
Abdulas death, will govern the determination of their
respective shares.
As we have indicated early on, the evidence in this case
is inadequate to resolve in its entirety the main,
collateral and corollary issues herein presented and a
remand to the lower court is in order. Accordingly,
evidence should be received to supply the following
proofs: (1) the exact dates of the marriages performed
in accordance with Muslim rites or practices; (2) the
exact dates of the dissolutions of the marriages
terminated by death or by divorce in accordance with
Muslim rites and practices, thus indicating which
marriage resulted in a conjugal partnership under the
criteria prescribed by the first, second, and third
collateral issues and the first corollary issue; (3) the
exact periods of actual cohabitation (common life under
a common roof) of each of the marriages during which
time the parties lived together; (4) the identification of
specific properties acquired during each of the periods
of cohabitation referred to in paragraph 3 above, and
the manner and source of acquisition, indicating joint or
individual effort, thus showing the asset as owned
309
separately, conjugally or in co-ownership; and (5) the
identities of the children (legitimate or illegitimate)
begotten from the several unions, the dates of their
respective conceptions or births in relation to
paragraphs 1 and 2 above, thereby indicating their
status as lawful heirs.

Amicus curiae Congressman Mastura agrees that since

the marriage of petitioner to decedent took place in
1972 the Civil Code is the law applicable on the issue of
marriage settlement, [47] but espouses that customs or
established practices among Muslims in Mindanao must
also be applied with the force of law to the instant
case.[48] Congressman Masturas disquisition has
proven extremely helpful in impressing upon us the
background in which Islamic law and the Muslim Code
need to be interpreted, particularly the
interconnectedness of law and religion for Muslims[49]
and the impracticability of a strict application of the Civil
Code to plural marriages recognized under Muslim
law.[50] Regrettably, the Court is duty-bound to resolve
the instant case applying such laws and rights as are in
existence at the time the pertinent civil acts took place.
Corollarily, we are unable to supplant governing law
with customs, albeit how widely observed. In the same
manner, we cannot supply a perceived hiatus in P.D.
1083 concerning the distribution of property between
divorced spouses upon one of the spouses death.51

WHEREFORE, the decision dated September 26, 1994 of

the Fifth Sharia District Court of Cotabato City in Special
Proceeding No. 94-40 is SET ASIDE, and the instant
petition is REMANDED for the reception of additional
evidence and the resolution of the issues of the case
based on the guidelines set out in this Decision.

SO ORDERED.

310
Llorente vs. Court of Appeals (G.R. No. 124371,
November 23, 2000)
[G.R. No. 124371. November 23, 2000]
PAULA T. LLORENTE, petitioner, vs. COURT OF APPEALS
and ALICIA F. LLORENTE, respondents.
DECISION
PARDO, J.:
The Case
The case raises a conflict of laws issue.
What is before us is an appeal from the decision of the
Court of Appeals[1] modifying that of the Regional Trial
Court, Camarines Sur, Branch 35, Iriga City[2] declaring
respondent Alicia F. Llorente (herinafter referred to as
Alicia), as co-owners of whatever property she and the
deceased Lorenzo N. Llorente (hereinafter referred to as
Lorenzo) may have acquired during the twenty-five (25)
years that they lived together as husband and wife.
The Facts
The deceased Lorenzo N. Llorente was an enlisted
serviceman of the United States Navy from March 10,
1927 to September 30, 1957.[3]
On February 22, 1937, Lorenzo and petitioner Paula
Llorente (hereinafter referred to as Paula) were married
before a parish priest, Roman Catholic Church, in
Nabua, Camarines Sur.[4]
Before the outbreak of the Pacific War, Lorenzo departed
for the United States and Paula stayed in the conjugal
home in barrio Antipolo, Nabua, Camarines Sur.[5]
On November 30, 1943, Lorenzo was admitted to United
States citizenship and Certificate of Naturalization No.
5579816 was issued in his favor by the United States
District Court, Southern District of New York.[6]
Upon the liberation of the Philippines by the American
Forces in 1945, Lorenzo was granted an accrued leave
by the U. S. Navy, to visit his wife and he visited the
Philippines.[7] He discovered that his wife Paula was
pregnant and was living in and having an adulterous
relationship with his brother, Ceferino Llorente.[8]
On December 4, 1945, Paula gave birth to a boy
registered in the Office of the Registrar of Nabua as
Crisologo Llorente, with the certificate stating that the
child was not legitimate and the line for the fathers
name was left blank.[9]
Lorenzo refused to forgive Paula and live with her. In
fact, on February 2, 1946, the couple drew a written
agreement to the effect that (1) all the family
allowances allotted by the United States Navy as part of
Lorenzos salary and all other obligations for Paulas daily
maintenance and support would be suspended; (2) they
would dissolve their marital union in accordance with
judicial proceedings; (3) they would make a separate
agreement regarding their conjugal property acquired
during their marital life; and (4) Lorenzo would not
prosecute Paula for her adulterous act since she
voluntarily admitted her fault and agreed to separate
from Lorenzo peacefully. The agreement was signed by
both Lorenzo and Paula and was witnessed by Paulas
father and stepmother. The agreement was notarized by
Notary Public Pedro Osabel.[10]
Lorenzo returned to the United States and on November
16, 1951 filed for divorce with the Superior Court of the
State of California in and for the County of San Diego.
Paula was represented by counsel, John Riley, and
actively participated in the proceedings. On November
27, 1951, the Superior Court of the State of California,
for the County of San Diego found all factual allegations
to be true and issued an interlocutory judgment of
divorce.[11]
On December 4, 1952, the divorce decree became
final.[12]
In the meantime, Lorenzo returned to the Philippines.
On January 16, 1958, Lorenzo married Alicia F. Llorente
in Manila.[13] Apparently, Alicia had no knowledge of
the first marriage even if they resided in the same town
as Paula, who did not oppose the marriage or
cohabitation.[14]
From 1958 to 1985, Lorenzo and Alicia lived together as
husband and wife.[15] Their twenty-five (25) year union
produced three children, Raul, Luz and Beverly, all
surnamed Llorente.[16]
On March 13, 1981, Lorenzo executed a Last Will and
Testament. The will was notarized by Notary Public
Salvador M. Occiano, duly signed by Lorenzo with
attesting witnesses Francisco Hugo, Francisco Neibres
and Tito Trajano. In the will, Lorenzo bequeathed all his
property to Alicia and their three children, to wit:
(1) I give and bequeath to my wife ALICIA R. FORTUNO
exclusively my residential house and lot, located at San
Francisco, Nabua, Camarines Sur, Philippines, including
ALL the personal properties and other movables or
belongings that may be found or existing therein;
(2) I give and bequeath exclusively to my wife Alicia R.
Fortuno and to my children, Raul F. Llorente, Luz F.
Llorente and Beverly F. Llorente, in equal shares, all my
real properties whatsoever and wheresoever located,
specifically my real properties located at Barangay Aro-
311
Aldao, Nabua, Camarines Sur; Barangay Paloyon,
Nabua, Camarines Sur; Barangay Baras, Sitio Puga,
Nabua, Camarines Sur; and Barangay Paloyon, Sitio
Nalilidong, Nabua, Camarines Sur;
(3) I likewise give and bequeath exclusively unto my
wife Alicia R. Fortuno and unto my children, Raul F.
Llorente, Luz F. Llorente and Beverly F. Llorente, in
equal shares, my real properties located in Quezon City
Philippines, and covered by Transfer Certificate of Title
No. 188652; and my lands in Antipolo, Rizal, Philippines,
covered by Transfer Certificate of Title Nos. 124196 and
165188, both of the Registry of Deeds of the province
of Rizal, Philippines;
(4) That their respective shares in the above-mentioned
properties, whether real or personal properties, shall not
be disposed of, ceded, sold and conveyed to any other
persons, but could only be sold, ceded, conveyed and
disposed of by and among themselves;
(5) I designate my wife ALICIA R. FORTUNO to be the
sole executor of this my Last Will and Testament, and in
her default or incapacity of the latter to act, any of my
children in the order of age, if of age;
(6) I hereby direct that the executor named herein or
her lawful substitute should served (sic) without bond;
(7) I hereby revoke any and all my other wills, codicils,
or testamentary dispositions heretofore executed,
signed, or published, by me;
(8) It is my final wish and desire that if I die, no relatives
of mine in any degree in the Llorentes Side should ever
bother and disturb in any manner whatsoever my wife
Alicia R. Fortunato and my children with respect to any
real or personal properties I gave and bequeathed
respectively to each one of them by virtue of this Last
Will and Testament.[17]
On December 14, 1983, Lorenzo filed with the Regional
Trial Court, Iriga, Camarines Sur, a petition for the
probate and allowance of his last will and testament
wherein Lorenzo moved that Alicia be appointed Special
Administratrix of his estate.[18]
On January 18, 1984, the trial court denied the motion
for the reason that the testator Lorenzo was still
alive.[19]
On January 24, 1984, finding that the will was duly
executed, the trial court admitted the will to
probate.[20]
On June 11, 1985, before the proceedings could be
terminated, Lorenzo died.[21]
On September 4, 1985, Paula filed with the same court
a petition[22] for letters of administration over Lorenzos
estate in her favor. Paula contended (1) that she was
Lorenzos surviving spouse, (2) that the various property
were acquired during their marriage, (3) that Lorenzos
will disposed of all his property in favor of Alicia and her
children, encroaching on her legitime and 1/2 share in
the conjugal property.[23]
On December 13, 1985, Alicia filed in the testate
proceeding (Sp. Proc. No. IR-755), a petition for the
issuance of letters testamentary.[24]
On October 14, 1985, without terminating the testate
proceedings, the trial court gave due course to Paulas
petition in Sp. Proc. No. IR-888.[25]
On November 6, 13 and 20, 1985, the order was
published in the newspaper Bicol Star.[26]
On May 18, 1987, the Regional Trial Court issued a joint
decision, thus:
Wherefore, considering that this court has so found that
the divorce decree granted to the late Lorenzo Llorente
is void and inapplicable in the Philippines, therefore the
marriage he contracted with Alicia Fortunato on January
16, 1958 at Manila is likewise void. This being so the
petition of Alicia F. Llorente for the issuance of letters
testamentary is denied. Likewise, she is not entitled to
receive any share from the estate even if the will
especially said so her relationship with Lorenzo having
gained the status of paramour which is under Art. 739
(1).
On the other hand, the court finds the petition of Paula
Titular Llorente, meritorious, and so declares the
intrinsic disposition of the will of Lorenzo Llorente dated
March 13, 1981 as void and declares her entitled as
conjugal partner and entitled to one-half of their
conjugal properties, and as primary compulsory heir,
Paula T. Llorente is also entitled to one-third of the
estate and then one-third should go to the illegitimate
children, Raul, Luz and Beverly, all surname (sic)
Llorente, for them to partition in equal shares and also
entitled to the remaining free portion in equal shares.
Petitioner, Paula Llorente is appointed legal
administrator of the estate of the deceased, Lorenzo
Llorente. As such let the corresponding letters of
administration issue in her favor upon her filing a bond
in the amount (sic) of P100,000.00 conditioned for her
to make a return to the court within three (3) months a
true and complete inventory of all goods, chattels,
rights, and credits, and estate which shall at any time
come to her possession or to the possession of any other
person for her, and from the proceeds to pay and
discharge all debts, legacies and charges on the same,
or such dividends thereon as shall be decreed or
required by this court; to render a true and just account
of her administration to the court within one (1) year,
and at any other time when required by the court and
312
to perform all orders of this court by her to be
performed.
On the other matters prayed for in respective petitions
for want of evidence could not be granted.
SO ORDERED.[27]
In time, Alicia filed with the trial court a motion for
reconsideration of the aforequoted decision.[28]
On September 14, 1987, the trial court denied Alicias
motion for reconsideration but modified its earlier
decision, stating that Raul and Luz Llorente are not
children legitimate or otherwise of Lorenzo since they
were not legally adopted by him.[29] Amending its
decision of May 18, 1987, the trial court declared
Beverly Llorente as the only illegitimate child of Lorenzo,
entitling her to one-third (1/3) of the estate and one-
third (1/3) of the free portion of the estate.[30]
On September 28, 1987, respondent appealed to the
Court of Appeals.[31]
On July 31, 1995, the Court of Appeals promulgated its
decision, affirming with modification the decision of the
trial court in this wise:
WHEREFORE, the decision appealed from is hereby
AFFIRMED with the MODIFICATION that Alicia is
declared as co-owner of whatever properties she and
the deceased may have acquired during the twenty-five
(25) years of cohabitation.
SO ORDERED.[32]
On August 25, 1995, petitioner filed with the Court of
Appeals a motion for reconsideration of the
decision.[33]
On March 21, 1996, the Court of Appeals,[34] denied
the motion for lack of merit.
Hence, this petition.[35]
The Issue
Stripping the petition of its legalese and sorting through
the various arguments raised,[36] the issue is simple.
Who are entitled to inherit from the late Lorenzo N.
Llorente?
We do not agree with the decision of the Court of
Appeals. We remand the case to the trial court for ruling
on the intrinsic validity of the will of the deceased.
The Applicable Law
The fact that the late Lorenzo N. Llorente became an
American citizen long before and at the time of: (1) his
divorce from Paula; (2) marriage to Alicia; (3) execution
of his will; and (4) death, is duly established, admitted
and undisputed.
Thus, as a rule, issues arising from these incidents are
necessarily governed by foreign law.
The Civil Code clearly provides:
Art. 15. Laws relating to family rights and duties, or to
the status, condition and legal capacity of persons are
binding upon citizens of the Philippines, even though
living abroad.
Art. 16. Real property as well as personal property is
subject to the law of the country where it is situated.
However, intestate and testamentary succession, both
with respect to the order of succession and to the
amount of successional rights and to the intrinsic
validity of testamentary provisions, shall be regulated
by the national law of the person whose succession is
under consideration, whatever may be the nature of the
property and regardless of the country wherein said
property may be found. (emphasis ours)
True, foreign laws do not prove themselves in our
jurisdiction and our courts are not authorized to take
judicial notice of them. Like any other fact, they must
be alleged and proved.[37]
While the substance of the foreign law was pleaded, the
Court of Appeals did not admit the foreign law. The
Court of Appeals and the trial court called to the fore the
renvoi doctrine, where the case was referred back to the
law of the decedents domicile, in this case, Philippine
law.
We note that while the trial court stated that the law of
New York was not sufficiently proven, in the same
breath it made the categorical, albeit equally unproven
statement that American law follows the domiciliary
theory hence, Philippine law applies when determining
the validity of Lorenzos will.[38]
First, there is no such thing as one American law. The
"national law" indicated in Article 16 of the Civil Code
cannot possibly apply to general American law. There is
no such law governing the validity of testamentary
provisions in the United States. Each State of the union
has its own law applicable to its citizens and in force only
within the State. It can therefore refer to no other than
the law of the State of which the decedent was a
resident.[39] Second, there is no showing that the
application of the renvoi doctrine is called for or required
by New York State law.
313
The trial court held that the will was intrinsically invalid
since it contained dispositions in favor of Alice, who in
the trial courts opinion was a mere paramour. The trial
court threw the will out, leaving Alice, and her two
children, Raul and Luz, with nothing.
The Court of Appeals also disregarded the will. It
declared Alice entitled to one half (1/2) of whatever
property she and Lorenzo acquired during their
cohabitation, applying Article 144 of the Civil Code of
the Philippines.
The hasty application of Philippine law and the complete
disregard of the will, already probated as duly executed
in accordance with the formalities of Philippine law, is
fatal, especially in light of the factual and legal
circumstances here obtaining.
Validity of the Foreign Divorce
In Van Dorn v. Romillo, Jr.[40] we held that owing to
the nationality principle embodied in Article 15 of the
Civil Code, only Philippine nationals are covered by the
policy against absolute divorces, the same being
considered contrary to our concept of public policy and
morality. In the same case, the Court ruled that aliens
may obtain divorces abroad, provided they are valid
according to their national law.
Citing this landmark case, the Court held in Quita v.
Court of Appeals,[41] that once proven that respondent
was no longer a Filipino citizen when he obtained the
divorce from petitioner, the ruling in Van Dorn would
become applicable and petitioner could very well lose
her right to inherit from him.
In Pilapil v. Ibay-Somera,[42] we recognized the divorce
obtained by the respondent in his country, the Federal
Republic of Germany. There, we stated that divorce and
its legal effects may be recognized in the Philippines
insofar as respondent is concerned in view of the
nationality principle in our civil law on the status of
persons.
For failing to apply these doctrines, the decision of the
Court of Appeals must be reversed.[43] We hold that
the divorce obtained by Lorenzo H. Llorente from his
first wife Paula was valid and recognized in this
jurisdiction as a matter of comity. Now, the effects of
this divorce (as to the succession to the estate of the
decedent) are matters best left to the determination of
the trial court.
Validity of the Will
The Civil Code provides:
Art. 17. The forms and solemnities of contracts, wills,
and other public instruments shall be governed by the
laws of the country in which they are executed.
When the acts referred to are executed before the
diplomatic or consular officials of the Republic of the
Philippines in a foreign country, the solemnities
established by Philippine laws shall be observed in their
execution. (underscoring ours)
The clear intent of Lorenzo to bequeath his property to
his second wife and children by her is glaringly shown in
the will he executed. We do not wish to frustrate his
wishes, since he was a foreigner, not covered by our
laws on family rights and duties, status, condition and
legal capacity.[44]
Whether the will is intrinsically valid and who shall
inherit from Lorenzo are issues best proved by foreign
law which must be pleaded and proved. Whether the will
was executed in accordance with the formalities
required is answered by referring to Philippine law.In
fact, the will was duly probated.
As a guide however, the trial court should note that
whatever public policy or good customs may be involved
in our system of legitimes, Congress did not intend to
extend the same to the succession of foreign nationals.
Congress specifically left the amount of successional
rights to the decedent's national law.[45]
Having thus ruled, we find it unnecessary to pass upon
the other issues raised.
The Fallo
WHEREFORE, the petition is GRANTED. The decision of
the Court of Appeals in CA-G. R. SP No. 17446
promulgated on July 31, 1995 is SET ASIDE.
In lieu thereof, the Court REVERSES the decision of the
Regional Trial Court and RECOGNIZES as VALID the
decree of divorce granted in favor of the deceased
Lorenzo N. Llorente by the Superior Court of the State
of California in and for the County of San Diego, made
final on December 4, 1952.
Further, the Court REMANDS the cases to the court of
origin for determination of the intrinsic validity of
Lorenzo N. Llorentes will and determination of the
parties successional rights allowing proof of foreign law
with instructions that the trial court shall proceed with
all deliberate dispatch to settle the estate of the
deceased within the framework of the Rules of Court.
No costs.
SO ORDERED.
314
315

Testate Estate of Suntay (JULY 31, 1964)
G.R. Nos. L-3087 and L-3088 July 31, 1954
In re: Testate Estate of the deceased JOSE B. SUNTAY.
SILVINO SUNTAY, petitioner-appellant,
vs.
In re: Intestate Estate of the deceased JOSE B. SUNTAY,
FEDERICO C. SUNTAY, administrator-appellee.
Claro M. Recto for appellant.
Sison and Aruego for appellee.
PADILLA, J.:
This is an appeal from a decree of the Court of First
Instance of Bulacan disallowing the alleged will and
testament executed in Manila on November 1929, and
the alleged last will and testament executed in
Kulangsu, Amoy, China, on 4 January 1931, by Jose B.
Suntay. The value of the estate left by the deceased is
more than P50,000.
On 14 May 1934 Jose B. Suntay, a Filipino citizen and
resident of the Philippines, died in the city of Amoy,
Fookien province, Republic of China, leaving real and
personal properties in the Philippines and a house in
Amoy, Fookien province, China, and children by the first
marriage had with the late Manuela T. Cruz namely,
Apolonio, Concepcion, Angel, Manuel, Federico, Ana,
Aurora, Emiliano, and Jose, Jr. and a child named Silvino
by the second marriage had with Maria Natividad Lim
Billian who survived him. Intestate proceedings were
instituted in the Court of First Instance of Bulacan
(special proceedings No. 4892) and after hearing letters
of administration were issued to Apolonio Suntay. After
the latter's death Federico C. Suntay was appointed
administrator of the estate. On 15 October 1934 the
surviving widow filed a petition in the Court of First
Instance of Bulacan for the probate of a last will and
testament claimed to have been executed and signed in
the Philippines on November 1929 by the late Jose B.
Suntay. This petition was denied because of the loss of
said will after the filing of the petition and before the
hearing thereof and of the insufficiency of the evidence
to establish the loss of the said will. An appeal was taken
from said order denying the probate of the will and this
Court held the evidence before the probate court
sufficient to prove the loss of the will and remanded the
case to the Court of First Instance of Bulacan for the
further proceedings (63 Phil., 793). In spite of the fact
that a commission from the probate court was issued on
24 April 1937 for the taking of the deposition of Go Toh,
an attesting witness to the will, on 7 February 1938 the
probate court denied a motion for continuance of the
hearing sent by cablegram from China by the surviving
widow and dismissed the petition. In the meantime the
Pacific War supervened. After liberation, claiming that
he had found among the files, records and documents
of his late father a will and testament in Chinese
characters executed and signed by the deceased on 4
January 1931 and that the same was filed, recorded and
probated in the Amoy district court, Province of Fookien,
China, Silvino Suntay filed a petition in the intestate
proceedings praying for the probate of the will executed
in the Philippines on November 1929 (Exhibit B) or of
the will executed in Amoy, Fookien, China, on 4 January
1931 (Exhibit N).
There is no merit in the contention that the petitioner
Silvino Suntay and his mother Maria Natividad Lim
Billian are estopped from asking for the probate of the
lost will or of the foreign will because of the transfer or
assignment of their share right, title and interest in the
estate of the late Jose B. Suntay to Jose G. Gutierrez
and the spouses Ricardo Gutierrez and Victoria Goño
and the subsequent assignment thereof by the
assignees to Francisco Pascual and by the latter to
Federico C. Suntay, for the validity and legality of such
assignments cannot be threshed out in this proceedings
which is concerned only with the probate of the will and
testament executed in the Philippines on November
1929 or of the foreign will allegedly executed in Amoy
on 4 January 1931 and claimed to have been probated
in the municipal district court of Amoy, Fookien
province, Republic of China.
As to prescription, the dismissal of the petition for
probate of the will on 7 February 1938 was no bar to the
filing of this petition on 18 June 1947, or before the
expiration of ten years.
As to the lost will, section 6, Rule 77, provides:
No will shall be proved as a lost or destroyed will unless
the execution and validity of the same be established,
and the will is proved to have been in existence at the
time of the death of the testator, or is shown to have
been fraudulently or accidentally destroyed in the
lifetime of the testator without his knowledge, nor
unless its provisions are clearly and distinctly proved by
at least two credible witnesses. When a lost will is
proved, the provisions thereof must be distinctly stated
and certified by the judge, under the seal of the court,
and the certificate must be filed and recorded as other
wills are filed and recorded.
The witnesses who testified to the provisions of the lost
will are Go Toh, an attesting witness, Anastacio Teodoro
and Ana Suntay. Manuel Lopez, who was an attesting
witness to the lost will, was dead at the time of the
hearing of this alternative petition. In his deposition Go
Toh testifies that he was one of the witnesses to the lost
will consisting of twenty-three sheets signed by Jose B.
Suntay at the bottom of the will and each and every
page thereof in the presence of Alberto Barretto, Manuel
316
Lopez and himself and underneath the testator's handkerchief [Exhibit C] (p. 32, t. s. n., hearing of 13
signature the attesting witnesses signed and each of October 1947); that he checked up the signatures on
them signed the attestation clause and each and every the envelope Exhibit A with those on the will placed in
page of the will in the presence of the testator and of the envelope (p. 33, t. s. n., Id.); that the will was
the other witnesses (answers to the 31st, 41st, 42nd, exactly the same as the draft Exhibit B (pp. 32, 47, 50,
49th, 50th, 55th and 63rd interrogatories, Exhibit D-1), t. s. n., Id.).
but did not take part in the drafting thereof (answer to
the 11th interrogatory, Id.); that he knew the contents If the will was snatched after the delivery thereof by Go
of the will written in Spanish although he knew very little Toh to Anastacio Teodoro And returned by the latter to
of that language (answers to the 22nd and 23rd the former because they could not agree on the amount
interrogatories and to X-2 cross-interrogatory, Id.) and of fees, the former coming to the latter's office straight
all he knows about the contends of the lost will was from the boat (p. 315, t. s. n., hearing of 19 January
revealed to him by Jose B. Suntay at the time it was 1948) that brought him to the Philippines from Amoy,
executed (answers to the 25th interrogatory and to X-4 and that delivery took place in November 1934 (p. 273,
and X-8 cross-interrogatories, Id.); that Jose B. Suntay t. s. n., Id.), then the testimony of Ana Suntay that she
told him that the contents thereof are the same as those saw and heard her brother Apolonio Suntay read the will
of the draft (Exhibit B) (answers to the 33rd sometime in September 1934 (p. 524, t. s. n., hearing
interrogatory and to X-8 cross-interrogatory, Id.) which of 24 February 1948), must not be true.
he saw in the office of Alberto Barretto in November
1929 when the will was signed (answers to the 69th,
Although Ana Suntay would be a good witness because
72nd, and 74th interrogatories, Id); that Alberto
she was testifying against her own interest, still the fact
Barretto handed the draft and said to Jose B. Suntay:
remains that she did not read the whole will but only the
"You had better see if you want any correction"
adjudication (pp. 526-8, 530-1, 542, t. s. n., Id.) and
(answers to the 81st, 82nd and 83rd interrogatories,
saw only the signature, of her father and of the
Id.); that "after checking Jose B. Suntay put the "Exhibit
witnesses Go Toh, Manuel Lopez and Alberto Barretto
B" in his pocket and had the original signed and
(p. 546, t. s. n.,Id.). But her testimony on cross-
executed" (answers to the 91st interrogatory, and to X-
examination that she read the part of the will on
18 cross-interrogatory, Id.); that Mrs. Suntay had the
adjudication is inconsistent with her testimony in chief
draft of the will (Exhibit B) translated into Chinese and
that after Apolonio had read that part of the will he
he read the translation (answers to the 67th
turned over or handed the document to Manuel who
interrogatory, Id.); that he did not read the will and did
went away (p. 528, t. s. n., Id.).
not compare it (check it up) with the draft (Exhibit B)
(answers to X-6 and X-20 cross-interrogatories, Id.).
If it is true that Go Toh saw the draft Exhibit B in the
office of Alberto Barretto in November 1929 when the
Ana Suntay testifies that sometime in September 1934
will was signed, then the part of his testimony that
in the house of her brother Apolonio Suntay she learned
Alberto Barretto handed the draft to Jose B. Suntay to
that her father left a will "because of the arrival of my
whom he said: "You had better see if you want any
brother Manuel Suntay, who was bringing along with
correction" and that "after checking Jose B. Suntay put
him certain document and he told us or he was telling
the "Exhibit B" in his pocket and had the original signed
us that it was the will of our father Jose B. Suntay which
and executed" cannot be true, for it was not the time for
was taken from Go Toh. ..." (p. 524, t. s. n., hearing of
correcting the draft of the will, because it must have
24 February 1948); that she saw her brother Apolonio
been corrected before and all corrections and additions
Suntay read the document in her presence and of
written in lead pencil must have been inserted and
Manuel and learned of the adjudication made in the will
copied in the final draft of the will which was signed on
by her father of his estate, to wit: one-third to his
that occasion. The bringing in for the draft (Exhibit B)
children, one-third to Silvino and his mother and the
on that occasion is just to fit it within the framework of
other third to Silvino, Apolonio, Concepcion and Jose, Jr.
the appellant's theory. At any rate, all of Go Toh's
(pp. 526-8, 530-1, 542, t. s. n. Id.); that "after Apolonio
testimony by deposition on the provisions of the alleged
read that portion, then he turned over the document to
lost will is hearsay, because he came to know or he
Manuel, and he went away," (p. 528, t. s. n., Id.). On
learned to them from information given him by Jose B.
cross-examination, she testifies that she read the part
Suntay and from reading the translation of the draft
of the will on adjudication to know what was the share
(Exhibit B) into Chinese.
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., Much stress is laid upon the testimony of Federico C.
Id.). 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
Anastacio Teodoro testifies that one day in November
the estate (p. 229, t. s. n., hearing of 24 October 1947).
1934 (p. 273, t. s. n., hearing of 19 January 1948),
But this witness testified to oppose the appointment of
before the last postponement of the hearing granted by
a co-administrator of the estate, for the reason that he
the Court, Go Toh arrived at his law office in the De los
had acquired the interest of the surviving widow not only
Reyes Building and left an envelope wrapped in red
in the estate of her deceased husband but also in the
317
conjugal property (pp. 148, 205, 228, 229, 231, t. s. n.,
Id.) Whether he read the original will or just the copy
thereof (Exhibit B) is not clear. For him the important
point was that he had acquired all the share,
participation and interest of the surviving widow and of
the only child by the second marriage in the estate of
his deceased father. Be that as it may, his testimony
that under the will the surviving widow would take two-
thirds of the estate of the late Jose B. Suntay is at
variance with Exhibit B and the testimony of Anastacio
Teodoro. According to the latter, the third for strict
legitime is for the ten children; the third for betterment
is for Silvino, Apolonio, Concepcion and Jose Jr.; and the
third for free disposal is for the surviving widow and her
child Silvino.
Hence, granting that there was a will duly executed by
Jose B. Suntay placed in the envelope (Exhibit A) and
that it was in existence at the time of, and not revoked
before, his death, still the testimony of Anastacio
Teodoro alone falls short of the legal requirement that
the provisions of the lost will must be "clearly and
distinctly proved by at least two credible witnesses."
Credible witnesses mean competent witnesses and
those who testify to facts from or upon hearsay are
neither competent nor credible witnesses.
On the other hand, Alberto Barretto testifies that in the
early part of 1929 he prepared or drew up two mills for
Jose B. Suntay at the latter's request, the rough draft of
the first will was in his own handwriting, given to Manuel
Lopez for the final draft or typing and returned to him;
that after checking up the final with the rough draft he
tore it and returned the final draft to Manuel Lopez; that
this draft was in favor of all the children and the widow
(pp. 392-4, 449, t. s. n., hearing of 21 February 1948);
that two months later Jose B. Suntay and Manuel Lopez
called on him and the former asked him to draw up
another will favoring more his wife and child Silvino;
that he had the rough draft of the second will typed (pp.
395, 449 t. s. n., Id.) and gave it to Manuel Lopez (p.
396, t. s. n., Id.); that he did not sign as witness the
second will of Jose B. Suntay copied from the
typewritten draft [Exhibit B] (p. 420, t. s. n.,Id.); that
the handwritten insertions or additions in lead pencil to
Exhibit B are not his (pp. 415-7 435-6, 457, t. s. n.,Id.);
that the final draft of the first will made up of four or
five pages (p. 400, t. s. n., Id.) was signed and
executed, two or three months after Suntay and Lopez
had called on him (pp. 397-8, 403, 449, t. s. n., Id.) in
his office at the Cebu Portland Cement in the China
Banking Building on Dasmariñas street by Jose B.
Suntay, Manuel Lopez and a Chinaman who had all come
from Hagonoy (p. 398, t. s. n., Id.); that on that
occasion they brought an envelope (Exhibit A) where the
following words were written: "Testamento de Jose B.
Suntay" (pp. 399, 404, t. s. n., Id.); that after the
signing of the will it was placed inside the envelope
(Exhibit A) together with an inventory of the properties
of Jose B. Suntay and the envelope was sealed by the
signatures of the testator and the attesting witnesses
(pp. 398, 401, 441, 443, 461, t. s. n., Id.); that he again
saw the envelope (Exhibit A) in his house one Saturday
in the later part of August 1934, brought by Go Toh and
it was then in perfect condition (pp. 405-6, 411, 440-2,
t. s. n.,Id.); that on the following Monday Go Toh went
to his law office bringing along with him the envelope
(Exhibit A) in the same condition; that he told Go Toh
that he would charge P25,000 as fee for probating the
will (pp. 406, 440-2,Id.); that Go Toh did not leave the
envelope (Exhibit A) either in his house or in his law
office (p. 407, t. s. n., Id.); that Go Toh said he wanted
to keep it and on no occasion did Go Toh leave it to him
(pp. 409, 410, t. s. n., Id.).
The testimony of Go Toh taken and heard by Assistant
Fiscal F. B. Albert in connection with the complaint for
estafa filed against Manuel Suntay for the alleged
snatching of the envelope (Exhibit A), corroborates the
testimony of Alberto Barretto to the effect that only one
will was signed by Jose B. Suntay at his office in which
he (Alberto Barretto), Manuel Lopez and Go Toh took
part as attesting witnesses (p. 15, t. s. n., Exhibit 6).
Go Toh testified before the same assistant fiscal that he
did not leave the will in the hands of Anastacio Teodoro
(p. 26, t. s. n., Exhibit 6). He said, quoting his own
words, "Because I can not give him this envelope even
though the contract (on fees) was signed. I have to
bring that document to court or to anywhere else
myself." (p. 27, t. s. n., Exhibit 6).
As to the will claimed to have been executed on 4
January 1931 in Amoy, China, the law on the point in
Rule 78. Section 1 of the rule provides:
Wills proved and allowed in a foreign country, according
to the laws of such country, may be allowed, filed, and
recorded by the proper Court of First Instance in the
Philippines.
Section 2 provides:
When a copy of such will and the allowance thereof, duly
authenticated, is filed with a petition for allowance in the
Philippines, by the executor or other person interested,
in the court having jurisdiction, such court shall fix a
time and place for the hearing, and cause notice thereof
to be given as in case of an original will presented for
allowance.
Section 3 provides:
If it appears at the hearing that the will should be
allowed in the Philippines, the court shall so allow it, and
a certificate of its allowance, signed by the Judge, and
attested by the seal of the courts, to which shall be
attached a copy of the will, shall be filed and recorded
by the clerk, and the will shall have the same effect as
if originally proved and allowed in such court.
The fact that the municipal district court of Amoy, China,
is a probate court must be proved. The law of China on
procedure in the probate or allowance of wills must also
318
be proved. The legal requirements for the execution of Judge
a valid will in China in 1931 should also be established
by competent evidence. There is no proof on these (Exhibit N-13, p. 89 Folder of Exhibits.).
points. The unverified answers to the questions
propounded by counsel for the appellant to the Consul
does not purport to probate or allow the will which was
General of the Republic of China set forth in Exhibits R-
the subject of the proceedings. In view thereof, the will
1 and R-2, objected to by counsel for the appellee, are
and the alleged probate thereof cannot be said to have
inadmissible, because apart from the fact that the office
been done in accordance with the accepted basic and
of Consul General does not qualify and make the person
fundamental concepts and principles followed in the
who holds it an expert on the Chinese law on procedure
probate and allowance of wills. Consequently, the
in probate matters, if the same be admitted, the adverse
authenticated transcript of proceedings held in the
party would be deprived of his right to confront and
municipal district court of Amoy, China, cannot be
cross-examine the witness. Consuls are appointed to
deemed and accepted as proceedings leading to the
attend to trade matters. Moreover, it appears that all
probate or allowance of a will and, therefore, the will
the proceedings had in the municipal district court of
referred to therein cannot be allowed, filed and recorded
Amoy were for the purpose of taking the testimony of
by a competent court of this country.
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 The decree appealed from is affirmed, without
municipal district court of Amoy is a probate court and pronouncement as to costs.
on the Chinese law of procedure in probate matters, it
may be presumed that the proceedings in the matter of
probating or allowing a will in the Chinese courts are the
a deposition or to a perpetuation of testimony, and even
if it were so it does not measure same as those provided
for in our laws on the subject. It is a proceedings in rem
and for the validity of such proceedings personal notice
or by publication or both to all interested parties must
be made. The interested parties in the case were known
to reside in the Philippines. The evidence shows that no
such notice was received by the interested parties
residing in the Philippines (pp. 474, 476, 481, 503-4, t.
s. n., hearing of 24 February 1948). The proceedings
had in the municipal district court of Amoy, China, may
be likened toe or come up to the standard of such
proceedings in the Philippines for lack of notice to all
interested parties and the proceedings were held at the
back of such interested parties.

The order of the municipal district court of Amoy, China,

which reads as follows:

ORDER:

SEE BELOW

The above minutes were satisfactorily confirmed by the

interrogated parties, who declare that there are no
errors, after said minutes were loudly read and
announced actually in the court.

Done and subscribed on the Nineteenth day of the

English month of the 35th year of the Republic of China
in the Civil Section of the Municipal District Court of
Amoy, China.

HUANG KUANG CHENG

Clerk of Court

CHIANG TENG HWA

319
320
 appointed as ancillary administrator on July 24,
1986.[8]
Ancheta vs. Guersey-Dalaygon (G.R. No. 139868,
June 8, 2006) On October 19, 1987, petitioner filed in Special
Proceeding No. 9625, a motion to declare Richard and
Kyle as heirs of Audrey.[9] Petitioner also filed on
ALONZO Q. ANCHETA, G.R. No. 139868
October 23, 1987, a project of partition of Audreys
Petitioner,
estate, with Richard being apportioned the undivided
- versus
interest in the Makati property, 48.333 shares in A/G
CANDELARIA GUERSEY-
Interiors, Inc., and P9,313.48 from the Citibank current
DALAYGON, Respondent.
account; and Kyle, the undivided interest in the Makati
property, 16,111 shares in A/G Interiors, Inc., and
Promulgated:
P3,104.49 in cash.[10]
June 8, 2006
The motion and project of partition was granted and
AUSTRIA-MARTINEZ, J.:
approved by the trial court in its Order dated February
12, 1988.[11] The trial court also issued an Order on
April 7, 1988, directing the Register of Deeds of Makati
Spouses Audrey ONeill (Audrey) and W. Richard
to cancel TCT No. 69792 in the name of Richard and to
Guersey (Richard) were American citizens who have
issue a new title in the joint names of the Estate of W.
resided in the Philippines for 30 years. They have an
Richard Guersey ( undivided interest) and Kyle (
adopted daughter, Kyle Guersey Hill (Kyle). On July 29,
undivided interest); directing the Secretary of A/G
1979, Audrey died, leaving a will. In it, she bequeathed
Interiors, Inc. to transfer 48.333 shares to the Estate of
her entire estate to Richard, who was also designated
W. RichardGuersey and 16.111 shares to Kyle; and
as executor.[1] The will was admitted to probate before
directing the Citibank to release the amount of
the Orphans Court of Baltimore, Maryland, U.S.A, which
P12,417.97 to the ancillary administrator for distribution
named James N. Phillips as executor due to Richards
to the heirs.[12]
renunciation of his appointment.[2] The court also
named Atty. Alonzo Q. Ancheta (petitioner) of the
Consequently, the Register of Deeds of Makati issued on
Quasha Asperilla Ancheta Pena & Nolasco Law Offices as
June 23, 1988, TCT No. 155823 in the names of the
ancillary administrator.[3]
Estate of W. Richard Guersey and Kyle.[13]
In 1981, Richard married Candelaria Guersey-Dalaygon
Meanwhile, the ancillary administrator in Special
(respondent) with whom he has two children, namely,
Proceeding No. M-888 also filed a project of partition
Kimberly and Kevin.
wherein 2/5 of Richards undivided interest in the Makati
property was allocated to respondent, while 3/5 thereof
On October 12, 1982, Audreys will was also admitted to
were allocated to Richards three children. This was
probate by the then Court of First Instance of Rizal,
opposed by respondent on the ground that under the
Branch 25, Seventh Judicial District, Pasig, in Special
law of the State of Maryland, a legacy passes to the
Proceeding No. 9625.[4] As administrator of Audreys
legatee the entire interest of the testator in the property
estate in the Philippines, petitioner filed an inventory
subject of the legacy.[14] Since Richard left his entire
and appraisal of the following properties: (1) Audreys
estate to respondent, except for his rights and interests
conjugal share in real estate with improvements located
over the A/G Interiors, Inc, shares, then his entire
at 28 Pili Avenue, Forbes Park, Makati, Metro Manila,
undivided interest in the Makati property should be
valued at P764,865.00 (Makati property); (2) a current
given to respondent.
account in Audreys name with a cash balance of
P12,417.97; and (3) 64,444 shares of stock in A/G
The trial court found merit in respondents opposition,
Interiors, Inc. worth P64,444.00.[5]
and in its Order dated December 6, 1991, disapproved
the project of partition insofar as it affects the Makati
On July 20, 1984, Richard died, leaving a will, wherein
property. The trial court also adjudicated Richards entire
he bequeathed his entire estate to respondent, save for
undivided interest in theMakati property to
his rights and interests over the A/G Interiors, Inc.
respondent.[15]
shares, which he left to Kyle.[6] The will was also
admitted to probate by the Orphans Court of Ann
On October 20, 1993, respondent filed with the Court of
Arundel, Maryland, U.S.A, and James N. Phillips was
Appeals (CA) an amended complaint for the annulment
likewise appointed as executor, who in turn, designated
of the trial courts Orders dated February 12, 1988 and
Atty. William Quasha or any member of the Quasha
April 7, 1988, issued in Special Proceeding No.
Asperilla Ancheta Pena & Nolasco Law Offices, as
9625.[16] Respondent contended that petitioner
ancillary administrator.
willfully breached his fiduciary duty when he
disregarded the laws of the State of Maryland on the
Richards will was then submitted for probate before the
distribution of Audreys estate in accordance with her
Regional Trial Court of Makati, Branch 138, docketed as
will. Respondent argued that since Audrey devised her
Special Proceeding No. M-888.[7] Atty. Quasha was
entire estate to Richard, then the Makati property should
321
be wholly adjudicated to him, and not merely thereof,
and since Richard left his entire estate, except for his
rights and interests over the A/G Interiors, Inc., to
respondent, then the entire Makati property should now
pertain to respondent.
Petitioner filed his Answer denying respondents
allegations. Petitioner contended that he acted in good
faith in submitting the project of partition before the trial
court in Special Proceeding No. 9625, as he had no
knowledge of the State ofMarylands laws on testate and
intestate succession. Petitioner alleged that he believed
that it is to the best interests of the surviving children
that Philippine law be applied as they would receive their
just shares. Petitioner also alleged that the orders
sought to be annulled are already final and executory,
and cannot be set aside.
On March 18, 1999, the CA rendered the assailed
Decision annulling the trial courts Orders dated February
12, 1988 and April 7, 1988, in Special Proceeding No.
9625.[17] The dispositive portion of the assailed
Decision provides:
WHEREFORE, the assailed Orders of February 12, 1998
and April 7, 1988 are hereby ANNULLED and, in lieu
thereof, a new one is entered ordering:
(a) The adjudication of the entire estate of Audrey ONeill
Guersey in favor of the estate of W. Richard Guersey;
and
(b) The cancellation of Transfer Certificate of Title No.
15583 of the Makati City Registry and the issuance of a
new title in the name of the estate of W. Richard
Guersey.
SO ORDERED.[18]
Petitioner filed a motion for reconsideration, but this was
denied by the CA per Resolution dated August 27,
1999.[19]
Hence, the herein petition for review on certiorari under
Rule 45 of the Rules of Court alleging that the CA gravely
erred in not holding that:
A) THE ORDERS OF 12 FEBRUARY 1988 AND 07 APRIL
1988 IN SPECIAL PROCEEDINGS NO. 9625 IN THE
MATTER OF THE PETITION FOR PROBATE OF THE WILL
OF THE DECEASED AUDREY GUERSEY, ALONZO Q.
ANCHETA, ANCILLARY ADMINISTRATOR, ARE VALID
AND BINDING AND HAVE LONG BECOME FINAL AND
HAVE BEEN FULLY IMPLEMENTED AND EXECUTED AND
CAN NO LONGER BE ANNULLED.
B) THE ANCILLARY ADMINISTRATOR HAVING ACTED IN
GOOD FAITH, DID NOT COMMIT FRAUD, EITHER
EXTRINSIC OR INTRINSIC, IN THE PERFORMANCE OF
HIS DUTIES AS ANCILLARY ADMINISTRATOR OF
AUDREY ONEIL GUERSEYS ESTATE IN THE
PHILIPPINES, AND THAT NO FRAUD, EITHER EXTRINSIC
OR INTRINSIC, WAS EMPLOYED BY [HIM] IN
PROCURING SAID ORDERS.[20]
Petitioner reiterates his arguments before the CA that
the Orders dated February 12, 1988 and April 7, 1988
can no longer be annulled because it is a final judgment,
which is conclusive upon the administration as to all
matters involved in such judgment or order, and will
determine for all time and in all courts, as far as the
parties to the proceedings are concerned, all matters
therein determined, and the same has already been
executed.[21]
Petitioner also contends that that he acted in good faith
in performing his duties as an ancillary administrator.
He maintains that at the time of the filing of the project
of partition, he was not aware of the relevant laws of
the State of Maryland, such that the partition was made
in accordance with Philippine laws. Petitioner also
imputes knowledge on the part of respondent with
regard to the terms of Aubreys will, stating that as early
as 1984, he already apprised respondent of the contents
of the will and how the estate will be divided.[22]
Respondent argues that petitioners breach of his
fiduciary duty as ancillary administrator of Aubreys
estate amounted to extrinsic fraud. According to
respondent, petitioner was duty-bound to follow the
express terms of Aubreys will, and his denial of
knowledge of the laws of Maryland cannot stand
because petitioner is a senior partner in a prestigious
law firm and it was his duty to know the relevant laws.
Respondent also states that she was not able to file any
opposition to the project of partition because she was
not a party thereto and she learned of the provision of
Aubreys will bequeathing entirely her estate to Richard
only after Atty. Ancheta filed a project of partition in
Special Proceeding No. M-888 for the settlement of
Richards estate.
A decree of distribution of the estate of a deceased
person vests the title to the land of the estate in the
distributees, which, if erroneous may be corrected by a
timely appeal. Once it becomes final, its binding effect
is like any other judgment in rem.[23] However, in
exceptional cases, a final decree of distribution of the
estate may be set aside for lack of jurisdiction or
fraud.[24] Further, in Ramon v. Ortuzar,[25] the Court
ruled that a party interested in a probate proceeding
may have a final liquidation set aside when he is left out
by reason of circumstances beyond his control or
through mistake or inadvertence not imputable to
negligence.[26]
The petition for annulment was filed before the CA on
October 20, 1993, before the issuance of the 1997 Rules
of Civil Procedure; hence, the applicable law is Batas
Pambansa Blg. 129 (B.P. 129) or the Judiciary
Reorganization Act of 1980. An annulment of judgment
filed under B.P. 129 may be based on the ground that a
judgment is void for want of jurisdiction or that the
judgment was obtained by extrinsic fraud.[27] For fraud
322
to become a basis for annulment of judgment, it has to
be extrinsic or actual,[28] and must be brought within
four years from the discovery of the fraud.[29]
In the present case, respondent alleged extrinsic fraud
as basis for the annulment of the RTC Orders dated
February 12, 1988 and April 7, 1988. The CA found
merit in respondents cause and found that petitioners
failure to follow the terms of Audreys will, despite the
latters declaration of good faith, amounted to extrinsic
fraud. The CA ruled that under Article 16 of the Civil
Code, it is the national law of the decedent that is
applicable, hence, petitioner should have distributed
Aubreys estate in accordance with the terms of her will.
The CA also found that petitioner was prompted to
distribute Audreys estate in accordance with Philippine
laws in order to equally benefit Audrey and Richard
Guerseys adopted daughter, Kyle Guersey Hill.
Petitioner contends that respondents cause of action
had already prescribed because as early as 1984,
respondent was already well aware of the terms of
Audreys will,[30] and the complaint was filed only in
1993. Respondent, on the other hand, justified her lack
of immediate action by saying that she had no
opportunity to question petitioners acts since she was
not a party to Special Proceeding No. 9625, and it was
only after Atty. Ancheta filed the project of partition in
Special Proceeding No. M-888, reducing her inheritance
in the estate of Richard that she was prompted to seek
another counsel to protect her interest.[31]
It should be pointed out that the prescriptive period for
annulment of judgment based on extrinsic fraud
commences to run from the discovery of the fraud or
fraudulent act/s. Respondents knowledge of the terms
of Audreys will is immaterial in this case since it is not
the fraud complained of. Rather, it is petitioners failure
to introduce in evidence the pertinent law of the State
of Maryland that is the fraudulent act, or in this case,
omission, alleged to have been committed against
respondent, and therefore, the four-year period should
be counted from the time of respondents discovery
thereof.
Records bear the fact that the filing of the project of
partition of Richards estate, the opposition thereto, and
the order of the trial court disallowing the project of
partition in Special Proceeding No. M-888 were all done
in 1991.[32] Respondent cannot be faulted for letting
the assailed orders to lapse into finality since it was only
through Special Proceeding No. M-888 that she came to
comprehend the ramifications of petitioners acts.
Obviously, respondent had no other recourse under the
circumstances but to file the annulment case. Since the
action for annulment was filed in 1993, clearly, the same
has not yet prescribed.
Fraud takes on different shapes and faces. In Cosmic
Lumber Corporation v. Court of Appeals,[33] the Court
stated that man in his ingenuity and fertile imagination
will always contrive new schemes to fool the unwary.
There is extrinsic fraud within the meaning of Sec. 9 par.
(2), of B.P. Blg. 129, where it is one the effect of which
prevents a party from hearing a trial, or real contest, or
from presenting all of his case to the court, or where it
operates upon matters, not pertaining to the judgment
itself, but to the manner in which it was procured so that
there is not a fair submission of the controversy. In
other words, extrinsic fraud refers to any fraudulent act
of the prevailing party in the litigation which is
committed outside of the trial of the case, whereby the
defeated party has been prevented from exhibiting fully
his side of the case by fraud or deception practiced on
him by his opponent. Fraud is extrinsic where the
unsuccessful party has been prevented from exhibiting
fully his case, by fraud or deception practiced on him by
his opponent, as by keeping him away from court, a
false promise of a compromise; or where the defendant
never had any knowledge of the suit, being kept in
ignorance by the acts of the plaintiff; or where an
attorney fraudulently or without authority connives at
his defeat; these and similar cases which show that
there has never been a real contest in the trial or
hearing of the case are reasons for which a new suit may
be sustained to set aside and annul the former judgment
and open the case for a new and fair hearing.[34]
The overriding consideration when extrinsic fraud is
alleged is that the fraudulent scheme of the prevailing
litigant prevented a party from having his day in
court.[35]
Petitioner is the ancillary administrator of Audreys
estate. As such, he occupies a position of the highest
trust and confidence, and he is required to exercise
reasonable diligence and act in entire good faith in the
performance of that trust. Although he is not a
guarantor or insurer of the safety of the estate nor is he
expected to be infallible, yet the same degree of
prudence, care and judgment which a person of a fair
average capacity and ability exercises in similar
transactions of his own, serves as the standard by which
his conduct is to be judged.[36]
Petitioners failure to proficiently manage the distribution
of Audreys estate according to the terms of her will and
as dictated by the applicable law amounted to extrinsic
fraud. Hence the CA Decision annulling the RTC Orders
dated February 12, 1988 and April 7, 1988, must be
upheld.
It is undisputed that Audrey Guersey was an American
citizen domiciled in Maryland, U.S.A. During the
reprobate of her will in Special Proceeding No. 9625, it
was shown, among others, that at the time of Audreys
death, she was residing in the Philippines but is
domiciled in Maryland, U.S.A.; her Last Will and
Testament dated August 18, 1972 was executed and
probated before the Orphans Court in Baltimore,
Maryland, U.S.A., which was duly authenticated and
certified by the Register of Wills of Baltimore City and
attested by the Chief Judge of said court; the will was
admitted by the Orphans Court of Baltimore City on
September 7, 1979; and the will was authenticated by
323
the Secretary of State of Maryland and the Vice Consul
of the Philippine Embassy.
Being a foreign national, the intrinsic validity of Audreys
will, especially with regard as to who are her heirs, is
governed by her national law, i.e., the law of the State
of Maryland, as provided in Article 16 of the Civil Code,
to wit:
Art. 16. Real property as well as personal property is
subject to the law of the country where it is situated.
However, intestate and testamentary succession, both
with respect to the order of succession and to the
amount of successional rights and to the intrinsic
validity of testamentary provisions, shall be regulated
by the national law of the person whose succession is
under consideration, whatever may be the nature of the
property and regardless of the country wherein said
property may be found. (Emphasis supplied)
Article 1039 of the Civil Code further provides that
capacity to succeed is governed by the law of the nation
of the decedent.
As a corollary rule, Section 4, Rule 77 of the Rules of
Court on Allowance of Will Proved Outside the
Philippines and Administration of Estate Thereunder,
states:
SEC. 4. Estate, how administered.When a will is thus
allowed, the court shall grant letters testamentary, or
letters of administration with the will annexed, and such
letters testamentary or of administration, shall extend
to all the estate of the testator in the Philippines. Such
estate, after the payment of just debts and expenses of
administration, shall be disposed of according to such
will, so far as such will may operate upon it; and the
residue, if any, shall be disposed of as is provided by
law in cases of estates in the Philippines belonging to
persons who are inhabitants of another state or country.
(Emphasis supplied)
While foreign laws do not prove themselves in our
jurisdiction and our courts are not authorized to take
judicial notice of them;[37] however, petitioner, as
ancillary administrator of Audreys estate, was duty-
bound to introduce in evidence the pertinent law of the
State of Maryland.[38]
Petitioner admitted that he failed to introduce in
evidence the law of the State of Maryland on Estates and
Trusts, and merely relied on the presumption that such
law is the same as the Philippine law on wills and
succession. Thus, the trial court peremptorily applied
Philippine laws and totally disregarded the terms of
Audreys will. The obvious result was that there was no
fair submission of the case before the trial court or a
judicious appreciation of the evidence presented.
Petitioner insists that his application of Philippine laws
was made in good faith. The Court cannot accept
petitioners protestation. How can petitioner honestly
presume that Philippine laws apply when as early as the
reprobate of Audreys will before the trial court in 1982,
it was already brought to fore that Audrey was a U.S.
citizen, domiciled in the State of Maryland. As asserted
by respondent, petitioner is a senior partner in a
prestigious law firm, with a big legal staff and a large
library.[39] He had all the legal resources to determine
the applicable law. It was incumbent upon him to
exercise his functions as ancillary administrator with
reasonable diligence, and to discharge the trust reposed
on him faithfully. Unfortunately, petitioner failed to
perform his fiduciary duties.
Moreover, whether his omission was intentional or not,
the fact remains that the trial court failed to consider
said law when it issued the assailed RTC Orders dated
February 12, 1988 and April 7, 1988, declaring Richard
and Kyle as Audreys heirs, and distributing Audreys
estate according to the project of partition submitted by
petitioner. This eventually prejudiced respondent and
deprived her of her full successional right to the Makati
property.
In GSIS v. Bengson Commercial Bldgs., Inc.,[40] the
Court held that when the rule that the negligence or
mistake of counsel binds the client deserts its proper
office as an aid to justice and becomes a great hindrance
and chief enemy, its rigors must be relaxed to admit
exceptions thereto and to prevent a miscarriage of
justice, and the court has the power to except a
particular case from the operation of the rule whenever
the purposes of justice require it.
The CA aptly noted that petitioner was remiss in his
responsibilities as ancillary administrator of Audreys
estate. The CA likewise observed that the distribution
made by petitioner was prompted by his concern over
Kyle, whom petitioner believed should equally benefit
from the Makati property. The CA correctly stated, which
the Court adopts, thus:
In claiming good faith in the performance of his duties
and responsibilities, defendant Alonzo H. Ancheta
invokes the principle which presumes the law of the
forum to be the same as the foreign law (Beam vs.
Yatco, 82 Phil. 30, 38) in the absence of evidence
adduced to prove the latter law (Slade Perkins vs.
Perkins, 57 Phil. 205, 210). In defending his actions in
the light of the foregoing principle, however, it appears
that the defendant lost sight of the fact that his primary
responsibility as ancillary administrator was to distribute
the subject estate in accordance with the will of Audrey
ONeill Guersey. Considering the principle established
under Article 16 of the Civil Code of the Philippines, as
well as the citizenship and the avowed domicile of the
decedent, it goes without saying that the defendant was
also duty-bound to prove the pertinent laws of Maryland
on the matter.
The record reveals, however, that no clear effort was
made to prove the national law of Audrey ONeill Guersey
during the proceedings before the court a quo. While
there is claim of good faith in distributing the subject
estate in accordance with the Philippine laws, the
324
defendant appears to put his actuations in a different
light as indicated in a portion of his direct examination,
to wit:
xxx
It would seem, therefore, that the eventual distribution
of the estate of Audrey ONeill Guersey was prompted by
defendant Alonzo H. Anchetas concern that the subject
realty equally benefit the plaintiffs adopted daughter
Kyle Guersey.
Well-intentioned though it may be, defendant Alonzo H.
Anchetas action appears to have breached his duties
and responsibilities as ancillary administrator of the
subject estate. While such breach of duty admittedly
cannot be considered extrinsic fraud under ordinary
circumstances, the fiduciary nature of the said
defendants position, as well as the resultant frustration
of the decedents last will, combine to create a
circumstance that is tantamount to extrinsic fraud.
Defendant Alonzo H. Anchetas omission to prove the
national laws of the decedent and to follow the latters
last will, in sum, resulted in the procurement of the
subject orders without a fair submission of the real
issues involved in the case.[41] (Emphasis supplied)
This is not a simple case of error of judgment or grave
abuse of discretion, but a total disregard of the law as a
result of petitioners abject failure to discharge his
fiduciary duties. It does not rest upon petitioners
pleasure as to which law should be made applicable
under the circumstances. His onus is clear. Respondent
was thus excluded from enjoying full rights to the Makati
property through no fault or negligence of her own, as
petitioners omission was beyond her control. She was in
no position to analyze the legal implications of
petitioners omission and it was belatedly that she
realized the adverse consequence of the same. The end
result was a miscarriage of justice. In cases like this, the
courts have the legal and moral duty to provide judicial
aid to parties who are deprived of their rights.[42]
The trial court in its Order dated December 6, 1991 in
Special Proceeding No. M-888 noted the law of the State
of Maryland on Estates and Trusts, as follows:
Under Section 1-301, Title 3, Sub-Title 3 of the
Annotated Code of the Public General Laws of Maryland
on Estates and Trusts, all property of a decedent shall
be subject to the estate of decedents law, and upon his
death shall pass directly to the personal representative,
who shall hold the legal title for administration and
distribution, while Section 4-408 expressly provides that
unless a contrary intent is expressly indicated in the will,
a legacy passes to the legatee the entire interest of the
testator in the property which is the subject of the
legacy. Section 7-101, Title 7, Sub-Title 1, on the other
hand, declares that a personal representative is a
fiduciary and as such he is under the general duty to
settle and distribute the estate of the decedent in
accordance with the terms of the will and the estate of
decedents law as expeditiously and with as little sacrifice
of value as is reasonable under the circumstances.[43]
In her will, Audrey devised to Richard her entire estate,
consisting of the following: (1) Audreys conjugal share
in the Makati property; (2) the cash amount of
P12,417.97; and (3) 64,444 shares of stock in A/G
Interiors, Inc. worth P64,444.00.All these properties
passed on to Richard upon Audreys death. Meanwhile,
Richard, in his will, bequeathed his entire estate to
respondent, except for his rights and interests over the
A/G Interiors, Inc. shares, which he left to Kyle. When
Richard subsequently died, the entire Makati property
should have then passed on to respondent. This, of
course, assumes the proposition that the law of the
State of Maryland which allows a legacy to pass to the
legatee the entire estate of the testator in the property
which is the subject of the legacy, was sufficiently
proven in Special Proceeding No. 9625. Nevertheless,
the Court may take judicial notice thereof in view of the
ruling in Bohanan v. Bohanan.[44] Therein, the Court
took judicial notice of the law of Nevada despite failure
to prove the same. The Court held, viz.:
We have, however, consulted the records of the case in
the court below and we have found that during the
hearing on October 4, 1954 of the motion of Magdalena
C. Bohanan for withdrawal of P20,000 as her share, the
foreign law, especially Section 9905, Compiled Nevada
Laws, was introduced in evidence by appellants' (herein)
counsel as Exhibit "2" (See pp. 77-79, Vol. II, and t.s.n.
pp. 24-44, Records, Court of First Instance). Again said
law was presented by the counsel for the executor and
admitted by the Court as Exhibit "B" during the hearing
of the case on January 23, 1950 before Judge Rafael
Amparo (see Records, Court of First Instance, Vol. 1).
In addition, the other appellants, children of the
testator, do not dispute the above-quoted provision of
the laws of the State of Nevada. Under all the above
circumstances, we are constrained to hold that the
pertinent law of Nevada, especially Section 9905 of the
Compiled Nevada Laws of 1925, can be taken judicial
notice of by us, without proof of such law having been
offered at the hearing of the project of partition.
In this case, given that the pertinent law of the State of
Maryland has been brought to record before the CA, and
the trial court in Special Proceeding No. M-888
appropriately took note of the same in disapproving the
proposed project of partition of Richards estate, not to
mention that petitioner or any other interested person
for that matter, does not dispute the existence or
validity of said law, then Audreys and Richards estate
should be distributed according to their respective wills,
and not according to the project of partition submitted
by petitioner. Consequently, the entire Makati property
belongs to respondent.
Decades ago, Justice Moreland, in his dissenting opinion
in Santos v. Manarang,[45] wrote:
325
A will is the testator speaking after death. Its provisions
have substantially the same force and effect in the
probate court as if the testator stood before the court in
full life making the declarations by word of mouth as
they appear in the will. That was the special purpose of
the law in the creation of the instrument known as the
last will and testament. Men wished to speak after they
were dead and the law, by the creation of that
instrument, permitted them to do so x x x All doubts
must be resolved in favor of the testator's having meant
just what he said.
of the constitutional provision to keep our lands in
Filipino hands has been achieved.
WHEREFORE, the petition is denied. The Decision dated
March 18, 1999 and the Resolution dated August 27,
1999 of the Court of Appeals are AFFIRMED.
Petitioner is ADMONISHED to be more circumspect in
the performance of his duties as an official of the court.
No pronouncement as to costs.

Honorable as it seems, petitioners motive in equitably SO ORDERED.

distributing Audreys estate cannot prevail over Audreys
and Richards wishes. As stated in Bellis v. Bellis:[46]

x x x 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.[47]

Before concluding, the Court notes the fact that Audrey

and Richard Guersey were American citizens who owned
real property in the Philippines, although records do not
show when and how the Guerseys acquired the Makati
property.

Under Article XIII, Sections 1 and 4 of the 1935

Constitution, the privilege to acquire and exploit lands
of the public domain, and other natural resources of the
Philippines, and to operate public utilities, were reserved
to Filipinos and entities owned or controlled by them. In
Republic v. Quasha,[48] the Court clarified that the
Parity Rights Amendment of 1946, which re-opened to
American citizens and business enterprises the right in
the acquisition of lands of the public domain, the
disposition, exploitation, development and utilization of
natural resources of the Philippines, does not include the
acquisition or exploitation of private agricultural lands.
The prohibition against acquisition of private lands by
aliens was carried on to the 1973 Constitution under
Article XIV, Section 14, with the exception of private
lands acquired by hereditary succession and when the
transfer was made to a former natural-born citizen, as
provided in Section 15, Article XIV. As it now stands,
Article XII, Sections 7 and 8 of the 1986 Constitution
explicitly prohibits non-Filipinos from acquiring or
holding title to private lands or to lands of the public
domain, except only by way of legal succession or if the
acquisition was made by a former natural-born citizen.

In any case, the Court has also ruled that if land is

invalidly transferred to an alien who subsequently
becomes a citizen or transfers it to a citizen, the flaw in
the original transaction is considered cured and the title
of the transferee is rendered valid.[49] In this case,
since the Makati property had already passed on to
respondent who is a Filipino, then whatever flaw, if any,
that attended the acquisition by the Guerseys of the
Makati property is now inconsequential, as the objective
326